State v. Stridiron

• Decision Date: 26 January 2010
• Docket Number: No. 20080285.,No. 20090093.,20080285.,20090093.
• Citation: 2010 ND 19,777 N.W.2d 892
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Antonio Phillip STRIDIRON, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Bradley A. Davis, Defendant and Appellant.
• Court: North Dakota Supreme Court

777 N.W.2d 892

2010 ND 19

STATE of North Dakota, Plaintiff and Appellee v. Antonio Phillip STRIDIRON, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee v. Bradley A. Davis, Defendant and Appellant.

No. 20080285.

No. 20090093.

Supreme Court of North Dakota.

January 26, 2010.

Timothy C. Wilhelm, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Robert Wade Martin, North Dakota Public Defenders' Office, Minot, N.D., for defendant and appellant Antonio Phillip Stridiron.

Joshua Buchanan Rustad, North Dakota Public Defender's Office, Williston, N.D., for defendant and appellant Bradley A. Davis.

MARING, Justice.

[¶ 1] In consolidated appeals, Antonio Phillip Stridiron and Bradley A. Davis appeal from criminal judgments entered on jury verdicts finding Stridiron guilty of class AA felony murder and Davis guilty of class C felony aggravated assault. We affirm, concluding the district court did not err in its pretrial and trial rulings and the evidence is sufficient to support Davis's conviction.

I

[¶ 2] In the early morning hours of July 29, 2007, the body of Joshua Velasquez was found in an alley across the street from a Minot duplex where he had been attending a party. Stridiron and Davis, who are African-American, resided in the duplex. Velasquez was Hispanic. Following an investigation, Davis was charged with class C felony aggravated assault in violation of N.D.C.C. § 12.1-17-02 and Stridiron was charged with class AA felony murder in violation of N.D.C.C. § 12.1-16-01. The State alleged that an altercation occurred at the party and Davis and Stridiron followed Velasquez across the street where Davis struck him with a garden tool containing serrated blades and Stridiron shot him with a handgun.

[¶ 3] The district court, over Davis's objection, granted the State's motion to join the cases for trial. Before trial, the court also denied Stridiron's motion for a public opinion survey and for a change of venue based on his allegation of prejudicial pretrial publicity. During the selection of a jury, the State exercised a peremptory challenge excusing the only African-American juror in the jury pool, and the court denied Stridiron and Davis's challenge to the State's action based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). During the trial, the court refused to allow Stridiron to present evidence from a witness he claimed would testify that Davis admitted to her that Davis killed Velasquez. The jury returned verdicts finding Stridiron and Davis guilty as charged.

II

[¶ 4] Davis argues the district court erred in granting the State's pretrial motion to join for trial his aggravated assault case with Stridiron's murder case, and in failing to sever the cases when he renewed his objection during voir dire.

[¶ 5] Before trial, the State moved to join the cases because joinder "will permit economy and efficiency and will avoid multiplicity of trials in a situation in which these objectives can be reached without substantial prejudice to the rights of the ... defendants." Davis objected, arguing he would be prejudiced by Stridiron's attempts to implicate him in the murder and by the introduction of evidence relevant to the murder charge but irrelevant to his aggravated assault charge. The district court granted the State's motion, concluding Davis had failed to establish he would be prejudiced by joinder and limiting instructions given to the jury would sufficiently address Davis's concerns. During voir dire, Davis renewed his objection and sought to sever the cases based on a morning newspaper article indicating the defendants were "being tried together for alleged roles in death of Velasquez." Based on the admonitions given earlier to the jury to not read about, listen to, or view news accounts of the case, the court denied Davis's motion.

[¶ 6] In State v. Bingaman, 2002 ND 202, ¶¶ 10-11, 655 N.W.2d 51, this Court explained:

Rule 8(b), N.D.R.Crim.P., provides for two or more defendants to be charged in the "same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more offenses." Rule 13, N.D.R.Crim.P., further gives the court the power to "order two or more indictments, informations, or complaints to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment, information, or complaint." Joinder of defendants is proper when the defendants are linked together by their participation in a common transaction or act. See Explanatory Note, N.D.R.Crim.P. 8 (citing United States v. Brennan, 134 F.Supp. 42 (D.Minn. 1955)).

However, even when Rules 8 and 13, N.D.R.Crim.P., are initially met and joinder is granted, severance of the parties may still be necessary if the court deems the joinder to be substantially prejudicial to one or more of the parties. Rule 14, N.D.R.Crim.P., states that, "[i]f it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires." See State v. Wamre, 1999 ND 164, ¶ 29, 599 N.W.2d 268. The trial court's duty under Rule 14 is a continuing one, and it must continue to assess whether severance is necessary in light of developments during the trial. See [State v.] Dymowski, 459 N.W.2d [777,] 781 [(N.D.1990)]. The purpose of Rule 14 is to "promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of defendants to a fair trial." Dymowski, at 779.

We will not set aside a district court's decision to consolidate offenses or its refusal to grant a separate trial unless the defendant establishes a clear abuse of discretion. See Wamre, 1999 ND 164, ¶ 30, 599 N.W.2d 268; State v. Purdy, 491 N.W.2d 402, 406 (N.D.1992). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. State v. Paul, 2009 ND 120, ¶ 6, 769 N.W.2d 416.

[¶ 7] Here, Stridiron and Davis were charged with participating in the same series of acts constituting more than one offense which occurred contemporaneously and were directed toward the same victim. Davis concedes "the consolidation of these matters provided judicial convenience and economy as the witnesses were largely the same." Davis contends prejudice is demonstrated by the newspaper article which stated the defendants were being tried for their roles in Velasquez's death, exhibits introduced in evidence that were relevant to Stridiron's murder charge but not to the aggravated assault charge, the "ability of the other defendant's attorney to cross examine" the defendant, and Stridiron's lawyer's attempts through the questioning of a witness to implicate Davis in the murder of Velasquez.

[¶ 8] We reject Davis's arguments. Davis has failed to link the allegedly misleading newspaper article with having any effect on the jury. The district court gave limiting jury instructions on the proper use of the murder evidence, and a jury is generally presumed to follow a court's instructions. See, e.g., State v. Gibbs, 2009 ND 44, ¶ 21, 763 N.W.2d 430. Moreover, "`[b]are allegations that a defendant would stand a better chance of acquittal in a separate trial or that there may be some "spillover effect" from evidence against a codefendant is insufficient to compel severance.'" Wamre, 1999 ND 164, ¶ 30, 599 N.W.2d 268 (quoting Purdy, 491 N.W.2d at 405-06). The ability to cross-examine a codefendant does not demonstrate prejudice because this would be present in any case involving codefendants, and the rules specifically allow joint trials of codefendants under certain circumstances. Furthermore, we have said an attempt by one defendant to exculpate himself by inculpating another defendant is an insufficient ground to require separate trials. See, e.g., Bingaman, 2002 ND 202, ¶ 13, 655 N.W.2d 51.

[¶ 9] We conclude the district court did not abuse its discretion in joining the cases for trial and in refusing Davis's request for severance.

III

[¶ 10] Stridiron argues the district court erred in denying his pretrial motion for access to the names, addresses, and telephone numbers of the members of the prospective jury pool for purposes of submitting to them a public opinion survey to gauge any bias caused by media coverage of Velasquez's death and by actions of Velasquez's family and friends in initiating a "Justice For Joshua Velasquez" petition drive. Stridiron also argues the court erred in denying his companion motion for a change of venue based on prejudicial pretrial publicity generated by conventional media and online commentary.

[¶ 11] Rule 21(a), N.D.R.Crim. P., provides: "Upon the defendant's motion, the court must transfer the proceeding against the defendant to another county if the court is satisfied that so great a prejudice against the defendant exists in the transferring county that the defendant cannot obtain a fair and impartial trial there." We have said that "[p]ublicity per se is not necessarily prejudicial or damaging to a criminal defendant," and "[b]efore a change of venue because of pretrial publicity is proper, a defendant must show the publicity was in fact prejudicial." State v. Ellis, 2001 ND 84, ¶ 6, 625 N.W.2d 544. "The quantity of media coverage does not control a motion for change of venue; rather, the defendant must show there was prejudicial publicity which caused such bias that it would be impossible to select a fair and impartial jury." Id. While prejudice to a defendant may be so obvious...