State v. Purdy

491 N.W.2d 402, 1992 N.D. LEXIS 195, 1992 WL 246059
CourtNorth Dakota Supreme Court
DecidedOctober 1, 1992
DocketCr. 910256, 910271, 910376 and 910278
StatusPublished
Cited by40 cases

This text of 491 N.W.2d 402 (State v. Purdy) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195, 1992 WL 246059 (N.D. 1992).

Opinion

*405 JOHNSON, Justice.

William S. Purdy, Dennis W. Uchtman, and Lori J. Driver appeal from judgments of conviction entered upon jury verdicts finding them guilty of criminal trespass and physical obstruction of a government function. 1 We affirm.

On the morning of March 29, 1991, Pur-dy, Uchtman, and Driver, along with 23 others, were arrested inside a clinic operated by the Fargo Women’s Health Organization, Inc., where abortions are performed. Each person placed a cryptonite bicycle lock around his or her neck and entered the clinic by rushing through a back door. Clinic personnel unsuccessfully attempted to keep the door closed and stop them from entering. Once inside, they sat on the floor and locked themselves together in eight groups of three people and one group of two people. Some members of the group sang hymns and prayed. Police were summoned and asked the group to leave, -without success. Locksmiths then removed the locks from the participants so they could be moved safely. It took approximately three hours to remove everyone from the clinic.

All participants were charged with criminal trespass under § 12.1-22-03(2), N.D.C.C., and physical obstruction of a government function under § 12.1-08-01, N.D.C.C., both class A misdemeanors. Twenty-one of the participants, including Purdy, Uchtman, and Driver, were tried together. A six-person county court jury found them guilty on both charges. Purdy, Uchtman, and Driver have appealed, and the appeals have been consolidated pursuant to their motions.

I

Purdy and Uchtman assert that the trial court erred in refusing to grant motions to sever their trials. 2 We disagree.

Joint trials of persons charged together with committing the same offense are the rule rather than the exception. State v. Erickson, 231 N.W.2d 758, 762 (N.D.1975). A joint defendant is not entitled to a separate trial as a matter of right. State v. Whiteman, 79 N.W.2d 528, 533 (N.D.1956). “Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more offenses.” Rule 8(b), N.D.R.Crim.P. Under Rule 14, N.D.R.Crim.P., a trial court may grant a severance “[i]f it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together....”

The purpose of Rule 14 is to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial. State v. Lind, 322 N.W.2d 826, 831 (N.D.1982). The defendant bears the burden of demonstrating prejudicial joinder. State v. Dymowski, 459 N.W.2d 777, 779 (N.D.1990). Bare allegations that a defendant would stand a better chance of acquittal in a separate trial or that there may be some “spillover effect” from evidence against a codefendant is insufficient to *406 compel severance. Dymowski, supra; Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), cert. denied, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969); United States v. Cooley, 787 F.Supp. 977, 991 (D.Kan.1992). We will not set aside a trial court’s refusal to grant a separate trial unless the defendant establishes a clear abuse of discretion. Dymowski, supra.

Each defendant was charged with the same criminal offenses by engaging in essentially the same conduct. .Although the number of defendants was somewhat large, there were not “issues so complex or difficult as to require or justify severance.” Cooley, supra. The defendants presented different defenses, but they were not antagonistic. Generally, severance should be granted on a theory of mutually antagonistic defenses only if acceptance of a code-fendant’s version of the facts precludes acquittal of the defendant. United States v. Harris, 761 F.2d 394, 401 (7th Cir.1985); see also United States v. Andrews, 765 F.2d 1491, 1498 (11th Cir.1985); cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986) [defenses must be mutually exclusive and irreconcilable]; 8 Moore’s Federal Practice II 14.04[1], at p. 14-25 (1992); Dymowski, supra, 459 N.W.2d at 785 (VandeWalle, J., concurring specially). Here, Purdy claimed that he entered the clinic to make a citizen’s arrest of the clinic administrator for violating a state law. Uchtman claimed he entered the clinic to enforce the same state law as well as “a higher law.” Other defendants claimed that they entered the clinic to enforce “God’s law.” These are not irreconcilable defenses.

The claims of a “spillover effect” from evidence against other defendants is entirely speculative. The trial court specifically instructed the jury

“to consider each defendant separately. In other words, if you find one defendant guilty, that does not automatically mean the others are similarly guilty. Likewise, should you find one defendant not guilty, that does not automatically mean the others are not guilty. Each defendant is the subject of a separate prosecution and you must deliberate the merits of each of these separate prosecutions.”

Purdy and Uchtman have not established that the jurors were unable to follow the trial court’s instructions and appraise the guilt or innocence of each defendant based solely upon that defendant’s own acts, statements, and conduct, and the independent evidence against that defendant. See 8 Moore’s Federal Practice, supra, at p. 14-21. We conclude that the trial court did not abuse its discretion in refusing to grant separate trials for Purdy and Uchtman.

II

Purdy asserts that the trial court erred in denying his motion for change of venue. 3 He contends that adverse pretrial publicity rendered it impossible for him to receive a fair trial before unbiased jurors in Cass County. We disagree.

Rule 21(a), N.D.R.Crim.P., provides:

“(a) For Prejudice in the County or Municipality.

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Bluebook (online)
491 N.W.2d 402, 1992 N.D. LEXIS 195, 1992 WL 246059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-purdy-nd-1992.