State v. Pollack

H9 Dakota, Plaintiff North STATE of Appellee, POLLACK,

Ricky Eugene Appellant. Nos. 890363-890365.

Crim. of North Dakota.

Supreme Court 31, 1990.

Oct. influence, fleeing or

attempting to peace elude a officer. A six-person jury guilty returned verdicts on all charges. three Crane, David Mott, M. Atty., State’s Pollack contends there was insuffi plaintiff appellee. cient evidence the verdict for fleeing or attempting to peace elude a offi Mary Nordsven, Howe, E. Hardy, Gal- cer N.D.C.C.: Maus, loway PC, Dickinson, & for defen- “Fleeing dant appellant. or attempting peace Any driver of a motor vehicle officer. WALLE, VANDE Justice. willfully who fails or bring refuses to stop, vehicle to a or who otherwise flees Richard E. appealed judg- from attempts elude, or manner, any ments of upon jury conviction entered ver- pursuing finding police peace officer, dicts vehicle guilty him or under given suspension, driving influence, signal visual or audible and fleeing attempting or peace vehicle to a elude a is officer. We affirm. class A signal complies misdemeanor. A with this section if signal percepti is 2, At August 1989, about 1:15 a.m. on ble to the driver and: Officer Helen Schaible of the Mott Police given “1. If vehicle, from a signal Department saw a vehicle speeding on given hand, is by voice, emergency Main Street in Mott. Schaible had ob- light, siren, or stopping and the served the vehicle make a wide turn onto is appropriately showing marked it to Main Street and continue down the center be an police vehicle; official or of the street before returning proper lane. “2. If given Schaible used the flashing lights from a on police her signal signal given hand, car to by voice, the driver emer- gency siren, light, he did within one and the officer is block. in uniform and prominently displays badge officer’s of office.” approached the vehicle and rec- Although ognized directly below, raised the driver as Pol- pas- Pollack and his lack’s senger appeal1 argues Hofer. When Pol- lack did not asked Pollack violate this license, for his driver’s because it replied, “Helen, pertains you that I a motor know don’t have vehicle and apply driver’s license.” Schaible to a driver on foot. responds detected the odor of alcohol on that the language “or slurring words, and that he who otherwise attempts and she flees or get directed him out of manner” the vehicle and is broad enough to include into her situation where a driver flees on foot when she escorting being after po- stopped Pollack to the by peace officer. lice car he asked if she was originally As 1975, enacted in this,” “hard-nosed about and told her “I 39-10-71, N.D.C.C., did not include the shit;” don’t have to take this he then broke phrase “in any manner.” 1975 N.D.Sess. grasp loose from her away. and ran Schai- 348, Laws ch. Legislature 12. The § added ble testified that she called State Radio to phrase 1987N.D.Sess. Laws ch. during assistance and the call 1 “to broaden the law to § include a driver learned that Pollack’s license was under who flees on foot as well as in his vehicle.” then unsuccessfully January 15, 1987, Minutes of House Trans- searched for Pollack for about 45 minutes. portation Committee and attached Testimo- subsequently Pollack was ny by submitted Berg, Brian Superin- C. charged suspension, with tendent of Highway Patrol, regard- 1. Pollack’s counsel on is different from his trial counsel. ing lights Bill therefore con- car

ing House 1089. We her Pol- 39-10-71, N.D.C.C., ap- clude that Section lack to the vehicle and that when she plies car, to a driver of a motor vehicle him told he broke on foot. from a officer from her conclude there was sufficient evidence to alternatively argues that even if Pollack support the for or at- conviction applies the statute to driver of motor tempting officer under foot, the evidence 39-10-71, sup- trial was insufficient port jury the verdict. He contends that he argues Pollack that was insuf not at the scene and that he was support ficient evidence to the conviction “simply walked from Officer Schaible driving suspension. The court testimony indicates that she did [and h]er jury instructed the order to convict pur- nor did she [him] Pollack, he must have had actual knowl any way.” him in sue edge driving privileges had been sufficiency Our review of of the Knittel, suspended. v. See State evidence claims in criminal cases is well (N.D.1981). N.W.2d 379 Pollack contends appeal the defendant must established. On insufficient to es that there was evidence, in the show that the when viewed knowledge that he had actual tablish verdict, light most favorable to the reveals suspended. his license had been guilt. no reasonable inference of v. stipulated that Pol- Pollack’s trial counsel (N.D.1989). Frey, 441 N.W.2d 668 We do suspension lack’s license was under judgment of the not substitute our for that stopped. Although argues Pollack he was conflicting, if jury where the evidence is that his statement to Officer Schaible that conflicting reasonably one of the inferences “you know don’t have driver’s license” prove guilt fairly warrants a tends “necessarily does not demonstrate that he Tininenko, conviction. v. knowledge driving privi- had actual his (N.D.1985). It is the function N.W.2d 762 “easily leges suspended” were and could be weigh judge jury the evidence and interpreted meaning that he did not have credibility of witnesses. On the Id. possession,” his driver’s license jury assume the believed the evidence jury interpret the function of the supports the verdict and disbelieved Moreover, when that weigh evidence. conflicting any contrary or evidence. State Pollack’s ac- statement is considered with Manke, (N.D.1982). the scene after he asked tion dispute that he was Pollack was to be “hard-nosed signaled driving the vehicle when Schaible inference that this” an additional about wearing her pull him to over. Schaible was knowledge that his li- Pollack had actual badge, and her car was uniform and exists. We conclude cense testified appropriately marked. Schaible evidence, light in the most that the told Pollack to that she verdict, supports the con- favorable to the she was escort viction for car when he broke ing Pollack to that there was insuf Al away from her ver ficient evidence to not arrested Pollack though Schaible had charge dict on the scene, request him left the did not when he influence under Section immediately pursue stop, and did not him, N.D. a violation of Section he dispute C.C., of a motor ve Pollack does occurs when a driver The State offered tes- being given a the vehicle. on foot after vis hicle flees Hofer, passenger timony by the vehicle ual or audible ten to fif- that Pollack drank in the stop. When viewed tequila four shots of estab teen beers and two to the evidence favorable in Mott. 10:00 and 1:00 at bar initially used the flash- between that Schaible lished parties bartender testified that Pollack stipulate drank is ade- record about ten at least beers and five shots quate to determine the issue. tequila period. in that She further testified In stipulation by this case there is no that, midnight, at 12:00 she refused to parties that adequate the record is deter- serve Pollack and Hofer more shots issue, mine the and we are con- unable to because had they enough. she felt had clude from record that Pollack’s trial they testified that were staggering both counsel ineffective. speech and their was slurred. She further We therefore decline address this issue. testified they both “sort of bounced appropri- raise this issue at an off they the woodwork” when left the bar. post-conviction ate proceeding for relief. Hofer was too drunk to drive and that tipsy.” “a bit judgments The of conviction are af- Although Pollack left the scene before firmed. sobriety field administered tests intoxilyzer test, and an or blood C.J., ERICKSTAD, and GIERKE testified that she detected the odor of alco- MESCHKE, JJ., concur. Pollack, “L’s,” hol on slurred his impaired, coordination was LEVINE, Justice, dissenting. that she believed he was intoxicated. Criminal statutes are strictly con The an intoxilyzer results of test strued in of favor defendant are not necessary to sustain a conviction against the Government. City Bis of (N.D. marck v. 430 Sholy, N.W.2d (N.D. N.W.2d Whitney, 1988). purpose An obvious of Section 39- 1985). subsection, Under that the State 10-71 to discourage N.D.C.C. is car chases. prove must a driver motor vehicle says driver who does public on a highway lacked the clearness of his vehicle or who otherwise flees intellect and that he control would other any manner”, tries to “in wise have. conclude officer, to bring when told to a ample presented trial, aof Class A Misdemeanor. most favorable to the did here to a to sustain the conviction for driv ing under the influence in violation told to do so and of Section thus did not 08-01(1)(b), 39- violate this statute. When we construe a statute, criminal legisla should hold the finally contends that he re says, ture to mean what not what it of ceived ineffective assistance counsel at Indeed, meant say didn’t. but even if trial. He trial counsel was reasonable, another construction were in stipulating defective benefit of should doubt inure to the defen Pollack’s license fail dant. reverse. would ing jurors to inform the court two have overheard a conference between him

and his counsel. Ricehill,

In State v.

(N.D.1987), we outlined standard for

establishing ineffective claims of assistance Generally, counsel. those claims are effectively post-convic- proceedings.

tion relief Id. We said that

we will consider claims of ineffective as- direct only

sistance affirmatively

the record shows ineffective-

ness of constitutional dimensions or if the

Case Details

Case Name: State v. Pollack

Court Name: North Dakota Supreme Court

Date Published: Oct 31, 1990

Citation: 462 N.W.2d 119

Docket Number: Crim. 890363-890365

Court Abbreviation: N.D.