State v. Carlson

Decision Date16 January 1997
Docket NumberNo. 960070,960070
Citation559 N.W.2d 802,1997 ND 7
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Jamie M. CARLSON, aka Jamie Kringler, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

Phyllis A. Ratcliffe (argued), State's Attorney, Cooperstown, for plaintiff and appellee.

M. Kelly Clark (argued), David Dusek (appearance), and Caroline A. Clark (appearance), of Clark & Dusek, Grand Forks, for defendant and appellant.

MARING, Justice.

¶1 Jamie Carlson appeals from criminal judgments entered upon a special verdict finding him guilty of disorderly conduct and terrorizing. We affirm.

I

¶2 Carlson's convictions stem from events which began on the evening of September 1, 1995, at the Oasis Bar in Cooperstown and culminated in an early morning disturbance at a private home. During the course of the evening, Griggs County Sheriff Paul Hendrickson responded to one call at the Oasis Bar and two calls at the private residence. During the third call, Hendrickson arrested Carlson for disorderly conduct and Carlson's friend, Bill Brosowske, for assault. Hendrickson testified he handcuffed the prisoners and transported them from Cooperstown to Valley City.

¶3 According to Hendrickson, during the trip to Valley City, Brosowske and Carlson were yelling and swearing at him, and he stopped the patrol car to investigate a comment about a cigarette lighter and to fasten the prisoners' seat belts. Hendrickson testified that, during the stop, Carlson attempted to get out of the patrol car and had to be restrained. Hendrickson also testified that, after the stop, Carlson began smashing his head and shoulders against the door and divider of the patrol car. Hendrickson further testified that Carlson said:

[D]isorderly conduct's nothing, I'll have the bond, I'll be out tonight and I'm going to kill you.... "I can get your boys, I can fuck them up, I can cut their face, you got a family, I know where you live, it's just across the alley, I can get your home and get you at any time I want and if I can't my family can and my friends can."... "And I can do it any time I want, you can't always be there to protect them."

¶4 Carlson was ultimately charged with trespass at the private residence in Cooperstown, theft of a bottle of liquor from the Oasis Bar, escape or attempted escape from the patrol car, disorderly conduct for smashing his head and shoulders against the inside of the patrol car, and making terrorizing statements to Hendrickson. A jury found Carlson not guilty of theft, escape, and criminal trespass, but convicted him of terrorizing and disorderly conduct. Carlson appealed.

II

¶5 Carlson contends the trial court erred in allowing a prosecution witness to testify that Brosowske asked a lewd and soliciting question of another customer at the Oasis Bar. Carlson objected to the testimony on the grounds of hearsay and relevancy. On appeal, Carlson contends the statement was not relevant and incited the emotions of the jury against him.

¶6 Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.D.R.Ev. 801(c). A statement that is not offered to prove the truth of the matter asserted is not hearsay. State v. Welch, 426 N.W.2d 550, 555 (N.D.1988). See State v. Iverson, 187 N.W.2d 1, 43 (N.D.), cert. denied, 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971).

¶7 The testimony about Brosowske's out-of-court statement was not offered to show he was soliciting a sexual favor. Rather, the testimony helped explain the underlying circumstances leading up to the events that followed. The testimony about Brosowske's soliciting question was not hearsay.

¶8 Under N.D.R.Ev. 401 through 403, a trial court is vested with broad discretion to decide if evidence is relevant and if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Newnam, 409 N.W.2d 79, 87 (N.D.1987). We employ the abuse-of-discretion standard to review a court's balancing of the probative value of the evidence against the risk of unfair prejudice. Id. A trial court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner. State v. Gefroh, 495 N.W.2d 651, 653-54 (N.D.1993).

¶9 The testimony about Brosowske's lewd and soliciting question was offensive and was not favorable to Carlson. However, the statement precipitated, and provided context for, the ensuing events. We are not persuaded the court acted arbitrarily, unconscionably, or unreasonably in balancing the probative value of that evidence against the danger of unfair prejudice to Carlson. We hold that the court did not abuse its discretion in admitting that evidence.

III

¶10 Carlson contends the trial court erred in postponing its ruling on the admissibility of a statement which he made without receiving the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Carlson made the statement during an interview with an agent from the North Dakota Bureau of Investigation regarding Brosowske's allegation of police brutality on the night of the arrest. At trial, when Carlson called himself to testify, the State immediately asked the court to rule on the State's use of the statement for impeachment during its expected cross-examination of Carlson. The court acknowledged the State's request raised "a host of relevant issues that may need to be resolved" and took the request under advisement "to examine the authorities on these respective issues." The court then observed:

[I]t's a quarter to four on Friday and we would have over the weekend to decide that evidentiary question. Counsel would have over the weekend to prepare arguments if they wanted for or against the inclusion of that examination that's been alluded to by the state. So if you want to confer privately again before you go back in you may do that.

Immediately after the court's ruling and without asking for a continuance, Carlson rested without calling himself to testify.

¶11 Carlson contends the court's ruling unfairly influenced his decision to testify on his own behalf and placed him in the untenable position of either introducing the statement during direct examination, or hoping it could not be used against him during cross-examination.

¶12 The trial court is vested with broad discretion regarding the order of proceedings at trial. State v. Jones, 557 N.W.2d 375, 376-77 (N.D.1996); State v. Mayer, 356 N.W.2d 149, 153 (N.D.1984); State v. Puhr, 316 N.W.2d 75, 80 (N.D.1982); N.D.C.C. § 29-21-01. The timing of a court's ruling on a preliminary question is left to the discretion of the court. State v. Boushee, 284 N.W.2d 423, 435 (N.D.1979). In Boushee, 284 N.W.2d at 435, we recognized that a similar delay in ruling on the admissibility of a defendant's prior felony conviction had an adverse impact on trial strategy, but we held the trial court did not abuse its discretion in refusing to rule on the request before the defendant chose to testify. See Gefroh, 495 N.W.2d at 656 n. 6.

¶13 The trial court did not act arbitrarily, unconscionably, or unreasonably in taking the State's request under advisement until the court was fully advised regarding the admissibility of Carlson's statement. Carlson did not attempt to alleviate the impact of the court's ruling by asking for a continuance over the weekend, and he is in a poor position to claim the ruling unfairly influenced his decision to testify on his own behalf. We conclude the court did not abuse its discretion.

IV

¶14 In conjunction with the terrorizing conviction, Carlson raises several issues involving "transitory anger." According to Carlson, when Hendrickson stopped the patrol car to fasten the prisoners' seat belts, Hendrickson employed excessive force against the prisoners and reinjured Carlson's recent shoulder injury. Carlson contends Hendrickson's mistreatment triggered Carlson's "transitory anger," which led to the threatening statements. Carlson argues the threatening statements do not constitute terrorizing because they were made during his "transitory anger."

A

¶15 Carlson argues that the trial court erred in refusing to give his requested instruction on "transitory anger":

The question whether a given statement is a threat turns on whether the communication in its context, would have a reasonable tendency to create apprehension that its originator will act according to its tenor. The threat must be uttered with the purpose of terrorizing another; "purpose" in this context means aim or intention. Intent is a subjective state of mind established by reasonable inference from surrounding circumstances. The threat, however, must not merely express "transitory anger." Transitory anger expresses a threat in the spur of the moment not "seriously made" and is "merely idle" with no intention of executing the same.

¶16 Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. Smaage, 547 N.W.2d 916, 921 (N.D.1996). Jury instructions must be considered as a whole, and if, when so considered, they correctly advise the jury on the law, they are sufficient, although part of the instructions, standing alone, may be insufficient or erroneous. State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D.1995). A trial court is not required to give jury instructions in the exact language requested by a defendant if the instructions given correctly and adequately inform the jury of the applicable law. State v. Mounts, 484 N.W.2d 843, 844 (N.D.1992).

¶17 Section 12.1-17-04, N.D.C.C., defines terrorizing:

A person is guilty of a class C felony if, with intent to place another human being in fear for that human being's or another's safety or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious...

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