State v. Huber, Cr. N

• Decision Date: 23 January 1985
• Docket Number: Cr. N
• Citation: 361 N.W.2d 236
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. John HUBER, Defendant and Appellant. o. 1002.
• Court: North Dakota Supreme Court

Page 236

361 N.W.2d 236

STATE of North Dakota, Plaintiff and Appellee, v. John HUBER, Defendant and Appellant.

Cr. No. 1002.

Supreme Court of North Dakota.

Jan. 23, 1985.

Owen Mehrer, State's Atty., Dickinson, for plaintiff and appellee.

Irvin B. Nodland of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

John J. Huber appealed from a jury verdict finding him guilty of four counts of murder and one count of attempted murder and from the judgment of conviction entered thereon. Huber was sentenced to life imprisonment on each count, the terms to be served consecutively. We affirm.

The parties stipulated:

"that on or about the 15th day of March, 1983, the Defendant, John J. Huber, fired shots from a ten-gauge shotgun owned by him into the bodies of Gladys Huber, Maurice O'Connell, Kathleen O'Connell and Dinah Riegel and as a result thereof all four of said persons died. In addition John Huber fired a shot from said gun at Timothy Riegel which did not hit Timothy Riegel because of evasive action taken by Riegel...."

Evidence at Huber's trial centered on his mental condition and emotional state at the time of the shootings. Huber has raised the following issues on appeal:

I

Was it error for the trial court to refuse to give an instruction, to allow voir dire, or to allow cross-examination on the disposition of the defendant in the event the jury were to find him not guilty by reason of a lack of criminal responsibility?

II

Did the court err in the wording of its manslaughter instruction?

III

Did the trial court err in imposing a life sentence on the defendant upon a conviction of attempted murder?

I

Huber requested that the jury be instructed as follows:

"Members of the jury you are advised that in the event you should find the defendant not guilty because of a lack of criminal responsibility the state's attorney is required by law to file a petition for involuntary treatment from which a hearing would be held for determination of the defendant's need for institutional custody, care or treatment."

Huber asserts that the trial court erred in refusing to instruct the jury on the consequence of a verdict of not guilty by reason of a lack of criminal responsibility. Noting that "[t]here is a split of authority among the states and jurisdictions as to whether such an instruction is required in the interest of a fair trial," Huber contends that "our state should adopt the rule that requires such an instruction be given when requested by the defendant."

Many decisions on this subject are collected and analyzed in Annot., 11 A.L.R.3d 737 (1967 and 1984 Supp.). Those decisions are generally summarized in 11 A.L.R.3d 737, 739:

"It is generally agreed in the cases reviewed herein that what happens to such a defendant is not a matter of 'punishment,' in the usually accepted meaning of the word, but many cases nevertheless take the position that the rule that the jury is not concerned with punishment is equally applicable to the procedure to be followed as respects an accused acquitted for insanity, and hold flatly that no instruction as to such procedure is proper. Others conclude that the giving of an instruction of the kind in question is within the discretion of the trial judge. Taking a radically different view of the matter, the courts in the District of Columbia hold that such an instruction is not only proper, but necessary, and must be given in a case where the defense of insanity is raised, unless the defendant affirmatively objects to it." [Footnotes omitted.]

The leading case standing for the proposition that where the issue of insanity is raised an instruction on the consequences of a verdict of not guilty by reason of insanity should or must be given is Lyles v. United States, 103 D.C.App. 22, 254 F.2d 725, 728-729 (1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), which states the following rule:

"Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity in accordance with the view expressed in this opinion."

The opposing viewpoint is concisely stated in State v. McLoughlin, 133 Ariz. 458, 652 P.2d 531, 534-535 (1982):

"The disposition of a defendant upon the jury's verdict has nothing to do with the defendant's guilt or innocence and should never be considered by the jury in its deliberations."

A third line of cases leaves the matter in the trial court's discretion, as exemplified by State v. Wade, 96 Conn. 238, 113 A. 458, 460 (1921):

"Usually where this instruction is given it is with the purpose on the part of the judge that the jury may not find an insane person guilty, but [not] guilty on the ground of insanity. Whether such an instruction shall be given is for the trial judge to determine in the exercise of his sound discretion."

The court in Dipert v. State, 259 Ind. 260, 286 N.E.2d 405, 407 (1972), states that, while a defendant is normally not entitled to such an instruction, a defendant

"through an appropriate channel, such as a curative instruction or statement by the judge, will be entitled to inform the jury of such procedures where an erroneous view of the law on this subject has been planted in their minds."

No "erroneous view of the law on this subject has been planted" in the minds of the jurors in this case, so a curative instruction was not necessary. No productive purpose would be served by analyzing each of the viewpoints stated at length. We have not been persuaded of the wisdom of adopting the rule sought by Huber. We believe the better rule is that an instruction on the consequences of a verdict of not guilty by reason of a lack of criminal responsibility ordinarily should not be given, except in a situation such as that in Dipert, supra.

The purpose of the jury is to find the facts and determine a defendant's guilt or innocence. The consequences of a verdict of not guilty by reason of a lack of criminal responsibility have no bearing on any issue which the jury must decide. An instruction of the kind requested would invite the jury to speculate about a defendant's ultimate disposition and invite it to render a verdict on the basis of something other than the evidence before it. See State v. Garrett, 391 S.W.2d 235 (Mo.1965). "Punishment, or whatever may transpire after the verdict, is not the concern of the jury." State v. Park, 159 Me. 328, 193 A.2d 1, 5 (1963). In short, "it is simply no business of the jury what happens to the accused if he is acquitted on the ground of insanity." Annot., 11 A.L.R.3d 737, 742 (1967). We therefore hold that the trial court did not err in refusing to instruct the jury on the disposition of the defendant in the event the jury were to find him not guilty by reason of a lack of criminal responsibility.

For the same reasons, we also find no error in the trial court's refusal to allow cross-examination of witnesses on this subject or to allow Huber to inquire into post-verdict disposition in voir dire.

II

Huber next contends that the trial court erred in its instruction to the jury on the offense of manslaughter. ¹ In particular, Huber argues that requiring a connection between the victim and the defendant, precipitating or aggravating the extreme emotional disturbance, injects an element not provided by the Legislature.

We note initially that Huber did not object to the instruction before it was given. While he interposed specific objections to other instructions, he did not do so with regard to the manslaughter instruction prior to its submission to the jury, other than to enter a blanket objection to not having his requested instructions given. The trial court thus was not apprised of any error in the instruction before submitting it to the jury.

After the jury retired for its deliberations, it requested that manslaughter be "explained to them better." Huber then asserted, for the first time, that the last sentence of the instruction was erroneous. Counsel for the State responded that the instruction was proper under our decision in State v. Trieb, 315 N.W.2d 649 (N.D.1982). The State has adhered to that argument on appeal. It has also appeared to argue that no manslaughter instruction should have been given and therefore "whatever instruction was given would only benefit the defendant and should not result in reversible error. See, e.g., State v. Dilger, 338 N.W.2d 87, 96 (N.D.1983)."

To the extent that the State argues that no manslaughter instruction should have been given, we disagree. The evidence clearly warranted a manslaughter instruction.

The State's reliance upon State v. Trieb, supra, is misplaced. All that we said in that case about a connection between a victim and a defendant is that:

"in every case we have read there has been some connection between the victim and the slayer precipitating or aggravating an emotional response in the defendant."

Trieb, supra, 315 N.W.2d at 659. That statement does not constitute authority for the proposition that such a connection is required in order to convert what would otherwise be murder to manslaughter under Sec. 12.1-16-02, N.D.C.C., which provides, in part:

"12.1-16-02. Manslaughter. A person is guilty of manslaughter, a class B felony, if he:

* * *

"2. Causes the death of another human being under circumstances which would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse...."

The quoted portion of our manslaughter statute was drawn from a proposed Federal Criminal Code provision which had been drawn from Model Penal Code (U.L.A.) Sec. 210.3. The proposed Federal code formulation modified the Model Penal Code formu...