State v. Halvorson

• Decision Date: 21 March 1984
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Wayne HALVORSON, Defendant and Appellant. o. 933.
• Court: North Dakota Supreme Court

Page 704

346 N.W.2d 704

STATE of North Dakota, Plaintiff and Appellee, v. Wayne HALVORSON, Defendant and Appellant.

Cr. No. 933.

Supreme Court of North Dakota.

March 21, 1984.

As Amended April 10, 1984.

Tom P. Slorby, State's Atty., Minot, for plaintiff and appellee.

Phillip J. Brown, Bismarck, for defendant and appellant.

PEDERSON, Justice.

A jury found Wayne Halvorson guilty of murder, a class AA felony under Sec. 12.1-16-01, North Dakota Century Code. He appeals from the judgment of conviction, and requests that the conviction be reversed and the case remanded for a new trial on the grounds that the trial court erred 1) in its instructions to the jury; 2) in limiting defense counsel's cross-examination; 3) in admitting certain tape recordings into evidence and allowing the jury to take the recordings and playback equipment into the jury room; and 4) in allowing the criminal information to be amended to add the names of twenty-two witnesses on the day of trial. We do not agree that the trial court committed reversible error and, accordingly, affirm the conviction.

Shortly before 1:00 a.m. on October 20, 1982, Halvorson went to his estranged wife Llana's residence in Minot. Finding the combination storm door locked from the inside, he proceeded to cut or tear a hole in the screen, break the glass and open the inside door with his key. At the time he was carrying a .38 caliber revolver and a .223 rifle. He left the revolver in the living room and, still carrying the rifle, entered Llana's bedroom, where he heard her telephoning the police and told her to hang up. He testified that when she did not comply, he leaned across to disconnect the phone and she started to get up from the bed, pushing him backwards and causing the rifle to discharge. Regardless of whether the shooting was accidental, as Halvorson claims, or intentional, as the State contends, Llana was killed instantly by a bullet wound in the neck.

Dawn Inman, Llana's 13-year-old daughter from a previous marriage, was in the house when the shooting occurred. Dawn's bedroom and Llana's bedroom were connected by a bathroom with separate doors to each bedroom. Dawn testified that she could see into her mother's bedroom while sitting up in bed if both connecting doors to the bathroom were open. Dawn saw Halvorson enter Llana's bedroom, heard the shot and saw her mother fall to the floor, but did not see what actually happened when the gun discharged. Halvorson locked the doors to the house and entered Dawn's bedroom.

Law enforcement officers arrived at the home almost immediately after the shooting in response to Llana's emergency call. The police established telephone contact with Halvorson and continued that contact periodically throughout the night. These conversations were recorded and tapes of the conversations were received into evidence. At no time during the telephone conversations was Halvorson advised that any statements could be used against him or that he was entitled to the assistance of counsel. At 7:30 a.m. Halvorson allowed Dawn to leave the house to go to school. At approximately 10:30 a.m. Halvorson surrendered and was taken to the police station where he was advised of his rights.

Later that afternoon Halvorson gave a voluntary oral statement to Detectives Glibota and Hendrickson, who prepared a written memorandum of the statement immediately after the interview. Halvorson's testimony at trial differed from his statement, as testified to at trial by Detective Glibota. The written memorandum of Halvorson's statement was also received into evidence. The main issue for the jury to determine at trial was whether or not the shooting was intentional or accidental. The court instructed the jury on murder and on the lesser included offenses of manslaughter and negligent homicide. The jury deliberated for approximately four hours before returning a verdict of guilty of the most serious offense, murder.

The instruction on negligent homicide is not at issue on this appeal. Halvorson contends, however, that the court incorrectly instructed the jury on murder and manslaughter. ¹ Halvorson did not technically object to the instruction, stating that, in light of the statutes, that probably was the only way the court could instruct the jury. Although this court generally cannot consider an alleged error raised for the first time on appeal, Rule 52(b), NDRCrimP does authorize us to notice an error if it infringes upon the substantial rights of the defendant. State v. Trieb, 315 N.W.2d 649, 654 (N.D.1982). Because the interest at stake is so great (i.e., the consequences of being convicted of murder rather than of manslaughter), we will review the allegedly offensive instructions pursuant to Rule 52(b), NDRCrimP.

The court's instructions on "SOME STATUTES INVOLVED IN THE ALLEGED OFFENSE" informed the jury that a person is guilty of murder under Sec. 12.1-16-01 of the North Dakota Century Code if he: "1. Intentionally or knowingly causes the death of another human being; or 2. Willfully causes the death of another human being under circumstances manifesting extreme indifference to the value of human life." The instruction then defined the terms "intentionally," "knowingly," "recklessly" and "willfully."

With the exception of "intentionally," the definitions are, for all intents and purposes, taken verbatim from Sec. 12.1-02-02, NDCC, which sets forth culpability requirements for offenses under the criminal statutes. Under Sec. 12.1-02-02, a person engages in conduct intentionally "if, when he engages in the conduct, it is his purpose to do so." The court's instruction on intentionally stated that a person engages in conduct " 'Intentionally ' if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so." [Emphasis in original.] That definition is identical to the definition for "knowingly," a presumably inadvertent duplication.

The court then instructed the jury on the "ELEMENTS OF MURDER" as follows:

"With respect to the crime of Murder, the burden of proof resting upon the State is satisfied only if the evidence shows, beyond a reasonable doubt, the following elements:

1. That on or about the 20th day of October, 1982, in the City of Minot, Ward County, North Dakota, the Defendant:

(a) Did intentionally or knowingly cause the death of Llana Halvorson, or

(b) willfully caused the death of Llana Halvorson under circumstances manifesting extreme indifference to the value of human life.

"If the State has established the elements set forth in paragraph 1(a) or 1(b) above to your satisfaction beyond a reasonable doubt, then it will be your duty to find the Defendant 'guilty' of the crime of Murder as charged in the Information.

"If the State has failed to establish each and all of those elements to your satisfaction beyond a reasonable doubt, it is your duty to find the Defendant 'not guilty' of the crime of Murder."

The court's instruction on "MANSLAUGHTER" directed the jury that only if they found the defendant "not guilty" of murder could they consider whether or not he was guilty of manslaughter. The instruction then defined manslaughter in the statutory language of Sec. 12.1-16-02(1), NDCC, and repeated the definition of "recklessly" from Sec. 12.1-02-02, NDCC. The instruction on "ELEMENTS OF MANSLAUGHTER" likewise directed the jury that before they could find Halvorson guilty of the class B felony of manslaughter, they would have to find beyond a reasonable doubt "that on or about the 20th day of October, 1982, in the City of Minot, Ward County, North Dakota, the Defendant did recklessly cause the death of Llana Halvorson."

Halvorson claims that the court incorrectly instructed the jury on the meaning of "intentionally" when it defined the elements of murder, but he does not specify any defect. We noted above the discrepancy between the statutory definition of "intentionally" and the court's instruction. It is obvious that the court incorrectly defined the term, but the error was clearly harmless and Halvorson himself does not seriously assert any prejudicial effect.

Halvorson's strongest argument is that the court essentially instructed the jury that it could find him guilty of murder under Sec. 12.1-16-01, NDCC, even if it found his conduct to have been only reckless rather than intentional or knowing. He maintains that by adding the word "willfully" to the statutory language of Sec. 12.1-16-01(2) the trial court erroneously interjected the element of recklessness, lowered the State's burden of proof of the offense of murder, and completely defeated the distinction between murder and manslaughter.

As support for his position that inserting "willfully" constitutes reversible error, Halvorson cites State v. Skjonsby, 319 N.W.2d 764 (N.D.1982). Halvorson interprets Skjonsby as affirmatively holding that the term "willfully" does not belong in an instruction on the elements of murder.

Halvorson's interpretation misconstrues our holding in Skjonsby, which actually supports the State's position that "willfully" must be inserted pursuant to Sec. 12.1-02-02(2), NDCC. ² Unlike Halvorson, Skjonsby contended that the jury instructions were misleading because the trial court failed to specifically instruct the jury that the culpability requirement for murder or attempted murder under Sec. 12.1-16-01(2) was "willfully." We held that the omission was not prejudicial when the instructions were read as a whole because the amended indictment, which contained the word "willfully" in the charge, was read as part of the instructions and the jury was further instructed that the State had to prove each and every element in the indictment to be true. Skjonsby, 319 N.W.2d at 774.

Halvorson also relies on the commentary to the Model Penal Code to buttress his argument that adding "willfully" results in an impermissible blurring of the...