State v. Lamb

• Decision Date: 05 January 1996
• Docket Number: Cr. N
• Citation: State v. Lamb, 541 N.W.2d 457 (N.D. 1996)
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Donald P. LAMB, Defendant and Appellant. o. 950105.
• Court: North Dakota Supreme Court

Page 457

541 N.W.2d 457

STATE of North Dakota, Plaintiff and Appellee, v. Donald P. LAMB, Defendant and Appellant.

Cr. No. 950105.

Supreme Court of North Dakota.

Jan. 5, 1996.

David T. Jones (appearance), Assistant State's Attorney, Grand Forks, for plaintiff and appellee. Argued by Faye Jasmer, third year law student.

Thomas K. Schoppert, Schoppert Law Firm, Minot, for defendant and appellant.

VANDE WALLE, Chief Justice.

Donald Lamb appealed from a judgment of conviction entered upon a jury verdict finding him guilty of driving while under the influence of intoxicating liquor. Because we find prejudicial error in the trial court's failure to read its instructions to the jury, we reverse and remand for further proceedings.

On December 10, 1994, North Dakota Highway Patrolman Craig Klosterman stopped Lamb for speeding. Klosterman observed indicia of intoxication and asked Lamb to perform several field sobriety tests, which he failed. An Intoxilyzer test disclosed that Lamb had an alcohol concentration of .14 percent, and Lamb was charged with driving while under the influence of intoxicating liquor.

In January 1995, the North Dakota Department of Transportation suspended Lamb's drivers license. ¹ Lamb thereafter moved to dismiss this criminal proceeding, contending it violated the double jeopardy provisions of the state and federal constitutions. The trial court denied Lamb's motion. During a jury trial, the State introduced the result of Lamb's Intoxilyzer test and also asked Klosterman if Lamb had requested an alternative blood-alcohol test. When the case was submitted to the jury, the trial court, over Lamb's objection, refused to read the final instructions to the jury, and, instead, directed the jury foreperson to read them "verbatim and completely" to the jury during deliberations. The jury found Lamb guilty of driving while under the influence.

Lamb contends the trial court's procedure for instructing the jury violated N.D.R.Crim.P. 30, because subsection (b) requires the court to "read" written instructions to the jury. The State asserts the trial court's procedure complied with N.D.R.Crim.P. 30, because subsection (a) only requires the court to "instruct" the jury and "instruct" is not synonymous with "read." The State argues that a trial court has discretion under N.D.R.Crim.P. 30 to either read the instructions to the jury, or to orally direct the jury to read the instructions during deliberations.

Rule 30, N.D.R.Crim.P., provides, in part:

"(a) Instructions to Jury; Written or Oral. The court shall instruct the jury after the arguments of counsel to the jury are concluded. The court shall instruct the jury only as to the law of the case. The instructions shall be reduced to writing unless the parties otherwise agree. If written instructions are given they shall be signed by the judge and shall be taken by the jurors in their retirement. When oral instructions are given, they must not be taken by the jurors in retirement unless, after they have been transcribed, it is so ordered by the court. All instructions taken by the jurors in retirement shall be returned into court with their verdict.

"(b) Requested Instructions. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court may require that each instruction be written on a separate sheet, provided that North Dakota pattern jury instructions may be requested by reference to instruction number only. The court shall inform counsel in writing of its action upon requested instructions prior to their argument to the jury. All instructions given by the court to the jurors must be read or given to them orally by the court without disclosing whether the instructions were requested."

In interpreting our rules of court, we apply principles of statutory construction to ascertain intent. ² State v. Schroeder, 524 N.W.2d 837 (N.D.1994); Walker v. Schneider, 477 N.W.2d 167 (N.D.1991). In ascertaining intent, we look first to the language of the rule. Schroeder, supra. Words in a rule are construed in accordance with their plain, ordinary, and commonly understood meaning. Id. We construe rules as a whole to give meaning to each word and phrase, if possible. Id.

When N.D.R.Crim.P. 30 is read as a whole, we believe it requires that, except when the parties agree to oral instructions by the court, final jury instructions must be in written form and must be read by the court to the jury. We decline to construe the general term "instruct" to allow a court to submit written instructions to a jury without the court reading those instructions to the jury.

Other courts have construed "instruct" to require a trial court to orally read written instructions to the jury. People of the Territory of Guam v. Marquez, 963 F.2d 1311 (9th Cir.1992); United States v. Noble, 155 F.2d 315 (3rd Cir.1946); State v. Iosefa, 77 Hawai'i 177, 880 P.2d 1224 (Haw.Ct.App.1994); Purdy v. Indiana, 267 Ind. 282, 369 N.E.2d 633 (1977); State v. Norris, 10 Kan.App.2d 397, 699 P.2d 585 (1985); State v. Lindsey, 245 N.J.Super. 466, 586 A.2d 269 (1991); see 2 Wright, Federal Practice and Procedure: Criminal 2d Sec. 483 (1982); 75A Am.Jur.2d, Trial Sec. 1156 (1991).

In Noble, supra, the Third Circuit Court of Appeals held that a trial court committed reversible error in submitting only a criminal information to the jury without also instructing the jury about the essential elements of the alleged crime. In analyzing the trial court's failure to read any instructions to the jury, the appellate court explained:

"[W]e think that even if the information had contained a full recital of all the applicable legal principles the trial judge would not have fulfilled his duty in this regard merely by sending the information out with the jury to read if they chose to do so, during their deliberations. For not only are counsel and the defendant entitled to hear the instructions in order that they may, if they are incorrect, object to them and secure their prompt correction by the trial judge, but it is equally important to make as certain as may be that each member of the jury has actually received the instructions. It is therefore essential that all instructions to the jury be given by the trial judge orally in the presence of counsel and the defendant."

Noble, supra, 155 F.2d at 318.

In Norris, supra, the Kansas Court of Appeals held that a trial court committed reversible error in delivering written instructions to the jury without first reading those instructions to the jury. The court of appeals explained:

"[W]e too conclude that oral instruction is vital to the fulfillment of the court's duty to instruct the jury. Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that each member of the jury has actually received all of the instructions. If, for example, written copies of the instructions are given to each juror, a divergence in literacy and reading comprehension may well leave some jurors uninstructed. On the other hand, if the foreman is directed to read the instructions to the other jurors, defendant is deprived of the opportunity to witness the manner in which the foreman intones the instructions. A judge is obligated to act in an impartial and unbiased manner in delivering instructions. He may not sneeringly describe the defendant's defense or make editorial comments while reading the instructions. A jury foreman is under no such constraint once the case has been submitted."

Norris, supra, 699 P.2d at 588.

That rationale is consistent with the purpose of N.D.C.C. Sec. 29-22-05, which provides that, after a case has been submitted to the jury, all communications on points of law must be given in the presence of the defendant or the defendant's counsel. See State v. Ash, 526 N.W.2d 473 (N.D.1995); State v. Zimmerman, 524 N.W.2d 111 (N.D.1994); State v. Smuda, 419 N.W.2d 166 (N.D.1988). See also N.D.R.Crim.P. 43(a) [requiring defendant to "be present ... at every stage of the trial."]. ³

Our interpretation is supported by our decision in State v. Haugen, 384 N.W.2d 651 (N.D.1986). In Haugen, we disapproved a procedure in which the prosecutor, rather than a magistrate, read the defendant an explanation of rights, including the right to a jury trial. In holding that the record did not establish that the defendant's waiver of his right to a jury trial was voluntary, knowing, and intelligent, we explained:

"Another troubling aspect of the procedure employed below is the advisement of rights by the prosecutor instead of the court. Rule 5 of the Rules of Criminal Procedure states that the magistrate shall inform the defendant of his rights. The goals of expediency and efficient administration of justice are important and properly justify streamlining court procedures. But these goals cannot displace fundamental rights which are guaranteed by our Constitution, laws, and procedural rules. Although written forms that explain an individual's rights may be used to expedite the process, Rule 5 requires that the magistrate act as the conduit to the distribution and explanation of the rights. Use of adversarial counsel for this purpose is inappropriate because our rules envision communication and explanation of these important rights by the magistrate, who functions as a neutral and detached person. The magistrate's personal attendance to this function also allows the judge to observe any signs of confusion and answer any questions posed by the defendants. The judge stands as a symbol of fairness and justice to those appearing before him; persons who are unlearned in the law may not perceive the prosecutor, even while performing a nonadversarial function, as an officer of the court obligated with the same concern for justice and...