State v. Keener

20070252 State of North Dakota, Plaintiff and Appellee
v.
Laurie Marie Keener, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Gary H. Lee
Nature of Action: Misc. Statutory Offense (Felony)
Counsel:
Appellant: Robert Wade Martin
Appellee: Rozanna Christine Larson , Asst. State's Attorney
Term: 05/2008   Argument: 05/12/2008  10:45am
ND cite: 2008 ND 156
NW cite: 755 N.W.2d 462

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Issues: Appellant's Statement of the Issues:
[1] Appellant Laurie Marie Keener joins with the Statement of Issues as outlined in the Brief of Appellant Asa Keener, as well as the arguments presented thereon, with an exception of an assertion of fact vis--vis the first issue stated under the claim of ineffective assistance of counsel through joint representation, i.e., Appellant Laurie Marie Kenner does not agree, concur or admit that she mislead or "duped" Appellant Asa Keener.
[2] Whether the admission of State's Exhibit 44, the deposition testimony of Marvin Whisker, was clearly erroneous and in violation of the provisions of the North Dakota Rules of Criminal Procedure 15 (f) (2) and (3), as well as Appellant Laurie Marie Keener's right to confront and cross examine the witnesses against her as specifically secured by the Sixth Amendment to the Constitution of the United States of America and impliedly secured by Article I, Section Twelve of the Constitution of North Dakota, as well as the holdings of both the United States Supreme Court and the North Dakota Supreme Court in the cases of Crawford v. Washington, 541 US 36 (2004), Davis v. Washington, 126 S.Ct. 2266 (2006), State v. Blue, 2006 ND 134, 717 N.W.2d 558 and State v. Woinarowicz , 2006 ND 179, 720 N.W.2d 635, respectively?
[3] Whether the decision of the lower court herein, in awarding an amount of restitution in excess of one hundred thousand dollars ($100,000.00), contrary to the evidence that such an award would actually be injurious to the victims in this case, and given the inability of the Appellant to pay such restitution imposed by the lower court, should be reversed as an abuse of the lower court's discretion?

Asa Keener's Statement of Issues in 20070265
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?

Appellee's Statement of the Issues:
I) There was no ineffectiveness of counsel.
II) There was no actual conflict of interest in the joint representation of the defendants, therefore the defendants did not have ineffective assistance of counsel.
III. Admission of State's Exhibit 44 was not clearly erroneous.
A. Ineffective-Assistance-of-Counsel
B. Rule 15 of the N.D.R.Crim.P.
C. Laurie's right to confront and cross examine Marvin was not violated by the admission of Exhibit 44.
IV. The trial court did not abuse its discretion when it ordered Laurie to pay $109,921.03 in restitution.
V. The defendants were not prejudiced by the filing of the Amended Information without a preliminary hearing.
VI. It was not plain error to admit Florence Whisker's video deposition into evidence.

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Docket entries:
108/28/2007 NOTICE OF APPEAL: 08/27/2007
208/28/2007 ORDER FOR TRANSCRIPT: 08/27/2007
308/29/2007 Acknowledgment of Order for Transcript and request to retain record: 01/17/2008
409/06/2007 MOTION FOR REMAND (Letter from Rozanna C. Larson dated 9-5-07)
509/10/2007 Letter from Robert Martin dated 9-7-07 RE: agreement to remand
609/11/2007 ACTION BY CHIEF JUSTICE (Mot/Remand). Granted
709/11/2007 ORDER OF REMAND
809/12/2007 Order of Remand Mailed to Parties
910/02/2007 TRANSCRIPTS DATED September 26, 2005 & October 24, 2005 (2 vols.)
1010/02/2007 DISK - tra (9-26-05 & 10-24-05) (e-mailed)
1110/16/2007 TRANSCRIPTS DATED 1-29-07, 5-1-07, 5-2-07, 5-3-07, 5-4-07, & 8-10-07 (4 vols.)
1210/16/2007 DISK - tra (1/29/07, 5/1/07, 5/2/07, 5/3/07, 5-4-07, & 8-10-07)(e-mailed)
1312/20/2007 Reset due date for Appellant's Brief after remand
1412/20/2007 ACTION BY CLERK (reset due date for ATB). Granted: 01/28/2008
1501/10/2008 TRANSCRIPT OF RESTITUTION HEARING 11/27/07 FILED IN 20080016
1601/15/2008 This case is consolidated w/20070265 & 20080016. Make all entries except DIS & MAN in this case.
1701/15/2008 RECORD ON APPEAL (2 vols.) & Exhibits
1802/15/2008 Appellant's Brief in 20070265 (State v. Asa Keener)
1902/15/2008 APPELLANT APPENDIX in 20070265 (State v. Asa Keener)
2002/15/2008 Affidavit of Service by Mail of ATB & ATA in 20070265 (State v. Asa Keener)
2102/19/2008 DISK - (e-mailed) atb in 20070265 (State v. Asa Keener)
2202/19/2008 APPELLANT BRIEF in 20070252 & 20080016 (State v. Laurie Keener) (e-filed)
2302/19/2008 Affidavit of Service by E-Mail of ATB on opposing counsel (20070252 & 20080016)
2402/19/2008 E-FILED BRIEF (ATB in 20070252 & 2008016--Laurie Keener)
2502/19/2008 APPELLANT APPENDIX in 20070252 & 20080016 (Laurie Keener)(e-filed)
2602/19/2008 E-FILED APPENDIX in 20070252 & 20080016 (Laurie Keener)
2702/26/2008 Received 7 cc of ATB from Central Duplicating
2802/26/2008 Received 6 cc of ATA from Central Duplicating
2903/05/2008 Efiling surcharge by interdepartmental billing Journal ID no. 609404
3003/28/2008 APPELLEE BRIEF
3103/28/2008 APPELLEE APPENDIX
3203/28/2008 DISK - AEB (CD)
3305/12/2008 APPEARANCES: Thomas M. Tuntland; Robert W. Martin; Rozanna C. Larson
3405/12/2008 ARGUED: Tuntland; Martin; Larson
3505/12/2008 ORAL ARGUMENT WEBCAST
3608/28/2008 DISPOSITION: AFFIRMED
3708/28/2008 UNANIMOUS OPINION: VandeWalle, Gerald W.
3808/29/2008 Judgment Mailed to Parties
3909/22/2008 MANDATE
4009/24/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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