State v. Ternes

• Decision Date: 27 October 1977
• Docket Number: Cr. N
• Citation: 259 N.W.2d 296
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Philip J. TERNES, Defendant and Appellant. o. 595.
• Court: North Dakota Supreme Court

Page 296

259 N.W.2d 296

STATE of North Dakota, Plaintiff and Appellee, v. Philip J. TERNES, Defendant and Appellant.

Cr. No. 595.

Supreme Court of North Dakota.

Oct. 27, 1977.

Rehearing Denied Nov. 10, 1977.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for defendant and appellant; argued by Irvin B. Nodland, Bismarck.

Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellee.

PEDERSON, Justice.

Philip J. Ternes was charged with the murder of his wife and was convicted of manslaughter. He appeals, contending that the trial court abused its discretion in refusing to remove a part-time police officer from the jury upon challenge for cause, and further contending that the "dangerous special offender act" was improperly applied in his sentencing. We affirm the conviction.

It is settled law in North Dakota that no error can be predicated in the overruling of a challenge for cause where the appellant has not exhausted all of his preemptory challenges. State v. Uhler, 32 N.D. 483, 156 N.W. 220 (1916); State v. Lesh, 27 N.D. 165, 145 N.W. 829 (1914). See also, Herbert v. Northern Pacific R. Co., 3 Dak. 38, 13 N.W. 349 (1882), affirmed, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755 (1886). Ternes used his final peremptory challenge in removing the prospective juror, Leroy Berger, after a challenge for cause was denied. We must therefore determine whether the denial of that challenge was within the sound discretion of the trial court. We conclude that it was.

A challenge for cause in a criminal case may be based upon actual or implied bias. Section 29-17-35, NDCC. Implied bias may be based upon any or all of the enumerated causes found in § 29-17-36, NDCC, and no others. None of the causes listed are applicable in this case, nor is their application strenuously contended. (See § 28-14-06, NDCC, for challenges in civil "The existence of a state of mind on the part of the juror, with reference to the case or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially without prejudice to the substantial rights of the party challenging, and which is known in this title as actual bias."

cases.) Section 29-17-35(2), NDCC, provides:

The existence of actual bias must be determined from the voir dire examination of the prospective juror, Leroy Berger. Berger is the son of a part-time Belfield police officer. Berger testified that he had a police badge and had substituted for his father during a period of three weeks. Berger stated that he: had never been in court before, would follow the law as instructed by the judge, had never been the victim of a crime, had heard and read about the case but remembered only part of what he had heard and read, and had no reason for being particularly interested in the case.

The appellant argues that a bias or prejudice on the part of a current badge-carrying police officer should be inferred. This Court is not at liberty to expand the statutory list of causes which imply bias. The answers given by the prospective juror did not convince the trial court that Berger could not try the issue impartially.

People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469 (1973), contains an analysis of portions of the New York Code of Criminal Procedure (since repealed) which, except for provisions not related to the problem in this case, are identical to §§ 29-17-35 and 29-17-36, NDCC. In that case a venireman with fifteen years' experience as a corrections officer was challenged for cause, even though he stated that he had formed no opinion as to the guilt of two defendants charged with the felony murder of a deputy sheriff. The New York Court of Appeals emphasized that it was unable to add to the list of implied biases because of the specific statutory language. In reversing the conviction, however, the New York court noted that the corrections officer had made it quite clear that he would give less credence to the defendants' testimony "because of their status as prisoners." Thus actual bias was clearly shown by the testimony of the venireman.

The testimony of the prospective juror in the instant case does not lead us to a similar conclusion, and we find no abuse of the trial court's discretion. Nevertheless, the comment of Judge Wachtler in the Culhane decision appears to be an appropriate admonition for judges in this State:

"It is almost always wise for a trial court to err on the side of disqualification . . . even if a juror is wrongly but not arbitrarily excused, the worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror." People v. Culhane, 350 N.Y.S.2d at 398, 305 N.E.2d at 481, supra, footnote 3.

Ternes next contends that the dangerous special offender statute under which he was sentenced is either unconstitutional or was unconstitutionally applied to him. We will construe a statute so as to avoid finding it unconstitutional if it is possible to do so. Walker v. Omdahl, 242 N.W.2d 649 (N.D.1976). We will presume the constitutionality of a properly enacted statute unless it is clearly shown to be violative of state or federal constitutions. Gableman v. Hjelle, 224 N.W.2d 379 (N.D.1974).

The first subsection of the dangerous special offender statute describes the categories of special offenders. The second prescribes the possible sentences. The third establishes a procedure requiring the prosecutor to give notice to defendant of the intention to seek sentencing under the statute. The fourth establishes a hearing procedure which places upon the prosecutor the burden of showing that the defendant is a dangerous special offender by a preponderance of the evidence.

There is no allegation in this case that the length of the maximum sentence authorized is in any way improper. The hearing procedure was specifically waived. We are That part of § 12.1-32-09(1), NDCC, which establishes categories of special offenders applicable to this case, provides in pertinent part:

asked only to decide the constitutionality of subsections 1 and 3 of § 12.1-32-09, NDCC, or to determine if they were unconstitutionally applied to Philip Ternes.

"1. A court may sentence a convicted offender to an extended sentence as a dangerous special offender in accordance with the provisions of this section upon a finding of any one or more of the following:

"e. The offender is especially dangerous because he used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom."

The word "dangerous" is nowhere defined in this title or section. ¹ Therefore we must construe the term in a reasonable manner consistent with the statute's purpose. Title 12.1, NDCC, follows, in very large part, a proposed new federal criminal code. See, however, 18 U.S.C., § 3575, which provides for increased sentence for dangerous special offenders. 18 U.S.C., § 3575(f), defines "dangerous" as follows:

"(f) A defendant is dangerous for purposes of this section if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant." (Emphasis added.)

Because § 12.1-32-09, NDCC, and 18 U.S.C., § 3575, were both enacted to provide more lengthy sentences for particular offenders, and because the procedures used are essentially the same, it is logical that the word "dangerous" would mean the same in both statutes. In United States v. Neary, 552 F.2d 1184 (7th Cir. 1977), the court analogized § 3575(f) to a recidivist statute and noted that the concept of dangerousness is a verbalization of considerations underlying any sentencing decision. We believe it proper to construe § 12.1-32-09, NDCC, to mean that, except as hereinafter noted, the prosecutor must show that a period of confinement greater than that normally provided as a penalty for the particular offense is required to protect the public from further criminal conduct. Because of definitive language in § 12.1-32-09(1)(e), NDCC, we conclude that this showing can be made by mere proof that the defendant used a firearm, dangerous weapon, or destructive device in the commission of an offense or during the flight therefrom.

We interpret the words of the statute as establishing four categories of special offenders who may be shown to be dangerous, and one category of special offenders who are, per se, dangerous. We cannot say that the Legislature has not the power to do that.

Ternes argues that the hearing procedure is rendered pointless when the state's attorney has only to show, by a preponderance of the evidence, that a felony was committed and that a firearm was used, after having already proven the same thing at the trial beyond a reasonable doubt. A sentencing hearing under § 12.1-32-09(1)(e), NDCC, permits the court to consider matters which would not be admissible in the trial itself before a jury. Accordingly, the hearing required under § 12.1-32-09(1)(e) is not superfluous.

It was argued that if we allow the prosecutor to seek an extended term while showing only what was necessary to prove the crime, we enter the undefined areas between legitimate prosecutorial discretion and the limits imposed by due process. ²

The ABA Standards Relating to the Prosecution Function and the Defense Function, Part VI (Approved Draft, 1971), describes the role of the prosecutor in sentencing as an obligation to seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities. We are satisfied that § 12.1-32-09, NDCC, as we have construed it, does not violate Ternes' rights to due process by providing vague penalties or by allowing the prosecutor to make legislative decisions. So. Valley Grain Dealers v. Bd. of Cty. Com'rs, 257 N.W.2d 425, 434 (N.D.1977). We are also satisfied that the statute, as construed, does not in other ways violate Ternes' right to...