State v. Thiel

Decision Date20 April 1994
Docket NumberCr. N
Citation515 N.W.2d 186
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Duane Lynn THIEL, Defendant and Appellant. o. 930015.
CourtNorth Dakota Supreme Court

Brian David Grosinger (argued), Asst. State's Atty., Mandan, for plaintiff and appellee.

Michael Ray Hoffman (argued), Bismarck, for defendant and appellant.

NEUMANN, Justice.

Duane Thiel (Thiel) appeals from a judgment of conviction for class AA felony murder, in violation of Section 12.1-16-01, N.D.C.C. Thiel also appeals from orders denying his motions for new trial. We affirm the judgment of conviction and the orders denying a new trial.

The body of Thiel's brother, Warren, was found at Warren's rural home on February 1, 1992, by Warren's son, Mitch, and Morton County Deputy Sheriff, Bryan Kirchmeier. An autopsy was conducted, and the medical examiner concluded that Warren died of "homicidal gunshot wounds to the head and chest." The murder weapon, Warren's Remington .22 caliber bolt-action rifle, was discovered by law enforcement officers at an abandoned farmsite southwest of New Salem a couple of days after Warren's body was discovered. After an investigation, Thiel was arrested, tried, and convicted by a jury of murdering Warren. The court sentenced Thiel to 15 years in the state penitentiary, and Thiel filed this appeal.

On appeal Thiel asserts that the trial court erred in denying his motions for new trial. Thiel had made two separate motions to the trial court for a new trial, alleging three separate grounds in support of his motions: (1) there is insufficient evidence to convict and the weight of the evidence does not support the conviction; (2) the prosecutor made irrelevant and prejudicial comments during opening statement; and (3) evidence discovered after the trial shows that the government's key witness committed perjury at the trial, thereby denying Thiel of his constitutional due process right to a fair trial.

Rule 33(a), N.D.R.Crim.P., states:

"The court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice. The motion for a new trial must point out with particularity the defects and errors complained of."

This court will not set aside a trial court's denial of a motion for a new trial unless the trial court has abused its discretion in denying the motion. State v. Garcia, 462 N.W.2d 123 (N.D.1990).

Thiel asserts that there is insufficient evidence to support his conviction and also that the guilty verdict is against the weight of the evidence. In State v. Kringstad, 353 N.W.2d 302, 306-307 (N.D.1984), we explained the distinction between evidentiary sufficiency and evidentiary weight:

"A conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.... The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case.... It follows, therefore, that our review of an appeal founded upon alleged evidentiary insufficiency must be subject to the same standard as an appeal from a judgment of guilty, or an appeal from the denial of a motion for entry of a judgment of acquittal; that is, we will look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to determine if there is substantial evidence to support the conviction.

* * * * * *

"When a motion for a new trial is made on the ground that the verdict is against the weight of the evidence the issues are far different. The trial judge may, within limits, weigh the evidence and in so doing evaluate for himself the credibility of the witnesses.

* * * * * *

"[I]t is within the discretion of a trial court to grant a new trial if it concludes that a guilty verdict is against the weight of the evidence." [Citations omitted.]

The following evidence, viewed in a light most favorable to the verdict, supports the murder conviction. Warren's body was found seated in a chair with a blanket draped around it. That was circumstantial evidence to the investigators that Warren's killer was a friend or relative, not a stranger. Thiel appeared at the scene while law enforcement officers and medical personnel were tending to Warren's body. Thiel showed no remorse and told persons there that the guns and everything else on the farmstead were his. Deputy Kirschmeier testified that when Thiel arrived at the scene he said, "who shot my brother?" At that time no one at the scene had disclosed that Warren's death was caused by a shooting. Morton County Sheriff, Leo Schneider, testified that when Thiel arrived at the scene he also said, "Are you going to do an autopsy?" That statement was also made before anyone at the scene had disclosed that foul play was suspected in Warren's death. Later that day William Lang, a longtime acquaintance of the defendant, saw Thiel in a New Salem bar. Lang testified "He came walking in the bar and I says to him, 'I hear they found Warren dead today? Did he die of a heart attack?' He said, 'No, he was shot twice.' That's the words he told me and that's all I can say about it."

Not even the law enforcement officers investigating Warren's death knew or had any reason to suspect that Warren had been shot twice until several days later when the medical examiner's autopsy report revealed that there was one gunshot wound to Warren's head and a second gunshot wound to his chest.

Benji Lillestol, a licensed practical nurse and the medical liaison officer at the Morton County Correctional Center, testified that while she was taking Thiel's blood pressure at the county jail Thiel said to her, "Benji, there is more going on than you know. I aint [sic] the only one."

The prosecutor's key witness in this case was Michael Hunter, who was a cellmate with Thiel in the county jail. Hunter testified that Thiel told him, "he had shot his brother" and that he had used some checks to coerce a guy "to help him murder" his seventy-one year old brother. Hunter also testified that Thiel told him that Warren had been a burden to him and to their mother.

A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gefroh, 495 N.W.2d 651 (N.D.1993). We conclude that, viewing the evidence in a light most favorable to the verdict, a rational factfinder could find Thiel guilty beyond a reasonable doubt of having murdered Warren. Therefore, we conclude that the evidence was legally sufficient to support the conviction. We also conclude that the evidence does not so preponderate against the guilty verdict that we can say the trial court abused its discretion in refusing to grant a new trial on the ground that the verdict is against the weight of the evidence.

Thiel also asserts that the trial court abused its discretion in refusing to grant a new trial because the prosecutor made the following inappropriate and prejudicial remarks during the opening statement:

"As the judge had instructed you, there are two types of evidence that may be presented for your consideration. There is direct evidence and there is circumstantial evidence and the judge has given you and will give you the precise guidelines concerning those two general types of evidence, but for the purpose of my opening statement today, let me say that direct evidence in a murder case such as this would be an eyewitness or the smoking gun or confessing to a newspaper reporter like August Vogel did to Lucille Hendrickson of the Mandan Pioneer in 1966."

Defense counsel immediately objected to the reference about the Vogel confession. The trial court responded:

"It's not relevant. The jury will ignore that comment. It's really not relevant."

The determination to grant or deny a new trial for misconduct of counsel rests within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. State v. Kaiser, 417 N.W.2d 376 (N.D.1987). Although it is inappropriate for counsel to make remarks for the purpose of arousing sympathy or prejudice, not every improper remark warrants reversal of a criminal conviction. State v. Paulson, 477 N.W.2d 208 (N.D.1991). Here, the prosecutor's passing reference to a confession in another case, as an example of direct evidence, was not highly prejudicial. Furthermore, in response to defense counsel's objection the trial court admonished the jury to ignore the comment. We presume that a jury will follow the trial court's admonition. State v. Paulson, supra, 477 N.W.2d at 210. We conclude that the trial court did not abuse its discretion in refusing to grant a new trial because of the prosecutor's remarks during opening statement.

Thiel also asserts that the trial court abused its discretion in refusing to grant him a new trial on the ground that newly discovered evidence shows the prosecutor's key witness, Michael Hunter, gave false testimony at the trial.

Hunter was a cellmate with Thiel in April 1992 while Hunter was awaiting trial on federal charges for interstate transportation of stolen checks. Hunter came forward and told authorities about Thiel's confession. He said that he wanted assistance with getting bail in return for testifying at Thiel's trial. Hunter did not get bail assistance, and he was subsequently convicted on the federal stolen check charges. Thereafter Hunter traveled to the State of Washington where he allegedly threatened to kill a federal judge and two federal prosecutors. Hunter was in jail in Washington pending trial on those charges when he was transported back to North Dakota to testify at Thiel's trial. Regarding the Washington charges Hunter testified:

"I will be released as soon as I get back. The charges are being disposed of without...

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