PATTERN JURY INSTRUCTION COMMISSION
MEMBERS PRESENT: MEMBERS ABSENT: GENERAL BUSINESS Immediate Past-Chair S. Plambeck called the meeting to order. Computer and clerical assistance was provided by Kara Schmitz, Law Clerk. Minutes: Minutes of the October meeting were reviewed. Motion to approve: J. Hagerty Financial Report: The 2001-03 PJIC budget is $24,697. Through February, 79% of the biennium, the Commission spent $18,372, or 74% of the budgeted amount. Interim Activities The law student who had requested information on the ND pattern jury instructions for a research paper, Meg Olsen, was contacted to request a summary of the results. S. Plambeck summarized his contacts with Christine Hogan regarding publication of the pattern jury instructions online. He confirmed that Justice Sandstrom is willing to post the instructions on the Supreme Court website with no expense to the Commission. The Board of Governors has a meeting scheduled for March 8th, and the topic will be discussed. Motion to accept Justice Sandstrom's offer to post the instructions on the Supreme Court website: J. Bekken S. Plambeck will contact Ms. Hogan before the March 8th meeting to present the views of the Commission and ask whether an appearance at the meeting by a member of the Commission would be desirable. INSTRUCTIONS C - 3.03, Operation of a Motor Vehicle (Impaired Driver); C - 3.05, Under the Influence (Driver of Motor Vehicle: B. Beehler reviewed C - 3.03, one of the 1985-86 instructions being updated. The word "blood" was removed from "blood alcohol concentration." "Any drug" was substituted for "controlled substance" because the drug use that resulted in impairment does not have to be a controlled drug. This instruction needs to be tailored to the specific situation. The Commission discussed whether this instruction needs to be tied to the fault concept. Generally, there would be another instruction given regarding fault. Could the instruction be phrased in terms of a duty? The word "Defendant" was changed to "person" in C - 3.05. "Narcotic drug" was removed and "drug or substance" was used. DUI is broader than driving under the influence of a controlled substance. Should there be a separate instruction on violation of statutory duty? One instruction referring to statutory violation is preferable to putting the standard in all the cases where it would be applicable. The civil instruction is slightly longer than the criminal instruction. In the civil case, would it be necessary to show some violation of a statute? When defining the rules of the road, is it necessary to use the criminal statute? What is the rule of the road that is violated? If it is the rule of the road that is violated, perhaps the instruction should stick to that and not bring in causation. Whether the standard is different for alcohol compared to drugs was discussed. The standard is different so there may need to be two instructionsone for alcohol and one for drugs. Actually there are three standards, but it was suggested that the instruction is just defining when one may not drive. S. Plambeck commented that the issue is just whether there is reasonable care, that it is an instruction on duty. If the duty is breached, then there is a violation of the standard of care if the driver is impaired on anything. The Commission discussed whether it is necessary to know the specific standard related to the impairment? Both instructions were tabled for further discussion. C - 3.12, Duty to Assist: B. Beehler discussed whether the Good Samaritan Act should be included in this instruction or whether it is more properly a separate concern. The Commission did not think inclusion was appropriate. This instruction is specifically for the situation in which there are additional damages for failing to help. The second sentence was reworked for clearer language. Motion to approve: B. Beehler C - 3.14, Willful Misconduct: Now fault includes willful misconduct so this instruction is not necessary. Motion to delete C - 3.14: J. Hagerty C - 3.16, Family Car Doctrine: B. Beehler updated the cites to this instruction. The Commission questioned why older cites are listed. Sometimes they provide a good history but often they are quoted in the more recent cases. J. Bekken suggested removing the older cites. A note was added indicating that a special verdict form is required when using this instruction. Use of the word "mishap" was discussed, and "accident" was substituted. Motion to approve: J. Hagerty C - 3.30, Highway Protected by "Yield" Sign: This instruction conforms to the statute. The term "less-favored vehicle" was replaced. Motion to approve: K. Brust C - 3.32, Highway Protected by "Stop" Sign: The older instruction stated that the driver may proceed into the intersection after "slowing down or stopping." "Slowing down" was removed. Motion to approve: B. Beehler C - 3.36, Flashing Signals: The railroad grade crossing exception was added in a note. Motion to approve: L. Boschee C - 3.64, Backing Movements: "Duty of Train Employees" was added to the title. The AmJur reference will be removed. A motion to approve was made by J. Hagerty and seconded by J. Bekken. B. Beehler will check the CFR reference and report in June. The instruction was tabled until that time. C - 3.70, Exemption From Liability (Operator of Secured Motor Vehicle: S. Plambeck indicated that there has been criticism of this instruction. It uses words such as "secured person" and "secured motor vehicle." The instruction is unnecessarily confusing. An instruction used by J. Bekken was reviewed and partially incorporated. A note explained that it is unlikely that this instruction would be needed in cases involving death or dismemberment. The title was changed to Serious Injury Definition. Motion to approve: K. Brust K - 5.60, Deliberations and Conduct of the Jury: J. Hagerty drafted a proposed instruction and distributed it prior to the meeting for comments from judges. Remarks were favorable. The instruction will also be substituted for the civil, C - 85.20. Motion to approve: B. Beehler New - Defendant Acting as Own Attorney: J. Hagerty proposed a new instruction for the pro se defendant. The draft was circulated. One comment received was that defendants may not "choose" to represent themselves, so the wording was changed to reflect the situation in which they are "acting" as their own attorneys. Motion to approve: K. Brust This instruction would also be applicable in the civil instructions. The title would state "Party" instead of "Defendant." Motion to approve: L. Boschee K - 22.00, Unlawful Possession of Drug Paraphernalia: The statute forming the basis of this instruction was moved from NDCC Ch. 12 to Ch. 19. J. Hagerty added a paragraph to the instruction to be used if a felony is charged, that is, the drug paraphernalia was used or possessed with a controlled substance other than marijuana. The Commission discussed the intent requirement. Is "willfully" required? J. Hagerty will present additional information on this instruction on March 8th. K - 17.20, Disorderly Conduct: New language from domestic violence personnel was added. Motion to approve: B. Beehler K - 19.00, Gambling (Infraction): This instruction is not necessary because an accused is not entitled to a jury trial when charged with an infraction. J. Hagerty suggested that it be deleted. Motion to delete: K. Brust K - 22.42, Possession: J. Bekken reviewed the discussion that has occurred regarding this instruction. It has focused on the mens rea required and whether there should be a generic possession instruction or an instruction for the criminal statutes that require possession. K - 22.40 provides definitions for the controlled substances instructions. Perhaps the general possession instruction should be included there. One reason for having a separate instruction for possession of alcohol is because it has to be actual possession. With drugs, possession may be actual or constructive. If K - 22.42 remains a general possession definition, it needs to be modified for drug cases. The mens rea is willful for drug cases, not knowingly. There may be some possession offenses with different mens rea. Previously there was no separate instruction for minor in possession. J. Bekken proposed a new instruction. The word "dominion" was discussed. Motion to approve Unlawful Possession or Consumption of Alcoholic Beverages: J. Hagerty A second new instruction for possession of a controlled substance or drug paraphernalia was proposed. The mens rea was removed. Differences and similarities between "power and ability" and "dominion and control" were discussed. Caselaw refers to both "dominion and control" and "dominion or control." In Interest of K.S. was deleted from the references. Motion to approve Possession of [a Controlled Substance] [Drug Paraphernalia]: J. Hagerty In the general definition of Possession, "knowingly" was removed. The specific statute should be considered for the culpability requirement. Removing "knowingly" was considered preferable to bracketing it. Motion to approve Possession - General Definition: J. Greenwood New, Carrying a Concealed Weapon: This instruction was originally suggested by Attorney F. Fremgen, and J. Bekken initiated the discussion. The NDCC statute defining "concealed" was added. The series itemizing the exemptions was reordered. Motion to approve: J. Hagerty New, Leaving the Scene of an Accident Involving Death or Personal Injury: This instruction was originally suggested by attorney F. Fremgen. There are three levels to be considered. If the circumstances involve personal injury, it is a class A misdemeanor; circumstances involving serious personal injury constitute a class C felony; negligently failing to comply with the statute under circumstances involving death is a class B felony. The instruction was tabled, and J. Hagerty volunteered to review this instruction further. C - 70.22, Damages Aggravation of Pre-existing Condition: K. Brust prepared a handout summarizing Olmstead v. First Interstate Bank, Priel v. R.E.D., Moser v. Wilhelm, and Kuntz v. Stelmachuk as pertaining to C - 70.22. Olmstead is still good law. Tuhy v. Schlabsz cites Olmstead and is a more recent case. It was added to the cites. K. Brust concluded that the instruction is accurate but some of the wording might be changed. "Wrongful" was added before "acts [or omissions]." Motion to approve: J. Hagerty C - 70.24, Injury Aggravated by Defendant's Wrongdoing: K. Brust reported that this instruction was taken from an instruction in Moser v. Wilhelm and is a correct statement of the law. Cites to the California and Minnesota jury instructions were removed. Priel was added for the term "subnormal." "Fault" was substituted for "wrongful conduct." The Commission then discussed whether this instruction provides any additonal instruction not covered in C - 70.22. Motion to delete C - 70.24: J. Hagerty "Wrongful acts [or omissions]" was changed to "fault" in C - 70.22. Motion to approve: K. Brust C - 70.26, Conditon Unrelated to Defendant's Wrongdoing: K. Brust reported that this instruction is related to Moser v. Wilhelm and was addressed in Tuhy v. Schlabsz. If a plaintiff's condition worsens due to natural causes or the fault of someone other than the defendant, then the defendant is not responsible for the worsening condition. A concern is that there needs to be an allocation between natural causes and others' fault. S. Plambeck suggested leaving this instruction without changes, and this was the consensus of the Commission. C - 72.17, Malice of Corporate Officers: This instruction involves agency but is in the exemplary damages section. The only reference is an older case. Motion to delete : K. Brust L Boschee noted that the substance of C - 72.17 is also contained in C - 72.06, Exemplary Damages (Principal/Agent), which is based upon the language of the exemplary damages statute. This instruction could also be deleted. Motion to delete: K. Brust C - 23.10, Fault of Decedent Diminishes Recovery (Wrongful Death): S. Plambeck noted that the Decedent should be included in the Special Verdict Form by name and the beneficiaries are really heirs-at law. The general instruction on the outcome of the jury's findings should suffice so that this instruction is unnecessary. The instruction is covered under general fault. He provided a draft of a revised instruction for discussion. Motion to delete: J. Hagerty C - 23.05, Fault of Beneficiary Diminishes Recovery (Wrongful Death): S. Plambeck noted that the concerns are similar to those mentioned in the discussion of C - 23.10, i.e.., that the beneficiary or heir-at-law should be included by name in the Special Verdict and that the outcome of the jury's findings should suffice. Additionally, a non-heir defendant will be liable only for the non-heir's percentage share of the damages. It is up to the judge to decide who among the heirs-at-law will receive what. Unless the heir who was found at fault also pays damages, the amount available to distribute is affected. The judge may take this into account. S. Plambeck suggested that the instruction is duplicative and unnecessary but proposed a substitute if one was desired. Motion to delete: J. Bekken C - 17.10, Duty of Possessor to Lawful Entrant Injury Caused by Condition of Premises: S. Plambeck discussed Rittenour v. Gibson in which the North Dakota Supreme Court recognized an error in this C - 17.10. A new trial was granted because the trial court failed to instruct on the duty of a tenant to warn the tenant's guest of an unreasonable risk of harm. The instruction can be corrected by changing "landlord" to "possessor." A cite to Rittenour was added. Motion to approve: K. Brust S. Plambeck provided additional comments relating to premises liability which may be addressed at a future meeting. March 7, 2003: Project Room, Heritage Center, Bismarck, ND MEMBERS PRESENT: B. Beehler, J. Bekken, K. Brust, J. Greenwood, J. Hagerty, J. Haskell, S. Plambeck MEMBERS ABSENT: L. Boschee, A. Boucher, J. McClintock, T. Purdon, J. Rustad K - 22.00, Unlawful Possession of Drug Paraphernalia: J. Hagerty separated K - 22.00 into two separate instructions, one covering a class A misdemeanor and one for charging a class C felony. Whether "willfully" should be inserted was discussed. The Legislature did not put willfully in. The prosecutor must prove use or intent to use so it does't seem to be an issue. The instructions are correct based on the law. Motion to approve K - 22.00 and a second Unlawful Possession instruction: J. Greenwood C - 70.10, Adequate Compensation (Tort): At the October meeting, A. Boucher had suggested that the word "claimed" in the instruction implies that a damage award may not exceed the amount pleaded in the complaint and that this is incorrect. He researched the cites and provided a summary. He reviewed Kuntz v. Stelmachuk, Delzer v. United Bank, Cook v. Stenslie, Hopkins v. McBane, Helgeson v. Locken, Couto v. United Fruit Co., Hebron Public School Dist. No. 13 of Morton Cty. v. United States Gypsum Co., Barron v. No. Pac. Ry. Co., Henke v. Peryerl, Umphrey v. Deery, NDCC 32-03-20, and NDRCivP 15. He proposed deleting damages "may not be greater than the amount claimed [or proved] by the Plaintiff." New cites were added. Motion to approve: J. Hagerty During discussion, it was suggested that "negligent act or omission" be changed to "fault." Does the instruction address a windfall situation? It would not be accurate to say "defendant's fault" because there may be more than one defendant. The instruction must cover fair compensation and be reasonable. Wording was simplified. Motion to approve as revised: K. Brust K - 5.46, Dangerous Special Offender: J. Greenwood reviewed the history of this instruction. It was developed in response to an amendment to NDCC 12.1-32-09 providing that the prosecutor may make a motion for special offender status. The jury then determines whether the defendant has this status based on four conditions. Many of the terms used were not defined. The Commission in 2002 had deleted the fair labor standards reference for determining substantial source of income and minimum wage was used instead. J. Greenwood was to check the legislative history, and he found no additional information. "Or's" were added to the four condition to indicate that only one is necessary for determining the special offender status. "Therefrom" was eliminated. Whether the definition of "substantial source of income" should be placed in the elements or in the definition of the crime rather than in the Definitions section was discussed. Motion to approve: B. Beehler K - 11.01, Theft of Property (Unauthorized Conduct); K - 11.02, Theft of Property (Deception or Threat); Theft of Property (Receipt of Stolen Property); K - 11.04, Theft of Services (Deception or Threat); Theft of Services (Diverting Services); K - 11.06, Theft of Lost or Mislaid Property; K - 11.07, Theft of Property Delivered by Mistake: J. Greenwood added an additional element referring to electronic fund thefts. The note explains which paragraphs to use if a class C felony is charged. Whether the bracketed phrases, [(the victim) was not the spouse of the Defendant] and [(the victim) and the Defendant were not then living together as husband and wife], included co-habiting unmarried persons was discussed. It is the judge's preference whether to say the property was the property of "another" or to insert the specific name to match the complaint. Motion to approve: J. Haskell K - 11.15, Unauthorized Use of Vehicle: No changes were proposed but whether to bracket the types of vehicles was discussed. No changes were recommended. K - 11.20, Misapplication of Entrusted Property: J. Greenwood proposed adding three paragraphs specifying the monetary amount involved. In the definition, the word "controller" was corrected to read "person controlling." Motion to approve: B. Beehler K - 11.30, Defrauding Secured Creditors (Property Subject to a Security Interest): J. Greenwood indicated that this instruction deals only with the person who creates a security interest and the cite should be NDCC 12.1-23-08 (1). If it is the owner and not the creator of the security interest, it is charged under theft. Paragraph 4, which indicates that the Defendant did not honestly believe that the Defendant had a valid claim, was deleted. To have a claim, the Defendant would have had the consent of the secured party and that is covered. The note was eliminated as it pertains to sentencing. Motion to approve: J. Haskell K - 11.40, Dealing in Stolen Property: Paragraph 4, "[t]he Defendant did not honestly believe that Defendant had a valid claim to the property," is a defense, and the note states when it should be raised. The wording of paragraph 4 was simplified. Motion to approve: B. Beehler K - 13.15, Hindering Law Enforcement: The Commission discussed whether it is appropriate to put the class of offense in the body of the instruction. The levels of offense were deleted. "Knowingly" was deleted from paragraph 2 as "intentionally" is stated in the first essential element. The Commission discussed whether the Defendant has to know the level of the offense or just of the conduct of the other person. The consensus was that the Defendant need only know of the conduct. Motion to approve: J. Haskell K - 13.20, Aiding Consummation of Crime (Class B Misdemeanor); K - 13.21, Aiding Consummation of Crime (Class A Misdemeanor); K - 13.22, Aiding Consummation of Crime (Class C Felony): The Commission discussed whether there should be separate instructions for the misdemeanor offenses and the felony offense. The instructions were tabled, and J. Greenwood will combine them into one instruction for presentation at a future meeting. K - 14.10, Escape (By Use of Weapon); K - 14.12, Escape (Felony Charge or Criminal Conviction); K - 14.15, Official Detention (Definitions): The term "fleeing" is now "effecting." A cross-reference to K - 14.15 for definitions was added. Brackets were added to the definitions of K - 14.10 and K - 14.12. K - 14.15 was expanded to include being absent without permission. Motion to approve K - 14.10, K - 14.12, and K - 14.15: J. Haskell K - 15.00, Tampering With Witnesses and Informants in Proceedings (Use of Force, Threat, Deception, or Bribery): Brackets were added to the general definition of the crime. The wording of "eluding legal process summoning a person to testify" was reworked. A reference to NDCC 12.1-09-03 was added to the note. Motion to approve: J. Haskell K - 15.22, False Report to Law Enforcement Officer or Security Officers: "Officers" in the title was changed to "Official." The words, "with intent to implicate another," were deleted. There are two situationsa false report to a law enforcement officer that hinders an investigation and a false report of a situation requiring an emergency response to either a law enforcement officer or security official. Motion to approve: B. Beehler K - 15.30, Bribery (Soliciting, Accepting, or Agreeing to Accept a Bribe): The title was changed to Bribery. The Defendant does not have to be a public servant. "Recipient" was added. A reference to the prima facie case replaced the discussion in the note. Motion to approve: B. Beehler K - 15.50, Tampering With Witnesses and Informants in Proceedings (Use of Force, Threat, Deception, or Bribery): J. Greenwood noted that the word "approval" is defined by statute rather than "approved." Motion to approve: K. Brust S. Plambeck had prepared a review of the 1985-86 C - 55.00s, C - 70.00s, and Contracts. Time contstraints prevented discussion of these instructions. S. Plambeck's term of service on the Commisson ends June 2003. Due to the desire for continuity and to allow efficient presentation of the prepared instructions, J. Hagerty proposed that the staff attorney request reappointment of S. Plambeck to another term. ADMINISTRATIVE DETAILS June Meeting The date and time of the June meeting, to be held in conjunction with the State Bar Association of North Dakota meeting, will be announced when scheduled. The October PJIC meeting will be October 2 - 3, 2003. Meetings are scheduled for June, the first Thursday and Friday in March, and the first Thursday and Friday in October each year. The meeting was adjourned. Respectfully submitted,
March 6, 2003
Project Room, Heritage Center, Bismarck, ND
B. Beehler
J. Bekken
L. Boschee, K. Brust
J. Greenwood
J. Hagerty
S. Plambeck
A. Boucher
J. Haskell
J. McClintock
T. Purdon
J. Rustad
Second: B. Beehler
Approved
Second: K. Brust
Approved
Second: J. Hagerty
Approved
Second: B. Beehler
Approved
Second: L. Boschee
Approved
Second: J. Bekken
Second: J. Hagerty
Approved
Second: J. Hagerty
Approved
Second: J. Hagerty
Approved
Second: K. Brust
Approved
Second: B. Beehler
Approved
Second: J. Bekken
Approved
Second: J. Bekken
Approved
Second: B. Beehler
Approved
Second: J. Greenwood
Approved
Second: J. Greenwood
Approved
Second: J. Hagerty
Approved
Second: B. Beehler
Approved
Second: K. Brust
Approved
Second: L. Boschee
Approved
Second: J. Bekken
Approved
Second: L. Boschee
Approved
Second: B. Beehler
Approved
Second: B. Beehler
Approved
Second: B. Beehler
Approved
Second: J. Bekken
Approved
Second: B. Beehler
Approved
Second: K. Brust
Second: J. Bekken
Approved
Second: J. Haskell
Approved
Second: B. Beehler
Approved
Second: J. Haskell
Approved
Second: B. Beehler
Approved
Second: J. Haskell
Approved
Second: B. Beehler
Approved
Second: B. Beehler
Approved
Second: B. Beehler
Approved
Second: J. Haskell
Approved
Second: K. Brust
Approved
Second: B. Beehler
Approved
Lynn A. Kerbeshian
Staff Attorney