State v. Manke, Cr. N
| Decision Date | 30 December 1982 |
| Docket Number | Cr. N |
| Citation | 328 N.W.2d 799 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Byron MANKE, Defendant and Appellant. o. 848. |
| Court | North Dakota Supreme Court |
Owen K. Mehrer, State's Atty., Dickinson, for plaintiff and appellee State of N.D.
Eugene F. Buresh, of Freed, Dynes, Reichert & Buresh, Dickinson, for defendant and appellant.
Byron Manke was tried by a Stark County district court jury and found guilty of committing the crime of gross sexual imposition in Violation of Section 12.1-20-03(1)(a) and (d) of the North Dakota Century Code. The district court entered a judgment of conviction from which the defendant, Manke, now appeals. We affirm.
On June 16, 1981, "Betty," a pseudonym, then 13 years old, complained to the Dickinson police that earlier in the day she had been forced by Byron Manke to engage in anal, oral, and vaginal intercourse with him in his apartment. Prior to making the complaint and soon after the alleged rape had occurred, Betty telephoned a friend who worked at a hospital in Dickinson to tell her what had happened. Betty's friend brought her to the emergency room of the hospital, notified the police, and then contacted a physician to examine Betty.
The examination was of a type routinely performed in cases involving persons who have complained of being raped. In this case, the examination produced, among other things, swabs taken from the vagina, the anus, and the mouth, plus hair samples taken from the scalp and the pubic area, all of which were sealed in containers and given to a police officer. These items, which are collectively referred to as a "rape kit," were then sent to the State Laboratories Department for analysis.
In the course of their investigation, the police on June 23, 1981, obtained a warrant to search Manke's apartment for evidence of the rape. The search was conducted the following day and yielded one pillow case and two bed sheets which also were sent to the State Laboratories Department for analysis.
The police continued the investigation, and on December 3, 1981, Manke was formally charged with having committed the crime of gross sexual imposition.
Following his trial and conviction, Manke appealed to this court, presenting four issues for our consideration.
The trial judge in preparation for Manke's trial ordered the State's Attorney to endorse upon the criminal information the names of the witnesses he intended to call to testify at the trial. See Rule 7(g), N.D.R.Crim.P. The State failed, within the time limits prescribed by the court, to endorse the name of Aaron Rash, a chemist with the State Laboratories Department, who performed the analysis of the items the laboratory had received from the Dickinson police department in connection with Betty's case. For its failure, the State was refused permission to endorse Rash as an additional witness.
Since it could not call Rash as a witness, the State sought to introduce a laboratory report prepared by Rash which gave the results of the examination and analysis of the items. The court decided, over the objection of defense counsel, to receive the laboratory report in evidence under Rule 803(8), N.D.R.Ev., but only on condition that Rash be made available at trial for cross-examination by the defendant.
Manke's first argument is that the trial court erred in deciding to admit the laboratory report in evidence because the laboratory report is hearsay and does not come within the exception to the hearsay rule set forth in Rule 803(8), N.D.R.Ev.
Technically, the laboratory report prepared by Aaron Rash is hearsay. Rule 801(c), N.D.R.Ev., defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The laboratory report contained statements [see Rule 801(a), N.D.R.Ev.] which were not testified to by Rash at the trial, and which were offered to show that the findings which they represented were true. It should be pointed out that the traditional reason given for the hearsay rule is the lack of opportunity to cross-examine the hearsay declarant. 5 Wigmore, Evidence Secs. 1362, 1371; Explanatory Note, N.D.R.Ev. Sec. 803.
We believe that a thorough understanding of the reasons for and the purposes intended to be accomplished by the adoption of Rule 803(8), N.D.R.Ev., in its present form confirms the trial court's decision to receive the laboratory report in evidence. 1
We further observe that the requirements in the rule that the report contain "factual findings" which are the result of an "investigation" and that the proponent of the factual findings furnish a copy of them to the party against whom they will be offered "sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to prepare to meet them" are also satisfied in this case. The results of scientific testing have specifically been held to constitute "factual findings resulting from an investigation." United States v. Oates, 560 F.2d 45 (2d Cir.1977). An examination of the trial record reveals the uncontradicted statement of the State's Attorney at the offer of proof was that the laboratory report was provided to defense counsel well in advance of trial.
We begin our determination of the proper application of Rule 803(8), N.D.R.Ev., to the facts of this case with a brief discussion of the relation between principles for construing statutes and principles for construing rules of court. Although rules of court, such as the North Dakota Rules of evidence, are not legislative enactments, they should be treated as legislative enactments to the extent that they should be interpreted in accordance with principles of statutory construction. 2 See, e.g., Disciplinary Board of the Supreme Court v. O'Neil, 326 N.W.2d 879 (N.D.1982); State v. McIntyre, 92 Wash.2d 620, 600 P.2d 1009 (1979); State v. Windmiller, 579 S.W.2d 730 (Mo.App.1979). Accordingly, rules of court should be interpreted with a view toward effectuating their intent and in light of the purposes which prompted their adoption. See Barnes Cty. Ed. Assn. v. Barnes Cty. Sp. Ed., 276 N.W.2d 247 (N.D.1979); Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870 (N.D.1975). And the way we determine their intent is the same as the way we determine legislative intent: namely, by examining the language and scope of the rule, its history, and by considering its purpose. R.B.J. Apts., Inc. v. Gate City S. & L. Assn., 315 N.W.2d 284 (N.D.1982).
Rule 803, N.D.R.Ev., in relevant part states:
Although the letter of the rule does not explicitly permit, and may even exclude by implication, the introduction in evidence of evaluative reports 3 against the defendant in a criminal case, we are firmly convinced by a reading of the history and expressed purpose of the rule that to hold that Rule 803(8), N.D.R.Ev., does not permit the introduction in evidence of the laboratory report against Manke where the author of the report is present in the courtroom and subject to cross-examination would thwart the true purpose of the rule.
The North Dakota Rules of Evidence were patterned largely after the Federal Rules of Evidence (F.R.Evid.). The portion of Rule 803(8) reproduced above is identical with its Federal counterpart, Rule 803(8)(C). 4 Because that part of Rule 803(8) under discussion is a verbatim adoption of Rule 803(8)(C) [see Explanatory Note, Rule 803, N.D.R.Ev.], we look at the legislative history of Rule 803(8)(C) to acquire an understanding of the objectives the draftsmen intended to achieve through its adoption. Furthermore, in accordance with well-recognized decisions of this court, we also consider Federal cases which interpret and construe Rule 803(8), F.R.Evid., to aid in deciding how to apply our Rule 803(8) in this case. Marmon v. Hodny, 287 N.W.2d 470 (N.D.1980); Burlington Northern v. N.D. Dist. Court, Etc., 264 N.W.2d 453 (N.D.1978); State v. Hamann, 262 N.W.2d 495 (N.D.1978); State v. Storbakken, 246 N.W.2d 78 (N.D.1976); State v. Holy Bull, 238 N.W.2d 52 (N.D.1975).
The justification generally given for the "public records" exception to the hearsay rule is "the assumption that a public official will perform his duty properly." Notes of the Advisory Committee on Proposed Rules (hereinafter "Advisory Committee's Notes"), Rule 803(8), F.R.Evid. In the context of Rule 803(8)(C), 5 this translates into an assumption that a public official who makes an investigation pursuant to authority granted by law will properly conduct the investigation and correctly report the factual findings which are a result of the investigation.
Reports which qualify under this exception to the hearsay rule are not...
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...also observe that the Federal courts' interpretation of Rule 606(b), which we employ as an aid in applying our similar rule [State v. Manke, 328 N.W.2d 799 (N.D.1982) ], conform to our own view that juror affidavits should not be used to impeach a verdict, even where it is alleged that a ju......
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