State v. Brooks

affirm, though, “Toby’s Introductory employs to is that Trusts Note to ion General Trusts, past Principles Resulting Topic ... consistent with his actions were Ch. by convey- practice retaining pension his pp. 322-26 trial Because the court ing away any recognize power interest he received grant equitable did not its Toby’s past farmland.” But reliance on his resulting relief in the form aof trust for him, kept brothers to care for while he his Toby on the income the farmland for pension, dependence lifetime, is not the same as his his I vote to remand with directions relative, has on more remote who neither equitable to allow that limited relief unless nor maintained his trust assured the continu- pre- some valid defense exists that was not pension. ation of his sented here.

Moreover, appropri- the conservator seeks Toby equitable

ate relief for based on Elvi- fiduciary relationship Toby,

ra’s one of his my opinion,

theories in the trial court. than confirm

rather Elvira Thiel’s uncondi- farm, ownership

tional of the Ramsland obliged by grant Toby

trial court was law to equitable limited relief the form of a re- Dakota, STATE of North Plaintiff sulting trust on all income from the farmland Appellee, during his lifetime. equitable closely Limited relief most fits findings that the trial court made about Terry BROOKS, Darnell Defendant for, of, purpose the reason the farmland Appellant. Toby gave Elvira Thiel. transfer that Cr. No. 930286. 59-01-06(2) (“One NDCC 59-01-05 and who gains thing by mistake, ... ... the viola- Supreme Court of North Dakota. trust, act, is, tion wrongful or other unless he has some right other and better Aug. thereto, an implied thing trustee of the gained person for the benefit of the who it.”). Considering

would otherwise have had

the ineffectiveness of the renunciation make, Toby had express

Schirado and the

directions of 38 U.S.C. 1522 about the use corpus veteran,”

of “the of the estate of

quoted majority opinion, Toby’s in the pen-

sion status is still uncertain. While the re-

nunciation necessary have been land, gift

make the probably impor- preserve pension.

tant to his depend

Unable to “pro- on Elvira Thiel to life, [him]

vide for for the rest of his much as previously,”

his brother had Toby should re- enough equitable

ceive get relief to the in-

come from the Ramsland farm his relief,

lifetime. With this limited Elvira Toby gone,

Thiel will have the land when intended,

as he keep but she will be made to promise Toby

her admitted

gifts: give you “I enough money.” will principles generally for this relief are (Second)

explained by the Restatement Dawson,

Stephen Atty. R. Asst. State’s (argued), Fargo, plaintiff appellee. (argued), Fargo,

Bruce D. Johnson for de- appellant. fendant and NEUMANN, Justice.

Terry appeals Darnell Brooks from the finding guilty verdict him of the offense of substance, delivery of a controlled and from denying the order his motion for a new trial. reverse, holding We that the trial court erred granting in not Brooks’ motion for a new grounds trial on the during deliberations tainted the verdict with prejudicial information. 13, 1993, August

On verdict was against Brooks, finding guilty returned him delivery of the offense of of the controlled marijuana. sentencing, substance Prior to requesting Brooks made a motion a new trial grounds product the “verdict was the part presiding of misconduct on the of [the juror, attorney] extraneous, which caused evidentiary, prejudicial non information to be improperly brought before the atten- tion.” The trial court denied the motion bench, proceeded to sentence appeals. Brooks. Brooks first, brings appeal; Brooks two issues on whether extraneous brought up trial,

deliberations mandates new and sec- ond, contingency arrange- whether the fee Fargo police ment between and informant Taylor policy. Holding public Allen violated the statements made juror require a we do not address the merits of the second issue.

Brooks asserts that the trial court abused failing grant its discretion his motion for a new trial on the basis of miscon- duct. The State does not contest the admis- sibility of affidavits or that actually presid- made juror, ing instead maintains the trial position court’s that the statement was not misconduct and was not because understanding.... concerning It does a matter of com- was a statement disagree. not rise the level that overcome the knowledge.1 We mon presumption perfor- acted Dakota Rules of the North Rule 33 duty mance and with the law.” provides Criminal Procedure may for a trial on the move new defendants argues Brooks misconduct occurred the trial jury misconduct. “Whether basis of presid- as a result made the of statements properly was exercised de discretion court’s ing juror, attorney, during jury an delibera- of pends upon the facts circumstances tions. affidavits from Brooks submitted two Amundson, Keyes v. each ease.” jurors attesting during that of the delibera- II). (N.D.1986) (Keyes We N.W.2d tions, presiding juror a the made comment to a a trial court’s denial of will not set aside that the other to the effect Brooks’ trial unless trial court for a new the motion partner business had been tried and con- denying in the motion. its discretion abused of a drug victed related offense.2 affida- (N.D. Skaro, E.g., N.W.2d 711 State vits were in evidence considered received 1991). An of discretion occurs when a abuse objection by the trial court without the arbitrarily, capriciously, or trial court acts Although State. the rules of evidence re- Anderson, unreasonably. E.g., Smith v. 606(b) juror testimony, strict Rule (N.D.1990). 108, 112 N.W.2d provides of Evidence North Dakota Rules cases, in to civil criminal cases Similar jurors may testify any as to matter or determining to when whether allow a new occurring during statement the course of the questions appropriate trial the are whether jury’s deliberations extraneous misconduct, so, and if whether there was brought improperly the was to hypothet verdict have affected the of a jury’s Wright & attention.3 See 27 Amundson, Keyes average jury. ical Federal and Procedure: Practice Evidence (N.D.1983) I) (civil (Keyes N.W.2d (1990) (606(b) “pertains 444-45 to II, case); Keyes also at 604 of facts or consideration not data (civil I). restating rule in In this court”). revealed in open court case the trial determined both case, misconduct, this the State did not raise Rule no and that it would there was 606(b) appeal, in Denying below or its brief jury. not for a taint the the motion argues brought presid- made the trial court stated “she a statement ing juror knowledge ordinary into room a matter common of was 606(b) Jury an 3.Rule Rules 1. included instruction that of the North Dakota of Evi- instructions read: dence states: may, in addition to evidence of- "You "(b) validity Inquiry or into verdict indict- of take into in fered in this consideration inquiiy Upon validity ment. an into therewith such matters of common connection indictment, juror may testify verdict or a as knowledge and science as are known to all any occurring persons ordinary understanding of and intelli- or statement matter is, you gence. come into box as That this jury's deliberations or to the course of affairs, experience persons reasonable of anything upon juror any effect or other bringing which is common influencing or emotions as mind weigh persons. testimony You are to in all juror to to or dissent from the or assent verdict light of those matters common knowl- concerning juror's indictment or mental edge persons and science as are known to all However, processes connection therewith. in ordinary knowledge, understanding, and in- testify questions a on the whether telligence.” information was im- extraneous April Herdeg's attention, affidavit stated: "[The Juror properly brought to the wheth- presiding juror, recollection, attorney], my the best any improperly er was outside influence following made the statement: ‘Ter- brought any juror, upon bear whether the ry partner selling drugs was convicted Brooks' of people verdict of the was arrived chance. you year ago. I don’t know if the know it may juror's any Nor affidavit or evidence of ” paper.' Juror but it was in Shannon Mess- concerning matter affidavit stated: “I recall that [the ner’s precluded juror would about which the juror, attorney] 'It stated: is a matter of testifying purposes.” be received for these partner that his common business " offense.' was tried for purpose beyond bounds,” permissible information. The of mation is State Johnson, (Iowa 1989). in to free deliberation by protecting man- theory room from disclosure the system “The of our is that the conclu- reached, in and to ner verdict sions to in be reached a case will be induced finality promote verdict. only by argument court, open in explanatory note. N.D.R.Ev. Rule by any influence, and not outside whether of a verdict is reached because of extra- “Where private public print.” talk or Patterson v. neous, prejudicial information or outside in- Colorado, 454, 462, 205 U.S. 27 S.Ct. fluence, disallowing much of the reason for a 558, 51 L.Ed. 879 testify disappears, and the balance is ‘When a considers facts a crimi- weighted obtaining justice favor of nal case which have not been introduced as example, ease.” Id. “For individual concern evidence, deprived the defendant has been clearly greatest for is at its where fairness opportunity of present to be when attempt individuals to influence the in a being presented, evidence is repre- to be permit manner that does not confrontation evidentiary sented at pro- counsel Gold, supra, the adversaries.” & ceeding during to cross-examine the § pp. at 6075 456-57. evidence, presented “witnesses’ who to rebuttal, request offer in evidence to cura-

Rule 33 of the North Dakota Rules of instructions, tive or to take other tactical Criminal Procedure authorizes a new trial for steps, including juror argument jury, to any harmful to misconduct. As rule of evidence, place perspective the evidence in “purport Rule does not to for the jury-” specify grounds setting the substantive for irregularity; only aside verdicts for it deals Poh, 510, State v. 116 Wis.2d 343 N.W.2d competency jurors testify with the of to con (1984) 108, (juror 117 mentioned that defen- cerning grounds.” those Fed.R.Evid. 606 ad record). prior dant had visory committee’s note. Because verdicts should be based on matter, however, practical “As the ex- court, presented in open evidence and not 606(b)] clusionary principle im- [of information, upon prejudicial poses upon what amounts to limits may during misconduct occur when delibera ground permissible impeachment jurors tions consider information or matters verdicts. That is the obvious result of a during outside the evidence admitted trial. significantly rule which restricts use of the (extraneous I, prej only sure source of information as to oc- jury); udicial information reached see also during jury’s currences deliberations.” Hott, 749, Trump rel. v. State ex 187 W.Va. Christopher 3 David W. Louisell & B. Muel- (1992) (evidence 421 S.E.2d 500 of defen ler, § Federal Evidence 286 at 118 extrinsic); prior wrongdoings was dant’s The fact that “extraneous infor- Johnson, (during 445 N.W.2d 337 delibera improperly brought mation was before the tions, juror hearsay introduced information

jury’s subject proper attention” is not evidence); not admitted into v. United States 606(b), affidavits under Rule it is (5th Howard, 865, Cir.1975) 506 F.2d warranting also a form of (“While century may the thirteenth have Therefore, new trial under Rule al- 33. precisely ready been selected because of its though may objected the State not have facts, familiarity background with this no affidavits, apply-, the admission cases longer conception fits our role. argu- ing Rule 606 are relevant to the State’s juror’s The modern ‘verdict must be based ment ”). upon developed the evidence at the trial.’ was common and not “extraneous constituting juror information” “Obviously, no can or should misconduct. approach entirely clean deliberations with Although presume cognitive we ver slate.' Humans can make intelli II, right, e.g., Keyes gent only by drawing upon dict is 391 N.W.2d at decisions their 605, background knowledge “introduction of additional infor- accumulated and ex- outside charge against associate was irrelevant

perienee.” Wright & at Brooks and have been excluded bring p. expect 450. We from the State commonly offered facts with experiences and known 113; the trial. Poh, at E.g., them. Louisiana, 733, also Rideau v. U.S. When untested outside (1963) 1417, 1423, 10 L.Ed.2d 663 S.Ct. jury, the in criminal case reaches the interest require jury to be a (impossible standard preserving finality of verdicts completely sterile free from laboratory, hand, “danger diminished. the other On Schmidt, factors); People v. any external facts to fair is most acute when trials Mich.App. process have not tested the trial been (“Jurors must determine facts intentionally have been communicated direct- trial; the evidence received Howard, jurors.” ly United States that are common matters not of decide Balancing finality and fair- experience.”). scope ness the untested information to a is limited few matters doctrine shared was extrane- nature, in human experience com- elemental ous. affairs, everyday E.g., life. Peo- mercial alleged agreement to disregard Unlike the Simon, Mich.App.

ple N.W.2d the trial court’s instructions Andrews (1991) 785, (citing Wigmore, 9 Evidence 787 O’Hearn, (N.D.1986), 387 716 the N.W.2d (Chadbourn 1976), 2570, 728); § p rev. receipt of not does 493, Poellinger, 153 451 also v. Wis.2d State “inhere in the verdict.” United States v. (“In (1990) 752, weighing 758 the N.W.2d Howard, n. 3. 506 F.2d at 868-69 How- presented jury at ard, jurors one of the informed others into account matters of common knowl- take “that defendant had been trouble two life.”). edge experience in the and affairs of or three 506 F.2d at 866. The Fifth times.” However, “this does include [doctrine] character Circuit held that this evidence was one another communication knowledge. extraneous and not common objective regarding extrinsic the crimi- facts McCann, In State 435 ex rel. Owen v. F.2d alleged nal or his crimes.” Unit- defendant (2nd 813, Cir.1970), jurors 815 several of the Howard, (empha- ed 506 F.2d at States 867 reputation “knew all defendant’s about” the added). sis as a troublemaker. The Second Circuit af- determining A common standard for trial, saying firmed the for new order permissible jury “[tjhere the boundaries of back is no rational distinction between the ground distinguish information is to between potentially prejudicial effect extra-record information,” “general “specific facts.” information which a enunciates on the See, R.R., Burlington e.g., Hard v. Northern printed basis of word and that which (9th Cir.1987). 820; 812 F.2d Because comes from his brain.” Id. at see also R.R., a vague described as and un Burlington has been Hard v. Northern standard, (when another juror’s past personal “experi- workable standard has at 486 litigation courts. ... been used some These courts ences are related to the hand, finality on one constitute which balance and fairness extraneous evidence verdict”). accuracy impeach on the other & used to hand. p. Regardless at 6075 453. case, a In another similar federal trial apply, standard we information re jurors required was when at least two of the partner garding Brooks’ business went be learned that the deliberations defen- yond acceptable background the bounds of dant’s and former business associate co-de- knowledge and was extraneous. of a already fendant had been convicted simi- charged government. a drug Brooks was with related lar scheme to defraud the Posner, F.Supp. offense. The informed the United States v. (S.D.Fla.1986). partner also In this was that Brook’s business was ultimately spe- charged offense the information about Brooks’ associate with jurors deciding, to the history The criminal of Brook’s cific case the were convicted. possibility afl been difficult for the reasonable that the verdict it would have of a reliability relevancy hypothetical of the average evaluate the information. have been unaffected the extraneous in- Abell, formation in this case. See also Having the information determined I, 812-813; Keyes N.W.2d N.W.2d extraneous, step the next is to determine was Entrapment4 was the essence of Brooks’ prejudicial. losing party If a whether it was against charges delivery defense misconduct, the burden of establishes applies controlled substance. North Dakota proof prevailing party shifts to the to show objective entrapment. E.g., test for State losing party could not have been (N.D.1993). Nehring, Abell, prejudiced the misconduct. State v. objective test, “Under the the focus is on the (N.D.1986). The stan- conduct of law enforcement officials and the adopted dard we have is for trial courts to normally effect it would have law- hypothet- determine whether the verdict of a abiding Predisposition citizen. of the ac- average jury ical would be affected cused to commit the crime is irrelevant.” I, misconduct. at 85. N.W.2d Kummer, (N.D. State N.W.2d It has been stated that the 1992) (citations omitted). “probable light effect is estimated importance of the issue to the infor- In order entrapment, establish related, mation or influence the nature of required prove Brooks was two elements: influence, strength information or enforcement, (1) agents that law induced the supporting of the admitted evidence crime, commission of the that such verdict, jurors exposed number of normally inducement was to cause influence, the information or when the law-abiding person to commit the crime. exposed to the information or influ- E.g., Nehring, 509 at 44. Because ence, long how discussed these predisposition the issue of is irrelevant under deliberations, matters the manner test, objective con in which the court dealt with informa- cerning background pre Brooks’ to establish any tion at other matters which disposition would not be admissible in court. logically might bearing a have on the effect (N.D. Mees, State v. of the information or influence on the 1978). presiding juror’s The statement relat jury.” predisposition marijuana toed Brooks’ to sell §at pp. & 469-71 suggested “guilt by to the extent that omitted). (footnotes Any prejudicial association.” effect this Normally, would might hypothetical we remand the case to statement have on a gov- surely the trial court to determine whether the verdict would be exacerbated presumption ernment can rebut the the facts that not was the statement prejudiced presiding juror, the defendant. How- made but that ever, Perkins, presiding practicing attorney. as in States v. a United (11th Cir.1984), suggesting attorneys a remand un- We are not are necessary pre- jurors; however, participate here because the information unable to as government, presiding juror attorney sented viewed its most fact that the was an light, was not favorable sufficient to remove is a relevant factor to be considered our entrapment fording person opportunity 4. The defense of is set out in NDCC to commit § 12.1-05-11. The version of this statute in ef- entrapment. an offense does not constitute provides: fect at the time of Brooks' arrest agent' "3. In this section 'law enforcement Entrapment. “12.1-05-11. personnel includes of federal and local law "1. It is an affirmative defense that the defen- agen- agencies enforcement cies, as well as state entrapped committing dant was into the of- any person cooperating with such fense. agency.” Entrapment "2. occurs when a law enforce- legislature NDCC 12.1-05-11. The amended agent ment induces the commission of an this statute in 1993. The amended version be- offense, using persuasion or other means August came effective Const, 1993. See N.D. normally law-abiding persons to cause IV, § art. merely to commit the offense. af- Conduct alleged must be this is cases there is a rea- hold therefore analysis. We carefully. juror’s scrutinized possibility sonable affected the verdict have not include in this case does The record jury, deliberating a average hypothetical this process or show what selection entrapment was an in which against a guard defendant did issue. him, or his business associ- knowledge about remand for a reverse and Accordingly, we to us on this argument was made ations. No trial. Ordinarily, aspect, way or the other. one probe a party adequately fails to though, if a LEVINE, MESCHKE juror’s acquaintanceships with prospective JJ., SANDSTROM, concur. families, or business- parties, their es, party not be able to I should believe concurring. MESCHKE, Justice, any of it. complain later discussion about majority holding that what the join in I jurors about juror told the other Here, inval- of this extraneousness the vice was extra- associations defendant’s In a criminal the verdict. idates that invalidated prejudicial information neous on evi- should not be convicted defendant however, to separately, I write the verdict. Zander v. guilt association. See dence my record express some reservations (re- (N.D.1977) S.J.K, 713, 716 scope of this understanding the narrow adjudication juvenile’s delinquency versing holding. “implicated in for vandalism where he was juror brings into simply that a because he Most the acts of vandalism knowledge, generalized away room will be to and from the companions his drove party including personal area, present about because he was rest vandalized.”). Ordinarily, does NDREv [though active] to the case. when it was affidavits, testimony evidence or permit discussed in the ma- precedents The federal discussions, even by juror largely on this jority opinion about seem to turn party personal as- guilt-by-association when some consideration. juror to the others. tips one pect was disclosed of this extraneous information state, it nearly me, in our all counties in an otherwise close and scales for a valid impossible to otherwise have next to difficult ease. verdict, jurors know some- because most ju- that a Ordinarily, general information county, every person in the thing other about room, take into the even ror is able to families, or their businesses. their parties personal knowledge to the case juror’s acquaintanceship with the Each (unless to him from an outside it comes backgrounds should be parties or trial), during the is neither extraneous source Then, jury. probed selection Instead, juror’s prior per- prejudicial. or knowledge party lies about usually “con- a matter sonal deliberations, juror it in later reveals processes.” Nev- cerning the mental to im- would often be allowable affidavits ertheless, join majority opinion I on Evi- peach the verdict. See Weinstein’s case. ¶ 606[04], p. 606-41 and dence omitted):

(footnote C.J., WALLE, concurs. VANDE ju- indicate that the Where the comments liability preconceived notions of or ror had

guilt personal about the facts issue, the statements be admissible prohibited

not because are 606(b), tending prove but as dire, separate lied on the voir

question impeachment from that of of ver- ¶ so, 606[02], supra.

dicts. Even

Case Details

Case Name: State v. Brooks

Court Name: North Dakota Supreme Court

Date Published: Aug 24, 1994

Citation: 520 N.W.2d 796

Docket Number: Cr. 930286

Court Abbreviation: N.D.