State v. Sievers

• Decision Date: 13 February 1996
• Docket Number: No. 950179,950179
• Citation: 543 N.W.2d 491
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Philip Gene SIEVERS, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 491

543 N.W.2d 491

STATE of North Dakota, Plaintiff and Appellee, v. Philip Gene SIEVERS, Defendant and Appellant.

Criminal No. 950179.

Supreme Court of North Dakota.

Feb. 13, 1996.

Glen R. Bruhschwein (argued), Assistant State's Attorney, Dickinson, for plaintiff and appellee.

Ronald A. Reichert, of Reichert, Buresh, Herauf & Ficek, PC, Dickinson, for defendant and appellant. Argued by William A. Herauf.

MESCHKE, Justice.

Philip Sievers appealed from an order denying his motion for a new trial after a jury found him guilty of two counts of gross sexual imposition. We hold that the trial court did not abuse its discretion in denying Sievers's motion for a new trial, and we affirm the order.

I

Sievers was charged with two counts of gross sexual imposition under NDCC 12.1-20-03(1)(d) ¹ for allegedly engaging in two sexual acts with his ten-year old stepdaughter, Nell (a pseudonym), between August 15 and September 30, 1992. Count one charged Sievers with "committing a sexual act by causing sexual contact between the defendant's penis and the mouth of a ten year old child." Count two charged Sievers with "committing a sexual act by causing sexual contact between the defendant's penis and the vulva of a ten year old child."

At trial, the State introduced a letter written by Nell in May 1993 that said, near when she began fifth grade, Sievers "stuck his penis into [her] vagina" and had her "lick & suck on his penis." Nell testified at trial that, although she did not know the exact date, Sievers committed the sexual acts described in her handwritten letter "around the beginning of 5th grade." Sievers testified and denied committing the sexual acts. He introduced evidence that he could not have committed the sexual acts because he was always under court-ordered adult supervision ² while he was with Nell during the time that she said the acts occurred.

The jury found Sievers guilty of both counts. The trial court denied Sievers's motion for a new trial, and he appealed from the order denying his motion.

II

A trial court's decision on a defendant's motion for a new trial is within the court's sound discretion, and it will not be reversed on appeal absent an abuse of discretion. E.g., State v. Daulton, 518 N.W.2d 719 (N.D.1994). A court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner. Id. We review the court's denial of Sievers's motion for a new trial under this abuse-of-discretion standard.

III

Sievers argues the trial court erred in not granting him a continuance before trial. The State's criminal information charged Sievers with committing the sexual acts "[i]n the later summer or fall of 1992." On July 15, 1994, the State filed an amended bill of particulars alleging the acts occurred between August 15 and September 30, 1992. Sievers moved for a continuance, arguing that the amended bill of particulars expanded the time period for the crimes and necessitated additional investigation. The court denied Sievers's motion for a continuance, ruling "the amended bill of particulars actually narrows the time period from the information." In denying Sievers's motion for a new trial, the court found "no undue prejudice in the failure to grant the motion for a continuance."

A motion for a continuance, like a motion for a new trial, rests in the discretion of the trial court, and its decision will not be set aside on appeal absent an abuse of discretion. State v. Ash, 526 N.W.2d 473 (N.D.1995). The court did not abuse its discretion in denying Sievers's motion for a continuance and in denying his motion for a new trial on that basis. ³

IV

Sievers argues the State failed to comply with the trial court's order to instruct its witnesses not to refer to his "previous convictions, his probation, or any incidences of that ... previous conviction." Sievers argues that the State's oversight led to testimony by Nell's mother and his wife, Janet Sievers, that he was not allowed to be alone with Nell because he was on "probation." The State acknowledges that it did not inform Janet about the court's order, but argues that Sievers invited any error because Janet's answer came in response to his cross-examination of her.

Before trial, this colloquy occurred:

MR. REICHERT: Your Honor, the motion I would like to make this morning is that the prosecution and its witnesses be instructed not to refer to Philip's previous convictions, his probation, or any incidences of that--of that previous conviction.

THE COURT: Okay. What is the State's position?

MR. BRUHSCHWEIN: The State doesn't intend to introduce any such evidence in its case in chief except if required for rehabilitation of witnesses, except if those matters are broached on cross examination.

THE COURT: Okay. The Court will grant the motion, and that means before any of this information can be brought out, it has to be brought to the attention of the Court prior to being brought out before the jury.

At trial, the State called Janet as a witness but did not question her then about Sievers's prior convictions or probation. During cross-examination of Janet, Sievers asked:

Q (Mr. Reichert) What were the--what was the reason that Philip wasn't left alone with the children?

A (Janet Sievers) I did--for the protection of my kids, plus also his probation said that he was never allowed to be alone with the girls.

Sievers did not object to Janet's response. The State later examined Janet on redirect without any further mention of Sievers's probation. On recross, Sievers inquired about Janet's "running battle" with social services concerning her children. On further redirect the State attempted to explain Janet's "running battle" with social services by testimony from her that social services had removed the children from her home in December 1990 because of allegations of "abuse" by Sievers.

Sievers then moved for a mistrial and, without specifically referring to Janet's earlier testimony about his "probation," argued that allegations of "sexual abuse" against him in 1990 were inadmissible. The trial court denied Sievers's motion but "cut off any further redirect into this area." The court also refused to give a curative instruction; however, the record does not include a proposed curative instruction, nor does the record suggest that any such instruction would have addressed Janet's reference to Sievers's "probation." In denying Sievers's motion for a new trial, the court ruled "[t]he only references during trial that could be considered violations [of its order] are by the defendant's wife, Janet Sievers, and this testimony is in response to defense counsel's leading questions ... [that] the Court does not find ... to be a basis for granting a new trial."

Although the State should have advised Janet about the order in limine, we agree with the trial court that the only violation of its order was Janet's testimony about Sievers's "probation" that Sievers developed. Sievers neither objected, nor moved to strike the reference to "probation" from the record. See NDREv 103(a)(1) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection."). Under these circumstances, we conclude the court did not abuse its discretion in denying Sievers's motion for new trial based upon Janet's reference to Sievers's "probation."

V

Sievers contends he was entitled to a new trial for newly discovered evidence. After his trial on August 9-11, 1994, Sievers located a letter written by Nell that was in her medical records at St. Alexius Hospital. In that handwritten letter, Nell claimed both "my dad and foster brother" had sexual intercourse with her; however, she later told a therapist that the incident with her foster brother "never happened."

Sievers contends this "newly discovered" letter affects the central issue in the case, Nell's credibility, and is tangible written proof that she had falsely accused others of sexual abuse. Relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, Sievers also asserts that, although the letter was in Nell's medical records at St. Alexius, the State and its investigatory agencies should have been aware of it and failed to disclose it to him. The State responds that the letter is not "newly discovered" because Sievers was aware of the substance of it before trial. The State argues that the prosecution did not possess the letter and that neither the prosecutor, nor the State's investigatory agencies, knew about the letter until after the trial. We decide Sievers's newly-discovered-evidence challenge and his Brady claim on the same ground.

A defendant seeking a new trial for newly discovered evidence must show (1) the evidence was discovered after trial; (2) the failure to learn about it beforehand was not from defendant's lack of diligence; (3) the new evidence is material to the trial; and (4) the quality and weight of the new evidence would likely produce an acquittal. State v. Thiel, 515 N.W.2d 186 (N.D.1994). A defendant's failure to discover evidence from a lack of diligence also defeats a Brady claim that the prosecution withheld that evidence.

In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-97. See State v. Anderson, 336 N.W.2d 123 (N.D.1983); State v. Hilling, 219 N.W.2d 164 (N.D.1974). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court applied the Brady rule to the suppression of impeachment evidence that might have affected the outcome...