State v. Smith

• Citation: 595 N.W.2d 565
• Decision Date: 18 June 1999
• Docket Number: No. 980332,980332
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dustin Lee SMITH, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

Page 565

595 N.W.2d 565

1999 ND 109

STATE of North Dakota, Plaintiff and Appellee, v. Dustin Lee SMITH, Defendant and Appellant.

No. 980332.

Supreme Court of North Dakota.

June 18, 1999.

Rozanna C. Larson, Assistant State's Attorney, Minot, for plaintiff and appellee.

Thomas K. Schoppert of Schoppert Law Firm, Minot, for defendant and appellant.

SANDSTROM, Justice.

¶1 Dustin Lee Smith appeals a jury conviction finding him guilty of conspiracy to deliver a controlled substance. We affirm the conviction.

I

¶2 On February 12, 1997, Brad Ronnie, a confidential informant for a drug task force in Minot, North Dakota, called Dustin Smith to arrange a drug sale. Smith was living with Jamie Metcalfe. Law enforcement monitored the call, during which Ronnie arranged to purchase from Smith, at 5:00 p.m. that day, an ounce of marijuana for $170. Ronnie received the buy money from law enforcement and went to Smith's house. Smith was not home when Ronnie arrived.

¶3 The following day, February 13, 1997, Ronnie again called Smith's residence. Metcalfe answered the phone and told Ronnie to come over to the house. Ronnie again received the buy money from law enforcement and went to the house. Metcalfe answered the door and then went upstairs and asked Smith where the drugs were located. He told her they were under the bed. She retrieved the drugs, went downstairs, and gave them to Ronnie in exchange for the money. Smith contends he had no knowledge of the sale until he was charged with conspiracy to deliver a controlled substance.

¶4 On August 5, 1998, a jury found Smith guilty of criminal conspiracy to deliver a controlled substance. On October 12, 1998, the trial court entered a criminal judgment and commitment sentencing Smith to four years with the Department of Corrections, with three years suspended for four years following Smith's release from custody.

¶5 Smith appealed. The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶6 Smith argues the prosecutor, during closing arguments, made an improper comment, stating "people that are involved in drugs--they will say anything to get out of jail and use anything to keep their hands clean. That's the type of person we're dealing with here, ladies and gentlemen." Smith's counsel objected, and the district court told the jury to disregard the statements.

¶7 In State v. Thiel, 411 N.W.2d 66, 71 (N.D.1987), we said, "[g]enerally ... inappropriate prosecutorial comments, standing alone, do not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." The control of closing arguments is largely within the discretion of the district court, and we will not reverse on the ground that a prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown. State v. Weatherspoon, 1998 ND 148, p 23, 583 N.W.2d 391 (citing State v. Ash, 526 N.W.2d 473, 481 (N.D.1995)). "Argument by counsel must be confined to facts in evidence and the proper inferences that flow therefrom." Id. (quoting State v Kaiser, 417 N.W.2d 376, 379 (N.D.1987)). "On appeal, this court 'must consider the probable effect the prosecutor's [inappropriate comments] would have on the jury's ability to judge the evidence fairly.' " Id. (quoting Grand Forks v. Cameron, 435 N.W.2d 700, 704 (N.D.1989) (quoting United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985))).

¶8 An improper argument is prejudicial when it causes the defendant substantial injury and a different decision would have resulted, absent the error. State v. Carlson, 1997 ND 7, p 43, 559 N.W.2d 802 (citing State v. Azure, 525 N.W.2d 654, 656 (N.D.1994)). To preserve the issue for appeal, the defendant must object to the State's improper closing argument and request a curative instruction. Id. Smith's counsel timely and properly objected to the statement, and the district court gave a curative instruction.

¶9 The jury was aware Smith was involved in drugs and had a vested interest in keeping himself out of jail. The State's confidential informant also did not have a clean record, and the jury understood his testimony could have been based on ulterior motives. The comment that Smith would say anything to stay out of jail, followed by the objection and curative instruction, did not affect his chances for a fair trial. From our review of the record, we conclude the prosecutor's improper closing argument about what people involved in drugs will say or do to stay out of jail could not have affected the jury's ability to judge the evidence fairly and does not justify reversal of the conviction. See Weatherspoon, 1998 ND 148, p 24, 583 N.W.2d 391.

III

¶10 Smith argues the district court erred in refusing to give a jury instruction on the testimony of an informer or interested party. Smith had submitted the following written instruction to the Court:

The testimony of an informer, or an interested witness who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether either the informer or the interested witness's testimony has been affected by interest or by prejudice against the defendant.

The district court gave an instruction based on the North Dakota Pattern Jury Instruction No. 2101, regarding weight and credibility of witnesses.

You are the judges of all the questions of fact in this case. You alone must weigh the evidence under these Instructions and determine the credibility of those who have testified. As to these matters the Court expresses no opinion.

In performing this task, you may consider any facts or circumstances in the case which tend to strengthen, weaken, or contradict a witness' testimony. You may consider the age, intelligence, and experience of the witness, the strength or weakness of the witness' recollection, how the witness came to know the facts to which the witness testified, the witness' possible interest in the outcome of the trial, any bias or prejudice the witness may have, the witness' manner and appearance, whether the witness was frank or evasive while testifying, and whether the witness' testimony is reasonable or unreasonable.

If you find a conflict in the evidence you should reconcile it, if you can. If you cannot do so, you have the right to determine whom of the witnesses you will believe, in whole or in part.

You should give to all credible testimony its just and fair weight. You should consider the evidence in this case in the light of your own common sense and your ordinary experience and observation of human affairs.

¶11 "Our review of jury instructions is ... well established. We consider the jury instructions as a whole, and determine whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous." State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D.1995) (citing State v. Marshall, 531 N.W.2d 284, 287 (N.D.1995); State v. Saul, 434 N.W.2d 572, 576 (N.D.1989)).

¶12 We recently dealt with the issue of whether the district court must give a specific defense-requested instruction when a confidential informant is involved. See State v. Wilson, 1999 ND 34, p 13, 590 N.W.2d 202 (citing State v. His Chase, 531 N.W.2d 271 (N.D.1995)). In Wilson, we held the district court did not have to give a specific defense-requested instruction if the court's instructions correctly advised the jury of the law. Here, the district court's instructions adequately informed the jury regarding the weight and credibility of the witnesses and correctly advised the jury of the law. The district court did not err in refusing to give the requested instruction.

IV

¶13 The dissent would reverse based on the jury instruction given by the district court concerning conspiracy. The defendant did not object at trial, and has not raised the issue on appeal.

¶14 Under N.D.R.Crim.P. 52(b), "[o]bvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The note to Rule 52(b) explains: "the power to notice obvious error, whether at the request of counsel or on the court's own motion, is one the courts should exercise cautiously and only in exceptional circumstances. The power should be exercised only where a serious injustice has been done to the defendant." See also Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (concluding the failure to submit the issue of materiality in a perjury case to the jury was a plain error, but did not require reversal under Fed.R.Crim.P. 52(b) because the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted) (recognizing an appellate court should not exercise its discretion to correct a plain error unless the error "seriously affects the fairness, integrity or public reputation of judicial proceedings"). "Our power to notice obvious error is exercised cautiously and only in exceptional situations where the defendant has suffered serious injustice." State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988) (citing State v. Miller, 388 N.W.2d 522 (N.D.1986)). This is not such a case. No "serious injustice" has occurred that would require this Court to notice obvious error on its own motion.

V

¶15 Smith's other arguments are without merit, and the judgment of the district court is affirmed.

¶16 VANDE WALLE, C.J., and KAPSNER, J., concur.

NEUMANN, Justice, dissenting.

¶17 This Court has the power to notice obvious error under Rule 52(b), N.D.R.Crim.P., at the request of counsel or...