*1 damage presumed by to be team which was faculty an amount authorized by a breach in cases where accept provisions sustained review and extremely or dif- impracticable would teachers’ contracts with the school board. damage.” the actual ficult to fix presented the issues Of and ar urges liquidated- Mr. Zimmer Zimmer, gued by Mr. we find but one that in case is void because damages clause covered, directly by necessary is not im damages by caused his breach are hot plication, in the Bowbells case. That is Mr. difficult to ascertain. Zimmer’s contention that the school district the clause is be- He further asserts that damages stipulated not recover the ing performance used to insure con- replacement the contract because it found a pre-determine rather than to dam- tract and, salary thus, Mr. at a Zimmer lower contention, ages. support this Mr. Zim- To damage. suffered no actual We find this liquidated-damages mer asserts that unpersuasive. accepted, contention If to be that, applies clause to all teachers and if the concept it would emasculate the and func validly clause was used to estimate dam- liquidated-damage provisions. tion ages, vary the amounts so estimated would parties stipulation When make a valid with the teachers. individual it, damages, by regardless are bound damages of the amount of actual incurred. Insofar as Mr. Zimmer contests State, Dave Gustafson & Co. 83 S.D. validity liquidated-damages Am.Jur.2d, (1968); 22 Dam clause, governed this case is our decision ages p. 321. § District Bowbells Public School No. 14 v. Walker, Marcia (N.D. of the district court af- decision 1975), a purpose case consolidated for the firmed. argument oral with the instant case. Bowbells, upheld liquidated-damages J., PEDERSON, ERICKSTAD, C. provided clause which graduated per for a SAND, JJ., VOGEL and concur. centage of the contract paid amount to be to the school district a teacher who employment
breached an contract. damages
amount of agreed
Bowbells case was We do not find $252. pursuant assessed $500 board unreasonable,
policy in espe this case to be
cially light of Mr. Zimmer’s status as one of approximately 40 teachers in certified Dakota, Plaintiff STATE of North the field of education in the distributive Appellee, State of North Dakota. meaningful Nor do we find a distinction Terry JOHNSON, Defendant case, that, in the fact unlike in the Bowbells Appellant. liquidated-damages clause in this case Crim. No. 500. agreement nego- was not product of an faculty tiated and the school district. Supreme of North Dakota. Court Mr. his contract of his Zimmer entered into 2,May 1975. knowledge own free will and with full contract, provisions which con- Rehearing Denied June 1975. incorporated tract the Board Policies there- in. signing Prior to his 1973-1974 contract board,
with the school Mr. Zimmer had been negotiation faculty former member of a *4 Sehnell, Atty., L. Man-
Richard State’s dan, appellee. plaintiff and Pulkrabek, Defender, Benjamin C. Public Bismarck, and appellant. for defendant ERICKSTAD, Chief Justice. County October Morton On jury found the district court Johnson, of the Terry guilty crime of bur- appeal from that glary. brings He this (1) the court contending conviction allowing the State to erred crimes prior as to and crimes appeared that de- subsequently which it convicted, (2) the had fendant not granting erred in the defendant’s court concerning alibi requested jury instructions (3) the court erred in equivocation, and seques- motion to granting defendant’s him, prior assist to the start Belgarde witnesses testified that ter and allowing (4) erred in the court Johnson complained hunger. Officer evidence, cumulative the introduction of Joblinski further testified that he followed (5) contrary path by the verdict was to the taken Officer Huff and the presented at the occupied Belgarde Johnson, and evidence vehicle appar- trial. two tracks of vehicles were freshly snow, ent in the fallen that one set morning During early hours of March of tracks had been made Officer Huff’s 24, 1974, Siegfried Mr. Walter of Mandan vehicle, in traveling route, and that sleep by awakened from a loud found a number of items such as minced window to He went to his investi- sound. bologna, chips, potato lying wieners gate the source of this disturbance and in near the road. out, persons two looking observed front store, course, nearby grocery one of due whom Officers Snider and Ternes prying grocery out front window returned tc appeared complete to be store to their Siegfried investigation. the store. Mr. called the Man- At the store met city police returning Photographer Police dan Lieutenant Boniface window, persons Silbernagel two pictures saw that the he had who took several leaving previously observed were the area was later directed Lieutenant thereafter, Shortly foot. Mandan Ternes to city pictures take items various officers, Leo police Captain Snider and Officer Joblinski had found in follow- *5 Ternes, ing Hugo path arrived at Lieutenant taken Officer Huff and immediately occupied car grocery They by Belgarde store. radioed to and At Johnson. Huff, Raymond proceeding who was several Officer of these items were identified vehicle, by grocery proprietor burglarized toward the store another of the grocery instructing having him automobile to follow come from her store. Other area. departing saw items were being identified as of the same goods proprietor brand as had in stock testimony The officers’ indicated that the at the time the crime was committed. they had observed had vehicle defective right brakelight and that taillight or We conclude relevant to Johnson’s persons or other were no other vehicles initial contention that: area at that time. “It state, is a well-settled rule in this Huff, contacting After Officer two that where a defendant in a criminal investigation began officers their prosecution becomes a witness in his own therein, Finding store. no one Officers Sni- behalf, may he be cross-examined as to again der and Ternes once made radio con- degrade matters which tend to him and tact with Officer and then drove Huff purpose may he be asked if he the Island Park Court where Trailer Officer prior has been convicted of acts. criminal reported stopped an Huff he had automo- ” * * * McCray, State 99 N.W.2d occupants he bile which had followed. (N.D.1959). See also State automobile, Larry Belgarde of this one and Moe, (N.D.1967), Johnson, placed were Terry Pfaffengut, (N.D. automobile, arrest. under Their which had 1956). brakelight taillight, a defective was cigarettes quantity found contain a However, we have said that: “ beer, being beer some of the of the * * * pUrpose impeach- -for same brand as of beer two bottles which practice, ment the reasonable most grocery later were found in the store. generally prevailing, minimizing the one distraction, prejudice beyond Officer Huff Officer Thomas and an Job- is that linski, crime, place who the trailer arrived at court to the name of the the time and
1«5 Shortly conviction, fur- after the punishment, aforesaid was and the inquired into. given, following place exchange details took ther ”* * * Moe, 151 N.W.2d Attorney between the and the de- (N.D.1967). fendant: rule, inquiry “Q. Johnson, into light of this I you In Mr. show want to which Johnson burglary details what marked as State’s Exhibit previously convicted techni- had which Unit- is a communication from the follow: cally improper. The Department of ed States Justice and items, purport- states a number of did occur? “Q. When edly your has to do with record Criminal Honor, Your I “MR. PULKRABEK: you you ask if these correct and It is go into that. think have to don’t explain can those to me. A statement of convic- not material. object. sufficient. I would tion is officer, Assaulting police “A. I don’t know where that come from. just going I am into “MR. SCHNELL: credibility witness. “Q. your Is it on record? objection is overruled. “COURT: got “A. I never Court for it so I don’t question? “A. What know. burglary? When was that “Q. When Honor, “MR. PULKRABEK: Your you burglary occur did object to line of going am this whole of? convicted questioning and ask it be stricken. August. Last “A. gone to Bis- Mr. Schnell could have over “Q. Where did it occur? copy a correct this. He got marck and bringing things that he has laid no “A. Bismarck. out lay I don’t he can foundation for. think “Q. in Bismarck did that And where any I think foundation until has—. occur? *6 any that improper is and ask Exhibit You mean location? “A. brings testimony that he out in this re- “Q. Yes foundation, lay gard, he can unless Dick’s Gun and Marine.” “A. that it stricken asked 52(a), here is Rule N.D.R. Pertinent disregard it. “any error, Crim.P., provides that We not offered have “MR. SCHNELL: defect, which does irregularity or variance it. yet, just examining from it we are rights shall be disre- affect substantial not objection is I believe the “COURT: explanatory note to this rule garded.” he cer- well taken because has admitted may be said that “generally, it states on it denied some others tain crimes and showing the burden defendant has is objection so the sustained.” affected his sub- technical error has that a States, 309 rights v. United stantial [Black Supreme with the Court In accord denied, (8th 1962), cert. 372 331 Cir.
F.2d Minnesota, approve the use we do (1963)] 934, 880, 765 83 9 L.Ed.2d S.Ct. U.S. [*] [*] [*] FBI “rap sheets” for impeachment pur poses. entire Having record considered “ * * * a de- before a asks probable effect of offense, he should prior fendant about evidence, beyond we find light of all good reason to believe that doubt that substantial a reasonable Recently, in was in fact a conviction. has not been affected of the defendant Williams, Minn., N.W.2d 21 210 State v. improper questioning constituted (1973), against use of we cautioned disregarded. error and will be only harmless 186 ‘rap impeachment pur- on the my
FBI
sheets’
fact that
client has committed
poses
merely investiga-
prior
My
because
some
crimes.
client has answer-
necessarily contain
tory
questions.
tools and do not
ed
Any
those
inquiry
further
procedure
complete information.
improper.
is
pros-
recommended in Williams is for the
going
“MR. SCHNELL: We are
into
prior
only
crimes
inquire
ecutor to
about
veracity.
his truth and
evidence, such
produce
when he can
objection'
“COURT: The
is sustained.”
judgment of
copy
certified
convic-
tion,
v. Michael
to rebut a denial.” State
While a defendant
in a criminal
son,
524,
214
356
298 Minn.
N.W.2d
prosecution may be asked if he has commit
a degrading
ted
act or if he has been con
today
We do not decide
whether
one,
committing
victed of
not be
“rap
an error has occurred in the use of the
asked if he has been arrested for commit
question
sheets”
is not properly
since this
ting
act,
such an
since the fact of arrest
object
proper
before us. The
time to
proof
guilt.
McCray,
99
introduction of evidence is when it becomes
(N.D.1959).
N.W.2d 321
This view widely
apparent
will
error
be committed
accepted. See,
g.,
Norwood,
People
e.
54
evidence,
receiving
question
as when a
Ill.2d
(1973);
187 reject harbor error fendant’s innocence sit back and and cannot which Counsel appellate parachute points guilt. as an his used to to be ” * * * failure. the event conclude that We in view of the court’s Mich.App. Eldridge, 17 People v. regarding testimony instructions (Mich.Ct.App.1969). defendant, weight credibility, and presump- and proof, tion of innocence burden of testimony note that Johnson’s We doubt, previously been con definition reasonable and that he had indicates impeachment, necessary give it was burglary, possession to of the crimes victed instruction, requested equivocation of a con property, possession be- of stolen sufficiently these cir the facts in substance that under cause evidence trolled cumstances, an im properly effect of covered instruc- other additional crime proper reference one tions. Massa, minimal. But see
would be
We also conclude that
court
(Mo.Ct.App.1974).
512 S.W.2d
granting
commit error in not
did not
Johnson’s next contention
sequester
motion
defendant’s
his
granting
court erred in not
from
witnesses.
exclusion of witnesses
regarding
instructions
alibi
requested
resting within
is a matter
the courtroom
request
The alibi
equivocation.
instruction
court.
the sound discretion of the trial
Jury
Dakota
Instruc
ed was North
Pattern
Robinson,
Johnson contends because eyewitness the introduced, testimony from of the Walter were in items themselves Siegfried testimony and from the of Offi- photographs of of troduction into evidence Ternes, inspected cers who along road and Snider strewn the items found scene, Grocery that Frank’s in the Store in Man- beer bottles found of one of the burglarized merely persons dan two grocery cumulative who store during in introduc broke front early therefore window only morning photographs served hours of tion of these March 1974. the same before again place once evidence jury The also found could have from the Attorney’s posi jury. It is testimony of Officers Snider Ternes merely exhibits are not tion that these leaving that a vehicle observed the area of cumulative, they establishing because aid grocery store defective had a tail- where the location various items were light brakelight; the testimony from of respect their found. While value in this Snider, Ternes, Officers and Huff overwhelming, say will that the not not neither vehicles other nor other admitting trial court its discretion in abused time; persons in the area at the that this photographs. photographs These vehicle was and subsequently followed shocking inflammatory. neither nor Huff; stopped Officer and that one of here, present not absence of circumstances occupants of this vehicle was the de- of a reasonable number the introduction of Terry fendant Johnson. such items photographs of cannot said to jury could further have found from jury repetitious so overwhelm with evi testimony Joblinski, Snider, of Officers prejudice though the dence as to cause even Photographer and Ternes and of Police Sil- introduced. items themselves bernagel very layer that a light freshly of final that the It is Johnson’s contention ground fallen snow night. covered the jury contrary testimony verdict was could have from found the testi- at We do presented and evidence trial. mony of par- Officer that over a Joblinski agree. part ticular path taken Officer presented While the has a following occupied by Huff the vehicle evidence, case circumstantial a based Johnson, only tire two sets of tracks were circumstances, all sufficient number of such snow; freshly in the visible fallen from the per will guilt, consistent with defendant’s testimony of Officers Joblinski and Ternes mit a conclusion that their reasonable Police Photographer Silbernagel and of they aggregate just are not a series of jar mayonnaise, bologna, a stick of unfortunate coincidences. potato bag chips, pack double wein- ers, bread, a loaf of packages and four Champagne, said in As we cigarettes path were found near the (N.D.1972), taken where the vehicles; by the two evidence, from weighed has determined spite Ternes that credibility appeared Officer witnesses who subzero verdict, time, it, temperatures in at that before rendered it is not Mandan its groceries yet for us had judgment to substitute our for that frozen when *9 found; jury. only of the It is for us to determine were and could concluded that
189
witness,
any
tire
in both
lying near the
tracks
criminal
found
and civil
the items
trials,
witness,
to
and
discredit a
by
the defendant
were thrown
founded
jury
that the
principle
pro-
needs to be
companion.
being
tected from
led into indefinitely mul-
addition,
have found
jury
could
tiplied issues to the
they
extent that
lose
several officers
testimony
from the
sight of the real issue.
without mon-
hungry
was
that Johnson
found in the
ey;
two bottles of beer
that
being
When the witness
cross-examined
same brand as a
grocery store
of the
happens to be the defendant in a criminal
in the car used
of beer found
quantity
subject
rules. His testi-
Johnson;
testimony of
from
Mada-
mony
impeachment.
can be discredited
store,
Frank,
proprietor
that
line
opinion
majority
says,
As the
“he
be
that
not sell beer and
beer
she did
as to matters which tend to
cross-examined
were left
the store
bur-
bottles
degrade
McCray,
him.”
[State
glars.
Moe,
321,
(N.D.1959);
N.W.2d
State
jury
found
(N.D.1967);
could have
on the
Finally,
v. Pfaf
fengut,
(N.D.1956).]
discussed above and
basis of
77 N.W.2d
Frank,
spe-
testimony of
who
Madaline
Perhaps
prosecutor
case
in this
the items
cifically identified some of
found
thought
“charge” or
“arrest” was
that a
an
store,
having
come from her
that on
by the
of a de-
the commission
defendant
Terry Johnson broke into
March
grading
although I doubt that. Ever-
act—
with
grocery
store
the in-
and entered
proof
yone
that a “conviction” is
assumes
unlawfully take therefrom
items
tent to
degrading
but I
the commission of a
act
above.
enumerated
wrong
they
if
believe
the courts are
that
record,
Having
the entire
examined
prove
can
only
assume that
“convictions”
supports
that
evidence
we conclude
act was
degrading
that
committed.
verdict,
present
the record does not
wrong if he tried to
reversal,
grounds for
accord
other
impression
that be-
leave with the
the verdict must stand.
ingly
being
same as
ing
of a crime
accused
are not
convicted of a crime. Juries
PAULSON, JJ., concur.
SAND
gullible.
PEDERSON,
(concurring special-
Judge
Terry
credibility
destroyed
Johnson’s
ly)-
of a
when he
to his conviction
admitted
because,
in the results
from the
I concur
Any
about
number of crimes.
discussions
record,
only
I can
conclude that the
entire
you
if
charge,
an arrest
even
assume
fair,
by a
but not a
was convicted
act,
degrading
doing of
reflect the
Iverson,
perfect
trial.
[See
conviction,
would
which did
result in
(N.D.1971).]
cumulative,
likely
at
but more
worst
majority opinion and the dissent
crediblity of
show that the
would tend to
applicable to the
the basic rules
overlook
prosecutors is not
officers
police
the credi-
matters to attack
use of collateral
prej-
unassailable. It did
assumed to be
Periodically the
a witness.
courts
bility of
in this
against
the defendant
udice
rules in
re-examine the basic
order
ought protect
If
a defendant
case.
we are to
overextending. Much
keep
from
on cross-examina-
being prejudiced
from
judicial
public
sys-
with the
dissatisfaction
tion,
being ex-
prevent
him
must
from
law,
tem, especially in the field of criminal
No
amined about collateral convictions.
very
relates to
matter.
has
far.
authorized
gone
court
am
agrees
views
with the
imposed
say
on the
that Justice Sand
The restrictions
use
expressed
matters in the cross-examination
herein.
collateral
*10
by saying
it
excuses
that the violation
VOGEL,
(dissenting).
Judge
“technically improper,”
objections
that the
opinion
much of
Agreeing with
and motion to strike were not made at the
do,
regret
I
I
Erickstad as
Justice
Chief
words,
appropriate
appropriate
time in the
I believe
point.
on one
I must dissent
-improper questioning
and that
Attorney
to allow
State’s
it was error
and,
“only
error”
since the
harmless
defend-
as to nonexistent
interrogate the defendant
having
ant admitted
been convicted of some
interrogate
and to
unproved convictions
“
crimes,
.
.
.
effect of
arrests,
from convic-
distinguished
as
toas
improper
reference to one additional
asking
ques-
of such
tions.
I believe
crime would be minimal.”
invasion of the de-
tions is a fundamental
disagree.
all of these
I
With
assertions
the absence of
rights, even in
fendant’s
strike,
disagree just
strongly
as
with the basis
long
so
as the
objection or motion to
special
Speaking
concurrence.
first
prove
or offer to
Attorney does
State’s
concurrence,
special
my
view
justify
existence of convictions
prove the
prohibition of cross-examination as to ar-
questions.
ask the
charges
rests and
of crime is based on far
error where the
Even more so is there
considerations from the restric-
different
attorney makes a motion to
defendant’s
imposed
mat-
tions
use of collateral
strike,
and that
during the
as he did
ters
cross-examination. Cross-examina-
by the court.
ignored
strike is
motion to
tion on
collateral matters
indeed limited
danger
losing sight
because of the
correctly stated in the ma-
The facts are
case,
prohibition
real issues in the
but
I would add
follow-
jority opinion, but
against cross-examination as to arrests is
transcript to the ex-
ing excerpt from the
additionally based on the obvious fact that
majority:
cerpts quoted by the
give jurors
it is unfair to a defendant to
“Q.
any other convic-
you
Have
had
impression
guilty of crimes
that he has been
burglary?
tions
for,
being
other than the one he is
tried
No,
“A.
I haven’t.
when in fact he has not been so convicted or
prove that
cannot
he was.
Now,
“Q.
you have
a conviction
had
Evidence,
Wigmore on
Chadbourn Revi-
See
possessing
property. When did
stolen
sion, IIIA,
If the rule were other-
980a.
§
that occur?
wise, very
would dare take the
people
few
years ago.
“A. About four
defense,
in their own
since
witness stand
“Q.
you
Have
ever been convicted of
prosecutor would be free to take ran-
assaulting
peace
officer?
reputations imprudently
shots at
ex-
dom
posed
groundless
or ask
to waft
No,
“A.
I haven’t.”
unwarranted innuendoes into
box.
It has been the law of this
for more
States, 273
v. United
F.2d 853
See Goodman
years
improper
than 75
it is
to ask
(8th
1960). Certainly
prohibition
Cir.
(including a
whether or not a witness
de-
upon more
against such conduct is based
behalf)
fendant
has
who testifies
his own
merely keeping
than
fundamental reasons
it was “claimed”
been “accused” or whether
within bounds.
length
of trial
crime,
that he
“.
.
. be-
committed a
Furthermore,
concurring opin-
I think the
true,
yet
may
cause all that
have been
broadly
treats much too
the rule that
ion
no
such crime as claimed have [sic]
about the commis-
witnesses
be asked
Kent,
N.D.
committed.”
arrest,
such,
degrading
An
sion of
acts.
67 N.W.
by the
degrading
is not a
act
recognizes
tendency
degrade
the exist-
majority opinion
although may
have a
is, however, involuntary on his
ence of the
it was violated
It
rule and admits
him.
case,
deg-
for the
part, and he cannot be blamed
Attorney
in this
but
*11
of
allude
radation,
any
commission
or
to
he can for the
“State
matter
that
committed.
has
reasonable
acts he himself
no
basis to believe is rele-
vant to the case or
will
sup-
that
not be
opinion and the con-
majority
Both the
ported by admissible evidence.” Code of
me, fail
to
curring
it seems to
opinion,
Responsibility,
Professional
DR 7-
the
unfair-
recognize
essential
adequately
104(C)(1), adopted by
Bar
Associa-
attorney leave
letting
prosecuting
of
a
ness
tion of North
in 1970.
Dakota
a defend-
jury
impression
the
that
with the
nonexistent crimes.
guilty
ant is
of
See, also, American Bar Association Stan-
ordinary
is
an
Attorney
The State’s
Relating
Function,
dards
to the Prosecution
quasi-judicial
least
He is at
advocate.
5.8(d);
¶
College
and American
of Trial
prosecute
officer,
discretion to
with broad
Lawyers
19(a)(1).
Code
Trial Conduct
not,
to
correspond
should
or
his ethics
attorney
that
suggest
I
a defense
is
State, 189
those
the bench. O’Neill
impossible
placed
position
in an
if he is
259,
(1926);
N.W. 280
Wis.
207
required to adhere to all the niceties of
(1954).
Polan,
253,
It
a violation of
Code of Profession-
(or
attorney
any
“again
al
for a
defense
should
Responsibility
lawyer)
urged
other
to
the court
to order
the jury
stricken and
admonish
disre-
that the methods which were used did not
gard
suggest
attorney
who
it.”
have the effect which
were obvious-
appropriate motion
has made an
need not
ly intended to have.”
contempt
pre-
citation
order
court a
Appeals
United States Court of
serve his record.
the Eighth Circuit has
held
majority opinion
saying
to be
seems
questioning
arrests,
of a defendant as to
has been convicted of burglary,
if one
objected
where some
*12
possessing
property,
possession
stolen
to and
some
not. Packineau v. United
substance, there
of a controlled
are no re- States,
(8th
1953).
unfair and only purpose is to degrade of which prejudice defendant and to him,
against government, upon ap-
peal, ordinarily say will not be heard to