State v. Saul, Cr. N

• Decision Date: 09 January 1989
• Docket Number: Cr. N
• Citation: 434 N.W.2d 572
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Douglas Jay SAUL, Defendant and Appellant. o. 880157.
• Court: North Dakota Supreme Court

Page 572

434 N.W.2d 572

STATE of North Dakota, Plaintiff and Appellee, v. Douglas Jay SAUL, Defendant and Appellant.

Cr. No. 880157.

Supreme Court of North Dakota.

Jan. 9, 1989.

John Tainter Goff, Asst. State's Atty., Fargo, for plaintiff and appellee. Submitted on briefs.

William Kirschner, of William Kirschner & Associates, Fargo, for defendant and appellant.

VANDE WALLE, Justice.

Douglas Jay Saul appealed from a judgment of conviction entered upon a jury verdict finding him guilty of driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor in violation of Section 39-08-01, N.D.C.C., a class A misdemeanor. We reverse and remand.

Shortly after 1:00 a.m. on January 24, 1988, Deputy DeWayne Nitschke of the Cass County Sheriff's Office responded to a call that a vehicle was stuck in a ditch in Highland Park three miles north of Fargo. When Deputy Nitschke arrived at the scene, he found a white station wagon stuck in a ditch. Deputy Nitschke observed that Saul was seated behind the steering wheel of the car and that the transmission was engaged and the wheels were spinning. Deputy Nitschke detected the odor of alcohol on Saul and noticed that his speech was slurred. Saul failed a field sobriety test, and Deputy Nitschke placed him under arrest at about 1:50 a.m. and transported him to the Cass County jail where an Intoxilyzer test was administered at 2:26 a.m. The results of that test indicated that Saul had a blood-alcohol content of .18.

Saul was charged with driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor in violation of Section 39-08-01. The complaint alleged that, within the past seven years, Saul had three prior convictions for violating Section 39-08-01, and charged him with a class A misdemeanor. ¹ The jury returned a guilty verdict.

Saul contends that the trial court erred in allowing the jury to hear evidence of his three prior convictions for violating Section 39-08-01. Prior to trial Saul stipulated that he had three prior convictions and sought to suppress evidence of those convictions. The trial court denied Saul's motion, relying on State v. Edinger, 331 N.W.2d 553 (N.D.1983), and gave a cautionary instruction. ²

Saul argues that Edinger is distinguishable because the issue in that case was whether or not a prior conviction was an essential element of the crime charged, whereas in this case he stipulated to the prior convictions to remove that element of the charge from the jury and avoid any danger of unfair prejudice. The State responds that the three prior convictions are an essential element of the class A misdemeanor charge and therefore must be pleaded and proved. The State asserts that the trial court's cautionary instruction was more than sufficient to protect Saul against unfair prejudice.

In State v. Edinger, supra, the court held that because a defendant has the right to be informed of the exact nature of the charge against him, a defendant's prior conviction should be alleged in the criminal complaint as an element of the offense if the State seeks enhancement from a class B to a class A misdemeanor under Section 39-08-01. ³ The court further held that, under the circumstances of that case, the submission to the jury of evidence of the defendant's prior conviction was not prejudicial. However, in Edinger the defendant did not attempt to stipulate to the prior conviction in order to remove the issue from the jury and avoid any danger of undue prejudice.

In State v. Gahner, 413 N.W.2d 359 (N.D.1987), we held that the failure to either charge a class A misdemeanor or to allege prior convictions in a complaint precluded sentencing the defendant for a class A misdemeanor as a third-time offender. Although Gahner did not involve the same issue as this case, we said:

"Charging the more serious offense, without stating the prior convictions, may be the more desirable alternative. It can avoid the prejudicial effect that proof of prior convictions may exert on a jury. We were told at oral argument that, for this reason, some trial courts insist prior convictions not be mentioned until sentencing. This coincides with the policy underlying NDREv 609, limiting evidentiary use of prior convictions. This evidentiary rule arose from concern about undue impact upon a jury of evidence of prior crimes. See also NDREv 404(b). A Congressional Judiciary Committee report on the Federal Rules of Evidence, from which our rule was drawn, said: '[T]he danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence.'

"While Edinger held that evidence about that defendant's prior DUI convictions was not prejudicial, that will not be true in all cases. As Weinstein says, '[T]he accused with a record risks ... that the jury will assume that he committed the charged crime if his prior conviction was for a similar offense.' (3 Weinstein's Evidence 609-60 through 61 [1987]. This risk can be removed by omitting reference to prior convictions in the complaint. Stating the more serious charge in the complaint, without setting out the prior convictions, can easily and fairly give notice as well as avoid prejudice. Charging the more serious misdemeanor communicates notice of the State's intention to use the prior convictions." State v. Gahner, supra, 413 N.W.2d at 362-363. [Footnotes omitted.]

The prejudicial dangers underscored in Gahner are amplified in this case because Saul stipulated to the prior convictions to remove that element from the jury, and essentially defended on two theories: (1) he was not driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor because his motor vehicle was inoperable, and (2) he was not under the influence of intoxicating liquor when the car became stuck.

In support of his second defense, Saul presented evidence that he drank only after he got the car stuck. If Saul had defended solely on the technical ground that he was not driving or in actual physical control of a motor vehicle because the car was inoperable, the introduction into evidence of the prior convictions may not have been prejudicial. However, Saul's second defense directly raised whether he was under the influence of intoxicating liquor when he drove the car into the ditch and it became stuck. We are unable to determine whether the jury found that Saul was driving while under the influence before the car became stuck or that he was in actual physical control while under the influence after that occurrence; however, the risk is considerable that the jury may have improperly used Saul's prior convictions to find him guilty of driving while under the influence in this case. See State v. Berkelman, 355 N.W.2d 394 (Minn.1984). The prejudicial effect of that use of the prior convictions is recognized in Rules 404(b) and 609(a), N.D.R.Ev., which generally preclude the admission of evidence of other crimes to prove the character of a person in order to show that he acted in conformity therewith. See State v. Stevens, 238 N.W.2d 251 (N.D.1975).

We also recognize the general rule that the prosecution is not bound by a defendant's offer to stipulate. See United States v. Peltier, 585 F.2d 314 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). However, that general rule is subject to the weighing that trial courts must follow in deciding whether to admit relevant evidence that carries with it the danger of unfair prejudice under Rule 403, N.D.R.Ev. When a defendant stipulates to the prior convictions, as in this case, he effectively removes that element of the crime from the charge, and we do not see any reason why evidence of the prior convictions should be submitted to the jury unless they are relevant to some disputed issue under Rule 404(b), N.D.R.Ev. See State v. Berkelman, supra. The cautionary instruction (see fn. 2) highlights that there is no reason for evidence of the prior convictions to be submitted to a jury when the defendant stipulates to them. The cautionary instruction may be a proper counter-balancing factor to the prejudice resulting from introduction of the prior convictions in the weighing in which the trial court must engage under Rule 403, N.D.R.Ev., and in those instances in which the prior convictions are contested or the defendant has not stipulated to them, but there is no purpose in risking reliance on the cautionary instruction to alleviate the prejudicial effect of the prior convictions when the defendant has stipulated to them.

Although the prior convictions may be an element of the class A misdemeanor offense, they are not an element of the offense of driving while under the influence or the offense of driving while intoxicated. If the defendant contests the prior convictions, for the purpose of disproving the class A misdemeanor charge, introduction of the prior convictions is necessary. Where, as here, the defendant stipulates to the prior convictions, for the purpose of the class A misdemeanor charge and defends not as to the enhanced offense but...