State v. Welch, Cr. N

• Decision Date: 28 June 1988
• Docket Number: Cr. N
• Citation: 426 N.W.2d 550
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael Duane WELCH, Defendant and Appellant. o. 870133.
• Court: North Dakota Supreme Court

Page 550

426 N.W.2d 550

STATE of North Dakota, Plaintiff and Appellee, v. Michael Duane WELCH, Defendant and Appellant.

Cr. No. 870133.

Supreme Court of North Dakota.

June 28, 1988.

C. Charles Chinquist (argued), Fargo, for defendant and appellant.

James Forster Twomey (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

LEVINE, Justice.

Michael Duane Welch appeals from a judgment of conviction of conspiracy to possess and accomplice to possession of a controlled substance. The primary issue is whether the prosecutor's disclosure in his opening statement of an accomplice's conviction is prejudicial error requiring a new trial, in light of the failure to request a cautionary instruction. We hold it is not and affirm.

On Saturday, June 29, 1985, the drug enforcement unit of the North Dakota Attorney General's office was alerted that a manila envelope, delivered to the Northwest Orient Airlines Freight Service in Portland, Oregon, for shipment to Fargo, North Dakota, contained one ounce of cocaine with a street value of $13,000.00, and a greyhound racing club folder dated Friday, June 28, 1985. The package was addressed to "Marty Langan, P.O. Box 629, St. John, North Dakota 58369." Special Agent Ahlquist of the drug enforcement unit agreed to conduct surveillance at the Northwest Orient Airlines terminal in Fargo after arrival of the package at 3:00 p.m., Saturday, June 29.

June Langan, Welch's girlfriend who lived with him in St. John, North Dakota, made three attempts to pick up the package, twice accompanied by an "unidentified male." During the course of her third attempt, she was informed that only the addressee could receive the package. Finally, Martin Langan came to collect the package and was arrested outside the terminal in June Langan's car, accompanied by June.

In a separate proceeding, Martin Langan was tried and convicted of possession of a controlled substance. Before his sentencing, he agreed to provide information and testimony relating to the cocaine shipment. June Langan was also tried and convicted of being an accomplice to possession of a controlled substance. ¹

Following the trials of Martin Langan and June Langan, defendant Welch was tried on charges arising from the same facts. The jury convicted Welch of conspiracy to possess cocaine and accomplice to possession of cocaine. Welch appealed.

Welch argues that the trial court clearly abused its discretion and worked manifest injustice in denying his motion for mistrial. During his opening statement, the prosecutor disclosed that June Langan, Welch's "live-in girlfriend," had been convicted of being an accomplice to possession of a controlled substance:

"It became clear to Martin Langan that the package could not be picked up, that there were some problems with that. And around 5:00 o'clock, then he had to go and pick up the package. Now, based on that testimony, you'll find from the evidence that the live-in girlfriend of the Defendant, June Langan, was charged with the offense of accomplice to possession of a controlled substance in late January of last year. In October of last year, she was convicted in this courtroom of that offense, before a different District Judge. Her case is on appeal to our Supreme Court."

Welch promptly objected. The court sustained the objection. The prosecutor continued:

"Suffice it to say, ladies and gentlemen, that I will not call June Langan to testify here at this trial.

"Based on--following that conviction then, the Defendant in this case, Michael Welch, is charged with the two offenses that he now appears before you on."

Following opening statements, and out of the presence of the jury, Welch moved for a mistrial. The prosecutor defended on the ground that he planned to introduce June Langan's conviction to show that he could not call her as a witness because he expected her to claim the privilege against self-incrimination. The trial court noted that it was unfair to disclose June Langan's conviction in the opening statement, because her failure to testify was not material to the State's case. The court expressed concern at the tainted posture of the trial at this early stage, but denied the motion for mistrial, saying, "Let's see what happens."

It is well established that the conviction or guilty plea of a co-defendant may not be used as substantive evidence of another's guilt. State v. Padgett, 410 N.W.2d 143, 146 (N.D.1987). This principle applies where two or more people are charged with separate offenses growing out of the same circumstances. Id. at 146 n. 1. The prohibition is based on the defendant's right to have his guilt or innocence determined by the evidence presented against him, and not by what has happened in a criminal prosecution against some other person. State v. Felton, 131 N.J.Super. 344, 330 A.2d 23 (1974). Nor may a co-defendant's conviction be used to explain his failure to appear as a witness. State v. Peters, 82 R.I. 292, 107 A.2d 428, 48 A.L.R.2d 999 (1954); State v. Gordon, 321 A.2d 352 (Me.1974) (although mentioning co-defendant's conviction was improper, defendant was not denied a fair trial because defense counsel did not move for a new trial, evidence of guilt was strong, and the remark was momentary and not a critical feature of the prosecution's case).

By definition, an accomplice acts in complicity with a person or persons engaging in criminal conduct. See NDCC Sec. 12.1-03-01. Informing the jury of an accomplice's conviction tends to implicate those with whom the accomplice is closely associated. See United States v. Gullo, 502 F.2d 759 (3 Cir.1974). June Langan was described as Welch's "live-in girlfriend." The prosecution's theory was that Welch and June Langan were co-conspirators. At the very least, the opening statement suggested guilt by association. Therefore, we agree with defendant that the prosecutor's statement concerning June Langan's conviction was clearly improper.

The defendant argues that the trial court should have granted a mistrial because the error was prejudicial. ² Error is prejudicial if it causes substantial injury so that a different decision would have resulted absent the error. State v. Schimmel, 409 N.W.2d 335 (N.D.1987); see also Rule 52(a), NDRCrimP. However, in order to properly preserve the question of prejudice for appellate review, counsel must ask the trial court to give the jury a cautionary instruction. Andrews v. O'Hearn, 387 N.W.2d 716 (N.D.1986); Klein v. Harper, 186 N.W.2d 426, 435 (N.D.1971). The failure to request an instruction waives the objection to the allegedly prejudicial statement. See, e.g., State v. Padgett, 410 N.W.2d at 146; State v. Janda, 397 N.W.2d 59, 70 (N.D.1966); State v. Knudson, 21 N.D. 562, 567, 132 N.W. 149 (1911). Generally, a jury is presumed to follow the instructions provided by the court. State v. Janda, supra.

Depending on the circumstances, an instruction to the jury to disregard evidence of a co-defendant's confession, guilty plea, or conviction is sufficient to remove any improper prejudice from the statement. See, e.g., State v. Martin, 121 N.H. 1032, 437 A.2d 308 (1981); State v. Hunt, 352 S.W.2d 57 (Mo.App.1961); People v. Watson, 307 Mich. 596, 12 N.W.2d 476 (1943). Cf. State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977) (prejudice from disclosure of co-defendant's guilty plea held incurable due to great emphasis on the plea, confusion as to what crime co-defendant pleaded guilty to, and the deliberate nature of the prosecutor's revelations); State v. Fenton, 499 S.W.2d 813, 816 (Mo.App.1973) (prejudice from disclosure of co-defendant's guilty plea held incurable where trial court compounded prejudicial effect by overruling valid objections).

In this case, the prosecutor mentioned June Langan's conviction briefly and only during opening statement. The trial court sustained defense counsel's timely objection. Because the improper statement received very brief attention by the State in the context of the entire opening statement, and because our juries are presumed to follow jury instructions, we believe an instruction to disregard the statement would have removed any improper prejudice. We conclude therefore that counsel's failure to request a curative instruction waived the argument of prejudice. ³

We do not deem the failure to give a curative charge in this case to constitute obvious error under Rule 52, NDRCrimP. See State v. Padgett, 410 N.W.2d at 146; ⁴ State v. Janda, 397 N.W.2d at 70. Underscoring our analysis is the proposition that we use the obvious error doctrine sparingly to correct only particularly egregious errors. Ibid.

There are several mitigating circumstances which influence our conclusion that the trial court did not commit obvious error by failing to charge the jury sua sponte. June Langan's conviction was not the basis of any argument and, beyond being stated briefly during the opening, received no emphasis during the trial. Additionally, the trial court instructed the jury both on the meaning of a sustained objection, ⁵ and the nonevidentiary quality of opening statement, and that counsel's remarks must not be considered evidence. ⁶

Further, the evidence against Welch, although circumstantial, was substantial. The cocaine-filled package was sent from Portland, Oregon, with a nonexistent return address. There were telephone calls to and from Portland attributed to Welch's home telephone on the weekend the package was sent. There is testimony that June Langan, Martin Langan, and Welch were together at an acquaintance's trailer in Fargo the morning Martin and June picked up the package at the Fargo airport. Agent Ahlquist testified June stated to him that she and Welch had sent $1,500, a considerable sum, to obtain the racing folder which by the time it arrived in the package had expired and was therefore worthless. Although Martin Langan changed his original testimony, he directly identified Welch as the coordinator and intended...