Pattern Jury Instruction Commission October 4-5, 2012, Meeting Minutes

Pattern Jury Instruction Commission

PATTERN JURY INSTRUCTION COMMISSION
October 4-5, 2012
1:00 p.m.
Bismarck, ND

MEMBERS PRESENT: M. Armstrong, J. Anderson, J. Feland, J. Geiger, T. Kolb, J. Lee, D. Lillehaug, J. McEvers, P. Myerchin, P. Zuger

MEMBERS ABSENT: J. Vendsel

GENERAL BUSINESS

Chair Judge Lee called the meeting to order. Jennifer Albaugh, law clerk for the South Central Judicial District, assisted.

Election of Vice-Chair: The vice-chair this year will be an attorney. Service is until June 30, 2013 when the vice-chair assumes the position of chair.

Motion to nominate D. Lillehaug: T. Kolb
Second: P. Zuger
Approved

Membership: J. Webb completed his service on the Commission in June and was not eligible to serve another term. Judicial Conference met in June and appointed J. Mc.Evers to fill the position. J. Geiger was reappointed to a second term. Tracy Kolb and Paul Myerchin were both appointed to serve a third term.

Minutes: Minutes of the June 2012 meeting were reviewed.

Motion to approve: M. Armstrong
Second: J. Feland
Approved

Financial Report: The 2011-13 PJIC budget is $31,622, and the Commission has spent $18,446.17 as of August 31, 2012. This amount is 58.33% of the budget with 58.33% of the biennium having passed.

Motion to approve the financial report: J. Geiger
Second: M. Armstrong
Approved

Interim Activities

1. Minutes from the June 2012 meeting were prepared and submitted for posting.
2. 2012 jury instruction changes and updates were sent to SBAND for publication. The instructions are available online and for purchase.
3. Notice was received from Judicial Conference that J. McEvers of Fargo was appointed to fill the position held by J. Webb, who served three terms and was not eligible for reappointment. J. Geiger was appointed to serve a second term.
4. Notice was received from SBAND that T. Kolb and P. Myerchin were both reappointed and are currently serving their third terms.
5. Court Administration was contacted regarding the purchase of posters for the jury rooms. Sally was in favor of the project and plans to work with J. Nelson's court administrator to purchase the posters.

INSTRUCTIONS

a. NDCC 12.1-16, Homicide (most of chapter) - D. Lillehaug reviewed this set of instructions and proposed format changes.

a. K - 6.01, Murder (Intentionally or Knowingly) - Changes were made to keep the instruction consistent with other instructions and the style sheet. Discussion was held regarding placing brackets around "Intentionally" and "Knowingly" to indicate that either can be charged. Commission members discussed whether the culpability needs to be charged or whether, since the statute states "intentionally or knowingly" the jury can determine guilt under either. Brackets will not be included.

The commission discussed formatting the elements and whether the culpability should be a separate element from the act (crime). This has been discussed by the Commission at previous meetings and the consensus has been to list culpability as a separate element.

Motion to approve: D. Lilllehaug
Second: P. Zuger
Approved (J. Anderson dissenting on grounds that culpability level of "willfully" should be included in another element and not listed as its own element)

b. K - 6.02, Murder (Extreme Indifference to Human Life) - D. Lillehaug reviewed this instruction and suggested format and stylistic changes. Language was added to be consistent with the statute.

Motion to approve introductory language and elements: J. Feland
Second: D. Lillehaug
Approved (J. Anderson dissenting on grounds that culpability level of "willfully" should be included in another element and not listed as its own element)

Motion to approve definitions and notes: D. Lillehaug
Second: J. Anderson
Approved

c. K - 6.03, Murder (While Committing Crime) - D. Lillehaug reviewed this instruction and suggested format and stylistic changes. The Commission made formatting changes to remain consistent with other Homicide instructions. Discussion was held about ending the introductory paragraph with "is guilty of the offense of _______" instead of "is guilty of ______." The goal is for the instructions to be as clear to possible for jurors. The additional language will not be included in this instruction.

Additional discussion was held to determine whether it is better to include the name of the crime at the beginning of the introductory paragraph or at the end. The goal is to be consistent and aid the jurors. The elements were re-worked for ease of reading.

Motion to approve introductory language and elements: J. Feland
Second: J. Anderson
Approved

Citations and notes were reviewed. No newer case law exists.

Motion to approve citations and notes: D. Lillehaug
Second: P. Zuger
Approved

d. K - 6.10, Affirmative Defenses to Murder (While Committing a Crime - Multiple Participants) was reviewed by D. Lillehaug. He suggested a correction to the citation and a clarifying revision to the title. Stylistic changes were made to remain consistent with the other homicide instructions.

Motion to approve introductory language and elements: J. Feland
Second: P. Zuger
Approved

The citations and notes were reviewed. A note from K - 6.03 re: an offense against children was added.

Motion to approve: D. Lillehaug
Second: P. Myerchin
Approved

e. K - 6.15, Murder (Extreme Emotional Disturbance) was reviewed by D. Lillehaug. He solicited comments from the Attorney General and State's Attorneys. The AG stated the existing instruction framed the offense incorrectly, and upon review, D. Lillehaug agreed. He proposed revisions based on the AG's comments and the 2009 State v. Sorenson case. The Commission discussed whether there should be two instructions, one for AA felony and one for A felony. It was felt that the crime could be charged either way, so 2 instructions made sense.

Existing K - 6.15 was revised to address the A Felony.

Motion to have D. Lillehaug prepare separate instructions (stand alone, mitigating, and verdict form) for the March 2013 meeting in consultation with the Assistant AG: P. Myerchin
Second: M. Armstrong
Approved

Staff will ask SC to include a warning that the instruction is not good when the minutes are published. Discussion was held regarding whether the instruction can be pulled from the SBAND cite even though instructions for 2012 have already been approved and the 2013 changes will not be official until June 2013. ND Sup Ct Admin R 23(3)(b) requires the Commission to "Draft and publish a current set of pattern jury instructions to be used in civil and criminal jury cases in North Dakota." (Emphasis added). Nothing in the rule limits publication to once per year. The Commission's internal policy provides for publication "on an annual basis at a minimum." Because instructions are to be current, the Commission felt it was necessary to remove the incorrect instruction immediately.

Motion to withdraw K - 6.15 from the Criminal Manual: M. Armstrong
Second: J. Nelson
Approved (J. Anderson dissenting)

Staff will notify SBAND that the instruction has been removed. Staff will also request a notice be sent on the SC daily e-mail.

f. K - 6.20, Manslaughter (Reckless Conduct) - D. Lillehaug suggested formatting changes to be consistent with other instructions.

Motion to approve introductory language and elements: D. Lillehaug
Second: J. Feland
Approved

The definitions and notes were reviewed. The definition of "reckless" is included in the instruction, but the general format is to refer the user to the statute rather than state the instruction, so that change was made.

Motion to approve definitions and notes: J. Feland
Second: J. McEvers
Approved

g. K - 6.30, Negligent Homicide - D. Lillehaug reviewed this instruction and proposed three options for revision. Option 3 is patterned after the instruction given and approved in State v. Tranby, 437 NW2d 817 (ND 1989). That instruction named the negligent conduct Defendant engaged in, but it was felt this could result in an extensive list of conduct. Option 2 is similar to other instructions. The Commission felt it was the cleanest and most consistent option.

Motion to adopt K - 6.30 Option 2: J. Anderson
Second: D. Lillehaug
Approved

Motion to approve introductory language and elements: M. Armstrong
Second: J. Anderson
Approved

Motion to approve definitions and notes: M. Armstrong
Second: J. McEvers
Approved

b. Murder of Unborn Children during commission of a crime - P. Myerchin drafted this new instruction which will be similar to the homicide instruction, K - 6.03. The instructions were reviewed to ensure conformity.

Motion to approve introduction and elements: J. Anderson
Second: J. McEvers
Approved

Motion to approve definitions and notes: J. Geiger
Second: J. Anderson
Approved

c. Aggravated Assault of Unborn Child - P. Myerchin drafted this instruction in conformity with the statute.

Motion to approve introduction and elements: J. Geiger
Second: P. Myerchin
Approved

Definitions and notes were revised to conform to other instructions.

Motion to approve definitions and notes: J. McEvers
Second: T. Kolb
Approved

d. Employer Liability of Production Agriculture Employers - D. Lillehaug looked at this situation and recommends no instruction. This situation would be a basic negligence action, no different than any other negligence case.

Motion to not create an instruction: D. Lillehaug
Second: J. Geiger
Approved

e. NDCC 12.1-21-04 (Release of Destructive Forces) - J. Geiger reviewed this chapter for which no instructions currently exist. He questioned whether instructions were needed, but drafted some proposed instructions. The statute was enacted in 1973 but appears to have never been charged.

a. The first proposed instruction is Release of Destruction Forces (Intentional) (B Felony). Changes were made so formatting and styles were consistent with other instructions.

Motion to approve: J. Anderson
Second: P. Myerchin
Approve

b. The next proposed instruction is Release of Destructive Forces (Willful). The only difference between this and the previous instruction is the culpability level.

Motion to approve: J. Anderson
Second: J. McEvers
Approve

c. The next statute covers a situation where the catastrophe does not have to actually occur but only that there is a risk of catastrophe (Willful Creation of Risk). Discussion was held about the proper placement of language indicating actual occurrence of a catastrophe is not an element of this crime.

Motion to approve: M. Armstrong
Second: J. Anderson
Approved

d. The final instruction under this statute is Release of Destructive Forces (Failure to Take Reasonable Measures to Prevent Catastrophe).

Motion to approve: J. Anderson
Second: T. Kolb
Approved

Discussion was held regarding including subparts in the definition references. For intent and general definitions, the reference should be only to the statute and not to the subpart, as subparts are subject to change.

Motion: J. Anderson
Second: M. Armstrong
Approved

f. NDCC 12.1-21-06.1 (Interference with Telephone During Emergency Call) - J. Geiger drafted instructions for this section. The statute provides for 2 levels of misdemeanor based on culpability, so two instructions were drafted.

a. The first proposed instruction applies to situations where the interference is intentional. The Commission debated where the culpability of "intentionally" applies, to the actions or the interference. It was determined that the actions must be done intentionally and the interference results.

Motion to approve introductory language: D. Lillehaug
Second: J. Anderson
Approved

Motion to approve: J. Anderson
Second: M. Armstrong
Approved

b. The second proposed instruction applies to situations where the interference is knowing or reckless. Edits were made to make this instruction consistent with the previous.

Motion to approve: J. Anderson
Second: P. Zuger
Approved

g. NDCC 12.1-23-13, Distribution and Use of Theft Detection Shielding Devices - J. Anderson reviewed this section for which no instructions currently exist. No case law exists in ND, but a KS case provides some guidance. Commission members have seen this statute charged. No one has yet had a trial, but all agreed pattern instructions will be useful.

a. The first proposed instruction addresses Unlawful Distribution of a Theft Detection Shielding Device.

Motion to approve introductory paragraph: J. Nelson
Second: J. Anderson
Approved

Discussion was held regarding the "intent" element of NDCC 12.1-23-13(a).

Motion to approve elements: J. Feland
Second: J. Nelson
Approved

Motion to approve definitions and notes: J. Feland
Second: J. Geiger
Approved

b. The next instruction addresses Unlawful Possession of a Theft Detection Shielding Device.

Motion to approve introductory language: J. Feland
Second: J. Geiger
Approved

Motion to approve elements: J. Feland
Second: J. Geiger
Approved

Motion to approve definitions and notes: D. Lillehaug
Second: J. Feland
Approved

c. The third instruction addresses Unlawful Possession of a Theft Detection Device Deactivator or Remover.

Motion to approve introductory language: J. Anderson
Second: M. Armstrong
Approved

Motion to approve elements: J. Feland
Second: J. Anderson
Approved

Motion to approve definitions and notes: M. Armstrong
Second: P. Zuger
Approved

d. The next instruction is Unlawful Deactivation or Removal of Theft Detection Device (NDCC 12.1-23-13(4)).

Motion to approve introductory language: J. Feland
Second: J. Nelson
Approved

Motion to remove language referencing "intent to commit theft" because it is not in the statute: J. Geiger
Second: J. Feland
Approved

Motion to approve elements: J. Feland
Second: T. Kolb
Approved

Motion to approve definitions and notes: J. Feland
Second: J. Anderson
Approved

e. The final instruction addresses Unlawful Distribution of a Theft Detection Device Deactivator or Remover.

Motion to approve introductory language: J. Feland
Second: J. Anderson
Approved

Motion to approve elements: J. Feland
Second: J. Anderson
Approved

Motion to approve definitions and notes: M. Armstrong
Second: P. Zuger
Approved

h. NDCC 12.1-23-14 (Detention of Persons Suspected of Unlawful Use or Removal of Theft Detection Devices) - J. Anderson reviewed this statute for which no instruction exists. No ND cases exist and the statute grants immunity from civil liability and does not involve a criminal offense, so J. Anderson recommends no instruction be adopted.

Motion to not create an instruction: M. Armstrong
Second: P. Zuger
Approved

i. K - 12.05, Justifiable Response to Assault - M. Armstrong reviewed this instruction and suggested adding recent citations. He also recommends a note pointing users towards this civil instruction.

Motion to approve: J. Feland
Second: P. Zuger
Approved

M. Armstrong suggested adding a reference to the criminal code section on justification as a tool to assist users.

Motion to approve: J. Feland
Second: M. Armstrong
Approved

j. K - 5.16, Direct and Circumstantial Evidence, in light of State v. Nakvinda, 2011 ND 217, 807 NW2d 204 - J. Lee reviewed this decision and recommends changing the final paragraph to be consistent with the Courts language in the opinion. Guidance was also received from an 8th Circuit instruction. Citations to newer cases were also included.

Motion to approve: J. Feland
Second: J. Anderson
Approved

k. K - 3.40, Defense of others - M. Armstrong reviewed this instruction from 1985 and recommended no changes.

Motion to approve: P. Zuger
Second: J. Anderson
Approved

l. K - 3.80, Excuse (Necessary and Appropriate Conduct) - M. Armstrong reviewed this instruction from 1985. He recommends adding recent citations but no other changes.

Motion to approve: J. Anderson
Second: M. Armstrong
Approved

m. K - 7.90, Registration Requirement (Sexual Offenders and Offenders Against Children) - J. Feland reviewed this instruction. The law is complex and there are many areas under which a person can be charged.

Motion to approve introductory paragraph as amended: J. Anderson
Second: P. Zuger
Approved

The instruction had included a list of possible convictions. J. Feland suggested the instruction direct the user to the statute to insert the appropriate language.

Motion to table until March 2013: J. Anderson
Second: M. Armstrong

n. Capitalization of crime names in introductory paragraph of criminal instructions - the majority of existing Criminal instructions are capitalized. Discussion was held as to whether capitalizing draws unnecessary attention to the word. Consensus was that instructions should be consistent.

Motion to not capitalize in all instructions: J. Nelson
Second: M. Armstrong
Approved

Staff will add this formatting decision to the PJIC style sheet.

Motion to request staff edit all existing instructions to comply with formatting style: D. Lillehaug
Second: T. Kolb
Approved

Assignments for March

a. NDCC 12.1-20-24 (Facilitation of Sexual Acts in Public ) - J. Vendsel
b. Review PJIC Style Sheet
c. Admonition re: eyewitness testimony - J. Nelson
d. K - 6.15, Murder (Extreme Emotional Disturbance), K - 6.16, Extreme Emotional Disturbance - D. Lillehaug
e. Civil Employment Instructions (Whistle Blower) - P. Zuger and M. Armstrong
f. Possible revisions to K - 1.03 and C - 1.57 in light of recent changes to federal instruction - T. Kolb
g. K - 7.90 - J. Feland
h. The Civil Manual will be reviewed with each member taking a section:

a. Tracy - Introductory
b. Misc Torts - P. Zuger and M. Armstrong
c. Motor Vehicle - D. Lillehaug
d. Estates - J. Nelson
e. Contracts - J. Lee
f. Agency - J. Feland
g. Damages - J. Anderson
h. Eminent Domain - P. Myerchin
i. Evidence - J. Vandsel
j. Closing Instructions - J. Geiger
k. Verdict Forms - J. McEvers

Motion to Adjourn: M. Armstrong Second: P. Zuger Approved

Respectfully submitted,

Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529-9617
(701) 522-3360