State v. Smaage, Cr. N

Decision Date14 May 1996
Docket NumberCr. N
Citation547 N.W.2d 916
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Selmer Allen SMAAGE, Defendant and Appellant. o. 950308.
CourtNorth Dakota Supreme Court

Joel F. Arnason, Arnason Law Office, Grand Forks, for defendant and appellant.

Terence P. Devine, State's Attorney, Lakota, for plaintiff and appellee.

MARING, Justice.

Selmer Allen Smaage appeals a criminal judgment entered upon a jury verdict finding him guilty of negligent homicide. We affirm.

On December 9, 1993, Smaage was driving with his father on a rural Nelson County road. The day was snowy and windy. Smaage attempted to make a left turn onto a side road. He waited for a delivery truck to clear the opposite lane, and turned after it had passed. A pickup truck that had been following the delivery truck hit the passenger side of Smaage's vehicle. Smaage's father was killed in the collision.

Highway patrol officer Delbert Johnston spoke with Smaage at the scene, determined he was intoxicated, and placed him under arrest for driving under the influence. An ambulance transported Smaage to a hospital where staff treated him for minor injuries and drew a blood sample for alcohol testing. Johnston then sought to release Smaage, but none of Smaage's family members were willing to take responsibility for him. Johnston, therefore, transported Smaage to the Lake Region Law Enforcement Center where Smaage was admitted on an eighteen-hour detoxification order.

Smaage's family members requested that Smaage be confined until after his father's funeral. Acting on this request, the doctor who treated Smaage after the crash submitted a statement to the law enforcement center indicating that Smaage needed to be detained for a psychiatric evaluation. Smaage was eventually released to his family after his father's funeral--more than ninety hours after his initial detention.

Blood tests showed Smaage had a .20 blood alcohol content after the crash. In January 1994, he was charged with negligent homicide for causing his father's death. Smaage pled not guilty to the charge and requested a jury trial. In a pretrial motion, Smaage argued he could not obtain a fair trial in Nelson County and sought a change of venue. In a second motion, he alleged he was illegally confined after his arrest and sought dismissal of the charges. The trial court denied both motions.

Smaage's jury trial was held in July 1995. The jury found him guilty of negligent homicide. In September 1995 the court entered judgment against Smaage and sentenced him to five years supervision by the Department of Corrections.

On appeal, Smaage argues:

1) The trial court erred in denying his request for a change of venue;

2) He was denied his right to a fair and impartial jury;

3) The trial court erred in denying his motion to dismiss based on his improper detention after the collision;

4) The trial court improperly instructed the jury on alcohol-related offenses.

Smaage first argues the trial court abused its discretion in denying his motions for a change of venue. Smaage claims the community was biased and prejudiced against him. Smaage moved for change of venue pretrial, and again after voir dire of the jurors. The trial court denied Smaage's change of venue motions.

Rule 21(a), N.D.R.Crim.P., allows change of venue based on "prejudice in the county or municipality." A motion for change of venue is addressed to the sound discretion of the trial court, and we will not reverse a trial court's decision on venue absent a showing of abuse of discretion prejudicial to the defendant. State v. Breding, 526 N.W.2d 465, 468 (N.D.1995). "A defendant seeking a change of venue under Rule 21(a) bears the burden of demonstrating a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found." State v. Austin, 520 N.W.2d 564, 566 (N.D.1994).

Smaage asserts he had a wide reputation in sparsely populated Nelson county for being a drunk, and that it was widely known alcohol was a factor in the fatal crash. Smaage argues the trial court abused its discretion in denying his motion to change venue because any jury in the county would be biased against him based on knowledge of his reputation and of the accident.

Smaage, however, has not supported his assertions with facts. He did not submit any evidence of his reputation in the community or of the community's knowledge of the crash when he filed his pre-trial motion to change venue. When he renewed his motion after voir dire, Smaage supported his request with information obtained from jury questionnaires and voir dire. The record shows potential jurors had some knowledge of Smaage and of the crash. Nevertheless, Smaage made no showing that potential jurors were biased or prejudiced against him. 1 When a trial court considers a motion to change venue, "the ultimate question ... is whether it is impossible to select a fair and impartial jury." Rule 21, N.D.R.Crim.P. (Explanatory Note). We conclude Smaage failed to meet his burden of showing a reasonable likelihood of prejudice so pervasive as to make selecting a fair and impartial jury impossible. Therefore, the trial court did not abuse its discretion in denying Smaage's motion to change venue.

Smaage next argues he was denied his right to a fair and impartial jury because the trial court overruled his challenges for cause against three jurors who were eventually empaneled. Smaage alleges two of the jurors he challenged should have been excused for actual bias and the other for implied bias.

Persons accused of crimes have a right under the Sixth Amendment of the federal constitution, as applied to the states through the Fourteenth Amendment, to a trial by an impartial jury. City of Bismarck v. Holden, 522 N.W.2d 471, 473 (N.D.1994). The Sixth Amendment, however, does not prescribe a specific test for determining whether a juror is impartial. State v. McLain, 301 N.W.2d 616, 620 (N.D.1981). Under Rule 24(b)(2), N.D.R.Crim.P., judges are required to excuse jurors if grounds for a challenge for cause, such as juror impartiality, are present. We review a trial court's decision on whether to excuse a juror for cause under an abuse of discretion standard. Holden, 522 N.W.2d at 473.

Under section 29-17-35, N.D.C.C., a party may challenge a juror for cause based on actual bias or implied bias. See McLain, 301 N.W.2d at 622. Actual bias is "[t]he existence of a state of mind on the part of the juror ... that he cannot try the issue impartially without prejudice to the substantial rights of the party challenging." N.D.C.C. § 29-17-35(2). Implied bias exists in certain legally specified circumstances, which are listed in section 29-17-36, N.D.C.C.

Smaage asserts that two of the jurors eventually empaneled in his case should have been excused based on actual bias. Smaage claims both these jurors were biased because they had knowledge of Smaage's reputation for drinking. Smaage, however, made no showing that these jurors were not impartial, and we can find no specific evidence of bias on the part of these jurors in the record. As we explained in McLain, 301 N.W.2d at 623:

"Although a defendant is entitled to a panel of impartial jurors, qualified jurors need not be totally ignorant of the facts and issues involved in a case. A distinction must be made between mere familiarity with the defendant or his past and an actual predisposition against him...."

Because there is no evidence in the record that the jurors Smaage challenged for actual bias had an "actual predisposition against him," we conclude the trial court did not abuse its discretion in declining to excuse these jurors for cause.

Smaage insists the trial court erred in refusing to excuse a third juror Smaage challenged for cause. He claims this juror was impliedly biased under section 29-17-36(2), N.D.C.C., because she had an attorney-client relationship with Terence Devine, the prosecutor. See also N.D.C.C. 28-14-06(3). The record shows the juror had her income tax done by a tax preparer in Devine's office and that Devine had handled her father-in-law's estate and some farm leases to which her husband was a party. The record also shows that the juror was not "on retainer" with Devine at the time of the trial, and that the work Devine did for her relatives had been done in the past. Given that the juror never had a direct attorney-client relationship with Devine, and that any relationship with Devine had ended by the time of trial, we conclude the trial court did not abuse its discretion in declining to excuse the challenged juror for implied bias.

Smaage next asserts he was illegally confined after the crash. He claims the illegal detention prevented him from finding a key witness to the crash, thereby prejudicing his defense. Smaage argues the trial court abused its discretion in refusing to grant his motion to dismiss for illegal confinement.

Evidence in the record shows Smaage was intoxicated after the crash. Intoxicated persons may be detained under some circumstances. Section 5-01-05.1, N.D.C.C., requires, in part, that:

"A peace officer has authority to take any apparently intoxicated person to the person's home, to a local hospital, to a detoxification center, or, whenever that person constitutes a danger to that person or others, to a jail for purposes of detoxification. A duly licensed physician of a local hospital or a licensed addiction counselor of a detoxification center has authority to hold that person for treatment up to seventy-two hours. That intoxicated person must not be held in jail because of intoxication more than twenty-four hours."

Evidence in the record shows that Officer Johnston took Smaage to the Lake Region Correctional Facility because none of Smaage's family members would take custody of him. Johnston had Smaage admitted to the facility at 5:30 p.m. on December 9, 1993, under an eighteen hour detoxification order. Evidence in the...

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