State v. Reddig

876 N.W.2d 34

STATE of North Dakota, Plaintiff and Appellee

v.Bryan REDDIG, Defendant and Appellant.

No. 20150224.

Supreme Court of North Dakota.

Feb. 18, 2016.

Alexander J. Stock, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Bryan Reddig appeals after a jury found him guilty of conspiracy to deliver a controlled substance. He argues the district court should have granted his motion for a judgment of acquittal. He also argues the district court should not have admitted into evidence the chemist's analytical report and should have instructed the jury that testimony of an accomplice must be corroborated. We affirm the judgment of the district court, concluding the case was properly submitted to the jury, the jury was properly instructed, and the court did not err by admitting into evidence a certified copy of the chemical analyst's report.

I

[¶ 2] In January 2014, Bismarck police officers obtained a search warrant for a residence occupied by Jeff Bauer, Tim Walleen, and Aaron Burkhart. Previous investigations had led the officers to believe the residence was being used for drug transactions. Bauer, Walleen, and Burkhart all testified that on the day the warrant was executed, Reddig arrived at the residence to sell them nearly two pounds of marijuana. Bauer testified Reddig usually drove a maroon SUV and Reddig left the residence after the transaction was complete.

[¶ 3] While the drug transaction was taking place, Detective Jerry Stein was watching the residence. He testified he observed a dark-colored SUV leave the residence approximately thirty minutes before the search warrant was executed. Because he was on surveillance, Detective Stein bent down when the SUV drove past him to prevent the driver's seeing him. He testified this also prevented him from seeing the driver, but he remembers the vehicle being a dark-colored SUV. Shortly thereafter, Bismarck police officers executed the search warrant on the residence and found multiple drugs and drug paraphernalia. Bauer, Walleen, Burkhart, and one other individual were present in the house. All three men informed police that Reddig was their source for the drugs and that he had left 30 to 45 minutes before the police arrived to execute the warrant. Detective Mike Bolme searched the men's cell phones, which revealed text messages between the men suggesting a drug transaction was taking place and a man named "Brian" or "B Dog" was the source for the drugs. Reddig was charged with conspiracy to deliver a controlled substance. Bauer, Walleen, and Burkhart were charged as Reddig's co-conspirators.

[¶ 4] After Reddig was formally charged, lab analyst Dan Radulovich generated an analytical report confirming the substance Reddig allegedly sold the three men was more than 500 grams of marijuana. This report was provided to Reddig on February 6, 2015, approximately four months before trial. A certified copy of the report, however, was not given to Reddig until April 6, 2015, approximately 57 days before trial.

[¶ 5] At trial, Bauer, Walleen, and Burkhart all testified Reddig was their source for the drugs in this particular transaction. At the end of the State's case, and at the close of Reddig's case, Reddig moved for a judgment of acquittal under Rule 29, N.D.R.Crim.P. The district court denied the motion both times it was offered. The court did not give a jury instruction requiring corroboration of the testimony of an accomplice. Reddig did not request that such an instruction be given, nor did he object when the court failed to do so.

[¶ 6] The jury found Reddig guilty, and he was sentenced to fifteen years' incarceration.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 8] On appeal, Reddig argues that because the testimony of Bauer, Walleen, and Burkhart was not corroborated, there was insufficient evidence to support his conviction. He further argues the district court erred by failing to instruct the jury that testimony of an accomplice must be corroborated. He argues this error denied him a fair trial. Although Bauer, Walleen, and Burkhart were charged as co-conspirators, the State conceded, under the facts of the case, the three men were also accomplices. Therefore, assuming that Bauer, Walleen, and Burkhart were accomplices, we conclude there was sufficient evidence corroborative of their testimony.

[¶ 9] Under N.D.C.C. § 29–21–14 :

A conviction cannot be had upon the testimony of an accomplice unless the accomplice is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

[¶ 10] Reddig asserts the only evidence tying him to the alleged drug transaction in this case was the testimony of Bauer, Walleen, and Burkhart. He claims that because they were all shown to be untruthful and to have poor character, their testimony alone was insufficient to convict him. He also argues the judge's failure to instruct the jury that such corroboration is required resulted in an unfair trial. Because Reddig never requested such an instruction, the State argues he failed to raise this issue in the district court and cannot now argue that corroboration of the testimony was necessary. The State also argues the testimony was corroborated in many different ways and there was sufficient evidence to support the conviction.

[¶ 11] "The purpose of corroborative evidence is to show that a testifying accomplice is a reliable witness and worthy of credit." State v. Gaede, 2007 ND 125, ¶ 11, 736 N.W.2d 418 (quoting State v. Zimmerman, 524 N.W.2d 111, 114 (N.D.1994) ).

[¶ 12] In State v. Haugen, 448 N.W.2d 191, 194–95 (N.D.1989) (citations omitted), this Court discussed the type of evidence necessary for corroboration:

[U]nder Section 29–21–14 it is not necessary to corroborate every fact testified to by an accomplice. All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts, and tends to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. Furthermore, the State need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute. In cases involving the use of corroborative evidence, it is incumbent upon the trial court to first determine, as a matter of law, whether or not there is any evidence corroborating the testimony of the accomplice, and only after the court has found such corroborative evidence is it allowed to leave the question of the sufficiency of the corroborative evidence to the jury.

....

... "The corroboration [of an accomplice's testimony] need not directly link the accused to the crime." Rather, corroboration merely requires that there be evidence "tending to connect the defendant with the offense committed. " Indeed, the language of Section 29–21–14 requires only corroborative evidence which "tends to connect" a defendant with the commission of an offense.

[¶ 13] In State v. Kelley, 450 N.W.2d 729, 730–31 (N.D.1990), the defendant specifically requested a jury instruction under N.D.C.C. § 29–21–14 regarding corroboration of accomplice testimony. There was disparate testimony from different individuals regarding a shooting, and the district court refused to give the defendant's requested corroboration instruction. Id. We held that an accomplice instruction was not required, and even if it was, any error in failing to give the instruction was harmless. Id. at 732–34. We concluded that because there was sufficient corroborating evidence tending to connect the defendant with the commission of the murder, a corroborating instruction would not have had a significant impact on the verdict. Id.

[¶ 14] Here, even assuming without deciding that the trial court erred by not giving a corroboration instruction, the conviction should nonetheless be affirmed because the failure to give it under the facts of this case would be harmless error. "If the trial error is one of constitutional magnitude, we must determine whether or not the error was harmless beyond a reasonable doubt by considering the probable effect of the error in light of all the evidence." Kelley, 450 N.W.2d at 732 (citing State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988) ). "If, however, the error is nonconstitutional, our task is to determine whether or not the error had a significant impact upon the verdict, but we do not have to find that the error was harmless beyond a reasonable doubt." Id. (citing State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987) ). The alleged error in this case is derived from statute and is not of constitutional magnitude. See State v. Brunette, 28 N.D. 539, 150 N.W. 271, 276 (1914)("[I]n the absence of a statute it is not necessary to a conviction that the testimony of the complainant should be corroborated by other evidence."). See also 29A Am. Jur. 2d Evidence § 1408 ("At common law, it is well settled that the testimony of an accomplice, although entirely without corroboration, will support a verdict of conviction of one accused of crime.... The common-law rule is changed in many jurisdictions by statutes expressly declaring that the uncorroborated testimony of an accomplice cannot sustain a conviction."). We therefore apply the significant impact standard, concluding there was sufficient evidence corroborative of Bauer's, Walleen's, and Burkhart's testimony.

[¶ 15] At...