State v. Gann

• Decision Date: 21 July 1976
• Docket Number: 539,Nos. 538,s. 538
• Citation: 244 N.W.2d 746
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Thomas H. GANN, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 746

244 N.W.2d 746

STATE of North Dakota, Plaintiff-Appellee, v. Thomas H. GANN, Defendant-Appellant.

Crim. Nos. 538, 539.

Supreme Court of North Dakota.

July 21, 1976.

Syllabus by the Court

1. Rule 8(a), NDRCrimP, permits the joinder of two separate offenses in one trial where the offenses are of the same or similar character, and the decision of the trial court to join will not be reversed unless there is a clear abuse of discretion.

2. Rule 14, NDRCrimP, permits relief from joinder which is otherwise proper under Rule 8, only where there is a showing that the joinder is prejudicial to the defendant, and is addressed to the discretion of the trial court.

3. Where the defendant had admitted to the elements of the crime and the State had presented strong evidence of the defendant's guilt, the statement of the trial court at the close of the defendant's case that there was nothing to go to the jury was harmless error.

4. An act which would otherwise constitute a crime may be excused when committed under duress or compulsion which is present, imminent, and impending and which produces a well grounded apprehension of death or serious bodily harm if the act is not done. This definition does not encompass acts done under economic pressure.

5. A defendant is entitled to an instruction on duress or compulsion, but only if there is some evidence to support it.

Kessler & Anderson, Grand Forks, for defendant and appellant, argued by David Kessler.

Thomas B. Jelliff, State's Atty., and Earle R. Myers, Jr., Asst. State's Atty., Grand Forks, for plaintiff and appellee, argued by Thomas B. Jelliff.

SAND, Justice.

On October 24, 1975, Thomas Gann was convicted of robbery by a jury in the district court of Grand Forks County, North Dakota. He appealed from the verdict of guilty, ¹ alleging that the trial court erred in consolidating this trial with another robbery with which Gann was charged, that certain comments at the trial before the jury by the trial court on his guilt constituted reversible error, that the trial court erred in refusing the defendant's jury instructions on duress, and that the court committed other errors. These other errors were not argued in the brief or on oral presentation, and for this reason we treat them as abandoned. See Regent Coop Equity Exch. v. Johnston's Fuel Liners, Inc., 122 N.W.2d 151 (N.D.1963), based on prior North Dakota Supreme Court Rule 8, now by inference in North Dakota Appellate Rule 28.

On the evening of February 11, 1975, the defendant was arrested for the robbery of Taco John's in Grand Forks. His trail was followed through the snow by the police, who found him on the top row of a grandstand located close to the scene of the crime. When found, Gann had in his possession the money taken from Taco John's in a white bag which was of the type used at Taco John's; a knife, and clothes fitting the description give to the police by two witnesses. The following day, the investigating officer, noticing similarities between the robbery of Taco John's and a robbery of the Sweet Clover Dairy on January 22, 1975, three weeks earlier, showed pictures of the defendant to one of the witnesses to the Sweet Clover Dairy robbery. See discussion in State v. Azure, 241 N.W.2d 699 (N.D.1976), on use of photograph for identification purposes. The witness identified Thomas Gann as the man who had held up Sweet Clover Diary. Gann was then charged with this robbery also.

The two cases were consolidated at the preliminary hearing, but the Taco John's case came on first, on March 31, 1975, after which the Sweet Clover Dairy case was continued until April 18, 1975.

The State moved that the Taco John's case be tried first on the grounds that those charges against the defendant were first filed and that the preliminary hearing on Taco John's was held first. The defendant objected to the motion, claiming it was a tactical move by the State to try the case in which it had the best evidence first, so that it could use any conviction against the defendant in the second case. The trial court ordered the cases consolidated to avoid any problems which might arise from having one case tried prior to the other.

The defendant claims the cases were not sufficiently similar to permit joinder or consolidation under Rules 8 and 13 of the North Dakota Rules of Criminal Procedure, respectively.

The Taco John's robbery occurred at eight o'clock on the evening of February 11, 1975. A man entered the store, looked at the menu for awhile, and placed his order. He told the waitress he had left his wallet in the car and would have to go get it. He returned and gave the waitress a note stating that this was a holdup. The man was armed with a knife. He told the waitress to put the money in a bag. As he was leaving through the back door, he cut the phone and told those in the store not to leave because they were being watched.

The robber was identified as being around six feet, weighing 180--190 pounds, wearing black snow pants, black boots, a blue parka, and had a green towel over his face.

The robbery of the Sweet Clover Dairy occurred at eleven o'clock on the evening of January 22, 1975. The robber came into the store, bought a few items, and then left. He returned as the two clerks were closing the door and said he had to get another item. He handed the clerk a note written on an envelope which said, 'This is a holdup. Do not make any noise. I have five kids at home and they are not going to starve so give me all your money. I have a knife and a gun.' The clerk put the money in a paper bag. The two clerks were then shut in the office and told to stay there. As the robber left he cut the telephone wires outside the building.

The robber was identified as being six feet, weighing 185 pounds, 40 to 50 years old, wearing a blue parka, having a green ski mask over his face, and displaying a rusty knife.

At the trial, the defendant took the stand and admitted he had committed the robbery of Taco John's, but denied having anything to do with the Sweet Clover Dairy holdup.

The jury found the defendant guilty of the robbery of Taco John's but was unable to agree on a verdict on the Sweet Clover Dairy robbery charge.

Defendant's primary contention is that the consolidation of these two cases for trial was error and was prejudicial to the defense.

The joinder of offenses in one trial is dealt with in Rules 8, 13, and 14 of the North Dakota Rules of Criminal Procedure.

Rule 8, NDRCrimP, states:

'Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.'

The Rule allows very broad joinder at the pleading stage, with the court given flexible power under Rule 14, NDRCrimP, to order separate trials as the necessities of a particular case may require. Wright, Federal Practice & Procedure, § 151, p. 305. See, Miller v. United States, 410 F.2d 1290 (8th Cir. 1969), Cert denied 396 U.S. 830, 90 S.Ct. 81, 24 L.Ed.2d 80.

The unifying theme of Rule 8 is trial convenience. With one exception, criteria for joinder are premised on the desirability of trying a criminal transaction only once. However, 'trial convenience in criminal procedure is not a goal on which all parties can uniformly agree.' 8 Moore's Federal Practice--Criminal Rules § 8.02(1), p. 8--3.

Some courts have stated that Rule 8 'involves the balancing of conflicting interests: (1) speed, efficiency and convenience in the functioning of the federal judicial machinery; against (2) the right of the accused to a fair trial, without any substantial prejudice to that right occasioned by the joinder of offenses and/or defendants.' Cataneo v. United States, 167 F.2d 820, 823 (4th Cir. 1948). See also, Bruton v. United States, 381 U.S. 123, 131, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (1968).

Rule 8(a), NDRCrimP, permits joinder in three situations: (1) where the offenses are of the same or similar character, (2) where the offenses are based on the same act or transaction, and (3) where the offenses are based on two or more acts or transactions connected together or constituting part of a common scheme or plan.

The most problematical of these is that allowing joinder of offenses of the 'same or similar character.' There are obvious dangers of prejudice to the defendant when he is tried for two different crimes at the same trial.

'. . . the juxtaposition of unrelated offenses is likely to prejudice the defendant, for one or more of the following reasons: '(1) he may become embarrassed or confounded in presenting separate defenses, (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separatedly, it would not so find." 8 Moore's Federal Practice--Criminal Rules § 8.05(2), p. 8--20, citing Drew v. United States, 331 F.2d 85 at 88 (C.A.D.C.1964).

The Federal Courts, in interpreting this Rule, have been hesitant to find improper joinder.

Where the offenses charged involve the same modus operandi and are otherwise circumstantially close, joinder is allowed.

For cases which have allowed joinder of offenses on the grounds that they were of the same or similar character, see Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113 (1969), involving two housebreakings of the same premises within a nine-day period; Johnson v. United States, 356 F.2d 680 (8th Cir. 1966), where defendant was charged with violations of the Mann Act involving different females; Gray v. United States, 123 U.S.App.D.C. 39, 356 F.2d...