State v. Otto

• Decision Date: 29 September 1976
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Wayne OTTO, Defendant-Appellant. o. 560.
• Court: North Dakota Supreme Court

Page 885

245 N.W.2d 885

STATE of North Dakota, Plaintiff-Appellee, v. Wayne OTTO, Defendant-Appellant.

Cr. No. 560.

Supreme Court of North Dakota.

Sept. 29, 1976.

Rehearing Denied Oct. 15, 1976.

Vogel and Pulkrabek, Box 309, Mandan, for defendant and appellant; argued by Mr. Pulkrabek.

Richard L. Schnell, State's Attorney, and Marvin M. Hager, Asst. State's Attorney, Courthouse, Mandan, for plaintiff and appellee; argued by Mr. Hager.

Before Pederson, Vogel, Sand, Erickstad, C.J.

Opinion of the Court by Paulson, Judge.

PAULSON, Judge.

Wayne Otto [hereinafter Otto] was convicted of the crime of possession of cocaine by a jury in the District Court of Morton County on March 12, 1976. Sentencing was set for March 18, 1976, and Otto through his counsel also presented a motion for a new trial on the same date. The motion for a new trial was denied on March 18, 1976, and on the same date Otto was sentenced to two years in the state penitentiary. The matter is now before this court on appeal.

On February 11, 1975, a search warrant was issued by the Morton County Court of Increased Jurisdiction to the officers of the Morton County sheriff's department, the Mandan police department, and the State Laboratories Department. The warrant was for a search of the Terry Heck residence. When the officers arrived at the Terry Heck residence, the front door of the house was locked and the sheriff, Leo Snider, rang the doorbell. No one answered the door and, after the officers heard people running inside the house and saw someone looking out of a window above the front door, the officers forced the door open and entered the premises. Upon entering the house, Sheriff Snider first encountered Otto in the livingroom area and told him to be seated in a rocking chair. Sheriff Snider then served the search warrant on Terry Heck. The sheriff then looked toward Otto and noticed that Otto was drawing his left hand from behind his back, whereupon the sheriff had Otto stand to be "pat searched" and, upon looking at the rocking chair in which Otto had been seated, Sheriff Snider observed a plastic vial lying on the cushion. The plastic vial was handed to a state chemist, Aaron E. Rash, and, upon analysis, was found to contain cocaine hydrochloride. As a result, Otto was charged with possession of cocaine, and this is the only charge for which he is being tried in the instant case. Two other persons present in the Terry Heck residence at the time of the raid were convicted of possession of cocaine in separate proceedings.

Otto's appeal raises two issues for our consideration:

(1) Did the trial court err in permitting the State to present evidence of Otto's possession of marijuana at a trial when the charge is possession of cocaine, after defense counsel had opened up the presence of other drugs--including marijuana--during his cross-examination of a State's witness? and

(2) Was it reversible error for the trial court to permit the State to further cross-examine the final defense witness after the defense had rested.

Otto first contends that it was reversible error for the State to produce at trial evidence of another crime--possession of marijuana--which was not relevant to the crime charged in the Information. ¹ Perusal of the record reveals that evidence of the presence of marijuana at the Terry Heck residence at the time of the raid was first elicited by defense counsel during cross-examination of a witness for the State. The record further reveals that such testimony was elicited as part of defense counsel's trial strategy to attempt to create doubt in the minds of the jurors as to ownership of the vial of cocaine found on the chair occupied by Otto, by showing: (1) that four different persons were present in the house at the time of the raid; (2) that two of those persons had subsequently pleaded guilty to charges of possession of cocaine arising from the same raid; (3) that Otto was only an overnight guest on the night of the raid; (4) that other 'dime bags' of cocaine had been discovered elsewhere in the house; and (5) that other drugs were located on the premises--specifically, marijuana. It was the introduction of the fifth element of the defendant's strategy that allowed the State to specifically respond to the inference that Otto was an innocent bystander who had just happened to sit in the wrong chair at an inopportune time.

The record further shows that the State presented evidence to link Otto with the marijuana found in the raid only after the defense counsel had used the presence of that same marijuana to create a favorable inference of Otto's innocent-bystander status. A defendant can neither complain of the admission of testimony which was invited by the defendant's own tactics at trial, nor object to the introduction of evidence of another crime where he himself has introduced evidence of that other crime. United States v. Bolin, 514 F.2d 554, 558 (7th Cir. 1975); People v. Barksdale, 24 Ill.App.3d 489, 321 N.E.2d 489, 497 (1974); Henry v. State, 328 So.2d 634, 639 (Ala.Cr.App.1976); People v. Wright, 41 Mich.App. 518, 200 N.W.2d 362, 368--369 (1972); State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 680 (1947); See C. McCormick, Evidence § 57 (2d ed. 1972); 1 J. Wigmore § 15 (3d ed. 1940, Supp.1975).

The second issue presented to this court by Otto is whether it was reversible error for the trial court to permit the State to further cross-examine the final defense witness...