State v. Lefthand

Ralph J. Erickstad /a/ Ralph J. Erickstad the WARD COUNTY In the Matter Justice Chief IN NORTH VACANCY JUDGE W. VandeWalle Gerald /s/ DISTRICT. WEST JUDICIAL Gerald W. VandeWalle No. 920312. Justice L. Herbert Meschke /s/ of North Dakota. Supreme Court L. Herbert Meschke Nov. 1992. Justice Beryl Levine J. /s/ ORDER Beryl J. Levine Century 27- North Dakota Code Section Justice 07.1-03, by HB amended Sec- as Philip J. Johnson /s/ requires Supreme tion a decision Philip Johnson J. Court, days by a after notification within 90 Justice county County Board Commissioners of a vacancy, regarding court whether the office judicial necessary administra-

is for effective required Following

tion. consultations determination, Supreme may

and Court

order that: filled, at the vacancy

a. discretion be county, in the manner

of the described 07.1—03(2)(a); in Section NDCC 27— Dakota, Plaintiff STATE North b. vacant office be abolished and that the Apрellee, and county provided court services be that in manner described in NDCC 27-07.1-03(4). Section LEFTHAND, Defendant Michael Shane vacancy was notification received Appellant. Supreme from the Board of Court Ward No. 930362. Cr. 4,1992. County on November Commissioners Hearing Hearing A held before a Officer was Suprеme Dakota. Court 1992. Minot on November Consultation 27, 1994. Oct. Commissioners, County with Board of judges, attorneys county of the affected place Supreme Court

took in the Courtroom

on November 7.2, 5, and

Pursuant to NDRDJV Section Hearing Report

after review Officer parties, with the affected consultation Supreme light finds of the man- Court

dated and transition contained reduction 27-05-01(2) 27-07.1-03,

NDCC Sections сounty judge the ‍​​‌‌‌‌‌​‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌‌‌​​‌​​‌‌‌‌‌​‌‌‌​‌‌‍office of court Ward judicial

County necessary for effective ad-

ministration. ORDERED,

IT HEREBY the va- IS county judge

cant office of court in Ward filled,

County the discretion of

county, in manner described in NDCC 27-07.1-03(2)(a).

Section Johnson, Fargo,

Leslie Deborah for defen- appellant; argued by dant L. Alisha Ankers. Hagler, Atty.,

David D. State’s Asst. Far- plaintiff go, appellee. for SANDSTROM, Justice. appeals judgment

Michael Lefthand from a guilty following of conviction verdict (1) felony AA argues: class He murder. jailed statеments he made while in Minneso- (2) trial, ta should have been excluded at hearsay testimony party a third that commit- allowed, ted the murder have been should (3) ineffective assistance counsel. We judgment. affirm the I 1985, 12, On November Harlan Christen- Fargo. in Ac- sen was murdered downtown cording testimony, group to trial men defendаnt, Lefthand, including the Michael accompanied liquor to a on Christensen store night he was beaten death. Charles Littlewind, Bush, Eugene and Kenneth Te- they John testified at the saw were scene and Lefthand murder Christensen. 1990, being charged October Dakota, North Lefthand was arrested for two in that On Minnesota murders state. 7, 1990, October Lefthand received court- appointed arraignment counsel at his on charges. 24, Minnesota October Left- On requested speak hand with law enforce- officers ment about the Dakota mur- During der. Counsel was notified. in- not terrogations involving the North Dakota case, orally writing Lefthand waivеd rights. During of- questioning, his Miranda gave cigarettes, pop, ficers Lefthand The sweets. officers testified this was done courtesy provide if as common and to food questioning extended over the dinner hour. 6, signed a On November Lefthand written that confession he killed Christensen. On requested speak November Lefthand officers, during meeting, recanted confession. his charged State Lefthand with Chris- tensen’s murder on November After commenced, is, ‘at or prosecution is judgment of guilty, a jury found adversary judicial after the initiation murder. entered conviction was by way of proceedings criminal —whether Art. jurisdiction under had The trial court hеaring, charge, preliminary indict- formal § Const., 27-05- VI, and N.D.C.C. § N.D. ” information, ment, arraignment.’ Art. 06(1). jurisdiction under This Court Const., § 29-28- VI, and N.D.C.C. § N.D. McNeil, 111 S.Ct. at 501 U.S. 4(b), 06(2). timely Rule under appeal (quoting United L.Ed.2d at 166-67 ‍​​‌‌‌‌‌​‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌‌‌​​‌​​‌‌‌‌‌​‌‌‌​‌‌‍N.D.R.App.P. Gouveia, 180, 188, States (1984)). 2292, 2297, 81 L.Ed.2d S.Ct.

II appointment of Lefthand claims the A arraignment Minnesota at his counsel charges his Fifth Amendment he invoked argues statements counsel, could not be waived separate which jailed in Minnesota on while made right at subsequent interrogation. Once the trial incorrectly charges admitted. were tached, approached says, he could not be suppress, he motion to Lefthand’s court denied Dakota case. Lefthand mis the Nоrth his constitutional about finding violation of no Fifth are construes the distinction between of law A court’s conclusions rights. invoking his The of City Man and Sixth Amendments. fully this Court. reviewable of (N.D. counsel, a mat 640, right to as Jewett, Amendment 641 Sixth 517 N.W.2d dan v. fact, Fifth Amend not invoke his 1994). findings fact on a ter of did of A trial court’s McNeil, 178, if, at 111 right. 501 U.S. ment not be reversed supрress will motion 2209, at 168. “To find at 115 L.Ed.2d testimony are re S.Ct. in the the conflicts after affirmance, his Fifth Amend the defendant invoked there is suffi in solved favor present charges right on the fairly capable of ment to counsel competent evidence cient appointment of merely by requesting the findings, the supporting the trial court’s arraignment on the unrelated manifest counsel at his contrary to the not decision is meaning ordinary charge disregard the Murray, 510 is to v. weight of the evidence. State McNeil, U.S. at 178- request.” 501 107, of that 109 2209, at 169. 79, 115 L.Ed.2d 111 at S.Ct. to the Unit Fifth Amendment The Further, his Mi explicitly waived Lefthand privilege provides the ed States Constitution quеstioning on the rights each at randa The United against self-incrimination. case, he opportunity first Dakota the recognized num Supreme Court States to invoke them. had including right to rights, the protective ber in counteract the present, appointment have counsel of counsel argues Lefthand interrogation. of custodial pressures arraignment, herent barred subse- him the at Arizona, 436, 86 v. 384 U.S. Miranda police. See quent contact (1966). 1602, Once 16 L.Ed.2d 694 S.Ct. for inter right to counsel having asserted the counsel on the appointment of reap- may not be rogation, the accused Left- charges not invoke does Minnеsota unless coun regarding any offense proached counsel for right to Amendment hand’s Sixth Wisconsin, 501 v. present. is McNeil sel murder. Because North Dakota 2204, 2208, 177, 171, 115 111 S.Ct. “offense-specific,” U.S. right is Sixth Amendment (1991). Thus, 158, Fifth 168 L.Ed.2d which Lefthand those matters it attached for “offense-spe protections are not Amendment time of At the charged in Minnesota. was murder, Amendment rec The Sixth cific.” McNeil. Dakota on the North questioning right to assistance ognizes charged the defendant’s with had not been Lefthand prosecutions. Unlike counsel in all criminal Amend The Sixth death of Christensen. however, the right, therefore, the Fifth Amendment ment, bar to the admis posed no offense-specific. McNeil, right Amendment Sixth in See this case. of statements sion 2208, 115 111 at at S.Ct. future 501 U.S. once for all “It cannot be invoked L.Ed.2d at 167. until a for it does not attach prosecutions, 68

Relying Harvey, Michigan 494 physically mentally U.S. dence he was unable (1990), 110 S.Ct. 108 L.Ed.2d 293 police interrogation. deal with statements, argues nеxt even if The second element of voluntari admissible, have been should not introduced ness includes duration and conditions question as substantive evidence. The detention, police attitude toward the defen Harvey prosecution was whether could dant, pressures and the diverse sap statement, still usе a taken violation of the powers accused’s of resistance or self-control. defendant’s Sixth Amendment to coun- Taillon at 229. The trial court did find not sel, impeach testimony. Harvey, his false detention, Lefthand’s Minnesota than for less 345-46, 1177-78, 494 U.S. at S.Ct. at 108 questioning ‍​​‌‌‌‌‌​‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌‌‌​​‌​​‌‌‌‌‌​‌‌‌​‌‌‍one month on Christen may. L.Ed.2d at 299. Court held it murder, sen’s coerсive. ar Lefthand also Harvey, at U.S. S.Ct. at gues law enforcement officials him coerced Nothing at 299. in that L.Ed.2d case confessing by providing cigarettes, pop, into validly limited the use of statements ob- sugary treats while him. questioning tained, case, as as this substantive evi- argue provided does not he was not contrary, dence. On the even statements fact, day. three meals a officials testified introduced, illegally though obtained could given questioning snacks were case the only impeach. Harvey, extended over dinner hour. Lefthand’s 1180-81, 110 S.Ct. at 108 L.Ed.2d at 302-03. theory persuasive. novel is not finding supported court’s of voluntariness is B by thе evidence. Lefthand contends his admissions coerced not were and should have been ad Ill mitted. The trial found court the statements testimony The trial court denied voluntarily given. were “Because voluntari tendered on Lefthand’s behalf. Lefthand’s depends of upon questions ness a confession privatе testily to detective was on statements by court, fact of to be the trial resolved and allegedly Charles party Bush made to a third superior because the trial court is a posi concerning Christensen’s murder. Accord judge credibility weight, tion to and we show detective, ing private to the in the offer greаt trial deference to the court’s determi proof, party Bush told the third was that he Taillon, nation of voluntariness.” State v. person the responsible for Christensen’s (N.D.1991). 226, 470 N.W.2d 228 We will party allegedly death. The third related only reverse if it contrary the decision is to private these to statements the detective. weight the manifest of the evidence. Tail- objected testimony The State to the inad as lon. hearsay. missible The trial court the denied private of a testimony, voluntariness confession the holding detective’s using totality-of-the-circum found is the im statements could not be introduced as inquiry peachment test. “The аgainst stances Taillon. focuses evidence Bush. Lefthand (1) two testimony elements: the characteristics and claims the should have been admit condition of at the accused the time of ted. is a example the classic evidence (2) hearsay hearsay. confession and setting the details the within Undеr Rule N.D.R.Ev., which the hearsay confession was obtained. No one is not if each excluded (citations (Bush part factor is Taillon determinative.” of the combined statements the to omitted). element, party, party The first the third private characteris the third to the detective) accused, tics and cоndition exception of the includes with an the the conforms to sex, race, level, age, physical hearsay alleged by education rule. The statements condition, prior experience party mental potentially with Bush to the third were Pickar, interest, police. against State v. 453 N.W.2d 785 Bush’s criminal so this hear-' (N.D.1990). 804(b)(3), say has been analyzed active in his under Rule defense, 804(b)(3) argument lawyer and at require oral his N.D.R.Ev. Rule three (1) stupid conceded he is “not a individual ments: the declarant must be unavailable (2) any trial, statement, present testify means.” did not evi- at the at the

69 Second', subject conspiracy even if a kill making, the declar- Christen must time its statement, liability alleged, that a reason had been made to criminal such sen ant later, made person not have the state much not in would was its furtherance. Be able (3) true, believing party it to be ment without cause Bush’s statements to the third tending expose inadmissible, the declarant stаtement are the statements the third offering exculpate liability and private criminal to the not party detective do need to not unless corrobo the accused is admissible be addressed. clearly

rating indicate circumstances Finally, we note substance of Rule of the statement. trustworthiness entirely hearsay was evidence not excluded N.D.R.Ev., 804(b)(3), v. see United States exception trial. no or exclusion from When (8th Cir.1992), Seabolt, F.2d may applies, hearsay not used as be substan — denied, -, 113 S.Ct. cert. evidence, only impeach tive but under (1993). 122 L.Ed.2d 782 Allery, Rule N.D.R.Ev. State v. requirement rule is first ques Bush was declarant, not met because out-of-court extensively, objection, tioned without on the Bush, appeared testified. at Charles alleged party. statement to the third the second questionable It is also whether questioning proper This was method to 804(b)(3) Rule was met. requirement of hearsay. introduce otherwise inadmissible Seabolt, pеrson a third he declarant told the crime which defendant committed IV held decla charged. been The court had court-appoint Lefthand contends his apt prison inmates was more ration between adequately represent not his ed counsel did “jailhouse braggadocio” than a state tо be interests at trial. When a claim ineffec ‍​​‌‌‌‌‌​‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌‌‌​​‌​​‌‌‌‌‌​‌‌‌​‌‌‍ Seabolt, against criminal interest. ment argued on tive assistance of counsel is direct was F.2d at The statement this case appeal, we record. “If we review entire inmates, however, the prison not between readily that assistance of cannоt determine tes private context is similar. The detective plainly counsel was defective and there exist at made the third tified statement was reversal, grounds for then the de no other “had sniff party’s and Bush been residence pursue post- can claim a fendant later his drinking ing paint gasoline and been рroceeding adequate an rec conviction where killing bragging alcohol and was about some State, developed.” ord can Hoffarth Finally, no guy Fargo.” there were (N.D.1994). 146, 150 515 N.W.2d corroborating of trustworthi circumstances by questiona- set ness forth Lefthand. are considerations There two couplеd requirements, of last two bleness the counsel claim. an ineffective assistance of undisputed availability of Bush for with the First, lawyer’s trial Lefthand must show his trial, clearly support trial court’s exclu the objective stan representation fell below an sion of Bush’s statements. Second, defec dard of reasonableness. the him. Relying representation prejudiced v. upon United tive States Hoffarth (8th Cir.1991), heavy presumption is that coun Lenfesty, F.2d cert. at 150. The 923 1293 States, range within of reason nom. Smith v. United 499 sel’s conduct fell the denied sub ableness, guess will de 111 113 L.Ed.2d 665 and we not second S.Ct. (1991), argues through hindsight. v. private strategy the detec fense Stаte (N.D.1993). Norman, testimony been admitted 507 N.W.2d tive’s should have co-conspir requires of first the defen because it involved statements consideration 801(d)(2)(v), to trial made errors so ators under Rule N.D.R.Ev. dant show counsel the co-conspira The rule allows a as not to function as “counsel” statements serious pаrty, during guaranteed tor of the course and the Sixth Amendment. State Sayler, to conspiracy, furtherance of the be offered v. 443 N.W.2d suppress his against party argues as an admission. Bush’s Lefthand the failure to the certify question or the statement not fall under this statements does exclusion. custodial trial; First, admissibility prior fаil- conspiracy alleged. has been no their the there of testimony private agree introduce the I ure to under the Federal Constitu- tion, jury; investigator to the failure to sub- the Sixth Amendment to counsel declarants; and, interpreted poena specific.” the out-of-court has been to be “offense him I opinion. failure of trial counsel inform concur in therefore and alternatives this case indicate his risks accepted

representation below the stan- fell

dard. already

We have addressed the suppress

failure to Lefthand’s custodial hearsay and to introduce

statements tes

timony. arguments Those fail. Lefthand’s contention, admissibility next certification of SCHMIDT, Appellee, Diane Plaintiff statements, of his custodial also fails. This State no method certifiсation of factu v. appellate al issues for to a crimi review REAMANN, James Defendant §

nal trial. See N.D.C.C. 29-28-06. Fur Appellant. ther, necessary it subpoena was not declarant, Bush, out-of-court because he tes Civ. No. 940194. extensively tified was cross-examined Supreme Court Dakota. alleged hearsay sоught statements through private introduced detective. Oct. Finally, conclusory makes alle gation trial counsel failed to educate and him of the risks and

inform alternatives of challenge premised “A

the case. on incom

petent requires challenger counsel

point specificity out with particularity ‍​​‌‌‌‌‌​‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌‌‌​​‌​​‌‌‌‌‌​‌‌‌​‌‌‍how incompetent

and where the counsel was probable result. absence different any showing, compelled such we are

reject the contention trial counsel acted

incompetently.” Wolf, State (N.D.1984) (emphasis original). record, say,

We cannot from this the assis plainly

tance of counsel was defective.

V judgment conviction affirmed. WALLE, C.J.,

VANDE and NEWMANN MESCHKE, JJ., concur.

LEVINE, Justice, specially concurring. purely

This ease is one is based

federal law. No issue was raised that our precludes

State Constitution admission of

Lefthand’s confession it because affords

greater protection than the Federal Constitu-

tion, given special importance See,

to counsel in e.g., North Dakota. State Orr,

Case Details

Case Name: State v. Lefthand

Court Name: North Dakota Supreme Court

Date Published: Oct 27, 1994

Citation: 523 N.W.2d 63

Docket Number: Cr. 930362

Court Abbreviation: N.D.