State v. Klose

• Citation: 657 N.W.2d 276,2003 ND 39
• Decision Date: 05 March 2003
• Docket Number: No. 20010309.,20010309.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Timothy Gene KLOSE, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

657 N.W.2d 276

2003 ND 39

STATE of North Dakota, Plaintiff and Appellee, v. Timothy Gene KLOSE, Defendant and Appellant.

No. 20010309.

Supreme Court of North Dakota.

March 5, 2003.

Rehearing Denied March 26, 2003.

Frederick R. Fremgen, State's Attorney, Jamestown, ND, for plaintiff and appellee.

Kropp Law Offices (argued by Eric P. Baumann), Jamestown, ND, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Timothy Gene Klose appeals from a judgment of the Southeast Judicial District Court and from the court's denial of his motion for mistrial and two motions for a new trial. On appeal, Klose argues that the district court erred in concluding there was insufficient evidence to prove he lacked criminal responsibility, in admitting the State's exhibits into evidence, in improperly communicating with the jury, and in concluding that the jury did not render a compromised verdict. We affirm.

I

[¶ 2] Klose was charged with burglary and with the murder of his neighbor, Raymond Schultes, in the early morning of March 22, 2001. Schultes' body had been found on the lower level of their apartment complex, at the bottom of a stairway leading to the laundry room. On October 25, 2001, a jury convicted Klose of murder. Both Klose and Schultes resided in the four-plex apartment unit in Jamestown. Klose rented an apartment on the upper level of the four-plex, and Schultes rented one on the lower level. The two men did not know each other.

[¶ 3] That Klose killed Schultes is not disputed; however, the facts that surround the killing are disputed. Klose raised an insanity defense at trial. Klose's expert witness, Dr. Joann Roux, testified at trial that after reviewing all police records and evaluating Klose, her opinion was that he was in a profoundly psychotic state at the time of the killing. Dr. Roux reports in her psychiatric evaluation of Klose that he told her he began drinking alcohol again in March 2001, after four months of sobriety. Klose told Dr. Roux he was consuming from one-half to a liter of vodka per day up until four days before the murder, when he stopped completely. After the murder, he tested negative to alcohol and all other drugs except marijuana. A small bag of marijuana was found in Klose's apartment after the murder.

[¶ 4] In her evaluation report, Dr. Roux stated Klose's insanity was caused by alcohol withdrawal delirium, an aftereffect of prolonged consumption of large amounts of alcohol followed by an abrupt cessation of consumption. She stated, in her opinion, at the time of the killing Klose was experiencing delirium tremens, which affected him to such an extent, his conduct was the result of either a loss or a serious distortion of his capacity to recognize reality.

[¶ 5] Klose did not take the stand at trial. Dr. Roux testified as to what Klose had told her in her interviews with him. Dr. Roux testified that Klose stated his hallucination began by God coming to him and telling him his twelve-year-old twin daughters were going to be used to clone perfect human beings. She testified Klose told her he believed he was in space and he and his brother Randy were saving the earth from a meteorite; however, he said that at one point he thought Randy was going to kill him and his daughters. Dr. Roux testified Klose told her it was at that time he remembered Randy coming to him in space, which was actually his apartment, and pounding on his door, saying, "Timmy, Timmy, come out. I am going to get you."

[¶ 6] Dr. Roux testified Klose told her he then went down to Schultes' apartment because he believed his brother Randy was in there. Dr. Roux testified that Klose told her he started pounding on Schultes' door, asking for Randy to come out. Dr. Roux testified that Klose told her he thought he heard his twin daughters crying in the apartment, and when he was unable to open Schultes' door, he went upstairs to his apartment and got his shotgun. Dr. Roux testified that Klose said he then went back down to Schultes' apartment, shot his way in, got into a struggle with Schultes, and shot him when Schultes was overpowering him. Dr. Roux testified Klose told her that he remembered seeing the man who he thought was his brother Randy on the floor and thinking he was dead. Dr. Roux testified that Klose said that when he realized he didn't know for sure whether Randy was dead, he went up to his apartment to get another gun, went back downstairs, and shot Schultes, again thinking he was Randy.

[¶ 7] Dr. Roux testified Klose told her that after he believed Randy was dead, he realized he would not be able to find his daughters, so he started dragging the body toward the laundry room because, he said, at that time he thought the laundry room contained a replicator machine that would bring Randy back to life. Dr. Roux testified Klose told her that when he heard voices, he went and hid in Schultes' apartment until he realized the voices were those of police officers. Dr. Roux testified Klose told her that when the police arrived, he still thought he had killed Randy, and when he found out he had actually killed his neighbor and not his brother, he realized he must have been suffering from delirium tremens.

[¶ 8] At trial, the State's witness, Officer LeRoy Gross, who had examined the crime scene, testified that in Klose's apartment he had found a broken single shotgun, a pair of socks, a towel, and a pair of boxers, all of which were soiled by what appeared to him to be blood. Gross testified that in Klose's bathroom he had noticed the sink was fairly clean, but there were water drops around the sink with a pinkish residue to them, as though Klose had cleaned himself off at the sink. Gross also testified Klose told him that after his struggle with Schultes, he got another gun. Gross testified there was a discrepancy in Klose's story at that point. Gross testified he believes that after the struggle, Klose must have gone back upstairs, gotten a different shotgun, gone back to Schultes' apartment, and shot through the door. The first police officer on the scene, Officer Robert Schlenvogt, testified that when he arrived, Klose was fully dressed in clean clothing, as was depicted in an exhibit shown to the jury.

[¶ 9] Another witness for the State, Dr. George Mizell, North Dakota State Forensic Examiner, examined Schultes' body and issued the death certificate and autopsy report. Dr. Mizell testified the evidence from his examination showed there was only one fatal gunshot wound, which was to Schultes' head, yet other injuries on Schultes' body indicated a struggle had occurred. Dr. Mizell testified that at the time of the autopsy, he also examined the shotgun found in Klose's apartment. Dr. Mizell testified the shotgun was partially broken near the stock, there were red stains and a hair on it, and it likely was used to inflict the injuries present on Schultes' back, his head, and the left side of his face.

[¶ 10] In closing argument, the State argued that because there was only one fatal shot to Schultes' head, the struggle must have occurred prior to that shot. The State argued that after the struggle had occurred, Klose must have gone upstairs, taking the broken and bloody shotgun with him, changed his clothes, cleaned himself off with a towel, grabbed a different gun, and proceeded back downstairs to shoot Schultes in the head.

[¶ 11] During deliberation, the jury sent the court a note asking, "Have the physical and/or mental symptoms related to alcoholic withdrawal been used in this manner previously in a murder trial?" In chambers, the court discussed the question with the prosecutor and Klose's counsel, but the conversation was not recorded. What the court, the prosecutor, and Klose's counsel agreed upon in chambers to tell the jury is in dispute; however, both parties agreed the court could respond to the jury by written note. The court sent the jury a written response stating, "Very good question. I know of no legal precedent in North Dakota that I could put in a further jury instruction that would help you. Try to concentrate on the evidence you have before you." Copies of the answer were provided to the attorneys. The jury acquitted Klose on his charge of burglary, and convicted him of murder. At the sentencing hearing, Klose moved for a mistrial, alleging the district court's response to the jury's request for further instruction on North Dakota precedent regarding delirium tremens was not what had been agreed to in chambers. He also argued he had not been provided an opportunity to read the note before it was given to the jury. [¶ 12] Klose appeals from the judgment of conviction, the district court's denial of his motion for mistrial, and the court's denial of his two motions for a new trial. Klose did not appeal the district court's denial of his motion for judgment of acquittal.

[¶ 13] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06(2). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02(4). The appeal is timely under Rule 4(a), N.D.R.App.P.

II

[¶ 14] Generally, granting a mistrial is "an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings of the trial which makes it evident that further proceedings would be productive of manifest injustice." State v. Rodriguez, 454 N.W.2d 726, 730 (N.D. 1990) (citing State v. Carr, 346 N.W.2d 723 (N.D.1984)).

[¶ 15] "When a problem arises during a trial, the party affected must bring the irregularity to the court's attention and seek appropriate remedial action." State v. Wilson, 1999 ND 34, ¶ 14, 590 N.W.2d 202 (citing State v. Breding, 526 N.W.2d 465, 472 (N.D.1995)). "[W]hen defense counsel moves for a mistrial because of the prejudicial effect of the defect or occurrence, counsel must ordinarily ask the trial court to give the jury a cautionary instruction in order to properly preserve the...