State v. Smith

• Decision Date: 11 February 1976
• Docket Number: Cr. N
• Citation: 238 N.W.2d 662
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Lionel SMITH, Defendant-Appellant. o. 528.
• Court: North Dakota Supreme Court

Page 662

238 N.W.2d 662

STATE of North Dakota, Plaintiff-Appellee, v. Lionel SMITH, Defendant-Appellant.

Cr. No. 528.

Supreme Court of North Dakota.

Feb. 11, 1976.

Syllabus by the Court

1. The general rule is that comment by counsel on a party's failure to call a witness is permitted where the circumstances justify an unfavorable inference from the failure of the other party to produce or use an available witness. An adverse inference does not arise, however, where the witness is equally available to either party, when the testimony would be merely cumulative, or where the witness can be expected to exert a valid privilege which would exclude the anticipated testimony from the record.

2. The determination of whether or not a potential witness is equally available to either party is largely a question of fact. The inquiry is not limited to the question of physical presence or accessibility of the witness, but extends also to a consideration of the witness's disposition and relationship toward the parties, and to a consideration of the nature of the testimony expected.

3. In North Dakota, a conviction may not be had upon the testimony of an accomplice unless his testimony is corroborated by such other evidence as tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. § 29--21--14, N.D.C.C.

4. Every material fact testified to by an accomplice need not be corroborated. All that is required is that the corroboration tend to connect the defendant with the commission of the offense.

5. Corroboration may be furnished by evidence of facts and circumstances which tend to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence shall cover every material fact testified to by the accomplice, or be sufficient, in itself, to warrant a conviction or to establish a prima facie case. It is sufficient if it corroborates the accomplice as to some material fact, or facts, and tends to connect the defendant with the commission of the offense charged.

6. The State is not called upon to point to some single or isolated fact which, in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence, furnished by nonaccomplice witnesses, which supplies the test.

7. The purpose of corroborative testimony is to show that the accomplices are reliable witnesses and worthy of credit. The weight to be given corroborating evidence is a matter for the jury.

8. An accomplice's testimony was corroborated by sufficient evidence tending to connect the defendant with the offense charged where the store's manager identified a ring and merchandise recovered by the police from the possession of the defendant and his accomplices as being among items stolen from the burglarized grocery store, and the means of breaking and entering into the store were connected with the recovery, at the time of the arrests, of the stolen items.

9. Trial judges have a wide discretion in determining the length of sentences imposed.

10. It is improper for a trial judge to consider a pending criminal charge as one of the factors to be weighed before sentence is imposed. The sentence will be set aside only where there is a showing that the trial judge substantially relied upon the impermissible factor in determining the severity of the sentence to be imposed.

Benjamin C. Pulkrabek, Public Defender, Bismarck, for defendant and appellant.

John M. Olson, State's Atty., and Robert P. Bennett, Asst. State's Atty., Bismarck, for plaintiff and appellee; argued by Mr. Bennett.

PAULSON, Judge.

This is an appeal by the defendant Lionel E. Smith from a jury verdict of guilty and a final judgment of conviction in the Burleigh County District Court of the crime of burglary, as well as an appeal from the trial court's order denying Smith's motion for a new trial.

Smith's conviction was for the crime of burglary, which occurred sometime during the night of March 27--28, 1975, of the Buy-Rite Food Center in Bismarck. The State's case at trial was primarily based upon the testimony of Paul Nelson, one of three juvenile accomplices who allegedly aided Smith in committing the offense. Also testifying for the State were Englehart Dressler, manager of the Buy-Rite Food Center; and two Bismarck police officers, Lieutenant Gerald Thiesen and Corporal Fred Frohlich. Also endorsed on the Information as a State witness, but not called during trial, was the name of Dean Weisser, another accomplice in the perpetration of the burglary. Smith was the only witness for the defense.

At trial, Nelson testified that he and Smith and two juveniles broke into the Buy-Rite Food Center sometime after dark on the evening of March 27, 1975, by breaking a rear window with a tire iron. Smith thereupon entered the building, according to Nelson, unlocked the back door to permit the other three to enter, and the four of them loaded three boxes with cigarettes, candy, pop, and other items from the store. In addition, they also took a ten-inch portable television set. Finally, Nelson testified that three of them carried the boxes from the scene; that one person carried the television set; and they all got into Dean Weisser's truck and drove to the Julie Wetch residence.

Englehart Dressler, manager of the Buy-Rite Food Center, testified that he left the building at about 10 p.m. on March 27, 1975; that he latched the back door; and that there were no broken windows in the building when he left it that evening. He further testified that when he arrived at the Food Center the next morning, the rear window had been broken, the back door was unlatched, there was snow blowing in through the broken window and water was standing on the floor inside the building. He also testified that among the missing items was a black jewelry box with a red velvet interior containing about $5.50 in quarters, nickels, and dimes; a diamond engagement ring, and perhaps another brass ring; a ten-inch brown Magnavox television set; about 20--30 cartons of various brands of cigarettes, candy, sausage and other grocery items. Dressler further testified that he identified the merchandise seized by the police in arresting Smith and the three juveniles, stating that the merchandise could be identified by the prices and markings on such items; and he also identified the jewelry box as the one taken from his store, and the engagement ring as the one which was in the jewelry box at that time.

Lieutenant Thiesen testified that he, along with Corporal Frohlich, was inside the Wetch residence at about 11:30 on the night of March 27, 1975; that he heard a knock on the door; that after the door was opened he observed Smith and three other persons standing outside; that there were three boxes on the ground, two of which were in the general vicinity of where Smith was standing--about twenty feet from the door--(although Smith was not holding anything when observed by Lieutenant Thiesen); and that a pickup truck identified as belonging to Dean Weisser was parked at the curb.

Corporal Frohlich testified that he, too, was inside the Wetch residence at about 11:30 on the night of March 27, 1975; that he shouted 'police' when he heard a knock on the front door; that, as the door opened, someone unidentified dropped a box onto the ground; that Smith was standing near the bottom of the front steps; that there were three boxes on the ground, one of them near Smith, but that Smith was not holding a box; that he took Smith into custody and searched him; that in Smith's coat pocket he found a glove and some coins, along with two rings--one of them a brass ring and the other one a diamond engagement ring (identified by Dressler as the same ring which had been stored in the jewelry box); and that a jack handle (identified by Nelson as the one used in breaking the rear window of the Food Center) was found in one of the three boxes. He also identified the jewelry box found in one of the three boxes (which jewelry box was identified by Dressler as being the one which was missing from the store). Finally, Corporal Frohlich, too, identified the pickup truck parked in front of the Wetch residence as belonging to Dean Weisser, one of the other juveniles allegedly involved in the burglary.

Smith, as the only witness for the defense, offered a much different version of events. He denied any participation in the burglary, although he testified that he had indeed been 'driving around' with Nelson and the other two juveniles in Weisser's pickup earlier in the day, but added that he had parted company with the three juveniles at about 9:30 p.m. on the 27th of March, 1975, at the Country Kitchen restaurant located on east Main Street in Bismarck. However, Smith testified that, because the restaurant was closed, he walked back to the Wetch residence, where he met Nelson and the other two juveniles just as they were walking toward Wetch's front door. He testified that the other three were carrying boxes; that he did not try to escape; and that he had had seven or eight rings on his person that night. He denies that he had the diamond engagement ring (identified by Dressler as having been in the jewelry box taken from the Food Center), and insinuates that the police officers 'planted' the ring in his pocket during their search. On cross-examination, he offered no explanation for the lapse of time between 9:30 p.m.--when, he testified, he had parted company with nelson and the others--and 11:30 p.m., when the arrests were made at the Wetch residence.

Based upon the evidence summarized above, the jury returned a verdict of guilty. Before submitting the case to the jury, the trial court granted a motion by the State and directed defense counsel not to comment on the failure of the State to call, as a witness at the trial, ...