State v. Hilgers

20030169 State of North Dakota, Plaintiff and Appellee
v.
Douglas Hilgers, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, Bottineau County
Judge Donovan John Foughty
Nature of Action: Misc. Statutory Offense (Felony)
Counsel:
Appellant: Pro se
Appellee: Robert P. Bennett , Att. General Office
Term: 12/2003   Argument: 12/04/2003  Waived
ND cite: 2004 ND 160
NW cite: 685 N.W.2d 109


Issues: Appellant's Statement of the Issues:
1. Does the Court error and are the pro se defendants basic and critical Constitutional rights insulted by requiring the defendant to proceed with a criminal appeal, without benefit of council. Where as the Rule of Appellate Procedure permit the review of intermediate orders of the Trial Court?
2..Are the pro se defendants Constitutional safeguards for the assistance of legal council when the prosecutions request to remove the defendants council, after for months insisting that he be represented, without hearing, when Ordered by another Judge, when the Supreme Court Of North Dakota advises against it, when relevant rule of Law directs that costs be assessed at the close of proceedings and by motion of the Counties states prosecutor. This particularly revolting when a party of interest has control over the assets that the Court uses to disqualify the Defendant?
3.Does the trial Court error in accepting "reassignment" when it is known that the Court of original jurisdiction had already ruled on multiple pretrial motions and issued Order, including assignment of defense council, even to the ex5tent of scheduling and subjecting the Defendant to a second ""initial hearing"
4.Is the assigned public council negligent/incompetent the pro se defendant having petitioned for: recusal and preserving his right to reassignment (one petition) well knowing that, upon review of the file, that Orders had already been issued, and refusing to petition for review of the Order for his removal?
5.Under Administrative Rule and Law, is this issue of "assets" the only criteria required to be evaluated in considering the assignment of appointed council, public or otherwise? Did the Trial Court, significantly err here, as well?
6.When the Criteria for determining criteria for appointment of council, public or otherwise are not available to any but "Judges and Presiding Judges, can a pro se Defendant reasonably and justly offer rebuttal, objection, or appeal to a Court's Order denying such appointment?
7.Is the arrest, prosecution, submission to trial and penalties (criminal) fatally flawed where as the specific Law/Infraction prosecuted for, I grounded in the civil Courts/process where as it is and has been obvious to all prosecutor and tries, that the defendant was denied the most basic and fundamental rights of due process: to notice of hearing, to hearing, to face his accusers and have opportunity to rebut the information, To have right to review and recourse of a contempt Order, to have the right of hearing upon the appropriate burden of proof to have his parental rights terminated or to be severely restricted, and the right to be free from injury of the malpractice of his former attorney. And the right to proceed unimpeded to bring his grievance to the highest Court of the State.
8.Having refused to extradite the criminal defendant, and refusing him access to the warrant and information, threatening to arrest him solely on the basis of him entering North Dakota, if not blatant obstruction of Justice, and insult to his Constitutional and Civil Rights afforded the citizens of "the several States"?
9.Does the Trial Court, even without expressed reason or purpose, abridge the significant rights of the accused, in ordering the halt to the impeachment examination of the Complainant?
10. Does the Trial Court demonstrate error, if not undue prejudice and the significant mitigation of the pro se Defendant's rights by barring the defendant's witness from giving testimony Re: claims of the prosecution, used in his closing arguments? The Bench, at sentencing, broaches the specific testimony," I (but not the Jury) knew what he was saying".
11.Under the Defendants Constitutional and significant Rights as protected by the U.S. VI Amendment
In the multiple refusals to allow subpoena, out of state testimony, and, even, the suspicious disappearance of a "cooperative" defense witness, without recess or adjournment to locate the witness or to issue a subpoena.
12.Did the Trial Court err, knowingly and without remedy or instruction, have a subpoenaed witness, yet the Chief Law Enforcement Officer of the Jurisdiction, knowing he was present at the entire, in-camera show cause subpoena hearing, the Sheriff then not only instructing other witnesses re: their testimony but denying, at trial, that he knew what he was to testify about.? This same Law Enforcement Officer shielding from the pro se defendant, for months, the identity and where abouts of the defense witness that, ultimately, was in accessible.
13.Not withstanding other issues and assaults to the defendant's right to legal assistance, is his cause fatally injured by the refusal of the Trial Court to grant him adequate time to do his remote research and preparation for pre-trial petitions even though hardship, just cause, simultaneous legal processes and diligence in his pro se efforts were clearly demonstrated?
14.Where as the Trial Court permits reference to case law, in determining/answering questions re: Jury Instruction, i.e. age of the child, reference to legislative intent is denied to the defendant to answer questions? Did the Court err?
15.For purposes of further challenge, upon subsequent appeal, the appellant raises the issue of not permitting a jury instruction of required intent, even though the controlling Law announces the requirement 3 times , and here to for ignored by the North Dakota Courts, as in State v. Shafer,
The appellant asks do the respective Constitutions of the State and the Nation tolerate a Conviction, by a Jury without such instruction and competent legal council to represent such a request?
16.The pro se defendant asks the extent of justice represented in a jury instruction, unauthorized even by the coded and privated "patterned instructions" used in the process of conviction, even to lead the jury to believe that the defendant exerted free choice in representing himself and influencing the Jury to believe the defendant of such demeanor or poor judgement to do so? Even though this system used, this instruction, not authorized.
17.Generally, as the preceding, sighted example: without legislative approval, without authorization by the people and for the people, a select and privileged few direct the application of protected right of review by a Jury of peers. Is this application just and sufficiently capable of fulfilling this requirement when: not approved by the Court: when unpublished and available, except to the Courts and licensed attorneys: when encoded to make it undecipherable by a common person or a pro se citizen: with "public oversight" mandated but not evident?
18.Does the Court error and give over the rights to and opportunity to the fair and just due process, or inference of a lack of the safeguarded presumption of innocence as is evident in the record, if not irrational, unreasonable time constraint upon all process of the criminal accusation, far out of proportion to similar cases, even with the informing the Jury as to the Courts required time allocations for their service?
19.Does the trail Court error, fatally and substantially, when at Trial, upon the defendants request for Judicial note of the factual existence of the Uniform Child Custody Jurisdiction Enforcement Act (NDCC 14-14.1-15(206), the Court advises it's notability as a jury instruction but fails to do so?
20.Does the Court error fatally, without a specific expression of cause or justification, rejects every requested jury instruction submitted by the pro se defendant, without challenge to their just and factual existence in North Dakota Law?
21.Does the Court error, as well, in giving no time to this process of deliberation of jury instruction, as afforded under Rule and Statute?
22.Is this or any other pro se defendant compromised, upon the review of their "status' as impoverished when upon specific request for unpublished guidelines in making this determination, it is not apparent that any exist?
23.At sentencing, the Trial Court specifically references "sealed files", dismissed, with prejudice, years ago, the pro se defendant objects, the Court invokes it's observance: Does the Trial Court err?
24.At sentencing, upon the request of the Pro se defendant,( the defendant objects to no legal assistance), the trial Court sites ex-prate, long since refuted ,even in the testimony of the Complainant, that the defendant " is controlling", because the record shows that "the defendant locked the family freezer", the trial Court, clearly not noting testimony, that :said freezer was in the unlocked garage of the residence, with the key hanging upon the wall next to the freezer, all well known to the complainant:
The Court attempts to characterize and impugn this Defendant upon this purposeful attempt to mislead the Court, if not frank perjury. Is this as gross an error as can be contemplated? Is this legitimate inference, in punishing the Defendant, " That he will do anything he wants to do"?
25.The Trial Court, some 6 weeks after the pro se defendant's request for legal council, refuses his request , upon entirely different grounds than expressed in It's request for information. This now the date that the Defendant's brief is due. Both in substance and factually aroniouise as well as so untimely as to make any Orders for Council irrelevant ant irreversible?
26.By, mere, virtue of the fact that the Defendant/father resides outside of the state of North Dakota. Did not secret away or abduct this child, sought every lawful process o protect this child yet and all possible assistance to return this child to satisfy the Court, expressly communicated with the Court, Prosecutor and complainant his efforts to return the child, subject this defendant to criminal charges (" removal of the child"), breech the Constitutional rights of the Father, i.e. " Rights of citizens of the several States"?
What would the father be guilty of if he resided in North Dakota?
26.By refusing the Defendant his petition for Stay of the Conviction Orders, upon appeal of the Conviction, The trial Court Ordering a psychological evaluation as a conditioned of probation (2 already submitted) constitute the unreasonable and unconstitutional invasion of the defendant's privacy, the Court perceiving no significant infringement upon his rights, even while the prosecution did not expose all of the conditions for the Court to consider. To avoid multiple questions here, Does this Court consider the edicts of the Court/State to include "living alone", and to continue an appeal or even " a rehabilitative effort" to take away his lively hood, as cruel and unusual punishment? (Is probation deemed to be punishment, at all?)
27.Where as "this law" in the wisdom of the legislature sights the complainant as the affronted party" in violation of her rights", How does it then make the defendant Culpable of Sexual offences where no such implication exists, factually or otherwise, and the Child is not a victim. in fact threatening to flee his abusive treatment, in North Dakota. Is it Constitutionally sound to apply penalties and sanctions to tally unrelated to the statutory offense?
28.As, in 27, does the Complainant, factually abandoning this Child, have any rights to be willfully denied by the defendant? Is the refusal of the defendant's request for a Jury instruction of "willful' constitute significant error?
29.Although NDRCrimP, Rule 12 (b),(2),directs that defects can be raised at "any time during the pendancy of the proceedings", the trail Court forbids the defendant to continue any challenges:Does the Court fatally and significantly limit the defendant's rights to challenges ?
30.Under NDRCrimR, Rule 17(b), (c) with the pro se defendants Subpoenas', acknowledging that he had no funds and that he was refused subpoenas to produce documents: did the trial Court error in canceling his subpoenas and not allowing them because the defendant had no funds for witness fees and other costs?
31.Because thew pro se defendant is not an attorney , has no access to the transcript nor the list of file documents, he reserves right to additional questions as the case would indicate

Appellee's Statement of the Issues:
I.Whether the arguments of the Defendant, unsupported by citations to relevant authorities or supportive reasoning, are meritorious and should be considered by this Court.
II.Whether the district court acted arbitrarily, unconscionably, or unreasonably in determining that the Defendant was not indigent to permit payment of counsel at public expense.
III.Whether the district court abused its discretion in the admission of testimony or evidence at trial.
IV.Whether the district court abused its discretion in not authorizing the issuance of all subpoenas requested by the Defendant.
V.Whether the district court abused its discretion in denying the Defendant a continuance of the proceedings.
VI.Whether the district court erred in its denial of the Defendant's requested jury instructions.
VII.Whether the district court abused its discretion in the imposition of the sentence upon the Defendant.
VIII.Whether the district court erred in denying the Defendant's pretrial motion to dismiss.
IX.Whether the Defendant was deprived of effective assistance of counsel.


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Docket entries:
106/12/2003 NOTICE OF APPEAL: 06/11/2003
206/09/2003 Petition for Stay of Execution of Conviction and Sentence Pending Appeal w/attachments. RspDue: 06/30/2003
306/19/2003 Letter dated 6-17-03 from Doug Hilgers RE: Petition for Stay matter
406/20/2003 Copy of Affidavit of Service by Mail dated 6-19-03 from Wendy Asperheim
506/27/2003 Response Filed to Petition for Stay of Execution
607/02/2003 ACTION BY SUPREME COURT (Motion for stay of execution of sentence). Denied
707/09/2003 RECORD ON APPEAL (2 vols.) & Exhibits
807/16/2003 MOT. EXT/TIME APPELLANT BRIEF (Undated letter from Doug Hilgers)
907/16/2003 ACTION BY CLERK. Granted: 08/20/2003
1007/21/2003 Clerk's Supp. Cert. of ROA dated July 18, 2003 with entries 255 & 256 attached
1107/23/2003 Clerk's Supp. Cert. of ROA dated July 22, 2003 with entry 254 attached
1207/28/2003 Clerk's Suppl. Cert. of ROA daed 7-25-03 (Entry Nos. 257-259(
1308/18/2003 MOT. EXT/TIME APPELLANT BRIEF; AFFIDAVIT IN SUPPORT
1408/18/2003 ACTION BY CHIEF JUSTICE (MAT). Granted: 09/19/2003
1508/18/2003 MOT. EXT/TIME TRANSCRIPT; AFF. IN SUPPORT (SEE MAT)
1608/18/2003 NO ACTION TAKEN (MTR premature; need confirmation requested transcripts are being prepared)
1708/20/2003 Cy of ltr from Wendy Asperheim to Doug Hilgers re request for transcript dtd August 19, 2003
1808/21/2003 Cy of Ltr from Doug Hilgers to Wendy Asperheim dated August 19, 2003 re transcripts
1909/12/2003 "The Pro-Se Defendant's Petition for an Extraordinary Writ and to Proceed I.F.P." and
2009/12/2003 Letter from Doug Hilgers dated 9-8-03
2109/15/2003 SUPPLEMENTAL CLERK'S CERTIFICATE ON APPEAL (ENTRIES 260 & 261)
2209/20/2003 APPELLANT BRIEF (original)
2309/24/2003 Copies of Appellant's Brief
2410/03/2003 DISK - atb
2510/09/2003 APPELLEE BRIEF
2610/09/2003 with attached addendum
2710/09/2003 DISK of AEB
2811/03/2003 MOTION FOR WAIVER OF OA ON BEHALF OF APPELLANT (letter dated 10-31-03 from Doug Hilgers)
2911/07/2003 APPELLANT APPENDIX
3011/21/2003 ACTION BY SUPREME COURT (OA waived on behalf of AT). Granted
3111/21/2003 MOTION FOR WAIVER OF OA ON BEHALF OF APPELLEE
3211/25/2003 ACTION BY SUPREME COURT (OA waived on behalf of Appellee). Granted
3311/28/2003 MOTION to correct record with attachments & microcassette
3411/28/2003 MOTION regarding transcript unavailable and statement of evidence
3512/01/2003 NO SEPARATE ACTION TAKEN ON MOTION TO CORRECT RECORD
3612/01/2003 NO SEPARATE ACTION TAKEN ON MOTION REGARDING TRANSCRIPT
3712/04/2003 APPEARANCES: submitted on brief
3812/04/2003 ARGUED: submitted on brief (Vol. Y; Page 178)
3908/04/2004 DISPOSITION: AFFIRMED
4008/04/2004 UNANIMOUS OPINION: Neumann, William A.
4108/05/2004 Judgment Mailed to Parties
4208/16/2004 Mot. Ext/Time Petition for Rehearing
4308/16/2004 E-FILED MOTION (MPR)
4408/17/2004 ACTION BY CHIEF JUSTICE. Granted: 09/03/2004
4508/18/2004 Original Mot. Ext/Time Petition for Rehearing
4609/03/2004 Original PETITION FOR REHEARING
4709/08/2004 Copies of Petition for Rehearing
4809/10/2004 DISK - PER
4909/15/2004 ACTION BY SUPREME COURT. Denied
5009/24/2004 MANDATE
5112/03/2004 Application for Ext. of Time for Filing Petition for Writ of Certiorari
5212/09/2004 MOTION FOR Stay of Mandate upon Petition for Certiorari Reconsideration for Stay of Sentenc/Judgmen
5312/10/2004 NO ACTION TAKEN (Mot. for Stay of Mandate)
5401/17/2005 Petition for Writ of Certiorari to the U.S. Supreme Court and Appendix
5502/01/2005 Notice from U.S. Supreme Court that Petition has been placed on the docket as No. 04-1010
5602/04/2005 Copy of letter dated 1-28-05 from Clerkf of U.S. Supreme Court to Mr. Hilgers informing him the
5702/04/2005 the pet. for writ of certiorari was filed on 1-13-05 and placed on the docket 1-28-05 (#04-1010)
5803/11/2005 Letter dated 3-07-05 from William K. Suter, Clerk of U.S. Supreme Court (petition is denied)
5909/20/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6010/22/2010 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 10/24/2014