IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|The State of North Dakota,|
|Supreme Court No. 20100126|
|Plaintiff and Appellee,|
|Burleigh County No. 08-09K-00302|
|Defendant and Appellant.|
APPEAL FROM JURY CONVICTION
FROM THE DISTRICT COURT
BURLEIGH COUNTY, NORTH DAKOTA
SOUTH CENTRAL JUDICIAL DISTRICT
HONORABLE SONNA ANDERSON
BRIEF OF APPELLANT
|State Bar ID #06020|
|ND Public Defenders Office|
|135 Sims St Suite 221|
|Dickinson, ND 58601|
|Attorney for Defendant|
|[¶1] TABLE OF CONTENTS|
|Table of Authorities . ¶2|
|Statement of the Issues .... ¶3|
|Statement of the Case . ¶4|
|Statement of the Facts ¶5-7|
|Law and Argument . ¶8-16|
|Conclusion .. ¶17|
|Certificate of Service ... ¶18|
|[¶2] TABLE OF AUTHORITIES|
|State v. Ebach, 1999 ND 5, ¶24,589 NW2d 566 ¶11|
|State v. Gagnon, 1999 ND 13, ¶ 23, 589 NW2d 560 . ¶11|
|State v. Kingsley, 383 NW2d 828 (ND 1986) .. ¶13|
|STATUTES AND RULES|
|N.D.C.C. § 12.1-17-01.1 ¶4|
|N.D.C.C. § 12.1-01-04(29) ¶4|
|N.D.Crim.P. Rule 29 ¶3,10, 12|
STATEMENT OF THE ISSUES
[¶3] Under Rule 29 of the North Dakota Rules of Criminal Procedure, does the evidence on record support a finding of Guilt beyond a reasonable doubt, when:
a. The alleged victim's account of the story was much different at trial than it was to officers on the scene; and
b. There is evidence that the Defendant responded to provocation by the alleged victim, thereby acting in lawful defense of self; and
c. The testimony of the doctor is that, although improbable, he could not say absolutely that this injury was not caused by a fist-strike to the face.
STATEMENT OF THE CASE
[¶4] This is an appeal from the Burleigh County District Court Criminal Judgment dated April 16, 2010. (Attached as Appendix page 1). On or about February 20, 2009, in Burleigh County, North Dakota Randall Duffy was charged with and subsequently arrested for the offense of Assault in violation of N.D.C.C. § 12.1-17-01.1 and/or § 12.1-01-04(29), a Class A Misdemeanor. On that same day, Duffy appeared in District Court and entered a plea of not guilty to the Criminal Complaint. A twelve-person jury trial commenced at 8:30 a.m. on April 16, 2010, and at 4:33 p.m. the jury brought in a verdict of guilty to Assault. Sentencing was done immediately after the verdict was returned, and Judgment was entered on April 16, 2010. Duffy filed a Notice of Appeal on May 4, 2010. (Attached as Appendix page 2).
STATEMENT OF THE FACTS
[¶5] On January 5, 2009, at approximately 11:12 p.m. Burleigh County law enforcement officers were dispatched to North 13th Street in Bismarck, North Dakota. (Transcript 140). Officers observed a male, Marlon Schwartz, with an injury to his eye. (Transcript 142). Upon arriving at 1517 ½ North 13th Street, officers were informed by Jody Campbell and Marlon Schwartz that Randall Duffy had just struck him following an argument. (transcript 143, 156). Duffy had returned to his home.
[¶6] Mr. Schwartz told the officers that he had gone to the dwelling to have something signed by Ms. Campbell. He was told to leave by Mr. Duffy. Mr. Schwartz left the residence. (transcript 88). It is Mr. Schwartz's contention that he walked to his pickup and it was at that time he was struck by Mr. Duffy with an object wrapped in a white towel. (transcript 92). He admits that he did kick Mr. Duffy in the shins numerous times, but contends that this was to protect himself from further injury from Mr. Duffy. (transcript 99). At trial, Mr. Schwartz stated that he had not been "hit with an object" but that he had, instead, been "stabbed". (transcript 112). Schwartz initially refused treatment but was ultimately examined by Dr. Connell at the Emergency Room of MedCenter One in Bismarck. (transcript 115). Dr. Connell deduced that Schwartz had suffered an "avulsion laceration of the left lower eyelid". (transcript 128).
[¶7] Mr. Duffy was also interviewed at the scene. His testimony is that Mr. Schwartz came to the residence upset. (transcript 176). He became belligerent and was asked to leave. (id.). After leaving the residence he began to argue with Mr. Duffy and ultimately began kicking him and telling him that he was going to "break his other leg". (transcript 180). (Mr. Schwartz had broken Mr. Duffy's leg in a prior episode where he pushed Mr. Duffy from a deck). (transcript 178-179). Mr. Duffy's statement is that, at this time, he hit Mr. Schwartz in the face and knocked him to the ground, causing his injury. (transcript 180). He denied hitting Mr. Schwartz with an object or having his hand wrapped in a towel. (transcript 182). Although he did not deny hitting Mr. Schwartz, it has been his contention that it was done in lawful self defense.
LAW AND ARGUMENT
[¶8] A review of the entire record reveals that insubstantial evidence exists to sustain the verdict of guilty. The State called four witnesses to prove up the offense. Mr. Duffy testified in his own defense. Police Officer Noah Lindelow was the State's third witness. He testified that Mr. Schwartz told him he had been punched and not stabbed. He also testified that Mr. Schwartz said nothing about an object wrapped in a white towel.
Q: First thing that Mr. Schwartz said to you when you came up to him was he got punched?
Q: Didn't say anything about getting stabbed?
A: No, he did not.
Q: Didn't say anything about an object wrapped in a white towel?
A: Not to me, no, sir. (transcript 147).
Officer Luke Beasley was the State's fourth and final witness. Officer Beasley stated his main concern was that of Mr. Schwartz's medical attention and that at no time was there any "object" or white towel found at the scene.
Q: Now, there's also testimony from Mr. Schwartz that there was an object involved, you eluded to that. Did you find any object anywhere?
A: We did not.
Q: Did you find anything other than the gloves in Mr. Duffy's coat?
A: That was what he offered to me. I did not search his person but that was all that I observed.
Q: And there was never any white towel or anything found either?
A: There was not. (transcript 170).
The State's first witness was Mr. Schwartz. He gave a much different account of the events than what he initially relayed to police on the day of the event.
Q: So tell me this, why didn't you tell the police officers about walking to your truck; getting in your truck; reaching for your telephone; seeing Mr. Duffy come out of the house, sneak up on your truck, with his hands in his pockets; wearing a coat; that your reached in to get a telephone; that Mr. Duffy and you had a conversation; that you heard him call you a motherfucker; that he stabbed you; and that he left the scene and went to a car; got in a car; deposited the weapon; left the car without the weapon; and went into his house?
A: What do you want me to say?
Q: I want to know why you didn't tell them that.
A: I told him what I could. I was bleeding really bad. They had an ambulance there for me, or they wanted to get me off to the hospital as soon as possible.
Q: But didn't you deny treatment right away and deny the ambulance ride?
A: I denied the ambulance because I couldn't afford it at the time and Jody said she'd give me a ride.
Q: So we had time, though? I mean, you could tell the officers what happened, especially considering we have a weapon involved and you knew where it might have been. Wouldn't it have been advisable to tell them about all of the these significant facts?
A: I told them that he ran down the street, ran through the neighbor's yard and back into the house.
Q: You told them that?
A: Yes I did.
Q: Okay. And I suppose I'll have to ask them why that's not in their report though, right?
A: I suppose.
Q: Okay. But you've had a year now, a year and some, to really think about this, right? And come up with exactly what happened, right?
A: Same as what happened that day.
Q: But it's fair to say now, though, that your testimony you're giving here today isn't what you reported to the police on that day?
A: I'd say pretty close.
Q: Pretty close? Have you seen the police report?
A: No, I haven't. (transcript 115).
[¶9] The State's second witness was Dr. Connell of MedCenter One in Bismarck. It was Dr. Connell's testimony that Mr. Duffy suffered an "avulsion laceration of the left lower eyelid". His expert testimony was that it was a "laceration". However, he could not rule, absolutely, that the injury could have been caused by a normal blow to the face by a fist. In addition, to have an injury occur with a knife, in the manner it is alleged to have occurred by Mr. Schwartz, and have it not injure the eyeball, is something that would be very difficult to do intentionally.
Q: Again, to have this occur just like it did is fairly a game of chance, in other words? I mean, this is kind of a this would be hard to do on purpose, wouldn't it?
A: Yeah. Just like missing the heart when you stab someone is a matter of chance.
Q: Certainly. Now, are you saying that this absolutely cannot have been caused by someone being punched in the face?
A: No. (transcript 136-137).
[¶10] After the conclusion of the State's case in chief, defense counsel made a Motion for Acquittal based on Rule 29 of the North Dakota Rules of Criminal Procedure. The State resisted and the Court denied Defense counsel's motion. (transcript 174). As stated, Mr. Duffy then testified on his own behalf and reiterated that he and Mr. Schwartz had argued and that after being kicked in the shins by Mr. Schwartz, he punched him once in the face. He did not stab Mr. Schwartz. He did not hit Mr. Schwartz with an object concealed in a white towel. (transcript 174-186)
[¶11] In the case of State v. Ebach, 1999 ND 5, ¶ 24, 589 NW2d 566, this Court held that it will only reverse a criminal conviction if, after reviewing the evidence and all reasonable inferences in a light most favorable to the verdict, no rational fact finder could have found the defendant guilty beyond a reasonable doubt. Further in the case of State v. Gagnon, 1999 ND 13, ¶ 23, 589 NW2d 560, this Court held that in deciding whether sufficient evidence exists to support the verdict, we do not resolve conflicts in evidence nor do we weigh the credibility of the witnesses.
[¶12] Duffy argues that there was insufficient evidence to sustain the verdict of guilty and therefore, that the trial court should have granted Duffy's Rule 29 Motion for Judgment of Acquittal. Rule 29(a) of the North Dakota Rules of Criminal Procedure reads in part,
"Motion before submission to jury. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right."
[¶13] In State v. Kingsley, 383 NW2d 828 (ND 1986), this court held that in deciding a motion for judgment of acquittal the trial court, upon reviewing the evidence most favorable to the prosecution, must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt. (Emphasis added.) A review of the entire record on this appeal can only lead to one conclusion. That conclusion is that there is not substantial evidence upon which a reasonable mind can find guilt beyond a reasonable doubt. The jury acted unreasonably in relying solely upon the new and different testimony of Mr. Schwartz.
[¶14] There is nothing in the record to substantiate his testimony. There is evidence in the record to indicate that the story he gave to the police officers immediately after the incident, when it was fresh in his mind, was completely different than the story he told in front of the jury. Schwartz stated at trial that Randall Duffy crept up to his vehicle, yelled obscenities at him and when Mr. Schwartz was leaning over to answer his telephone; Mr. Duffy stabbed him in the face with an object that was concealed in a white towel. He then went on to testify that after doing so Mr. Duffy ran to a vehicle, deposited the weapon and left the scene. However, when initially reporting the events to the officers in question, Mr. Schwartz simply stated that he had been struck by Mr. Duffy. Not once did he tell the officers about Mr. Duffy sneaking up to the vehicle, yelling obscenities, "stabbing" him or dutifully concealing the weapon in a nearby vehicle. (transcript 115).
[¶15] Mr. Duffy's testimony at trial was that Mr. Schwartz was, indeed, struck in the face. But it was not done with an object and it was not done without provocation. Indeed, Mr. Duffy's testimony is that Mr. Schwartz came over to his dwelling. His testimony is that Mr. Schwartz was already upset and immediately got into an argument. His testimony is that he asked Mr. Schwartz to leave. His testimony is that Mr. Schwartz become verbally and physically aggressive. It is his testimony that Mr. Schwartz began kicking him in the shins and threatening to "break his other leg". And it is his testimony that he struck Mr. Schwartz in the face one time, with his gloved fist, and that he did so to protect himself from Mr. Schwartz's violent advances. (transcript 174-186). Mr. Duffy's testimony is square with that of the officers. Mr. Duffy's testimony is square with the evidence. Mr. Schwartz's testimony is not supported by the evidence.
[¶16] The trial court should have taken this case away from the jury and granted the Rule 29 Motion for Judgment of Acquittal. In failing to do so the trial court committed reversible error. The trial court abused its discretion in denying the motion. There is insufficient evidence to prove beyond a reasonable doubt that Randall Duffy assaulted Mr. Schwartz. Indeed, there is insufficient evidence to prove anything other than Mr. Duffy acted to protect himself from the violent advances of Mr. Schwartz.
[¶17] Duffy respectfully requests that this Court reverse the conviction and order that he be immediately released from the James River Correction Center in Jamestown, North Dakota.
|Dated this 9th day of August, 2010.|
|ND PUBLIC DEFENDER'S OFFICE|
|Attorneys for Defendant|
|135 Sims Street - Suite 221|
|Dickinson, ND 58601|
|State Bar ID #06020|