State v. Ebach

• Decision Date: 27 January 1999
• Docket Number: 980126,Nos. 980125,s. 980125
• Citation: 589 N.W.2d 566
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brenda EBACH, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 566

589 N.W.2d 566

STATE of North Dakota, Plaintiff and Appellee, v. Brenda EBACH, Defendant and Appellant.

Criminal Nos. 980125, 980126.

Supreme Court of North Dakota.

Jan. 27, 1999.

Michael S. McIntee, State's Attorney, Towner, ND, for plaintiff and appellee.

Thomas K. Schoppert, Schoppert Law Firm, Minot, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Brenda Lee Ebach appealed from criminal judgments entered upon a jury verdict finding her guilty of three counts of burglary and three counts of theft of property. We affirm the judgments of conviction.

I

¶2 On January 21, 1997, the State charged Ebach with burglary in violation of N.D.C.C. § 12.1-22-02(1) and theft of property in violation of N.D.C.C. §§ 12.1-23-02 and 12.1-23-05(2)(a). The complaint alleged Ebach entered the Ralph Schalow residence between November 22, 1996 and December 2, 1996 with the intent to commit theft and did take a washer, dryer and shower curtain rod exceeding $500. Three days later, on January 24, 1997, the State charged Ebach with burglary in violation of N.D.C.C. § 21.1-22-02(1) and theft of property under N.D.C.C. § 12.1-23-02. The complaint alleged Ebach entered the Schalow residence between March 10, 1996 and April 28, 1996 with the intent to commit a crime and took various items including: a rototiller, lawn mower, extension ladder, patio table and chairs and two lawn chairs. The complaint alleged these items exceeded a value of $500. The State also added two additional charges to the complaint, one for burglary under N.D.C.C. § 12.1-22-02(1) and another for theft of property in violation of N.D.C.C. § 21.1-23-02, a class B misdemeanor, for entering a locked storage shed with the intent to commit theft and for taking various items owned by Tony Marsh between October 17, 1996 and November 6, 1996. The items included: a freezer, a trampoline, a rowing machine and two white metal cabinets, not exceeding $250. The informations were consolidated and a jury trial was held. Ebach was convicted of all counts.

[57 3] Ebach raises several issues on appeal, including: (1) improper comments made by the state's attorney during closing argument denied her of a fair trial; (2) the State violated N.D.R.Crim.P. 16 by failing to disclose a statement made by the defendant; and (3) there is insufficient evidence to sustain the conviction. We examine each of Ebach's arguments.

II

¶4 Ebach contends the trial court abused its discretion by permitting the state's attorney to exceed the proper scope of closing argument. Specifically, Ebach argues the prosecutor improperly: 1) vouched for the evidence and personalized the case; 2) misstated the law regarding the value of the stolen property; and 3) commented on the defendant's silence.

¶5 The control and scope of closing arguments are left to the discretion of the trial court. E.g. State v. Azure, 525 N.W.2d 654, 656 (N.D.1994). We will not reverse a verdict on the ground the prosecutor exceeded the scope of closing argument unless a clear abuse of discretion is shown. State v. Ash, 526 N.W.2d 473, 481 (N.D.1995); State v. Schimmel, 409 N.W.2d 335, 342 (N.D.1987). To establish an abuse of discretion, absent a fundamental error, ¹ the defendant must demonstrate the prosecutor's comments in closing argument were improper and unfairly prejudicial. State v. Marks, 452 N.W.2d 298, 302 (N.D.1990). Error is unfairly prejudicial only if it causes substantial injury to the defendant such that a different decision would have resulted absent the error. Azure, 525 N.W.2d at 656. We seldom reverse on appeal because it is generally presumed the jury will follow the trial court's admonition and disregard the improper statement. Id. (citing State v. Paulson, 477 N.W.2d 208, 210 (N.D.1991)).

¶6 Ebach contends the State improperly vouched for the evidence against Ebach during closing argument when the prosecutor stated, "If it was all we had, was Rob Martinson's testimony, if that's all we had, the State would never even have charged it out." In response, the State argues the allegedly improper comment was "invited" by defense counsel's statement the State had no corroborative evidence to connect Ebach to the burglaries. Following the allegedly improper statement, Ebach objected, moved for a mistrial and asked the court for an instruction. Although Ebach's motion for a mistrial was denied, the trial court directed the jury to "disregard the last comments by Mr. McIntee relative to the sufficiency of the charge against the defendant."

¶7 In Schimmel, we expressed our concerns regarding prosecutors providing their own personal beliefs on the evidence. See Schimmel, 409 N.W.2d at 343. It is the jury who is the trier of fact in any court proceedings. Id. However, when a prosecutor comments personally on the evidence he may convey an impression there is evidence not presented to the jury, but known to the prosecutor, supporting the charges against the defendant. Id. (citing United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Furthermore, we are concerned a prosecutor's opinion on the evidence carries with it the "imprimatur of the Government" and may induce the jury to trust the government's view rather than its own judgment of the evidence when it is deliberating. Id.

¶8 After reviewing the record, we conclude the state's attorney's comment was not an improper assertion of personal belief in the truth or falsity of the evidence of the guilt of Ebach. Rather, the statement was a proper statement regarding the evidence. During opening argument, defense counsel discussed the need for corroborative evidence to supplement Martinson's testimony. In light of defense counsel's remarks, the prosecutor's comment did not deprive Ebach of a fair trial because the statement was an invited response by defense counsel. See id. (holding remarks by state's attorney concerning defendant's economic status and wealth were not improper or prejudicial where they were in response to defense counsel's portrayal of the defendant as a simple man without money). Compare City of Williston v. Hegstad, 1997 ND 56, p 13, 562 N.W.2d 91 (holding that prosecutor's comment that police officer's "job was to tell the truth" was not confined to the evidence and may have bolstered the officer's testimony artificially). However, even if we determined the statement to be improper, the jury was given a cautionary instruction following the comment and also given a jury instruction prior to deliberation informing them statements and arguments by attorneys cannot be considered as evidence. See State v. Janda, 397 N.W.2d 59, 65 (N.D.1986) (stating a jury is generally presumed to follow a trial court's admonitions); State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985) (recognizing jury instructions coupled with a curative instruction can correct an allegedly prejudicial statement made by the state during closing argument). Thus, any prejudice resulting from the prosecutor's comment was minimized.

¶9 Ebach contends the State again vouched for the charges and personalized the case when the prosecutor remarked during closing argument, "[n]ow, the defense has been working on the value. You know, I've done many cases over my years, but I've never seen this defense." Following the statement, Ebach objected, moved for a mistrial and requested a curative instruction. The court sustained Ebach's objection and admonished the jury to disregard any personal comment made by the prosecutor.

¶10 Arguments by counsel must be limited to the facts in evidence and the proper inferences flowing from them. See State v. Kaiser, 417 N.W.2d 376, 379 (N.D.1987). Accordingly, prosecutors should not express their personal views on the evidence to the jury. See Schimmel, 409 N.W.2d at 343. However, we have consistently stated "inappropriate prosecutorial comments, standing alone, do not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." See, e.g., State v. Weatherspoon, 1998 ND 148, p 23, 583 N.W.2d 391 (citing State v. Thiel, 411 N.W.2d 66, 71 (N.D.1987); City of Grand Forks v. Cameron, 435 N.W.2d 700, 704 (N.D.1989)). Compare Hegstad, at p 14, 562 N.W.2d 91 (holding improper prosecutorial comment on right to remain silent coupled with improper argument on duty of police officer to tell the truth constituted reversible error). Instead, we will consider the probable effect the prosecutor's improper comments would have on a jury's ability to judge the evidence fairly. Cameron, 435 N.W.2d at 704.

¶11 While we believe the prosecutor's comment was improper, we fail to see how Ebach was unfairly prejudiced by the comment. The jury was instructed to disregard the prosecutor's personal statements. Furthermore, following the admonishment, the prosecutor explained, "When I say 'I,' I'm talking about the State of North Dakota, the prosecution in this case, the plaintiff, not me personally. So, understand that." In light of the curative instruction and further statement by the prosecutor, we conclude the improper comment did not affect the jury's ability to judge the evidence fairly.

¶12 Ebach also alleges the prosecutor's statement regarding valuation of the stolen property during closing argument was a misstatement of the law. We disagree. According to the transcript, Ebach objected to the following statement by the prosecutor:

The Court will give you an instruction, I understand, how you're to determine the value of the property that was taken. And I believe the instruction will say something about you are to give it the highest value by any reasonable standard. I did not say the lowest or the middle. The law is, according to what I believe the Court will give you, is it [sic] is of the highest value. You are permitted to use purchase price. You actually are permitted to use replacement price.

Following the statement, Ebach's counsel objected, moved for a mistrial and requested a curative...