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State v. Beaulieu

Supreme Court of North Dakota

June 30, 2016

State of North Dakota, Plaintiff and Appellee
v.
Mark Beaulieu, Defendant and Appellant

         Appeal 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.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Mark Beaulieu appealed an order denying his motion for new trial following his conviction for refusal to halt. We affirm.

         I

         [¶ 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.

         II

         [¶ 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.

         III

         [¶ 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 ...


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