State v. Olander

Decision Date05 March 1998
Docket NumberNo. 970273,970273
Citation1998 ND 50,575 N.W.2d 658
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Brian OLANDER, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

John J. Mahoney (argued), State's Attorney, Center, for plaintiff and appellee.

Nancy Hollander (argued), of Freedman, Boyd, Daniels, Hollander, Guttman & Goldberg, P.C., Albuquerque, NM, and Thomas M. Tuntland (appearance), Mandan, for defendant and appellant.

MESCHKE, Justice.

¶1 Brian Olander appealed a jury conviction finding him guilty of manslaughter for the death of Nick Bullinger. We hold the trial court's failure to instruct the jury that the State had the burden of proving beyond a reasonable doubt Olander did not act in self-defense was obvious error. We reverse and remand for a new trial.

¶2 Olander and Bullinger owned adjoining tracts of land in Oliver County for several years, but boundary disputes created antagonism between them. Near 9 p.m. on August 16, 1996, Olander and Bullinger met while driving opposite directions on a rural road in Oliver County. Bullinger was accompanied by his wife, Carol. Olander was alone.

¶3 According to Olander, Bullinger made an obscene gesture while passing him, and they both stopped their vehicles and exchanged words. Olander testified the confrontation escalated into a fight when Bullinger punched him and held him in a "choke position." According to Olander, he was losing consciousness from the choke hold when he heard Carol scream she was "going to get something to stop this." Olander testified he then felt a release on the choke hold, and he hit Bullinger but did not remember choking him. Olander testified he left the scene as another vehicle approached.

¶4 According to Carol, Olander and Bullinger initially exchanged words from their vehicles. Carol testified Olander walked over to the Bullinger vehicle and told her he "would expect better things from your husband than this." According to Carol, the two men continued to exchange words until Olander said, "well, we can settle it right here," and Bullinger got out of his vehicle. Carol testified she remained in the passenger seat of the Bullingers' vehicle, and she saw punches exchanged but did not see who threw the first punch. She testified she got out of their vehicle and saw Olander choking Bullinger. According to Carol, she unsuccessfully tried to pull Olander off of her husband. Carol also testified Olander left the scene as another vehicle approached.

¶5 Bullinger suffered a heart condition and had had open-heart surgery in 1994. He died from the fight with Olander. Bullinger's death certificate listed strangulation as the primary cause of death and heart disease as a significant contributing factor.

¶6 The State charged Olander with murder under NDCC 12.1-16-01(1)(b) for willfully causing the death of Bullinger under circumstances manifesting extreme indifference to the value of human life. The trial court instructed the jury on the elements of murder, manslaughter, negligent homicide, self-defense, and excuse, but did not identify nonexistence of self-defense as an essential element of murder, manslaughter, or negligent homicide. The court also instructed the jury the State must prove the essential elements of each charge beyond a reasonable doubt, but the court did not specifically instruct the jury that the State was required to prove beyond a reasonable doubt Olander did not act in self-defense. A jury convicted Olander of manslaughter, and he appealed.

¶7 Olander argues that, once the trial court decided the evidence warranted a self-defense instruction, the court erred in not instructing the jury the State had the burden of proving beyond a reasonable doubt he did not act in self-defense.

¶8 We begin by considering whether Olander preserved this issue for review. Before trial, Olander submitted to the court a written list of requested jury instructions, including NDJI--Criminal 2030. 1 He also submitted a brief with an attached copy of our decision in State v. McIntyre, 488 N.W.2d 612 (N.D.1992), that he argues requires an instruction on the State's burden of proving beyond a reasonable doubt he did not act in self-defense. After receiving a copy of the court's proposed closing instructions, however, Olander did not object at a charging conference on jury instructions to the court's failure to instruct the jury on the State's burden of proving lack of self-defense. Olander nevertheless argues he adequately preserved this issue for review by requesting NDJI--Criminal 2030 and filing a pretrial brief with an attached copy of McIntyre. We disagree.

¶9 N.D.R.Crim.P. 30 describes the procedure for requesting and objecting to jury instructions. 2 Under N.D.R.Crim.P. 30(c), if the court gives counsel an opportunity to object to proposed instructions, counsel must designate the omissions of instructions that are objectionable and thereafter only the omissions so designated are deemed excepted to by counsel.

¶10 To illustrate, in State v. McNair, 491 N.W.2d 397, 399 (N.D.1992), the accused submitted to the trial court a requested instruction on the elements of attempted escape. The court did not give the requested instruction and, when given an opportunity, the accused did not object under N.D.R.Crim.P. 30(c) to the court's instruction on the elements of the offense. On appeal in McNair, 491 N.W.2d at 399, we limited our review of the court's failure to give the requested instruction to obvious error:

An attorney's failure to object at trial to instructions, when given the opportunity, operates as a waiver of the right to complain on appeal of instructions that either were or were not given. State v. Johnson, 379 N.W.2d 291, 292 (N.D.), cert. denied, 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 337 (1986); Rule 30(c), N.D.R.Crim.P. To preserve a challenge to a jury instruction, an attorney must except specifically to the contested instruction, regardless of whether the attorney proposed another instruction on the same issue. See Andrews v. O'Hearn, 387 N.W.2d 716, 728 (N.D.1986), and Matter of Estate of Honerud, 294 N.W.2d 619, 622 (N.D.1980), construing Rule 51(c), N.D.R.Civ.P., which is identical to Rule 30(c), N.D.R.Crim.P.

Under N.D.R.Crim.P. 30, to preserve an appellate challenge to a jury instruction, a party must specifically object to a trial court's proposed instruction when the court asks for exceptions to be made. 3

¶11 Here, Olander submitted a list of proposed instructions, including NDJI--Criminal 2030, and a pretrial brief with an attached copy of McIntyre. Olander's brief, however, cited McIntyre for the admissibility of evidence of a victim's character, and his brief did not specifically address the State's burden of proving beyond a reasonable doubt Olander did not act in self-defense. See State v. Mehralian, 301 N.W.2d 409, 416 (N.D.1981) (to preserve it for appeal, an issue must be raised in trial court so court can intelligently rule on it). More importantly, however, when the trial court asked for exceptions to its proposed instructions during a charging conference, Olander did not object to the court's failure to instruct the jury that the State had the burden of proving beyond a reasonable doubt he did not act in self-defense. We hold Olander failed to adequately preserve this issue for review under N.D.R.Crim.P. 30(c), and our inquiry is therefore limited under N.D.R.Crim.P. 52(b) to whether the court's failure to instruct the jury on this issue was obvious error affecting substantial rights. 4

¶12 We exercise our power to notice obvious error cautiously and only in exceptional circumstances where the accused has suffered serious injustice. State v. Keller, 550 N.W.2d 411, 412 (N.D.1996); State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D.1995); McNair, 491 N.W.2d at 399. In analyzing obvious error, our decisions require examination of the entire record and the probable effect of the alleged error in light of all the evidence. See Woehlhoff, 540 N.W.2d at 165. We have rarely noticed obvious error under N.D.R.Crim.P. 52(b). See State v. Kraft, 413 N.W.2d 303, 307 (N.D.1987) (failure to instruct on UCC defense was obvious error); State v. Hersch, 445 N.W.2d 626, 634 (N.D.1989) (failure to instruct on statute of limitations defense was obvious error); State v. Wiedrich, 460 N.W.2d 680, 685 (N.D.1990) (in homicide case with self-defense evidence, prejudicial effect of trial court's failure to instruct on included offense of negligent homicide was obvious).

¶13 In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court described the framework for analyzing "plain error" under F.R.Crim.P. 52(b). Our rule differs from the federal rule only in the substitution of the word "obvious" for "plain." See N.D.R.Crim.P. 52, Explanatory Note. The Olano analysis is largely consistent with our cautious application of N.D.R.Crim.P. 52(b). Therefore, we use the Olano framework for our analysis of obvious error in this case.

¶14 Before an appellate court may notice a claimed error that was not brought to the attention of a trial court, Olano requires (1) error, (2) that is plain, and (3) affects substantial rights. 507 U.S. at 732-35, 113 S.Ct. at 1776-78. Under Olano at 732-33, 113 S.Ct. at 1776-77, a forfeited deviation from an applicable legal rule is an "error." Forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right, and F.R.Crim.P. 52(b) applies only to "forfeited" and not to "waived" errors. Id.Compare State v. Frey, 441 N.W.2d 668, 670-71 (N.D.1989) (a defendant who, as a matter of trial tactics, objects to giving instructions on lessor included offenses cannot complain the court committed obvious error in failing to give those instructions). Olano, 507 U.S. at 734, 113 S.Ct. at 1777, defines "plain" error as "clear" or "obvious" error, and clarifies that an appellate court should not correct an...

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