State v. Erickson

• Court: North Dakota Supreme Court
• Writing for the Court: VOGEL; ERICKSTAD
• Citation: State v. Erickson, 231 N.W.2d 758 (N.D. 1975)
• Decision Date: 24 June 1975
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dwight ERICKSON, Defendant and Appellant. o. 505.

Page 758

231 N.W.2d 758

STATE of North Dakota, Plaintiff and Appellee, v. Dwight ERICKSON, Defendant and Appellant.

Cr. No. 505.

Supreme Court of North Dakota.

June 24, 1975.

Syllabus by the Court

1. A motion for a new trial on any ground other than newly discovered evidence must be made within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period. Rule 33, N.D.R.Crim.P.

2. There is no need for the defendant in a criminal case to appeal from the denial of a motion for new trial, or other alleged presentence error, provided he appeals from the judgment.

3. A trial court may grant a severance 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. Rule 14, N.D.R.Crim.P.

4. The judgment in a criminal case includes the sentence. Rule 32(b), N.D.R.Crim.P.

5. Since joint trials of persons charged together with committing the same offense or with being accessory to its commission are the rule, rather than the exception, a defendant seeking severance must show that he will be prejudiced by a joint trial (Rule 14, N.D.R.Crim.P.), and the trial court's ruling denying severance will be overturned only if the court has abused its discretion.

6. The appellant was not denied compulsory process for obtaining a witness in his favor when the witness had a right to refuse to take the stand.

7. Where there has been no allegation of newly discovered evidence and the motion for new trial was not timely made, the trial court is within its discretion in not hearing any witnesses at the hearing on the motion for new trial.

8. Testimony of an expert is admissible if his opinion would be of appreciable help to the jury in a field in which the ordinary juror needs help.

9. Circumstantial evidence alone may justify a conviction, provided it is of such probative force as to enable the trier of facts to say that the defendant is guilty beyond a reasonable doubt.

10. It is not the function of the Supreme Court to substitute its judgment for that of the jury, but instead only to examine the evidence presented in order to determine whether it supports the verdict and whether the defendant received a fair trial.

John M. Olson, State's Atty., and Robert P. Bennett, Asst. State's Atty., Bismarck, for plaintiff and appellee State of North Dakota; argued by Mr. Bennett.

Benjamin C. Pulkrabek, Public Defender, Bismarck, for defendant and appellant.

VOGEL, Judge.

On the night of April 11, 1974, the Bucket Bar in Moffit, North Dakota, was broken into, setting off an alarm in the home of Eugene Holzer, owner of the bar. Upon being awakened by the alarm, Holzer looked out his window to the bar across the street, where he saw a two-tone station wagon, which from the shape of the taillights he guessed to be a Ford, parked in front of the bar. Holzer then loaded a shotgun, left the house, and fired the shotgun at the right front fender of the car, about 90 to 100 feet away. Holzer testified that when he fired the shot he heard a sound like gravel hitting tin and then heard the car start. He also testified that when he fired the shot two people were on their way out of the bar carrying bottles and that they were not in the car when he heard it start. After these two entered the car it proceeded north out of Moffit.

Holzer then contacted the sheriff's department. When Deputy Hansen arrived, he and Holzer entered the bar and discovered that some bottles, cigarettes, and potato chips had been taken. Hansen then left to see if he could find the car. While in the Nona Erickson farmyard seeking help to round up some cattle belonging to Nona Erickson that were loose along the road, Hansen noticed a car parked there that he believed might be the vehicle described by Holzer.

Hansen later returned to the Erickson farm with Deputy Fischer and James Marion, a probation officer. They searched the bedroom of the defendant, Dwight Erickson, and found bottles, cigarettes, and potato chips that had been taken from the bar. While Erickson was being arrested, his sister Ava and JoAnn Bickel entered the room. Ava stated that Erickson hadn't broken into the bar--that she and Bickel had done it. There was testimony that when Ava again made this statement, JoAnn Bickel nodded her head when asked, 'Is this right?'

Before trial, a motion by Erickson to sever his case from that of Bickel was denied. During trial, the trial court refused to allow Erickson to call Bickel as a witness, in view of her assertion that she refused to testify and claimed her privilege not to testify.

Erickson testified, claiming an alibi. He called his sister, Ava, as a witness, and she asserted that she and JoAnn Bickel committed the burglary alone, driving Erickson's car. Bickel did not testify.

Trial resulted in a verdict of guilty as to both defendants. Erickson was sentenced to two to four years in the penitentiary. He alone appeals.

Erickson filed the following notice of appeal on December 20, 1974:

'NOTICE IS HEREBY GIVEN that the defendant hereby appeals to the Supreme Court of North Dakota from his conviction which includes motions which were made on the 1st day of October, 1974; a verdict of guilty which was rendered on the 11th day of October, 1974; his sentence which was rendered on the 19th day of December, 1974; and his denial of a Motion for New Trial. Said denial was rendered on the 19th day of December, 1974.'

Motions for discovery, severance of trial, and allowance of an expert witness were denied on October 4, 1974. A verdict of guilty was rendered on October 11, 1974. Erickson made a motion for new trial on October 21, 1974. An order denying the motion for new trial was rendered on December 19, 1974, and sentence was imposed the same day.

The State contends that the notice of appeal was not timely filed and that the appeal should therefore be dismissed.

The State contends, correctly, that the motion for new trial was not made in time. The motion was filed 10 days after the verdict. No extension of time was granted in the 7-day period allowed by Rule 33, N.D.R.Crim.P., which requires that a motion for new trial on any ground other than newly discovered evidence be made 'within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period.' Since the defendant was not entitled to be heard on his motion for new trial, he can scarcely claim successfully that the court erred in refusing to allow him to call his codefendant as a witness at the hearing on the motion for new trial.

The State then goes on to argue that the defendant must appeal within 10 days from any order which is appealable or reviewable, and that orders not appealed from within 10 days are not subject to review. Thus the State claims that the defendant cannot obtain review of issues raised by denial of pretrial orders, the verdict, or the denial of the motion for new trial, since the purported notice of appeal was filed more than 10 days after the orders questioned were filed. This argument is untenable.

The defendant appealed 'from his conviction,' which can only mean that he appeals from the judgment of conviction. Rule 32(b), N.D.R.Crim.P., says that:

'A judgment of conviction shall set forth the plea, the verdict, and the adjudication and Sentence.' (Emphasis supplied.)

It is the judgment, not the verdict, which fixes the time for appeal. As is stated in Moore's Federal Practice, Volume 8A, Section 32.06, in discussing Rule 32, F.R.Crim.P., from which Rule 32, N.D.R.Crim.P., was adapted:

'The principal importance of the judgment, and its entry, is in relation to the taking of an appeal.'

This is indicated by the provisions of Rule 32(a)(2), N.D.R.Crim.P. and F.R.Crim.P., which require the court, After imposing sentence in a case which has gone to trial on a plea of not guilty, to advise the defendant of his right to appeal. The importance of the entry of judgment (including the sentence) is further emphasized by Rule 4(b), N.D.R.App.P., which provides that an appeal filed before entry of judgment shall be treated as having been filed after and on the day of the entry of judgment. Thus, even if the defendant here had filed a notice of appeal before December 19, 1974, it would have been treated as if it were filed on December 19, 1974.

There is no need for the defendant in a criminal case to appeal from the denial of a motion for new trial, or other alleged presentence error, provided he appeals from the judgment. As is stated in 2 Wright, Federal Practice and Procedure: Criminal, Section 559, pages 540--541:

'The appeal, even after denial of a motion for a new trial, should be from the judgment. . . . These rules, however, should not be regarded as procedural snares for a defendant, and the appeal should be considered on the merits if a timely notice of appeal has been given even though it is erroneous in form.'

As we said in State v. Haakenson, 213 N.W.2d 394 (N.D.1973), at 399:

'The touchstones hereafter for an effective appeal on any proper issue should be (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal From the judgment. Any other traps for the unwary on the road to the appellate courthouse should be eliminated.' (Emphasis supplied.)

Having concluded that the appeal was timely filed, we will consider the issues raised by the appellant:

'1. Whether or not the Court erred when it refused to allow:

'a. Dwight Erickson's motion to sever his trial from JoAnn Bickel's 'b. Dwight Erickson to call Miss Bickel as a witness during the trial.

'c. Miss Bickel to be called as a witness to testify at Mr. Erickson's motion for a new trial.

'2. Whether or not the Court erred when it refused to allow Mr. Erickson's motion for an expert witness....