|IN THE SUPREME COURT|
|OF THE STATE OF NORTH DAKOTA|
|State of North Dakota|
|Thomas J. Olson|
Appeal from the District Court
|South Central Judicial District|
|Morton County, North Dakota|
|The Honorable Robert O. Wefald|
|Supreme Court Nos.: 20020091 & 20020092|
|Morton County Nos.: 30-01-K-2202 & 30-02-K-1028|
|AMICUS CURIAE BRIEF|
|NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS|
|Paul H. Myerchin ID# 05412||Grant J. Shostak MO#45838|
|Bormann & Myerchin||Moline, Shostak & Mehan LLC|
|418 East Broadway Avenue, Suite 240||8015 Forsyth Blvd.|
|P.O. Box 995||St. Louis, MO 63105|
|Bismarck, North Dakota 58502-0995||Telephone (314) 725-3200|
|Telephone (701) 250-8969||Facsimile (314) 725-3275|
TABLE OF CONTENTS
Table of Authorities 1
Interest of Amicus Curiae 2
Statement of the Case and Issues Presented for Review 4
Certificate of Service 9
TABLE OF AUTHORITIES
Moran v. North Dakota Dept. of Transportation, 543 N.W.2d 767 (N.D. 1995) 5
State v. Holte, 2001 ND 133, 631 N.W. 2d 595 6,8
State v. Michlitsch, 438 N.W.2d 175 (N.D. 1989) 5,6,7,8
State v. Zimmerman, 529 N.W.2d 171 (N.D. 1995) 5
INTEREST OF AMICUS CURIAE
The National Association of Criminal Defense Lawyers ("NACDL") is a District of Columbia nonprofit corporation with a membership comprised of over 10,500 lawyers including representatives of every state. NACDL was founded over 40 years ago to promote study and research in the field of criminal defense law, to disseminate and advance the knowledge of the law in the field of criminal defense practice and to encourage the integrity, independence and expertise of defense lawyers. Among NACDL's stated objectives is the promotion of proper administration of criminal justice. Consequently, NACDL concerns itself with the protection of individual rights and improvement of criminal law in its practices and procedures. A cornerstone of this organization's objectives and of the criminal justice system is the fundamental constitutional protection of an accused's right to present defense to a criminal charge. NACDL is very concerned about any decision that would undermine or dilute this constitutional guarantee, as would adoption of the position taken by the Sate of North Dakota in the instant case.
The Amicus Curiae Committee of the NACDL has discussed this case and has decided that the issue is of such importance to defense lawyers and criminal defendants throughout the nation that NACDL should offer its assistance to the Court.
NACDL asserts that the trial court erred in failing to allow Thomas J. Olson to present the affirmative defense of innocent or mistaken conduct to the charge of violating a domestic protection order.
STATEMENT OF CASE AND ISSUE
PRESENTED FOR REVIEW
NACDL adopts the Statement of Issues and Statement of the Case as well as the Statement of Facts set out by appellant Thomas J. Olson in his brief.
The trial court erred in striking Olson's affirmative defense of innocent or mistaken conduct to the charge of violating a domestic protection order and therefore deprived Olson of due process of law.
Questions of law are fully reviewable on appeal. Moran v. North Dakota Dept. of Transportation, 543 N.W.2d 767, 769 (N.D. 1995); State v. Zimmerman, 529 N.W.2d 171 (N.D. 1995).
Olson was charged with three counts of Violation of a Protection Order. At his probation revocation hearing, Olson sought to introduce evidence of his diminished capacity as an affirmative defense. The trial court refused to allow Olson to present evidence of his diminished capacity because the charge of violating a protection order is a strict liability offense. In striking Olson's defense of lack of criminal responsibility, the trial court erred and deprived Olson of due process of law.
This Court has already decided issues such as that presented by Olson. In State v. Michlitsch, 438 N.W.2d 175 (N.D. 1989), defendant was charged with the strict liability crime of possession of marijuana with intent to deliver. At trial, defendant requested an affirmative defense instruction to the effect that if defendant did not know of the presence of the marijuana,
or did not know the substance was marijuana, then defendant could not be found guilty. The trial court refused to so instruct the jury and defendant was convicted. Defendant appealed.
The Michlitsch Court, while upholding that possession of a controlled substance and possession with intent to deliver are strict liability offenses, saw the constitutional ramifications presented in sustaining those provisions when attacked by a person who possessed a controlled substance unwittingly. With that premise in mind, the court then held that it is an affirmative defense to a charge of possession with intent to deliver or possession of a controlled substance that the defendant unwittingly or unknowingly possessed the controlled substance. The burden of proving the affirmative defense, of course, remained on the defendant.
The issue of whether a defendant may present an affirmative defense to the strict liability crime of violating a domestic protection order under N.D.C.C. 14-07.1-06 was decided in State v. Holte, 2001 ND 133, 631 N.W.2d 595. In Holte, the district court issued a domestic protection order prohibiting Dvorak from having any contact with his ex-wife and from having any contact with his children except by telephone visitation on Wednesday evening between 6:00 p.m. to 7:00 p.m. Dvorak was later
charged with violating this protection order because he called his children after 8:00 p.m. Before trial, Dvorak requested the jury be instructed that in order to find him guilty of violating the protection order, they must find he willfully violated the protection order. The trial court determined that he was entitled to such an instruction. The state obtained a continuance and petitioned for a supervisory writ from this Court directing the trial court to vacate its ruling regarding Dvorak's requested jury instruction.
This Court, while holding that the trial court erred in ruling that the state had to prove Dvorak willfully violated the protection order recognized that strict liability offenses are disfavorved. In addition, this Court noted that simply being charged with a statute establishing a strict liability offense does not always preclude the defendant from presenting an affirmative defense when public policy factors support the defense. Id. at 598. This Court reasoned that permitting an affirmative defense to a strict liability offense accommodates the legislature's designation of the charged crime as a strict liability offense and the constitutional interests of the defendant. Id. at 559.
Noting that it is still possible to be convicted of a violation of a protection order while maintaining "innocent or mistaken conduct," and that
doing so would potentially violate the constitution, this Court in Holte adopted the reasoning set forth in State v. Michlitsch, 438 N.W.2d 175 (N.D.1989), and held that a Michlitsch type affirmative defense instruction may be given under appropriate circumstances in a prosecution for violation of a domestic protection order under N.D.C.C. § 14-07.1-06 when the defendant requests the affirmative defense instruction and there is evidence to support it. Id. at 558-9. Accordingly, this places the burden of proof of the affirmative defense on the defendant, and must be shown by a preponderance of the evidence. Id.
This case rests squarely in the principles set forth in Michlitsch and Holte. Olson was charged with violating a strict liability offense. Prior to trial, Olson requested the opportunity to present evidence of innocent or mistaken conduct and presented medical evidence to support his defense. Based on the above, the trial court erred in striking his Olson's affirmative defense.
Wherefore, for the reasons discussed above, this Court should reverse the district court's revocation of Olson's probation and remand for further proceedings.
|Grant J. Shostak, MB#45238, ED#89234|
|Moline, Shostak & Mehan, LLC|
|8015 Forsyth Boulevard|
|St. Louis, MO 63105|
|Telephone: (314) 725-3200|
|Facsimile: (314) 725-3275|
|Paul H. Myerchin ID#05412|
|Bormann & Myerchin|
|418 East Broadway Avenue, Suite 240|
|P.O. Box 995|
|Bismarck, North Dakota, 58502-0995|
|Telephone: (701) 250-8969|
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document was placed with the U.S. Mail, on this day of July, 2002, to be delivered upon:
|Chad R. McCabe|
|Vinje Law Firm|
|523 North Fourth Street|
|Bismarck, ND 58501|
|Brian D. Grosinger|
|Asst. Morton Co. State's Attorney|
|210 2nd Ave. NW|
|Mandan, ND 58554|