State v. McIntyre

• Decision Date: 26 June 1992
• Docket Number: Cr. N
• Citation: 488 N.W.2d 612
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Richard Eugene McINTYRE, Jr., Defendant and Appellant. o. 910255.
• Court: North Dakota Supreme Court

Page 612

488 N.W.2d 612

STATE of North Dakota, Plaintiff and Appellee, v. Richard Eugene McINTYRE, Jr., Defendant and Appellant.

Cr. No. 910255.

Supreme Court of North Dakota.

June 26, 1992.

Bruce B. Haskell (argued), Asst. State's Atty., Bismarck, for plaintiff and appellee.

Michael Ray Hoffman (argued), Bismarck, for defendant and appellant.

LEVINE, Justice.

Richard Eugene McIntyre, Jr., appeals from a criminal conviction of simple assault. We reverse and remand for a new trial.

Bismarck Police Officer, Kenan Kaizer, observed McIntyre drinking from a beer bottle when McIntyre got out of the driver's side of his vehicle after parking it at a local Mini Mart. Officer Kaizer immediately checked and determined that McIntyre's driver's license had been suspended. When McIntyre drove his vehicle from the Mini Mart, Officer Kaizer followed and then stopped the vehicle. Kaizer attempted to arrest McIntyre for driving with a suspended license, and a scuffle ensued. There was conflicting testimony about the exact circumstances of the altercation, but it is undisputed that McIntyre struck Officer Kaizer in the face.

McIntyre was subsequently charged with simple assault, a class C felony, for willfully injuring a peace officer. At his criminal trial, McIntyre raised the defenses of legal excuse and self defense. The jury returned a guilty verdict and McIntyre appealed from the judgment entered upon that verdict.

McIntyre asserts on appeal that the instructions on self defense and excuse erroneously misled the jury into believing that he had the burden of proving those defenses. We have underscored the language challenged by McIntyre in the instructions to the jury:

"BURDEN OF PROOF

"(SELF-DEFENSE)

"Evidence has been presented that the defendant acted in self-defense. You must determine whether the defendant has presented sufficient evidence to give rise to a reasonable doubt as to whether he was entitled to defend himself. If you decide there is sufficient evidence to give rise to a reasonable doubt, the State must prove beyond a reasonable doubt, as an element of the offense charged, that the defendant did not act in self-defense. If the State has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, the defendant is entitled to a verdict of not guilty."

"BURDEN OF PROOF

"(EXCUSE)

"Evidence has been presented that the defendant's conduct was excused. You must determine if the defendant presented sufficient evidence to give rise to a reasonable doubt that he was entitled to defend himself if the facts had been as the defendant believed them to be. If you so find, the State must prove beyond a reasonable doubt, as an element of the offense charged, that the defendant's conduct was not excused. If the State has failed to prove beyond a reasonable doubt that the defendant's conduct was not excused, the defendant is entitled to a verdict of not guilty."

Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. Mounts, 484 N.W.2d 843 (N.D.1992); State v. Marinucci, 321 N.W.2d 462 (N.D.1982). In determining whether a jury instruction is misleading, the instruction must be considered as a whole, and if, when so considered, the instruction correctly advises the jury as to the law, it is sufficient even if part of it standing alone may be insufficient. City of Dickinson v. Gresz, 450 N.W.2d 216 (N.D.1989). If a jury instruction, when read as a whole, is erroneous, relates to a central subject of the case, and affects the substantial rights of the accused, it is ground for reversal. State v. Haugen, 458 N.W.2d 288 (N.D.1990).

Under Section 12.1-01-03, N.D.C.C., the State must prove beyond a reasonable doubt each element of the charged offense, which includes proof of "the nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue." A defendant is entitled to a jury instruction on a legal defense if there is evidence to support it. State v. Thiel, 411 N.W.2d 66 (N.D.1987). A defense is raised when there is evidence in the case "sufficient to raise a reasonable doubt on the issue," and it is error if the trial court refuses to instruct on an issue that has been adequately raised. Id., at 67.

United States v. Jackson, 587 F.2d 852 (6th Cir.1978), is persuasive authority that the court, not the jury, has the responsibility to initially determine whether an issue has been adequately raised. Defendant Jackson was tried and convicted of willfully assaulting a federal officer. He raised the defense of insanity at his trial. The instruction included the following objectionable language:

"If you believe, however, that that evidence does raise in your mind a reasonable doubt as to sanity, then the burden switches over to the United States and then it becomes the burden of the United States to prove to you that the Defendant in fact was sane within the definition of the law...." 587 F.2d at 853.

The Sixth Circuit Court of Appeals explained why this language constituted plain and reversible error:

"This instruction effectively required the jury to determine when insanity is in issue. This decision was for the District Court, not for the jury.

* * * * * *

"The instructions required the defendant to prove initially the insanity defense to the jury sufficient to raise a reasonable doubt, a burden he is not required to bear." 587 F.2d at 854.

The jury instructions in this case contain the same infirmity as the erroneous instructions in Jackson, supra.

The instructions given by the court advised the jury that it had the responsibility to determine if McIntyre had presented sufficient evidence to give rise to a reasonable doubt on the issues of excuse and self defense. The instructions also, in effect, advised the jury that only if McIntyre met this burden, did the State then have a duty to negate the defenses by proof beyond a reasonable doubt. The instructions are erroneous, because the trial court, not the jury, had the responsibility to initially determine whether there was sufficient evidence to raise the issues of self defense and excuse. Jackson, supra, 587 F.2d at 852; see also Thiel, supra; cf. State v. Zummach, 467 N.W.2d 745 (N.D.1991); State v. Vogel, 467 N.W.2d 86 (N.D.1991). If the court concluded that there was sufficient evidence to create a reasonable doubt, then McIntyre was entitled to a jury instruction on those defenses without the objectionable language. By instructing the jury that it had a responsibility to determine if the defendant had presented sufficient evidence to give rise to a reasonable doubt, the court may have confused and misled the jury into believing that McIntyre carried the burden of proving self defense and excuse by proof beyond a reasonable doubt. The instructions should have merely stated that there was evidence of self defense and excuse and that the State had a duty to negate those defenses by proof beyond a reasonable doubt. ¹

We conclude that the instructions on self defense and excuse did not, when read as a whole, correctly advise the jury about the law. These erroneous instructions are ground for reversal, because they relate to defenses central to the case and affect McIntyre's right to have the State carry the burden of proof to negate these defenses by proof beyond a reasonable doubt.

McIntyre also asserts on appeal that the trial court erred in refusing to allow cross-examination of Officer Kaizer about using excessive force in arresting another person, who has now filed a pending lawsuit against Kaizer for using excessive force. We address this issue, because it may arise upon retrial. McIntyre's attorney attempted to demonstrate that Kaizer had a character trait of using excessive force and that, in response to Kaizer's use of excessive force, McIntyre acted in self defense when he struck Kaizer. The State objected to cross-examination about the prior incident, asserting that there had been no decision about that case and that the allegation of excessive force was simply "floating around without anything else to back it up." The trial court agreed, referring to the incident as "claimed misconduct taken out of the blue" and "unfounded allegations which are not proved in court."

"Evidence of a pertinent trait of character of the victim of the crime offered by an accused" is admissible as an exception to the general rule that evidence of a person's character is not admissible. Rule 404(a)(2), N.D.R.Ev. The courts have generally interpreted this rule as allowing a defendant charged with assault or homicide, who has raised the issue of self defense, to introduce evidence of the victim's violent or aggressive character. See, e.g., United States v. Greschner, 647 F.2d 740 (7th Cir.1981); Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975); see also Annotation, Admissibility Of Evidence As To Other's Character Or Reputation For Turbulence On Question Of Self-Defense By One Charged With Assault Or Homicide, 1 A.L.R.3d 571 (1965). The relevancy of this type of evidence is recognized in 1 Jones on Evidence Sec. 4:40, at 462 (6th ed. 1972):

"In a civil action for assault and battery evidence of reputation and character of the parties for peace and quiet is competent, not to establish guilt or innocence, but to resolve the question as to which was the aggressor where that is disputed and defendant pleads self defense.

"The rule is the same in criminal actions. The reputation or character of the victim in the assault case or the deceased in the homicide case is not directly in issue and consequently evidence thereof is not relevant except that on the question of self defense, or who was the aggressor, such evidence has circumstantial value and will be received."

In State v. Lende, 190 N.W.2d 52 (N.D.1971), this court held that a defendant charged with assault can introduce evidence of the ...