*1 128 C.J., MESCHKE, ERICKSTAD, thе and determining in whether
be considered WALLE, JJ., place the GIERKE was sufficient to and VANDE given advisory concur. he arrest- that had been upon notice driver physical actual control. ed or for DUI WALLE, Justice, concurring VANDE to As- officer’s statements that the held specially. surrounding light in bridge, viewed Dingeman’s It possible is to construe as circumstances, to be found sufficient could jailer testimony that he told the to book 39-20-01, N.D.C.C. comply with Section to Throlson for DUS and DUI mean that proposi- not stand for the Asbridge does in given the Throlson’s directions were of the arrest tion that the circumstances hearing it is to it to presence or as construe fail- for the officer’s total compensate can given mean out of his the directions were statutorily ure the mandated provide hearing presence. If the or statements that the driver. While the fact notice to hеaring pres- were made Throlson’s implied the the consent advis- officer reads ence, would, estimation, my it be suffi- requests ory and a chemical to the driver cient inform Throlson was under determining a factor the test driving arrest under influence. language inform sufficiency of the used to statute, 39-20-01, However, section arrest, reason for driver NDCC, provides that before test is to requirement negate the that some does not the law оffi- administered enforcement given the cause of arrest be notice of person cer must under place the arrest and by suggested The result driver. inform “that the is or effectively ren- in this case Director charged driving will be the offense with requirement meaningless, statutory der the being physical in actual control of upon by influence_” the circumstances relied because vehicle ... while under the demonstrate that Throlson Director to result, As a I that where believe there is a the reason his arrest was aware of question in the testimony inherent as to evéry present case.
would be statutory requirement whether was specific finding met there must abe as to significant note an additional We also hearing on the fact based officer’s distinction between this case factual understanding of the evidence. Here there Asbridge was detained аnd ar- Asbridge. finding no I specific was such concur only for alcohol-related offense. rested majority. the result reached however, Throlson, was first arrested jail for driving under transported importantly, spe- he
suspension. More that was
cifically told that the reason jail. being Although taken to As- may sug- cited and cases therein2 bridge Dakota, STATE of North Plaintiff gest the circumstances of an arrest Appellee, a defendant provide with sufficient arrеst, notice of the cause that reason- MILLER, ing significantly altered defen- when the Lawrence P. Defendant multiple Appellant. charged dant with offenses. Cr. No. 900253. there
We conclude advised that Throlson was that he was or Supreme of North Court Dakota. DUI, charged and, would be accord- 21, 1991. Feb. ingly, his failure submit to a chemical Chapter test a “refusal” was not under judgment
39-20. The of the district court
is affirmed. Arntz, nied, (N.D.1979);
2. See State v. S.Ct. L.Ed.2d 273 U.S. Iverson, (1971). (N.D.), N.W.2d 1 cert. de- *2 (argued), daughter, brought Miller bаck Grosinger D. Asst. States Lisa’s father Brian Mandan, plaintiff appellee. apartment. Atty., Mandan, (argued), Lester J. Schirado return, Shortly after his induced appellant. defendant and call talk.” Lisa to Kessler to come over “to *3 arrived, argument
Before another Kessler MESCHKE, Justice. broke out Lisa and Miller. When between got shotgun, Miller out his Miller and Lisa appealed Paul Miller Lawrence struggled possession gun. Mil- for murder, arguing conviction holding gun а at ler when knock evidentiary errors or failure to that either shouted, “run, the door was heard. Lisa of extreme emotional instruct on the effect got gun.” has trial, required a new and that disturbance required acquittal. an We lack of evidence began Kessler knocked on the door and it affirm. shout, swing open. he heard When Lisa door, turned, Kessler shut and ran must the evidence in the view stairway, looking down the back over his light most favorable to the verdict. left shoulder. Miller shot at Kessler as he Olson, ran and birdshot struck the left side of light. We summarize the case Kessler’s face. During the week of Christmas shotgun, Miller reloaded the followed wife, separated from his Lisa. She outside, Kessler at and shot Kessler a sec- couple’s apartment with remained time, missing passing ond this time him. A family’s their children. Miller took vi- hospital motorist took Kessler to the (VCR) recorder with him and dеocassette injuries. inju- treatment of his Kessler’s moved in with a friend. scarring face, ries resulted of his some Kessler, friend, Kerry brought Lisa’s shot, partial embedded and a loss of his apartment during new VCR to Lisa’s hearing. evening of 1989. Kessler December telephoned emergency Lisa the 911 num- baby-sitter waited there with the children’s neighbor’s apartment. ber from a Police to return from her annual Lisa office dispatched were to the scene. Miller also party. Kessler left Lisa’s about telephoned According 911. dispatch- telephoned 1:30 a.m. when Miller Lisa call, er who took his Miller named Kessler coming to her. After about to talk intruder, describing as an both Kessler and arrived, VCR, he discovered the new ac- custody his vehicle. After Miller inwas infidelity, began arguing cused Lisa of arresting an way officer on the to the with her. Miller took the new VCR out- station, said, police “I Iwish would side, pavement, it on the threw man- have killed the son of a bitch.” gled it. Miller then drove to the home of parents where he roused his charged violating Lisa’s father- Miller was NDCC 12.1-06-01(1) 12.1-16-01(1) breakup. in-law to discuss his marital by attempt- a.m., telephoning 4:00 after About ed murder.1 A guilty. found Miller 12.1-06-01(1) says: 12.1-16-01(1) says: 1. NDCC NDCC guilty A a class AA felo- if, guilty attempt A of criminal act- ny, if he: ing culpability with the kind of otherwise Intentionally a. or causes the required for commission of a he inten- being; deаth of another human which, fact, tionally engages in conduct being b. Causes the death of another human step constitutes a substantial toward commis- manifesting under circumstances extreme in- step” sion of the crime. A “substantial life; difference to the value of human or strongly conduct which is corroborative of the Acting c. either alone or with one or complete firmness of the actor’s intent to persons, attempts legal other commits or commission of the crime. Factual commit or treason, robbery, impossibility committing burglary, kidnapping, feloni- the crime is not a defense, restraint, arson, gross imposition, if the crime could have been ous sexual commit- and, escape ted had the attendant circumstances been as in the course of and in further- flight the actor believed them to be. ance of such crime of immediate сonviction, fairly en- arguing five we conclude that the trial court appealed his questions: sequestration forced the order. se- fairly enforce
1. Did the trial court questration of witnesses? Photographs improperly court admit 2. Did the trial wounds, photos of Kessler’s Two the victim? photographs of shooting, taken three prosecution’s nondisclosure 3. Was the displayed received into evidence and preju- tapes of the 911 calls objections. over Miller’s Because the dicial? prosecution testify had Kessler and show improperly fail to 4. Did the trial court jury, the scar on his cheek to the instruct on extreme emotional distur- pictures were unneces *4 bance? sary probative absolutely and “had val evidence for the 5. Was there sufficient pictures “depicted ue.” Because the the conviction? bloody gory victim a state three happening,” after the QUESTIONS
EVIDENTIARY pictures prejudicial use of the Sequestration 1. “solely purpose inflaming for the of the opening were Before statements passions prejudices jury.” On made, requested sequestration of appeal, argues pic that use of the granted The trial court the re witnesses. they tures made trial unfair because “in quest and directed counsel that it was probative highly lackеd value and were upon you your to instruct witness cumbent prejudicial. sequestration order in es that there is a prosecution responds The that the seri- Yet, complains effect.” impor- ousness of Kessler’s wound became “continued to con prosecution’s witnesses when, opening tant statement fur verse with each other” and that “no jury, characterized the in- by taken ther action was court] [trial “slight graze.” prosecution as a The monitor the same.” argues pictures “legitimately that the were order NDREv 615 directs a trial court to probative” disprove the mischaracteriza- excluded from the courtroom witnesses injuries “slight tion of Kessler’s as a during taking testimony, except as of graze.” testifies, request party. at the each rule, sequestration de- Application of this The trial court controls admission and 615, mandatory. from FREv rived exсlusion of evidence. NDREv 104 and Ordinarily, all relevant evidence is testimony At the end of the of each NDREv 402. But even rele- admissible. (except that of Miller himself and witness pro- excluded “if vant evidence its wife), Lisa, his former the trial that of substantially outweighed by bative value is seques- instructed the witness about court danger prejudice” of unfair or other Miller has not shown how or when tration. evidentiary considerations. NDREv 403. disobeyed sequestration any witness relevant, depictions gory order, However de- trial court failed to act on or that the record, excluded from any request might to enforce it. On this tails well be evidence therefrom, he, participant, the circumstances indicated a or another if there on which under bodily injury; any, any person; the death of ex- readiness to inflict serious causes (3) any prosecution Reasonably par- cept believed that no other that in under this sub- weapon; ticipant in which the defendant not the was armed with such a section only (4) Reasonably underlying par- participant believed that no other in the it is ticipant engage likely in conduct an affirmative defense that the defendant: intended (1) bodily injury. Did not commit the to result in death Subdivisions a and b shall be serious homicidal act or solicit, command, induce, any way inapplicable procure, counsel, thereof; by subsection 2. or aid the the circumstances covered commission (2) firearm, charge For these two Was not armed with a destruc- device, dangerous together. weapon, weap- be read tive statutes must or other tape offer of the did not hear unnecessary
by the trial court it. purpose. proof photo and admission The use Nonetheless, pros- trials, like most evi in criminal graphs tapes ecution’s failure to disclose dence, largely with the discretion rests request upon discovery 911 calls both court, photographs even when the trial prejudicial trial was because he was before exciting effect of the additional have properly by surprise “taken and unable to jury. State v. Ohns the emotions of prepare prosecution for his defense.” (In (N.D.1984) tad, 839-40 359 N.W.2d made tapes cоncedes that were not child, homicide of a negligent a trial for attorney during “open available to Miller’s by its discretion court did not abuse trial Miller initiated dis- file” disclosures after “depicting in color admitting photographs oversight covery, attributing the failure to scalp had been the child’s skull tapes not intended to be because the autopsy”); during the deflected back kept used as and were elsewhere. (N.D.1971) Iversоn, 36-38 discovery Pretrial of evidence in criminal trial, (In trial court did not murder cases is controlled NDRCrimP 16. by admitting unpleas abuse its discretion When evidence should have been disclosed victims that showed photographs ant *5 withheld, 16(d)(2) NDRCrimP autho- but badly condition of their deteriorated trial court to use one or more of rizes the photos autopsy, when the bodies before may various remedies. The trial court or- testifying). Even patholоgist in aided the disclosure, continuance, grant further a der a gruesome pictures are admissible for prohibit evidentiary use of undisclosed proper proof purpose. material, requesting party relieve a from wounds, pictures of Kessler’s tak- These disclosure, making any a or enter other shooting, show the en three Here, justice. order the interests of injuries clearly than the extent of his only objected Miller tо use of the undis- trial. scar that he bore at the six-month-old tape closed as rebuttal evidence. Miller eye, they are not pleasing not to the
While sought remedy no other from the trial horrifying. particularly See discovery court for the violation. 722, 653, Gulke, 725 76 N.D. (1949). According testimony, pho- these to The nondisclosure was not as serious as fairly depicted the condition of Kes- tos dispatchers out. Both who makes they at the time were taken. sler’s wounds took the 911 calls were disclosed as wit- jury weighing They useful to the report nesses. Miller received the written arguments other evidence and about call, dispatcher who took his injuries from the seriousness of Kessler’s report even entered that into evidence. shooting. conclude that the trial court specific request he Since made admitting its discretion did not abuse relief, gener- for trial cоurt further injuries. photographs these of the victim’s prejudice enough is not alized claim of merit a new trial. Discovery significant a defendant is not defense, When In his Miller testified that violation, prejudiced discovery ly by a that protect an intruder to was at cannot claim that defendant substan family, attempting any to kill his denied right tial was affected. v. Rasmus State one, identifying and denied the “intruder” sen, 481, (N.D.1985). 365 483 N.W.2d See dispatcher. In rebut as Kessler to the 911 87, 339 89 Shipton, also State v. N.W.2d tal, prosecutor sought impeach Mil out, (N.D.1983). As it turns Miller was not by offering tape phone ler his call to it prejudiced by this violation and dispatcher. objected the 911 52(a). harmless error. NDRCrimP tape produced had not been never heard the un prosecution during pretrial The discovery. tape. We do not understand prosecutor evidentiary then disclosed 911 withdrew the
I33 orally, trial court’s denial were made even court could have done the trial what more though not in the record. shown circumstances. under these 30(b) requested NDRCrimP directs that INSTRUCTIONS JURY writing. In instructions must be State requests filed four written Marks, (N.D.1990), v. 452 298 we N.W.2d court, trial for instructions held that when the defendant’s No given. instruction and all them were requested does not instruc- submit disturbance was on extreme emotional has no writing, tions the defendant basis among them. court's refusal challenging a trial orally ruling applies give That on instruction. to, an requested, appropri- entitled here. and was dis- on “extreme emotional ate instruction Marital circumstances contribute to excuse to reduce turbance” as a reasonable an “extreme disturbance emotional murder
the seriousness of
which there
excuse”
is reasonable
12.1-16-01(2) authorizes
offense. NDCC
mitigate
allow a
serious
murder
mitigation
a class AA
to class
Huber,
ness
homicide.
v.
361
State
was caused “un-
A murder if the homicide
236,
so,
Even
239-41
dis-
der the
of extreme emotional
influence
questionable today
to what ex
ex-
turbance for which there
reasonable
tent,
any,
through
mitigation
“extreme
cuse.”
emotional
claimed by
disturbance” can be
prosecution argues that an
The
instruc-
spouse
suspected
jealous
who shoots
on
emotional disturbance”
tion
“extreme
Pеople
spouse.
lover of
other
See
properly requested,
never
does not
Chevalier,
66,
167,
Ill.Dec.
Ill.2d
requested.
orally
concede that it was
(Verbal
(1989)
N.E.2d
points
defining
statute
out that the
adultery
communication
is insufficient
*6
attempt
mitigates the seriousness of
itself
provocation, “[wjhatever may be the outer
attempted
by reducing
an
class
offense
only
general
limits of the
rule that
felony.
felony
AA
to a clаss A
See NDCC discovery of
in the act of
parties
adul
reason,
12.1-06-01(3).3
prose-
For that
tery,
immediately
before or after the
mitigation
argues
cution
that more
would act,
provocation”);
will
Burger
suffice as
only mitigation,
not be allowable. Since
State,
769, 771,
238 Ga.
S.E.2d
affected,
exoneration,
the prosecu-
not
is
(1977) (“[A]ny
spouse
idea that a
is ever
in
any
tion
defect
the instruc-
justified
taking the life of another —adul
emotional
tions about “extreme
distur-
spouse
prevent
illicit lover—to
terous
error.
bance” cannot be obvious
murder;
is
adultery is
This
uncivilized.
henceforth,
instruction,
nothing
appearing,
an
requested
If
such
homicide
justifiable
All
an instruction on
this
does not show it.
we have
record
opinions
given”). Compare prior
of
not
go
representation
on
Miller’s
Annotation,
request
appeal
Spouse’s
that his
collected
on
Confes-
12.1-16-01(2) says:
culpably
tion for
was not
2. NDCC
which the offender
responsible.
murder,
person
guilty
felony,
A
class A
person
the death
if the
causes
of another
12.1-06-01(3) says:
NDCC
being under
human
circumstances which
attempt
of the
Criminal
is an offense
same
felony
except
class AA
(a)‘
except
attempted,
class as the
offense
under
causes the death
the influ-
attempt
felony
AA
an
to commit a class
is a
ence of extreme emotiоnal disturbance for
felony
attempt
class A
an
to commit a
which
reasonable excuse.
there is
The rea-
(b)
felony;
felony
B
class A
is a class
sonableness of the excuse must be determined
by preponderance
whenever
is established
viewpoint
from
his situa-
sentencing that the
of the evidence at
constituting
conduct
tion
circumstances as
under the
he believes
attempt
danger-
come
did not
them
extreme
ously
to be. An
emotional distur-
close
an
to commission
excusable,
felony
meaning
attempt
bance
within the
of this
B
shall be a
commit a class
only,
attempt
felony
it is occasioned
to commit a
subsection
substan-
class C
and an
event,
provocation,
felony
A misdemeanor.
tial
or a serious
class C
shall be a class
or situa-
Adultery
Affecting Degree
(N.D.1990)(Meschke,
As
sion
Jus-
tice,
Spouse
dissenting).
Killing
Involved In
Or
justify
Homicide
seeks to
Paramour,
shooting
93 ALR3d 925
as defense
family
His Or Her
of his home and
(1979);
during
40 Am.Jur.2d Homicide
a time of emotional distress over
§
(1968). But,
breakup
upon
this case does not call
us
of his marriage.
did
question.
not
to resolve
such
credit that defense and we cannot rede-
mitigation
claimed defense of
for “extreme
termine Miller’s credibility.
effectively
emotional disturbance” was not
According
wife,
to his former
presented
trial court. Sinсe the
lured
apartment
Kessler to the
and waited
review,
question
preserved
not
we
for him
shotgun.
with a
Miller shot at
do not answer it.
twice,
Kessler
once in the
house
outside,
again
both times while Kessler
EVIDENCE SUFFICIENCY
fleeing.
shot,
Just before the second
argues here,
as he did in the
out,
Miller called
“You son of a bitch.”
moving
judgment
trial court in
of ac
arrest,
After
officer,
Miller stated to an
quittal,
that he did not act
“I wish I would have killed the son of a
intentionally
Kessler. He ar
bitch.” This
fairly
evidence
warranted Mil-
testified,
gues,
“attempted
as he
ler’s conviction
murder.
thought
ward off what he
was a would-be
We find no error that made the trial
argument
intruder.” He embellishes this
requires
unfair or that
a new trial. The
by maintaining that
“emotionally
he was
was sufficient for the
to find
upset and was unable to restrain himself
guilty
of attempted murder. We
properly” because he believed Kessler was
affirm Miller’s conviction.
“surreptitiously stealing his wife Lisa’s
love and affection from him.” These are
. ERICKSTAD, C.J., and LEVINE and
arguments
factual
about Miller’s intent.
GIERKE, JJ., concur.
power
Our
of review of the facts on
WALLE, Justice,
VANDE
concurring in
from,
is different
and more circum
result.
than,
power
scribed
in deter
I concur in
majority opinion
except
mining
pointed
the facts. As we
early
out
insofar as the discussion of “extreme emo-
opinion,
this
we must view the facts in
tional
implication
disturbance” and the
*7
light
most
favorable
verdict.
the citations in that discussion are con-
Olson,
uniquely suited to determination rath- purport to not decide the issue. er than appellate review. state of “[A] mind is rarely proven directly and must
usually be inferred from conduct and cir-
cumstances.” Wiedrich,