State v. Steffes

Decision Date26 May 1993
Docket NumberNo. 920336,920336
Citation500 N.W.2d 608
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Duane Allen STEFFES, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Richard J. Riha, Asst. State's Atty., Bismarck, for plaintiff and appellee.

Irvin B. Nodland (argued) and Thomas A. Dickson (on brief) of Nodland & Dickson, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

Duane Allen Steffes appealed from a criminal judgment of conviction based upon the verdict of a jury which found him guilty of driving a motor vehicle while under the influence of alcohol pursuant to section 39-08-01, NDCC. We affirm.

In the early morning hours of March 7, 1992, Sergeant Jerry Seeklander of the North Dakota Highway Patrol stopped Steffes after observing him driving a motor vehicle in an erratic manner. While requesting Steffes to produce his driver's license and proof of insurance, Sergeant Seeklander noticed that Steffes's eyes were bloodshot and his speech was slurred, and that an odor of an alcoholic beverage emanated from the vehicle. Inside the vehicle was an open bottle of Schnapps and a spilled bottle of beer.

Sergeant Seeklander asked Steffes to accompany him to his patrol car where a number of verbal tests were administered, such as an alphabet recitation exercise and a counting exercise. Sergeant Seeklander taped Steffes's performance of the tests on the patrol car's audio tape recorder.

Following the verbal tests, Sergeant Seeklander asked Steffes to step out of the patrol car and perform a number of coordination tests, such as the walk-and-turn exercise, the one-leg stand exercise, and the finger-to-the-nose exercise. As a result of Steffes's performance of these tests and Sergeant Seeklander's other observations, Seeklander placed Steffes under arrest for driving while under the influence of alcohol. A blood test was administered which indicated a blood alcohol concentration reading of 0.16%.

On March 16, 1992, Steffes filed a Rule 16, NDRCrimP, discovery request with the trial court and served a copy upon the State. The broad discovery request sought material similar to the audio-taped conversation between Sergeant Seeklander and Steffes. 1 The State responded to the request, stating that their files relating to the case would be open for Steffes's examination.

On April 10, 1992, an administrative hearing was held at the Department of Transportation. The evidence taken at the arrest scene--the bottle of Schnapps, the bottle of beer, and the audio-taped conversation in the patrol car--were all available to Steffes. The administrative hearing is not the subject of this appeal.

Sometime in June or July 1992, Sergeant Seeklander recorded over the audio tape, thus destroying the March 7, 1992 taped recording of Steffes's performance of the verbal tests.

A few weeks before the trial, Steffes learned from Sergeant Seeklander that the audio tape may have been recorded over or erased. On the night of August 24, 1992, the day before the trial, Steffes learned that the audio tape had in fact been obliterated. On the day of the trial, August 25, 1992, Steffes attempted to include an instruction to the jury which dealt with the issue of the destroyed audio tape. The proposed instruction read:


The state has the duty to preserve all relevant evidence. If the state has failed to offer evidence under their control and the evidence was not equally available to the defendant, you may infer that the evidence would be unfavorable to the state.

NDJI--CIVIL 1625 (modified)" 2

The trial court refused to give the instruction.

During the jury selection process for Steffes's trial, the State exercised three of its four peremptory challenges. The three challenges were against male members of the jury panel. Steffes exercised all four of his peremptory challenges, first striking three male members of the jury panel, and then striking one female member. At no time did Steffes challenge the State's use of the peremptory challenges. The trial was held before a jury panel of five women and one man.

Steffes was charged with driving while under the influence of alcohol, and the per se offense of driving with a blood alcohol concentration greater than .10%. NDCC Sec. 39-08-01. The jury returned with a verdict finding that he had driven a vehicle while under the influence of alcohol, but made no finding that he had driven with a blood alcohol concentration greater than .10%.

Steffes raises two issues on appeal: (1) The trial court failed to properly instruct the jury regarding the destruction of the audio tapes; and (2) The prosecution's gender-based peremptory challenges denied him equal protection of the law.

Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. McIntyre, 488 N.W.2d 612 (N.D.1992); State v. Mounts, 484 N.W.2d 843 (N.D.1992). In a criminal case, a defendant is entitled to a jury instruction on a valid applicable theory, but only if there is some evidence to support it. Rule 30, N.D.R.Crim.P.; State v. Cummins, 347 N.W.2d 571 (N.D.1984); State v. Gann, 244 N.W.2d 746 (N.D.1976). On appeal, jury instructions are fully reviewable and must be viewed as a whole; and when so considered, if they correctly advise the jury as to the law, their inclusion or exclusion is sufficient. City of Minot v. Rubbelke, 456 N.W.2d 511 (N.D.1990); State v. Haakenson, 213 N.W.2d 394 (N.D.1973).

Steffes argues that the critical evidence on the issue of his driving while under the influence of alcohol was Sergeant Seeklander's testimony on the field sobriety tests. By alleging that the audio tapes would prove that he was not under the influence of alcohol, he needed to play the audio tapes to the jury to rebut Seeklander's testimony. Absent the playing of the audio tape, Steffes claimed an entitlement to receive a jury instruction regarding the evidentiary weight to be given in the absence of the "crucial evidence." The theory upon which Steffes based his proposed instruction was that, in the absence of the instruction, he would not receive a fair trial and his due process rights under the United States Constitution would be violated. 3 Therefore, we must determine if there was sufficient evidence presented to support such a claim, and if so, whether the denial of the instruction adequately informed the jury as to the applicable law. Rubbelke, supra; Cummins, supra. 4

Rule 16, N.D.R.Crim.P., governs criminal discovery. State v. Rasmussen, 365 N.W.2d 481 (N.D.1985). It is a reciprocal discovery rule that lists the prosecutor's and defendant's duties and obligations when engaging in discovery. The prosecutor has a duty to preserve evidence that is material and favorable to the defendant. Rule 16(a)(1), N.D.R.Crim.P. A prosecutor's failure to do so may be held to violate the defendant's constitutional right to due process and a fair trial. Rule 16(d)(2), N.D.R.Crim.P.

Courts throughout this country have attempted to analyze an accused's right to due process when prosecutors fail to provide evidence to the defense which is within, or potentially within, their purview. A summation of these cases reveals that the conduct of the state which has resulted in the loss of evidence can be grouped into three general categories: (1) the state's failure to collect evidence in the first instance, (2) the state's failure to preserve evidence once it has been collected, and (3) the state's suppression of evidence which has been collected and preserved. See State v. Brosnan, 24 Conn.App. 473, 589 A.2d 1234 (1991); State v. Gerhardt, 161 Ariz. 410, 778 P.2d 1306 (Ct.App.1989); State v. Trumble, 113 Idaho 835, 748 P.2d 826 (Ct.App.1987).

At one end of the evidentiary spectrum is the situation where the state initially fails to collect evidence. Police generally have no duty to collect evidence for the defense. We have held, for example, that the state is required neither to make a sample of defendant's breath available for independent intoxication testing, State v. Larson, 313 N.W.2d 750 (N.D.1981), nor to inform defendants that they may have an additional intoxication test performed at their own expense. State v. Rambousek, 358 N.W.2d 223 (N.D.1984). Similarly, absent statutory requirement, police have no duty to tape-record a defendant's interrogation. State v. Gordon, 261 N.J.Super. 462, 619 A.2d 259 (Ct.App.Div.1993); People v. Wimberly, 5 Cal.App.4th 773, 7 Cal.Rptr.2d 152 (1992); Holder v. State, 571 N.E.2d 1250 (Ind.1991); State v. Havatone, 769 P.2d 1043 (Ariz.Ct.App.1989); cf. Stephan v. State, 711 P.2d 1156 (Alaska 1985).

At the other end of the evidentiary spectrum is the situation where the state collects and preserves evidence, but withholds that evidence when the defendant requests it, or when it otherwise becomes material to the defense. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the state withheld a crucial extra-judicial statement made by the defendant, despite defense counsel's request for the statement. The Court held that, "suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment." Id., at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. Accord State v. Anderson, 336 N.W.2d 123 (N.D.1983); State v. Hilling, 219 N.W.2d 164 (N.D.1974). Steffes's case is not factually analogous to Brady in that in the present case, the evidence was not suppressed, but destroyed. Cases such as Brady and its progeny, e.g., Anderson, supra, and Hilling, supra, in which the issue centers around the state's suppression of evidence are distinguishable and not precedential to Steffes's case. See State v. Youngblood, 173 Ariz. 502, 844 P.2d 1152 (1993) [Feldman, C.J. concurring and dissenting]; Brosnan, supra.

The third type of conduct, which lies somewhere between a failure to...

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