State v. DePriest

• Citation: 206 N.W.2d 859
• Decision Date: 12 April 1973
• Docket Number: No. 430,430
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Wayne Douglas DePRIEST, Defendant and Appellant. Crim.
• Court: United States State Supreme Court of North Dakota

Page 859

206 N.W.2d 859

STATE of North Dakota, Plaintiff and Respondent, v. Wayne Douglas DePRIEST, Defendant and Appellant.

Crim. No. 430.

Supreme Court of North Dakota.

April 12, 1973.

Syllabus by the Court

1. When an FBI laboratory report, which showed that sample particles taken from the scene of the burglary did not match up with any particles on the defendant's clothing, was not furnished to the defendant until the day before the trial, there was no denial of due process and the trial court did not abuse its discretion in denying a motion for a continuance and a motion to subpoena out-of-state witnesses for the purpose of laying a foundation for the admission of the FBI report in evidence, when the record discloses that the defendant was informed, approximately six or seven weeks before the trial, that there was no evidence in the report to link the defendant to the offense, knew that the State did not intend to offer the report in evidence or call as a witness the expert who prepared the report and who was the out-of-state witness defendant wished to subpoena, was permitted during the trial to question the police officer who gathered the particles from the buildings which were sent with known samples to the FBI laboratory, and was permitted to comment to the jury on the report and the State's failure to offer it in evidence.

2. It was within the sound discretion of the trial court to allow in evidence a map of the crime scene drawn by a police officer who conducted an investigation immediately following the burglary, which map was a reproduction of the crime scene as found by the police officer who prepared it, it appearing that the map indicated the location of various buildings, lumber sheds and fenced enclosure of the lumberyard and of footprints found in the snow, and was a reasonably accurate and correct map of the crime scene.

3. In passing upon a motion for a new trial based on the insufficiency of the evidence, the trial court is clothed with a wide discretion, and its determination in regard thereto will not be disturbed unless there appears to have been an abuse of that discretion.

4. The evidence has been examined and it is held that the trial court did not abuse its discretion in denying the motion for a new trial and that the evidence is sufficient to sustain the verdict.

Kent A. Higgins, Public Defender, and Benjamin C. Pulkrabek, Asst. Public Defender, Bismarck, for defendant and appellant.

Helgi Johanneson, Atty. Gen., and Thomas F. Kelsch, State's Atty., Bismarck, for plaintiff and respondent.

TEIGEN, Judge.

The defendant has appealed from a judgment of conviction for the crime of burglary on a jury verdict of guilty, and from an order denying a motion for a new trial.

There are five claims of error. The first three of these, which can be considered together, are as follows:

'1. The Burleigh County State Attorney's Office erred in not furnishing the defendant with a copy of the F.B.I. report regarding this particular case until the day before trial.

'2. The Court erred in not allowing the defendant a postponement in the trial.

'3. The Court erred in not allowing the defendant out of state witnesses responsible for the F.B.I. report regarding this particular case.'

The FBI report referred to consists of a laboratory analysis of sample particles of broken glass, putty, paint, sweeping compound and sawdust taken by the police from inside a large building used as the office, retail area and workshop of a lumberyard where the burglary took place, and the defendant's clothing. The FBI report states that there were no particles found on the defendant's clothing that would match up with any of the samples taken from the building. The defendant's counsel received a copy of this report the day before the opening of the trial but had been aware for approximately six or seven weeks prior to the trial that there was no evidence in the report linking the defendant to the offense.

The defendant contends that it was a denial of due process for the state's attorney not to furnish him with a copy of the report until the day before the trial because it was exculpatory evidence which could have been of material importance to the defense. In support of this contention the defendant cites the following language from a concurring opinion in Giles v. State of Maryland, 386 U.S. 66, 100, 87 S.Ct. 793, 810, 17 L.Ed.2d 737 (1967):

'A criminal trial is not a game in which the State's function is to outwit and entrap its quarry. The State's pursuit is justice, not a victim. If it has in its exclusive possession specific, concrete evidence which is not merely cumulative or embellishing and which may exonerate the defendant or be of material importance to the defense--regardless of whether it relates to testimony which the State has caused to be given at the trial--the State is obliged to bring it to the attention of the court and the defense.'

The pertinent phrase from the above language for our purpose is that the evidence must be that 'which may exonerate the defendant or be of material importance to the defense.' The defendant contends that the FBI laboratory report is exculpatory because the laboratory analysis, which failed to match up any of the samples with particles on the defendant's clothing, supports the defendant's claim that he did not enter the building. Before the commencement of the trial, in a chambers proceeding, the defendant moved for a postponement of the trial and for permission to subpoena the FBI experts who made the analysis and prepared the report, as out-of-state witnesses, for the purpose of laying a foundation for the admission of the report in evidence and to establish the exculpatory nature of the report. Counsel for the defendant argued that the report clearly tends to establish the innocence of the defendant and that these expert witnesses were therefore material to the presentation of the defendant's case. The State resisted the motion and argued that the report was immaterial and irrelevant in this case, that the report was inconclusive because the inability of the experts to make a positive identification does not tend to establish that the defendant was not in the building, and therefore it has no probative value and does not constitute negative evidence. The trial court denied the motion and the case proceeded to trial.

In a criminal prosecution the State and the defendant each shall have the right to a speedy trial. Section 29--19--02, N.D.C.C. However, 'the court, upon a showing of sufficient cause therefor by either party, may direct the trial of a cause to be postponed to another day in the same term or to the next term.' Section 29--19--03, N.D.C.C. The granting or refusing of an application for a postponement of a criminal trial is a matter within the sound discretion of the trial court. Bandy v. United States, 296 F.2d 882 (8th Cir. 1961), cert. denied, 369 U.S. 831, 82 S.Ct. 849, 7 L.Ed.2d 796 (1962); Wallace v. United States, 174 F.2d 112 (8th Cir. 1949), cert. denied, 337 U.S. 947, 69 S.Ct. 1505, 93 L.Ed. 1749 (1949), rehearing denied, 338 U.S. 842, 70 S.Ct. 30, 94 L.Ed. 515 (1949); State v. Phillips, 18 S.D. 1, 98 N.W. 171 (1904); State v. Sonnenschein, 37 S.D. 139, 156 N.W. 906 (1916).

Although the application for continuance was not made in writing as required by Section 29--19--08, N.D.C.C., the record reveals that the State did not object to its form and acquiesced in what was being attempted.

'Acquiescence in error takes away the right of objecting to it.' Section 31--11--05(7), N.D.C.C.; State v. Braathen, 77 N.D. 309, 43 N.W.2d 202 (1950).

The trial court was given the opportunity to pass on the question again as its refusal was specified as error in a motion for new trial following conviction. The motion was denied. A motion for new trial is also addressed to the trial court's judicial discretion and its decision will not be set aside unless an abuse of discretion is shown. State v. Jager, 85 N.W.2d 240 (N.D.1957); State v. Braathen, Supra; State v. Thompson, 68 N.D. 98, 277 N.W. 1 (1938); State v. Hazer, 57 N.D. 900, 225 N.W. 319 (1929); State v. Kerns, 50 N.D. 927, 198 N.W. 698 (1924).

The question of whether a report of this nature constitutes exculpatory evidence was before this court in State v. Jager, Supra. In that case the defendants were unaware of the existence of an FBI report at the time of the trial and moved for a new trial on the ground of newly discovered evidence of their innocence. The report in Jager reached the same conclusion as did the report in the present case. The FBI was unable to match up any of the specimens sent in for comparison and analysis. This court stated that it was a fallacy to give affirmative effect to purely negative evidence and upheld the decision of the trial court in denying the motion as being within the court's judicial discretion, to be set aside only upon a showing of an abuse of that discretion. State v. Jager, Supra, 85 N.W.2d at 245.

It appears in this case that counsel for the defendant had information that there was no evidence in the report to link the defendant with the offense some six or seven weeks prior to the commencement of trial and that the Criminal Information was filed and a copy thereof delivered to counsel for the defendant on the 16th day of March, 1972, the day of arraignment, but that the trial of the action did not commence until May 16, 1972. There were endorsed upon the Criminal Information the names of all the witnesses whom the State intended to call. This is in accordance with statutory requirement. Section 29--11--57, N.D.C.C. The names endorsed on the Information were those of the local police officers, who conducted the investigation and made the arrest, and the owner of the burglarized building. In denying the motion for a new trial the trial court made the above observation and concluded that counsel for the defendant had knowledge of the contents of the...