State v. Jensen

• Decision Date: 18 July 1979
• Docket Number: No. 554-C,554-C
• Citation: 282 N.W.2d 55
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Herbert O. JENSEN, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 55

282 N.W.2d 55

STATE of North Dakota, Plaintiff and Appellee, v. Herbert O. JENSEN, Defendant and Appellant.

Crim. No. 554-C.

Supreme Court of North Dakota.

July 18, 1979.

Rehearing Denied Aug. 2, 1979.

Clifford C. Grosz, former Wells County State's Atty., Harvey, and Calvin N. Rolfson, former Asst. Atty. Gen., Bismarck, for plaintiff and appellee at trial in lower court; Aloys Wartner, III, Wells County State's Atty., Harvey, and Gail Hagerty, Asst. Atty. Gen., Bismarck, for plaintiff and appellee on appeal; argued by Gail Hagerty.

Irvin B. Nodland, of Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, and Robert J. Snyder, of Bickle, Coles & Snyder, Bismarck, for defendant and appellant; argued by Irvin B. Nodland.

ERICKSTAD, Chief Justice.

This is the fourth time we have considered matters involving Herbert O. Jensen. See State v. Jensen, 265 N.W.2d 691 (N.D.1978); State v. Jensen, 241 N.W.2d 557 (N.D.1976); and particularly State v. Jensen, 251 N.W.2d 182 (N.D.1977), for background information leading to this appeal.

More specific facts relative to the issues in this case follow:

Between 3:30 a. m. and 4:00 a. m. on November 16, 1974, a passing motorist discovered the bodies of two deceased male American Indians lying on the shoulder of U.S. Highway 52, approximately four miles west of Harvey, North Dakota. The bodies were subsequently identified as Dale Abraham and Ernest Vivier, both of the Devils Lake area, and an autopsy disclosed that both victims died of gunshot wounds.

A number of law enforcement personnel were summoned to the scene as well as an ambulance and the county coroner. One of the officers on the scene, Deputy Sheriff Curtiss Pellett of Wells County, recognized the bodies as being persons he had seen earlier in the evening at a bar in Fessenden, North Dakota. Pellett recalled that the decedents had been in the company of a white male and a description of this person and the car in which he was believed to be traveling was immediately broadcast on the law enforcement network. While transporting the bodies to Minot for an autopsy, the ambulance passed a vehicle that matched the description of that being sought by the law enforcement officers parked on the shoulder of U.S. Highway 52, approximately two miles west of Balfour, North Dakota, or approximately 30 miles northwest of where the bodies were found.

The ambulance driver gave this information to state radio, and officers Arden Johnson and L. A. Fontaine of the State Highway Patrol subsequently arrived at the scene.

They found the defendant, Herbert Jensen, slumped over the steering wheel in the driver's seat, apparently asleep. The officers read Jensen his rights and placed him under arrest.

In Jensen's vehicle, the officers found a billfold of one of the victims, blood, a wine bottle containing a fingerprint of one of the victims, and Jensen's pistol, which a subsequent ballistics test identified as the weapon that inflicted the lethal wounds.

At the trial it was disclosed that Jensen, a retired veteran of the United States Air Force, left Fargo, bound for Minot, North Dakota, on November 15, 1974, after being released from the Veterans Administration Hospital on that day with supplies of tranquilizers and other drugs. At Pingree, North Dakota, about 20 miles north of Jamestown, Jensen picked up Vivier and Abraham, who were hitchhiking. He treated them to hot brandy and wine at three different establishments, leaving the third one at about 1:00 a. m. on November 16, 1974. The trio also consumed two bottles of wine while driving.

Jensen testified that he remembered almost nothing of what happened after he and the decedents left the last bar at which they stopped until being awakened by the police in his parked car. The part of his testimony pertinent to his memory after leaving the Artos Supper Club near Harvey at about 1:00 a. m. follows:

"As near as I can recollect at this time I was driving down the highway; I heard a voice loud and clear asking or demanding something of me. I have the impression that there was a threat on my life. I have the impression of my head going forward twice; that I seen stars at this time. I had the impression of being panic scared. I had the impression of defecating and urinating in my pants. I had all these emotions of fear and anger all at once arising. I have the impression of something looming over me. I have the impression of laying objects out onto the ground. I have the impression of going down a hall and going into someone's apartment and was so ashamed because it was an elderly couple's home they were dressed in night attire. I remember feeling ashamed about this because I didn't knock or have the courtesy. The next recollection that was clear that I had was being awakened by Officer Fontaine the next morning about dawn."

After a trial lasting approximately two weeks, the jury, on October 19, 1977, found Jensen guilty of two counts of murder in the second degree. Jensen was subsequently committed to the North Dakota State Penitentiary for the term of two concurrent thirty-year sentences pursuant to the classification of the defendant as a special dangerous offender. Jensen appeals to this court from the jury verdicts of guilty and the judgments and sentences of the court.

In this appeal there are two issues: (1) whether or not there is substantial evidence to justify the two verdicts of guilty, and (2) whether or not the trial court erred in receiving certain evidence concerning a prior altercation between Jensen and one Al Kontos.

The first issue, counsel asserts, should be decided in favor of Jensen because the deaths occurred while Jensen was either (a) intoxicated, or (b) insane, or (c) in self-defense.

Let us first consider the defense of intoxication. At the time of the alleged murders, the Legislature had enacted the new criminal code, but its effective date had not been reached. Jensen was thus charged and tried under the homicide provisions of the old criminal code, which read as follows:

"12-27-08. 'Murder' defined. Homicide is murder in the following cases:

"1. When perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being;

"2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, in disregard of human life, although without any premeditated design to effect the death of any particular individual; and

"3. When perpetrated without any design to effect death by a person engaged in the commission of any act or omission which may be punished by imprisonment in the penitentiary under any law of this state without regard to the punishment actually imposed."

"12-27-11. Murder divided into two degrees. According to the facts and circumstances attending the killing, or as specially declared by law, murder is either:

"1. Murder in the first degree; or

"2. Murder in the second degree."

"12-27-12. Degrees of murder defined. Every murder perpetrated by means of poison, or by lying in wait, or by torture, or by other willful, deliberate, or premeditated killing, or in committing or attempting to commit any sodomy, rape, mayhem, arson, robbery, or burglary, is murder in the first degree. All other kinds of murder are murder in the second degree."

At the time of trial, the effective date of the new criminal code having been reached, Jensen elected pursuant to Section 12.1-01-01, N.D.C.C., to be tried under the defense and sentencing provisions of the new criminal code. The pertinent section relative to the defense of intoxication is:

"12.1-04-02. Intoxication. 1. Intoxication is a defense to the criminal charge only if it negates the culpability required as an element of the offense charged. In any prosecution for an offense, evidence of intoxication of the defendant may be admitted whenever it is relevant to negate the culpability required as an element of the offense charged, except as provided in subsection 2.

"2. A person is reckless with respect to an element of an offense even though his disregard thereof is not conscious, if his not being conscious thereof is due to self-induced intoxication."

Under the old criminal code, Section 12-27-08, N.D.C.C., both the State and the defense seem to agree that an essential element of the crime of murder in the second degree is malice, either express or implied. State v. Carter, 50 N.D. 270, 195 N.W. 567 (1923). That being the case, it is asserted by counsel for the defense that if Jensen, through the effects of alcohol, was unable to harbor malice at the time of the alleged killings, the element of culpability was not present and accordingly he could not be found guilty.

Counsel for the defense asserts that the evidence in this case shows that, after having picked up the two decedents, Jensen stopped in three bars and consumed alcohol in each and that he also participated in the drinking of two bottles of wine while driving. He further asserts that the evidence shows that at the time of the killings, in addition to consuming alcohol, Jensen was also taking prescriptions for several drugs, the most notable of those being valium. He points out that Dr. Daniel Nusbaum, a defense psychiatrist, testified that valium tends to aggravate the effects of alcohol, and that according to Nusbaum the combined effects of valium and alcohol consumed by the defendant on the night of the killings would have been equivalent to eight shots of whiskey.

Actually, Jensen testified that on the 15th of November, 1974, the day on which he left the V.A. Hospital in Fargo and journeyed to Jamestown and ultimately picked up the two decedents as hitchhikers near Pingree, North Dakota, that he took no valium after 5:00 or 5:30 p. m. on that date. The bodies of the decedents were found along highway 52 between Harvey and Martin between 3:30 and 4:00 a. m. on November 16, 1974, by Emanuel Volk who was enroute from Knox,...