State v. Erickson, Cr. N

• Decision Date: 12 May 1976
• Docket Number: Cr. N
• Citation: 241 N.W.2d 854
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Roger T. ERICKSON, Defendant-Appellant. o. 548.
• Court: North Dakota Supreme Court

Page 854

241 N.W.2d 854

STATE of North Dakota, Plaintiff-Appellee, v. Roger T. ERICKSON, Defendant-Appellant.

Cr. No. 548.

Supreme Court of North Dakota.

May 12, 1976.

Syllabus by the Court

1. There are four factors to be assessed in determining whether a defendant has been deprived of his right to a speedy trial. These are: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

2. In determining whether a jury instruction is misleading, the instruction as a whole must be considered, and if when so considered it correctly advises the jury as to the law, it is sufficient, although a portion thereof standing alone may be insufficient or erroneous.

3. Under § 31--10--02(84), NDCC, the jury and the court are entitled to take notice of the fact that the consumption of alcohol adversely affects judgment, reduces reaction time, dulls reflexes, and diminishes inhibitions.

4. All that is required of the State in bringing forward witnesses is that it make a reasonable, good faith effort to locate the witness, and whether or not the State has made a good faith effort is within the sound discretion of the trial court.

5. Where the defendant has had an adequate opportunity to cross-examine a witness at a prior hearing and the witness is not available at the trial, the previous testimony is admissible at the trial.

6. Evidence of the amount of alcohol in a person's blood, taken pursuant to the implied consent provisions of Chapter 39--20, NDCC, is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual control of a motor vehicle while under the influence of intoxicating liquor.

7. A blood sample secured pursuant to the implied consent statute is not 'information' within the purposes of the physician-patient privilege statute and, therefore, will not be excluded when the privilege is invoked.

8. There is a distinction between a police officer who administers a Breathalyzer test in the field and a laboratory technician who tests blood samples, in a controlled environment under the supervision of the State Toxicologist and under such conditions the laboratory technician is entitled to a disputable presumption under § 31--11--03, NDCC, that the test was fairly administered.

9. Where the defendant on appeal claims there is insufficient evidence to support his conviction, this court is required to determine whether or not there is substantial evidence to support the judgment of conviction and in so doing we do not substitute our judgment for that of the jury as to the weight of the evidence if the evidence is conflicting.

10. Circumstantial evidence may be used to establish guilt and is considered competent evidence and a verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts.

Benjamin C. Pulkrabek, Mandan, for defendant and appellant.

John M. Olson, State's Atty., and Robert P. Bennett, Asst. State's Atty., Bismarck, for plaintiff and appellee.

SAND, Judge.

Roger Erickson, the defendant, appellant, was charged with negligent homicide in an automobile accident which resulted in the deaths of two men. He was found guilty of the charge and was sentenced to two years at the North Dakota Penitentiary. Defendant moved for a new trial, which was denied. He now appeals from the judgment of conviction and from the order denying a new trial. The grounds stated for a new trial are substantially the same as those claimed as error on this appeal.

Some time between the hours of 11:30 p.m. on April 27, 1974, and 12:05 a.m. on April 28, an accident occurred on old Highway 10 in Burleigh County, three miles east of Driscoll, North Dakota, involving a pickup truck driven by the defendant, Roger Erickson, and a car occupied by two other men. As a result of the accident the two men in the other car were killed, and Roger Erickson and Thomas Adams, a passenger in the pickup, were injured. The defendant, in an unconscious condition, was brought to a hospital in Bismarck. On June 26, 1974, Roger Erickson was charged with the negligent homicide of the two men and was bound over to the Burleigh County district court on July 12, 1974. No trial date was set at that time. On September 23, 1974, the defendant made a motion for a change of judge, which was granted. On April 29, 1975, the defendant moved for dismissal of the charge against him on the ground that he had been denied a speedy trial. The court denied this motion. Trial on the merits began on October 13, 1975, and resulted in the conviction of the defendant by the jury.

The defendant claimed, alleged, and argued that the trial court committed reversible error as follows, which he claims entitles him to have the verdict against him set aside or in the alternative be granted a new trial:

1. Failure to grant defendant's motion of dismissal for lack of speedy trial.

2. Improper instructions to the jury on the essential elements of the offense.

3. Giving improper instructions on the operation of a motor vehicle.

4. That the jury instructions entitled 'Under the Influence of Intoxicating Liquor' were improper.

5. That the trial court erred by not ruling that the State had not made a good faith effort to locate Tom Adams, a witness.

6. The trial court committed error by permitting the preliminary testimony of Thomas Adams to be used at the trial and by refusing defense counsel's objection to such testimony at the trial.

7. That the trial court committed error by not granting motion to suppress the evidence as relating to the blood sample which the defendant claimed was taken improperly and not in accordance with the provisions of Chapter 39--20 because the defendant at the time had not been arrested.

8. The trial court committed error in not recognizing or applying the physician-patient privilege and denying the admission of the blood test.

9. The trial court committed error in allowing the admission of the blood test which the defendant claimed was made without first laying the necessary foundation test, as set out in Salhus. (State v. Salhus, 220 N.W.2d 852 (N.D.1974))

10. That the evidence presented at the trial was insufficient to justify the jury's verdict of guilty.

11. That the trial court erred in denying his motion for a new trial.

A number of these errors are inter-related and do not require a separate discussion and disposition. We have grouped the alleged errors under appropriate headings.

I. SPEEDY TRIAL

The defendant's first contention is that he was denied his constitutional right to a speedy trial. A chronological look at the proceedings will be helpful for a determination of this question.

The defendant was charged with negligent homicide on June 26, 1974. On September 23, 1974, the defendant demanded a change of judge. This change was granted on September 30. On October 3 the State made a request for a change of judge. This request was granted on October 8. As a result of the designation of the new trial judge, who had at that date already scheduled his time for the Fall term, the defendant's case could not be included in the Fall 1974 term of the court. The defendant was arraigned on January 16, 1975. He made no demand for a speedy trial at that time. By motion dated March 10, the State made a demand for a speedy trial. On April 29, 1975, the defendant made several motions before the district court. These included a motion to dismiss based upon the denial of a right to a speedy trial, a motion to appoint Benjamin Pulkrabek as attorney for the defendant, a motion for discovery, a motion to supress evidence, and a motion for independent chemical analysis of a blood sample taken from the defendant. As a result of these motions, specifically the motion for an independent chemical analysis of the blood sample, the defendant's case was further delayed. It was subsequently placed on the Fall 1975 jury term and was tried on October 13, 1975.

The Sixth Amendment of the United States Constitution guarantees the right to a speedy trial. Rule 48(b), North Dakota Rules of Criminal Procedure, acts as a vehicle for enforcing this constitutional right. It states:

'If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.'

Under Rule 48(b), NDRCrimP, the court can dismiss whenever there has been unnecessary delay without being required to decide whether the unnecessary delay was of such a nature as to deprive the defendant of a constitutional right. Explanatory Note, Rule 48, Dismissal, North Dakota Rules of Criminal Procedure.

The North Dakota Supreme Court stated in Morris v. McGee, 180 N.W.2d 659 (N.D.1970), following Dickey v. State of Florida, 398 U.S. 30, 90 S.Ct. 1564, 25 L.Ed.2d 26 (1970), that 'consideration must be given to at least three basic factors in judging the reasonableness of a particular delay: the source of the delay, the reasons for it, and whether the delay prejudiced interests protected by the speedy-trial clauses' of the Federal and State Constitutions.

The United States Supreme Court added a further consideration in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Court there stated that the approach to be taken in a speedy-trial claim is a balancing test. It stated that there were four factors to be assessed in determining whether a defendant has been deprived of his right to a speedy trial. These are: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. After discussing these items, the Court said:

'We regard none of the four factors identified above as either a necessary or sufficient...