State v. Jennewein
2015 ND 192
N.D.2015Background
- Early morning stop after a vehicle screeched to a halt; Jennewein found in front passenger seat; girlfriend later sat in driver’s seat. Officer observed a glass marijuana pipe on the ground and signs of intoxication in Jennewein. He was arrested for DUI, driving under suspension, and possession of drug paraphernalia.
- First trial (July 2014) ended in mistrial; second jury trial (Sept. 30–Oct. 1, 2014) proceeded. Jennewein’s defense: he was not the driver and the paraphernalia was not his. He rested without testifying.
- Girlfriend testified for the prosecution and on cross admitted she had been driving. Jury convicted Jennewein of class A misdemeanor DUI (third offense in seven years) and class B misdemeanor driving under suspension; acquitted on paraphernalia.
- At issue pretrial and at trial: the prosecution produced certified prior-conviction judgments on the second day of trial after Jennewein withdrew an earlier stipulation to priors; defendant objected under N.D.R.Crim.P. 16.
- Defendant moved to sever the paraphernalia count from the driving counts and objected to prosecutor’s closing argument as an improper comment on his failure to testify. He also sought credit for pretrial participation in the 24/7 sobriety program.
- Sentence: supervised probation for one year and one year participation in the 24/7 sobriety program; appeal challenges discovery production, joinder/severance, alleged comment on silence, and credit for pretrial 24/7 participation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of certified prior-conviction judgments (discovery) | State produced priors promptly after defendant withdrew stipulation; complied with Rule 16. | State violated Rule 16 by producing priors on second day of trial and prejudiced defendant. | Court: No discovery violation; State acted after learning priors were necessary given defendant’s changed strategy. |
| Motion to sever counts (DUI/under suspension vs. paraphernalia) | Joinder was proper—offenses connected in same incident; no substantial prejudice shown. | Consolidation prejudiced defendant (would force testimony on some counts if he testified on others). | Court: No obvious error; defendant failed to show substantial prejudice from joinder. |
| Prosecutor’s closing comment re: lack of contradiction to “I’m drunk” (improper comment on silence) | Comment was fair comment on uncontroverted testimony and strength of evidence. | Statement was an indirect comment on defendant’s failure to testify and violated right to remain silent. | Court: Even if improper, any error was harmless beyond a reasonable doubt given uncontested intoxication and testimony from other witnesses. |
| Credit for pretrial participation in 24/7 sobriety program | Sentencing court had discretion; no statutory requirement to give day-for-day credit at time of sentencing. | Defendant should receive credit for pretrial 24/7 participation as part of sentencing. | Court: Sentence was within statutory limits; no misapplication of law and no retroactive statute entitlement. |
Key Cases Cited
- City of Grand Forks v. Ramstad, 658 N.W.2d 731 (N.D. 2003) (Rule 16 is a discovery rule and remedies for violations are discretionary)
- State v. Schmidt, 817 N.W.2d 332 (N.D. 2012) (standard for abuse of discretion)
- State v. Saul, 434 N.W.2d 572 (N.D. 1989) (stipulation to prior convictions bars submitting priors to jury under enhancement provisions)
- State v. Myers, 724 N.W.2d 168 (N.D. 2006) (prosecutor may not comment on defendant’s failure to testify)
- State v. Scutchings, 759 N.W.2d 729 (N.D. 2009) (improper comment on silence can be reversible error when defendant is sole source of contradictory testimony)
- State v. Neufeld, 578 N.W.2d 536 (N.D. 1998) (standard and burden for severance and joinder under Rules 8 and 14)