State v. McLain, Cr. N

• Decision Date: 23 January 1981
• Docket Number: Cr. N
• Citation: 301 N.W.2d 616
• Parties: STATE of North Dakota, Plaintiff/Appellee, v. Steven McLAIN, Defendant/Appellant. o. 730.
• Court: North Dakota Supreme Court

Page 616

301 N.W.2d 616

STATE of North Dakota, Plaintiff/Appellee, v. Steven McLAIN, Defendant/Appellant.

Cr. No. 730.

Supreme Court of North Dakota.

Jan. 23, 1981. ^**

Robert W. Palda, Minot, and Mills & Moore, Bismarck, for defendant/appellant; argued by William R. Mills, Bismarck.

Tom P. Slorby, State's Atty., Minot, for plaintiff/appellee.

PAULSON, Justice.

Steven Loren McLain appeals from a judgment of conviction entered against him by the District Court of Ward County on June 18, 1980. A 12-member jury convicted McLain of the crime of gross sexual imposition under § 12.1-20-03(1) (a) of the North Dakota Century Code. We affirm the judgment of conviction entered by the district court.

On November 13, 1979, the complainant herein, her sister, and two friends, members of a women's bowling team, went bowling at the Chateau Lanes in Minot. After the complainant had finished bowling, she and her teammates played card games and drank several alcoholic beverages at the Alley Cat, a lounge located in the Chateau Lanes. The parties remained in the lounge until 11:15 p. m. when the complainant and one of her friends left the Alley Cat in order to start and warm up their cars. McLain had arrived at the Alley Cat to meet some of his friends after he had finished work. He also left the building in order to start his car and to warm it up. The complainant's car was parked directly outside the door of the building and as she entered her car McLain approached her and asked her for a ride to his home and asked her if she would like to have breakfast with him. The complainant refused his requests and went back into the building. McLain also reentered the building and purchased an alcoholic beverage for the complainant and himself; both parties engaged in conversation and consumed their drinks while seated at the horseshoe-shaped table located in the Alley Cat. The complainant purchased some beer and, after she left the Alley Cat again, she attempted to leave the parking lot in order to meet her husband who was driving home from work late that evening. Before the complainant could close the door on her car, McLain again asked her whether she would go out to breakfast with him or would give him a ride home. When the complainant refused his requests, McLain forcibly entered her car and grabbed her by the throat. He proceeded to drive to his car which was located about 120 feet from the building. McLain forced the complainant to enter his car and he then drove west of Minot on U.S. Highway 2. McLain told the complainant to undress. She observed a sign reading "Welcome to Berthold" and at that point McLain drove onto a gravel road for about four miles before stopping. McLain then forced the complainant to submit to sexual intercourse and fellatio, after which he drove his car down the road for a brief distance and stopped.

The complainant then requested that McLain release her. He refused to release her and stated, "Well, it's not going to do you any good to go report this anyway ... I have done this before and gotten away with it". McLain indicated to the complainant that he had raped another woman. When he left his car for a brief time, the complainant attempted to lock the car doors and to start the car in order to escape. However, McLain was able to reenter his car and he started to strangle the complainant and, in the process, tore her bowling shirt. McLain put on a pair of work gloves and said, "Now you are six feet under. I've got a grave all picked out for you already". He proceeded to drive down the road and stopped a third time. At this point McLain again forced the complainant to submit to sexual intercourse and fellatio. McLain drove back to Minot at 5 a. m. on November 14. At that time two patrol cars of the Minot Police Department were parked at the entrance of the Chateau Lanes parking lot and McLain drove south on U.S. Highway 83 for a brief period before leaving the complainant at her car at 5:30 a. m. The complainant's sister drove up to McLain's car just as McLain was leaving the parking lot. She and the complainant's husband had been searching for the complainant since 3 a. m. on November 14. They had found complainant's car unlocked and a package of beer and her purse were in the car. Her husband then notified the police that his wife was missing. The complainant was taken home and, at 6 a. m., she gave a written account of the events to the Minot Police Department. She was then taken to Trinity Hospital in Minot at 7 a. m. on November 14. At 1:30 p. m. on November 14, complainant was asked to identify her assailant from a group of pictures depicting male subjects, and she identified McLain's picture. Pictures of the bruises and marks on complainant's neck were taken at 4 p. m. on November 14.

On November 15, 1979, Detective Sergeant Don Schneider of the Minot Police Department filed a complaint with the District Court of Ward County which charged McLain with committing the offense of gross sexual imposition. A warrant for McLain's arrest was issued and McLain was arrested on November 16, 1979. On November 16 and on November 28, 1979, the Minot Daily News printed articles which referred to a prior charge of gross sexual imposition lodged against McLain which had been dropped and the testimony of complainant at the preliminary hearing where she stated that McLain told her, "I have done this before and gotten away with it". McLain consented to the search of his car and items of clothing which contained blood stains were found in his car. The preliminary hearing was held on November 27, 1979, and the arraignment was held on December 6, 1979. During voir dire, a prospective juror was questioned and McLain asserted a challenge for cause. McLain's challenge for cause was denied. At various points in the proceedings McLain had difficulty hearing and understanding the questions posed to him by the state's attorney, the defense attorney, and the court. After the defense finished presenting evidence, the State sought to present rebuttal testimony and called as a witness the woman who allegedly was the victim of McLain on a charge similar to gross sexual imposition. McLain was not convicted on this prior charge and the charge was dropped due to insufficient evidence. The witness did not testify because the court determined that the law of evidence did not permit the State to impeach McLain by the testimony of a rebuttal witness who filed a complaint against McLain on a prior occasion. During their deliberations, the jury sent a note to the court which requested that a copy of McLain's testimony be presented to them. The court denied the request and sent to the jury a note which stated:

"Your request for the Defendant's testimony must be denied. All the Jury may have with them in the jury room are the instructions and exhibits. You must rely on your recollection and memory. It is one of the duties of a Jury."

McLain's testimony directly contradicted the testimony given by the complainant on several factual issues. McLain testified that he left the Alley Cat to start his car and met the complainant when he was reentering the building. McLain asked the complainant if she would have breakfast with him. Both McLain and the complainant entered the Alley Cat together and he bought her a drink. McLain testified that the complainant and other witnesses did not testify truthfully on several factual issues. First, McLain contends that the acts of sexual intercourse and fellatio were voluntarily engaged in by the complainant. McLain contends that only one act of intercourse occurred. He denied saying, "I have done this before and gotten away with it". McLain also denied the complainant's assertion that he attempted to strangle her when she attempted to lock the doors on his car and to start the car. McLain could not explain how the complainant received the bruises on her neck. Similarly, several witnesses for the State testified that McLain and the complainant did not reenter the Alley Cat together. McLain presents the following issues for our consideration:

1. Whether or not the district court's refusal to accept McLain's challenge for cause of a juror constituted prejudicial error.

2. Whether or not McLain was prevented from having a fair trial.

I

The first issue concerns whether or not the district court's refusal to accept McLain's challenge for cause of a juror constituted prejudicial error. The Sixth Amendment to the United States Constitution as applicable to the States through the Fourteenth Amendment guarantees to an accused the right to a trial by an impartial jury. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The Sixth Amendment prescribes no specific test for determining the impartiality of the jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Rule 24(b)(2) of the North Dakota Rules of Criminal Procedure, provides as follows:

"RULE 24 TRIAL JURORS

"(a) Examination of jurors. The court shall permit the defendant or his attorney and the prosecuting attorney to participate in the examination of prospective jurors.

"(b) Challenges.

"(1) ...

"(2) Challenges for cause. If the judge, after examination of any juror by himself or either side, is of the opinion that grounds for challenge for cause are present, the judge should excuse that juror from the trial of the case. If the judge does not excuse that juror, any party may challenge the juror for cause. A challenge to an individual juror should be made before he is sworn to try the case, but the judge may permit it to be made after he is sworn but before jeopardy has attached.

The term "challenge for cause" embodies two concepts: technically, a juror failing to meet the statutory qualifications for jurors is subject to challenge for cause, while the second concept would encompass an actual or implied bias. McLain makes no distinction in this regard and § 29-17-35, N.D.C.C., contains both of these...