State v. Erickstad

Decision Date07 December 2000
Docket Number No. 20000050-20000053.
Citation2000 ND 202,620 N.W.2d 136
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Brian J. ERICKSTAD, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Robert R. Lawrence, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Bruce A. Romanick, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Paul Henry Myerchin, Bormann Law Office, Bismarck, ND, for defendant and appellant Brian J. Erickstad. Appearance by Clark J. Bormann.

Robert Wade Martin (submitted on briefs), Bismarck, ND, for defendant and appellant Robert R. Lawrence. KAPSNER, Justice.

[¶ 1] Brian J. Erickstad and Robert Lawrence appealed from judgments of conviction of murder, conspiracy to commit murder, and theft of property. We affirm, concluding the trial court did not err in refusing a change of venue, the defendants failed to show obvious error in the jury instructions, and the trial court did not err in admitting evidence of the value of a stolen pickup.

I

[¶ 2] On September 18, 1998, the bodies of Gordon and Barbara Erickstad were found in a wooded area near Selfridge, North Dakota. Both had sustained multiple stab wounds. Earlier that day, police had searched the Erickstads' Bismarck home and found blood throughout the house and knives in the kitchen sink. The Erickstads' vehicles, a 1998 Chevrolet pickup and 1990 Cadillac, were missing. The 1990 Cadillac was later found abandoned in a field in Cass County.

[¶ 3] The police investigation focused upon the Erickstads' son, Brian, and his friend, Robert Lawrence. On September 20, 1998, Erickstad and Lawrence were apprehended in Texas in the 1998 Chevrolet pickup. They were extradited to North Dakota, where each was charged with two counts of murder, one count of conspiracy to commit murder, one count of class B felony theft of property, and two counts of class C felony theft of property.

[¶ 4] Lawrence filed a motion for a change of venue on June 21, 1999, citing the extensive publicity in the Bismarck area regarding the murders. Erickstad joined the motion. The trial court denied the motion for change of venue in a written order dated July 30, 1999.

[¶ 5] A jury trial was held October 11-18, 1999. The jury found Erickstad and Lawrence guilty on all counts. Judgments of conviction were entered, and Erickstad and Lawrence appealed. Their appeals have been consolidated by stipulation.

II

[¶ 6] The defendants argue the trial court erred in denying their pretrial motion for a change of venue based upon the publicity of the case in the Bismarck area. Rule 21(a), N.D.R.Crim.P., governs change of venue for prejudice:

The court upon motion of the defendant shall transfer the proceeding as to that defendant to another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.

[¶ 7] A motion for change of venue is addressed to the sound discretion of the trial court, and we will not reverse the trial court's decision absent a showing of abuse of discretion prejudicial to the defendant. State v. Ellis, 2000 ND 177, ¶ 10, 617 N.W.2d 472; State v. Smaage, 547 N.W.2d 916, 918 (N.D.1996); State v. Breding, 526 N.W.2d 465, 468 (N.D.1995); State v. Norman, 507 N.W.2d 522, 526 (N.D.1993). A defendant seeking a change of venue under N.D.R.Crim.P. 21(a) bears the burden of demonstrating a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found. Ellis, at ¶ 11; Smaage, 547 N.W.2d at 918; State v. Austin, 520 N.W.2d 564, 566 (N.D. 1994); N.D.R.Crim.P. 21(a), Explanatory Note. The ultimate question for the trial court to decide is whether it is impossible to select a fair and impartial jury, and relief should be granted only in exceptional cases. Ellis, at ¶ 11; Smaage, 547 N.W.2d at 919; Austin, 520 N.W.2d at 566; N.D.R.Crim.P. 21(a), Explanatory Note.

[¶ 8] The defendants argue that the sheer number of news stories about this case, and the many factual details which were reported, establish that "[d]amage to the presumption of innocence is a foregone conclusion under such circumstances." The defendants' argument demonstrates a misunderstanding of the burden they bear in seeking a change of venue. In considering whether pretrial publicity warrants a change of venue, it is the prejudicial nature of the publicity, not its quantity, which is paramount:

Publicity per se is not necessarily prejudicial or damaging to a criminal defendant.... Before a change of venue because of pretrial publicity is proper, it must be shown that the publicity was in fact prejudicial to the defendant. It is therefore not the quantity of media coverage which controls a change of venue motion, but rather the likelihood that any degree of adversity toward the defendant which was caused by that publicity will prevent him from receiving a fair trial.

Austin, 520 N.W.2d at 567 (quoting Houle v. North Dakota District Court, 293 N.W.2d 872, 874 (N.D.1980)).

[¶ 9] Mere quantity of media coverage is not the focus; rather, the defendants must show there was improperly prejudicial publicity which would have caused such bias against them that it would have been impossible to select a fair and impartial jury. There is no showing in the record that the media coverage disseminated inadmissible, illegally obtained, or otherwise prejudicial information, or that the coverage was sensationalized, inflammatory, or biased. See Breding, 526 N.W.2d at 468; Austin, 520 N.W.2d at 567; State v. Purdy, 491 N.W.2d 402, 407 (N.D. 1992). Nor did the defendants submit qualified public opinion surveys, other opinion testimony, or any other evidence demonstrating community bias caused by the media coverage. Austin, 520 N.W.2d at 567.

[¶ 10] The defendants' motion for change of venue was made in June 1999. The trial court denied the motion in July 1999, and trial was held in October 1999. The defendants did not renew their motion at the time of trial. Voir dire proceeded and a jury was selected with little difficulty. Although in exceptional cases prejudice to the defendant caused by pretrial publicity may be so obvious that a change of venue should be ordered immediately, a change of venue is generally inappropriate before voir dire. Ellis, 2000 ND 177, ¶¶ 10, 14, 617 N.W.2d 472; Breding, 526 N.W.2d at 468; Norman, 507 N.W.2d at 526; N.D.R.Crim.P. 21(a), Explanatory Note. A defendant believing an impartial jury cannot be selected, based upon comments by potential jurors during voir dire, must renew a motion for change of venue at that time. Ellis, at ¶ 14. The defendants have not drawn our attention to any evidence from the voir dire which demonstrates it was difficult or impossible to seat a jury in this case, and they did not renew their motion for change of venue at that time.

[¶ 11] We will reverse a trial court's decision denying a motion to change venue only when the prejudice to the defendant is so palpable and clear from the record that it was arbitrary, unreasonable, and capricious to conclude that a fair and impartial jury could be impaneled. Austin, 520 N.W.2d at 568. All other cases fall within the broad spectrum of the trial court's discretion. Id. The defendants have failed to establish the pretrial publicity in this case created bias and prejudice in the community making it impossible to select a fair and impartial jury. We therefore conclude the trial court did not abuse its discretion when it denied the motions for change of venue.

III

[¶ 12] The defendants argue the trial court erred in instructing the jury on the law of voluntary intoxication.

[¶ 13] Prior to trial, the parties each filed written requests for jury instructions. Erickstad's counsel requested that the court give the pattern jury instruction entitled "Effect of Intoxication on Culpability," N.D.J.I.—Criminal 2042.1 The trial court accordingly gave the following instruction:

EFFECT OF INTOXICATION ON CULPABILITY

The culpability required as an essential element of the crimes with which the defendants are charged is that the defendants acted intentionally or knowingly or under circumstances manifesting extreme indifference to the value of human life.
If the evidence shows that a defendant was intoxicated at the time of committing the alleged offense, you may consider that fact in deciding whether he did so with the required culpability.

[¶ 14] A few days prior to the end of trial, the State made a written request for several additional instructions, including N.D.J.I.— Criminal 2043.2 The court gave the following instruction, based upon N.D.J.I.—Criminal 2043:

EFFECT OF VOLUNTARY INTOXICATION

The fact that the defendant was voluntarily intoxicated at the time he committed the alleged offense does not relieve him of criminal responsibility for the crime.

[¶ 15] The defendants argue this instruction misstates the law because it says voluntary intoxication "does not relieve [a defendant] of criminal responsibility," but the statute on which the instruction is based says "[i]ntoxication is not a defense to a criminal charge." See N.D.C.C. § 12.1-04-02(1). The defendants also argue on appeal that giving both of the instructions on intoxication may have misled the jury, because one says voluntary intoxication does not relieve criminal responsibility, while the other says the jury may consider intoxication in determining whether a defendant acted with the requisite culpability. The defendants have provided on appeal a suggested instruction which, they allege, would have cleared up any confusion caused by giving the two instructions.

A

[¶ 16] Jury instructions must correctly and adequately inform the jury of the applicable law, and must not mislead or confuse the jury. State v. Carlson, ...

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  • Hansen v. Scott
    • United States
    • North Dakota Supreme Court
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