State v. Hendrick

• Decision Date: 23 January 1969
• Docket Number: Cr. N
• Citation: 164 N.W.2d 57
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Grant H. HENDRICK, Defendant and Appellant. o. 375.
• Court: North Dakota Supreme Court

Page 57

164 N.W.2d 57

STATE of North Dakota, Plaintiff and Respondent, v. Grant H. HENDRICK, Defendant and Appellant.

Cr. No. 375.

Supreme Court of North Dakota.

Jan. 23, 1969.

Syllabus by the Court

1. After hearing an appeal, the Supreme Court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.

2. When jurors were examined after the denial of a motion for mistrial based on the ground that the defendant was prejudiced by having been brought into the courtroom in the presence of the prospective jury panel while he was dressed in prison garb, and it did not appear from the record which if any of the jurors had noticed his presence, or that any juror was influenced or was challenged by reason of having seen him in prison garb, or that the defendant exhausted his peremptory challenges, it did not affirmatively appear that the defendant did not have a fair and impartial trial.

3. The rule of the common law that penal statutes are to be strictly construed has no application to criminal judicial procedure. Title 29 of the North Dakota Century Code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to promoting its objects and in furtherance of justice.

4. The word Escape connotes an attitude of mind as well as an act, and that attitude of mind requires an intent to avoid lawful confinement or custody. A criminal information which asserted that the defendant escaped from imprisonment, without alleging that he did so with intent to escape, was sufficient and did not prejudice the defendant, especially in light of the court's instruction to the jury that in order to find the defendant guilty of the offense, they must find that he escaped from the penitentiary with intent to escape therefrom. Therefore, a motion in arrest of judgment based on the insufficiency of the information was properly denied.

Wolf, Glaser & Milhollan, Bismarck, for defendant and appellant.

Helgi Johanneson, Atty. Gen., and Dale H. Jensen, State's Atty. for Burleigh County, Bismarck, for plaintiff and respondent.

ERICKSTAD, Judge.

On October 1, 1968, a Burleigh County jury found the defendant, Grant H. Hendrick, guilty of the crime of escape from imprisonment. Upon the return of that verdict the district court executed judgment sentencing Mr. Hendrick to imprisonment in the state penitentiary for a term of 2 years less 70 days, to commence at the termination of the sentence he had previously received upon conviction of the crime of robbery in the first degree, the latter term having been for not less than 5 years nor more than 15 years, commencing October 3, 1966.

It is from the judgment entered upon the verdict of guilty of the crime of escape from imprisonment that Mr. Hendrick now appeals.

He concedes that the evidence amply supports his conviction but asserts that the judgment should be set aside because of errors of law committed by the trial court. For this reason he has not supplied this court with a transcript of any of the testimony given at the trial. He asserts that the court erred (1) in failing to grant his motion for mistrial and (2) in failing no grant his motion in arrest of judgment. We shall first consider specification of error No. 1.

Apparently following the roll call of the entire jury panel but before the selection of the jury in this case a motion for mistrial was made out of the hearing of the prospective jurors on the ground that while they were seated in the courtroom Mr. Hendrick was brought into the courtroom, in full view of the prospective jurors, dressed in prison garb.

The garb was described by his counsel as 'being a white coverall, with some dirt on it, wrinkled to some extent, with apparently no undergarments underneath it.' Mr. Hendrick was described as wearing tattered shoes with no socks.

Instead of granting the motion for mistrial the court granted the State's motion for a recess so that Mr. Hendrick could obtain proper clothing and return to the courtroom properly dressed.

When Mr. Hendrick, properly dressed, returned to the courtroom after recess, the roll of the entire jury panel was again called, and thereafter twelve prospective jurors were called. The record does not disclose what questions were asked the prospective jurors by Mr. Hendrick's counsel, but it does indicate that his counsel passed peremptory challenge, which means that he did not exercise all peremptory challenges permitted by statute.

Mr. Hendrick does not base his claim for a mistrial on statutory law but instead bases his claim on encyclopedia law and on a 5th Circuit case asserted to support that law.

We are referred to 21 Am.Jur.2d Criminal Law § 239 (1965), which reads:

§ 239. Trial of defendant in prison garb.

Since the defendant, pending and during his trial, is still presumed innocent, he is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the court may otherwise require. He is therefore entitled to wear civilian clothes rather than prison clothing at his trial. It is improper to bring him into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict. (footnotes omitted)

The 5th Circuit case relied upon by Mr. Hendrick is that of Brooks v. Texas. In it the court said:

It is inherently unfair to try a defendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and permissible argument. * * *

Brooks v. Texas, 381 F.2d 619, 624 (5th Cir. 1967).

It should be noted that the foregoing statement was made without reference to any authority.

In Brooks the Circuit Court of Appeals reversed the judgment because the defendant was denied effective assistance of counsel. Brooks was dressed in his jail uniform throughout his trial without an objection being registered by his counsel, but more than that, his trial counsel failed to adequately prepare for his only possible defense, that of insanity. It was this latter failure on the part of counsel that the court stressed in reversing the judgment.

In the instant case Mr. Hendrick was attired in his prison garb only briefly and only before the commencement of the selection of the jury. In Brooks at the very opening of the trial the prosecutrix identified the defendant by pointing at him while he was in his white uniform, and the assistant district attorney noted for the record that the person in the white uniform was the defendant.

The facts in Brooks are so different from the facts in this case that the rule in Brooks would not necessarily apply to require reversal in the instant case.

One of the most recent decisions we have been able to find on this issue is that of People v. Shaw, 7 Mich.App. 187, 151 N.W.2d 381 (1967). In that case the Michigan court was urged, as we are urged, to adopt the rule of law stated in 21 Am.Jur.2d Criminal Law § 239.

The Michigan court in Shaw discussed the three cases cited in Am.Jur.2d in support of the rule, and distinguished each case from the facts in Shaw. In Shaw the jury observed the defendant twice in prison garb before objection was made. The court commented:

It is easily deduced that defense counsel in making objection when he did, permitted the jury to observe defendant for a second time in jail garb.

People v. Shaw, supra, 384.

Accordingly, the court found that the objection to the right of defendant Shaw to appear in ordinary clothing was not timely made. Notwithstanding that feature in Shaw, the court concluded:

Finally, in the language of People v. Ritholz, (359 Mich. 539, 103 N.W.2d 481 (1960)), we are not persuaded that the error complained of was so gross as to have deprived defendant of a fair trial, that his conviction was, in truth, a miscarriage of justice.

People v. Shaw, supra, 385.

That conclusion was based on decisions earlier cited and quoted as follows:

In People v. Kasem (1925), 230 Mich. 278, at p. 290, 203 N.W. 135, at p. 139, the Michigan Supreme Court stated, 'We have no right to reverse a conviction, unless we are satisfied that there was such error committed on the trial as deprived the defendant of substantial rights or resulted in a miscarriage of justice.' and in People v. Ritholz (1960), 359 Mich. 539 on p. 559, 103 N.W.2d 481, on p. 490, Mr. Justice SMITH stated: 'We must be persuaded that the errors complained of were so gross as to have deprived defendant of a fair trial, that his conviction was, in truth, a miscarriage of justice.' * * *

People v. Shaw, supra, 384.

It should be noted that we have a statute similar in meaning to the Michigan rule stated in Kasem:

29--28--26. Technical errors to be disregarded on appeal.--After hearing an appeal, the supreme court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.

North Dakota Century Code.

See: State v. Moe, 151 N.W.2d 310, 320 (N.D.1967).

In State v. Hashimoto, 47 Hawaii 185, 389 P.2d 146 (1963), it was asserted by the defendants that the trial court erred in denying their motion for mistrial made immediately after the jury had been sworn, which motion was based on the contention that the defendants were prejudiced before the jury because the guards, in full uniform, brought the defendants into the courtroom handcuffed to each other in full view of the jury. As to whether the jurors had actually seen the defendants handcuffed together, the trial court was in doubt. The Hawaii Supreme Court commented that the jury was not polled in this regard. Concerning the voir dire examination it said:

As a matter of...