State v. Thompson
|10 August 1993
|504 N.W.2d 838
|STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant. o. 920319.
|North Dakota Supreme Court
Richard James Riha (argued), Asst. State's Atty., Bismarck, for plaintiff and appellee.
Michael Ray Hoffman (argued), Bismarck, for defendant and appellant.
Ronald Scott Thompson appeals from a criminal judgment entered upon a jury verdict finding him guilty of one count of burglary, in violation of NDCC Sec. 12.1-22- 02, and two counts of criminal trespass, in violation of NDCC Sec. 12.1-22-03. We reverse and remand for a new trial.
The charges against Thompson were tried to a jury. The evidence adduced by the State consisted chiefly of eyewitness identifications of Thompson and items of clothing, seized from Thompson's residence, that allegedly matched those worn by the perpetrator of all three crimes. Beth Splonskowski, then age ten, testified that she saw an intruder in the kitchen of her parents' home at approximately 8:00 a.m. on December 17, 1991. The intruder looked at her momentarily and fled. Beth said that the man's face was covered by a black cap with a big eye-hole and no openings for the nose and mouth, and that he wore a green coat. Beth's mother testified that Beth told her the man was about as tall as her father, who is between five feet, eleven inches and six feet tall. Before trial, Beth was "pretty sure" that the black cap seized from Thompson was the one worn by the intruder. At trial, Beth was absolutely certain that that cap had been worn by the trespasser.
Jeannie Nelson testified that she was awakened at approximately 5:00 a.m., on December 18, 1991, by the sound of cupboards and drawers being opened and closed in the kitchen of her home. Believing the cause of the disturbance to be her husband, David Nelson, or her son, she went back to sleep. She arose 45 minutes later, finding her kitchen in disarray. The cupboard doors were open and mail and contents of her purse were strewn about the floor. David Nelson later found opened mail on the back steps of the home and further discovered that his leather jacket was missing. The jacket was never recovered.
Peggy Nagel testified that she was awakened at approximately 5:30 a.m. on December 18, 1991, by the slam of the back door of her boyfriend, Ted Morris', house. She had been asleep on the living room couch and, hearing footsteps in the kitchen, arose to see who had entered the home. She said she made eye contact with the man and was able to see his face because the kitchen light was on. Upon seeing her, the intruder ducked back into the kitchen and ran out of the home. Morris and Nagel did not report the incident to the police. But, David Nelson did, after he overheard a conversation about the Morris break-in while getting a haircut at the salon where Nagel worked. Nelson recognized Ted Morris as being his neighbor and notified the police of what he had overheard.
The police eventually interviewed Nagel and Morris. Nagel described the intruder as a brown-haired, "stocky" man who stood between five feet, nine inches and five feet, ten inches tall. She also said that the man was wearing a gray coat and, possibly, blue jeans. Nagel also identified Thompson in photographic lineups conducted before and during trial. Although she could not positively identify the gray jacket at the police station, she did positively identify it at trial.
The State's final eyewitness was Chris Lembke, a newspaper carrier whose delivery route encompasses the neighborhood in which the Nelsons and Ted Morris live. Lembke testified that, at approximately 5:00 a.m., on December 18, 1991, he saw a man sitting on the porch of the home next to the Nelsons' home, rummaging through a leather jacket. Lembke delivered the Nelsons' newspaper and, minutes later, observed the same man walking in a nearby driveway, carrying the leather jacket. A short while later, Lembke again passed by the man, this time at a point a few blocks away from the Nelsons'. According to Lembke, the man was wearing a gray jacket and what appeared to be dark "joggers pants." He further explained that the man's face was covered by a dark cap with a jagged slit cut into it at eye level. Lembke, who stands over six feet tall, also said the man was between five feet, nine inches and five feet, eleven inches tall, and "stocky." The State's exhibits, which consisted of a dark cap with a homemade eye-hole, a gray jacket, and "joggers pants," and which had been seized from Thompson's residence, were all positively identified by Lembke as having been worn by the man he had seen on the morning of December 18, 1991.
Thompson's defense was directed primarily to attacks upon the credibility of the eyewitnesses' identifications. He also attacked the failure of the police to attempt to gather fingerprints or other evidence and to conduct neighborhood checks. Thompson, however, did not testify.
After the parties rested, they met with the court in chambers to discuss the court's proposed final jury instructions. Thompson's attorney objected to the highlighted portion of the following proposed instructions on weight and credibility:
The objection precipitated the following colloquy:
The disputed language, therefore, was included in the trial court's jury instructions on weight and credibility. The court also instructed the jury on the State's burden of proof, including a detailed charge on the concept of reasonable doubt, and on the presumption of innocence. The jury returned a verdict finding Thompson guilty on all three counts. Final judgment was entered and Thompson subsequently was sentenced to a ten-year prison term in the North Dakota State Penitentiary. Thompson appealed.
On appeal, Thompson urges us to find, as a matter of state constitutional law, that the presumption of truthfulness instruction contravened his due process protection against conviction except upon proof beyond a reasonable doubt, and thus denied him a constitutionally fair trial. See State v. Vogel, 467 N.W.2d 86 (N.D.1991); N.D. Const. Art. I, Sec. 12. We need not reach the constitutional issue raised by Thompson, however, because there are alternative grounds to resolve this issue. See, e.g., Schaff v. Schaff, 446 N.W.2d 28 (N.D.1989); Minot Daily News v. Holum, 380 N.W.2d 347 (N.D.1986).
Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. E.g., State v. McIntyre, 488 N.W.2d 612 (N.D.1992). In determining whether a jury instruction is misleading, the instruction must be considered as a whole, and if, when so considered, the instruction correctly advises the jury as to the law, it is sufficient even if part of it standing alone may be insufficient. Id. If a jury instruction, when read as a whole, is erroneous, relates to a central subject of the case, and affects the substantial rights of the accused, it is ground for reversal. 1 Id.; see also NDRCrimP 52(a) ().
Although the presumption of truthfulness instruction is permissible in a civil case, see Andrews v. O'Hearn, 387 N.W.2d 716 (N.D.1986) (), generally, in a criminal case, it is erroneous and should not be given, whether or not the defendant testifies....
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