State v. Clark, Nos. 960344

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtVANDE WALLE
Citation1997 ND 199,570 N.W.2d 195
Docket Number970109,Nos. 960344
Decision Date21 October 1997
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Daniel J. CLARK, Defendant and Appellant. Criminal, and 970231.

Page 195

570 N.W.2d 195
1997 ND 199
STATE of North Dakota, Plaintiff and Appellee,
v.
Daniel J. CLARK, Defendant and Appellant.
Criminal Nos. 960344, 970109, and 970231.
Supreme Court of North Dakota.
Oct. 21, 1997.
Rehearing Denied Dec. 2, 1997.

Page 197

Owen K. Mehrer, Stark County State's Attorney, Dickinson, for plaintiff and appellee.

Irvin B. Nodland (argued), and Chad C. Nodland, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Daniel J. Clark appealed from a jury verdict finding him guilty of manslaughter, from the judgment of conviction, and from orders denying his motions for a new trial. We affirm.

¶2 Early on January 17, 1996, Daniel Clark shot George Girodengo twice, after finding him in Clark's wife's bedroom. Girodengo died in surgery. Clark was charged with murder. On May 17, 1996, a jury returned a verdict finding Clark not guilty of murder, but guilty of manslaughter.

¶3 A judgment of conviction was entered on June 25, 1996. On June 28, 1996, Clark moved for an extension of time for filing a notice of appeal or motion for a new trial. The trial court granted an extension. The trial court denied Clark's subsequent motions for a new trial and Clark filed notices of appeal dated October 28, 1996, and March 27, 1997.

I

¶4 The State moved to dismiss Clark's appeal as untimely under Rule 4(b), N.D.R.App.P., 1 and Rule 33, N.D.R.Crim.P.: 2

"The State moves to Dismiss Defendant's appeal. The Court lacks jurisdiction. The Defendant did not file a timely notice of appeal as required by Rule 4(b) NDRApp[P]. The Defendant failed to file a timely motion for a new trial, which would extend the 10-day limitation of Rule 4(b).

"The Trial Court had no power to extend the jurisdictional time limits of Rule 33, NDRCrimP., as it pertained to Defendant's subsequent motions for a new trial. The Trial Court's extension of Rule 33 time, without jurisdiction, failed to toll time limits of Rule 4(b), N.D.R.App.P.

"Any appeal considered by the court must be limited to the single issue raised by Defendant in his March 27, 1997, appeal from the trial court's denial of Defendant's Motion for New Trial based on newly discovered evidence."

¶5 Rule 3, N.D.R.App.P., provides, in part:

Page 198

"(a) Filing the Notice of Appeal. An appeal permitted by law as of right from a trial court to the supreme court shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4....

* * * * * *

"(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken."

Rule 3, N.D.R.App.P., is derived from Rule 3, F.R.App.P. "[I]t is contemplated that the federal practice and authority will apply to those rules which have substantially the same form as their federal counterpart." Explanatory Note, Rule 1, N.D.R.App.P. Courts construe Rule 3, F.R.App.P., liberally in favor of appellants. Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 681, 116 L.Ed.2d 678 (1992); 20 Moore's Fed. Prac. § 303.21 (3rd ed.1997). "While a notice of appeal must specifically indicate the litigant's intent to seek appellate review, ... the notice afforded by a document, not the litigant's motivation in filing it, determines the document's sufficiency as a notice of appeal." Smith v. Barry, 502 U.S. at 248, 112 S.Ct. at 682. A number of types of documents have been determined sufficient as a notice of appeal, including a letter, a brief, a motion, and a memorandum stating an intent to appeal. 20 Moore's Fed. Prac. § 303.21 (3rd ed.1997). "[W]hile we have not directly stated that notices of appeal are to be liberally construed in favor of their sufficiency, many other courts have" and we have "allowed appeals under similar reasoning." Biesterfeld v. Asbestos Corp. of America, 467 N.W.2d 730, 735 (N.D.1991). Clark "did not mislead or prejudice" the State, and his "intention to seek review ... was manifest." Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962). Cf., City of Minot v. Lundt, 268 N.W.2d 482, 485 (N.D.1978) ("There is nothing in the record showing that Lundt communicated to the district court within the time requirements set forth in Rule 4(b), N.D.R.App.P., his intention to appeal from the petit larceny conviction."). Although there was considerable initial confusion as to its purpose, we conclude Clark's motion of June 28, 1996, sufficed as a notice of appeal so that it vested this court with jurisdiction. The State has conceded this court has jurisdiction to decide Clark's March 27, 1997, appeal from the trial court's denial of his motion for a new trial based on newly discovered evidence.

II

¶6 Relying on a post-trial letter from a juror and his subsequent affidavit, Clark contends the trial court erred in refusing to grant a new trial based on jury misconduct. Clark avers:

"After trial, juror Gaylon Allen addressed a letter to the Court. App p 115. Allen's letter to the Court and his subsequent affidavit show these jurors never agreed Clark was guilty of manslaughter. They bartered their votes to get a verdict.

"Those who wanted AA murder bartered their true beliefs in order to assure conviction for something and to avoid two or three days of deliberation. Those who believed Clark was innocent agreed to manslaughter because: (1) they thought the sentence would only be three or four years; (2) they feared if Dan were retried, another jury might convict him of murder and he would have to spend his life in prison; and (3) they felt it was what Dan would want them to do."

¶7 We do not reverse a trial court's denial of a motion for a new trial unless the trial court abused its discretion in denying the motion. State v. Brooks, 520 N.W.2d 796, 798 (N.D.1994). Rule 606(b), N.D.R.Ev., prohibits a juror from testifying as to the mental processes inherent in arriving at a verdict, but allows jurors to testify as to whether outside influences were brought to bear upon a juror, or if the verdict was arrived at by chance. Explanatory Note, Rule 606, N.D.R.Ev. "The purpose of Rule 606(b) is to free deliberation in the jury room by protecting from disclosure the manner in which a verdict was reached, and to promote the finality of the verdict." Brooks, 520 N.W.2d at 799.

Page 199

¶8 Under Rule 606(b), N.D.R.Ev., juror affidavits "may be used to show juror misconduct based upon extraneous prejudicial information, outside influence, or a chance verdict," but may not be used to show "the effect of the misconduct on the jury." Keyes v. Amundson, 343 N.W.2d 78, 84-5 (N.D.1983). "Our decisions have consistently rejected jurors' affidavits about the effect of internal deliberations." Miller v. Breidenbach, 520 N.W.2d 869, 872 (N.D.1994). See also Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982); Grenz v. Werre, 129 N.W.2d 681 (N.D.1964). "It is improper for a court to consider juror affidavits for purposes of impeaching a verdict relative to the mental processes or reasoning of the jurors in arriving at a decision." Mauch v. Manufacturers Sales & Serv., Inc., 345 N.W.2d 338, 343 (N.D.1984). "An attempt to use juror affidavits to demonstrate how the jury arrived at its decision falls precisely within the confines of the rule prohibiting impeachment of the jury verdict." Andrews v. O'Hearn, 387 N.W.2d 716, 719 (N.D.1986).

¶9 The juror affidavit relied upon by Clark states that juror's view of "the mental processes or reasoning of the jurors in arriving at a decision," Mauch, 345 N.W.2d at 343, and "falls precisely within the confines of the rule prohibiting impeachment of the jury verdict," Andrews, 387 N.W.2d at 719. We conclude the trial court did not abuse its discretion in denying Clark's motion for a new trial on the ground of jury misconduct. 3

III

¶10 Clark contends the trial court erred in instructing the jury on the lesser offense of manslaughter. Clark argues: "This was an intentional shooting.... Unless Clark had some right to intentionally pull the trigger, he was guilty of murder.... He was either excused by reason of self defense or he was not.... The evidence did not support giving an instruction of manslaughter."

¶11 The fact a shooting was intentional does not preclude a verdict of manslaughter if the shooting resulted from an unreasonable belief in the necessity of using force:

" 'If, therefore, a person has an actual and reasonable belief that force is necessary to protect himself against danger of imminent unlawful harm, his conduct is justified or excused. If, on the other hand, a person's actual belief in the necessity of using force to prevent imminent unlawful harm is unreasonable, his conduct will not be justified or excused. Instead, he will be guilty of an offense for which negligence or recklessness suffices to establish culpability. For example, if a person recklessly believes that the use of force upon another person is necessary to protect himself against unlawful imminent serious bodily injury and the force he uses causes the death of the other person, he is guilty of manslaughter.' "

State v. Gagnon, 1997 ND 153, p 6, 567 N.W.2d 807, quoting State v. Leidholm, 334 N.W.2d 811, 816 (N.D.1983). There was evidence of recklessness, and we conclude the trial court did not err in instructing the jury on the offense of manslaughter.

IV

¶12 Clark contends his right of confidential communication with his attorney was violated. A correctional officer monitored a telephone conversation between Clark and his wife, Peggy, in February 1996. The officer reported that when that conversation ended, "Dan made another phone call. It was to Erv Nodland. He asked Erv if Peggy could be subpoenaed to court. Erv said it was possible. Dan also made the remark that Peggy was out of state. It was a brief phone call."

¶13 Clark moved for sanctions, including dismissal,...

To continue reading

Request your trial
22 practice notes
  • State v. Perez, No. 2005-2364.
    • United States
    • United States State Supreme Court of Ohio
    • December 2, 2009
    ...construed, as they conflict with the court's truth-finding function. Id. at 574-575, 503 N.W.2d 50. {¶ 117} Similarly, in State v. Clark, 1997 ND 199, 570 N.W.2d 195, a state rule of evidence provided: "An accused in a criminal proceeding has a privilege to prevent his spouse from testifyin......
  • State v. Hidanovic, No. 20070130.
    • United States
    • United States State Supreme Court of North Dakota
    • April 17, 2008
    ...public policy that precludes examination of the internal discussions and mental processes of jury deliberations. See also State v. Clark, 1997 ND 199, ¶¶ 6-9, 570 N.W.2d 195 (refusing to consider juror affidavit stating jurors "bartered" their true beliefs "to assure conviction for somethin......
  • Ohio Cas. Ins. Co. v. Clark, No. 980057
    • United States
    • United States State Supreme Court of North Dakota
    • August 18, 1998
    ...with murder. On May 17, 1996, a jury returned a verdict finding Clark not guilty of murder, but guilty of manslaughter." State v. Clark, 1997 ND 199, p 2, 570 N.W.2d 195. On appeal from his criminal conviction, Clark contended the trial court erred in instructing the jury on the lesser offe......
  • Rittenour v. Gibson, No. 20020053.
    • United States
    • North Dakota Supreme Court
    • February 19, 2003
    ...admission of evidence, unless the court abused its discretion." State v. Gagnon, 1999 ND 13, ¶ 9, 589 N.W.2d 560 (citing State v. Clark, 1997 ND 199, ¶ 26, 570 N.W.2d 195). "A trial court abuses its discretion when it acts in an arbitrary or capricious manner or misapplies or misinterprets ......
  • Request a trial to view additional results
22 cases
  • State v. Perez, No. 2005-2364.
    • United States
    • United States State Supreme Court of Ohio
    • December 2, 2009
    ...construed, as they conflict with the court's truth-finding function. Id. at 574-575, 503 N.W.2d 50. {¶ 117} Similarly, in State v. Clark, 1997 ND 199, 570 N.W.2d 195, a state rule of evidence provided: "An accused in a criminal proceeding has a privilege to prevent his spouse from testifyin......
  • State v. Hidanovic, No. 20070130.
    • United States
    • United States State Supreme Court of North Dakota
    • April 17, 2008
    ...public policy that precludes examination of the internal discussions and mental processes of jury deliberations. See also State v. Clark, 1997 ND 199, ¶¶ 6-9, 570 N.W.2d 195 (refusing to consider juror affidavit stating jurors "bartered" their true beliefs "to assure conviction for somethin......
  • Ohio Cas. Ins. Co. v. Clark, No. 980057
    • United States
    • United States State Supreme Court of North Dakota
    • August 18, 1998
    ...with murder. On May 17, 1996, a jury returned a verdict finding Clark not guilty of murder, but guilty of manslaughter." State v. Clark, 1997 ND 199, p 2, 570 N.W.2d 195. On appeal from his criminal conviction, Clark contended the trial court erred in instructing the jury on the lesser offe......
  • Rittenour v. Gibson, No. 20020053.
    • United States
    • North Dakota Supreme Court
    • February 19, 2003
    ...admission of evidence, unless the court abused its discretion." State v. Gagnon, 1999 ND 13, ¶ 9, 589 N.W.2d 560 (citing State v. Clark, 1997 ND 199, ¶ 26, 570 N.W.2d 195). "A trial court abuses its discretion when it acts in an arbitrary or capricious manner or misapplies or misinterprets ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT