STATE OF NORTH DAKOTA
IN THE SUPREME COURT
Supreme Court No. 20090339
|State of North Dakota,||)||Crim. No. 08-K-02762|
|Joshua John Poitra,||)|
Appeal from Decisions Denying Defendant's Pre-trial Motions, and
Final Judgment and Sentencing On
July 10, 2009, before the
Honorable Georgia Dawson
|Kimberlee J. Hegvik||Kent M. Morrow|
|Assistant States Attorney||Attorney for Appellant|
|PO Box 2806||411 N. 4th Street #6|
|Fargo, ND 58108-2806||Bismarck, ND 58501|
|(701) 241-5850||(701) 255-1344|
|State ID # 06194||State ID # 03503|
TABLE OF CONTENTS
|Table of Contents||page 2|
|Table of Authorities||..page 3|
|Statement of Facts||...¶1-9|
|Statement of Proceedings||...¶10-13|
|Was the failure of the Fargo Police Department to provide notice to Joshua Poitra of his right to counsel or the presence of counsel prior to obtaining his DNA a violation of his constitutional rights?|
|Were the police reckless in their affidavit for the search warrant in failing to include Joshua Poitra's date of birth and juvenile status or the conflicting evidence as to the victim's identification of Joshua Poitra?|
|Did the trial court err when it refused to suppress the collection of Joshua Poitra's DNA sample due to the police's failure to permit consultation with his mother or counsel prior to collection?|
|Did the court err when it refused to suppress the use of Joshua Poitra's photograph in a line-up due to non-compliance with Section 27-20-53(6)?|
|Did the trial court err when it failed to make any findings as to whether imposition of the mandatory minimum sentence would impose a manifest injustice, thereby negating the mandatory component of the sentence imposed?|
|Did the trial court err when it granted the State's Motion to Preclude Use of Evidence Under Rule 412, North Dakota Rules of Evidence?|
|Law and Argument||....¶20-88|
Certificate of Service by Electronic Mail ...page 25
TABLE OF AUTHORITIES
|Breding v. State, 1998 ND 170, ¶ 10, 584 N.W.2d 493, 497||..¶54, 58|
|Franks v. Delaware, 438 U.S. 154, 155-156 (1978)||.¶28|
|In Interest of B.S., 496 N.W.2d 31, 32 (1993)||....¶58|
|In Interest of R.D.B., 1998 ND 15, ¶ 11, 575 N.W.2d 420, 422||....¶53|
|In re R.P., 2008 ND 39, ¶ 13, 745 N.W.2d 642, 645-646||..¶51,53|
|In re Z.C.B., 2003 ND 151, ¶13, 669 N.W.2d 478, 482||.¶53,54|
|Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253||...¶73|
|Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375||...¶73|
|Powell v. State, 86 Wis.2d 51, 271 N.W.2d 610 (1978)||.¶73|
|Rummel v. J.D.Z., 431 N.W.2d 272 (N.D. 1988)||¶58|
|State v. Damron, 1998 ND 71, ¶ 6-7, 575 N.W.2d 912||¶ 35,38|
|State v. Packineau, 423 N.W.2d 148, 150 (N.D. 1988)||.¶73|
|State v. Reinart, 440 N.W.2d 504||¶87|
|State v. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268||..¶38|
|State v. Wamre, 1999 ND 164, ¶ 7, 599 N.W.2d 268||....¶38|
|N.D.Cent.Code § 27-20-26||..¶51, 53, 54, 57, 58|
|N.D.Cent.Code § 27-20-27||.¶61|
|N.D.Cent.Code § 27-20-53(6)||.¶17, 65, 66, 70,72|
|N.D.Cent.Code § 27-20-54||....¶67|
|Fifth Amendment (to the U.S. Constitution)||....¶80|
|Rule 412, N.D.R.Evid.||...¶19, 83, 84, 85,88, 93|
|Uniform Juvenile Court Act||....¶51|
STATEMENT OF FACTS
1. On June 1, 2008, A.B. was at home with her son in Fargo, North Dakota. (Transcript of Trial, Vol. 2, p,. 56, ll. 15-18). Later on that evening, she went to her neighbor Jenny White's apartment. (Tr. Vol 2, p. 56, ll. 19-21). There were several other people present. One individual was introduced to her as Justin ("Poitra"). (Tr. Vol. 2, p. 57, ll. 12-17).
2. Around 2:30 a.m., A.B. went with several of the individuals to another house to get cigarettes. (Tr. Vol. 2, p. 61, ll. 3-12). Instead of getting cigarettes, the parties went to the house of one of the individuals named Levi, in Fargo. Upon arrival, A.B. used the bathroom. When she returned to the party, the car and driver had left. (Tr. Vol. 2, p. 62, ll. 1-11). She called a cab to take her back home.
3. She went outside to wait for the cab. The cab failed to arrive. She called again and was advised that she had given the cab company the wrong address. (Tr. Vol. 2, p. 63, ll. 1-13). The taxi cab company advised her to "call an ambulance" and didn't send a taxi for her. (Tr. Vol. 2, p. 63, ll. 14-17).
4. As A.B. was waiting for a cab, Joshua Poitra came out to talk with her. Poitra said that he would go back inside and get the correct address. He did not re-enter the house, but came back to her. Someone grabbed her from behind. (Tr. Vol. 2, p. 64, ll. 13-25, p. 65, ll. 1-4). He dragged her to the side of the house next to a car. While he was dragging her, she had difficulty breathing. (Tr. Vol. 2, p. 65, ll. 7-12).
5. He threw A.B. to the ground and proceeded to remove her pants and underwear. He commenced to engage in sexual intercourse. (Tr. Vol. 2, p. 66, ll. 9-20). He had difficulty penetrating her because of lack of lubrication. She persuaded her assailant to allow her to turn around. When he allowed her to do so, she escaped and ran away. (Tr. Vol. 2, p. 67, ll. 1-15). She ran out into the street for help. She was successful in flagging down a police car. (Tr. Vol. 2, p. 69, ll. 1-4). The police took her to Meritcare Hospital. She refused to undergo the "rape kit". (Tr. Vol. 2, p. 71, ll. 3-16). The following day she did undergo the rape testing at Innovis Hospital. (Tr. Vol. 2, p. 72, ll. 1-10).
6. Several days later, A.B. was shown a lineup of photographs. She identified Joshua Poitra as her attacker. (Tr. Vol. 2, p. 73, ll. 1-10).
7. On June 17, 2008, Detective Lies and Detective Shaw proceeded to an interview room at the police department to interview Poitra. They asked Joshua Poitra if he would be willing to provide a DNA sample. Poitra replied, questioning the reason for such sample. The police informed Joshua Poitra that a sexual assault had occurred in Fargo at the address of 921-6th Avenue North. Poitra said that he wanted to speak with his mother and a lawyer before he made any decision.
8. On June 16, 2008, Detective James Shaw of the Fargo Police executed an affidavit to obtain a search warrant, specifically to obtain a DNA buccal swab from Joshua Poitra. The affidavit failed to give Poitra's birth date or his juvenile status. Detective Shaw stated, as the basis for probable cause to issue the search warrant, that Joshua Poitra "matches the general age group of the suspect, based on the fact that he was at the residence where the original incident occurred, and based on the fact that he refused to voluntarily provide a DNA sample. . .".
9. The search warrant was issued and executed on June 17, 2008. A DNA sample was procured.
STATEMENT OF PROCEEDINGS
10. On June 19, 2008, a petition was filed in juvenile court against Joshua Poitra alleging the delinquent acts of Minor in Possession of Alcohol, Aggravated Assault and Gross Sexual Imposition. On June 30, 2008, following a hearing on a Motion to Transfer to Adult Court, the juvenile court, the Honorable Scott Griffeth presiding, transferred the Gross Sexual Imposition and Aggravated Assault charges to adult district court.
11. On February 25, 2009, a hearing was held on the defendant's motion to suppress. The Motion was denied by the Honorable Georgia Dawson.
12. A jury trial was held on July 7 and 8, 2009. Following the trial, guilty verdicts were received on the Gross Sexual Imposition and Aggravated Assault charges. On October 26, 2009, Poitra was sentenced to 25 years at the Department of Corrections, with 5 years suspended for 5 years. He was also sentenced to a concurrent 5 year sentence on the Aggravated Assault charge.
13. On November 4, 2009, a Notice of Appeal was filed with the North Dakota Supreme Court.
14. Was the failure of the Fargo Police Department to provide notice to Joshua Poitra of his right to counsel or the presence of counsel prior to obtaining his DNA a violation of his constitutional rights?
15. Were the police reckless in their affidavit for the search warrant in failing to include Joshua Poitra's date of birth and juvenile status or the conflicting evidence as to the victim's identification of Joshua Poitra?
16. Did the trial court err when it refused to suppress the collection of Joshua Poitra's DNA sample due to the police's failure to permit consultation with his mother or counsel prior to collection?
17. Did the court err when it refused to suppress the use of Joshua Poitra's photograph in a line-up due to non-compliance with Section 27-20-53(6)?
18. Did the trial court err when it failed to make any findings as to whether imposition of the mandatory minimum sentence would impose a manifest injustice, thereby negating the mandatory component of the sentence imposed?
19. Did the trial court err when it granted the State's Motion to Preclude Use of Evidence Under Rule 412, North Dakota Rules of Evidence?
LAW AND ARGUMENT
20. The Fargo Police Department violated Joshua Poitra's constitutional rights by failing to advise him of his rights to counsel before obtaining his DNA.
21. Joshua Poitra was born on xxx-xx, 1991. On June 2, 2008, a report of an alleged sexual assault was made to the Fargo Police Department. The investigation eventually focused on Joshua Poitra.
22. On June 17, 2008, Detective Lies and Detective Shaw proceeded to an interview room at the police department to interview Joshua Poitra. They asked Poitra if he would be willing to provide a DNA sample. The police informed Joshua Poitra that a sexual assault had occurred in Fargo at the address of 921-6th Avenue North. Poitra said that he wanted to speak with his mother and a lawyer before he made any decision.
23. On June 16, 2008, Detective James Shaw of the Fargo Police executed an affidavit to obtain a search warrant specifically to obtain a DNA buccal swab from Joshua Poitra The affidavit failed to give Poitra's birth date or his juvenile status. Detective Shaw stated, as the basis for probable cause to issue the search warrant, that Joshua Poitra "matches the general age group of the suspect, based on the fact that he was at the residence where the original incident occurred, and based on the fact that he refused to voluntarily provide a DNA sample. . .".
24. The search warrant was issued and executed on June 17, 2008.
25. On June 18, 2008, police learned that Joshua Poitra was in fact a juvenile.
26. On March 11, 2009, Joshua Poitra, through his counsel, filed a motion to suppress. The bases for the motion were that the police had excluded Joshua Poitra's juvenile status from the affidavit and that Poitra as a juvenile, has a constitutional right to counsel prior to the state seizing his DNA.
27. The District Court , the Honorable Georgia Dawson, presiding, denied the motion and ruled that Poitra intentionally failed to correctly state his date of birth to law enforcement officers, or failed to correct them when they asked him if they had the correct date of birth. The court also ruled that "(a)llowing a juvenile the benefit of counsel prior to the execution of a warrant would defeat the very purpose of a search warrant, which is seizing evidence of crime. Such a rule would defeat any degree of surprise that law enforcement officers currently possess when executing search warrants on juveniles."
28. Joshua Poitra alleged that the police included "a false statement knowingly and intentionally, or with reckless disregard for the truth," in the affidavit for the search warrant. Franks v. Delaware, 438 U.S. 154, 155-156 (1978).
29. Poitra was required to make more than conclusory statements in order to mandate an evidentiary hearing. This burden was met, as an evidentiary hearing was held on February 25, 2009. If after hearing, a defendant establishes, by a preponderance of the evidence, that the false statement was included in the affidavit by the affiant knowingly and intentionally or with reckless disregard for the truth, and the false statement was necessary to the finding of probable cause, then the search warrant must be voided and the fruits of the search excluded from the trial to the same extent as if probable cause was lacking on the face of the affidavit. Id, at 155-156.
30. Poitra was taken into custody in the early morning hours of June 15, 2008. The police were aware that their files or computers should have known three different birth dates, with at least one being his correct birth date of xxx-xx, 1991. A cursory review of those files would have revealed his correct birth date. At the very least, it would have alerted the police of the confusion and required them to verify his birth date.
31. On June 15, 2008, at a hearing to determine whether Joshua Poitra should be transferred to adult court, Detective Shaw testified not only that he was aware Joshua Poitra was not 18 years old, but that he verified "with social security that he is 17 years old." (Tr. of June 15, 2008, hearing p. 10, ll. 17-23). Even though Joshua Poitra may have tried to mislead Detective Shaw, Detective Shaw knew that Poitra was a juvenile.
32. On June 16, 2008, Shaw applied for a search warrant. (Tr. February 25, 2008, hearing, p. 55, ll. 18-20). After he received the warrant, Shaw went to Joshua Poitra and asked him his date of birth. Joshua Poitra told him that he was born on xxx-xx, 1990. (Tr. of February 25, 2009, hearing p. 57, ll. 4-6). Shaw claimed that he did not know of Joshua Poitra's correct birth date until June 18, 2008, after the DNA sample was obtained. (Tr. Feb. 25, 2009, hearing p. 59, ll. 21-25). The alleged victim also advised police that her assailant was "approximately 17." (Tr. February 25, 2009, hearing p. 62, l. 25, p. 63, ll. 1-2). Shaw's testimony clearly shows that he was reckless in not thoroughly checking with the department computer for the correct birth date when a reasonable officer would have been curious or suspicious of his possible juvenile status.
33. Detective Shaw failed to provide the several birth dates of Poitra in his affidavit. He ignored this fact and failed to provide the court with all evidence available to him on the issue of probable cause. While Shaw may not have intentionally withheld these facts from the issuing magistrate, certainly such omission, when armed with the facts available in a computer, was reckless.
34. Even if the omission was made in reckless disregard of the truth, Joshua Poitra must also prove that, excluding his omitted birth date, the affidavit's remaining content is analyzed for probable cause, and is insufficient to support probable cause.
35. In Damron, 1998 ND 71, ¶¶ 6-7, 575 N.W.2d 912, (citations omitted), the Supreme Court outlined the requirements for probable cause:
36. "Probable cause to search does not require the same standard of proof necessary to establish guilt at a trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place." All the information presented to establish probable cause should be taken together, not analyzed in a piece meal fashion. The magistrate is to make a practical, commonsense decision on whether probable cause exists to search that particular place. We generally defer to a magistrate's determination of probable cause, and will not disturb a magistrate's conclusion that probable cause exists if there is a substantial basis for the conclusion. When reviewing a magistrate's determination of probable cause, a doubtful or marginal case should be resolved in favor of the magistrate's determination. We apply the totality-of-the-circumstances test to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court's findings. More than "bare-bones" information must be presented to the magistrate in order to establish probable cause.
37. "Although each bit of information . . . , by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation,
' "probable cause is the sum total of layers of information and the synthesis of
of what the police have heard, what they know, and what they observed as trained officers . . . which is not weighed in individual layers but in the 'laminated'
total." ' "
38. "Whether there is probable cause to issue a search warrant is a question of law."Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268; Damron, 1998 ND 71, ¶ 5, 575 N.W.2d 912. "If there is a substantial basis for the magistrate's conclusion that probable cause exists, we will not disturb that conclusion on appeal." Wamre, at ¶ 7.
39. The only evidence establishing any probable cause that was submitted to the court was a reference by the victim of the assault to "a male named Josh, unknown last name . . .", and a white baseball cap with an emblem of a foot on it left behind by the assailant." There was no other evidence provided that related any of the general information regarding the name and the cap individually to Joshua Poitra. This was no more than "bare bones" information that is not sufficient to support probable cause.
40. Det. Shaw also withheld or failed to mention the following evidence to the magistrate in his affidavit:
41. The victim initially said that her assailant had a black hat on, but later changed her story. (Tr. July 15, 2008 hearing, p. 14, ln. 12-14).
42. The victim initially stated that she was raped by a person named Justin.
(Tr. July 15, 2008 hearing, p. 11 ln. 24-25; p. 12, ln. 1-3). Exhibit B of Detective Shaw's Application and Affidavit provides that the alleged victim stated that she was at a residence with three males known to her as . . . and a male named Josh. Detective Shaw failed to inform the Magistrate that the alleged victim had also repeatedly stated the person who allegedly attacked her was named Jason and that he kept telling her his name was Josh. Exhibit B further stated that "Eric told Det. Lies that he had consensual sex with the victim of the GSI earlier in the evening", however, Det. Shaw fails to include the fact that the alleged victim denied that she had sex with anyone else that evening.
43. There were rumors that Josh was a brother to Levi Delonais and Eric Delonais. (Tr. July 15, 2008 hearing, p. 13, ll. 24-25).
44. The victim denied having sex with anybody that day. (Tr. July 15, 2008 hearing, p. 12, ln. 19-24). Detective Shaw fails, in Exhibit B of the Application and Affidavit to the Search Warrant, to include the fact that the alleged victim denied that she had sex with anyone else that evening.
45. The failure to present this additional evidence was reckless at best. It would have highlighted the lack of probable cause for issuance of the search warrant.
46. Exhibit B to Det. Shaw's application and affidavit for search warrant stated that on June 15, 2008, Joshua Poitra and three others were questioned about the alleged rape and that buccal swabs were obtained voluntarily from three of the individuals but that "Josh refused." The statement that "Josh refused" is false. When asked if he'd be willing to give a DNA sample, Joshua Poitra responded by saying, "I'd rather talk to a lawyer and my mom." The request was made while Joshua Poitra was in custody.
47. Det. Shaw's application and affidavit state that " Based upon the fact that Joshua Poitra matches the general age group of the suspect, based on the fact that he was at the residence where the original incident occurred, and based on the fact that he refused to voluntarily provide a DNA sample, your affiant believes Joshua Poitra to be the responsible in the GSI. . .". Det. Shaw did not provide sufficient information for a finding of probable cause to issue the search warrant.
48. Det. Shaw stated that Joshua Poitra matched the general age group. Apparently, the general age group was younger than the alleged victim, "about 17." That does not sufficiently narrow the field of suspects. Joshua Poitra is Native American, however, the alleged victim did not disclose that fact to Detective Shaw and/or Detective Shaw failed to provide that information in the Application and Affidavit for Search Warrant, information which would have significantly aided in narrowing the field of potential suspects. Det. Shaw also stated that Joshua Poitra was at the residence where the original incident occurred. Joshua Poitra was taken into custody at the residence on June 15, 2008, and the incident occurred on June 2, 2008. The fact that Joshua Poitra was at the residence thirteen days after the fact is not sufficient to support a finding of probable cause. Lastly, Det. Shaw stated that Poitra refused to voluntarily provide a DNA sample. As stated before, and as provided at the hearing on his motion to suppress, that statement is false. Taken as a whole, there was not sufficient evidence to support a finding or probable cause necessary to issue the search warrant.
49. In obtaining the search warrant, Det. Shaw included in his application and affidavit for search warrant that Joshua Poitra was born on xxx-xx, 1990, and that he refused to provide a DNA sample. These were both false statements provided to the magistrate and made knowingly and intentionally, or with reckless disregard for the truth. The statement of refusal is necessary to remotely support a finding of probable cause to issue the search warrant. Without the statement of refusal, the fact that Poitra was "about 17 years old" and was at the residence where the attack occurred thirteen days after the fact is not sufficient to find probable cause necessary to issue the search warrant to obtain his DNA.
50. The companion issue is whether the DNA buccal swab should be suppressed due to the denial of his right to have his parent or counsel present.
51. "Juveniles are provided a statutory right to counsel by the Uniform Juvenile Court Act [(N.D. Cent.Code § 27-20-26)]." In Re R.P., 2008 ND 39, ¶ 13, 745 N.W.2d 642, 645-646. The statute states in part, as follows:
52. "1. Except as otherwise provided in this section, a party who is indigent and unable to employ legal counsel is entitled to counsel at public expense at custodial, post-petition, and informal adjustment stages of proceedings under this chapter. During the informal adjustment stage of a proceeding only the child, if determined to be indigent, is entitled to counsel at public expense. In proceedings regarding allegations of unruliness or delinquency, a child's parent, legal guardian, or custodian, if determined to be indigent, is entitled to counsel at public expense only during the dispositional stage of the proceedings. If a party appears without counsel the court shall ascertain whether the party knows the party may be represented by counsel and that the party is entitled to counsel at public expense if indigent. The court may continue the proceeding to enable a party to obtain counsel and, subject to this section, counsel must be provided for an unrepresented indigent party upon the party's request. Counsel must be provided for a child not represented by the child's parent, guardian or custodian at custodial, post-petition, and informal adjustment stages of proceedings under this chapter. If the interests of two or more parties conflict, separate counsel must be provided for each of them."
53. N.D.Cent.Code § 27-20-26. "A juvenile is recognized as a member of a special class of citizens who may require additional legal protection." In Re R.P., 2008 ND 39 at ¶ 13. "The statute requires appointment of counsel to represent the child if the parents do not appear and represent him or if the interests of the child and the parents conflict." In Interest of R.D.B., 1998 ND 15, ¶11, 575 N.W.2d 420, 422. "If an extrajudicial statement is obtained by violating this right, the statement cannot be used against a child in a criminal proceeding." In re Z.C.B., 2003 ND 151, ¶ 13, 669 N.W.2d 478, 482 (internal citations and quotations omitted).
54. "A juvenile has the right to counsel at custodial stages of proceedings." Id. "The 'stages' of any proceeding under [Section] 27-20-26 are not limited to those instances which take place in the courtroom, but include circumstances such as interrogation, where the officer has focused his investigation on a particular suspect and is intent on gathering evidence." Breding v. State, 1998 ND 170, ¶ 10, 584 N.W.2d 493, 497.
55. Joshua Poitra was clearly the focus of Shaw's investigation when the DNA sample was taken. When the DNA sample was requested by Shaw, Poitra did not refuse, but simply requested the right to talk to his mother or an attorney before he made a decision on the request.
56. Therefore, there was no valid waiver of Poitra's right to have counsel present. There is no argument by the state that Joshua Poitra was not represented by his parent or a guardian during the interrogation.
57. The issue becomes whether a DNA swab is the equivalent of an extrajudicial statement, i.e., a confession, so as to provide constitutional protection by assuring the presence of counsel. In the Court's decision, Judge Dawson concluded that Joshua Poitra was "in custody" when his DNA was seized pursuant to the search warrant. The Court then tried to distinguish between custodial interrogation and the seizure of evidence. Without citing any case law or precedent, she concluded that the seizure of evidence does not implicate the right to counsel. She did not believe that the seizure of evidence was constitutionally akin to a "stage of the proceeding" under Section 27-20-26.
58. This court has defined "stage of proceedings" under N.D.Cent.Code 27-20-26 to include, but not limited to, circumstances such as interrogation, where the officer has focused his investigation on a particular suspect and is intent on gathering evidence. Breding v. State, 1998 ND 170, 584 N.W.2d 493, 497; citing In Interest of B.S., 496 N.W.2d 31, 32 (N.D. 1993). Clearly, the facts of this case support a finding that the seizure of Joshua Poitra's DNA occurred during a "stage of proceeding." He was identified by Det. Shaw as a suspect. Det. Shaw was searching for evidence. What more important time to have the advice and counsel of an attorney. See, Rummel v. J.D.Z., 431 N.W.2d 272 (N.D. 1988).
59. In these and other cases, the North Dakota Supreme Court has suppressed statements or confessions by juveniles who were denied their constitutional and statutory rights to counsel prior to questioning. The issue now searching for an answer is whether Joshua Poitra should have been advised of his statutory right to counsel before any questioning about the alleged sexual assault. The detective requested a voluntary consent to a DNA buccal swab. Joshua Poitra declined until he had spoken with either his mother or counsel. The police refused to accommodate his reasonable request. The failure to do so resulted in a violation of Joshua Poitra's constitutional and statutory rights.
60. The inquiry then must be focused upon whether the failure of the police to honor his request for counsel should be a sufficient basis for suppression of the DNA sample obtained from Joshua Poitra pursuant to the search warrant. The DNA swab was obtained by virtue of the search warrant. However, the "refusal" of Joshua Poitra to provide the DNA sample was an important factor highlighted in affidavit used to support the issuance of the search warrant. The only other evidence aside from the "refusal" was the age of the suspect, the first name of "Josh", and a white cap. There was no evidence presented to tie Joshua Poitra to the cap.
61. N.D.Cent.Code Section 27-20-27 provides that "Evidence illegally seized or obtained may not be received over objection to establish the allegations made against a child."
62. Joshua Poitra, a juvenile, was in custody for over twenty-four hours prior to being searched pursuant to the subject matter warrant. While being questioned and when asked to give a DNA sample, Poitra requested to speak to an attorney and his mother, but was never given the opportunity. As a juvenile, Joshua Poitra was entitled to have his mother or an attorney present at all stages of the proceedings, including while he was in custody. Joshua Poitra was also entitled to have an attorney present after he requested an attorney during his custodial interrogation. Poitra was entitled to consult with an attorney and/or parent prior to giving a DNA sample, as he had requested.
63. Law enforcement officers should not be allowed to deny Joshua Poitra's right to consult with and to have an attorney present and instead to go to the magistrate, inform him or her that the individual in custody is over the age of 18 without first verifying that fact, and to falsely inform the magistrate that the individual in custody refused to give a DNA sample and that the police has not honored his request for counsel, thereby implying that he was trying to hide something, giving the officer a reason to believe that individual was "responsible for the GSI."
64. Because the evidence, i.e., DNA sample, was "illegally seized or obtained" it should have been suppressed and not received as evidence at trial.
65. The photographs of Joshua Poitra should have been suppresssed due to the State's non-compliance with N.D.Cent.Code 27-20-53(6).
66. Section 27-20-53(6), N.D.Cent.Code governs the taking of photographs of juveniles:
67. "6. A child may be photographed by a law enforcement officer at the time of arrest for the crimes of murder, manslaughter, gross sexual imposition, robbery, aggravated assault, burglary, theft, forgery, or unlawful possession of a hand gun. The photograph must be destroyed if the child is not referred to the juvenile court. If a court finds facts that would justify a finding that a child at least fourteen years of age at the time of the offense is delinquent and the finding involves the unlawful use or possession of a handgun or the commission of an act proscribed by the criminal laws of this state and punishable as a felony or a class A misdemeanor committed for the benefit of, at the direction of, or in association or affiliation with any criminal street gang, with the intent to promote, further, or assist in the activities of a criminal gang, the juvenile court shall order upon the request of the state's attorney the taking and retention of a photograph of the child for purposes of identification. Photographs of children under this subsection may be maintained on a local basis and sent to a central state depository but must be maintained separate from those of adults and must be destroyed in accordance with section 27-20-54."
68. At the time of taking Joshua Poitra's "mugshots", which were later used by police in a lineup to secure the identification of Joshua Poitra by the victim, Joshua Poitra was under arrest for minor in possession of alcohol. This crime is not one of the major crimes for which a photograph of a juvenile ("child") is permitted.
69. The statute clearly contemplates, in other cases, that a detached judicial officer, intervene and determine the necessity of a photograph before an order to take one is issued. This safeguard also only applies to offenses using a handgun or a crime at least equal to a class A misdemeanor. Underage use of alcohol is a class B misdemeanor. See Section 5-01-08, N.D.Cent.Code.
70. The taking of a photograph of Joshua Poitra was violative of Section 27-20-53(6) and preclusion of its use by the state or police was the only logical sanction for violation of the statute. The motion to suppress the use of the "lineup" photographs should have been granted.
71. As the photograph of Joshua Poitra was illegally obtained, its use in the lineup was improperly suggestive and unreliable.
72. The obtaining of Joshua Poitra's "mugshot" was illegal and in violation of Section 27-20-53(6), N.D.Cent.Code. The trial court should have suppressed its use at trial. It is necessary to remand the matter to the trial court with instructions to exclude such evidence.
73. It logically follows that the use of illegally obtained photographs in a lineup, even with several other photographs, especially with Joshua Poitra being the only person with a distinct scar on his forehead, renders the lineup as unduly suggestive and unreliable. See State v. Packineau, 423 N.W.2d 148, 150 (N.D. 1988). "A determination of the admissibility of an out-of-court photographic identification involves a two-step analysis. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375. First, the Court inquires into whether the photographic identification procedure was suggestive. Ibid. See, e.g. Powell v. State, 86 Wis.2d 51, 271 N.W.2d 610 (1978). The second step of analysis takes place only if the Court finds that there was a suggestive procedure and then the Court inquires whether the identification was, under the totality of the circumstances, reliable and thus admissible. Neil v. Biggers, supra. To assess reliability under the totality of the circumstances the Court applies the five criteria. Ibid. In resolving the question of reliability we must also weigh the corrupting effect of the suggestive identification. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253." The photographs must be suppressed, as well as any identification derived from the impermissible use of the photographs in the lineup.
74. The trial court failed to make any finding as to whether imposition of mandatory minimum sentence would impose a manifest injustice, thereby negating the mandatory component of the sentence imposed.
75. Section 12.1-20-03(3)(a), N.D.Cent.Code states:
76. 3. a. An offense under this section is a class AA felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, if the actor's conduct violates subdivision a of subsection 1, or if the actor's conduct violates subdivision d of subsection 1 and the actor was at least twenty-two years of age at the time of the offense. For any conviction of a class AA felony under subdivision a of subsection 1, the court shall impose a minimum sentence of twenty years' imprisonment, with probation supervision to follow the incarceration. The court may deviate from the mandatory sentence if the court finds that the sentence would impose a manifest injustice as defined in section 39-01-01 cooperated with law enforcement. However, a defendant convicted of a class AA felony under this section may not be sentenced to serve less than five years of incarceration.
3. b. Otherwise the offense is a class A felony.
77. Before the mandatory minimum sentence of 20 years can be imposed, the court is required to make two separate findings. It must first find that the sentence would impose a "manifest injustice as defined in Section 39-01-01. . .." The court did appear to state that she was leaning in that direction but failed to make such specific findings or lack of finding.
78. The second finding is that "the defendant has accepted responsibility for the crime or cooperated with law enforcement." The court did state, "I don't know that I can. . . he hasn't cooperated, he hasn't taken responsibility." (Tr. October 26, 2009, sentencing; p. 16, ll 18-20).
79. Therefore, without a specific finding by the court of both factors, the sentence imposed was illegal and improper and must be reversed and remanded.
80. Section 12.1-20-03(3)(a) also imposes and improper burden on Joshua Poitra's Fifth Amendment rights against self-incrimination. To require a defendant to accept responsibility for the crime and admitting guilt before he can possibly receive some lenient deviation for the mandatory minimum sentence places him with a Hobbesian choice. If he "confesses" guilt while an appeal is pending, as in this case, he forfeits any credibility on the appeal, or, if successful on appeal, a new trial. He cannot avail himself of possible leniency without affecting his right to claim innocence. This choice places too heavy a burden on any defendant, much less a young man.
81. The other choice facing Poitra was to cooperate with law enforcement in order to gain possible leniency at sentencing. The court made no specific finding of how he failed to cooperate with law enforcement in order to gain possible leniency at sentencing. The court made no specific finding of how he failed to cooperate with law enforcement. Was it his "refusal" to voluntarily provide a DNA sample without the advice of counsel or his mother? Was it his failure to take the stand and admit guilt? Or was it his insistence on taking this matter to trial?
82. Affirmative answers to any of these questions poses severe constitutional challenges to the constitutionality of the statute.
83. The trial court erred when it granted the State's Motion to Preclude Use of Evidence Under Rule 412, N.D.R.Evid.
84. On June 24, 2009, the State made a Motion to Preclude Evidence in Violation of N.D.R.Evid. 412. Joshua Poitra responded, stating that he "intends to present evidence, either on direct or cross-examination, that Eric Delonais informed law enforcement officers that he had had sex with the alleged victim earlier in the evening before the alleged attack and that the alleged victim informed law enforcement officers that she did not have sex with Eric Delonais that evening."
85. The Court summarily granted the States' motion and precluded the use of any evidence by Joshua Poitra under N.D.R.Evid. 412.
86. When the prosecutor introduced medical evidence of a youthful complainant's physical condition, the defendant should have been allowed to provide an alternative explanation for her physical condition by cross-examining the complainant about her prior sexual activity tending to show that another person might have been responsible for her condition.
87. Defendant should have been allowed to provide an alternative explanation for the complainant's physical condition by cross-examining the complainant about her prior sexual activity for the purpose of attempting to show that another person might have been responsible for her condition. Denial of that right was not harmless beyond a reasonable doubt, and the defendant was entitled to a new trial. State v. Reinart, 440 N.W.2d 504 (N.D. 1989).
88. Under Rule 412(b)(1), N.D.R.Evid., the evidence was admissible as an exception to the rule requiring prior notice and a hearing. The refusal of the court to permit such affirmative answers to any of these questions, poses several constitutional challenges to the constitutionality of the statute.
89. The Fargo Police violated Joshua Poitra's constitutional rights by not advising Joshua Poitra of his right to consult with either his mother or counsel prior to obtaining a sample of his DNA.
90. The police were reckless in omitting crucial and important information in their affidavit for a search warrant for Joshua Poitra's DNA, the exclusion of which would reveal the lack of probable cause for issuance of the search warrant.
91. The trial court erred when it denied the motion to suppress the collection of Joshua Poitra's DNA and the use of photographs of Joshua Poitra.
92. The trial court erred when it failed to make any finding as to whether imposition of the mandatory minimum sentence would impose a manifest injustice, thereby negating the mandatory component of the sentence imposed.
93. The trial court erred when it granted the State's Motion to Preclude Use of Evidence under Rule 412, North Dakota Rules of Evidence.
94. The case should be reversed and remanded to district court.
Dated this 25th day of January, 2010.
|/s/ Kent M. Morrow|
|Kent M. Morrow ID#03503|
|Attorney for Appellant|
|411 N. 4th Street #6|
|Bismarck, ND 58501|