State v. Yodsnukis

• Citation: 281 N.W.2d 255
• Decision Date: 28 June 1979
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Joseph Wayne YODSNUKIS, Defendant and Appellant. o. 659.
• Court: United States State Supreme Court of North Dakota

Page 255

281 N.W.2d 255

STATE of North Dakota, Plaintiff and Appellee, v. Joseph Wayne YODSNUKIS, Defendant and Appellant.

Cr. No. 659.

Supreme Court of North Dakota.

June 28, 1979.

Thomas H. Falck, Jr., Asst. State's Atty., Grand Forks County, and Patricia R. Ellingson, Senior Law Intern, University of North Dakota Law School, Grand Forks, for State of North Dakota; argued by Ms. Ellingson.

Dwight F. Kalash, of Nelson & Kalash, Grand Forks, for defendant and appellant.

VANDE WALLE, Justice.

Joseph Wayne Yodsnukis was tried by a jury and convicted of robbery. He appeals to this court from the conviction and from the district court's denial of his motion for new trial. We reverse the district court's denial of his motion and remand to the district court for a new trial.

On September 22, 1977, at approximately 8 p. m., a man robbed Fat Albert's restaurant in Grand Forks, North Dakota, of $115. The culprit handed an employee a note stating that he had a gun, that he wanted money, and that an accomplice was waiting in a car outside the restaurant with a rifle. The employee who received the note and another employee, both young women, observed the man and noted that he wore a green fatigue jacket, blue jeans, boots, and a red and white stocking cap. One of the employees gave $115 to the man, and he quickly fled. Shortly thereafter, one of the employees called the Grand Forks police to inform them of the robbery. The police investigated, and the next day found a red and white stocking cap on the ground near the restaurant. With the aid of information supplied by the two employees, a police officer made two composite drawings of the robber.

Ten days after the robbery occurred, Joseph Wayne Yodsnukis entered Fat Albert's restaurant to purchase sandwiches. Upon seeing him, Rosann Borscheid, one of the two employees who observed the robbery, recognized him as the man who robbed the restaurant on September 22. When Yodsnukis left Fat Albert's, she watched him return to his automobile, obtained his motor vehicle license number, and immediately imparted both her identification and his license number to the police. Determining that the license had been issued to Yodsnukis, the Grand Forks police requested a deputy sheriff at Gilby, North Dakota, to inform Yodsnukis, who was living on a farm near Gilby, that they wanted to meet with him. After the deputy sheriff did this, Yodsnukis contacted the Grand Forks police and arranged a meeting with them the following day. In that meeting Yodsnukis denied involvement in the robbery. From the record it appears that he might have told the police that on the evening of the robbery he either attended a horse show at the University of North Dakota, stayed at home on the farm, or went in to Gilby. The police later discovered that the horse show did not take place on September 22, 1977. At a showup conducted by the police, the other employee working at Fat Albert's on the evening of the robbery, Esperanza Holweger, also identified Yodsnukis as the robber. ¹

Following an investigation, the State's Attorney's office in Grand Forks County, North Dakota, filed an information against Yodsnukis charging him with robbery. Yodsnukis pleaded not guilty to the charge and requested a trial by jury.

In the trial conducted in the district court, the State presented the testimony of the employees, who identified Yodsnukis as the robber, the owner of the restaurant, who calculated the amount of money taken during the robbery, and various police officers, who told of their investigation of the robbery.

Yodsnukis testified in his own behalf. He then presented testimony from his wife, father-in-law, mother-in-law, and sister-in-law, all of whom said they saw Yodsnukis at home at or near the time the robbery occurred. Yodsnukis also presented testimony from a former Fat Albert's employee who said that Yodsnukis had been in the restaurant several times prior to the robbery and from co-workers who vouched for Yodsnukis's good character.

At the conclusion of the trial, the jury found Yodsnukis guilty of robbery. Shortly after the jury announced its verdict, the State and Yodsnukis entered into the following stipulation:

"IT IS HEREBY STIPULATED AND AGREED by and between the State of North Dakota, represented by the Grand Forks County State's Attorney's Office and Defendant, Joseph Wayne Yodsnukis, represented by Dwight Kalash of Nelson and Kalash, Grand Forks, North Dakota, that Defendant, Joseph Wayne Yodsnukis, will submit to a polygraph examination conducted by Leo J. Brown of Brown Audit Co., Sioux Falls, South Dakota. Such examination will be conducted on the 4th day of May, 1978, at 1:00 o'clock p. m.

"It is agreed that any and all results of said polygraph examination will be admissible in any subsequent trials or hearings associated with the matter presently pending in the District Court, First Judicial District of North Dakota.

"It is further agreed that the testimony of the administrator of the examination, Leo J. Brown of Brown Audit Co., Sioux Falls, South Dakota, will be admissible in any subsequent trials or hearings.

"It is further agreed that the Defendant, Joseph Wayne Yodsnukis, has read the above, understands the contents thereof and hereby voluntarily waives his right to remain silent and to have counsel present at said polygraph examination."

Mr. Brown conducted the polygraph examination and, in his analysis of its results, stated that Yodsnukis indicated "no deception" when he denied that he committed the robbery. Yodsnukis then submitted to the district court a motion for new trial under Rule 33, North Dakota Rules of Criminal Procedure, ² and State v. Olmstead, 261 N.W.2d 880 (N.D.1978), cert. denied 436 U.S. 918, 98 S.Ct. 2264-2265, 56 L.Ed.2d 759 (1978), ³ premised upon the polygraph results, ⁴ which, he contended, constituted "newly discovered evidence." The district judge denied this motion, concluding that the polygraph results obtained subsequent to the jury's verdict did not "constitute newly discovered evidence that is so material and relevant to the issue of the Defendant's (guilt or innocence) that a new trial is required in the interest of justice."

Yodsnukis presents two issues on appeal to this court:

1. Did the district court err in denying the motion for new trial made by Yodsnukis?

2. Did the district judge's interrogation of witnesses in the presence of the jury constitute an abuse of discretion?

We conclude that the district court erred in denying Yodsnukis's motion for a new trial. A new trial was warranted in the interest of justice, first, because we cannot determine whether the district court considered the results of the polygraph examination when passing on the merits of the motion for new trial, and, second, because the district judge's interrogation of witnesses, for the most part laudable, overstepped the bounds of propriety in one instance.

Yodsnukis made his motion for new trial under Rule 33, N.D.R.Crim.P., based solely upon the results of the polygraph examination. ⁵ He argues on appeal that the district court erred in denying his motion. As we said in State v. DePriest, 206 N.W.2d 859, 862 (N.D.1973), and iterated in State v. Holy Bull, 238 N.W.2d 52, 55 (N.D.1975), and, most recently, in State v. Olmstead, supra, 261 N.W.2d at 887:

"A motion for new trial is also addressed to the trial court's judicial discretion and its decision will not be set aside unless an abuse of discretion is shown."

Polygraph Results

Relying in large part on State v. Olmstead, supra, Yodsnukis argues that the district court abused its discretion in denying his motion for new trial. There, Olmstead and the State stipulated that, "for the purpose of the motion for new trial, Olmstead would submit to a polygraph test and the results would be admissible, . . ." in subsequent proceedings. 261 N.W.2d at 886. On appeal, Olmstead argued that consideration of the polygraph results was improper in light of his claim of the attorney-client privilege. Dismissing that argument, the court stated:

"Olmstead, himself, never indicated that his counsel was not following his instructions in entering that stipulation and, while testifying at the hearing on his motion for new trial, confirmed that 'the whole basis of me getting a new trial was a lie detector test.' Additionally, Olmstead, himself, introduced the results of a previous, separate polygraph examination (which also indicated deception when he denied committing the rape). We assume that the stipulation is not disputed and should be enforced by the court when no good cause is shown to the contrary. The fact that the results were unfavorable rather than favorable is not a good cause.

'The stipulation is in the nature of a contract and a party may not be relieved therefrom without first making application to the court and upon a showing of good cause.' Bjerken v. Ames Sand and Gravel Company, 206 N.W.2d 884, 888 (N.D.1973).

See, also, Lawrence v. Lawrence, 217 N.W.2d 792 (N.D.1974).

"Whether relief from a stipulation will be granted rests in the sound discretion of the trial court. Northern Pac. Ry. Co. v. Barlow, 20 N.D. 197, 126 N.W. 233 (1910). No abuse of discretion is indicated here. Rule 502, NDREv, does not prohibit waiver of the lawyer-client privilege. His own statement at the motion hearing denies merit to Olmstead's argument that there was 'no knowing waiver.' We also agree with the majority in People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977), when they said that the question of whether polygraph may be used to assist a judge in determining whether to grant a motion for new trial is a different matter than the question of admissibility at a trial to show guilt or innocence." 261 N.W.2d at 886.

By implication, the court in Olmstead held that the results of a polygraph examination, the admissibility of which both the prosecution and the defense have stipulated to, must be considered by the court...