State v. Thompson

• Decision Date: 10 August 1993
• Docket Number: Cr. N
• Citation: 504 N.W.2d 838
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant. o. 920319.
• Court: North Dakota Supreme Court

Page 838

504 N.W.2d 838

STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant.

Cr. No. 920319.

Supreme Court of North Dakota.

Aug. 10, 1993.

Richard James Riha (argued), Asst. State's Atty., Bismarck, for plaintiff and appellee.

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

LEVINE, Justice.

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:

"You are the judges of all questions of fact in this case. You alone must weigh the evidence under these instructions and determine the credibility (believability) of those who have testified. As to these matters the Court expresses no opinion.

"In performing this task you may consider those facts and circumstances in the case which tend to strengthen, weaken, or contradict one's testimony. You may consider the age, intelligence, and experience of the witness, the strength or weakness of his recollection, how he came to know the facts to which he testified, his possible interest in the outcome of the trial, any bias or prejudice he may have, his manner and appearance, whether he was frank or evasive while testifying, and whether his testimony is reasonable or unreasonable.

"If you find a conflict in the evidence, you should reconcile it, if you can, because each witness is presumed to have told the truth. If you cannot do so, you have the right to determine whom of the witnesses you will believe, in whole or in part.

"You should give to all credible testimony its just and fair weight. You should consider the evidence in this case in the light of your common sense and your ordinary experience and observation of human affairs."

The objection precipitated the following colloquy:

"MR. HOFFMAN: I would object to that language. I think that is in error and I think the standard North Dakota Pattern Jury Instructions on Weight and Credibility was changed in part because of that language.

"THE COURT: In error? Is there case law to support that?

"MR. HOFFMAN: I don't have any case law, but I think--well, I guess I have some insight on that because I was for a time on the Pattern Jury Instruction Commission and I know that it was agreed upon by the Commission that that language was inappropriate to a criminal prosecution where the State has the burden of proof beyond a reasonable doubt, and I think it was agreed upon that to state that each witness is presumed to have told the truth is not appropriate, and if you look at the [new] Pattern Jury Instruction, that language is not in there for Weight and Credibility.

"THE COURT: Mr. Riha?

"MR. RIHA: As far as I know, as it is, it's a correct statement of the law, but I guess I'm not aware of any change in the instruction.

"THE COURT: Well, to state the obvious, the patterns are not binding, certainly. They are suggested and strongly recommended and heavily used by the trial bench and bar.... I think that [the disputed language] is a correct statement of law."

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) (error in criminal trial is harmless, unless error prejudiced defendant's substantial rights).

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) (in civil case, instruction not erroneous in context of entire instruction on weight and credibility), generally, in a criminal case, it is erroneous and should not be given, whether or not the defendant testifies....