State v. Engel, s. 695-

Decision Date14 February 1980
Docket NumberNos. 695-,695-B,s. 695-
Citation289 N.W.2d 204
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Eugene ENGEL, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

John E. Jacobson, State's Atty., Stanton, for plaintiff and appellee.

Ralph A. Vinje, Bismarck, for defendant and appellant.

ERICKSTAD, Chief Justice.

The defendant appeals from two judgments of conviction entered on August 6, 1979, in the Mercer County Court of Increased Jurisdiction. We affirm.

The defendant, Eugene W. Engel, was convicted of the crimes of aggravated reckless driving and failure to stop at the scene of an accident involving personal injury, in violation of Sections 39-08-03 and 39-08-04, N.D.C.C., respectively. The alleged crimes arose out of an accident in the city of Stanton, North Dakota, on the afternoon of March 3, 1979, in which the pickup truck Engel was driving struck and seriously injured a four-year-old boy. Engel was sentenced to serve eight months at the North Dakota State Farm for each crime committed, with the sentences to run concurrently. Two months were credited for time served before trial.

A notice of appeal was filed on August 7, 1979, and Engel also made application to the trial court for release pending appeal. The trial court denied the application, and Engel applied to this court for release pending appeal and for release pending disposition of the motion made pursuant to Rule 9 of the North Dakota Rules of Appellate Procedure. This court remanded the matter to the trial court with instructions that Engel's motion for release pending appeal be granted, and that sufficient conditions, including limitation on the use of alcohol, be imposed to assure his presence within the jurisdiction should his conviction be affirmed on appeal. State v. Engel, 284 N.W.2d 303 (N.D.1979).

Engel raises several issues on appeal, namely:

(1) Whether or not the trial court abused its discretion in refusing to grant Engel's motion for a change of venue;

(2) Whether or not the admission into evidence of a photograph of the scene of the accident, marked by the witness through whom the photograph was sought to be introduced to indicate where the spinning of the tires of the pickup began, constituted prejudicial error; and

(3) Whether or not there was sufficient evidence to warrant a conviction of the crimes of aggravated reckless driving and failure to stop and render assistance in an accident involving personal injury.

We will analyze each of these issues to determine its validity.

The granting of a motion for a change of venue rests within the sound judicial discretion of the trial court. State v. Jager, 85 N.W.2d 240 (N.D.1957); State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1951). The denial of such a motion is not error in the absence of a showing of an abuse of discretion prejudicial to the defendant. State v. Phillips, 68 N.D. 113, 277 N.W. 609 (1938).

Rule 21(a) of the North Dakota Rules of Criminal Procedure provides that the trial court, upon motion of the defendant, shall transfer the proceedings to another county or municipality if the court is satisfied there is so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in the county or municipality where the prosecution is pending.

The explanatory note to Rule 21, N.D.R.Crim.P., set forth four factors to be considered in a trial court's determination of whether or not to grant relief due to pretrial publicity likely to result in prejudice to the defendant: (1) whether or not the publicity was recent, widespread, and highly damaging to the defendant; (2) whether or not the prosecution was responsible for the objectionable material, or if it emanated from independent sources; (3) whether or not inconvenience to the prosecution and the administration of justice will result from a change of venue or continuance; and (4) whether or not a substantially better panel can be sworn at another time or place.

This court has also found that four additional factors are relevant in determining if pretrial publicity has had a prejudicial effect so as to justify a change of venue. These four other important factors for consideration are: (1) the nature and gravity of the offense; (2) the size of the community; (3) the status of the defendant in the community; and (4) the popularity and prominence of the victim. Olson v. North Dakota Dist. Court, Etc., 271 N.W.2d 574, 580 (N.D.1978).

Generally, the existence of prejudice can be adequately determined during the voir dire examination of potential jurors and a careful examination of affidavits pertaining to the quantity and effect of publicity. As the explanatory note to Rule 21, N.D.R.Crim.P., suggests, the proper occasion for determining whether or not it is impossible to select a fair and impartial jury is during the voir dire examination. The trial court in the instant case deferred ruling on the motion for a change of venue until such time as the parties had selected a jury, after which the motion was denied.

Engel contends that because of his history of alcoholism and violent episodes over a span of years in the county where the trial took place; the death of his wife a year-and-a-half prior to the trial; and his entanglement with a married woman in Stanton, he would be unable to obtain a fair and impartial trial in Mercer County. To support this contention, Engel relies on the recent case of Olson v. North Dakota Dist. Court, Etc., Supra. We believe that Engel's reliance on this case is misplaced.

Olson was an original proceeding brought to obtain an appropriate supervisory writ directing the trial court to grant the defendant's motion for a change of venue in a well-publicized murder case. Approximately 56 news articles regarding the arrest, pretrial proceedings, the trial, and sentencing of the defendant for the murder of his wife, and the second murder of a sixteen-year-old girl for which the defendant had been charged, were carried by the Fargo Forum over a span of less than two years. There had also been extensive television coverage of the two murders.

Unlike the widespread pretrial publicity in the Olson case, Engel presented absolutely no evidence of any recent pretrial publicity that may have possibly been prejudicial. The only mention of press coverage was by the State at a pretrial hearing on the motion for a change of venue and bond reduction. At that hearing, the State's Attorney made reference to the existence of one short news article printed in the Beulah Beacon and a similar column in the Hazen Star. The articles were printed approximately four months before the trial and pertained to the accident and Engel's subsequent arrest.

These articles were the only evidence of pretrial publicity presented to the trial court other than allegations by Engel's counsel of the defendant's undesirable and notorious reputation in the community, and of the unpopular gossip that he contended pervades the entire county. The judgment roll is devoid of any affidavits filed showing that the community was biased or that the jury was predisposed to finding against the defendant. See State v. Lueder, 242 N.W.2d 142 (N.D.1976); State v. Jacob, 222 N.W.2d 586 (N.D.1974).

Engel's counsel, however, stated during the oral arguments before this court that he had submitted his own affidavit in support of the motion for a change of venue. This affidavit allegedly contained the same assertions of prejudice and reasons Engel would be unable to obtain a fair and impartial trial in Mercer County, as previously discussed herein. An affidavit of the movant's attorney, however, is not ordinarily a sufficient basis for a change of venue. Williamson v. Erickson, 354 F.Supp. 1130, 1132 (S.D.S.D.1973). The allegations made by Engel's counsel are argumentative, conclusory, and unsupported by the record. Further, we recognize that in passing on a motion for a change of venue on the ground that the defendant cannot obtain a fair and impartial trial in the district, the ultimate question to be decided is whether or not it is impossible to select a fair and impartial jury. See Explanatory Note, Rule 21, N.D.R.Crim.P. A careful perusal of the record on the voir dire examination fails to reveal a showing of prejudice against Engel or a bias in the community. Instead, the record shows that five of the six jurors empaneled to hear the case had neither seen nor heard of the defendant.

We believe that Engel failed to meet his burden of proving a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found. Therefore, the trial court's denial of his motion for a change of venue was not an abuse of discretion.

The second issue Engel has raised on appeal is whether or not the admission into evidence of a photograph of the scene of the accident, marked by the witness who took the photograph to indicate where the spinning of the truck's tires began, constituted prejudicial error.

During the presentation of the State's case, Mercer County Sheriff Ronald Kessler was called to the stand. Kessler had been the investigating officer of the truck-pedestrian accident and had arrived at the scene shortly after the accident took place. He had observed Engel's pickup truck stuck in a snowbank with a young boy pinned underneath the front end. As part of his investigation, Kessler took several photographs of the accident scene and of the intersection where Engel attempted to execute a U-turn.

Prior to the introduction of the photographs at trial, Kessler testified, without objection, that he had observed tire tracks made in a U-turn fashion and that approximately halfway through the turn the rear wheels had began to spin "throwing snow away and leaving a glare ice pattern all the way from halfway through the turn up until the stop."

At issue is one particular photograph which depicted Engel's pickup truck wedged in a snowbank and the tire tracks of the vehicle as it...

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