IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Supreme Court No. 20070265
(Reference Ward Co. No. 05-K-1898)
| State of North Dakota, | |||||||||||
| Plaintiff-Appellee, | |||||||||||
| -vs- | |||||||||||
| Asa Keener, | |||||||||||
| Defendant/Appellant. | |||||||||||
APPELLANT'S BRIEF
Appeal from the Criminal Judgments
Dated August 10, 2007
Ward County District Court
The Hon. Gary Lee, Presiding
| TOM TUNTLAND |
| Attorney at Law |
| P. O. Box 1315 |
| Mandan ND 58554 |
| (701) 667-1888 |
| ID# 03250 |
| ATTORNEY FOR DEFENDANT/APPELLANT |
C O N T E N T S
| I. | STATEMENT OF THE ISSUES | .. . | 1 | ||||||||||||
| II. STATEMENT OF THE CASE | . . .. . | 3 | |||||||||||||
| III. FACTS | . . | 11 | |||||||||||||
| IV. | ARGUMENT | . | 26 | ||||||||||||
| A. Ineffective Assistance of Counsel - Joint | |||||||||||||||
| Representation | . . | 26 | |||||||||||||
| B. Admission of Florence Whisker Deposition | |||||||||||||||
| Plain Error | 40 | ||||||||||||||
| C. Improper Amendment of Information . .. . | 43 | ||||||||||||||
| V. | CONCLUSION | 45 | |||||||||||||
I
AUTHORITIES
| Cases | |||||||||
| Chapman v. California, | |||||||||
| 386 U.S. 18 (1967) | . | 27 | |||||||
| Covey v. United States, | |||||||||
| 377 F3d 903 (8th Cir. 2004) . | 34 | ||||||||
| Crawford v. Washington, | |||||||||
| 541 U.S. 36 (2004) | . | 42 | |||||||
| Cuyler v. Sullivan, | |||||||||
| 446 U.S. 335 (1980) | 29, 30, 40 | ||||||||
| Eisenmann v. Herbert, | |||||||||
| 401 F.3d 102 (2nd Cir. 2005 . | 33, 40 | ||||||||
| Gideon v. Wainwright | |||||||||
| 372 U.S. 335 (1963) | . | 27 | |||||||
| Holloway v. Arkansas, | |||||||||
| 435 U.S. 475 (1978) | . | 31, 32 | |||||||
| McMann v. Richardson, | |||||||||
| 397 U.S. 759 (1970) | 27 | ||||||||
| Mickens v. Taylor, | |||||||||
| 240 F.3d 348 (4th Cir. 2001) . . . . | 33 | ||||||||
| Ohio v. Roberts, | |||||||||
| 448 U.S. 56 (1980) | . | 41 | |||||||
| Paxton v. Wiebe, | |||||||||
| 1998 N.D. 169, 584 N.W.2d 72. . . . . | 38 | ||||||||
| Quince v. Crosby, | |||||||||
| 360 F.3d 1249 (11th Cir. 2004) . .. . . | 34 | ||||||||
| State v. Bragg, | |||||||||
| 221 N.W.2d 802 (N.D. 1974) | . | 28 | |||||||
| State v. Flohr, | |||||||||
| 301 N.W.2d 367 (N.D. 1980) | 38 | ||||||||
| State v. Kautzman, | |||||||||
| 738 N.W.2d 1, 2007 ND 133 | 42, 43 | ||||||||
| State v. Keller, | |||||||||
| 57 N.D. 645, 223 N.W. 698 (N.D. 1929) | 27, 28 | ||||||||
| State v. Klein, | |||||||||
| 2006 ND 37, 711 N.W.2d 606 | 29 | ||||||||
| State v. Orr, | |||||||||
| 375 N.W.2d 141 (N.D. 1985) | .. | 35, 36, 37 | |||||||
| State v. McKay, | |||||||||
| 234 N.W.2d 853 (N.D. 1975) | . | 28 | |||||||
| Strickland v. Washington, | |||||||||
| 466 U.S. 668 (1984) | . | 29, 30 | |||||||
| Other Authorities | |||||||||
| Rule 5(c), N.D.R.Crim.P. | . | 43 | |||||||
| Rule 5.1, N.D.R.Crim.P.. . . | 43 | ||||||||
| Rule 7, N.D.R.Crim.P.. . . . . . . . . . . . . . . . . . . . . . | 43 | ||||||||
| Rule 26, N.D.R.Crim.P.. . . . . | 41 | ||||||||
| Rule 44, N.D.R.Crim.P. | . .. . . . | 37, 38, 39, 40 | |||||||
| Rule 59(a), N.D.R.Crim.P. . . . . | 38 | ||||||||
| ABA Standards for Criminal Justice: | |||||||||
| Prosecution and Defense Function, | |||||||||
| (3rd Ed. 1993) | . . . . . . . | 39 | |||||||
| N.D.C.C. §29-09-02 | . . . . | 43 | |||||||
iv
I. STATEMENT OF THE ISSUES.
1. Did the Trial Court err in permitting Asa Keener's counsel to jointly represent Asa and Laurie Keener without inquiring into the propriety of joint representation, without notifying Mr. Keener of the potential dangers of joint representation, without notifying Mr. Keener of the right to separate representation, and without obtaining Mr. Keener's knowing and intelligent consent to joint representation?
2. Did trial counsel's joint representation of Asa Keener and Laurie Keener deprive Asa Keener of effective assistance of counsel as required by the 6th and 14th Amendments to the United States Constitution and Article I, Section 12 of the North Dakota Constitution?
3. Did the Trial Court err in permitting Count I of the action to go to trial as a Class B felony when following preliminary hearing the magistrate ruled the prosecution had established probable cause to believe that Count I was a Class C Felony, no subsequent preliminary hearing was held and the defendant did not waive preliminary hearing on a Class B Felony charge?
4. Did the trial Court err in allowing the deposition of Florence Whisker to be read to the jury when the Defendant had objected that Florence Whisker's answers to the questions were not audible and the transcribed deposition proved that the court reporter was not able to hear Florence Whisker's answers to numerous questions and the absence of complete answers rendered the deposition misleading and incomplete?
II. STATEMENT OF THE CASE.
In the initial charging documents, Asa Keener's wife, Laurie Keener, was called Laurie Marie Whisker. In some subsequent documents Laurie was called Laurie Marie Whisker-Keener. The name variations are not material. For simplicity Mr. Keener will refer to his wife as "Laurie" or "Laurie Keener" throughout this brief.
On September 21, 2005, the Defendant, Asa Keener, and his spouse, Laurie Keener were jointly charged by complaint with two offenses in the Northwest Judicial District Court of Ward County, North Dakota.
Count I of the Complaint charged that Asa and Laurie conspired to commit the offense of exploitation of a vulnerable adult in violation of Sections 12.1-06-04 and 12.1-31-07.1 of the North Dakota Century Code. (App. P. 7).
Section 12.1-31-07.1(2) N.D.C.C. makes exploitation of a vulnerable adult a Class C Felony if the value of the exploited funds, assets or property is in excess of $1,000.00 but does not exceed $20,000.00. Despite that classification in the statute, the Complaint alleged the defendants exploited funds in excess of $10,000.00 and charged that the offense was a Class B Felony.
Count II charged that Asa and Laurie conspired to commit the offense of theft of property of a value exceeding $10,000.00 in violation of Sections 12.1-06-04 and 12.1-23-02 of the North Dakota Century Code. The Complaint charged Count II was a Class B Felony because the property stolen exceeded a value of $10,000.00. (App. P. 7).
A warrant for the arrest of Asa Keener was issued on the 21st day of September, 2005 by the Hon. Gary H. Lee, acting as magistrate. (App. P. 9).
On September 26, 2005, Asa and Laurie had their initial appearance on Counts I and II before the Hon. Douglas L. Mattson, Judge of the District Court. (App. P. 10).
The Defendants were not asked whether they had received copies of the Complaint.
The following discussion regarding the Defendants' right to counsel took place at their initial appearance:
"You have the right to the assistance of an attorney before
making any statement or answering any questions being asked
by you in court about the case.
You have the right to be represented by an attorney at each
and every stage of this case, to have an attorney provided at
public expense to the extent that you are unable to pay for your
own attorney without undue financial hardship.
I see that Mr. Probst is here representing you, and you have
been retained, correct, sir?
MR. PROBST: Yes.
THE COURT: And, you have the right to have bail set or
continued pursuant to Rule 46 of the North Dakota Rules of
Criminal Procedure so you can be released pending further
hearings on this matter.
Now, each of you are facing two counts of a Class B Felony
nature. You are each facing two Class B Felonies. So, you have
the right to a preliminary hearing, and to be represented by an
attorney at the preliminary haring, which needs to be held within
a reasonable time from today's date. And, that's a hearing to
determine whether there is probable cause that exists on whether
a crime was committed, and you, in fact, committed the crime.
Do you have any questions on your legal rights?
ASA KEENER: No.
THE COURT: Ma'am?
LAURIE KEENER: No.
THE COURT: You both understand your legal rights that I went
through?
ASA KEENER: Yes.
LAURIE KEENER: Yes.
THE COURT: And, I do see the responses in the affirmative
from both."
(Initial App. Tr. P. 3, line 15 - P. 4, line 23).
Although the Court did not determine that the Defendants had received copies of the Complaints against them, the Court did determine that Mr. Probst, apparent counsel for both Defendants, had "had a chance to look at the Complaint" prior to the initial appearance. Bond was set, a no-contact order was entered, and preliminary hearing was scheduled for October 26, 20005 at 9:00 a.m. (Initial App. Tr., PP. 8-9).
The Court made no inquiry into joint representation. The Court did not ask Asa and Laurie if they consented to joint representation. The Court did not tell Asa and Laurie they each had the right to separate representation. The Court did not advise Asa and Laurie of the dangers of joint representation. The Court did not inquire about the propriety of joint representation.
Preliminary hearing in Asa's and Laurie's cases was held on October 24, 2005. At the conclusion of the evidence Judge Mattson found probable cause to believe that each of the Defendants had committed the offense of conspiracy to exploit a vulnerable adult, but the prosecution had not met the $20,000.00 threshold on a Class B Felony, and therefore bound over on a Class C Felony. As to Count II, the Judge found that there was probable cause to believe that the Defendants conspired to steal more than $10,000.00 from Marvin Whisker and bound them over on that charge. (Preliminary Hrg. Tr. Pp. 71-72).
Immediately following the preliminary hearing, both Asa Keener and Laurie Keener were arraigned on the Information charging them with two counts, a Class C Felony and a Class B Felony. (App. P. 11; Preliminary Hrg. Tr. PP. 72-76). At their arraignment, the Court did not state the substance of the charges to the Defendants as is required by Rule 10, N.D.R.Crim.P. The Court made no inquiry into joint representation. It should be noted that on October 24, 2005, N.D.R.Crim.P. 44 did not impose a duty on the Court to inquire as to joint representation.
The Defendants each plead not guilty to both Counts of the Information.
On December 5, 2005, Asa Keener gave the notice to take the deposition of Marvin Whisker, the deposition to be used "for discovery purposes and at trial." On that same day, an order was signed by the Hon. Douglas L. Mattson allowing Asa Keener (but not Laurie Keener) to depose Marvin Whisker. The application for the order stated "Defendant's request is made to perpetuate the testimony of Mr. Whisker and for discovery purposes." (App. PP. 13-15;). A subpoena was issued for Marvin Whisker. Pursuant to the Notice of Deposition, Marvin Whisker's was taken on December 12, 2005. Laurie did not attend Marvin Whisker's deposition. (Tr. Dep. Marvin Whisker P. 2).
On January 10, 2006, the prosecution moved for the Court's order to take the deposition of Florence Whisker to perpetuate her testimony which was scheduled for January 17, 2006. That motion was served on the defense by mail on January 10, 2006. On January 10, 2006, the Court, without any hearing and apparently before the defense had received a copy of the motion, entered an order permitting the deposition to perpetuate testimony. (App. PP. 17.)
The deposition was conducted on January 17, 2006. The deposition was taken in the action of State v. Laurie Keener and the action of State v. Asa Keener. Both Laurie and Asa attended the deposition. (Tr. Dep. Florence Whisker, P. 2).
During Florence Whisker's deposition, Paul Probst called the Hon. Robert W. Holte, the judge assigned to Asa's and Laurie's cases, while Judge Holte was in court. Mr. Probst objected to continuing the deposition. According to Judge Holte's Memo to the File (App. P. 18), the Court held an emergency telephone conference during which both parties could not be heard at the same time. Attorney Paul Probst requested the Court to order that the deposition be discontinued. Assistant States Attorney Rosa Larson objected to discontinuing the deposition. She stated "she believed Florence's answers could be understood by the court reporter and emphasized the matter was also being video recorded." The Court refused to discontinue the deposition. (App. P.18).
On November 30, 2006, the prosecution moved to amend the Information and served a proposed Amended Information on counsel for Laurie Keener and Asa Keener by mail. (App. P. 19). Count I of the Amended Information alleged that the conspiracy to exploit Florence Whisker, was a conspiracy to exploit funds, assets or property exceeding $20,000.00 in value. There had not been a preliminary hearing or a waiver of preliminary hearing on the Class B Felony charge alleged in the proposed amended Information. (App. P. 21).
No order permitting amendment of the Information was entered.
Despite the fact that no order had been entered, on January 29, 2007 Asa and Laurie were arraigned on the Amended Information (Tr. Proceedings 1-29-07, PP. 11-19). At that arraignment, the Court did not inquire about the propriety of Mr. Probst jointly representing Asa Keener and Laurie Keener. At the time of the arraignment subdivision (c) of Rule 44, N.D.R.Crim.P. which directs the court to inquire about the propriety of joint representation had been in effect for more than ten months. It became effective on March 1, 2006. Explanatory Note to N.D.R.Crim.P 44.
At the arraignment on the Amended Information, the Court asked the Defendant, Asa Keener, whether he had seen a copy of the Amended Information. Asa Keener responded, "No, I haven't." (Tr.Proceedings 1-29-07, P. 14). The prosecution did not have an extra copy for Mr. Keener, however Mr. Keener's counsel, knowing that Mr. Keener had not seen the Amended Information, stated, "Waive the reading of the Amended Information, Your Honor." The Court's explanation of the nature of the charge was "The first count is criminal conspiracy exploitation of a vulnerable adult." The elements of the charge were not explained. (Tr.Proceedings 1-29-07, P. 14). Mr. Keener was told that Count I was a Class B Felony. There is no explanation in the record how the offense of conspiracy to exploit a vulnerable adult which had been bound over as a Class C Felony, became a Class B Felony.
Laurie Keener was also arraigned on the Amended Information. She stated that she had seen the Amended Information. (Tr.Proceedings 1-29-07, P. 16).
At no time in all of the proceedings up to and including the trial, did the Court inquire about the propriety of joint representation and personally advise each Defendant of the right to the effective assistance of counsel including separate representation as required by N.D.R.Crim.P. 44.
The jury trial was conducted on May 1-4, 2007. (Tr. Vols. I-IV). The jury returned verdicts of guilty to both counts on May 4, 2007. (Tr. PP. 675-686; Verdicts of Guilty 5-4-07, Docket Nos. 153, 154).
Judgments were entered on each count on August 10, 2007. (App. PP. 34-53). Notice of Appeal was filed on September 4, 2007. (App. P. 54).
III. FACTS
The prosecutor's opening statement did not point out any evidence which would prove the existence of an agreement between Asa and Laurie to exploit Laurie's mother, Florence Whisker, or to steal money from Laurie's Father, Marvin Whisker. (Tr. PP. 89 - 93). The prosecutor simply told the jury, "The State intends to prove beyond a reasonable doubt that the defendants did conspire and are guilty of the charges of theft of property and exploitation of a vulnerable adult." (Tr. P. 89).
Laurie Keener, the wife of Asa Keener, is the daughter of Florence and Marvin Whisker.
In 2002 Laurie came to Minot to stay with her parents when Florence was diagnosed with Parkinson's disease. While she was in Minot, Laurie worked at the Federal Courthouse. Asa stayed in Illinois. (Tr. P. 603-604).
In 2003-2004 Laurie again came to Minot from Salem, Illinois to care for her father while her mother was recuperating from a broken hip. (Tr. p. 586-587). After Laurie returned to Salem her mother fell and broke her other hip. Laurie returned to Minot and arranged for in-home care for her parents and returned to Salem (Tr. P. 587).
In December of 2004 Laurie and her husband, Asa, came to Minot from Salem to care for Laurie's parents. (Tr. PP. 588-589). They left their house, Asa's pickup, Laurie's car, their construction business and their belongings in Salem. (Tr. PP. 606-607, 613). While they were in Minot, they still had to pay for their mortgage and utilities in Salem. (Tr. P. 613). They did not have a vehicle in North Dakota until Laurie got a 1982 Jaguar. (Tr. P. 606). They did not have jobs in Minot other than caring for Marvin and Florence Whisker. (Tr. PP. 613). Laurie testified that because of her prior experience in Minot she and Asa were concerned about being able to meet their expenses when they decided to come to Minot in December, 2004. (Tr. P. 604).
Laurie testified that her parents agreed to pay Asa's and Laurie's expenses in Minot and in Salem while Laurie and Asa cared for Marvin and Florence. No exact amount of reimbursement was established between Laurie and her parents. (Tr. P. 589-590). There was no evidence that Asa participated in any discussion regarding payment from Florence and Marvin.
The bulk of the trial was concerned with the dates and amounts of money transferred from Florence and Marvin to Laurie and Asa. There was no evidence that Asa was told that he would not be reimbursed for his Salem expenses and his Minot expenses. There was no evidence that Asa knew the dates and amounts of deposits being made to his account.
The prosecution introduced evidence of numerous checks drawn of Marvin's and Florence's accounts. There was minimal evidence that Asa knew about most of the checks and no evidence that Asa knew or suspected the checks were not authorized. There was evidence that Asa accompanied Laurie to banks but no evidence that he knew any of the business Laurie conducted at the banks was unauthorized.
The prosecution's first witness, Ellen Sipma, testified that on August 30th (of 2005 according to Exhibits 1 & 2- Page 1) "Mr. and Mrs. Keener" came to Ms. Sipma's window. Laurie Keener gave Ms. Sipma a letter from Marvin Whisker addressed to the Wells Fargo Bank asking the bank to issue a cashier's check to Laurie Keener in Marvin Whisker's name in the amount of $25,000.00 with the funds to be drawn from his checking account. (Exhibit 1, also page 1 of Exhibit 2). According to Ms. Sipma, she asked "Laurie and the gentleman with her to come back." "The gentleman" was not identified in court. Ms. Sipma made a copy of the letter and the check.
There was no evidence that $25,000.00 was paid to Laurie from Marvin's account. (Tr. PP. 94-99). Laurie testified she had presented the letter to the bank at Marvin's request to get $25,000 to pay Florence's bill at Trinity Hospital. Laurie testified she never received the funds. (Tr. PP. 595-596). The letter did not authorize funds to be paid to Asa Keener.
Penny Chole, the sales and service manager of U.S. Bank at an unidentified location testified that Exhibit 4 was a copy of Asa Keener's bank statements. Exhibit 4 doesn't look like Asa's statements. (Tr. PP. 103-104; Exhibit 4).
Mrs. Chole has access to documents from U.S. Bank, but she does not have control over them. Her duties were to oversee employees and do operational things at the bank. (Tr. PP. 105-106). She was not the custodian of the records. (Tr. P. 107).
Somehow, Exhibits 4 and 5 were received in evidence without being offered. Exhibit 5 was not identified at all. The Exhibits were received by the Court without being offered. (Tr. P. 104) (See Tr. PP. 103-108 and PP. 372-375).
Exhibits 2 and 4 appear to contain photocopies of numerous checks drawn on Marvin Whisker's and Florence Whisker's bank accounts.
On Page 40 of State's Exhibit 2 is Check No. 2782 drawn on the account of Marvin A. Whisker with Wells Fargo Bank payable to Laurie Keener in the amount of $750.00. The check is endorsed with the endorsement apparently being from Laurie Keener with a notation "Deposit Only US Bank Ashleigh Whisker Account 199700509952."
There is no explanation why the check was deposited in Ashleigh's account . It is possible that Laurie was depositing checks into Ashleigh's account without Ashleigh's knowledge. This is but one example of where there is no evidence that the ultimate recipient of the money knew where the money came from if the recipient was even aware the money had been put in the recipient's account. .
When we examine the endorsements on the checks found in Exhibits 2 and 4 we cannot conclude that Asa knew about most of them.
No properly authenticated exemplar of Asa's signature appears in the record. Page 1 of Exhibit 3 probably contains his signature. If that is indeed Mr. Keener's signature then it's evident that Asa did not endorse the majority of the checks drawn on Marvin's and Florence's accounts as they appear in Exhibits 2 and 4.
It appears Asa probably endorsed only four of the checks written on Marvin's account and seven of the checks written on Florence's account. (Exhibits 2 and 4) Two charts of the relevant checks in Exhibits 2 and 4 follow. An underlined "X" appears under Asa's name by the checks endorsed with a signature that probably is Asa's.
MARVIN A. WHISKER FROM EXHIBIT 2 | |||||||
EX. 2 PAGE # | DATE | CHECK NO. | AMOUNT | LAURIE | ASA | ASHLEIGH/AMANDA | COMMENT |
| 15 | 02-01-05 | 2182 | $384.00 | X | |||
| 22 | 02-15-05 | 2189 | $415.00 | X | |||
| 27 | 08-02-05 | 2192 | $50.00 | X | X | Endorsed by Laurie | |
| 32 | 04-06-05 | 2642 | $693.42 | X | |||
| 35 | 05-06-05 | 2202 | $1250.00 | X | |||
| 36 | 05-03-05 | 2217 | $1000.00 | X | |||
| 37 | 05-05-05 | 2219 | $2300.00 | X | X | Endorsed by both | |
| 40 | 04-30-05 | 2782 | $750.00 | X | Deposit Ashleigh Whisker | ||
| 45 | 05-19-05 | 2201 | $850.00 | X | |||
| 46 | 05-20-05 | 2203 | $500.00 | X | |||
| 47 | 06-07-05 | 2204 | $1150.00 | X | |||
| 48 | 05-26-05 | 2205 | $565.00 | X | |||
| 49 | 05-26-05 | 2206 | $700.00 | X | X | Endorsement printed | |
| 50 | 05-19-05 | 2218 | $1000.00 | X | |||
| 51 | 06-02-05 | 2220 | $610.00 | X | |||
| 53 | 05-26-05 | 2785 | $1000.00 | X | |||
| 54 | 06-02-05 | 2786 | $1200.00 | X | |||
| 55 | 06-02-05 | 2787 | $500.00 | X | |||
| 56 | 06-11-05 | 2788 | $825.00 | X | |||
| 57 | 06-09-05 | 2789 | $1200.00 | X | X | Endorsed by Laurie | |
| 65 | 06-24-05 | 2223 | $2000.00 | X | X | Endorsement printed | |
| 66 | 06-29-05 | 2225 | $500.00 | X | X | Endorsement printed | |
| 67 | 07-01-05 | 2226 | $500.00 | X | X | Endorsement printed | |
| 68 | 06-30-05 | 2227 | $500.00 | X | X | Endorsement printed | |
| 69 | 07-04-05 | 2228 | $500.00 | X | X | Endorsement printed | |
| 70 | 07-02-05 | 2229 | $710.00 | X | X | Endorsement printed | |
| 71 | 07-05-05 | 2235 | $1250.00 | X | |||
| 73 | 07-09-05 | 2241 | $950.00 | X | X | Printed Endorsement not Asa | |
| 74 | 06-21-05 | 2303 | $3000.00 | X | X | Laurie Endorsed | |
| 75 | 06-15-05 | 2795 | $2000.00 | X | |||
| 76 | 06-16-05 | 2796 | $1100.00 | X | X | Laurie Endorse | |
| 77 | 06-18-05 | 2797 | $500.00 | X | Not Endorsed by Ashleigh | ||
| 78 | 06-20-05 | 2798 | $3000.00 | X | X | Endorsed Laurie | |
| 79 | 07-01-05 | 2799 | $500.00 | X | Notice Endorsement | ||
| 80 | 06-23-05 | 2801 | $1700.00 | X | X | Endorsed by Laurie | |
| 86 | 07-11-05 | 2242 | $1100 | X | Amanda Whisker | ||
| 87 | 07-14-05 | 2243 | $1200.00 | X | X | Endorsed by Laurie | |
| 89 | 07-19-05 | 2246 | $1250.00 | X | X | Printed Endorsement | |
| 91 | 07-21-05 | 2248 | $2300.00 | X | X | Moving Expense - Asa may have Endorsed | |
| 92 | 07-26-05 | 2249 | $2350.00 | X | X | Printed Endorsement | |
| 94 | 08-01-05 | 2251 | $2500.00 | X | X | Laurie - Printed Endorsement | |
| 96 | 08-05-05 | 2255 | $1200.00 | X | X | Laurie - Printed Endorsement | |
| 100 | 06-12-05 | 2792 | $500.00 | X | Laurie Endorsed | ||
| 104 | 08-26-05 | 2259 | $2750.00 | X | X | Printed Endorsement | |
| FLORENCE WHISKER FROM EXHIBIT 4 | |||||||
| EX. 2 PAGE # | DATE | CHECK NO. | AMOUNT | LAURIE | ASA | ASHLEIGH/AMANDA | COMMENT |
| 8 | 12-22-04 | 1424 | $1700.00 | X | |||
| 11 | 12-31-04 | 1437 | $1000.00 | X | |||
| 13 | 01-01-05 | 1435 | $500.00 | X | |||
| 15 | 01-14-05 | 1438 | $5000.00 | X | |||
| 16 | 01-21-05 | 1409 | $2000.00 | X | |||
| 22 | 02-01-05 | 1440 | $600.00 | X | |||
| 23 | 02-08-05 | 1314 | $850.00 | X | |||
| 24 | 02-15-05 | 1445 | $500.00 | X | |||
| 25 | 02-18-05 | 249 | $600.00 | X | X | Both Endorse | |
| 26 | 02-18-05 | 250 | $2000.00 | X | X | Both Endorse | |
| 30 | 02-25-05 | 1186 | $987.00 | X | |||
| 31 | 03-14-05 | 1414 | $2000.00 | X | X | Both Endorse | |
| 32 | 03-18-05 | 1447 | $1000.00 | X | |||
| 33 | 03-17-05 | 1415 | $1200.00 | X | |||
| 34 | 03-21-05 | 1449 | $1290.00 | X | |||
| 40 | 04-05-05 | 1326 | $1000.00 | X | X | Both Endorse | |
| 41 | 04-19-05 | 1364 | $1100.00 | X | X | Laurie Endorse | |
| 42 | 04-18-05 | 1417 | $500.00 | X | Not Endorsed | ||
| 43 | 04-19-05 | 1363 | $650.00 | X | |||
| 49 | 04-26-05 | 1420 | $526.45 | X | |||
| 53 | 05-31-05 | 1418 | $1500.00 | X | X | Laurie Endorse | |
| 57 | 08-18-05 | 1369 | $800.00 | X | Cash - air ticket grandchild | ||
| 61 | 08-24-05 | 1370 | $650.00 | X | X | Asa Endorse | |
Exhibit 5 purported to be records of U.S. Bank for Asa Keener's account. All the statements from that account were sent to Asa Keener, P. O. Box 205, Salem, Illinois 62881-0205. There is no evidence that the bank statements were forwarded to Asa or that he ever saw those statements.
There were no checks written on the account in Exhibit 5. The withdrawals from the account were by credit card or ATM except three counter withdrawals at Pages 127 and 128 and 133 of Exhibit 5.
Exhibit 6, the records from Prairie Federal Credit Union relate to the purchase of a Jaguar for Laurie's benefit, and two payments made to Laurie. Cashier's check No. 0463545 in the amount of $3,263.11 was payable to Florence Whisker. It bears the endorsements of Nancy Gruenberg. Nancy Gruenberg got the check from Laurie Keener. (Tr. P. 483). Laurie told Nancy that she was very excited because her mom or dad always wanted her to have a Jaguar. (Tr. P. 484). There was no evidence that Asa made any comment about the Jaguar purchase.
According to Mariah Mack, of "member services" at Prairie Federal Credit Union, Page 3 of Exhibit 6, is the back of Page 2 of Exhibit 6. (Tr. P. 109 & 114). Page 2 is a check payable to Florence Whisker, endorsed by Florence Whisker and presented to Nancy Gruenberg in payment for a Jaguar.
Nancy Gruenberg testified that she sold the Jaguar to Laurie Keener for $7,000.00. She testified that Laurie Keener paid for the Jaguar with a cashier's check, she identified her signature on Page 3 of Exhibit 6. If Nancy only received $3,263.11 from the check thee is no testimony about the source of the balance of the $7,000 payment. (Tr. PP. 482-484).
Mariah Mack also brought records of Marvin A. Whisker's account with Prairie Federal Credit Union to the trial. The records were introduced as Exhibit 7. Page 1 of Exhibit 7 shows an authorization dated May 3, 2005 for the credit union to release all funds in Marvin Whisker's account to Laurie Keener not Asa Keener. (Exhibit 7, P. 1). A check was written from Prairie Federal to Marvin Whisker in the amount of $57,723.06 on May 4, 2005 apparently at the request of Marvin Whisker. (Exhibit 7, P. 15). The endorsement on that check does not appear in evidence. There was no evidence that Asa knew about the $57,000 check
On August 18, 2005, a check in the amount of $850.00 was made payable to Laurie and Asa Keener. The memo showed it was for a ticket for a grandchild. The endorsement on the check is not Asa Keener's. (Exhibit 7, PP. 8 & 9).
Kevin Burckhard, a financial representative for Northwest Mutual, brought part of the records of Marvin Whisker's Northwest Mutual's annuity account to court. (Tr. PP. 122-124). Mr. Burckhard testified that on one occasion Laurie Keener and Asa Kenner came in to Northwest Mutual together and introduced themselves. Apparently no financial transactions occurred at that time. (Tr. PP. 125-126). Laurie came in alone at a later time and requested $25,000.00. (Tr. P. 126, Exhibit 8, P. 21). On August 3, 2005, Mr. Burckhard talked to Marvin Whisker on the telephone. Mr. Whisker told Mr. Burckhard that his daughter handles all of his financial affairs and he didn't have time to bother with it. (Tr. PP. 126-128, 133-134; Exhibit 8, P. 14). Asa Keener was not mentioned in that conversation.
Florence Whisker was wheeled into the courtroom, and the Court attempted to administer an oath. Mrs. Whisker's responses were inaudible. The Court held that Mrs. Whisker was unavailable as a witness because of then existing mental or physical illness or infirmity. (Tr. PP. 140-143).
After the Court ruled Mrs. Whisker was unavailable to testify at the trial the Court reviewed a memo to the file made by Judge Holte, file stamped on January 25, 2006. (App. P. 18). The memo recited that on January 17, 2006, Mr. Probst had made a contemporaneous objection to continuing a deposition of Florence Whisker because Florence Whisker was difficult to understand and often had to have questions asked several times. Mr. Probst stated he was concerned that the court reporter was having difficulty understanding Mrs. Whisker's answers. The transcript of the deposition bears this out. Every page of Florence Whisker's testimony has indiscernible answers from Florence. (Florence Whisker Depo. Tr., PP. 6-26).
It 's obvious from the deposition transcript that Florence Whisker was "not available" as a witness when she was deposed for the same reason she was "not available" as a witness at the trial "because of then existing mental or physical illness or infirmity" her testimony was unreliable.
When Florence was asked her daughter's name, she responded, "Laurie Asa." When asked again, Florence stated two times that Laurie's last name was "Salem, Illinois" and that Asa's name was "Salem, Alem or S-a-h-l-e-m." (Florence Whisker Depo.Tr. P. 7). Her physical or mental infirmity prevented her answers if they were answers from being heard or transcribed by the court reporter. Every page of the transcript of her deposition testimony contains notations to the effect that Florence's answers were "indiscernible."
Laurie Keener, who was present at Florence Whisker's deposition, testified that it was clear to her that when Rosa Larson asked Florence Whisker whether she wanted her daughter to have a Jaguar, that Florence responded she sure did. (Tr. P. 599, lines 10-20). This is but one example of the matters that were left unclear because Florence Keener's responses were inaudible.
When Marvin Whisker testified before the jury it was evident that he did not remember anything. (Tr. PP. 147-150).
The prosecution offered the transcript of Mr. Whisker's deposition. Mr. Probst objected because Mr. Probst had taken the deposition of Mr. Whisker and had not noticed the deposition as a deposition to perpetuate testimony. The Court looked at its records, and found an order of Judge Mattson dated December 5, 2005 stating that the deposition was for the purpose of perpetuating testimony. (Tr. PP. 257, 260). The notice of deposition did not say that the deposition was being taken to perpetuate testimony. (App. PP. 13-17). The transcript of Marvin's deposition was received as State's Exhibit 44. (Tr. P. 262).
The transcript of Marvin Whisker's deposition shows that Laurie Keener was not present when Marvin Whisker was deposed. (Marvin Whisker Depo.Tr. P.2) Laurie's absence seems to support Mr. Probst's recollection that Marvin's deposition wasn't to perpetuate testimony.
N.D.R.Crim.P. 15(f)(2)&(3) requires the defendant to be present at a deposition to perpetuate testimony. The rule states that if a defendant is not present at the commencement of the taking of a deposition to perpetuate testimony and the defendant's absence has not been excused, the deposition may be taken but it may be used only as a discovery deposition.
Mr. Probst objected to using the discovery deposition at trial.
Kari Sandberg, a social worker at Trinity Homes testified that on March 16, 2005 she saw Laurie Keener explain a power of attorney for financial purposes to Florence. At that time, Asa Keener was walking back and forth sitting on the bed, stretching and just kind of pacing back and forth around the room. (Tr. PP. 151-152). She testified that during the signing that Laurie Keener called Marvin Whisker on the phone, and Marvin Whisker told Florence to sign. Florence Whisker then signed the power of attorney. (Tr. PP. 153-154). There was no testimony that Asa Keener compelled or coerced Florence to sign the power of attorney.
Mary Voeller, an employee at Trinity Nursing Home, testified that on March 16, 2005 she overheard a conversation between "just the daughter and Florence" where "the daughter said, 'I am sick and tired of this.' and then I didn't hear the rest of the sentence. Then later on, you know, 'you have to sign them and you know you have to sign them now.'" (Tr. P. 158, lines 17-20). At that time, Florence and Laurie were the only people in room. There was no testimony that Asa was present. (Tr. PP. 158-159, 161).
Cathy Lynch testified that on March 16, 2005 she happened to be going by a TV room and she heard "Asa and Laurie" arguing with Florence. She went inside the room and said, "Is everything okay I here?" "Florence didn't say anything but Asa said well, he had left the room." According to Ms. Lynch, Asa "came back in and wondered what I was there for." (Tr. P. 167, lines 22-25). According to Ms. Lynch, Asa was angry, said it was a family matter, and was going to talk to the administrator, and he left the room. (Tr. P. 168). The subject of the argument was not revealed.
Cathy Lynch testified, "the two of them" came back with Marion Gullickson later in the day to have Florence sign the papers. (Tr. PP. 168-169). According to Cathy Lynch, Laurie and Asa left the room and returned later in the day with Marion Gullickson. (Tr. P. 169). Marion Gullickson testified that when she came to notarize the documents, Asa Keener said, "Hurry up. If she doesn't want to sign that, we need to get going." (Tr. P. 176). Laurie Keener made a phone call, and Florence talked on the phone. Florence indicated she was talking to Marvin. (Tr. P. 177). Ms. Gullickson testified that she normally goes through a power of attorney form with people to make sure they are aware of what they are signing. (Tr. P. 179).
On the second day of the trial, Mr. Probst again objected to Exhibits 4 and 5 which had been introduced through the testimony of Penny Chole and cited of the case of Farmers Union Oil Co. Of Dickinson v. Wood, 301 N.W.2d 129. (Tr. PP. 239-240). He also objected that there were no known checks or handwritten items to authenticate or compare Florence Whisker's handwriting and Asa Whisker's handwriting. (Tr. P. 241).
Virginia Deibert, the lead teller at Wells Fargo Bank, introduced Exhibit 3, which purported to be a copy of Asa Keener's account with Wells Fargo Bank. The account showed it was opened on July 6, 2005 with an initial deposit of $500. There were no other deposits made in the bank. The account was apparently closed on September 8, 2006. There were no checks written on the account. The account was used to purchase items at Miracle Mart, Fed Ex, what appears to be an ATM withdrawal in the amount of $161.95. (Tr. PP. 251-256).
Laurie admitted that she had signed some of Marvin's checks. (Tr. P. 605).
IV. ARGUMENT.
A. INEFFECTIVE ASSISTANCE OF COUNSEL -
JOINT REPRESENTATION
Synopsis of Principal Argument
Asa Keener's principal argument is that he was denied the effective assistance of counsel because his lawyer, Paul Probst, had divided loyalties. Those divided loyalties stopped Mr. Probst from effectively pursuing Asa's viable defense to the conspiracy charges because effective pursuit of Asa's defense probably would have subjected Mr. Probst's other client, Laurie, to indictment and conviction for the substantive charges of Theft and Exploitation of a Vulnerable Adult.
If Mr. Probst hadn't had divided loyalties, he could and should have argued and proved that Asa was only guilty of trying to help Laurie care for her parents. Asa relied on Laurie to make financial arrangements with Marvin and Florence. They were Laurie's parents and Laurie would be expected to deal with them. Asa innocently believed Laurie when she told him her parents had promised to reimburse Asa and Laurie for their Salem and Minot expenses. Asa innocently believed Laurie was authorized by Marvin and Florence to receive significant amounts of money for their care. Asa had no reason to doubt that Laurie was only doing what Florence and Marvin wanted her to do. There was no conspiracy between Asa and Laurie. Instead Asa was duped by Laurie.
Mr. Probst owed Asa a duty of undivided loyalty in his defense. Instead of giving Asa his undivided loyalty, Mr. Probst attempted to serve two masters - - Asa and Laurie. Mr. Probst had a duty to Laurie not to advance Asa's defense because if he proved Asa's defense he would be subjecting Laurie to indictment and conviction for the substantive offense of theft from her parents.
Federal and State Right to Effective Representation by Counsel.
The Sixth and Fourteenth Amendments to the United States Constitution, guarantee a criminal defendant the right to counsel at trial. Gideon v. Wainwright, 372 U.S. 335 (1963). Assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,"Chapman v. California, 386 U.S. 18, 23 (1967). The right to counsel means the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (6th Amendment right to counsel is the right to effective assistance of counsel).
Article I, § 12 of the North Dakota Constitution [formerly N.D.Const. Art. I, § 13] guarantees a criminal defendant the right to counsel at trial. That right to counsel means the right to effective counsel. Ineffective, incompetent, or inadequate representation is the same as having no counsel at all. State v. Keller, 57 N.D. 645, 223 N.W. 698, 699 - 700 N.D. 1929. In Keller, defense counsel was intoxicated during the trial. This Court stated under those circumstances the trial judge had the duty to advise the defendant as to his right to select other counsel and to afford him a reasonable opportunity to do so if he wished. Id., 223 NW at 700.
State Test for Ineffective Assistance
Keller, supra held that ineffective assistance of counsel required a reversal of a criminal conviction if the inadequate representation had amounted to a "farce and a travesty on justice." Id., 223 NW at 700. This Court abandoned the Keller standard in determining whether a defendant received the effective representation of counsel and adopted a "reasonably effective assistance" standard in State v. Bragg, 221 N.W.2d 793, 802 (N.D. 1974). See also State v. McKay, 234 N.W.2d 853, 857 (N.D. 1975).
Currently North Dakota's standard of review for ineffective assistance of counsel in most cases is as follows:
"To establish ineffective assistance of counsel, a party must prove (1) counsel's performance was deficient such that it fell below an objective standard of reasonableness; and, (2) counsel's deficient performance prejudiced the defendant. Klose v. State, 2005 ND 192, ¶ 9, 705 N.W.2d 809. This Court prefers an ineffective assistance of counsel claim be made in an application for post-conviction relief so that an evidentiary record can be made that will allow scrutiny of the reasons underlying counsel's conduct. State v. Causer, 2004 ND 75, ¶ 19, 678 N.W.2d 552. Nevertheless, this Court will, on direct appeal, examine the entire record to determine if assistance of counsel was plainly defective. Id. Assistance of counsel is plainly defective when the record affirmatively shows ineffectiveness of constitutional dimensions or the defendant points to some evidence in the record to support the claim. Id. "When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made." State v. Strutz, 2000 ND 22, ¶ 26, 606 N.W.2d 886."
State v. Klein, 2006 ND 37 ¶2, 711 N.W.2d 606.
But North Dakota has not yet addressed the standard of review in cases involving a conflict of interest of joint representation of criminal co-defendants when there has not been trial court inquiry as to whether joint representation was appropriate and whether the parties were knowingly and voluntarily waiving their right to separate representation.
Federal Test for Ineffective Assistance - Normal
In Federal cases, normal ineffective assistance of counsel claims are analyzed under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). As in North Dakota, to obtain reversal of a conviction in Federal Court under Strickland the defendant is required to prove that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome in the proceeding. Id. 466 U.S. at 687.
Federal Test for Ineffective Assistance - Conflict of Interest.
However, the Strickland court held that the standard it had previously adopted in Cuyler v. Sullivan, 446 U.S. 335 (1980) would continue to govern analysis of claims that counsel's assistance was rendered ineffective by a conflict of interest. Strickland, supra, 466 U.S. at 683-684. While Strickland established a strict standard in assessing general ineffective assistance of counsel claims, the more liberal standard enunciated in Cuyler was retained in conflict of interest claims because counsel's duty of loyalty the duty of avoid conflicts of interest is a clearly established basic duty.
"Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan, [446 U.S. 35 (1980) ], at 346. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See Powell v. Alabama, 287 U.S., at 68-69, 53 S.Ct., at 63-64."
Strickland v. Washington, 466 U.S. at 688- 689 (emphasis added).
"In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. See United States v. Cronic, 466 U.S., at 659, and n. 25, 104 S.Ct., at 2046-2047, and n. 25.Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. 466 U.S., at 658, 104 S.Ct., at 2046.Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345-350, 100 S.Ct., at 1716-1719, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, supra, 446 U.S., at 350, 348, (footnote omitted)."
Id., 466 U.S. at 692.
Under the Sixth and Fourteenth Amendments to the U.S. Constitution prejudice is presumed and Mr. Keener's conviction must be reversed if Mr. Keener demonstrates (1) counsel actively represented conflicting interests and (2) the actual conflict of interest adversely affected counsel's performance.
The reason joint representation cases are treated differently is pointed out in an analysis of the potential harm of join representation in Holloway v. Arkansas, 435 U.S. 475, (1978).
There the Court noted that joint representation is suspect because of what it tends to prevent the defense lawyer from doing. Joint representation can preclude defense counsel from exploring possible plea negotiations and the possibility of an agreement for one jointly represented client to testify for the prosecution against a co-defendant in exchange for a plea to a lesser charge or a favorable sentencing recommendation. Joint representation can prevent or hinder an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another. Joint representation can prevent the defense lawyer from arguing one client's involvement was minimal by emphasizing the culpability of the other client. The Court stated, "The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters." 435 U.S. 475, 489 - 490 (1978). Of course, counsel's failure to do something leaves a blank record.
The Court's analysis in Holloway is hardly comprehensive. We must recognize that although counsel might be able to anticipate the routine problems that might arise because of joint representation, jury trials routinely give birth to unique and unanticipated problems and those problems can easily lead to serious conflicts which impair a lawyer's ability to exercise independent professional judgment and to give undivided loyalty to each client.
The problem with reviewing joint representation cases for possible prejudice is compounded because counsel's options and decisions normally cannot be easily discerned from the trial record. In fact, trial counsel routinely must make split-second tactical decisions. Divided loyalties will impair counsel's judgment and can easily prevent counsel from following the path best suited for one client's defense because that path is potentially fatal for another client's interests.
Defense attorneys' trial decisions are seldom evident in the trial record, yet those decisions go to the heart of effective representation.
Federal Test for Conflict of Interest Adverse Effect.
"Adverse Effect" Tests in the Circuits.
The Federal Circuits are divided as to how a defendant may demonstrate that a conflict adversely affected his counsel's performance.
The Second Circuit holds that a defendant need suggest only a "plausible" alternative strategy that was not pursued at trial, not necessarily a "reasonable" one. See Eisemann v. Herbert, 401 F.3d 102, 107 - 108 (2d Cir. 2005). "To prove the lapse in representation 'a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.' " Id. at 107.
The Fourth Circuit requires defendants urging an ineffective assistance claim based on conflict of interest to (a) identify a plausible alternative defense strategy or tactic that their defense counsel might have pursued, (b) show that the alternative strategy or tactic was objectively reasonable under the facts of the case," and (c) establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict. Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir.2001) (in banc), aff'd without consideration of this point, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
The Eighth Circuit adopted the Fourth Circuit Mickens test in Covey v. United States, 377 F.3d 903, 908 (8th Cir.2004).
The Eleventh Circuit in Quince v. Crosby, 360 F.3d 1259, 1264 (11th Cir.2004) requires the defendants to make a factual showing of inconsistent interests or point to specific instances in the record to suggest an actual impairment of his or her interests.
Adverse Effect in Asa's Case
Obviously Asa had a plausible and reasonable defense strategy that Mr. Probst did not pursue. Isn't it reasonable for a husband to expect his wife to deal with his in laws? Isn't it reasonable for the husband to believe his wife would truthfully explain the financial arrangements she made with her parents?
Mr. Probst did not ask Laurie what she had told Asa about her financial arrangements with her parents. Mr. Probst did not ask any other witnesses, about Asa's knowledge of Laurie's financial arrangements with her parents. Mr. Probst did not ask Laurie or any other witnesses about the extent of Asa's knowledge of the marital income and marital expenses while they were in Minot. Most significantly, Mr. Probst called Laurie to testify but did not call Asa.
Under any of the tests utilized in the Federal Circuits Asa has demonstrated joint representation had an adverse effect his defense. Mr. Probst did not examine any witnesses, especially Laurie, about the paucity of evidence that Asa knew or suspected the fund transfers from Marvin and Florence were unauthorized. He did not emphasize how little evidence connected Asa with any unauthorized transfer of funds. Asa's defense was not established in opening statement indeed there was no opening statement, witnesses were not examined to establish Asa's defense during the evidentiary portion of the trial, and Asa was barely mentioned in Mr. Probst's final argument. (Tr. PP. 657-668).
North Dakota Test for Conflict of Interest Higher Standard
Mr. Keener has not found any North Dakota cases establishing the standard for analyzing claims that counsel's assistance was rendered ineffective by a conflict of interest under Art. I, § 12, N.D.Const.
But Art. I, § 12, N.D.Const. does provide greater protection against the denial of counsel than the protection afforded by Sixth and Fourteenth Amendments to the United States Constitution.
State v. Orr, 375 N.W.2d 171 (N.D. 1985) addressed the question of whether a prior uncounseled DUI conviction could be used to enhance the penalty for a subsequent DUI offense. In Orr this Court held that under Baldasar v. Illinois, 446 U.S. 222, (1980), the Sixth and Fourteenth Amendments to the U.S. Constitution did not prohibit use of an uncounseled prior conviction for an offense punishable by less than six months' imprisonment to enhance the penalty for a subsequent conviction. However, Article I. § 12 of the North Dakota Constitution provided greater protection to the defendant in a state prosecution and the North Dakota Constitution prohibited use of an uncounseled prior conviction for an offense punishable by less than six months' imprisonment to enhance the penalty for a subsequent conviction. In reaching that conclusion, this Court emphasized its view of the right to counsel's great importance under the State's constitutional scheme:
"Article I, § 12, N.D. Const., provides that the accused shall have the right 'to appear and defend in person and with counsel.' That language differs from the sixth amendment which provides 'The accused shall enjoy the right to ... have the Assistance of Counsel for his defense.'
Section 12 of the North Dakota Constitution is a guarantee that one accused of a crime is entitled to counsel * * * This right has long been zealously guarded not only by the courts of this State, * * *, but also by the Legislature as far back as 1895. * * * Prior to statehood the right to counsel was acknowledged by the territorial laws * * *
We have traditionally recognized that the right to counsel under our Constitution is fundamental because it enables an accused to procure a fair trial. * * * This special regard for the intrinsic value of § 12 has been exercised independently of any compulsion under federal law or the federal constitution. * * *
Underlying our judicial constitutional interpretation that § 12 provides the key to a fair trial is the belief that counsel will, if not guarantee, then at least facilitate the optimum outcome for a defendant in a given case. Uncounseled convictions, thus, are to be rightly regarded with skepticism. They are unreliable. * * * We agree that the denial of the right to counsel impeaches 'the very integrity of the fact-finding process,' * * *, and that the right to counsel is 'fundamental and essential to a fair trial.'" * * *
Orr, supra, 375 N.W.2d at 176 & 178. (All internal citations and part of text omitted).
North Dakota Rules - Duty to Inquire - Joint Representation
At the time this action started, North Dakota had no Criminal Rule requiring the Court to inquire about the propriety of joint representation. However, N.D.R.Crim.P. 44, was amended while this action was pending.
On March 1, 2006 Subdivision (c) was added to N.D.R.Crim.P. 44.
That amendment requires the court to promptly inquire about the propriety of joint representation and further requires the court to personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Further, the court is directed that "Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel." The explanatory note to Rule 44 stated, "A court inquiry is necessary in [joint representation] cases because serious conflicts can develop when a single attorney represents defendants who may have different interests."
The change to Rule 44 became effective immediately upon it adoption and required the court to promptly inquire about the propriety of joint representation in the pending action because it governed all further proceedings in actions pending on March 1, 2006.
Section 1-02-10 N.D.C.C. relating to retroactivity of statutes does not control the application of procedural rules in North Dakota Courts. Paxton v. Wiebe, 1998 ND 169, 584 N.W.2d 72, 77 fn. 6.
Article VI, Section 3 of the North Dakota Constitution and N.D.C.C. § 27-02-09 give this Court sole authority promulgate rules of procedure. It is solely within the discretion of this Court to determine the effective date of a rule of procedure not affecting substantive rights.
This Court promulgated the general rule that amendments to the Rules of Criminal Procedure "govern all criminal proceedings and actions brought after their effective date, and all further proceedings in actions pending on their effective date. N.D.R.Crim.P. 59(a) (emphasis added). See e.g. State v. Flohr, 301 N.W.2d 367 (N.D. 1980).
The amendment to Rule 44 was modeled on F.R.Crim.P. 44(c) which was adopted in 1979. Mike Hagburg, Memo to Joint Procedure Committee re Rule 44, N.D.R.Crim.P. attached to Joint Procedure Committee, Agenda for January 27-28, 2005, Meeting. At the Joint Procedure Committee meeting, "A member asked whether the new requirement for a court inquiry into joint representation was something that happened in courts now, even though not required by the current rule. Members responded that it was done informally." Joint Procedure Committee Minutes January 27-28, 2005 Meeting, p. 37.
ABA Standard.
N.D.R.Crim.P. Rule 44(c) directly addresses the American Bar Association's concerns about the problems inherent in joint representation. ABA Standards for Criminal Justice: Prosecution and Defense Function, (3d ed., 1993) Standard 4-3.5 (c) "Conflicts of Interest" states:
* * *
"(c) Except for preliminary matters such as initial hearings or applications for bail, defense counsel who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time in the proceeding or that common representation will be advantageous to each of the codefendants represented and, in either case, that:
(i) the several defendants give an informed consent to such multiple representation; and
(ii) the consent of the defendants is made a matter of judicial record. In determining the presence of consent by the defendants, the trial judge should make appropriate inquiries respecting actual or potential conflicts of interest of counsel and whether the defendants fully comprehend the difficulties that defense counsel sometimes encounters in defending multiple clients."
Proposed North Dakota Standard.
In light of North Dakota's zealously guarded high standard for representation by counsel and the directives of Rule 44(c), Mr. Keener respectfully proposes that this court should apply the reasoning of Cuyler, relating to conflicts to Article I, § 12 and should adopt the "Adverse Effect" standard followed by the Second Circuit e.g. "that a defendant need suggest only a 'plausible' alternative strategy that was not pursued at trial, not necessarily a 'reasonable' one. See Eisemann v. Herbert, 401 F.3d 102, 107 (2nd Cir. 2005).
B. ADMISSION OF FLORENCE WHISKER DEPOSITION PLAIN ERROR
It was plain error to allow the transcript of Florence Whisker's deposition testimony to be read to the jury. It was evident she was confused and unable to understand questions at the time of her deposition. It was evident she did not have the strength or capacity to make herself heard or understood at the time of her deposition. Every page of Florence Whisker's testimony during her deposition contained answers that were "indiscernible."
The court simply permitted the confusing and partially transcribed out-of-court statements of a sick and confused "incompetent witness" to substitute for in-court testimony from the same witness who suffered from identical disabilities at the time of the trial. (Tr. Dep. Florence Whisker, Rec'd as Exhibit 49; Trial Tr. PP. 498-511; Exhibit 42).
The court excused Florence Whisker from personally testifying before the jury because of then existing mental or physical illness or infirmity and then promptly permitted the jury to consider previously recorded given when she was obviously unable to present relevant information because she was then suffering from the same mental or physical illness or infirmity. There was no reason to substitute Florence's unintelligible deposition testimony for her unintelligible courtroom testimony.
The Rules of Criminal Procedure express a preference for oral testimony in open court. N.D.R.Crim.P. 26.
The inaudible portions of Florence's testimony were so substantial that the remainder of her testimony was rendered untrustworthy. The defendant was not able to cross examine Florence Whisker in any meaningful way at trial or at the deposition because her statements on direct examination were inaudible and she could not hear or understand the questions on direct examination. The inaudible answers made it impossible for Mr. Probst to adequately represent Asa Keener.
Before the decision in Crawford v. Washington, 541 U.S. 36, (2004) an unavailable witness's out-of-court statements were admissible and could be heard by the jury only if the out-of-court statements possessed such strong indicia of reliability or particularized guarantees of trustworthiness that they could be deemed trustworthy. Ohio v. Roberts, 448 U.S. 56, 66 (1980). Crawford held that the Confrontation Clause's ultimate goal is to ensure reliability of evidence. The Court noted:
"[I]t is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined."
Crawford, supra, 448 U.S. at 60.
Of course the extensive inaudibility of Florence's responses rendered her few remaining responses unreliable because they were recorded out of context and because Florence could not be effectively cross-examined. Mr. Probst had tendered a timely and proper objection to continuing Florence's deposition. It was error to permit her unreliable and untested testimony to be read to the jury.
There is little doubt that admission of Florence's testimony was error. The question is whether Mr. Probst's objection made contemporaneously with the deposition was sufficient to preserve Asa's allegation error. Asa believes the objection sufficed. It brought his legal concerns to the attention of the court at the time it was made and also at the time of the trial.
If the court determines Asa's objection at the deposition was not timely or sufficient then the question is whether admission of Florence's deposition constituted "plain error."
The "obvious error" standard has been repeated by this court many times. One of the most recent pronouncements was in State v. Kautzman, as follows:
"This Court cautiously exercises its authority to notice obvious error and does so only in exceptional circumstances in which a party has suffered a serious injustice. [State v.] Flanagan, 2004 ND 112, ¶ 6, 680 N.W.2d 241. This Court may notice a claimed error not brought to the attention of the trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights. Id. When "a defendant establishes that a forfeited plain error affects substantial rights, we have discretion to correct the error and should correct it if it 'seriously affects the fairness, integrity or public reputation of judicial proceedings.' " Id. (quoting State v. Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658).
State v. Kautzman, 738 N.W.2d 1 ¶ 15, 2007 ND 133.
In this action plain error affected Mr. Keener's substantial rights. Florence's partial testimony was highly prejudicial and let the jury speculate as to what her answers might have been. Its admission was plain error.
C. IMPROPER AMENDMENT OF INFORMATION
Article I, § 10, N.D.Const. requires all criminal prosecutions to be by Indictment or Information. This requirement is also found in N.D.C.C. §29-01-01. An Information cannot be filed unless the defendant waives preliminary hearing on the charge or is bound over on the charge following preliminary hearing.. Rules 5(c), 5.1 and 7, N.D.R.Crim.P. and N.D.C.C. §29-09-02.
Either a Grand Jury or a Magistrate must make a finding of probable cause before a citizen can be required to stand trial for an offense. There was no judicial finding of probable cause to believe that Asa committed offense of conspiracy to exploit a vulnerable adult in excess of $20,000. There was no order entered permitting amendment of the information. At trial Mr. Keener stood charged with a class C Felony on the exploitation charge, not a class B felony.
V. CONCLUSION.
Asa Keener was denied effective assistance of counsel because of joint representation. Florence Keener's Deposition should never have been read to the jury.
For the foregoing reasons, Mr. Keener asks that the conviction in this matter be reversed and that the matter be remanded for a new trial with separate counsel.
If the case is not remanded for new trial, Mr. Keener must be resentenced on the conspiracy to exploit charge which never was a Class B Felony.
Respectfully submitted this 15th day of February, 2008.
| TOM TUNTLAND | ||||||||||||
| Attorney for Defendant | ||||||||||||
| P. O. Box 1315 | ||||||||||||
| Mandan, ND 58554 | ||||||||||||
| (701) 667-18898 | ||||||||||||
| Tom Tuntland #03250 | ||||||||||||