City of Fargo v. Habiger, 20030248.
| Decision Date | 30 June 2004 |
| Docket Number | No. 20030248.,20030248. |
| Parties | CITY OF FARGO, Plaintiff and Appellee v. David Alan HABIGER, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Stephen R. Dawson, City Prosecutor, Fargo, ND, for plaintiff and appellee.
Cash Hennessy Aaland, Fargo, ND, for defendant and appellant.
[¶ 1] David Habiger appeals from a judgment based upon a jury verdict finding him guilty of disorderly conduct. We affirm.
[¶ 2] On May 31, 2002, at MeritCare Hospital in Fargo, North Dakota, an altercation occurred between Habiger and security personnel. Fargo police arrived and arrested Habiger for allegedly causing a disturbance. The City of Fargo charged Habiger with disorderly conduct, and Habiger requested a jury trial in district court.
[¶ 3] Prior to his first appearance in district court, on July 15, 2002, Habiger wrote a letter to the district court. Habiger's ex parte letters to the district court continued throughout the course of litigation.
[¶ 4] On July 17, 2002, Habiger was arraigned. At the time of his arraignment, Habiger entered into a lengthy monologue before the court regarding the cause of his brother's death and Merit-Care's alleged involvement and subsequent cover up. The presiding judge at the initial stages of the proceedings, Judge McGuire, allowed Habiger to speak for several minutes before he attempted to assign a public defender, which Habiger declined to accept. Habiger stated he did not want to be "bound" by a public defender, but that he may choose to hire an attorney in the future.
[¶ 5] On September 6, 2002, Judge McGuire sent Habiger a letter requesting him to limit his ex parte correspondence to the court to relevant matters. Judge McGuire also admonished Habiger to seek the advice of an attorney. On September 18, 2002, the case was re-assigned to Judge Norman Backes.
[¶ 6] A jury trial was held on May 20, 2003. Habiger was convicted of disorderly conduct and sentenced to a 30-day suspended sentence, a fine, and community service. Habiger appeals to this Court.
[¶ 7] The first issue presented by Habiger is "whether the Appellant's conviction should be reversed as the trial judge erred in failing to disqualify himself." This issue was first presented to the district court in an ex parte communication initiated by Habiger. Habiger alleged Judge McGuire was "bias" and "in the back pocket" and "afraid of the corrupt godless power of [MeritCare]." Initially, Judge McGuire denied Habiger's demands for a change of judge because Habiger failed to comply with the appropriate rules of procedure.
[¶ 8] On September 6, 2002, Judge McGuire wrote to Habiger to inform him his communication to the district court was not appropriate and to advise him to contact an attorney. On September 18, 2002, Judge McGuire removed himself from the case and Judge Backes was assigned. On September 25, 2002, Habiger wrote to the district court demanding Judge Backes remove himself from the case because he was "bias," prejudice," and "a tyrant." Habiger filed various motions and communications with the district court demanding Judge Backes remove himself from the case. Judge Backes continued as presiding judge, and the case proceeded to trial on May 20, 2003.
[¶ 9] At trial, Habiger contends Judge Backes demonstrated his bias and prejudice when, after indulging Habiger in a lengthy soliloquy, Judge Backes threatened to hold Habiger in contempt because he had backed up the misdemeanor docket and was wasting county resources. Judge Backes also told Habiger he knew Habiger's brother and "got along a lot better with your brother."
[¶ 10] The disqualification of a judge is governed by N.D.Code Jud. Conduct Canon 3. The applicable rule provides:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.
N.D.Code Jud. Conduct Canon 3(E)(1)(a).
[¶ 11] This Court has previously held a judge should disqualify him or herself when the defendant is before the judge on a contempt charge which involved "`disrespect or criticism of that judge." Baier v. Hampton, 440 N.W.2d 712, 713 (N.D.1989). Habiger relies on Baier to argue Judge Backes should have disqualified himself in the proceeding; however, the rule from Baier is not applicable in this case.
[¶ 12] In Baier, the judge presiding over trial on a contempt charge had personal knowledge of the facts of the case and commented in the presence of the jury as to the judge's opinion of the defendant and his propensity for veracity. Baier, at 714. In this case, the judge did not have personal knowledge of the facts, nor was there any risk Judge Backes would have been called as a witness in the proceeding, as was the case in Baier. Id.
[¶ 13] Judge Backes was not under any obligation to withdraw as judge in Habiger's disorderly conduct case because the record does not reflect Judge Backes had personal knowledge of the facts, nor did he demonstrate bias or prejudice sufficient to raise concerns about his impartiality. Judge Backes was also not under a duty to withdraw because Habiger failed to properly demand a change of judge under N.D.C.C. § 29-15-21, which governs the procedure for the parties' right to request a change of judge.
[¶ 14] Under N.D.C.C. § 29-15-21, a party may request a change of judge if the party follows proper procedure. Although Habiger did not follow proper procedure to demand a change of judge, Judge McGuire voluntarily recused himself and Judge Backes was assigned. Habiger was not entitled to a change of judge based on his failure to follow procedure.
[¶ 15] The next issue raised by Habiger is whether Habiger's "conviction should be reversed as [he] was not afforded his rights to counsel as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 12 of the North Dakota Constitution." Habiger argues he was not adequately advised of the dangers and disadvantages of self-representation. We disagree.
[¶ 16] This issue was recently addressed by the United States Supreme Court in Iowa v. Tovar, ___ U.S. ___, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). The Supreme Court concluded a specific colloquy between the court and the defendant was not necessary, but each state was free to "adopt by statute, rule, or decision any guides to the acceptance of an uncounseled plea they deem useful." Id. at 1390.
[¶ 17] "Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a `knowing, intelligent act done with sufficient awareness of the relevant circumstances.'" Tovar, at 1383 (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The United States Supreme Court has declined to prescribe a set formula for establishing when a defendant has knowingly and intelligently waived his right to counsel. Tovar, at 1390. The Court described an intelligent waiver of counsel as "when the defendant `knows what he is doing and his choice is made with eyes open.'" Tovar, at 1387 (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).
[¶ 18] A defendant has a right to counsel under the Sixth Amendment of the United States Constitution. State v. DuPaul, 527 N.W.2d 238, 240 (N.D.1995). The standard of review on an alleged denial of the constitutional right to counsel is de novo. State v. Poitra, 1998 ND 88, ¶ 7, 578 N.W.2d 121. "[T]he denial of the right to counsel at trial requires reversal of a defendant's conviction because prejudice is presumed." Id.
[¶ 19] In State v. Dvorak, 2000 ND 6, ¶ 11, 604 N.W.2d 445, this Court held the district court did not need to enter into a specific colloquy about the dangers of proceeding pro se. Id. The district court should make an on-the-record determination that the defendant unequivocally, knowingly, and intelligently waived the right to counsel. Id.
[¶ 20] Indigent defendants have the right to appointed counsel under N.D.R.Crim. P. 44(a), which provides:
Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall, appoint counsel to represent a defendant at the defendant's expense if the defendant is unable to secure the assistance of counsel and is not indigent.
[¶ 21] Habiger appeared before the district court on July 17, 2002, for arraignment. The district court attempted to appoint counsel for Habiger, but Hagiber indicated he intended to proceed on his own. The following exchange occurred:
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