State v. Doll
| Decision Date | 17 February 2012 |
| Docket Number | No. 20110097.,20110097. |
| Citation | 812 N.W.2d 381,2012 ND 32 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Macintosh George DOLL, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Lloyd Clayton Suhr (submitted on brief), Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Steven Balaban (submitted on brief), Bismarck, ND, for defendant and appellant.
[¶ 1] Macintosh Doll appeals a district court criminal judgment entered after a jury found him guilty of gross sexual imposition. Doll argues (1) he did not receive a fair trial because he was tried with a codefendant, (2) he was unfairly prejudiced by the testimony of a sexual assault nurse, (3) the district court erred by denying his motion for mistrial due to a sequestration order violation and (4) the evidence was insufficient to support his conviction. We affirm.
[¶ 2] On March 13, 2010, law enforcement received a report that a 14–year–old girl had run away. While attempting to locate the girl, Officer Rick Widicker received information that the girl had been with Doll and that Doll had sexual intercourse with the girl. Officer Widicker called Doll and asked Doll if he knew where the girl was. Doll stated the girl had been at his residence the night before and offered to help locate her. Doll called the girl and arranged to meet her at a gas station. Officer Widicker followed Doll to the gas station and took the girl into custody when she arrived. Shortly after being taken into custody, the girl told Officer Widicker that she went to Doll's residence the night before and that Doll and Wyatte Chapin raped her while she was there.
[¶ 3] Officer Widicker brought the girl to the police department, contacted the girl's mother and drove the girl to the hospital for a sexual assault examination. The girl's sexual assault examination was conducted by a sexual assault nurse completing her second independent sexual assault examination. A second, more experienced, sexual assault nurse observed and was available to assist if necessary. Officer Scott Betz took over investigation of the case.
[¶ 4] On March 18, 2010, the State filed a criminal complaint charging 23–year–old Doll and 21–year–old Chapin with gross sexual imposition for engaging in a sexual act with a person less than fifteen years old. The district court scheduled a joint trial on the charges. Doll moved to sever his trial from Chapin's trial. The district court denied the severance motion.
[¶ 5] Doll and Chapin were tried at a three-day jury trial. During the pretrial conference, the district court ordered the sequestration of all witnesses during trial. On the first day of trial, the State called as witnesses the girl and the sexual assault nurse who observed the girl's examination. The girl testified that on March 13, 2010, she went to Doll's residence after a night of heavy drinking. The girl testified that after arriving, she went to Doll's bedroom, lay down in Doll's bed and began passing in and out of consciousness. She testified Doll and Chapin had sexual intercourse with her while in Doll's bed. The girl testified that she was not sure whether Doll ejaculated and that she was one “hundred percent sure” Chapin ejaculated. The observing sexual assault nurse explained the sexual assault examination protocol and stated she believed the examining nurse followed the protocol.
[¶ 6] On the second day of trial, the State called the sexual assault nurse who conducted the girl's examination, Officer Widicker and Officer Betz. The examining sexual assault nurse testified the girl's injuries were consistent with her statements about what had occurred. Officer Widicker testified about his work on the case from the time he received the runaway report until he transported the girl to the hospital. Officer Betz testified that during his investigation, he interviewed Doll and Chapin, collected DNA samples from them both and seized the fitted sheet from Doll's bed. Officer Betz testified the DNA samples and the sheet were sent to the North Dakota Crime Laboratory for DNA analysis. The second day of trial ended before Doll and Chapin cross-examined Officer Betz.
[¶ 7] The third day of trial began with cross-examination of Officer Betz. The following exchange took place during Chapin's questioning:
“Q And in all the interviewing you did with her, was she—she was sure—all the interviewing you did, what did you learn about anybody ejaculating in the bedroom?
“A From—from the first interview I conducted with her, when I had asked her if either of the two individuals had ejaculated, she had indicated—she had indicated that she didn't think either of the two individuals had ejaculated.
“Q Are you aware that she testified that there was ejaculation?
“A Yes.
“Q And how did you find that out?
“A I found that out through the state's attorney.”
Before asking additional questions, Chapin requested permission to approach the bench. The district court held an off-the-record bench conference. Chapin resumed cross-examination. After cross-examination of Officer Betz was complete, the State called the Crime Laboratory forensic scientist who conducted the DNA analysis of Doll's bed sheet. The forensic scientist testified that she recovered the DNA of three individuals from the sheet and that Doll, Chapin and the girl could not be excluded as contributors. At the conclusion of the forensic scientist's testimony, the State rested.
[¶ 8] The district court recessed and discussed the substance of the off-the-record bench conference outside the presence of the jury. Doll and Chapin moved for a mistrial, arguing the state's attorney violated the sequestration order by discussing the girl's testimony with Officer Betz. The state's attorney acknowledged telling Officer Betz that the girl testified that Chapin ejaculated. The state's attorney stated he made the statement due to his surprise at the girl's testimony, not to influence Officer Betz's testimony. The district court denied the motion for mistrial. The trial proceeded. Doll and Chapin testified before resting their cases. The jury found Doll and Chapin guilty.
[¶ 9] Doll argues his trial should have been severed from Chapin's trial because Officer Betz testified about statements made by Chapin that incriminated Doll. Doll argues he was unfairly prejudiced because the statements would have been inadmissible hearsay if Doll and Chapin were tried separately. The State argues Doll failed to preserve the issue for appeal. Further, the State argues Doll was not unfairly prejudiced by the admission of any of Chapin's statements because Chapin testified, giving Doll the opportunity to cross-examine Chapin.
[¶ 10] Under N.D.R.Crim.P. 14(a), “[i]f the joinder of offenses or defendants in an indictment, an information, a complaint, or a consolidation for trial appears to prejudice a defendant or the prosecution, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” “The purpose of Rule 14 is to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of defendants to a fair trial.” State v. Dymowski, 459 N.W.2d 777, 779 (N.D.1990). “[T]he general rule is that public policy considerations in the administration of justice require that the severance be denied in the absence of a clear-cut showing of prejudice against which the trial court will not be able to afford protection.” N.D.R.Crim.P. 14 Explanatory Note. “Under Rule 14, the duty of the court to grant a severance is a continuing one, which must be exercised in light of developments during the trial.” N.D.R.Crim.P. 14 Explanatory Note.
[¶ 11] In order to preserve an objection to a joinder, a severance motion must be renewed at the close of evidence. State v. Bingaman, 2002 ND 202, ¶ 7, 655 N.W.2d 51. When an objection was properly preserved, we review the district court's refusal to grant a separate trial for an abuse of discretion. Dymowski, 459 N.W.2d at 779. Generally, we do not reviewissues not properly raised in the district court. Bingaman, at ¶ 9. However, under N.D.R.Crim.P. 52(b), we may review such issues for obvious error. Bingaman, at ¶ 9. We will only exercise our power to notice obvious error in “exceptional circumstances where the accused has suffered serious injustice.” Id. (quotation omitted). We will not find obvious error unless an appellant meets the burden of showing: “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (quotation omitted). To determine whether obvious error occurred, we “examine the entire record and the probable effect of the alleged error in light of all the evidence.” Id. (quotation omitted).
[¶ 12] Doll did not renew his motion for severance at the close of evidence. We review for obvious error because Doll failed to preserve his objection to the joinder of his trial with Chapin's trial. Doll relies on the United States Supreme Court's decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to support his argument that he was unfairly prejudiced by the admission of Chapin's statements to Officer Betz. In Bruton, the Court held admission at a joint trial of a nontestifying codefendant's confession incriminating his codefendant violated his codefendant's Sixth Amendment right to confront witnesses against him. 391 U.S. at 128, 88 S.Ct. 1620. Later, in Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the Court held its decision in Bruton was limited to confessions of a nontestifying codefendant, stating, “The Constitution as construed in Bruton ... is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for ‘full and effective’ cross-examination.” Nelson, at 627, 91 S.Ct. 1723. Because Chapin testified at trial, Doll's constitutional right to...
To continue reading
Request your trial
-
Brewer v. State
..., 2017 ND 134, ¶ 8, 895 N.W.2d 773 ; Brewer , at ¶ 4 ; Brouillet v. Brouillet , 2016 ND 40, ¶ 32, 875 N.W.2d 485 ; Steen , at ¶ 5 ; State v. Doll , 2012 ND 32, ¶ 15, 812 N.W.2d 381 ; State v. Thompson , 2010 ND 10, ¶ 13, 777 N.W.2d 617.[¶8] The attorney’s failure to object was not simply a ......
-
State v. Blotske
...discretion when it acts in an arbitrary, unreasonable or capricious manner, or misinterprets or misapplies the law." Id. (quoting State v. Doll , 2012 ND 32, ¶ 18, 812 N.W.2d 381 ).[¶10] The district court denied Blotske's request for a mistrial based, in part, on the fact Blotske alluded t......
-
State v. Ratliff
...‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Doppler, 2013 ND 54, ¶ 14, 828 N.W.2d 502 (quoting State v. Doll, 2012 ND 32, ¶ 11, 812 N.W.2d 381). “[E]ven if the defendant establishes obvious error, we will not exercise our discretion to correct the error unless......
-
State v. Thomas
...prior to the verdict or finding of guilty."). The district court has broad discretion in deciding whether to grant a mistrial. State v. Doll , 2012 ND 32, ¶ 18, 812 N.W.2d 381. We will not reverse a court’s mistrial decision unless there is a clear abuse of discretion or a manifest injustic......