State v. Purdy

Decision Date01 October 1992
Docket NumberCr. N
Citation491 N.W.2d 402
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. William S. PURDY, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Dennis W. UCHTMAN, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Lori J. DRIVER, Defendant and Appellant. os. 910256, 910271, 910376 and 910278.
CourtNorth Dakota Supreme Court

Constance L. Cleveland (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

Richard D. Varriano (argued), Moorhead, Minn., for defendants and appellants Dennis W. Uchtman and Lori J. Driver.

William S. Purdy, pro se.

JOHNSON, Justice.

William S. Purdy, Dennis W. Uchtman, and Lori J. Driver appeal from judgments of conviction entered upon jury verdicts finding them guilty of criminal trespass and physical obstruction of a government function. 1 We affirm.

On the morning of March 29, 1991, Purdy, Uchtman, and Driver, along with 23 others, were arrested inside a clinic operated by the Fargo Women's Health Organization, Inc., where abortions are performed. Each person placed a cryptonite bicycle lock around his or her neck and entered the clinic by rushing through a back door. Clinic personnel unsuccessfully attempted to keep the door closed and stop them from entering. Once inside, they sat on the floor and locked themselves together in eight groups of three people and one group of two people. Some members of the group sang hymns and prayed. Police were summoned and asked the group to leave, without success. Locksmiths then removed the locks from the participants so they could be moved safely. It took approximately three hours to remove everyone from the clinic.

All participants were charged with criminal trespass under Sec. 12.1-22-03(2), N.D.C.C., and physical obstruction of a government function under Sec. 12.1-08-01, N.D.C.C., both class A misdemeanors. Twenty-one of the participants, including Purdy, Uchtman, and Driver, were tried together. A six-person county court jury found them guilty on both charges. Purdy, Uchtman, and Driver have appealed, and the appeals have been consolidated pursuant to their motions.

I

Purdy and Uchtman assert that the trial court erred in refusing to grant motions to sever their trials. 2 We disagree.

Joint trials of persons charged together with committing the same offense are the rule rather than the exception. State v. Erickson, 231 N.W.2d 758, 762 (N.D.1975). A joint defendant is not entitled to a separate trial as a matter of right. State v. Whiteman, 79 N.W.2d 528, 533 (N.D.1956). "Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more offenses." Rule 8(b), N.D.R.Crim.P. Under Rule 14, N.D.R.Crim.P., a trial court may grant a severance "[i]f it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together...."

The purpose of Rule 14 is to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial. State v. Lind, 322 N.W.2d 826, 831 (N.D.1982). The defendant bears the burden of demonstrating prejudicial joinder. State v. Dymowski, 459 N.W.2d 777, 779 (N.D.1990). Bare allegations that a defendant would stand a better chance of acquittal in a separate trial or that there may be some "spillover effect" from evidence against a codefendant is insufficient to compel severance. Dymowski, supra; Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), cert. denied, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969); United States v. Cooley, 787 F.Supp. 977, 991 (D.Kan.1992). We will not set aside a trial court's refusal to grant a separate trial unless the defendant establishes a clear abuse of discretion. Dymowski, supra.

Each defendant was charged with the same criminal offenses by engaging in essentially the same conduct. Although the number of defendants was somewhat large, there were not "issues so complex or difficult as to require or justify severance." Cooley, supra. The defendants presented different defenses, but they were not antagonistic. Generally, severance should be granted on a theory of mutually antagonistic defenses only if acceptance of a codefendant's version of the facts precludes acquittal of the defendant. United States v. Harris, 761 F.2d 394, 401 (7th Cir.1985); see also United States v. Andrews, 765 F.2d 1491, 1498 (11th Cir.1985); cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986) [defenses must be mutually exclusive and irreconcilable]; 8 Moore's Federal Practice p 14.04, at p. 14-25 (1992); Dymowski, supra, 459 N.W.2d at 785 (VandeWalle, J., concurring specially). Here, Purdy claimed that he entered the clinic to make a citizen's arrest of the clinic administrator for violating a state law. Uchtman claimed he entered the clinic to enforce the same state law as well as "a higher law." Other defendants claimed that they entered the clinic to enforce "God's law." These are not irreconcilable defenses.

The claims of a "spillover effect" from evidence against other defendants is entirely speculative. The trial court specifically instructed the jury

"to consider each defendant separately. In other words, if you find one defendant guilty, that does not automatically mean the others are similarly guilty. Likewise, should you find one defendant not guilty, that does not automatically mean the others are not guilty. Each defendant is the subject of a separate prosecution and you must deliberate the merits of each of these separate prosecutions."

Purdy and Uchtman have not established that the jurors were unable to follow the trial court's instructions and appraise the guilt or innocence of each defendant based solely upon that defendant's own acts, statements, and conduct, and the independent evidence against that defendant. See 8 Moore's Federal Practice, supra, at p. 14-21. We conclude that the trial court did not abuse its discretion in refusing to grant separate trials for Purdy and Uchtman.

II

Purdy asserts that the trial court erred in denying his motion for change of venue. 3 He contends that adverse pretrial publicity rendered it impossible for him to receive a fair trial before unbiased jurors in Cass County. We disagree.

Rule 21(a), N.D.R.Crim.P., provides:

"(a) For Prejudice in the County or Municipality. The court upon motion of the defendant shall transfer the proceeding as to that defendant to another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial."

Under the explanatory note to Rule 21, there are four factors the trial court should consider in determining whether to grant relief for pretrial publicity that may result in prejudice to the defendant: (1) whether the publicity was recent, widespread, and highly damaging to the defendant; (2) whether the prosecution was responsible for the objectionable material, or whether it emanated from independent sources; (3) whether inconvenience to the prosecution and the administration of justice will result from a change of venue or continuance; and (4) whether a substantially better panel can be sworn at another time or place. This court has added four additional factors to this list: (1) the nature and gravity of the offense; (2) the size of the community; (3) the status of the defendant in the community; and (4) the popularity and prominence of the victim. State v. Engel, 289 N.W.2d 204, 206 (N.D.1980); Olson v. North Dakota District Court, 271 N.W.2d 574, 580 (N.D.1978).

A motion for change of venue is addressed to the sound discretion of the trial court, whose decision will not be reversed absent a showing of abuse of discretion prejudicial to the defendant. State v. Leidholm, 334 N.W.2d 811, 822 (N.D.1983). Purdy has not established that the trial court abused its discretion in refusing to grant his motion for change of venue.

Purdy submitted no evidence to the trial court to make a record about the pretrial publicity which we can review. Although Purdy, on appeal, submitted an appendix to his brief listing more than 70 Fargo Forum newspaper articles, editorials, and letters to the editor about the arrests and trial, this was not submitted to the trial court and, therefore, we cannot consider it. E.g., Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236, 239 (N.D.1988). Pretrial publicity is not necessarily prejudicial to a criminal defendant. State v. Page, 277 N.W.2d 112, 115 (N.D.1979). It is "not the quantity of media coverage which controls a change of venue motion, but rather the likelihood that any degree of adversity toward the defendant which was caused by that publicity will prevent him from receiving a fair trial." Houle v. North Dakota District Court, 293 N.W.2d 872, 874 (N.D.1980). The record does not establish that the community was biased or that the jury was predisposed to finding against Purdy. There is nothing in the record to suggest dissemination of inadmissible, illegally obtained, or otherwise prejudicial information. The unsupported arguments of Purdy's counsel at the hearing are insufficient to support a change of venue. Cf. Engel, supra, 289 N.W.2d at 207 [affidavit of movant's attorney is not a sufficient basis for change of venue].

The proper occasion for determining whether it is impossible to select a fair and impartial jury is during the voir dire examination. Engel, supra, 289 N.W.2d at 206. Our review of the voir dire examination fails to reveal prejudice...

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