IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Supreme Court No. 2007025, 20070265 & 20080016
Ward County District Court No. 05-K-1897 & 05-K-1898
| State of North Dakota, | ||||
| Plaintiff/Appellee, | ||||
| vs. | ||||
| Laurie Marie Keener and Asa Keener, | ||||
| Defendants/Appellants | ||||
APPELLEE'S BRIEF
Appeal from the Criminal Judgments
Dated August 10, 2007 & Restitution Order
Dated November 27, 2007
Ward County District Court
The Honorable Gary Lee, Presiding
| Rozanna C. Larson |
| Assistant State's Attorney |
| ID #05294 |
| PO Box 5005 |
| Minot ND 58702-5005 |
| (701) 857-6480 |
| Attorney for Appellee |
TABLE OF CONTENTS
| TABLE OF AUTHORITIES | ii | |||||||||
| STATEMENT OF CASE | 1 | |||||||||
| STATEMENT OF FACTS | 6 | |||||||||
| ISSUES | 13 | |||||||||
| ARGUMENT | 14 | |||||||||
| CONCLUSION | 30 | |||||||||
TABLE OF AUTHORITIES
| Crawford v. Washington, 541 U.S. 36 (2004) | 24 | |||||||
| Cuyler v. Sullivan, 446 U.S. 335 (1980) | ||||||||
| 18, 19, 20, 21 | ||||||||
| Davis v. Washington, 126, S. Ct. 2266 (2006) | 24 | |||||||
| Holloway v. Arkansas, 436 U.S. 475 (1978) | 18, 19 | |||||||
| Mickens v. Taylor, 535 U.S. 162 (2002) | ||||||||
| 18, 19, 20, 21 | ||||||||
| Strickland v. Washington,466 U.S. 668 (1984) | 14, 17 | |||||||
| U.S. v. Cronic, 466 U.S. at 662 | 20 | |||||||
| U.S. v. Leon, 468 U.S. 879 | 20 | |||||||
| Wood v. Georgia, 450 U.S. 261, 273 (1981) | 18, 19 | |||||||
| Green v. Whipple, 89 NW2d 881 (ND 1958) | 27 | |||||||
| State v. Bingaman, 2002 ND 210, 655 NW2d 57 | 25 | |||||||
| State v. Blue, 2006 ND 134, 717 NW2d 558 | 24 | |||||||
| State v. Bourbeau, 250 NW2d 259, 266 (ND 1977) | 27 | |||||||
| State v. Dalman, 520 NW2d 860 (ND 1994) | 17 | |||||||
| State v. Dymoski, 459 NW2d 777, 780 (ND 1990) | 27 | |||||||
| State v. Hanson, 366 NW2d 377 (Minn. App.) | 14, 22 | |||||||
| State v. Hersch, 445 NW2d 626, 634 (ND 1989) | 27 | |||||||
| State v. Jensen, 333 NW2d 692 (ND 1983) | 27, 28 | |||||||
| State v. Lange, 497 NW2d 83, 87 (ND 1993) | 28 | |||||||
| State v. Marks, 452 NW2d 298, 302 (ND 1990) | 29 | |||||||
| State v. Noorlun, 705 NW2d 819, 829 (ND 2005) | 28 | |||||||
| State v. Orr, 375 NW2d 141 (ND 1985) | 18 | |||||||
| State v. Ricehill, 415 NW2d 481, 484 (ND 1987) | ||||||||
| 14, 15, 17, 22 | ||||||||
| State v. Rougemont, 340 NW2d (ND 1983) | 17 | |||||||
| State v. Rudolph, 193 NW2d 237, 241 (ND 1971) | 27 | |||||||
| State v. Smuda, 419 NW2d 166, 167-68 (ND 1988) | 27 | |||||||
| State v. Vick, 1998 ND 214, 587 NW2d 567 | 25 | |||||||
| State v. Woinarowicz, 2006 ND 170, 720 NW2d 636 | 24 | |||||||
| Rule 30 N.D.R.App. P | 15 | |||||||
| Rule 7 N.D.R.Crim.P. | 27 | |||||||
| Rule 15 N.D.Crim.P. | 21, 22 | |||||||
| Rule 29 N.D.R.Crim.P. | 4 | |||||||
| Rule 44 N.D. Crim.P | 17 | |||||||
| Rule 804 N.D.R.E. | 22 | |||||||
| N.D.C.C. §12.1-23-01 | 27 | |||||||
| N.D.C.C. §12.1-31-07.1 | 26 | |||||||
| N.D.C.C. 12.1-32-08-33 | 25 | |||||||
Statement of Case
Warrants for the defendants, Asa Keener [hereinafter "Asa"] and Laurie Keener [hereinafter "Laurie"] arrest were issued on September 21, 2005. The warrants were issued pursuant to a Complaint and Affidavit being filed with the Clerk of District Court. (Appellant Asa Keener's [hereinafter "Asa's Appendix"] Appendix p. 7-9). They were charged with Count 1: Criminal Conspiracy - Exploitation of a Vulnerable Adult, a Class B felony, (relating to Florence Whisker, [hereinafter "Florence"]) and Count 2: Criminal Conspiracy - Theft of Property, a Class B felony, (relating to Marvin Whisker [hereinafter "Marvin"]. [When referring to both collectively, hereinafter "The Whiskers"]). The defendants made their initial appearance with retained counsel, Mr. Paul Probst, [herein after "Probst"] on September 25, 2005, before the Honorable Douglas L. Mattson. At that time the defendants were advised of their rights, advised of the charges against them, and the penalties they faced. Discovery materials were given to counsel along with a copy of the complaint and affidavit.
A preliminary hearing was held on October 24, 2005 before Judge Mattson. The defendants twice called Marvin Whisker as a witness at the preliminary hearing. (App. p. 1-20). Probable cause was found by Judge Mattson for Count 1: Criminal Conspiracy - Exploitation of a Vulnerable Adult, at the Class C level, and Count 2: Criminal Conspiracy - Theft of Property, at the Class B felony. An information was filed with the Court.
On November 29, 2005 counsel for the defendants served upon the State a Subpoena for Marvin Whisker. On December 5, 2005 the Subpoena, Notice To Take Deposition, and (Proposed) Order were filed with the Clerk of District Court. The Order was signed by Judge Mattson. (Asa's Appendix p. 13-16). Marvin's deposition was taken on December 12, 2005. The defendants appeared with counsel for a pre-trial conference before Judge Mattson on January 6, 2006. The pretrial was continued because the State had not forwarded a plea offer to the defendants.
On January 10, 2006 the State filed a Notice to Take Deposition to Perpetuate Testimony, Motion to Take Deposition to Perpetuate Testimony, and (Proposed)Order Granting State's Motion to Take Deposition to Perpetuate Testimony. (Asa's Appendix p. 17-20). Judge Robert W. Holte signed the Order Granting State's Motion to Take Deposition to Perpetuate Testimony on January 10, 2006. The deposition of Florence Whisker was taken on January 12, 1006. Both defendants were present, along with Mark Westereng, Florence's guardian. The deposition was recorded by video and court reporter. During the deposition Probst objected to the deposition continuing because not all of Florence Whisker's responses could be understood. Counsel for the State and defendants went into the hallway and contacted Judge Holte by telephone. After conferring with counsel and Mark Westereng, the Court orally ruled the deposition could continue. The Court made a Memo to the File regarding the tele-conference and ruling. (Asa's Appendix p. 21).
The defendants appeared again for pretrial conference on February 3, 2006 before Judge Holte. At that time they advised the court that a trial date should be set and that the defendants should be tried together. (App. p. 22-23). This was the last time the defendants actually appeared in Court before a Judge until January 29, 2007. Notice for jury trial set for May 15, 2006 was sent to the parties. The State corresponded with the Court requesting a continuance of the trial due to being out of State at the time of trial. (ROA 36). This request was granted and the trial was rescheduled for July 10, 2006. Probst, on behalf of the defendants, requested a continuance. The motion was granted. (ROA 53). A new trial date was set for December 11, 2006. On November 11, 2006 Probst requested another continuance. (ROA 63-64). This motion was denied. (ROA 76). Motion to Amend the Information was filed, along with an Amended Information. (ROA 69-70). No response to the Motion to Amend the information was ever made. On December 8, 2006 Probst and counsel for the State met with Judge Holte in chambers and agreed to a continuance. (ROA (between 78-79). Judge Holte, then due to retire at the end of the year, filed a recusal and order for continuance. (ROA 81). Judge Mattson was assigned to the cases, and demand for change of judge was made by the State.(ROA 87). Judge William W. McLees was assigned to the cases and demand for change of judge was made by the Defendants.(ROA 89). Judge Gary H. Judge Lee was assigned to the cases.
On January 29, 2007 Judge Lee held a pretrial conference and arraignments on the amended information and he asked both defendants if they were reasonably satisfied with the work of Probst and they responded "yes". (App. p. 21). Judge Lee also arraigned the defendants on the Amended Information, which in Count 1, charged the defendants with Criminal Conspiracy - Exploitation of a Vulnerable Adult, a class B felony. (App. p. 23-26). Both defendants plead not guilty to the charges on the Amended Information. Neither defendant objected to the Amended Information. The Court was advised that Probst was retained on this matter for both defendants. (App. p. 21). A new trial date was set at that time.
Trial began on May 1, 2007. The State read the Amended information to the jury panel. (App. p. 27-29). Probst objected to the reading of the Amended Information regarding Count 2 (App. p. 30). The court reporter reviewed the record, and the trial court determined the Amended Information was read correctly. There were no further objections to the Amended Information.
The State proceeded to present its case. During trial numerous exhibits were offered. Objections were made on nearly every exhibit. The Court accepted most of the exhibits in their original form, some the Court accepted for limited purposes, or after Probst and the State had reviewed, edited and agreed upon the exhibit. In all cases the Court took and retained custody of all original exhibits, and made specific rulings on which exhibits, after being modified, would go to the jury. (i.e. The video deposition of Florence.) (App. p. 31-36). (It should be noted and correction pointed out in Asa's Brief, edited video version of Florence's deposition was played to the jury. This edited version was made in accordance with Probst and the State meeting pursuant to the Judge's Order and all "objectionable" matters were edited out in accordance to the defendants specifications. (App. 33) It should further be noted the video deposition was edited by a technician of Probst's choosing. The original transcript was not read to the jury, the jury saw/heard the edited video deposition). After the State rested, Probst made motion to dismiss pursuant to Rule 29, N.D.R.Crim.P. on behalf of both defendants. The Court denied the motions. Probst then presented the defendants' case by calling one witness, Laurie. The jury found the defendants both guilty of Counts 1 and 2. A pre-sentence report was ordered.
On August 10, 2007 the defendants were sentenced. At that time both defendants addressed the Court. (App. p. 37-59(Asa), p. 60-62(Laurie)). The Court ordered the parties to submit briefs regarding the issue of restitution. The State was given 15 days to submit its brief, the defendants were given 10 days thereafter. (T. 747). The State filed its restitution brief September 7, 2007. The Court gave the defendants additional time and another restitution hearing because they had obtained new counsel. A second restitution hearing was held on November 27, 2007. The Court issued its order on December 12, 2007. The defendants both filed timely appeals regarding the jury verdicts. Laurie also filed a timely appeal regarding the restitution order.
Statement of Facts
Marvin and Florence are the parents of Laurie. Florence suffered from ill health and was in need of nearly complete care. The Minot Commission on Aging had been called a number of times to check on the condition of Florence. (T. 330-338). The Whiskers have another daughter, Diane VanGrinsven. [hereinafter "Diane"]. Diane and Laurie both discussed the deteriorating condition of Florence. (T. 404). Diane arranged for home health care for her parents. (T. 184, 404-407) Marvin requested Laurie come to North Dakota to assist with the care of Florence.(App. p. 39). Marvin stated that they were to live in the spare room and that he would provide a car and free rent (App. p.39). Laurie and Asa came from Salem, Illinois, to care for her parents in December of 2004. Florence was taken into protective custody by the Minot Commission on Aging in March of 2005. In April of 2005 Mark Westereng became her temporary guardian, appointed by the Court. (T. 376). The defendants stayed in Minot, ND and continued to care for Marvin until he was taken into protective custody in August, 2005.
In August of 2005 Detective Steve Kukowski, [hereinafter Kukowski], was contacted by Niels Anderson, of the Minot Commission on Aging, regarding suspicious activity occurring in Marvin's Wells Fargo Bank account. (T. 463). Marvin was taken into protective custody. (T. 210). Kukowski met with Marvin. Kukowski went over a series of checks and transactions with Marvin (T. 466). These transactions took place from December of 2004 through August of 2005. Kukowski also received a complaint regarding Florence's bank accounts. This report came from Mark Westereng, Florence's guardian. The complaint regarded suspicious transactions which took place from December of 2004 through October 2005. During the investigation, Kukowski learned that Marvin had financial accounts with Prairie Federal Credit Union, Wells Fargo Bank and Northwestern Mutual. He also learned that Florence had financial accounts with Prairie Federal Credit Union and US Bank. Kukowski received copies of the statements regarding all transactions in both the Whiskers' accounts. These copies included copies of checks that had been written on the accounts, as well as Visa Debit card purchases. (App. p. 63-104;See also: Exhibits 1, 2,4,6,7, and 8). Upon review of the checks, Kukowski saw that a number of checks had been written to the defendants. Kukowski contact Matthew Canovi, from Mid-States Organized Crime Information Center, to do an analysis and spreadsheet to determine where the money from the Whisker's accounts had gone. (T. 465) Kukowski also seized Asa's laptop computer, pursuant to a search warrant, and had Tim Erickson, Bureau of Criminal Investigations, conduct a forensic analysis of it. (T. 465). Kukowski learned that Asa had bank accounts with US Bank and Wells Fargo. He received copies of the statements for Asa's accounts. (Exhibits 3, 5). Upon reviewing the financial statements of the Whiskers' accounts Kukowski interviewed a number of local merchants and individuals where checks or Visa Debits had been made; specifically: Nancy Gruenberg testified that she sold a Jaguar car to Laurie for $7,000. (App. p. 92;See also: T. 482-486). She also testified that Laurie had told her that her (Laurie's) mother had always wanted her to have a Jag. Darin Robertson of the Sophisticated Man, a men's clothing store in Minot, ND, testified that he sold the defendants two pair of shoes and a suit. (T. 398-402). There were two Visa Debit charges on Marvin's Wells Fargo account for a total of $807.88. (App. p. 98;See also: Exhibit 2). Stacy Sutter, a local mechanic, testified he did some repairs on the Jaguar vehicle and that both defendants were present. (T. 437-439;See also: Exhibit 20). Asa used the Visa Debit from Marvin's Wells Fargo account and signed the charge slip. (App. p. 78; See also: Exhibit 2 and Exhibit 20). Cheryl Reile, from Dr. Klein's dental office, testified that both defendants had been clients at Dr. Klein's dental office (T. 446-448;See also: Exhibit 22). There is a Visa Debit from Marvin's Wells Fargo account to Dr. Klien's office. (App. p.99;See also: Exhibit 2). Lindsey Lawson testified that Asa had purchased two pairs of glasses from his business, Midwest Vision Center (T. 450-451;See also: Exhibit 23). Jackie Field, from Century Eyewear testified that both defendants were customers and that the defendants ordered a total of six pairs of glasses. (T. 453-458;See also: Exhibit 24). There is a check from Marvin's Wells Fargo account to Century Eyewear. (App. p. 96;See also: Exhibit 2).
While investigating this matter Kukowski also learned that during this time the defendants had been living at the Vegas Motel. Wendy Ruppert, manager of the Vegas Motel, testified that the defendants had rented a room from March 28, 2005 through October 6, 2005. (T. 434-435;See also: Exhibit 18). There are Visa Debit charges to the Vegas Motel made on Marvin's Wells Fargo account. (App. p. 98, 101, 102, 103;See also: Exhibit 2). Kukowksi also learned that the defendants had rented an apartment at the Parker Suites, the same building in which the Whiskers resided. Darwin Langseth, from Signal Management Corporation, testified that the Whiskers had been tenants for a number of years and that the defendants became tenants on July 15, 2005 in apartment 9-B. (T. 441-445;See also: Exhibit 19). There are checks written to Signal Management Company from Marvin's Wells Fargo account for deposit and rental. (App. p. 99;See also: Exhibit 2).
Roger Fryer, Florence's brother, and Jean Geer, of Prairie Rose, both testified to the deteriorating condition of Florence. Both also testified to encounters they had with Asa and his temper. Roger Fryer also testified that he checked on the Whiskers almost daily until the defendants came to Minot, at which time he testified, Asa made it clear to him he was not welcome. (T. 424).
At some point in the investigation, it was learned that Florence had signed a Power of Attorney. Niels Anderson from the Minot Commission on Aging had received reports from employees of Trinity Nursing Home regarding the sequence of the events leading up to Florence signing the document. Employees of the nursing home testified they heard loud voices coming from Florence's room and became concerned about her safety. Both defendants were in the room when Florence's welfare was checked. (See T. of Kari Sandberg 151-157, Mary Voeller 158-163, Cathy Lynch 165-173, and Marion Gullickson 175-182).
Kevin Burckhard was the agent that handled Marvin's Northwestern Mutual account. He testified that both defendants came to his office and advised him that they would be taking care of Laurie's parents financial concerns. Later, Laurie came in with a request to withdraw $25,000 from Marvin's account. Burckhard did not act upon that request. He was subsequently notified by the home office that Marvin's entire account had been liquidated. (T. 122-136).
Marvin was called by the defendants to testify at the preliminary hearing. During that examination Probst showed Marvin a series of checks. Marvin testified that he had not signed those checks. (App. p. 1-20). Marvin in very clear, precise language testified that he did not give Laurie or Asa authority over his financial accounts, and he made it clear that he had learned they had taken his money and he wanted it back. (App. p. 4-5)
The State offered evidence of billings from Trinity Medical Center and Trinity Hospital. These bills showed that there were minimal medical expenses incurred by the Whiskers. The bills also showed payment was made by Medicare and Blue Cross/Blue Shield. (State's Exhibits 14, 15, 16, 17).
Laurie testified at trial that she and Asa came to Minot, North Dakota at the request of her father to care for her mother. She admitted nothing specific that had been decided on with regard to a specific amount or payment of expenses. Laurie testified that the monies she took out of Florence's account was for Florence's care. (T. 593). She further testified that she and Asa kept each and every receipt that exhibited the expenditures made on behalf of Marvin and Florence. The receipts were offered and received into evidence. (T. 595, Exhibit F). Laurie also admitted to signing checks from Marvin's account and placing her initials on the checks. In essence Laurie's testimony was that all the money that come from the Whiskers' accounts were spent for the Whiskers' benefit, with the exception of the Jaguar car that was a belated 21st birthday present. Laurie also admitted to writing the letter to her father. (Exhibit 37). This letter complained about how difficult it was to care for Florence, that her mother was crazy, that they were fed up etc. Laurie also testified that she did not type much and that she was not real good with the computer. (T. 601). Laurie testified that Asa used a Visa Debit card, rather than checks, to pay for his purchases. (T. 617). She also stated that the agreement was that her parents would pay their expenses, including the expenses for their home in Salem, IL, and that they paid those. (T. 613). Laurie testified that they lived with her parents until March of 2005. (T. 615). Laurie also admitted that the checks that were written to either her or Asa were deposited into Asa's account so that they "had a record of every transactions."(T. 625). Laurie testified that she was not present at Marvin's deposition, however she did see him on that day as he walked in and out of the office. (T. 603).
At trial, in essence, the entire defense for both defendants was that the money was not stolen from the Whiskers; that Marvin had told them he would pay their expenses for taking care of Florence and himself; that all the money spent from the Whiskers accounts was at the authority of Marvin, or for the benefit of the Whiskers or to pay their (the defendants') expenses.
State's Exhibits 2,3, 4,5,6,7 and Defendants' Exhibit F were received into evidence for the jury to review. The jury was able to see each and every transaction out of the Whiskers' accounts and Asa's accounts. The jury saw when the Visa Debit cards were applied for in both Marvin and Florence's accounts. (Exhibit 47, 48). The jury saw where each and every Visa Debit purchase was made on the Whiskers' accounts and Asa's account. They were able to review each receipt proffered by the defendants in support of their assertion that all the money was spent on behalf of, or for the benefit of, the Whiskers. A review of the Defendant's Exhibit F showed that Asa signed many of the Visa Debit purchases. Based on the verdict the jury did not believe the defendants' assertion that all the money was spent on behalf of the Whiskers or for necessary expenses.
At sentencing, both defendants were given an opportunity to speak on their own behalf. The Court, over objection, allowed Asa to "testify" without the danger of cross examination. In his statement Asa stated "They have always told us they would pay for any of our expenses here to help take care of them" (App. p. 37). He claimed that when they arrived in Minot to begin caring for the Whiskers, they found that nearly all their possessions had been stolen, (from cookware to furniture and even their clothing), so they had to buy replacements. (App. p. 40). Asa told the Court they tried to go back home and Marvin begged them to stay, and that he (Marvin) even lied to them and stated he had cancer. (App. p. 42). He told the Court they bought expensive clothes and jewelry for Marvin and Florence because they always "dressed to the nines" and they (the defendants) wanted them to look like that. (App. p. 53). Asa stated there were a lot of expenses. Asa told the Court he didn't understand why people think that it was wrong for Marvin and Florence to take care of their (the defendants) expenses. (App. p. 56). Asa also told the Court "I disagreed with the way my attorney handled my case in a couple of areas but all in all I thought he did a fairly decent job. I just wish a couple of things had been changed. I would have liked to have been able to testify but that was a that was something that Paul and I had spoken about and at the time of trial, I mean, I undertood what was going on at the time." (T. 699).
At the second restitution hearing held on November 27, 2007, both defendants were represented by separate counsel. Asa testified at that hearing. Asa again maintained that all the receipts (Exhibit F) were receipts demonstrating the expenses for Marvin and Florence. He also testified "I maintainI have maintained always and still maintain that we had an agreement with Marvin to take care of our expenses while we were here taking care of them. Otherwise I would not have been in Minot." (App. p. 105) Asa also advised the Court that his father paid Probst's fee as well as the current fees. (App. p. 106).
ISSUES
I) There was no ineffectiveness of counsel.
II) There was no actual conflict of interest in the joint representation of the defendants, therefore the defendants did not have ineffective assistance of counsel.
III. Admission of State's Exhibit 44 was not clearly erroneous.
A. Ineffective-Assistance-of-Counsel
B. Rule 15 of the N.D.R.Crim.P.
C. Laurie's right to confront and cross examine Marvin was not violated by the admission of Exhibit 44.
IV. The trial court did not abuse its discretion when it ordered Laurie to pay $109,921.03 in restitution.
V. The defendants were not prejudiced by the filing of the Amended Information without a preliminary hearing.
VI. It was not plain error to admit Florence Whisker's video deposition into evidence.
ARGUMENT
I) There was no ineffectiveness of counsel.
The defendants are asserting that because there was joint representation, there was some sort of "automatic" ineffective assistance of counsel due to divided loyalties. Under the Strickland test, a convicted defendant must establish two things. State v. Ricehill, 415 NW2d 481, 484 (ND 1987). (citing Strickand v. Washington, 466 U.S. 668 (1984)). First, the defendant must show that his trial counsel's representation "fell below an objective standard of reasonableness". Id. In doing so, he must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance". Id. Second, the defendant must establish that trial counsel's conduct was prejudicial to him: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. The defendants bear the burden of the Strickland test before the Court moves to the issue of joint representation being "per se" ineffective.
An appeal from judgment of conviction is not the most appropriate way of raising an issue concerning the effectiveness of the trial counsel's representation because the reviewing court does not have the benefit of all the facts concerning why defense counsel did or did not do certain things. Ricehill at 484. citing State v. Hanson, 366 NW2d 377 (Minn. App. 1985). The record before the Court in these matters does not give the Court benefit of all the facts concerning Probst's representation. It does clearly show that there was joint representation, but it does not reveal any "divided" loyalties. The more appropriate forum for this issue would be in a post-conviction action.
The Court has, in rare and obvious cases, considered ineffective assistance of counsel on direct appeal of conviction. "We realize that in some situations it would be wasteful and onerous to the defendant to require him to seek post-conviction relief before appealing an ineffective assistance of counsel claim, e.g. where a defendant has a second issue which might require reversal of the conviction". Ricehill, at 485. "Therefore, we believe that it appears appropriate to establish procedures for presentation of ineffective-assistance-of-counsel claims". Id. " We believe that a decision by the Mississippi Supreme Court presents a procedure for the review of ineffective-assistance-of-counsel claims which is logical and fair". Id. 1) Any defendant convicted of a crime may raise the issue of ineffective assistance of counsel on direct appeal, even though the matter has not first been presented to the trial Court. The Court should review the entire record on appeal. If, for example, from a review of the record,...this Court can say that the defendant has been denied the effective assistance of counsel, the Court should also adjudge and reverse and remand for new trial. Id. 2) Assuming the Court is unable to conclude from the record on appeal that defendant's trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case....if the Court should affirm, it should do so without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings. Id.
The State urges the Court to make a complete review of the record, specifically, State's Exhibits 2, 3, 4, 5,6 and 7, along with defendants' Exhibit F. (Which pursuant to Rule 30 of the North Dakota Rules of Appellate Procedure are part of the record for the Court to consider, but would be too voluminous to include in the appendix. The State's restitution brief is included for a summary of where the money went.). A review of the record and Exhibits clearly supports the united defense tactic presented to the jury. The defendants' united defense was that they were acting under the authority of Marvin, that Marvin had agreed to pay their expenses, and that all the monies were spent on and for the benefit of Marvin and Florence for necessary expenses. In fact, this united defense continued not only through the sentencing phase, but also at the restitution hearing wherein the Defendant's had separate counsel.
The State conceded, and Marvin stated, that he had agreed to give the defendants a place to stay, provide his vehicle for transportation, and pay for food. Therefore, in pursuing this united defense, Probst thoroughly cross-examined all the State's witnesses regarding their lack of knowledge of the agreement and the cost of Marvin and Florence's basic needs. Upon review of the above mentioned Exhibits, the jury found, beyond a reasonable doubt, the defendants spent the money elsewhere and not in accordance with the agreement. The Jury found the defendants were guilty of Theft of Property with regard to Marvin's money. There was never any evidence presented that Florence had agreed to pay the defendants anything or allow them access to her accounts. There was evidence presented that A Power of Attorney was signed by Florence. The jury heard from employees of the nursing home that there was yelling coming from her room on the day she signed the document. Even with the presumption that Florence voluntarily signed the Power of Attorney, the jury found, beyond a reasonable doubt, money that was taken from Florence's accounts was not spent for her benefit, but for the benefit of the defendants, in violation of the Power of Attorney. The jury found the defendants guilty of Exploitation of a Vulnerable Adult. Upon review of the record the Court can find the defendants fail to meet the Strickland test for an in-effective-assistance-of-counsel claim and in accordance with the Ricehill procedures dismiss the claim with prejudice based upon the record.
II) There was no actual conflict of interest in the joint representation of the defendants, therefore the defendants did not have ineffective assistance of counsel.
Notwithstanding the above position, should the Court determine that the fact the defendants were jointly represented at trial deserves closer scrutiny the State proceeds with further analysis and argument below. Rule 44 of the North Dakota Criminal Rules of Procedure was amended to include subdivision (c) effective March 1, 2006. This action against the defendants had already begun. In fact the preliminary hearing had been held as well as the pre-trial conference. The last time the defendants had appeared in Court was on February 3, 2006, prior to the rule amendment, before Judge Holte. The defendants did not appear before a Judge after that until, three judges later, January 29, 2007, when they appeared before Judge Lee. At that hearing neither defendant, nor their counsel brought up the issue of the Amended Rule. The Court, having just been assigned the case, would not have known what other judges may have addressed regarding the Amended Rules at the defendants' last appearance approximately one year prior to the January 29, 2007 appearance, or their joint representation by retained counsel. Currently, there are no North Dakota cases on point regarding joint representation of defendants since the implementation of Subsection (c) of Rule 44. However, the Court has had this issue raised before it prior to the implementation of the rule amendment. See State v. Rougemont, 340 NW2d 47 (ND 1983) and State v. Dalman, 520 NW2d 860 (ND 1994).
North Dakota can provide greater rights to its citizens than what is provided for under the United States Constitution. See e.g. State v. Orr, 375 NW2d 141 (ND 1985). The defendants are urging the Court to adopt the higher standard of "Plausible Effect" rather than the standard and analysis used by the United States Supreme Court.
Upon reviewing a claim for ineffective-assistance-of-counsel due to conflict of interest (i.e. joint representation), the United State's Supreme Court has provided the framework. In situations such as Holloway v. Arkansas, 435 U.S. 475 (1978), the Court created an automatic reversal rule where counsel is forced to represent co-defendants over his timely objection, unless the trial court has determined that there is no conflict. Mickens v. Taylor, 535 US 162 (2002). (emphasis added). In Cuyler v. Sullivan, 446 U.S. 335 (1980) the Court declined to extend Holloway and held, that, absent objection, a defendant must demonstrate that a conflict of interest actually affected the adequacy of his representation. Id. (emphasis added, citing Sullivan at 348-349). Finally, in Wood v. Georgia,450 U.S. 261, 273 (1981) the Court granted certiorari to consider an equal-protection violation, but then remanded for the trial court to determine whether a conflict of interest, that the record strongly suggested, actually existed. Id at 163.
The Mickens, supra, Court went further in its analysis of Holloway, Sullivan, and Wood. The Holloway Court deferred to the judgment of counsel regarding the existence of disabling conflict, recognizing that a defense attorney is in the best position to determine when a conflict exists, that he has an ethical obligation to advise the court of any problem, and that his declarations to the court are "virtually made under oath". Mickens, at 167, 168 (Holloway, at 485-486).
In addition to describing the defendant's burden of proof, Sullivan addressed separately a trial court's duty to inquire into the propriety of multiple representation, construing Holloway to require inquiry only when "the trial court knows or reasonably should know that a particular conflict exists". Id. (Sullivan at 347), which is not to be confused with when a court is aware of a vague, unspecified possibility of conflict, such as that which "inheres in almost every instance of multiple representation". Id. at 169 (Sullivan at 348). In Sullivan, no "special circumstances" triggered the trial court's duty to inquire. Id. (Sullivan at 346). In this case there were no "special circumstances" existing to trigger the trial court's duty to inquire in this matter.
Finally, in Mickens, the petitioner had argued that the Wood remand instruction established an "unambiguous rule" that where the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of judgement, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsel's performance. Id. at 170. "As in the remand instruction, however, we think "an actual conflict of interest" meant precisely a conflict that affected counsel's performance as opposed to a mere theoretical division of loyalties". Id. at 171. "This is the only interpretation consistent with the Wood Court's earlier description of why it could not decide the case without remand". Id. at 172. "The notion that Wood created a new rule sub silentio and in a case where certiorari had been granted on an entirely different question, the parties had neither briefed nor argued the conflict-of-interest issue is implausible". Id. at 172. The Defendants assertion that their trial counsel had divided loyalties is merely theoretical. No actual conflict was shown.
After the above analysis in Mickens, the Court declined to adopt the petitioner's proposed rule of automatic reversal. The trial court's awareness of potential conflict neither renders it more likely that counsel's performance was significantly affected nor in any way renders the verdict unreliable. Mickens at 173 (Cf. United States v. Cronic, 466 U.S. at 662). Nor, finally, is automatic reversal simply an appropriate means of enforcing a Sullivan mandated inquiry. Id. "Despite Justice SOUTER's belief that there must be a threat of sanction (to wit, the risk of conferring a windfall upon the defendant) in order to induce "resolutely obdurate" trial judges to follow the law, post, at 1263, we do not presume that judges are as careless or as partial as those police officers who need the incentive of the exclusionary rule", see United States v. Leon, 468 U.S. 879. Id. "And in any event, the Sullivan standard, which requires proof of the effect upon representation but (once such effect is shown), presumes prejudice already creates an "incentive" to inquire into potential conflict is in fact an actual one. Id. "In those cases where potential conflict is in fact an actual one, only inquiry will enable the judge to avoid all possibility of reversal by either seeking waiver or replacing a conflicted attorney". Id. "We doubt that the deterrence of "judicial dereliction" that would be achieved by an automatic reversal rule is significantly greater". Id.
In applying the Sullivan rule as reiterated in Mickens at 173, to this case, the trial court's failure to inquire into potential conflict of interest due to dual representation does not warrant reversal. The trial court was not aware of, nor should it have been aware of, any actual conflict. Indeed Asa, in his brief, only raises the "plausible" defense of "I was duped by my wife" that could have been presented to the jury. Laurie, while joining with her husband on the conflict-of-interest argument, does not even raise a "plausible" defense that could have been presented on her behalf. Additionally, when taking the whole record into account, the defendants, through all crucial aspects of the proceedings (preliminary hearing, trial, sentencing, and restitution hearing) presented the united defense discussed above. In fact, the State conceded that the defendants and Marvin did have an agreement, however, given the balance of the evidence (once again reviewing State's Exhibits 2, 3, 4, 5, 6, and 7 and Defendants' Exhibit F), the jury found beyond a reasonable doubt the defendants actions went beyond the agreement.
The State is requesting the Court adopt the standard provided in Cuyler v. Sullivan, and reiterated in Mickens v. Taylor. That is that when the trial court fails to inquire, as now mandated in Rule 44 (c) of the North Dakota Rules of Criminal Procedure, the defendant must show an actual conflict that rendered it more likely that counsel's performance was significantly affected and the verdict rendered is unreliable. In this case the defendants have failed to show an actual conflict or that counsel's performance was significantly affected and that the verdict is unreliable. To provide a more stringent standard would risk conferring a windfall upon the defendants at the expense of the victims and the State, as is warned about in Mickens.
III. Admission of State's Exhibit 44 was not clearly erroneous.
Laurie asserts that the admission of State's Exhibit 44 is clearly erroneous in violation of the provisions of Rule 15 of the N.D.R.Crim.P. and in violation of her right to confront and cross examine the witness. She further asserts that Probst's failure to "Notice" the deposition on her behalf, her absence from the deposition and the subsequent admission of the deposition furthers her claim of in-effective-assistance-of-counsel. The State disagrees.
A. Ineffective-Assistance-of-Counsel
For the reasons previously discuss above, Laurie's claim of ineffective assistance of counsel does not have merit. Furthermore, there is nothing on the record to be able to know the circumstances of the inadvertent error of the deposition being only "Noticed" for Asa. As previously discussed above, Laurie's claim for ineffective assistance of counsel is not warranted from the record. An appeal from judgment of conviction is not the most appropriate way of raising an issue concerning the effectiveness of the trial counsel's representation because the reviewing court does not have the benefit of all the facts concerning why defense counsel did or did not do certain things. State v. Ricehill, supra at 484. citing State v. Hanson, 366 NW2d 377 (Minn. App. 1985). The record before the Court in these matters does not give the Court benefit of all the facts concerning Probst's representation or Laurie's voluntary absence from the deposition. There is evidence that she was present at the office where the deposition was taken, and that she had the opportunity to be present.
B. Rule 15 of the N.D.R.Crim.P.
Rule 15 of the North Dakota Rules of Criminal Procedure allows for parties to take depositions if the party receives leave from the Court. The deposition may be for discovery purposes or to perpetuate testimony, if it appears that the deponent may be able to give material testimony but may be unable to attend a trial or hearing. (Emphasis added). At the time the defendants were charged, Marvin was 84-years of age. (T. 148) By sight during the preliminary hearing it was obvious his physical health would be questionable at the time of trial. Additionally, Marvin was quite hard of hearing. Due to Marvin's advanced age, both parties recognized the necessity to depose Marvin. Probst gave notice of the deposition "for purposes of discovery and at trial.". Clearly the intent was to have the deposition testimony, should Marvin be unavailable at the time of trial. Additionally, Judge Mattson did not sua sponte change the fundamental nature of the deposition in the Order, the signed Order was the proposed Order submitted by Probst. At trial, the State called Marvin as a witness. (T. 147-148). The Court, pursuant to Rule 804 of the North Dakota Rules of Evidence, found that Marvin was unavailable as a witness due to an existing mental infirmity and advanced age senility. (T. 260) Plus it is very difficult for him to sit in court and respond.(T. 260). Rule 804(b)(1) states: Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony has been offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (Emphasis added). In this matter, even though not physically present Laurie's counsel was the person conducting the deposition. A review of the deposition clearly shows that Probst represented her interests and solicited the responses from Marvin necessary for the defendants' united defense. (T. 264-326). Additionally, all the exhibits accepted as part of Exhibit 44 were already in evidence as part of Exhibit 2. Finally, as the Rule indicates, prior testimony, including deposition testimony, is admissible, so long as the party against whom the testimony is now offered has an opportunity to develop testimony. Laurie was afforded that opportunity when Marvin was called by Probst two times during the preliminary hearing. (App. p. 1-20).
C. Laurie's right to confront and cross examine Marvin was not violated by the admission of Exhibit 44.
Laurie relies upon Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 126 S.Ct. 2266 (2006), State v. Blue, 2006 ND 134, 717 NW2d 558 and State v. Woinarowicz, 2006 ND 170, 720 NW2d 635, for her claim that her constitutional right to confront witnesses was violated. It is the State's position that the same cases, when read in their entirety, support the admission of Exhibit 44. Crawford states that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless the witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses. At 53-54. Under Crawford, the admission of out-of-court statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant. State v. Blue, 717 NW2d 558, 561-562, 2006 ND 134 ¶8. Where a defendant has a same or similar motive to cross-examine a witness, the opportunity to cross-examine a witness before trial can satisfy the Confrontation Clause. Id. at 566, ¶24. In this case Blue, a Ward County case, supports the admission of Exhibit 44. Not only did Laurie have the opportunity to cross-examine Marvin before trial, she in fact called him as a witness two times at the preliminary hearing. (App. p. 1-20). Upon closer review of both the deposition transcript, Exhibit 44, and Marvin's testimony at the preliminary hearing, the Court can find that much of the same questions were asked. The significant difference between the two was the admission of the deposition exhibits, which were already part of the trial record. Absent the admission of the deposition exhibits, the jury still could have found that Laurie was the person who wrote the checks due to her own testimony and the admission in State's Exhibit 36. (T. 605-606). Laurie's constitutional right to confront the witness was not violated.
IV. The trial court did not abuse its discretion when it ordered Laurie to pay $109,921.03 in restitution.
Laurie asserts that because she is presently in prison, she has an inability to currently pay restitution, therefore the court abused its discretion in ordering payment. Appellate review of a trial court's order of restitution is confined to whether the trial court acted within the limits prescribed by statute; this standard of review in a similar context has been called the abuse of discretion standard. State v. Vick, 1998 ND 214 ¶4, 587 NW2d 567, 567-568. The trial court in this matter did not abuse its discretion. When ordering restitution the court shall take into account a) the reasonable damages sustained....b) ability of defendant to pay... and c) the likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilitational purpose in the case of the particular offender. NDCC §12.1-32-08(1)(a)(b)(c). A restitution hearing was held. The court considered all the evidence and established a reasonable amount of damages. The Court heard the argument and testimony regarding the defendants' inability to pay. The Court further, in its analysis and order, found that requiring Laurie to pay is a valid rehabilitational purpose. The Court did find that currently she had an inability to pay, however upon her release, she could and is likely to obtain some type of employment that would allow her to pay some of the restitution. Laurie is not disabled as was the co-defendant in State v. Bingaman, 2002 ND 210, 655 N.W.2d 57. Nor is it likely she will be living on a fixed income that would prohibit her from making restitution payments. Additionally, the Court allowed for the "long shot" or windfall that may happen by way of lottery, inheritance, personal injury awards that Laurie could be the beneficiary of, and refused to allow her to walk away without some sort of reparation to the Whiskers.
Laurie also asserts that the Court should reverse the restitution order because ultimately it does damage to the Whisker's ability to obtain Medicaid and other public benefits. In that regard the State echos the trial court's words when it stated such argument is GALLING.
V. The defendants were not prejudiced by the filing of the Amended Information without a preliminary hearing.
The Criminal Complaint filed against the defendants originally charged the defendants with Count 1 Criminal Conspiracy - Exploitation of a Vulnerable Adult, a class B felony, in violation of NDCC §12.1-31-07.1. After the preliminary hearing, Judge Mattson found probable cause for the offense, however reduced the level to a class C felony. The difference between the class B felony and the class C felony level is that the State must prove, beyond a reasonable doubt, that the person(s) charged with the offense, exploited funds, assets or property in an amount exceeding $20,000 for the offense to be a class B felony. NDCC §12.1-31-07.1(2)(b). For a class C level of offense the State need only prove a value of exploited funds, assets or property exceeding $10,000. NDCC §12.1-31-07.1. The State moved to file an Amended Information on November 30, 2006. Along with the motion, the State also filed the Amended Information, charging Count 1 Criminal Conspiracy - Exploitation of a Vulnerable Adult, a class B felony. The defendants did not respond to the Motion to Amend the Information. On January 29, 2007, although the defendants waived the reading of the Amended Information, Judge Lee did specifically advise each of them that in Count 1 they were charged with Criminal Conspiracy - Exploitation of a Vulnerable Adult, a class B felony. Judge Lee then proceeded to advise each of the defendants of the penalties of a class B felony. The defendants entered pleas of not guilty.
At the beginning of trial, the State read the Amended Information to the jury panel. The failure to object operates as a waiver of the issue on appeal, but the error may provide a basis for reversal if it constitutes obvious error affecting substantial rights of the defendant. State v. Dymowski, 459 NW2d 777, 780 (ND 1990)(citing State v. Smuda, 419 NW2d 166, 167-68 (ND 1988). This Court's power to notice obvious error, however is exercised cautiously and only in exceptional situations where the defendant has suffered serious injustice. Id. (citing State v. Hersch, 445 NW2d 626, 634(ND 1989). The Amended Information placed the burden on the State to prove proper value beyond a reasonable doubt. The defendants failed to object to the Amended Information, and they did not suffer a serious injustice.
The right to a preliminary hearing is not a constitutional right. "Finding no United States Supreme Court decision holding that a preliminary hearing must be held to satisfy constitutional rights, we adhere to our former holding that a defendant in a criminal action has no constitutional right to a preliminary examination." State v. Rudolph, 193 NW2d 237, 241(ND 1971)(citing Green v. Whipple, 89 NW2d 881 (ND 1958)). State v. Bourbeau, 250 NW2d 259, 266 (ND 1977). State v. Jensen, 333 NW2d 692 (ND 1983. "We are convinced that there was not violation of either Rule 7(e), N.D.R.Crim.P. or Section 12.1-23-01(2) N.D.C.C. The meaning of the language in both the original and amended information is so similar that counsel's preparation under either one would vary insignificantly." Jensen at 265. "We conclude that the amendment of the Information to charge a crime under the same set of facts, with the same culpability requirements, and requiring the same elements, does not require a new preliminary examination." Jensen at 266. In the case before the Court, the Amended Information charged the defendants with the same offense, under the same set of facts, with the same culpability requirements and requiring the same elements, with the exception of raising the State's burden to prove a higher value amount. Counsel's preparation did not vary. A new preliminary examination on the Amended Information was not required.
Throughout the entire second arraignment, neither defendant nor their counsel objected to the Amended Information. In State v. Jensen, the court found that since neither Jensen nor his attorney objected, filed a motion or requested a preliminary hearing on the Amended Information, that Jensen had implicitly waived his right to a preliminary hearing before the second trial. 333 NW2d 686, 691 (ND 1983). Although the Information was filed before the preliminary examination was held, the fact a preliminary examination was neither had nor waived does not invalidate an information unless the defendant objects before entering a plea. State v. Noorlun, 705 NW2d 819, 829 (ND 2005). There is no objection on the record of the filing of the Amended Information in this matter. The defendants waived their right to a preliminary hearing. The Amended Information and Count 1 should remain intact as the jury found the defendants guilty beyond a reasonable doubt. However, should the Court disagree, the remedy would be to remand back to the trial court for re-sentencing on Count 1: Criminal Conspiracy - Exploitation of a Vulnerable Adult, a class C felony.
VI. It was not plain error to admit Florence Whisker's video deposition into evidence.
The State offered into evidence Exhibit 42, a video tape deposition of Florence Whisker. (T. 146 and 237). The defendants did not object, however at the time it was offered the defendant had not reviewed the actual video tape. (T. 147). The Court reserved ruling on Exhibit 42. (T. 147). The State and Probst advised the Court that they would be reviewing the video deposition for purposes of editing objectionable material. (T. 236). Probst specifically advised the Court that the editing would be taken care of that night. (T. 236). The State and Probst met and viewed the video tape. All materials which Probst indicated were objectionable were marked to be edited out. Probst then took the original to the technician of his choosing and had the deposition edited. The State offered Exhibit 49, the edited version of Florence's video deposition. The defendants did not object, and the Court received the exhibit. The jury saw and heard the edited version of Florence Whisker's deposition. The jury was given a specific jury instruction regarding the depositions that were received into evidence. (T. 643). The instruction specifically states "you should give it such weight and credibility, as far as possible, as you would if the witness has been present in court and testified." In addition the jury was given a Weight and Credibility instruction. (T. 84). Juries are presumed to follow the instructions provided by the court. State v. Marks, 452 NW2d 298, 302 (ND 1990), State v. Lange, 497 NW2d 83, 87(ND 1993). The jury, when reviewing Exhibit 49, gave the tape as much weight and credibility as it deemed appropriate. In light of the fact the defendants did not object to Exhibit 49 and the court's instruction, it was not plain error for the court to receive and the jury to consider.
CONCLUSION
The Court should adopt the Mickens test for determining the defendant did not have ineffective assistance of counsel due to joint representation. The defendant failed to show actual conflict that rendered it more likely that counsel's performance was significantly affected and the verdict rendered unreliable. The admission of State's Exhibit 44 did not violate Laurie's constitutional right to confront witnesses. The Trial Court did not abuse its discretion when it ordered Laurie to pay $109,921.03 in restitution. The convictions and restitution order entered in this matter should be affirmed. The admission of Florence Whisker's deposition was not plain error, and Asa did not object to its admission. Asa (and Laurie) failed to object to the Amended Information, the conviction should remain a class B felony in the alternative, the trial should re-sentence accordingly. The jury verdicts should be affirmed. Furthermore, since there is no issue that should be remanded for new trial, the Court should dismiss the defendant's ineffective-assistance-of-counsel claim with prejudice, thereby estopping the defendant from raising the issue on any potential post-conviction petition.
Dated this day of March, 2008.
| Rozanna C. Larson 05294 | |||||
| Assistant State's Attorney | |||||
| Ward County Courthouse | |||||
| Minot, ND 58701 |