State v. Manhattan

• Decision Date: 27 March 1990
• Docket Number: No. 890132,890132
• Citation: 453 N.W.2d 758
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jonathan MANHATTAN, a/k/a Jonathan Buckman, a/k/a Cornell Buckman, a/k/a Steve John, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 758

453 N.W.2d 758

STATE of North Dakota, Plaintiff and Appellee, v. Jonathan MANHATTAN, a/k/a Jonathan Buckman, a/k/a Cornell Buckman, a/k/a Steve John, Defendant and Appellant.

Crim. No. 890132.

Supreme Court of North Dakota.

March 27, 1990.

John Tainter Goff (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

Bruce D. Johnson (argued), Fargo, for defendant and appellant.

MESCHKE, Justice.

Jonathan Manhattan appealed from a conviction for breaking into a vehicle and taking personal property. We affirm.

On December 21, 1987, an automobile owned by Mary Johnson was broken into on the parking lot of a Fargo nightclub. The driver's side window was smashed and several items Mary had purchased that day were taken, including a bottle of Estee Lauder hand cream, two crystal coffee cups, men and women's cologne, and two pair of nylons. On that same evening, or early on December 22, a pickup owned by John Bower was also broken into while parked in downtown Fargo. Taken from it was a gift box of four coffees.

Bower, who owns the Red River Coffee Company, called the police on December 22, 1987, when Manhattan came to Bower's store to get a refund for the box of coffees that had been stolen the night before. With Manhattan's consent, the police searched his car and discovered a bottle of Estee Lauder hand cream and two crystal coffee cups. Manhattan was charged with two counts of breaking into a vehicle in violation of NDCC 12.1-22-04, both class C felonies. A jury found Manhattan innocent of breaking into Bower's vehicle and guilty of breaking into Johnson's vehicle. Manhattan was sentenced to five years in the State Penitentiary. Manhattan appealed.

Manhattan urged that his constitutional rights were violated because the State "deliberately denied Negroes as jurors." In this state, jury selection is carried out under The Uniform Jury Selection and Service Act, NDCC Ch. 27-09.1. NDCC 27-09.1-02 enjoins:

Discrimination prohibited. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, physical disability, or economic status.

The statute is neutral. Manhattan did not describe how the State "deliberately" discriminated against black persons in this jury selection. Manhattan has not persuaded us that his constitutional rights were violated in selecting a jury.

Manhattan argued that his constitutional rights were violated (1) because a witness, Diane Schroht, after testifying favorably to him, was arrested in the jury's presence on a charge of issuing a check without sufficient funds, and (2) because the foreman of the jury slept through the trial. There is no evidence in the record supporting either assertion. Manhattan made no objection on either issue to the trial court. An issue not raised below will not be reviewed by this court on appeal unless obvious error occurred. NDRCrimP 52(b); City of Bismarck v. Nassif, 449 N.W.2d 789 (N.D.1989). These issues do not indicate obvious error and we do not decide them.

Manhattan asserted that the trial court erred in conducting a certain proceeding during the trial in his absence. The trial took three days. On the morning of the second day, in the judge's chambers, a deputy sheriff asked the court to order Manhattan to wear a leg brace while out of his jail cell and attending the trial. Allegedly, Manhattan was agitated and uncooperative with officers. Manhattan was not present during this in-chamber proceeding. His attorney was present, and objected to the request for the leg brace. The trial court denied the deputy sheriff's request.

In State v. Iverson, 187 N.W.2d 1, 41 (N.D.1971), we concluded that although it was error to have excluded the defendant from in-chamber conferences, the defendant was not prejudiced by his absence from those conferences in which the court ruled in the defendant's favor on the subjects discussed. Supposing that Manhattan had a right to attend the in-chamber conference, we hold that he was not prejudiced by his absence because the trial court ruled in his favor on the leg brace subject.

Manhattan argued that there was insufficient evidence to prove his guilt beyond a reasonable doubt.

On appeal challenging the sufficiency of the evidence, [the defendant] must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.

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At the trial court level, circumstantial evidence must be conclusive and must...