Jessica J. Binder, State's Attorney, Stanton, N.D., for plaintiff and appellee.
Travis W. Finck, Bismarck, N.D., for defendant and appellant.
[¶ 1] Richard Whitman appeals the trial court's judgment of conviction after a jury found him guilty of two counts of conspiracy to commit murder. Whitman argues the district court erred in allowing into evidence statements made to law enforcement in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the evidence was insufficient to prove a conspiracy. Exercising our inherent authority to notice obvious error on our own motion, we reverse the criminal judgment holding the charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) is not a cognizable offense.
[¶ 2] Whitman and Cody Borner were charged with two counts of conspiracy to commit murder. The State charged Whitman and Borner with conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04, criminal conspiracy, and 12.1-16-01(1)(b), extreme indifference murder, alleging in the informations the codefendants agreed with each other to " willfully engage in or cause circumstances manifesting extreme indifference to the value of human life." At the State's request, the criminal information was amended to specify the culpability required to conspire to commit extreme indifference murder includes " knowingly" rather than " willfully." At the pretrial hearing, neither Whitman, nor Borner objected to the amended criminal information.
[¶ 3] Both Whitman and Borner were convicted and appealed the trial court's judgment of conviction. We recently issued an opinion in the Borner appeal and that decision impacts our analysis in this case. See State v. Borner, 2013 ND 141, 836 N.W.2d 383.
[¶ 4] On appeal Borner argued the criminal information was defective because it failed to charge him with an offense. Id. at ¶ 7. Borner also argued the jury instructions failed to correct the defect in the criminal information and inadequately advised the jury of an offense for which he could be found guilty, and the evidence was insufficient to support a finding of guilt because there was no evidence that Borner knowingly agreed to willfully cause the death of any person. Id. This Court held " that the charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) is not a cognizable offense." Id. at ¶ 1. Concluding the conspiracy statute, N.D.C.C. § 12.1-06-04(1), is ambiguous, this Court applied the rules of statutory interpretation. Id. at ¶¶ 9-11 (citing N.D.C.C. § 1-02-39).
[¶ 5] This Court stated:
We are persuaded by the reasoning of those courts that conclude conspiracy to commit unintentional murder creates a logical inconsistency because " one cannot agree in advance to accomplish an unintended result." We conclude conspiracy is a specific intent crime requiring intent to agree and intent to achieve a particular result that is criminal. Specifically, to find a person guilty of conspiracy to commit murder, the State must prove (1) an intent to agree, (2) an intent to cause death, and (3) an overt act. Therefore, conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable offense.
Id. at ¶ 20 (citations omitted). Stating we could not " imagine a greater error affecting a defendant's substantial rights than when a defendant is convicted of conduct that is not a criminal offense under our law," our Court concluded this error prejudiced Borner. Id. at ¶ 25. Exercising our discretion to notice obvious error in order
to avoid a serious injustice affecting " the fairness, integrity, and public reputation of criminal jury trials," we reversed the criminal judgment. Id.
[¶ 6] Unlike Borner, Whitman did not raise on appeal the issue that the charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) is not a cognizable offense. Although Whitman failed to raise the issue, we must determine what impact our decision in Borner has on his appeal. When an appellant fails to raise an issue on appeal, this Court is guided by the rules of procedure and legal doctrines encompassed in the rules and caselaw.
[¶ 7] Our Court has the " authority to promulgate rules of procedure." N.D. Const. Art. VI, § 3. Our Court also has the authority under N.D.R.App.P. 2, to suspend these rules to expedite our decision or for other good cause.
[¶ 8] Under N.D.R.Crim.P. 52(b), " An obvious error or defect that affects substantial rights may be considered even though it was not brought to the court's attention." Rule 52 applies to both trial and appellate courts. N.D.R.Crim.P. 52, Explanatory Note. This Court has the power to notice obvious error if it is requested by a party or on our own motion. Id. This Court's exercise of the power to notice obvious error should be applied cautiously and limited to exceptional circumstances. Id. The power to notice obvious error " should be exercised only where a serious injustice has been done to the defendant." Id. North Dakota Rule of Criminal Procedure 52(b) differs from Fed.R.Crim.P. 52(b) only in substituting the word " obvious" for " plain." Id. See also State v. Olander, 1998 ND 50, ¶ 13, 575 N.W.2d 658.
[¶ 9] The caselaw explaining the scope of Fed.R.Crim.P. 52(b) is consistent with the Explanatory Note accompanying N.D.R.Crim.P. 52(b). " Rule 52(b) is permissive, not mandatory. If the forfeited error is ‘ plain’ and ‘ affect[s] substantial rights,’ the court of appeals has authority to order correction, but is not required to do so." United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The exercise of the United States Supreme Court's power to notice plain error is limited to error that " seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 733, 113 S.Ct. 1770. " Both the Supreme Court and the courts of appeals have the power to note plain errors on the record, even though such errors were not raised or were not properly raised by the parties." 2A Fed. Proc., L.Ed. § 3:860 (2003) (citations omitted). Federal jurisprudence recognizes the ability of appellate courts to notice plain error even when it was never raised by counsel. 3B Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure § 856 (3rd ed.2013) (citing Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Un ...