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Failure To Render Aid
Streeper had no duty to render aid, attorney says
Nov 13, 2006 - 19:05:53 CST
By JENNY MICHAEL/Bismarck Tribune
The
attorney for a Bismarck man convicted in
March of manslaughter argued Monday that a jury should not have heard
evidence regarding his client’s failure to come to the aid of a
16-year-old Mandan girl who died of a
drug overdose.
But BurleighCountyAssistantState’s Attorney Cynthia Feland said Mark Streeper’s
failure to render aid to Ashley Berge was part of the “reckless conduct”
that caused the Mandan girl’s death in 2004.
Kent Morrow is Streeper’s appointed defense attorney. Streeper, 28, was
convicted by a 12-member jury on March 2 of manslaughter and two counts
of delivery of alcohol to a minor for recklessly causing the November
2004 death of Berge.
South Central District Court Judge Bruce Haskell sentenced Streeper on
May 5 to the maximum sentence allowed by law for the charges: 10 years
in prison for manslaughter and one year for each of the counts of
delivery of alcohol to a minor, with the three terms served
consecutively.
The sentences also will be served consecutively to a two-year sentence
Streeper is presently serving for probation violations.
The case was appealed to the North Dakota Supreme Court on May 24 and
the court heard arguments Monday.
Berge attended a gathering at Streeper’s residence on Nov. 28, 2004.
Witnesses saw Streeper crush up pills, combine them with water and
inject them into Berge’s arm. Streeper’s mother called 911 around 12:15
p.m. when she and Streeper could not wake Berge. Emergency responders
ruled that she was dead when they arrived.
After an autopsy and toxicological examination, the state medical
examiner ruled Berge died of a mixed drug intoxication. The drugs in her
system were methadone, alprazolam and oxycodone.
Morrow said the court should not have allowed the prosecutors to argue
that Streeper could be found guilty of manslaughter for failing to
assist Berge when he should have known she was in medical distress.
“He had no duty to render aid in that situation,” Morrow told justices.
The justices questioned whether Streeper had a duty to render aid to
Berge since he had caused her medical situation.
“In this particular case ... there is no general, overriding law”
forcing someone to render aid, Morrow said.
Justice Mary Maring said Streeper’s failure to get help when Berge
appeared in distress appeared to be part of the “continuum of the
recklessness” by Streeper on the night of Berge’s death.
“It isn’t like a separate act,” she said. “It was his indifference from
the very beginning.”
Morrow said Haskell had ruled that Streeper had no duty to render aid
but still allowed evidence about his failure to come to Berge’s
assistance.
“I think it’s difficult for the jury to set that aside,” he said.
Feland said she did not take issue with the court ruling that Streeper
had no duty to render aid. However, the fact that Streeper did not help
Berge was further evidence of his recklessness, she said.
“After creating this situation, he sat back and didn’t do anything,”
Feland said.
Morrow argued that the prosecution should not have been allowed to show
the jury photographs Streeper took of Berge lying on his bed early on
the morning she died. He said the photographs forced Streeper to testify
in order to justify his actions, thus violating his Fifth Amendment
right to not testify against himself.
Justice Dale Sandstrom disputed Morrow’s statement that the use of the
photographs forced Streeper to testify.
“Introducing that evidence doesn’t violate your client’s right to remain
silent,” he said.
Sandstrom also pointed out that Streeper had originally told law
enforcement that he fell asleep at 4 a.m., but the photographs were
taken after 4 a.m.
“And that isn’t relevant to the state’s case?” Sandstrom asked. “Whether
he testifies or not, it’s relevant isn’t it?”
Feland said the photographs showed Berge in a position that was
virtually identical to when law enforcement arrived about eight hours
later.
Morrow also said the prosecution did not have enough evidence to prove
that Streeper’s actions caused Berge’s death. Oxycodone was the only
drug found in Berge’s system that was at higher level than would be used
for medical purposes, and the state did not prove that Streeper had
access to oxycodone.
“Because of that, there was no evidence of how the oxycodone got in her
system,” Morrow said.
Maring protested that a brief filed to the Supreme Court said a
detective testified during the trial to sending a spoon found in
Streeper’s residence to the state crime lab. The detective said the lab
found oxycodone on the spoon, Maring said.
Justice Carol Kapsner also pointed out that Streeper had testified
during the trial that he crushed up four oxycodone pills and put them in
a syringe.
Morrow said Streeper only told of the oxycodone when pressed by
prosecutors. The state did not have enough circumstantial evidence to
prove Streeper injected Berge with oxycodone, Morrow said.
Maring said a pharmacist also testified that oxycodone entered Berge’s
system through an injection rather than orally.
“That’s pretty powerful evidence of how the oxycodone got in her
system,” Maring said.
Feland said the cause of Berge’s death was not an overdose of oxycodone,
but a mixed drug intoxication involving methadone, alprazolam, oxycodone
and alcohol.
“All of those would have contributed to death,” she said.
She said DNA found on a syringe could not be ruled out as belonging to
Berge. Empty bottles of oxycodone also were found in a search of
Streeper’s home, Feland said.
“Based on that, the jury could see the causal links,” she said.
The Supreme Court took the case under advisement Monday and will issue a
decision later.
The North Dakota Supreme Court has unanimously upheld
a Bismarck
man's manslaughter conviction in the death of a Mandan girl.
Mark Streeper, 28, was convicted by a 12-member jury on March 2, 2006,
of manslaughter and two counts of delivery of alcohol to a minor for
recklessly causing the November 2004 death of Ashley Berge, 16.
South Central District Court Judge Bruce Haskell sentenced Streeper on
May 5 to the maximum sentence allowed by law for the charges: 10 years
in prison for manslaughter and one year for each of the counts of
delivery of alcohol to a minor, with the three terms served
consecutively. The sentences also will be served consecutively to a
two-year sentence Streeper is currently serving for probation
violations.
The case was appealed to the North Dakota Supreme Court on May 24 and
the court heard arguments Nov. 13. The high court released an opinion
Wednesday upholding Streeper's convictions.
Berge attended a gathering at Streeper's residence on Nov. 28, 2004.
Witnesses saw Streeper crush up pills, combine them with water and
inject them into Berge's arm. Streeper's mother called 911 around 12:15
p.m. when she and Streeper could not wake Berge. Emergency responders
ruled that she was dead when they arrived.
After an autopsy and toxicological examination, the state medical
examiner ruled Berge died of a mixed drug intoxication. The drugs in her
system were methadone, alprazolam and oxycodone.
Streeper's appointed defense attorney, Kent Morrow, argued at the
November appeal that the jury should not have heard evidence regarding
Streeper's failure to come to Berge's aid. But
BurleighCountyAssistantState's Attorney Cynthia
Feland argued that Streeper's failure to render aid was a continuation
of the conduct that caused the girl's death.
Justice Dale Sandstrom wrote the high court's opinion, which said
Streeper's contention that there is no legal duty to render aid under
North Dakota law was "an imprecise statement of law" in
regard to the case. The jury heard testimony about Streeper once coming
to the aid of a friend who had overdosed on drugs.
"A jury could have reasonably concluded that he was familiar with
overdose symptoms and was awake when (Berge) was in a medical crisis,"
Sandstrom wrote.
Morrow also argued at the appeal hearing that the prosecution should not
have been allowed to show the jury photographs Streeper took of Berge
lying on his bed early on the morning she died. He said the photographs
forced Streeper to testify in order to justify his actions, thus
violating his Fifth Amendment right to not testify against himself.
The argument was faulty, justices decided.
"Following his logic, every criminal defendant would be 'forced' to
testify, because the state must produce evidence obviously adverse to
the defendant to prove every element of the offense beyond a reasonable
doubt,"Sandstrom wrote.
The photographs also backed up the prosecution's theory that Streeper
was awake and aware that Berge was suffering from an overdose, the
opinion said.
The Supreme Court also ruled that the prosecution had proved links
connecting Streeper to Berge's death, that a detective did not wrongly
testify as an expert witness during trial and that the court properly
instructed jurors of lesser offenses than manslaughter of which they
could have found Streeper guilty.
Morrow and Feland were not available for comment on the Supreme Court's
decision.
(Reach reporter Jenny Michael at 250-8225 or jenny.michael@;bismarcktribune.com.)
