Petition — Olmstead v. North Dakota

7 Supreme Court, U, &

FILED

APR 11 1978

,JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

PRIEST TERM, 19...

No. iy & a | 44 +

STATE OF NORTH DAKOTA,

Plaintiff and Respondent,

VS.

VERNON RAY OLMSTEAD.

Defendant and Petitioner.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of the State of North Dakota

ROBERT 0. WEFALD

WHEELER, WOLF, WEFALD & PETERSON, P.C.

P. 0. Box 773

Bismarck, North Dakota 58501

Phone 701-223-5300

Attorneys for Appellant

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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Pe Sete ree ne eres nee o>

TABLE OF CONTENTS

Page

Cetin DE oases ce cdncchadsesssinvetiasd’ I

I dn 65 6 Sec des thas invededawencciesees tes 2

Questions Presented for Review .............02000. 2

Constitutional Provisions Involved .................. 2

PREFER Te ree 3

Stage of Proceedings at Which Question Was Raised .... 6

Reasons for Allowance of Writ .................... 7

The Decision of the North Dakota Supreme Court That

the Comments of the Trial Judge Were, at Most, Un-

diplomatic, Is Not in Accord With the Letter, Spirit

and Intent of Applicable Decisions of This Court .... 7

GI soo. 5.6 RN - rhc 6504-000 00S 6 65d 608 ea eecs 11

Appendices:

1. Opinion, State v. Olmstead, 261 N.W. 2d 880 (ND

| BP Pee err pyre ren Terre pee A-l

2. Opinion, State v. Olmstead, 242 N.W. 2d 644 (ND

SUED donb okab babes Gordeeds 4h.06 tab Kent ine A-16

3. Opinion, State v. Olmstead, 246 N.W. 2d 888 (ND

DE Nike sw ea hpakekesed cent ceduseuaweeal A-28

4. Transcript of Trial—Judge’s Verdict—pp. 376-384A-35

Table of Authorities

Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900,

a reer pre re re 10

Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed. 2d

ere ran Mees a er ar 10

In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed.

SE 080 Ch aa Se eek eka eed canes 7

Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29

2 eG 8 rr re nee 7

Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27

eS ee ee ne 06s che ewaneene$edswn ka 7

Niematko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95

Ff, RS ae ene 10

Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed. 2d

PE Es tsa teva luletosewe umes ceo eex ies 7

School District of Abington Township v. Schempp, 374

U.S. 203, 83 S.Ct. 1560, 10 L.Ed. 2d 844 (1963) .... 10

State v. Olmstead, 242 N.W. 2d 644, ND (1976) ........ 2

State v. Olmstead, 246 N.W. 2d 888, ND (1976) ....2, 3, 4, 6

State v. Olmstead, 261 N.W. 2d 880 ND (1978) . .1, 4, 5, 6,8

West Virginia State Board of Education v. Barnette, 319

U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1028 (1943) ...... 10

Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.

Oe GUE 404.6 a webwe bade CeeeNE Ne eeKeueeess 11

IN THE

SUPREME COURT OF THE UNITED STATES

ladancuuuwns TERM, 19...

Se ee eee

STATE OF NORTH DAKOTA,

Plaintiff and Respondent,

VS

VERNON RAY OLMSTEAD,

Defendant and Petitioner.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of the State of North Dakota

Petitioner, Vernon Ray Olmstead, respectfully prays that a

Writ of Certiorari issue pursuant to Rules 19-27 of the Supreme

Court Rules to review the judgment of the Supreme Court of the

State of North Dakota in the above-entitled case decided below

as State v. Olmstead, 261 N.W. 2d 880 (ND 1978).

OPINIONS BELOW

The judgment and opinion of the North Dakota Supreme

Court in State v. Olmstead, 261 N.W. 2d 880 (ND 1978) was

filed on January 11, 1978, and made final on January 27, 1978.

This opinion upheld the denial of the Petitioner’s motion for a

=

new trial. In two prior opinions, the North Dakota Supreme

Court denied the Petitioner’s motion for release pending appeal

(State v. Olmstead, 242 N.W. 2d 644, ND 1976), and affirmed

the Petitioner’s conviction but reinstated his motion for a new

trial and remanded (State v. Olmstead, 246 N.W. 2d 888, ND

1976). All three opinions are reprinted in the Appendix to this

petition as is the transcript of the verdict of the trial judge, said

opinions and transcript of verdict appearing at pages A-1, A-16,

A-28, and A-35 respectively.

JURISDICTION

The judgment sought to be reviewed was filed on January 11,

1978 and made final on January 27, 1978. No petition for re-

hearing was filed nor was any order granted extending the time

in which to file the petition for a Writ of Certiorari.

The statutory authority for issuance of a Writ of Certiorari is

28 USC § 1257(3), which authorizes review of final judgments

of the highest court of a state when any title, right, privilege, or

immunity is specially set up or claimed under the Constitution

or statutes of the United States. Petitioner claims that the rights

granted to him under the First and Fourteenth Amendments to

the United States Constitution were denied him.

QUESTIONS PRESENTED FOR REVIEW

Whether. comments by the trial judge on the religious prac-

tices of the Petitioner denied him the rights guaranteed under

the First and Fourteenth Amendments to the United States Con-

stitution?

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent sections of the Constitution of the United States

involved herein are:

a vom

First Amendment: Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the govern-

ment for a redress of grievances.

Fourteenth Amendment:

Section I: All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

The essential facts in this case were summarized by the North

Dakota Supreme Court in the second of its three opinions, State

v. Olmstead, 246 N.W. 2d 888 (ND 1976), as follows:

“The rape victim testified that she was raped in a vacant lot

by a young man then unknown to her, on June 27, 1975.

She was with him for half an hour, conversed with him, and

saw, by the light of the moon, his face, the knife he used

to threaten her, and the color of his clothes and boots.

About two weeks later, while in a restaurant within a few

blocks of the place where the rape occurred, she saw the

defendant working in the kitchen and identified him as the

rapist. At the trial, her testimony was the only evidence

identifying the defendant. A police drawing based upon

her description before she identified the defendant shows

vn

some similarity to him. A search of the apartment of the

defendant and his wife uncovered a steak knife similar

to the one described by the victim, but no clothing closely

matching her description of what the rapist wore.

The defendant's alibi defense was supported by his wife

and by five persons who testified that they had attended a

movie and prayer meeting at the Grand Forks Mission with

the defendant and his wife the evening of June 27. The

meeting lasted until after midnight. All five testified that

the defendant and his wife planned to go to a local carnival

to hand out religious tracts, and two of the five testified

that they accompanied the defendant and his wife to the

carnival and that the four ‘witnessed’ there until after 1

a.m. The rape was positively shown to have occurred be-

tween midnight and 1 a.m.” 246 N.W. 2d 888, 889.

The case was tried to the court in November of 1975. The

trial judge announced his verdict on November 14, 1975, at

which time the remarks were made in denial of the Petitioner's

constitutional rights. As to some of the post-trial matters, the

North Dakota Supreme Court summarized them as follows:

“Olmstead was represented by Attorney Evan F. Heustis

at the trial. Shortly after the trial, John H. Moosbrugger,

who had been engaged by Olmstead’s parents, became Olm-

stead’s counsel. Moosbrugger moved, . . . for a new

trial . . ., and then moved to withdraw that motion. Attorney

David Kessler, who had been engaged by Olmstead’s wife,

appeared at the hearing on the motion to withdraw the mo-

tion for new trial, and resisted that motion in behalf of

Mrs. Olmstead. Moosbrugger’s motion to withdraw the’

motion for new trial was granted. . . .

Olmstead then dismissed Moosbrugger and appointed

Kessler to represent him. Kessler moved to reinstate the

motion for new trial and for release pending appeal. Both

motions were denied. Kessler prepared Olmstead’s ap-

—

peal . . . This Court heard Olmstead’s motion for release

pending appeal and a divided court denied the motion. . . .

Next we heard arguments on Olmstead’s appeal from the

conviction and sentencing, and from the order denying re-

instatement of the motion for new trial. A unanimous

court affirmed the conviction, but reinstated the motion for

new trial and remanded for consideration by the trial court

of the original motion for new trial . . .” 261 N.W. 2d 880,

881, 882.

The motion for a new trial was denied and Robert O. Wefald

took the Petitioner’s appeal to the North Dakota Supreme Court.

The comments, which the Petitioner contends constitute re-

ligious bias, were made by the trial judge in the course of an-

nouncing his verdict the day after the conclusion of the trial

of the case to the court (November 14, 1975). The trial judge

held that the evidence could not be reconciled as to the time

factor and that “It’s the Court’s opinion that testimony as to

going out to the carnival to witness for the Lord after 12:15

a.m. is incredible and defies common sense beyond good judg-

ment” and that even “if there was any witnessing done for the

Lord out at the carnival setting that evening, the only reconcilia-

tion that is reasonable is that such (was the?) time for the defend-

ant and his wife to return to their apartment.” The North

Dakota Supreme Court found no religious bias in the trial judge’s

remarks, although it concluded that “The statement was, at

mosi, UNDIPLOMATIC.” (Emphasis. supplied, Appendix page

A-12)

The Petitioner, who has an organic brain dysfunction is an

enlisted member of the United States Air Force. He is married

and has no children. He has served the sentence imposed upon

him in the North Dakota State Penitentiary and has been

paroled. He has been returned to active duty pending the out-

come of this petition. If his conviction stands, he faces dis-

charge from the United States Air Force.

STAGE OF PROCEEDINGS AT WHICH

QUESTION WAS RAISED

The question of the bias of the trial judge and denial of the

Petitioner’s constitutional rights was first raised in the Peti-

tioner’s brief on appeal to the North Dakota Supreme Court

which ignored the issue and remanded the case for further

proceedings (246 N.W. 2d 888). North Dakota Rules of Ap-

pellate Procedure do not require specifications of error, hence

all issues on appeal are raised in the appellate briefs. The

question was finally specifically addressed by the North Da-

kota Supreme Court in its most recent opinion in this case

(261 N.W. 2d 880).

REASONS FOR ALLOWANCE OF WRIT

The Decision of the North Dakota Supreme Court That the

Comments of the Trial Judge Were, at Most, Undiplomatic,

Is Not in Accord With the Letter, Spirit and Intent of Appli-

cable Decisions of This Court.

The Writ of Certiorari ought to be issued pursuant to Rule

19(a) of the Supreme Court Rules because the North Dakota

Supreme Court has decided the question raised in a way not

in accord with the applicable decisions of this Court. The es-

sential question is one of the religious bias of the trial judge.

This Court has refused to tolerate prejudicial judicial bias. In

Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.

2d 243 (1971), this Court held that:

“Trial before ‘an unbiased judge’ is essential to due proc-

ess.” 403 U.S. 212, 216.

See also Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.

Ed. 749 (1927); In re Murchison, 349 U.S. 133, 75 S.Ct. 623,

99 L.Ed. 942 (1955); Mayberry v. Pennsylvania, 400 U.S.

455, 91 S.Ct. 499, 27 L.Ed. 2d 532 (1971).

In Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.

2d 83 (1972), this Court held:

“Moreover, even if there is no showing of actual bias in

the tribunal, this Court has held that due process is de-

nied by circumstances that create the likelihood or the

appearance of bias. This rule too, was well established

long before the right to jury trial was made applicable in

State trials, and does not depend on it. Thus, it has been

invoked in trials to a judge.” 407 U.S. 493, 502.

The North Dakot Supreme Court acknowledged these de-

cisions and held that “trial before an unbiased judge is essen-

tial to due process . . . and this means that courts should avoid

—

even an appearance of bias . . .” (261 N.W. 2d 880, 884),

however, it simply refused to conclude that the trial judge’s re-

marks created even the slightest appearance of bias although it

did hold that “the statement was, at most, UNDIPLOMATIC”

(emphasis supplied. 261 N.W. 2d 880, 885). This holding

by the North Dakota Supreme Court is a matter of law and

not a matter of fact, and as a matter of law, it is contrary to

the spirit, letter, and intent of the applicable decisions of this

court.

The North Dakota Supreme Court held that it did “not at-

tribute a bad motive to a remark by an experienced, capable

trial judge, made at the conclusion of a difficult trial during

which he displayed complete fairness.” (261 N.W. 2d 880,

885). The Petitioner does not attribute a bad motive to the

remarks of the trial judge, in fact, we believe he was being

perfectly candid. This Court does not, however, require show-

ing a bad motive before prejudicial bias can be found; rather

just the “appearance of bias” can deny due process.

The trial of this case began at 10:30 a.m. on November 12,

1975, and concluded except for closing arguments at approxi-

mately 4:30 p.m. on November 13, 1975. The trial judge did

not announce his verdict until 2:00 p.m. on November 14,

1975. Having had an opportunity to carefully consider the

case, there is no evidence that his remarks were less than well

prepared or carefully chosen. In fact, the first eight or nine

pages of the transcript of his decision indicate thorough prep-

aration. The evidence suggests that the remarks of the trial

judge of which the Petitioner complains were not inadvertent

or made in haste—he obviously meant exactly what he said.

A fair and open reading of the remarks cf the trial judge

reveals that he candidly displayed the bias of his thoughts and

beliefs without any hint of bad motive. The trial judge's expres-

sion of what did or did not make “common sense” to him re-

veals the extent of his cultural and religious bias.

—

At the time the crime was committed, there was a carnival

in town out at the fairgrounds which remained open until | a.m.

each evening. It simply does not “defy common sense beyond

good judgment” that people would be attending the carnival

until 1 a.m., notwithstanding the apparent opinion of the trial

judge. In fact, it is doubtful that the carnival would remain

open until 1 a.m. if people were not out there to patronize it

even though that apparently makes no sense to the trial judge.

The cultural bias of the trial judge is even more apparent when

he stated that by carrying his common sense approach a step

further, he determined that the only reasonable thing for the

Petitioner and his wife to be doing at that time of the morning

was to be returning to their apartment. In other words, because

of the trial judge’s cultural beliefs and bias, he totally discounted

the Petitioner’s witnesses as to their crucial testimony placing

the Petitioner at the fairgrounds at the time of the crime. Curi-

ously enough though, the trial judge did believe the witnesses

and their testimony about being with the Petitioner at the

religious coffee house until midnight. The trial judge, like the

Fairy Godmother, expected the Petitioner, like Cinderella, to

promptly head for home at midnight. The Petitioner’s punish-

ment for failing to respond in accordance with the trial judge’s

perception of common sense is that his witnesses were dis-

credited only as to the crucial events after midnight leaving

the Petitioner defenseless against the uncorroborated accusa-

tions of the complaining witness. The Petitioner was branded as

a felon and a rapist and confined to the penitentiary because his

actions after midnight defied the trial judge’s perception of “com-

mon sense beyond good judgment.”

The foregoing principally shows cultural bias. However, the

remark by the trial judge that “It’s the Court’s opinion that testi-

mony as to going out to the carnival to witness for the Lord

after 12:15 a.m. is incredible and defies common sense beyond

good judgment” demonstrates his religious bias. The North

—_— —_—

Dakota Supreme Court held that the first part of this phrase

only pointed out which testimony the triai judge found to

be incredible. For the sake of argument, we can say that

this testimony as to “going out to the carnival to witness for the

Lord after 12:15 a.m.” may or may not be credible depending

upon the trial judge’s reaction to the witnesses, but it CANNOT

be said to “defy common sense beyond good judgment.”

There may be circumstances in which the trial judge may

conclude that the testimony of a witness does not square with

common experience or is very remote or of an extremely low

order of probability or borders on fantasy, but as pointed out

above, simply being out at a carnival from midnight to 1 a.m.

or the decision of a couple to go somewhere after a meeting

instead of returning home is not uncommon, unbelievable, incon-

ceivable, nor does it defy common sense, nor is it beyond good

judgment. Going out to the carnival at that time of morning

to distribute religious literature and to witness for the Lord

may be hard to accept and it may not be a common form of

activity, but it simply does happen even though most people

with the trial judge included, would not agree with that religious

practice. This court has decided many cases involving religious

practices that deviated from the then prevailing norm. West

Virginia State Board of Education v. Barnette, 319 U.S. 624,

63 S.Ct. 1178, 87 L.Ed. 1028 (1943) (Salute and Pledge of

Allegiance); School District of Abington Township v. Schempp,

374 US. 203, 83 S.Ct. 1560, 10 L.Ed. 2d 844 (1963) (required

reading of Bible verses unconstitutional), Engel v. Vitale, 370

U.S. 421, 82 S.Ct. 1261, 8 L.Ed. 2d 601 (1962) (required

reading of prayers in classrooms unconstitutional), Cantwell v.

Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213

(1940) (requirement of license to distribute “religious” litera-

ture held unconstitutional); Niematko v. Maryland, 340 US.

268, 71 S.Ct. 325, 95 L.Ed. 267 (1951) (requirement of per-

mit to use park for Bible talks violated Jehovah’s Witnesses

— pan

First Amendment rights); Wisconsin v. Yoder, 406 U.S. 205,

92 S.Ct. 1526, 32 L.Ed. 2d 15 (1972) (religious beliefs of

Amish that children not to attend school past eighth grade up-

held).

The remarks of the trial judge were more than simply “un-

diplomatic,” they were religiously and culturally biased depriv-

ing the Petitioner of his rights to due process and religious free-

dom. Justice demands that the Petitioner be given a new trial

before an unbiased trier of fact.

CONCLUSION

For the foregoing reasons, this Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

ROBERT O. WEFALD

WHEELER, WOLF, WEFALD &

PETERSON, P.C.

P. O. Box 773

Bismarck, North Dakota 58501

Attorneys for Petitioner

—_ !

STATE of North Dakota, Plaintiff

and Appellee,

Vv.

Vernon Ray OLMSTEAD, Defendant

and Appellant.

Crim. No. 610.

Supreme Court of North Dakota.

Jan. 11, 1978.

Appendices (261 N.W.2d 880)

Defendant's conviction of rape was affirmed, 246 N.W.2d

888, and subsequently, the District Court, Grand Forks County,

A. C. Bakken, J., denied his motion for a new trial. Defendant

appealed. The Supreme Court, Pederson, J., held that: (1) the

trial judge’s comment that defendant’s alibi testimony “as to

going out to the carnival to witness for the Lord after 12:15 a.m.

is incredible and defies common sense beyond good judgment,”

did not display improper religious bias; (2) where defendant

stipulated to the use of the results of a polygraph examination,

the results were admissible, and (3) the evidence was sufficient to

sustain the conviction.

Affirmed.

1. Constitutional Law Key 268(8)

Trial before unbiased judge is essential to due process and

court should avoid even appearance of bias.

2. Criminal Law Key 31

Alibi is valid defense.

—_

3. Criminal Law Key 656(6)

In prosecution for rape, trial judge’s comment that defendant’s

testimony, “as to going out to the carnival to witness for the

Lord after 12:15 a.m. is incredible and defies common sense

beyond good judgment,” did not display improper religious bias.

4. Stipulations Key 14(7)

Where defendant stipulated to admission of results of poly-

graph examination on his motion for new trial, results were ad-

missible.

5. Stipulations Key 13

Whether relief from stipulation will be granted rests in sound

discretion of trial court.

6. Criminal Law Key 956(1)

Question of whether polygraph may be used to assist judge

in determining whether to grant motion for new trial is different

matter than question of admissibility at trial to show guilt or

innocence.

7. Rape Key 51(1)

Evidence was sufficient to sustain conviction of rape.

8. Criminal Law Key 935(1)

It is not abuse of discretion on part of trial judge to deny mo-

tion for new trial on ground of insufficiency of evidence where

there is substantial evidence to support decision.

a YT

Wheeler, Wolf, Wefald & Peterson, Bismarck, for defendant

and appellant, and David Kessles, Grand Forks, of counsel;

argued by Robert O. Wefald, Bisunarck.

Thomas B. Jelliff, State’s Atty., Grand Forks, for plaintiff and

appellee.

PEDERSON, Justice.

This is an appeal from an order denying a motion for new trial

in a case that we are now considering for the third time. Vernon

Ray Olmstead was convicted of having committed, on June 28,

1975, “rape in the first degree,” in violation of § 12-30-01(1)

and (4) and § 12-30-04(2), NDCC.' Olmstead had waived a jury

and, after a four-day trial, he was found guilty by the District

Court of Grand Forks County and sentenced to five years in the

. State penitentiary.

Olmstead was represented by Attorney Evan F. Heustis at the

trial. Shortly after the trial, John H. Moosbrugger, who had been

engaged by Olmstead’s parents, became Olmstead’s counsel.

Moosbrugger moved, pursuant to Rule 33, NDRCrimP, for a

new trial (the contents of which motion will be described herein-

after), and then moved to withdraw that motion. Attorney

David Kessler, who had been engaged by Olmstead’s wife, ap-

peared at the hearing on the motion to withdraw the motion for

new trial, and resisted that motion in behalf of Mrs. Olmstead.

Moosbrugger’s motion to withdraw the motion for new trial was

granted.

Olmstead asked that he be “evaluated” at the state mental

hospital and this was ordered as a part of the presentence investi-

gation under Rule 32(c)(2), NDRCrimP.

Olmstead then dismissed Moosbrugger and appointed Kessler

to represent him. Kessler moved to reinstate the motion for new

1 Repealed by § 41, Ch. 116, S.L.1973, effective July 1, 1975.

Sex offenses have been redefined in Ch. 12.1-20, NDCC.

— ~~ pe

trial and for release pending appeal. Both motions were denied.

Kessler prepared Olmstead’s appeal “from the Judgment of con-

viction against him of the offense of first degree rape and the

sentence imposed thereon . . . [and] from the Order denying

Defendant's application to reinstate Motion for new trial. . .”

This Court heard Olmstead’s motion for release pending appeal

and a divided court denied the motion [State v. Olmstead, 242

N.W.2d 644 (N.D.1976)]. Next we heard arguments on Olm-

stead’s appeal from the conviction and sentencing, and from the

order denying reinstatement of the motion for new trial. A

unanimous court affirmed the conviction, but reinstated the mo-

tion for new trial and remanded for consideration by the trial

court of the original motion for new trial, subject to the stipula-

tions made by Attorney Moosbrugger and the state’s attorney

(State v. Olmstead, 246 N.W.2d 888 (N.D. 1976)).

The reinstated motion sought a new trial in the interest of

justice, specifying the following reasons:

(1) Olmstead proposes to take a polygraph test and agrees

that the results thereof be admitted, and that the examiner shall

be examined and cross-examined at the hearing on the motion;

(2) Olmstead desires to testify in his own behalf;

(3) Additional alibi witnesses are now available;

(4) Olmstead desires a mental evaluation at the state mental

hospital;

(5) There is information available concerning the instability

of the complaining witness which should be brought to the at-

tention of the court;

(6) The State has within its control physical evidence which

tends to clear the defendant, which the court has not seen;

(7) The evidence presented at the trial was insufficient to

sustain a judgment of conviction.

—_—

At the beginning of the hearing on this motion for new trial,

Olmstead declined the court’s offer to permit amendment thereof.

During the hearing the following evidence was taken regarding

each of the reasons set forth in the motion:

(1) The State presented testimony, which the court admitted

over defendant’s strong objection, concerning the polygraph

test.

(2) Olmstead testified in his own behalf, denied committing

the offense and, as at the trial, presented an alibi as his principal

defense.

(3) Additional alibi witnesses were called and testified in sup-

port of Olmstead’s alibi that the could not have committed the

offense because he was elsewhere during the entire period when

the crime was being committed.

(4) The results of the state mental hospital evaluation were

introduced.

(5) No information was offered relating to the alleged in-

stability of the complaining witness.

(6) No information was offered relating to any physical evi-

dence under the control of the State which would tend to clear

Olmstead.

(7) Argument was made that the evidence was insufficient to

sustain the conviction. —

During Olmstead’s testimony, he gratuitously stated: “The

whole basis of me getting a new trial was a lie detector test, that

was the whole basis.” Needless to say, the polygraph test results

indicated deception when Olmstead denied committing the of-

fense. Counsel called two experts who testified concerning the

unreliability of the polygraph results, especially with regard to

persons who have certain brain disfunctions such as those suf-

—

fered by Olmstead. This testimony is contradicted, in part, by

the state hospital evaluation which was received without objec-

tion.

The trial court heard extensive arguments by counsel for Olm-

stead and for the State, made a comprehensive statement of its

analysis of the issues before it, and concluded with:

“

. the only logical and reasonable conclusion to be

made after hearing the evidence in the motion for new trial

is that the proof of the defendant’s guilt beyond a reasonable

doubt which was established at the trial from approximately

November 11 to November 14, 1975, has now been estab-

lished beyond all doubt.”

The motion for new trial was denied, Olmstead appealed from

that denial, and we affirm.

Olmstead has again changed counsel and, on this appeal, is

represented by Robert O. Wefald, who argues the following

issues:

I. Whether the religious bias of the trial judge denied the

defendant-appellant the constitutional rights guaranteed him

under the First and Fourteenth Amendments to the Constitu-

tion of the United States and Section 4 of the Constitution of

the State of North Dakota.

II. Whether it was proper to consider testimony from a poly-

graph examination in spite of a claim of the lawyer-client priv-

ilege.

III. Whether in light of all the evidence it was proper for

the trial court to deny the motion for new trial.

Although the appeal before us now is only from the order

denying a new trial and no issue of bias or constitutional rights

was raised by the motion for new trial, we conclude that there

—_

was an alternative motion for relief under the Uniform Post-

Conviction Procedure Act (Chapter 29-32, NDCC), and we

have said that this Act permits any attack, direct or collateral,

upon a judgment, which might otherwise have been available

under any common law, statute or other writ, motion, petition,

proceeding or remedy. State v. Carmody, 243 N.W.2d 348

(N.D.1976). Accordingly, we will consider all issues raised,

directly or collaterally, even though they may have no rela-

tionship to the denial of the motion for new trial. We do not

mean to abandon what we said in State v. Haakenson, 213

N.W.2d 394, 398 (N.D.1973):

“Appeals from orders denying motions for new trial will

ordinarily be appropriate only where the order itself is a

final determination of the action, as where a motion for

new trial on the ground of newly discovered evidence is

denied after the time for appeal from the judgment has

passed.”

See, also, Explanatory Notes following Rule 33, NDRCrimP.

See, also, State v. Erickson, 231 N.W.2d 758, 761 (N.D.1975).

RIGHT TO IMPARTIAL, UNBIASED

TRIER OF FACT

In announcing its verdict, the trial court, apparently using

standard jury instructions 2s a guide, addressed the defendant

on matters concerning the applicable law, the burden of the

State, reasonable doubt, the weighing of evidence, circumstan-

tial evidence, credibility of witnesses, and other matters which

the trial court described as the basic rules which apply to crim-

inal cases. From these observations, reported in eight pages

of the transcript, Olmstead quotes, out of context, the following:

“The Court is of this opinion that this evidence can be

reconciled in part. It can be reconciled by accepting the

—_Y

testimony of the defendant’s wife and corroborating wit-

nesses as to the defendant being at the coffee house on

the night of June 27, 1975. It cannot be reconciled as

to the time factor. It’s the Court’s opinion that testimony

as to going out to the carnival to witness for the Lord

after 12:15 a.m. is incredible and defies common sense

beyond good judgment.”

At one point in the statement, before making the above

comment, the trial court had stated:

“An instruction which certainly has great importance

in this case relates to weight and credibility of testimony

given by witnesses.

“The jury or the Judge in this case is the judge of all

questions of fact. The jury or the Judge alone must weigh

the evidence under these instructions and determine the

credibility of those who have testified. And in performing

this task the jury or the Judge may consider those facts

and circumstances in the case which tend to strengthen,

weaken or contradict one’s testimony. The jury or the

Judge may consider the age, intelligence and experience

of the witness, the strength or weakness of his recollec-

tion, how he came to know the facts to which he testified,

his possible interest in the outcome of the trial, any bias

or prejudice he may have, his manner and appearance,

and whether he was frank or evasive while testifying, and

whether his testimony is reasonable or unreasonable.

“If it’s found that there is a conflict in the evidence, the

Judge or the jury should reconcile it, if it’s possible, be-

cause each witness is presumed to have told the truth. If

this cannot be done, the jury or the Judge has the right

to determine whom of the witnesses he will believe in

whole or in part. And I believe this should be empha-

sized, that the jury or the Judge should give credible tes-

—_*

timor.’ its just and fair weight and should consider the

evidem in the case in the light of his common sense

and ordi. ary experience and observation of human affairs.

If the Jury or the Judge concludes that a witness has

knowingly testified falsely concerning any material mat-

ter, he has the right to distrust such witness’s testimony

in other particulars and may reject all the testimony of

that witness and give it such weight and credibility as he

thinks it deserves.

“The test is not which side produces the greater num-

ber of witnesses or presents the greater quantity of evi-

dence, but rather which testimony and what evidence

convinces the jury or the Judge as being more accurate

and otherwise trustworthy.”

The court then discussed specific items of testimony, such

as that of the complainant, evaluating its consistency and cred-

ibility, and pointed out some inconsistencies. In commenting

on the testimony of alibi witnesses for the defense, the court

likewise pointed out consistencies and inconsistencies and, im-

mediately before making the observation which Olmstead finds

objectionable, said:

“The Court, if there is a conflict in the evidence, which

is obvious, it must be reconciled if possible because each

witness is presumed to have told the truth. If it cannot

be reconciled, the Judge has the right to determine whom

he will believe in whole or in part.”

Immediately after the remarks which Olmstead says prove

religious bias, the trial court said:

“Carrying that a step further if there was any witnessing

done for the Lord out at the carnival setting that eve-

ning, the only reconciliation that is reasonable is that such

time for the defendant and his wife to return to their

apartment. The defendant's wife testified he left the apart-

— A-10 —

ment and the witness Sissy Williams, I believe, testified

that he came to her apartment and knocked on the door

about 1:30 that morning of June 28th and that he stayed

there a half an hour and the Court asked her specifically

what was the urgency of his visit. She said to tell her to

pray for some homosexual and for someone who was

deadly ill from cancer and this witness Williams had met

this woman only very briefly on one occasion.

“It appears to the Court that this was an attempt on

the part of the defendant to establish an alibi and to

account for his time.”

Olmstead argues that a fair reading of the remarks of the

trial court indicates that the sole basis for discounting the de-

fense testimony was the court’s unwillingness “to accept the

religious practices of these witnesses.” Counsel for Olmstead

acknowledged, during oral argument before this Court, that

the court could have validly said, “the testimony is not cred-

ible,” but he argues that, in effect, the tria! judge said, “I don’t

believe that it is good religious practice to witness for the Lord

at a carnival between 12:30 and !:00 o'clock in the morning.”

We do not read the comment in that manner. If alibi testi-

mony which involves a religious activity must be believed, few

convictions could occur—it would be everyone’s alibi.

[1] We readily acknowledge that trial before an unbiased

judge is essential to due process [Johnson v. Mississippi, 403

U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971)], and that

this means that courts should avoid even an appearance of

bias [Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d

83 (1972)]. See, also, Canons 1, 2 and 3, Code of Judicial

Conduct, and State v. Weippert, 237 N.W.2d 1 (N.D.1975).

Section 4 of the Constitution of North Dakota provides:

“The free exercise and enjoyment of religious profes-

sion and worship, without discrimination or preference,

—*

shall be forever guaranteed in this state, and no person

shall be rendered incompetent to be a witness or juror on

account of his opinion on matters of religious belief; but

the liberty of conscience hereby secured shall not be so

construed as to excuse acts of licentiousness, or justify

practices inconsistent with the peace or safety of this state.”

Article I of the Amendments to the United States Consti-

tution provides:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to pe-

tition the Government for a redress of grievances.”

Article XIV of the Amendments to the United States Con-

stitution prohibits states from doing those things which Article

I prohibits Congress from doing.

[2] An alibi is a recognized, valid defense in this State.

State v. Lyon, 59 N.D. 374, 230 N.W. 1 (1930); State v.

Gates, 51 N.D. 695, 200 N.W. 778 (1924); State v. Nelson,

17 N.D. 13, 114 N.W. 478 (1908). See, also, Rule 12.1, NDR

CrimP.

[3] In 75 Am.Jur.2d Trial, § 733, it is stated:

“In general, the defense of alibi is not one requiring

that the evidence given in support of it be scrutinized

otherwise or differently from that given in support of any

other issue in the case, .. .”

Olmstead presents the novel argument that because his alibi

placed him away from the scene of the crime, “witnessing for

the Lord,” the trial court's comment of disbelief of the testi-

mony displays religious bias.

— A-12 —

When considering all of the comments by the trial court,

including the remark, “It’s the Court opinion that testimony

as to going out to the carnival to witness for the Lord after

12:15 a.m. is incredible and defies common sense beyond good

judgment,” we conclude that no religious bias was displayed.

The descriptive phrase “as to going out to the carnival to wit-

ness for the Lord after 12:15 a.m.” identifies which testimony

the court found to be incredible and which defied common

sense beyond good judgment. It does not explain “why” it was

deemed incredible. It may have been the demeanor of those

who testified, or the inconsistencies, or the unusual total recall

of certain events and exact times of occurrences from a remote

and insignificant time in the past. We do not attribute a bad

motive to a remark by an experienced, capable trial judge,

made at the conclusion of a difficult trial during which he dis-

played complete fairness. The statement was, at most, undip-

lomatic. See State v. Weippert, 237 N.W.2d 1 (N.D.1975).

“The purpose of reviewing a judgment in a criminal ac-

tion is not to determine whether the record is perfect, but

to determine whether the defendant has had a fair trial

under the law and whether his conviction is based upon

evidence establishing his guilt beyond a reasonable doubt.”

State v. Marmon, 154 N.W.2d 55, 64 (N.D.1967).

See, also, State v. Allen, 237 N.W.2d 154, 162 (N.D.1975);

State v. Iverson, 187 N.W.2d 1, 44 (N.D.1971); Michigan v.

Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974).

No violation of Section 4 of the North Dakota Constitution

or Articles I and XIV of the Amendments to the United States

Constitution has been shown. Cases (primarily from Michi-

gan*) cited by Olmstead, or discovered by this Court, involv-

ing the questioning of witnesses about their religion, have no

bearing upon the issue before us.

2 E.g., People v. Hall, 391 Mich. 175, 215 N.W.2d 166, 76

A.L.R.3d 523 (1974).

— A-13 —

POLYGRAPH EXAMINATION

In the only case in this State where “lie detector” evidence

was offered to prove guilt or innocence, this Court held that

the evidence was inadmissible. State v. Pusch, 77 N.D. 860,

46 N.W.2d 508 (1951). Later, in State v. Swanson, 225 N.W.

2d 283, 285 (N.D.1975), where the trial court had rejected

defendant’s attempt to introduce evidence of his willingness to

take a polygraph test, we said:

“This court may be required to re-examine its decision

in State v. Pusch, supra, if presented with an appropri-

ate record. Such a record is not present in this case.”

[4] The instant case likewise fails to present us with an

appropriate record upon which this Court can base a re-exam-

ination of the question—nor is this a case in which the deci-

sion in Pusch can be applied. Here, Olmstead’s counsel and

the prosecutor had stipulated (as we pointed out in State v.

Olmstead, 246 N.W.2d at 891, supra) that, for the purpose

of the motion for new trial, Olmstead would submit to a poly-

graph test and the results would be admissible, and that the

polygraph operator would be examined and cross-examined.

Olmstead, himself, never indicated that his counsel was not

following his instructions in entering that stipulation and, while

testifying at the hearing on his motion for new trial, confirmed

that “the whole basis of me getting a new trial was a lie de-

tector test.” Additionally, Olmstead, himself, introduced the

results of a previous, separate polygraph examination (which

also indicated deception when he denied committing the rape).

We assume that the stipulation is not disputed and should be

enforced by the court when no good cause is shown to the

contrary. The fact that the results were unfavorable rather than

favorable is not a good cause.

“The stipulation is in the nature of a contract and a

party may not be relieved therefrom without first making

— A-14 —

application to the court and upon a showing of good

cause.” Bjerken v. Ames Sand and Gravel Company, 206

N.W.2d 884, 888 (N.D.1973).

See, also, Lawrence v. Lawrence, 217 N.W.2d 792 (N.D.1974).

[5,6] Whether relief from a stipulation will be granted rests

in the sound discretion of the trial court. Northern Pac. Ry.

Co. v. Barlow, 20 N.D. 197, 126 N.W. 233 (1910). No abuse

of discretion is indicated here. Rule 502, NDREv, does not

prohibit waiver of the lawyer-client privilege. His own state-

ment at the motion hearing denies merit to Olmstead’s argu-

ment that there was “no knowing waiver.” We also agree with

the majority in People v. Barbara, 400 Mich. 352, 255 N.W.

2d 171 (1977), when they said that the question of whether

polygraph may be used to assist a judge in determining whether

to grant a motion for new trial is a different matter than the

question of admissibility at a trial to show guilt or innocence.

MOTION FOR NEW TRIAL

[7] Rule 33, NDRCrimP, superseded all of Chapter 29-24,

NDCC, including § 29-24-02 which itemized the exclusive

grounds upon which new trials in criminal cases could be

granted. Now the ground for new trial is “in the interest of

justice.” It is necessary, however, to “point out with particu-

larity the defects and errors complained of.” One of the grounds

for new trial under § 29-24-02 was: “When the verdict is con-

trary to law or clearly against the evidence.” Even though in-

sufficient evidence to sustain the conviction more readily justi-

fies a motion for judgment of acquittal under Rule 29, NDR

CrimP, Olmstead exercised his prerogative to point it out as a

defect or error under Rule 33. See State v. Holy Bull, 238

N.W.2d 52 (N.D.1975).

The question of sufficiency of evidence to sustain the con-

viction was squarely before this Cort and was decided in State

— A-15—

v. Olmstead, 246 N.W.2d 888, supra. We said that there was

competent and substantial evidence (although controverted)

sufficient to support Olmstead’s conviction. Matters testified

to at the hearing on the motion for new trial could in no way

diminish the evidence presented at the trial. Some testimony

serves to reassert a defense which failed at trial. Other testi-

mony elicited at the motion hearing is at least as devastating

to Olmstead’s cause as any of the trial evidence. Accordingly,

we reaffirm our determination that the evidence does sustain

the conviction.

As we stated in Holy Bull, supra, 238 N.W.2d at 55:

“A motion for new trial is also addressed to the trial

court’s judicial discretion and its decision will not be set

aside unless an abuse of discretion is shown.”

See, also, State v. DePriest, 206 N.W.2d 859 (N.D.1973);

State v. Carroll, 123 N.W.2d 659 (N.D.1963); State v. Bra-

athen, 77 N.D. 309, 43 N.W.2d 202 (1950); State v. Hum-

mel, 73 N.D. 308, 14 N.W.2d 368 (1944).

[8] We have examined the record and find no abuse of dis-

cretion. It is not an abuse of discretion on the part of the trial

court to deny a motion for a new trial on the ground of in-

sufficiency of the evidence where there is substantial evidence

to support the decision. State v. DePriest, 206 N.W.2d at 865,

supra.

The order denying the motion for new trial is affirmed. Olm-

stead has not shown his entitlement to any relief under the

Uniform Post-Conviction Procedure Act (Ch. 29-32, NDCC).

PAULSON, VOGEL and SAND, JJ., and BENNY A.

GRAFF, District Judge, concur.

The Honorable RALPH J. ERICKSTAD, deeming himself

disqualified did not participate; the Honorable BENNY A.

GRAFF, Judge of the Fourth Judicial District Sitting in his

place.

— A-16 —

STATE of North Dakota,

Plaintiff-Appellee,

Vv.

Vernon Ray OLMSTEAD,

Defendant-Appellant.

Cr. No. 553

Supreme Court of North Dakota

April 29, 1976

Rehearing Denied June 10, 1976

(242 N.W.2d 644)

Defendant was convicted before the District Court, Grand

Forks County, A. C. Bakken, J., of rape in first degree, using a

knife to threaten immediate and great bodily harm to victim,

and he appealed and moved for release pending determination

of appeal. Following denial of that motion by the district court,

the Supreme Court, Paulson, J. (on Reassignment), held that

nature of offense, use of knife in perpetrating rape, lack of in-

ducement or enticement by victim, psychological evaluation and

fact that trial judge had opportunity to observe defendant dur-

ing trial and form opinion as to his conduct, supported con-

clusion that there was sufficient reason to believe that defend-

ant might pose danger to others or to community; that trial

court did not abuse its discretion in denying motion for release

pending appeal; and that motion would be denied by the Su-

preme Court.

Motion denied.

Vogel, J., filed dissenting opinion.

— A-17 —

1. Bail Key 44(3)

As general rule, convicted defendant is entitled to release

pending appeal unless it appears that appeal is frivolous, ap-

peal is taken for delay, there is reason to believe defendant

might flee, or defendant poses a danger to others or to com-

munity.

2. Bail Key 44(1)

When determining whether or not defendant should be re-

leased pending appeal, trial judge may properly consider testi-

mony of state’s witnesses heard during trial, psychological re-

ports previously submitted during trial and trial judge’s own

observations of defendant during course of trial.

3. Bail Key 44(3)

Fact that defendant, defendant’s wife, and his fellow workers

would not feel threatened by defendant’s release pending ap-

peal of his conviction of rape ‘n first degree, using a knife to

threaten immediate and great bodily harm to victim, although

of value to trial court in determining whether or not release

should be granted, was not conclusive that others, including

victim who testified against him, would not be in danger. NDCC

12-30-01, subds. 1, 4, 12-30-04, subd. 2.

4. Bail Key 44(1)

Decision whether convicted defendant should be released

pending appeal is discretionary with trial court and a similar

petition made to the Supreme Court will be granted only in

case of abuse of discretion by trial court.

— A-18 —

5. Bail Key 44(1)

Although it is preferable for the district court to separately

State its reasons for granting or denying motion for release pend-

ing appeal, and to include therein a clear statement of factual

basis for its action, the “Statement of Reasons for Sentence of

Imprisonment and Denial of Bail” filed by trial judge in prose-

cution for rape in first degree, using knife to threaten imme-

diate and great bodily harm to victim, showed that he con-

sidered all of information placed before him and, in exercise

of sound discretion, denied defendant’s motion. NDCC 12-30-

O1, subds. 1, 4, 12-30-04, subd. 2; N.D.R.App.P., rule 9(b);

N.D.R. Crim.P., rule 46(d).

6. Bail Key 44(3)

In prosecuting for rape in first degree, using a knife to

threaten immediate and great bodily harm to victim, nature of

offense, use of knife in perpetrating rape, lack of inducement

or enticement by victim, psychological evaluation, and fact that

trial judge had opportunity to observe defendant during trial

and form opinion as to his conduct, supported conclusion that

there was sufficient reason to believe that defendant might pose

danger to others or to community, and consequently trial court

did not abuse its discretion in denying defendant’s motion for

release pending appeal of conviction and defendant’s motion

would likewise be denied by the Supreme Court. NDCC 12-30-

O1, subds. 1, 4, 12-30-04, subd. 2.

Syllabus by the Court:

1. The decision whether a convicted defendant should be

released pending appeal is discretionary with the trial court.

A similar petition made to this Court will be granted only in

case cf an abuse of discretion by the trial court.

— A-19 —

2. As a general rule, a convicted defendant is entitled to

release pending appeal unless it appears that (1) the appeal is

frivolous, (2) the appeal is taken for delay, (3) there is reason

to believe the defendant might flee, or (4) the defendant poses a

danger to others or to the community.

3. In the instant case, the nature of the offense, the use of

a knife in perpetrating the rape, the lack of inducement or en-

ticement by the victim, the psychological evaluation, and the

fact that the tria! judge had the opportunity to observe the

defendant during the trial and form an opinion as to his con-

duct, support the conclusion that there is sufficient reason to

believe that the defendant may pose a danger to others or

to the community, and his motion for release pending the

appeal of his conviction for rape is denied.

David Kessler, Grand Forks, for defendant-appellant.

Thomas B. Jelliff, State’s Atty., Grand Forks, for plaintiff-

appellee.

PAULSON, Judge (on Reassignment).

The defendant, Vernon Ray Olmstead, was charged with the

crime of “Rape in the first degree”, using a knife to threaten

immediate and great bodily harm to ti.. victim, in violation of

§ 12-30-01(1) and (4), and § 12-30-04(2), N.D.C.C. He waived

a jury trial, and was convicted and sentenced to five years’ im-

prisonment. He has appealed and has moved for release pend-

ing the determination of the appeal. His motion, which was

directed to the district court for release pending appeal, was

denied.

The conviction was based upon identification by the victim

of the rape about two weeks after the event. The defense was

— A-20 —

alibi. It is claimed that alibi witnesses who were not available

at the time of trial are now available. Some of the confusion

in an admittedly confused record is caused by the fact that

the defendant hired the attorney who represented him at the

trial; defendant's parents hired another attorney who made,

and then withdrew, a motion for a new trial; and defendant's

wife hired a third attorney, who appears for him in this court.

A motion for a new trial made by the second attorney was

withdrawn by him, over the objection of the third attorney,

when a palygraph examination resulted in a report adverse to

the defendant. The present attorney claims that the polygraph

evidence was unreliable because of a brain injury suffered by

the defendant as a child, resulting in atypical encephalogram

readings and difficulties of comprehension in certain areas

which make the polygraph readings unreliable. The defendant

claims it was error for the court to permit the withdrawal of

the motion for a new trial. The motion for a new trial was

also based on the availability of additional alibi witnesses not

available at the first trial.

[1] In State v. Stevens, 234 N.W.2d 623 (N.D.1975), in syl-

labus paragraphs 2, 3, and 4, we held:

“2. After a defendant has been convicted, the presump-

tion of innocence no longer applies; on the contrary,

there is a strong presumption of guilt. Therefore, a con-

victed defendant is not entitled as of right to release on bail

while the appeal is pending.

“3. As a general rule, a convicted defendant is entitled

to release pending appeal unless is appears that (1) the ap-

peal is frivolous, (2) the appeal is taken for delay, (3) there

is reason to believe the defendant might flee, or (4) the

defendant poses a danger to others or to the community.

“4. The decision whether a convicted defendant should

be released pending appeal is discretionary with the trial

court.”

— A-21 —

In the instant case, the State apparently concedes that the

appeal is not frivolous and is not taken for purposes of delay.

Furthermore, the State does not dispute the conclusion that

suitable conditions of release may be imposed which would

reasonably assure that the defendant will not flee. However,

the State strenuously contends that the defendant should not

be released pending his appeal to this Court because there is

sufficient reason to believe that the defendant poses a danger

to others or to the community.

The district court did not hold a separate hearing on the

defendant’s motion for release pending appeal, and no separate

order denying such motion was entered by the district court.

Instead, the district court simultaneously considered the matter

of sentencing and the matter of release pending appeal, and

entered an order covering both. Such order, entitled “Statement

of Reasons for Sentence of Imprisonment and Denial of Bail”,

reads as follows:

“The undersigned District Judge certifies that the rea-

sons for the sentence of imprisonment imposed and denial

of bail in the event of an appeal in the above-entitled ac-

tion are shown in the following initialed Sentencing Fac-

tors:

“ACB 1. The defendant's criminal conduct caused

or threatened serious harm to another person.

“ACB 2. The defendant did not act under strong

provocation.

“ACB 3. There were no substantial grounds which

tended to excuse or justify the defendant’s conduct.

“ACB 4. The victim of the defendant’s: conduct

did not ince or facilitate its commission.

“ACB 5. The defendant’s conduct was the result

of circumstances likely to recur.

— A-22 —

“ACB 6. A current psychologicai evaluation per-

taining to the character, history, and attitudes of the

defendant indicate that he presents a picture of an

individual who is extremely immature and becomes

easily flustered under pressure. He is extremely naive,

immature and inadequate. In addition he is ex-

tremely uncertain about his sexuality and is suspicious

about the motives of others, and that he is likely to

commit a similar crime.

“ACB 7. The defendant is particularly unlikely to

respond affirmatively to probationary treatment.

“ACB 8. The defendant is neither elderly nor in

poor health.

“ACB 9. Confinement is necessary in order to pro-

tect the public from further criminal activity by the

defendant.

“ACB 10. It would unduly depreciate the serious-

ness of the offense to impose a sentence other than

total confinement.

“Dated this 22nd day of January, 1976.

“[{Signed] A. C. BAKKEN

“A. C. Bakken

“Judge of District Court”

It should be mentioned, in explanation of Item 6, that the

psychological evaluation referred to ey all of the state-

ments set forth in Item 6 except the last clause “that he is

likely to commit a similar crime”, which is a conclusory state-

ment by the district judge.

| [2, 3] Olmstead, in support of his motion for release pend-

ing appeal, offered the testimony of himself, his wife, and fellow

workers from the Grand Forks Air Base and from his religious

— A-23 —

activity organizations. Olmstead’s master sergeant testified that

he would like to have Olmstead back in the organization; the

head of a religious mission with which Olmstead had been

active promised to continue to allow the defendant to work

with him in mission work; a lieutenant in the Air Force said

he would have no objection to having C'mstead back in his

command; and a woman Air Force member who had worked

with Olmstead in the same organization for two months said

she would be pleased to have him again in the organization.

The State called no witnesses and engaged in little cross-ex-

amination. However, the district judge, during the trial, also

heard the testimony of the State’s witnesses; reviewed the psy-

chological reports previously submitted; and had the opportunity

to observe Olmstead during the entire course of the trial. Such

information is also properly considered when determining

whether or not the defendant should be released pending ap-

peal. State v. Jensen, Crim.No. 554, 241 N.W.2d 557 (N.D.

1976); Rule 9(b), N.D.R.App.P.; Rule 46(d), N.D.R.Crim.P.

The fact that Olmstead, his wife, and his fellow workers would

not feel threatened by his release, although of value to the

court in determining whether or not release pending appeal

should be granted, is not conclusive that others, including the

victim who testified against him, would not be in danger.

In an analogous situation presented to the United States Dis-

trict Court for the District of Columbia in United States v.

Thompson, 294 F.Supp. 879 (D.D.C.1969), the defendant’s

motion for release pending appeal from a conviction of “armed

rape” was denied, even though the defendant had family ties

in the community and his prior criminal record was “not ex-

ceptional”. The federal district court concluded that the pres-

ent offense (armed rape) and the methods of its commission

indicated a violent disposition which resulted in a danger to

the complaining witness and to the public generally. The court

noted that there were no restrictions which would guarantee

— A-24 —

that the defendant would not pose a danger to the community

if released pending the disposition of his appeal.

[4] In the instant case, we believe that the district court,

based upon the record before it, was acting within its discre-

tion in denying Olmstead’s motion for release pending appeal.

A similar petition made to this Court will be granted only in

case of an abuse of discretion. State v. Stevens, supra; State v.

Schuler, 236 N.W.2d 631 (N.D. 1975).

[S$] Although we would prefer that the district court sepa-

rately state its reasons for granting or denying a motion for

release pending appeal,’ and include therein a clear statement

of the factual basis for its action, we believe that the “State-

ment of Reasons for Sentence of Imprisonment and Denial of

Bail” filed by the trial judge in the instant case shows that he

considered all of the information placed before him and, in the

exercise of sound discretion, denied Olmstead’s motion.

[6] In particular, we conclude that the nature of the crime,

the violent method of its perpetration [which included the use

of a knife], the lack of inducement or enticement by the vic-

tim, and the psychological evaluation showing that the defend-

ant was an individual apparently unable to cope with his sexu-

ality and that such pressures could result in the repetition of a

similar episode, are important factors supporting denial of Olm-

stead’s motion. Furthermore, as we said in State v. Jensen,

Crim.No.554, 241 N.W.2d 557 (N.D.1976):

“We also take into account the fact that the trial judge

had the opportunity . . . to observe the defendant and

form an opinion as to his conduct.”

We conclude that the record, when taken as a whole, estab-

lishes that there is “sufficient reason” to believe that the de-

' Rule 9(b), N.D.R.App.P.; Rule 46(d), N.R.D.Crim.P.; See

United States v. Manarite, 430 F.2d 656 (2d Cir. 1970).

— A-25 —

fendant, if released, would pose a danger to others or to the

community.

The defendant's motion for release pending disposition of his

appeal is therefore denied.

ERICKSTAD, C. J., and PEDERSON and SAND, JJ., con-

cur.

VOGEL, Justice (dissenting).

I dissent.

I believe the majority opinion goes too far in taking for granted

the guilt of the defendant. We said in State v. Stevens, 234 N.W.

2d 623 (N.D.1975), that there is a strong presumption of guilt

after conviction and pending appeal. But it is still a presumption

and not a certainty.

I agree with the statement of Chief Judge Bazelon, of the

_ District of Columbia Court of Appeals, dissenting in United

States v. Stanley, 469 F.2d 576, 591 (1972):

“Certainly the act for which a person seeking release

stands convicted is relevant in assessing whether the com-

munity’s safety would be imperiled by release. Here, how-

ever, the substantial issues Stanley raises on appeal di-

rectly concern whether or not he committed the offense

for which he was convicted. In such cases, unlike appeals

where the fact of the offense is unchallenged, the inference

to be drawn from the guilty verdict is more questionable.

And, in Stanley’s case, the inference is further attenuated

by the almost total absence of prior criminal! activity. His

only other involvement with the law was a disorderly con-

duct charge in 1965 which resulted in a ten dollar fine.” |

— A-26 —

In the case before us there is not even a disorderly conduct

conviction or a ten-dollar fine. There is a total absence of a

criminal record. Olmstead has never even had a traffic ticket.

I believe we have more reason to question the strength of the

presumption of guilt where the conviction is based almost en-

tirely upon an eyewitness identification made two weeks after

the event. Many scholars and psychologists have commented

on the high risk of error involved in eyewitness identification.'

The risk rises with the delay.

It may be that upon a new trial, if granted, the effect of

additional alibi witnesses will negative the identification testi-

mony of the victim.

I think we should also realize, in connection with the iden-

tification of the defendant, a young man with a narrow face

and a moustache, that the Air Force has regulations as to hair

styles and moustaches, and that every Air Force base has hun-

dreds of young men with narrow faces and similar hair styles

and moustaches.

I believe that Olmstead could be released pending the ap-

peal with little or no risk of danger to the community. There

is no testimony, expert or otherwise, indicating that he repre-

sents a significant risk to the public. I would hold, as the Fed-

eral courts do (see n. 17, United States v. Stanley, supra, ma-

jority opinion, at 581), that the trial court must consider and,

if feasible, utilize imposition of conditions of release which

might reduce flight and danger to acceptable levels. In this

case the United States Air Force could, and I believe would,

give assurance that Olmstead would not leave the State while

* “Some of the most tragic miscarriages of justice have been due

to testimonial errors in this field.” Wigmore’s Principles of Judicial

Proof (2d ed. rev.; Boston: Little, Brown, and Company, 1931), p.

428. Wigmore gives many illustrations in § 209.

— A-27 —

his appeal is pending, and his associates in his church could,

and would, agree to supervise his off-duty activities. If such

condition were imposed upon his release, I think the danger to

the public would be so slight as to be almost nonexistent. Even

without such conditions, I believe the risk would be minimal.

We said in State v. Stevens, supra, at 625:

“It is impossible to lay down specific guidelines for

release of persons who have been convicted of crimes and

sentenced to imprisonment who choose to appeal the con-

victions. The facts of each crime differ and the nature of

each defendant differs, and consequently the decision must

be made in each case on its own facts.”

In this case the defendant made an impressive showing that

there would be no danger to the public upon his release, and

the State took an almost passive attitude at the hearing, offer-

ing no evidence. If release is denied pending appeal in this

case, I have difficulty conceiving of a case involving conviction

of a serious crime where release will ever be allowed.

I would grant the motion for release pending appeal, sub-

ject to restrictions such as I have suggested above.

—s

STATE of North Dakota, Plaintiff and Appellee,

v.

Vernon Ray OLMSTEAD, Defendant and Appellant

Cr. No. 553

Supreme Court of North Dakota

Nov. 19, 1976

(246 N.W. 2d 888)

Defendant was convicted in the District Court, Grand Forks

County, A. C. Bakken, J., of rape, and he appealed. The Su-

preme Court, Vogel, J., held that despite disturbing conflicts

in the testimony, there was competent and substantial evidence

to support the conviction; however, under the circumstances

of the case, the trial court abused discretion in refusing to

allow the reinstatement of deferdant’s motion for a new trial.

Remanded for further proceedings.

1. Criminal Law Key 1159.2(1)

Reluctance of appellate courts to reverse factual findings of

juries or trial judges reflects recognition that truth can better

be determined in confrontation of testimony of witnesses ap-

pearing in person than from transcript of testimony of those

witnesses.

2. Criminal Law Key 260.11(3)

In rape prosecution which was tried to the court, deter-

mination of defendant's guilt or innocence was a question for

the trial judge.

— A-29 —

3. Rape Key 51(1)

Although conflict in evidence was disturbing, there was com-

petent and substantial evidence to support trial judge’s deter-

mination that defendant was guilty of rape.

4. Rape Key 54(1)

Uncorroborated testimony of rape victim is sufficient to estab-

lish any or all elements of rape.

5. Criminal Law Key 948

Under peculiar circumstances of case, trial court abused

discretion in refusing to permit reinstatement of defendant’s mo-

tion for new trial on rape charge where, inter alia, defendant had

retained new counsel, who promptly moved to reinstate the mo-

tion, on the same day that trial court allowed defendant's then

counsel to withdraw new trial motion he had filed and where

defendant was confused about proceedings relating to motions

and there was evidence that polygraph examination of defendant,

the adverse results of which had apparently led defendant’s then

counsel to withdraw the new trial motion, was unreliable.

Syllabus by the Court

1. Competent and substantial evidence, although contro-

verted, is sufficient to support a conviction upon trial by a court.

2. Uncorroborated testimony of a rape victim as to identifica-

tion of a rapist is sufficient to support a conviction.

3, Truth can better be determined in the confrontation of the

testimony of witnesses appearing in person that from a tran-

script of the testimony.

4. Under the peculiar facts of the case, it was error to deny a

motion to reinstate a motion for new trial.

— A-30 —

Thomas B. Jeliff, State’s Atty., Grand Forks, for plaintiff and

appellee State of North Dakota.

David Kessler, Grand Forks, for defendant and appellant.

VOGEL, Justice.

This case presented the trial judge with a direct conflict be-

tween the uncorroborated identification of the defendant as her

assailant by a rape victim, and an alibi defense supported by five

witnesses. The trial judge believed the victim and found the de-

fendant guilty, in a trial without a jury. The defendant appealed,

asserting that the evidence as a matter of law was insufficient to

sustain the conviction. We affirm the conviction, but find error

in the court’s refusal to permit the reinstatement of a withdrawn

motion for new trial, and we remand for consideration of that

motion.

An earlier appeal, on a motion to release pending this appeal,

is reported at 242 N.W.2d 644 (N.D.1976).

The rape victim testified that she was raped in a vacant lot by

a young man then unknown to her, on June 27, 1975. She was

with him for half an hour, conversed with him, and saw, by the

light of the moon, his face, the knife he used to threaten her, and

the color of his clothes and boots. About two weeks later, while

in a restaurant within a few blocks of the place where the rape

occurred, she saw the defendant working in the kitchen and

identified him as the rapist. At the trial, her testimony was the

only evidence identifying the defendant. A police drawing based

upon her description before she identified the defendant shows

some similarity to him. A search of the apartment of the defend-

ant and his wife uncovered a steak knife similar to the one de-

scribed by the victim, but no clothing closely matching her de-

scription of what the rapist wore.

The defendant's alibi defense was supported by his wife and

by five persons who testified that they had attended a movie and

—- A-31 —

prayer meeting at the Grand Forks Mission with the defendant

and his wife the evening of June 27. The meeting lasted until

after midnight. All five testified that the defendant and his wife

planned to go to a local carnival to hand out religious tracts,

and two of the five testified that they accompanied the defendant

and his wife to the carnival and that the four “witnessed” there

until after 1 a. m. The rape was positively shown to have oc-

curred between midnight and 1 a.m. When the trial judge an-

nounced his decision, he pointed out certain inconsistencies be-

tween the testimony of the alibi witnesses, such as a difference

in their testimony as to the gate they used to enter the carnival

grounds. He deduced that the alibi witnesses were mistaken in

their' reconstruction of events. (Since the first complaint came

about two weeks after the rape, the witnesses had to reconstruct

their movements over a period of days or weeks in order to

determine what they had been doing on the evening of June 27.)

On the other hand, there were inconsistencies and incongruities

in the prosecution’s case. For example, the victim testified that

the rapist first demanded money from her. Both of the Olm-

steads worked, they had no children, and they asserted they were

in no particular need of money. She also indicated that the

rapist probably was the driver of a yellow Volkswagen which

had followed her at a slow speed as she walked along the side-

walk a short time before the rape. The Olmsteads’ car was a

green Dodge station wagon. The rapist also told the victim that

he was wanted by the police. Olmstead had no criminal record

prior to the present conviction.

On the question of credibility of witnesses, reading a cold

transcript is no substitute for hearing and observing witnesses as

they testify. Tones of voice, hesitations, confusion, surprise, and

other telltale indications of mental state convey to trial judges

and jurors much that is lost to appellate judges. If we were to

judge from the cold print, we might decide many cases differently

than trial judges do, and this case might be one of them. But,

— A-32 —

if we decided differently, we would have no assurance that ours

was the better decision. We are reluctant to reverse factual find-

ings of juries or trial judges. Appellate courts have stated in

many ways, in both civil and criminal cases, their determination

to give respect to the findings of trial judges and juries. Some-

time they say they will not reverse if there is substantial evidence

to support the verdict [Kresel v. Giese, 231 N.W.2d 780, 791

(N.D. 1975)]; sometimes they say they will not substitute their

judgment for that of the trial court or jury [State v. Champagne,

198 N.W.2d 218, 226 (N.D.1972)]; sometimes they speak of

viewing the evidence in the light most favorable to the judgment

[State v. Neset, 216 N.W.2d 285, 290 (N.D. 1974)]; and some-

times they speak of their great reliance on the findings of the

lower court [/n re Estate of Elmer, 210 N.W.2d 815, 819 (N.D.

1973)].

In criminal cases we have repeatedly held that “at the appellate

level we do not substitute our judgment for that of the jury or

trial court where the evidence is conflicting, if one of the conflict-

ing inferences reasonably tends to prove guilt and fairly war-

rants a conviction.” State v. Kaloustian, 212 N.W.2d 843, 845

(N.D.1973), and cases cited therein; State v. Neset, 216 N.W.2d

285, 287 (N.D.1974).

[1] However stated, these rules indicate a recognition that the

truth can better be determined in the confrontation of the testi-

mony of witnesses appearing in person than from a transcript of

the testimony of those witnesses.

[2, 3] Whichever formulation of the rules is followed, we con-

clude that the determination of the guilt of the defendant in this

case was a question for the trial judge and that theré was com-

petent and substantial evidence to support it, and, although we

are disturbed by the conflict in the evidence, we cannot say that

we are left with a definite and firm conviction that a mistake has

been committed. Scheid v. Scheid, 239 N.W.2d 833 (N.D.

—_~

1976) ; Schwartzenberger v. Hunt Trust Estave, 244 N.W.2d 711

(N.D.1976); Square Butte Elec. Coop. v. Hilken, 244 N.W.2d

519 (N.D.1976).

[4] We have held that the uncorroborated testimony of a rape

victim is sufficient to establish any or all elements of the crime

of rape. State v. Klein, 200 N.W.2d 288 (N.D.1972).

[5] The defendant makes the alternative request that we find

that the trial court abused its discretion in refusing to permit the

reinstatement of a motion for new trial. Under the very peculiar

conditions that existed in this case, we agree and remand the case

for consideration of the motion for new trial.

At the trial, the defendant was represented by attorney Evan

Heustis. After the trial, the defendant’s parents retained attorney

John Moosbrugger to represent him in the making of a motion

for new trial and in appealing. Moosbrugger made a motion for

new trial which referred to additional alibi witnesses who could

then be produced, and also requested a polygraph examination.

Apparently he and the State’s Attorney stipulated that the results

would be admitted into evidence and the polygraph operator

would be produced for examination and cross-examination. After

the polygraph tests had been taken, Mr. Moosbrugger moved to

withdraw the motion for new trial, apparently for the reason

that the defendant was reported by the polygraph operator to

have lied. At the moment the court was hearing Mr. Moosbrug-

ger’s motion to withdraw the motion for new trial, another at-

torney, David Kessler, retained by the defendant’s wife, was

present in the courtroom requesting that the motion not be with-

drawn. The court nevertheless granted the motion to withdraw,

with the apparent consent of the defendant, who evinced little

understanding of the proceedings. Later the same day, the de-

fendant agreed to be represented by Mr. Kessler, who promptly

moved to reinstate the motion for new trial. The motion was

denied.

— tn

A further peculiarity of the proceedings is that the defendant,

who had been in the county jail for some time after the convic-

tion, asserted that he had not been allowed to see his wife during

that time. Although he stated that he had agreed, until the

previous Saturday, to forbid her to see him (the source of the

suggestion not being stated), he also said that he had written

several letters to her and she had received none.

At the hearing on his motion to reinstate the motion for new

trial, Mr. Kessler asserted that he had available expert testimony

to show that the polygraph examination of the defendant would

be unreliable because of dyslexia, dysgraphia, and dyscalculia

due to a serious head injury during childhood.

We believe that the court should not have allowed the with-

drawal of the motion for new trial, or, if withdrawn, should have

allowed reinstatement when prompt motion for reinstatement was

made. The motion to withdraw the motion for new trial was

apparently based upon a hearsay report of a polygraph examina-

tion, but the motion related to more than the polygraph examina-

tion—it also asked for a new trial on other grounds. There was

evidence available to the effect that a polygraph examination of

the defendant was unreliable. The defendant was confused, and

his wife, who had not been allowed to see him, was asking that

the motion not be granted. Finally, this is a case where identifi-

cation by a single eyewitness is involved, and eyewitness identifi-

cation has been proved many times to be subject to error.

We reverse the order denying leave to reinstate the motion

for new trial, and remand for hearing on the same motion for

new trial made by Mr. Moosbrugger, subject to the same stipula-

tions made by him and the State’s Attorney. The trial court may,

of course, in its discretion, allow amendments to the motion or

permit other motions to be made.

Remanded for further proceedings consistent with this opinion.

ERICKSTAD, C. J., and PEDERSON, PAULSON and

SAND, JJ., concur.

— A-35 —

TRANSCRIPT OF TRIAL—JUDGE’S VERDICT—

pp. 376-384

[*376] The Court: In a criminal case such as this whether it’s

tried to a jury or by the Judge after waiver of jury, the same

rules of law apply. In a criminal case the State must prove the

charge against the defendant beyond a reasonable doubt and

this is a doubt based upon reason arising from a thorough or im-

partial consideration of all of the evidence in the case. While

the jury or the Court cannot convict the defendant on mere sur-

mise or conjecture, neither should the jury or the Court go out-

side of the evidence to imagine doubts to justify acquittal.

[377] If after a careful deliberation the jury or the Court is

convinced to a moral certainty that the defendant is guilty of the

crime charged, then the jury or the Court is satisfied beyond a

reasonable doubt.

The distinction must be made here between what the require-

ments of a reasonable doubt from what is sometimes asserted

to be beyond all doubt. If the rule required a finding beyond all

doubt, of course, there would be no point in trying any criminal

case unless we had police officers on the scene or newspapermen

with TV cameras and every part of the crime was recorded and

I suppose even then there would undoubtedly be claims that you

didn’t have proof beyond all doubt. That’s not the test. The

test is beyond a reasonable doubt. Beyond that there are certain

essential elements of the offense with respect to rape in the first

degree. The burden resting upon the State is satisfied only if

the evidence shows beyond a reasonable doubt that the following

is essential elements of the offense charged.

One, in applying to this case—No. 1, that the defendant,

Vernon Ray Olmstead, had sexual intercourse with the female

* Numbers appearing in brackets in text indicate page numbers

of original stenographic transcript of testimony.

— A-36 —

victim, namely, Theresa Jenkins, on or about the 28th day of

June, 1975, in Grand Forks, North Dakota.

Two, that she at the time of the act of sexual intercourse was

not the wife of the defendant and she resisted the said act but

her resistance was overcome by force or violence.

[378] And three, that the defendant was 20 years of age on or

at the time of the commission of the offense.

The jury or Court is also charged to follow specific legal re-

quirements in weighing the evidence. The crime of rape charged

in the information is a serious one from the nature of the case.

The woman and the accused are usually the only witnesses for

these reasons it’s the duty of the jury or the Court to weigh the

testimony carefully; to criticize all of the circumstances in light

of reason and common sense and then determine with deliberate

judgment what is the right of the matter on influence by the

nature of the charge made against the defendant. The fact that

the charge is one of difficulty to disprove should not deter the

jury or the Court from returning a verdict of guilt. If the jury

or the judge is convinced that the evidence beyond a reasonable

doubt is convinced by the evidence by reasonable doubt the de-

fendant is guilty as charged. A fact in dispute may be proved

either by direct evidence or circumstantial evidence or both.

Direct evidence such as the credible testimony of an eye wit-

ness is this sort which directly proves a fact in dispute without

the aid of an inference and which in itself, if true, establishes the

fact.

Circumstantial evidence consists of fact and circumstances in

the case from which the judge or the jury may reasonably infer

the existence of a fact in dispute.

[379] An instruction which certainly has great importance in

this case relates to weight and credibility of testimony given by

itnesses.

The jury or the Judge in this case is the judge of all questions

of fact. The jury or the Judge alone must weigh the evidence

—_s

under these instructions and determine the credibility of those

who have testified. And in performing this task the jury or the

Judge may consider those facts and circumstances in the case

which tend to strengthen, weaken or contradict one’s testimony.

The jury or the Judge may consider the age, intelligence and

experience of the witness, the strength or weakness of his recol-

lection, how he came to know the facts to which he testified, his

possible interest in the outcome of the trial, any bias or prejudice

he may have, his manner and appearance, and whether he was

frank or evasive while testifying, and whether his testimony is

reasonable or unreasonable.

If it’s found that there is a conflict in the evidence, the Judge

or the jury should reconcile it, if it’s possible, because each wit-

ness is presumed to have told the truth. If this cannot be done,

the jury or the Judge has the right to determine whom of the

witnesses he will believe in whole or in part. And I believe this

should be emphasized, that the jury or the Judge should give

credible testimony its just and fair weight and should consider

the evidence in the case in the light of his common sense and

ordinary experience and observation [380] of human affairs.

If the Jury or the Judge concludes that a witness has knowingly

testified falsely concerning any material matter, he has the right

to distrust such witness’s testimony in other particulars and

may reject all the testimony of that witness and give it such

weight and credibility as he thinks it deserves.

The test is not which side produces the greater number of

witnesses or presents the greater quantity of evidence, but rather

which testimony and what evidence convinces the jury or the

Judge as being more accurate and otherwise trustworthy.

What I have read is a summary of the basis rules of law which

apply in a criminal case such as this. The facts that the com-

plainant, Theresa Jenkins, had a phone conversation with her

husband which ended June 27, 1975, at approximately 11:50

p.m. She returned to the Belmont Lounge after going to 1116-

—_*

26th Avenue South and after the crime had been committed

arriving at the Belmont Lounge at approximately 1:00 a.m., June

28, 1975, and shortly thereafter she was taken to the United

Hospital and it was confirmed that she had been raped. This

confirmation having been introduced in evidence by an exhibit

by the State, and the time she was there was approximately

1:30 a.m. and for some time thereafter the complaining witness,

Thereas Jenkins, testified as to a positive identification of the

defendant. She testified that this was under conditions of moon

[381] light, that a full moon had occurred four or five days

prior to June 28, 1975, and that identification of the defendant

was followed up by a composite drawing which was made by

the police department upon information provided by the com-

plainant. This was received as State’s Exhibit No. 4 and prior

to that or in connection with the investigation another composite

drawing had been made based on information furnished by the

complainant and used in connection with investigation and also

with the search warrant and warrant of arrest papers and a

reasonable interpretation of these composite drawings must be

that they are very similar to the very distinct characteristics of

the defendant.

In addition to the composite drawing, the defendant, or rather

the complainant testified as to a positive identification of the

defendant at the Cape Codder Restaurant when she went there

approximately two weeks later. She also testified accurately

as to the description of a knife which was introduced in evidence

as to.the length of the knife, the wooden handle, the grooves for

the fingers, and also as to the point at the end of the knife being

broken off. She also testified as to boots the defendant was

wearing. There was one matter as to the color of the clothes

that did not correspond to these boots being black. However,

in regard to the boots, she testified that she saw the top of them

when the defendant had or the assailant had dropped his drawers

and she could not see all [382] of the boots but saw the tops

of them and also that the boots had zig zag cleats on the bottom.

— A-39 —

She went back the next morning and observed the scene and

observed the zig zag foot prints in the ground at the scene.

The police officers interviewed the complaining witness on at

least two occasions and found no inconsistencies in her state-

ment.

In regard to the defense’s testimony, the chief witness for the

defense was the defendant’s wife Lana Olmstead. She testified

as to having reconstructed events during the month of June,

1975. She gave different versions to the Grand Forks Police

Department of the defendant’s activities during the night ot

June 27th and the morning of June 28th. These covered such

things as hunting night crawlers, to being at the Country Kitchen,

to a trip to Winnipeg.

The defense was finally centered on the testimony that the

defendant and his wife went to the Mission coffee house at

approximately 10:00 p.m. on June 27th, 1975, that they were

there until approximately 12:15 a.m. on June 28, 1975, when

they, in agreement with others at the Mission coffee house, de-

cided to go out to the carnival on the Grand Fork Fairgrounds

and witness for the Lord. That she and the defendant returned

to their apartment between 1:45 and 2:00 a.m. on June 28, 1975,

that immediately thereafter returning, the defendant left the

apartment and was gone approximately fifteen minutes.

[383] The other witnesses for the defendant corroborated that

he was at the Mission coffee house during the evening of June

27, 1975. There were inconsistencies in the testimony relating

to time of day in spite of unusual specific checking of wrist

watches. There were also inconsistencies to the parking of the

vehicles at the fairgrounds. The testimony shows that the

group involved in the Mission coffee house has been in close

association and contact for several months. That they visited

in the home of the defendant and his wife and as I read before

from the rules of law, the Court must follow these facts and this

must be considered when one looks to any possible interest in

the outcome of the trial.

—_y

The Court, if there is a conflict in the evidence, which is ob-

vious, it must be reconciled if possible because each witness is

presumed to have told the truth. If it cannot be reconciled, the

Judge has the right to determine whom he will believe in whole

or in part.

The Court is of this opinion that this evidence can be recon-

ciled in part. It can be reconciled by accepting the testimony

of the defendant’s wife and corroborating witnesses as to the

defendant being at the coffee house on the night of June 27,

1975. It cannot be reconciled as to the time factor. It’s the

Court’s opinion that testimony as to going out to the carnival

to witness for the Lord after 12:15 a.m. is incredible and de-

fines cormmon sense beyond good judgment. Carrying that

[384] a step further if there was any witnessing done for the

Lord out at the carnival setting that evening, the only recon-

ciliation that is reasonable is that such time for the defendant

and his wife to return to their apartment. The defendant's wife

testified he left the apartment and the witness Sissy Williams, I

believe, testified that he came to her apartment and knocked on

the door about 1:30 that morning of June 28th and that he

stayed there a half an hour and the Court asked her specifically

what was the urgency of his visit. She said to tell her to pray

for some homosexual and for someone who was deadly ill from

cancer and this witness Williams had met this woman only very

briefly on one occasion.

It appears to the Court that this was an attempt on the part

of the defendant to establish an alibi and to account for his

time.

Based upon the findings of the Court upon all the evidence

presented, it is the finding of the Court in the above-entitled

action, State of North Dakota vs. Vernon Ray Olmstead, that

the defendant is guilty of the crime of first degree rape as charged

in the criminal Information.