State v. Dymowski, Cr. N

Decision Date31 July 1990
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Tracy DYMOWSKI, Defendant and Appellant. o. 890360.
CourtNorth Dakota Supreme Court

Gordon A. Dexheimer (argued), Grand Forks, for defendant and appellant.

Thomas H. Falck, Jr. (argued), Asst. State's Atty., Grand Forks, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Tracy Dymowski appeals from a jury verdict in the District Court for Grand Forks County finding her guilty of possession of a controlled substance. We affirm.

On July 17, 1989, the residence of Tracy and her husband, Wayne Dymowski, at 1101 2nd Avenue North in Grand Forks, North Dakota, was searched by law enforcement authorities pursuant to a search warrant. The search uncovered seven packets, each containing .02 grams of heroin, a syringe containing traces of heroin, and various items recognized by a United States Customs Agent as drug paraphernalia. The items were found in a dresser drawer which also contained women's undergarments. The bedroom in which the dresser was located contained evidence of both male and female occupants. Tracy and Wayne were charged with possession of heroin, a Class C Felony in violation of sections 19-03.1-05(4)(k), 19-03.1-23(3), and 12.1-32-01(4) of the North Dakota Century Code. Tracy and Wayne plead not guilty and requested a jury trial. A motion for joinder of Tracy and Wayne to be tried in a joint trial by jury was made by the State and granted by the trial court. Tracy filed a motion resisting the State's motion for joinder, but Wayne did not join in Tracy's motion.

A motion to suppress the evidence found pursuant to the search warrant was made by Wayne and joined by Tracy, alleging lack of probable cause to issue a search warrant, prejudice and irrelevance. The trial court granted suppression of certain items of evidence, based upon lack of relevance, but denied that part of the motion which was based on the allegations of lack of probable cause to justify the search warrant and on the arguments that certain evidence was unduly prejudicial. On October 18, 1989, Tracy was convicted by a jury of 12 of possession of heroin and sentenced on November 20, 1989, to 48 months in the North Dakota State Penitentiary, with 30 months suspended for a period of three years subject to supervised probation. On appeal, Tracy raises the following issues:

"Whether the district court erred by denying a motion to suppress evidence obtained pursuant to a search warrant issued on information which Appellant contends was not sufficient to constitute probable cause."

"Whether the district court erred by denying Appellant's motion for relief from prejudicial joinder, and in sustaining objection by counsel for Appellant's husband to introduction of evidence in defense of Appellant at trial."


Tracy and Wayne brought separate appeals to this Court from their convictions in this case. In State v. Wayne Dymowski, 458 N.W.2d 490 (N.D.1990), we addressed the issue of whether or not there was sufficient evidence presented to the magistrate to establish probable cause for the issuance of the search warrant for the house occupied by Tracy and Wayne Dymowski. We concluded that the search warrant was properly issued and that the evidence thus was properly admitted. As the facts and circumstances relative to this issue are identical in the two appeals, we conclude here, also, that there was sufficient evidence presented to the magistrate to establish probable cause for the issuance of a search warrant and that, therefore, the evidence

found pursuant to the search warrant was properly admitted against Tracy. 1


Tracy contends that the trial court's denial of her motion for relief from prejudicial joinder denied her the right to a fair trial. Tracy asserts that the prejudice became evident at the joint trial when objection was made by counsel for Wayne to certain questions asked by Tracy's counsel of a witness of the State. The objection was sustained and the testimony was not allowed. Tracy contends that the testimony was crucial to her defense and that if a separate trial had been granted, the testimony would have been allowed.

The trial court consolidated the trials of Tracy and Wayne into one joint trial in accordance with Rules 8 and 13 of the North Dakota Rules of Criminal Procedure. 2 See State v. Heart, 334 N.W.2d 479, 482 (N.D.1983) (Rule 13, N.D.R.Crim.P., gives the trial court the discretion to join two defendants). Rule 14, N.D.R.Crim.P., provides for relief from prejudicial joinder as follows, in pertinent part:

"If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief 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. Lind, 322 N.W.2d 826, 831 (N.D.1982). The defendant bears the difficult burden of demonstrating that she has been prejudiced by joinder. She must show something more than the mere fact that a separate trial would have afforded a better chance of acquittal. Joinder must be shown to have rendered the trial unfair. State v. Boushee, 284 N.W.2d 423, 427-28 (N.D.1979). A joint defendant in a criminal action is not entitled to a separate trial as a matter of right. State v. Whiteman, 79 N.W.2d 528, 533 (N.D.1956). We will not set aside a trial court's refusal to grant a separate trial unless it is shown that there has been a clear abuse of discretion. Lind, supra at 831; State v. Erickson, 231 N.W.2d 758, 763 (N.D.1975).

In State v. Erickson, supra, Erickson appealed his burglary conviction claiming, among other things, that the trial court erred in failing to grant his motion to sever his trial from another defendant. In affirming the conviction, we said:

"At the time Erickson made his motion for severance, he made no showing that he would be prejudiced by a joint trial and he made no affirmative showing that his codefendant, JoAnn Bickel, would testify on his behalf at a separate trial.

* * * * * *

"In the absence of a showing of prejudice and in the absence of a showing that Erickson's codefendant would testify for him in a separate trial, it cannot be said that the trial court abused its discretion in denying Erickson's motion for a severance."

Erickson at 763.

Tracy claims, in essence, a retroactive prejudicial misjoinder entitling her to relief because of the development which occurred during the trial and taking into consideration her pretrial motion for relief from prejudicial joinder. The incident which Tracy claims resulted in prejudice occurred during the jury trial while her attorney was cross-examining Agent Thomas Dahl of the North Dakota Bureau of Criminal Investigation. Agent Dahl had submitted one of the affidavits in application for the search warrant of the Dymowski residence and had provided certain background information on Wayne relative to a previous drug-related investigation. The alleged prejudicial incident occurred as follows:

"Q You executed an affidavit to support the search warrant, did you not?

"A Yes, I did.

"Q Do you recall your statement regarding both Gary and Wayne Dymowski in that affidavit?

"A If I might take a moment to find it and look at it. Yes, I stated in the affidavit that we had intelligence both on Gary and Wayne, prior intelligence--

"MR. WOOD [counsel for Wayne]: Your Honor, may we approach the bench, please.


"(Whereupon an off-the-record discussion was had at the bench out of the hearing of the Jury.)

"THE COURT: Could the court reporter please read back the last question please. (Record read.)

"Counsel wish to make an objection?

"MR. WOODS: Yes, Your Honor. On two grounds, relevance and hearsay.

"THE COURT: With regard to Wayne and Gary Dymowski?

"MR. WOODS: Yeah.

"THE COURT: Mr. Dexheimer.

"MR. DEXHEIMER [counsel for Tracy]: I consider it relevant, Your Honor. It was statement made in an affidavit in support of the search warrant basis of which we're here today.

"THE COURT: I will sustain the objection. You may continue."

The testimony was not pursued any further. Tracy contends that the testimony being sought by her counsel was "crucial" to her defense and would have been allowed had there been separate trials. However, Tracy has failed to indicate to this Court what that testimony entailed and how it was "crucial" to her defense. Tracy's counsel made no objection or argument on the record in support of why the testimony was crucial. Tracy's counsel also failed to renew the motion for severance at the time of the alleged prejudice or at the close of the evidence. We have found no indication in the record of an offer of proof to show the content of the testimony being sought. We have often stated that a failure to object at the time an alleged irregularity occurs acts as a waiver of the claim of error. Anderson v. Otis Elevator Co., 453 N.W.2d 798, 801 (N.D.1990); Andrews v. O'Hearn, 387 N.W.2d 716, 730 (N.D.1986). The failure to object operates as a waiver of the issue on appeal, but the error may provide a basis for reversal if it constitutes obvious error affecting substantial rights of the defendant. State v. Smuda, 419 N.W.2d 166, 167-68 (N.D.1988). Our power to notice obvious error, however, is exercised cautiously and only in exceptional situations where the defendant has suffered serious injustice. State v. Hersch, 445 N.W.2d 626, 634 (N.D.1989).

Tracy's failure to make an offer of proof makes it very difficult for this Court to assess whether or not an error has occurred. Rule 103, N.D.R.Ev. 3 We have often pointed out that this Court...

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6 cases
  • State v. Glass
    • United States
    • North Dakota Supreme Court
    • December 12, 2000
    ...(judges are not expected to understand a party's intention if that intention is not presented to the court); see also State v. Dymowski, 459 N.W.2d 777, 780-81 (N.D.1990) (absent objection or argument of counsel, this Court will not review claimed errors where there is no offer of proof or ......
  • State v. Purdy
    • United States
    • North Dakota Supreme Court
    • October 1, 1992
    ...State v. Lind, 322 N.W.2d 826, 831 (N.D.1982). The defendant bears the burden of demonstrating prejudicial joinder. State v. Dymowski, 459 N.W.2d 777, 779 (N.D.1990). Bare allegations that a defendant would stand a better chance of acquittal in a separate trial or that there may be some "sp......
  • Bell v. State
    • United States
    • North Dakota Supreme Court
    • February 12, 1998
    ...stated that a failure to object at the time an alleged irregularity occurs acts as a waiver of the claim of error." State v. Dymowski, 459 N.W.2d 777, 780 (N.D.1990). The error may still provide a basis of reversal, despite the waiver if it constitutes obvious error affecting a substantial ......
  • K.E.N. by Shasky v. R.C.
    • United States
    • North Dakota Supreme Court
    • March 30, 1994
    ...we will reverse for obvious error "only in exceptional situations where the defendant has suffered serious injustice." State v. Dymowski, 459 N.W.2d 777, 780 (N.D.1990). We are not convinced R.C. has been seriously prejudiced by the admission of the test results. R.C. did not request an ind......
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