State v. Carmody

Decision Date25 April 1977
Docket NumberNo. 573,573
Citation253 N.W.2d 415
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Robert CARMODY, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. When a defendant has voluntarily taken the stand, he is under an obligation to speak truthfully, and the prosecutor may utilize the traditional truth-testing devices of the adversary process.

2. Even constitutional error may be harmless beyond a reasonable doubt when there is overwhelming evidence of guilt.

3. Unless law enforcement officers give Miranda warnings before questioning a person in custody, and follow Miranda procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot, over his objection, be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary.

4. Negligent homicide (§ 12-27-35, NDCC) and manslaughter second degree (§ 12-27-19, NDCC) are reconcilable and consistent, and the enactment of § 12-27-35, NDCC, did not supersede and repeal § 12-27-19, NDCC, by implication.

Burt L. Riskedahl, Bismarck, for appellant.

Robert E. Manly, State's Atty., New Rockford, for appellee.

PEDERSON, Justice.

Robert Carmody (hereinafter Carmody), his brother Michael, Eldon Hanson and Philip Sharbono spent several hours together on August 14, 1973, consuming alcoholic beverages in several bars in Carrington. When the bars closed at one o'clock the next morning, the four men got into a car owned by Michael and proceeded at a high rate of speed out of Carrington, pursued by Carrington police officers. At a point near the city of New Rockford, the car swerved out of control and overturned. Eldon Hanson died at 2 a. m., August 15, 1973, as a result of injuries received.

Carmody was arrested and charged with first degree manslaughter, trial was had to a jury and, on December 7, 1973, he was convicted of second degree manslaughter.

On an application to this Court for post-conviction relief, we remanded for resentencing State v. Carmody, 243 N.W.2d 348 (N.D.1976). At the resentencing hearing, Carmody moved for a new trial. The motion was denied and he was resentenced. This is an appeal from the judgment and from the denial of the motion for a new trial.

The issues are stated by Carmody as follows:

(1) "Whether the prosecution's eliciting testimony from the appellant on cross examination and commenting, in the presence of the jury, regarding appellant's failure to testify and deny his involvement at the preliminary hearing, violated the appellant's statutory and constitutional rights";

(2) "Whether in-custody-statements made by the appellant were voluntarily given and not subject to Miranda requirements"; and

(3) "Whether, in the case of vehicle deaths, the enactment of North Dakota Century Code 12-27-35 (negligent homicide) in 1957 repealed by implication North Dakota Century Code 12-27-17(1) (manslaughter first degree) with which the appellant was charged and North Dakota Century Code 12-27-19 (manslaughter second degree) with which the appellant was convicted."


The first issue involves questions asked by the prosecuting attorney when cross-examining Carmody, who took the witness stand voluntarily in his own behalf. The first question asked by the prosecutor, who had not participated in the preliminary hearing, was whether Carmody had taken the stand at the hearing. With no objection from his counsel, Carmody replied, "I was never asked to." The prosecutor then asked whether Carmody knew, at the time of the preliminary hearing, that if Eldon Hanson was the driver there would be no further case. The trial court overruled defense counsel's objection and, at defense counsel's suggestion, the question was reworded as follows: "At the time of the preliminary hearing did you know and understand that if it was established that Eldon Hanson was the driver of the automobile there would be no further case?"

Carmody's reply was that he did not understand that, after which defense counsel again objected on the ground that the question called for a legal conclusion, and again the court overruled the objection.

On this appeal it is argued that the statements of the prosecutor and the inferences from the questioning conveyed to the jury an impression that Carmody was under a duty to testify at the preliminary hearing.

It has been held that a defendant in a criminal case who takes the witness stand in his own behalf is subject to the same rules of cross-examination as those that govern other witnesses. State v. Kent, 5 N.D. 516, 67 N.W. 1052, 35 L.R.A. 518 (1896) (also known as State v. Pancoast ). See also, State v. Hanson, 73 N.W.2d 135, 139 (N.D.1955), where we said:

"A defendant cannot be compelled to testify. But when he voluntarily does so, he waives his constitutional privilege of not being required to give evidence tending to incriminate him, to impeach him, and he may be asked questions as to other offenses the same as any other witness. State v. Kent, supra. Where an accused voluntarily takes the witness stand in his own behalf, he waives his constitutional privilege of not answering proper questions that may tend to convict him of the crime for which he is on trial and he subjects himself to the same rules that govern other witnesses as to cross-examination and impeachment. When he voluntarily offers testimony upon any fact, the same constitutes a waiver as to all other relevant facts because of the necessary connection between them all."

The United States Supreme Court, in Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), held that:

"The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do."

Raffel was subsequently limited by Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), in which the United States Supreme Court held that comment upon defendant's failure to testify at a previous proceeding was proper only when the prior silence was inconsistent with subsequent exculpatory statements in a later proceeding. Such prior silence could be elicited for impeachment purposes, the court held, when it constituted an admission.

The view that silence after arrest at a previous proceeding could constitute an admission after the court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), seems incongruous, and whatever remaining vitality Raffel retained appears to have been substantially diminished by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In that case the prosecutor's cross-examination of the defendants concerning their failure to make exculpatory statements at the time of their arrest was held to violate due process. In deciding the constitutional question expressly left open by its decision in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the court discussed post-arrest silence in light of Miranda in these terms:

"Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State's position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. * * *

"We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Doyle v. Ohio, 96 S.Ct. 2244, 2245, supra.

We think Doyle is particularly applicable to the instant case in which Carmody chose not to testify at the preliminary hearing. The decision often rests upon the sound advice of counsel, and nothing should be ascribed to Carmody's decision to accept that advice and remain silent. To do so in this instance was constitutional error.

However, not every constitutional violation requires automatic reversal of a conviction. Doyle clearly indicated the applicability of the standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), when it stated:

"The State has not claimed that such use in the circumstances of this case might have been harmless error." Doyle v. Ohio, 96 S.Ct. 2245, supra.

Chapman declined to rule that all federal constitutional errors require automatic reversal, and instead placed a heavy burden upon the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. The comments to the North Dakota harmless error rule, Rule 52, NDRCrimP, adopt the Chapman test that before a "federal constitutional error may be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."

In State v. Bragg, 221 N.W.2d 793, 801 (N.D.1974), (a case in which the defendant did not voluntarily take the stand) we stated that the defendant's statement to the effect that his knowledge of a burglary was none of the investigating officer's business was an invocation by the defendant of his Fifth Amendment privilege of remaining silent as to the particular interrogatory posed. In that opinion, we quoted with approval from a Michigan court of appeals decision in People v. Severance, 43 Mich.App. 394, 204 N.W.2d 357, 359 (1972), in which that court commented upon the...

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