State v. Jensen, 554

• Court: North Dakota Supreme Court
• Writing for the Court: VOGEL; ERICKSTAD
• Citation: State v. Jensen, 251 N.W.2d 182 (N.D. 1977)
• Decision Date: 17 February 1977
• Docket Number: No. 554,554
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Herbert O. JENSEN, Defendant and Appellant. Crim.

Page 182

251 N.W.2d 182

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

Crim. No. 554.

Supreme Court of North Dakota.

Feb. 17, 1977.

Syllabus by the Court

1. An information charging commission of a crime committed prior to the effective date of the new Criminal Code (Chap. 12.1, N.D.C.C.) must be tried under former law, except that the defendant may consent to the use of defenses and sentences allowed under the new Criminal Code (Sec. 12.1-01-01, N.D.C.C.).

2. The court is not required to call to the attention of the defendant his right to consent to the use of defenses and sentences permitted under the new Criminal Code (Chap. 12.1, N.D.C.C.) in prosecutions under former law.

3. An instruction using language of former law and the new Criminal Code as to "insanity" defense, which is inconsistent, is confusing and constitutes reversible error.

4. An instruction which is erroneous and relates to a subject central to the case affects the substantial rights of the defendant and requires reversal.

5. An issue which will not affect the outcome of the appeal and is not likely to arise again need not be decided.

6. Testimony of defendant as to a conversation between defendant and homicide victim, if offered to explain the state of mind of the defendant at a pertinent time, is not hearsay. N.D.R.Ev. 801(c).

7. Experts may testify as to their conclusions even though based on facts or reports not in evidence. N.D.R.Ev. 703.

8. Experts may testify as to ultimate facts to be determined by a jury. N.D.R.Ev. 704.

Clifford C. Grosz, State's Atty., Fessenden, and Calvin N. Rolfson, Deputy Atty. Gen., Bismarck, for plaintiff and appellee State of North Dakota; argued by Mr. Rolfson.

Lyle Huseby, of Huseby & Aarestad, Fargo, and Leo Broden, Devils Lake, for defendant and appellant.

VOGEL, Justice.

The defendant was charged with two counts of murder in the first degree. At the close of the State's evidence in a trial before a jury, the court ordered the charges reduced to murder in the second degree. The jury found the defendant guilty on both counts. He was sentenced to twenty years' imprisonment on each count, with an additional ten years' confinement on each count as a dangerous offender, as permitted by Section 12.1-32-09, N.D.C.C. The sentences were ordered served concurrently.

The defendant appealed. We reverse and remand for a new trial.

Most of the questions in this case result from complexities involved in the adoption of a completely new criminal code in this State. It was adopted by the 1973 Legislature as Chapter 116, 1973 Session Laws, to be effective July 1, 1975, and was amended in some respects by the 1975 Legislature as Chapter 116, 1975 Session Laws. ^* It is hereinafter referred to as the "New Code" and the former as the "Old Code."

The homicides in question occurred on November 16, 1974, some 71/2 months before the effective date of the New Criminal Code, but the trial occurred after the effective date.

The defendant, a retired veteran of the United States Air Force, left Fargo, North Dakota, on November 15, 1974. He was released from the Veterans Administration hospital on that day, with supplies of tranquilizing and other drugs. After a short stop in Jamestown, he proceeded by automobile toward Minot, carrying a concealed pistol and intending to poach a deer out of season if he saw one.

Near Pingree, about twenty miles north of Jamestown, he saw two hitchhikers wearing clothing inadequate for the cold weather, and he picked them up. He treated them to hot brandy and wine at three different establishments, leaving the third one at about 1 a.m.

At about 3:30 a.m., the bodies of the two hitchhikers were found on the shoulder of a road near Harvey, and about three hours later, the defendant was found slumped over the steering wheel of his automobile about thirty miles northwest of the place where the bodies were found. In his vehicle were found a billfold of one of the victims, blood, a wine bottle containing a fingerprint of the other victim, and the pistol of the defendant. The defendant testified to events up until their arrival at the first bar at which wine was purchased and asserts he was blacked out, except for hazy recollections of one or two insignificant events thereafter.

The bullets which caused the death of the victims were fired from the defendant's pistol.

The defendant offered as defenses intoxication, temporary insanity, and self-defense.

I

The defendant's first contention is that he was deprived of due process of law because of the failure of the trial court to advise him of his right to make an election as to (1) whether to interpose defenses available under former law or to interpose defenses available under the New Criminal Code effective July 1, 1975, and (2) whether to be sentenced under the provisions of former law or under the New Criminal Code.

The defendant is clearly correct in stating that the former law governs in his case unless he agrees to be bound by the New Code provisions as to defenses and sentencing. The relevant statutory provisions are:

"2. This title, except as provided in subsection 3 of this section, shall not apply to offenses committed prior to its effective date. Prosecutions for such offenses shall be governed by prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to the effective date of this title if any of the elements of the offense occurred prior thereto.

"3. In cases pending on or after the effective date of this title, and involving offenses committed prior thereto:

"a. The provisions of this title according a defense or mitigation shall apply, with the consent of the defendant.

"b. The court, with the consent of the defendant, may impose sentence under the provisions of this title which are applicable to the offense and the offender." Sec.12.1-01-01, N.D.C.C. (New Code).

Unless the defendant consented, the old law would apply in its entirety.

However, it does not necessarily follow that there was a duty on the part of the trial judge to specifically give notice on the record to the defendant of his right to make elections as to defense or sentencing, or both. The defendant had his own attorney to advise him, and we presume he did. That attorney certainly was aware of the right to elect as to defenses and sentencing, as will appear below. In fact, he made elections as to both.

We hold that the provision of Section 12.1-01-01, subsection 3, that the provisions of the New Criminal Code as to defense or mitigation shall apply with the consent of the defendant, does not impose upon the trial judge a duty to give notice to the defendant of a right to elect between the Old Code and the New Code. We hold that the language as to "consent of the defendant" means simply that he may consent to the application of the New Code, but that the matter is one to be raised by him or his attorney, not necessarily by the trial court.

We further find that the defendant actually made an election to be covered by the provisions of the New Code as to defenses. During the discussion as to proposed instructions to the jury, the defendant's attorney made an exception to

". . . that particular instruction on voluntary intoxication on the basis that it quotes the law that is no longer in effect and does not apply to this case because the new code that went into effect specifically authorizes and gives the defendant the benefits of the defenses allowed therein, one of which is the defense of voluntary intoxication."

This is an election, and is the "consent" referred to in Section 12.1-01-01, subsection 3-a.

As to subsection 3-b of Section 12.1-01-01, the defendant similarly made an election to be covered by the sentencing provision of the New Code. His attorney said, during the same conference on the proposed instructions:

"The defendant I, on behalf of the defendant would definitely consent that he be sentenced under the provisions of the new Code which went into effect on July 1, 1975."

II

The defendant asserts that the instruction given to the jury by the court on the question of insanity as a defense was made up of elements of both the Old and New Codes and was hopelessly confusing to the jury.

The instruction as given is as follows:

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. 'Mental disease or defect' does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Lack of criminal responsibility under this section is a defense.

"This defense is established if the defendant, at the time of the commission of the alleged offense, was laboring under such a defect of reason from disease (abnormality) of the mind as not to know the nature (the physical characteristics) and the quality (harmfulness) of the act, or, if he did know it, that he did not know he was doing what was wrong (meaning disapproved by society). Otherwise, the defendant is legally sane and is subject to prosecution.

"If the defense of Insanity is established then the defendant must be acquitted and your verdict must be, 'Not guilty by reason of insanity' and the case will be at an end.

"If the defense of insanity is not established you must then consider whether the State has proved the material allegations of the criminal Informations."

The first paragraph of the instruction as given is taken from Section 12.1-04-03, the New Code provision as to insanity as a defense. The trial court could have stopped at this point.

Instead, the trial court gave the final three paragraphs, which are excerpted from North Dakota Jury Instruction 1312, based upon the Old Code and judicial interpretations of it.

Both the Old Code and the New...