from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Robin Ann Schmidt, Judge.
Charles B. Neff, McKenzie County Assistant State's
Attorney, for plaintiff and appellee; submitted on brief.
Benjamin C. Pulkrabek (argued), for defendant and appellant.
VandeWalle, Chief Justice.
1] Mark Beaulieu appealed an order denying his motion for new
trial following his conviction for refusal to halt. We
2] As is relevant in this appeal, the State charged Beaulieu
with refusal to halt and disorderly conduct. At trial, a
police officer testified he saw Beaulieu leaving the scene of
a reported disturbance. The officer testified he instructed
Beaulieu to stop multiple times. After approaching Beaulieu,
the officer testified Beaulieu turned in an aggressive
manner, causing the officer to step into Beaulieu and
resulting in the two going to the ground. The officer
testified Beaulieu landed on his back. The officer also
testified Beaulieu had a previously bloodied face. Beaulieu
contradicted this testimony, testifying he did not hear the
officer's instruction. He further testified the officer
tackled him and he landed on his face, causing it to become
bloodied. After his arrest, the officer brought Beaulieu to
jail, where jailers took Beaulieu's mug shot. The jury
found Beaulieu not guilty of disorderly conduct but guilty of
refusal to halt.
3] Prior to trial, Beaulieu submitted a discovery request
inquiring whether officers took photographs. The State
responded in the negative. After trial, Beaulieu made further
efforts to locate the mug shot, including contacting the
state's attorney's office. After further
investigation, the state's attorney provided Beaulieu
with the mug shot. Believing this mug shot qualified as newly
discovered evidence because it purportedly impeached the
testimony of the State's only witness, Beaulieu moved for
a new trial.
4] Surrogate Judge Schmalenberger presided over
Beaulieu's trial. Surrogate Judge Schmalenberger's
appointment, however, expired prior to resolving the motion
for new trial. The motion was reassigned to Judge Schmidt.
After reviewing audio recordings, but without certifying
familiarity with the record, Judge Schmidt concluded the mug
shot did not qualify as newly discovered evidence. Judge
Schmidt concluded the mug shot would not have changed the
trial's outcome because the mug shot did not concern
whether Beaulieu refused to halt and denied Beaulieu's
motion for new trial.
5] Beaulieu argues Judge Schmidt erred by not certifying
familiarity with the record prior to deciding his motion for
new trial. Under N.D.R.Crim.P. 25(a)(2), if the judge
presiding at trial cannot complete the trial, a successor
judge may complete the trial so long as "the judge
completing the trial certifies familiarity with the trial
record." Under N.D.R.Crim.P. 25(b)(2), if the presiding
judge cannot complete the court's duties following a
verdict or finding of guilt, a successor judge may grant a
new trial if the successor judge cannot perform the
post-trial duties or a new trial is necessary for some other
reason. Beaulieu argues the N.D.R.Crim.P. 25(a)(2)
certification requirement should apply to N.D.R.Crim.P.
25(b)(2). This argument is contrary to the requirements set
forth under N.D.R.Crim.P. 25(b)(2). We decline to impose any
additional requirement of successor judges under
N.D.R.Crim.P. 25(b)(2) in circumvention of the process for
amending a rule. See generally N.D.R.Proc.R. Judge
Schmidt did not err by not certifying familiarity with the
record before denying the motion for new trial.
6] Beaulieu argues the district court erred in denying his
motion for new trial because his mug shot qualified as newly
discovered evidence. To prevail on a motion for new trial, a
defendant must show: "(1) the evidence was discovered
after trial, (2) the failure to learn about the evidence at
the time of trial was not the result of the defendant's
lack of diligence, (3) the newly discovered evidence is
material to the issues at trial, and (4) the weight and
quality of the newly discovered evidence would likely result
in an acquittal." State v. Steinbach, 1998 ND
18, ¶ 22, 575 N.W.2d 193. New impeachment evidence is
generally insufficient to warrant a new trial because such
evidence "does not bear directly on any of the elements
of the offense...." State v. VanNatta, 506
N.W.2d 63, 70 (N.D. 1993).
7] Beaulieu argues the district court erred in denying his
motion for new trial because the mug shot would have
impeached the officer's testimony. Because the officer
was the State's only witness, Beaulieu argues the outcome
of this case would have been different with inclusion of the
mug shot. The district court disagreed, concluding a
photograph contradicting the officer's testimony
regarding Beaulieu's ...