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City of Fargo v. Erickson7/29/1999
artial transcript shows the jury was not instructed to disregard the testimony that Erickson consented to take a breath test; however, the jury never heard the result of that test. The jury did hear evidence that Erickson submitted to a blood-alcohol test within one hour after he was stopped. The blood test showed a blood-alcohol level of .19 percent, .09 percent above the legal limit. We agree with the State that relying on the result of the blood-alcohol test alone, the jury could have convicted Erickson of driving under the influence. Hearing that Erickson consented to take the A.L.E.R.T. screening test was unlikely to have had a substantial effect on the jury's verdict. We conclude, based on the weight of the evidence in the record on appeal, the error was not so prejudicial that Justice requires reversal of Erickson's conviction.
IV.
[ ] We affirm the trial court 's judgment of conviction finding Erickson guilty of driving under the influence of alcohol.
[ ] Carol Ronning Kapsner Mary Muehlen Maring William A. Neumann Gerald W. VandeWalle, C.J.
Sandstrom, Justice, Concurring specially.
[ ] At 12, the majority writes, "We therefore conclude the trial court erred in admitting the irrelevant evidence that Erickson consented to take a breath test." In fact, as the transcript reflects, no evidence was admitted as a result of the trial court's ruling.
[ ] Rule 103(a), N.D.R.Ev., provides:
"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and"
"(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context;"
[ ] This Court has explained:
"In general, a party must object at the time the alleged irregularity occurs; failure to object acts as a waiver of the claim of error. Andrews v. O'Hearn, 387 N.W.2d 716, 730 (N.D. 1986) (citations omitted). Error may not be predicated on an argument of counsel unless there was a timely objection and a ruling by the trial court. Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 481 (N.D. 1986).
To take advantage of irregularities during trial, a party "must do so at the time they occur, to the end that the court may take appropriate action if possible to remedy any prejudice that may have resulted." Glatt, supra, at 481 (citing Braun v. Riskedahl, 150 N.W.2d 577, 583 (N.D. 1967)).
Anderson v. Otis Elevator Co., 453 N.W.2d 798, 801 (N.D. 1990) (footnote omitted). Professor McCormick explains:
§ 52. Objections
"If the administration of the exclusionary rules of evidence is to be fair and workable the Judge must be informed promptly of contentions that evidence should be rejected, and the reasons therefor. The initiative is placed on the party, not on the Judge. The general approach, accordingly, is that a failure to object to an offer of evidence at the time the offer is made, assigning the grounds, is a waiver upon appeal of any ground of complaint against its admission. It is important to note, however, that this usual approach is modified by the doctrine of plain error, which is discussed at the end of this section."
"Time of Making: Motions to Strike. Consistently with the above approach, counsel is not allowed to gamble upon the possibility of a favorable answer, but must object to the admission of evidence as soon as the ground for objection becomes apparent. Usually, in the taking of testimony of a witness an objection is apparent as soon as
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