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State v. Jahner3/5/2003
AFFIRMED.
[ ] Joseph Paul Jahner ("Jahner") appeals from a criminal judgment entered upon a jury verdict finding him guilty of negligent homicide, reckless endangerment, and driving while under the influence of intoxicating liquor. We conclude Jahner waived his right to object to the trial court's procedure in responding to the jury's request, during deliberations, for a transcript of Jahner's testimony; the trial court did not err in refusing to instruct the jury on the definition of proof beyond a reasonable doubt; and the jury verdict is not legally inconsistent. We affirm.
I.
[ ] On December 22, 2000, David Smith, Jr. ("Smith") was killed in a vehicle crash and four other people, including Jahner, were injured. The State alleges Jahner was driving the vehicle at the time of the accident. Jahner contends he was seated in the front passenger's seat of the vehicle. Jahner concedes he was under the influence of alcohol at the time of the accident. Jahner was charged with manslaughter, in violation of N.D.C.C. § 12.1-16-02, for recklessly causing the death of Smith; reckless endangerment, in violation of N.D.C.C. § 12.1-17-03, for recklessly endangering the lives of the other three passengers and the public; and driving under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01.
[ ] Prior to trial, the State requested the jury be instructed with the pattern jury instruction on proof beyond a reasonable doubt. The trial court decided the definition of proof beyond a reasonable doubt would not be given unless the jury asked a question about it during deliberations. On March 12 and 13, 2002, trial was held. While the jury was deliberating, the jurors requested the transcript of Jahner's testimony. In reply to an inquiry from the court the jury indicated they were "in disagreement about Mr. Jahner's memory and the period of time that the memory loss included." The trial court and counsel for both parties agreed to respond to the jury's request with a note instructing the jury to rely on their recollection of the testimony to resolve the disagreement. On March 13, 2002, a jury found Jahner not guilty of manslaughter; guilty of the lesser-included offense of negligent homicide; guilty of reckless endangerment; and guilty of driving while under the influence of intoxicating liquor.
[ ] Jahner appealed from the judgment arguing the trial court erred by failing to provide a full transcript of Jahner's testimony after the jury requested it and by refusing to include the definition of proof beyond a reasonable doubt in the jury instructions. Jahner also argues the conviction for reckless endangerment should be reversed because the jury returned an inconsistent verdict.
II.
[ ] Jahner argues the trial court erred under N.D.C.C. § 29-22-05, by failing to provide to the jury the transcript of Jahner's testimony after the jurors requested it during deliberations.
[ ] Section 29-22-05, N.D.C.C., provides:
After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the case, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state's attorney and the defendant or his counsel, or after they have been called.
After a case has been submitted to the jury, N.D.C.C. § 29-22-05 "unequivocally directs the testimony [requested by the jury] be given at the jury's request." State v. Hartsoc
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