State v. Johnson

Decision Date02 May 1975
Docket NumberNo. 500,500
Citation231 N.W.2d 180
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Terry JOHNSON, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Where a defendant in a criminal prosecution becomes a witness in his own behalf, he may be cross-examined as to matters which tend to degrade him and for this purpose he may be asked if he has been convicted of prior criminal acts.

2. For the purpose of impeachment the most reasonable practice, and the one generally prevailing, minimizing prejudice and distraction, is that beyond the name of the crime, the time and place of conviction, and the punishment, further details may not be inquired into.

3. An objection to a question comes too late after the question has been answered.

4. While a defendant in a criminal prosecution may be asked if he has committed a degrading act or if he has been convicted of committing one, he may not be asked if he has been arrested for committing such an act, since the fact of arrest is not proof of guilt.

5. Where the defendant's objection was sustained, and he failed to move that the question and answer be stricken from the record and that the jury be instructed to disregard the question and answer, or he failed to move for a mistrial; or where, as discussed in the language of the opinion, he did not make a timely motion; he is not entitled to relief in this court for the reason that he did not properly pursue his remedies.

6. The application of North Dakota Pattern Jury Instruction 1302 does not extend to every case in which the defendant has introduced testimony tending to prove that he could not have committed a particular crime but rather is restricted to cases in which the defendant has introduced evidence tending to prove that he was not present at the time and place at which he is alleged to have committed the offense for which he is on trial.

7. In view of the court's instructions regarding the testimony of the defendant, weight and credibility, presumption of innocence and burden of proof, the definition of reasonable doubt, and impeachment, it was not necessary to give the requested equivocation instruction, because the facts in evidence were sufficiently and properly covered by the other instructions.

8. The exclusion of witnesses from the courtroom is a matter resting within the sound discretion of the trial court.

9. The admission or rejection of cumulative evidence lies within the discretion of the trial court, and a ruling thereon will not be held erroneous unless an abuse of such discretion appears.

10. Where the Supreme Court finds upon reviewing the record that the verdict is supported by the evidence, it will not substitute its judgment for the judgment of the jury.

Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellee.

Benjamin C. Paulkrabek, Public Defender, Bismarck, for defendant and appellant.

ERICKSTAD, Chief Justice.

On October 18, 1974, a Morton County district court jury found the defendant, Terry Johnson, guilty of the crime of burglary. He brings this appeal from that conviction contending that (1) the court erred in allowing the State to question the defendant as to prior crimes and crimes of which it subsequently appeared that defendant had not been convicted, (2) the court erred in not granting the defendant's requested jury instructions concerning alibi and equivocation, (3) the court erred in not granting the defendant's motion to sequester the State's witnesses prior to the start of the trial, (4) the court erred in allowing the introduction of cumulative evidence, and (5) the verdict was contrary to the testimony and evidence presented at the trial.

During the early morning hours of March 24, 1974, Mr. Walter Siegfried of Mandan was awakened from his sleep by a loud sound. He went to his window to investigate the source of this disturbance and in looking out, observed two persons in front of a nearby grocery store, one of whom appeared to be prying out the front window of the store. Mr. Siegfried called the Mandan city police and upon returning to the window, saw that the two persons he had previously observed were leaving the area on foot. Shortly thereafter, Mandan city police officers, Captain Leo Snider and Lieutenant Hugo Ternes, arrived at the grocery store. They immediately radioed to Officer Raymond Huff, who was proceeding toward the grocery store in another vehicle, instructing him to follow an automobile they saw departing the area.

The officers' testimony indicated that the vehicle they had observed had a defective right taillight or brakelight and that there were no other vehicles or other persons in the area at that time.

After contacting Officer Huff, the two officers began their investigation of the store. Finding no one therein, Officers Snider and Ternes once again made radio contact with Officer Huff and then drove to the Island Park Trailer Court where Officer Huff reported he had stopped an automobile which he had followed. The occupants of this automobile, one Larry Belgarde and the defendant, Terry Johnson, were placed under arrest. Their automobile, which had a defective right brakelight or taillight, was found to contain a quantity of cigarettes and beer, some of the beer being of the same brand as two bottles of beer which were later found in the grocery store.

Officer Huff and an Officer Thomas Joblinski, who arrived at the trailer court to assist him, testified that Belgarde and Johnson complained of hunger. Officer Joblinski further testified that he followed the path taken by Officer Huff and the vehicle occupied by Belgarde and Johnson, that the tracks of two vehicles were apparent in the freshly fallen snow, that one set of tracks had been made by Officer Huff's vehicle, and that in traveling this route, he found a number of items such as minced bologna, potato chips, and wieners lying near the road.

In due course, officers Snider and Ternes returned to the grocery store to complete their investigation. At the store they met Police Photographer Lieutenant Boniface Silbernagel who took several pictures there and was later directed by Lieutenant Ternes to take pictures of the various items which Officer Joblinski had found in following the path taken by Officer Huff and the car occupied by Belgarde and Johnson. At trial, several of these items were identified by the proprietor of the burglarized grocery as having come from her store. Other items were identified as being of the same brand as goods the proprietor had in stock at the time the crime was committed.

We conclude relevant to Johnson's initial contention that:

'It is a well-settled rule in this state, that where a defendant in a criminal prosecution becomes a witness in his own behalf, he may be cross-examined as to matters which tend to degrade him and for this purpose he may be asked if he has been convicted of prior criminal acts. * * *' State v. McCray, 99 N.W.2d 321, 325 (N.D.1959). See also State v. Moe, 151 N.W.2d 310 (N.D.1967), and State v. Pfaffengut, 77 N.W.2d 521 (N.D.1956).

However, we have said that:

'* * * for the purpose of impeachment the most reasonable practice, and the one generally prevailing, minimizing prejudice and distraction, is that beyond the name of the crime, the time and place of conviction, and the punishment, further details may not be inquired into. * * *' State v. Moe, 151 N.W.2d 310, 320 (N.D.1967).

In light of this rule, inquiry into the details of the burglary of which Johnson had been previously convicted was technically improper. The questions follow:

'Q. When did that occur?

'MR. PULKRABEK: Your Honor, I don't think we have to go into that. It is not material. A statement of a conviction is sufficient. I would object.

'MR. SCHNELL: I am just going into the credibility of the witness.

'COURT: The objection is overruled.

'A. What was the question?

'Q. When was that burglary? When did that burglary occur that you were convicted of?

'A. Last August.

'Q. Where did it occur?

'A. In Bismarck.

'Q. And where in Bismarck did that occur?

'A. You mean location?

'Q. Yes

'A. Dick's Gun and Marine.'

Pertinent here is Rule 52(a), N.D.R.Crim.P., which provides that 'any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' The explanatory note to this rule states that 'generally, it may be said that the defendant has the burden of showing that a technical error has affected his substantial rights (Black v. United States, 309 F.2d 331 (8th Cir. 1962), cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963)) * * *.'

Having considered the entire record and the probable effect of the questions in the light of all the evidence, we find beyond a reasonable doubt that a substantial right of the defendant has not been affected and that this improper questioning constituted only harmless error and will be disregarded.

Shortly after the aforesaid testimony was given, the following exchange took place between the State's Attorney and the defendant:

'Q. Mr. Johnson, I want to show you what is marked as State's Exhibit 27 which is a communication from the United States Department of Justice and it states a number of items, which purportedly has to do with your Criminal record and ask you if these are correct and you can explain those to me.

'A. Assaulting a police officer, I don't know where that come from.

'Q. Is it on your record?

'A. I never got to Court for it so I don't know.

'MR. PULKRABEK: Your Honor, I am going to object to this whole line of questioning and ask that it be stricken. Mr. Schnell could have gone over to Bismarck and got a correct copy of this. He is bringing out things that he has laid no foundation for. I don't think he can lay any foundation until he has--. I think the Exhibit is improper and ask that any testimony that he brings out in this regard, unless he can lay the foundation, that...

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