State v. Clark
Citation | 1997 ND 199,570 N.W.2d 195 |
Decision Date | 21 October 1997 |
Docket Number | 970109,Nos. 960344,s. 960344 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Daniel J. CLARK, Defendant and Appellant. Criminal, and 970231. |
Court | North Dakota Supreme Court |
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.
¶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.
¶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
¶5 Rule 3, N.D.R.App.P., provides, in part:
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) (). 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.
¶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:
¶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.
¶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
¶10 Clark contends the trial court erred in instructing the jury on the lesser offense of manslaughter. Clark argues:
¶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:
" "
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.
¶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,
¶13 Clark moved for sanctions, including dismissal, suppression of any evidence obtained, and...
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