Hill v. State, 20000018.

• Citation: 615 N.W.2d 135,2000 ND 143
• Decision Date: 20 July 2000
• Docket Number: No. 20000018.,20000018.
• Parties: Eric Alan HILL, Petitioner and Appellee, v. STATE of North Dakota, Respondent and Appellant.
• Court: North Dakota Supreme Court

615 N.W.2d 135

2000 ND 143

Eric Alan HILL, Petitioner and Appellee, v. STATE of North Dakota, Respondent and Appellant.

No. 20000018.

Supreme Court of North Dakota.

July 20, 2000.

Rehearing Denied August 18, 2000.

Leslie Johnson Aldrich, Johnson Law Office, Fargo, for petitioner and appellee.

Mark R. Boening, Assistant State's Attorney, Fargo, for respondent and appellant.

KAPSNER, Justice.

[¶ 1] The State appealed from a district court's memorandum opinion and order, entered during post-conviction relief proceedings, granting a new trial to Eric Hill. We hold the district court's grant of a new trial is appealable. We further hold the district court did not clearly err in finding Hill's right to be present at a proceeding during deliberations when trial testimony was read to the jury was violated and the violation was not harmless beyond a reasonable doubt. We therefore affirm.

I

[¶ 2] In February 1998, Hill went on trial for two counts of gross sexual imposition and one count of terrorizing. During deliberations, several communications occurred between the jury and the trial court and between the trial court and counsel.

[¶ 3] The trial court received a jury request to "get a copy of the transcript" and held a discussion with counsel for both parties. The court inquired into Hill's absence:

THE COURT: ... Is the Defendant with you?

TRIAL COUNSEL: No.

THE COURT: Well, I'm going to leave it up to you.

TRIAL COUNSEL: That's okay. Go ahead.

The court proposed telling the jury it could have witnesses' testimony read but it would have to indicate whose testimony and which portions of such testimony it wanted to hear. Counsel for both parties agreed to the court's proposal. The court expressed concern about Hill's absence:

THE COURT: ... Are you waiving any appearance on this?

TRIAL COUNSEL: I am.

THE COURT: ... [Y]ou don't see the need to have your client present when I do this?

TRIAL COUNSEL: No.

THE COURT: Okay. We're going to do it, then.

The court called the jury into the courtroom and informed it of the manner in which it could request the reading of testimony.

[¶ 4] After receiving a jury request to have a portion of a witness's testimony read, the court met with counsel for both parties. The court indicated Hill was present. Both counsel agreed to the testimony which would be read. The jury was called in, and the testimony was read.

[¶ 5] The court later received several more requests to have testimony read. The court met with counsel for both parties. Unlike it had in the previous meetings, the court did not indicate whether Hill was present. Both counsel agreed to the testimony which would be read to satisfy some of the jury's requests. The jury was called in, and the testimony was read. The court indicated it would continue working on the jury's remaining requests.

[¶ 6] The following morning, the court and counsel for both parties met to discuss the jury's remaining requests. The court indicated it wanted the parties to reach a stipulation regarding the requests and expressed concern regarding Hill's absence. Hill's trial counsel indicated Hill was in the courthouse but apparently did not bring him in to the meeting. Counsel for the State indicated he would prefer the entire testimony of a witness be read rather than portions of a witness's testimony. The court proposed returning the jury's remaining requests and giving the jury "a caution" that it should first attempt to rely on its own recollection and, if that was not sufficient, the entire testimony of a witness would be read. Both counsel agreed to the court's proposal. The court accordingly "caution[ed]" the jury.

[¶ 7] The jury subsequently convicted Hill. Hill unsuccessfully appealed his conviction. See State v. Hill, 1999 ND 26, 590 N.W.2d 187

.

[¶ 8] In July 1999, Hill petitioned the district court for post-conviction relief. In a supporting affidavit, Hill asserted his trial counsel, without his knowledge, waived his right to be present when testimony was read and he had wanted to be present when testimony was read. Shortly after submitting his petition, Hill successfully demanded a change of judge.

[¶ 9] An evidentiary hearing was held on November 24, 1999. Hill indicated he had not waived his right to be present when testimony was read and he was not present at the final reading. Hill's trial counsel testified he waived Hill's right to be present at the final reading despite knowing Hill "wanted to be there all the time." At the end of the hearing, the district court directed the parties to brief the issue of whether the violation of Hill's right to be present when testimony was read was harmless beyond a reasonable doubt.

[¶ 10] In its brief, the State asserted "[Petitioner's trial counsel] waived the petitioner's presence from the courtroom which [sic] testimony was read aloud to the jury. The petitioner has not directed this Court's attention to any manner in which he was prejudiced by his absence."

[¶ 11] The district court filed a memorandum opinion and order on January 7, 2000, granting Hill a new trial. The court emphasized Hill's trial counsel conceded Hill wanted to be present when testimony was read and he had improperly waived Hill's right to be present. Finding the "trial court had open communications with the jury without the petitioner being present," the court concluded Hill's constitutional rights had been violated and it "cannot find the error to be harmless." The State appealed.

II

[¶ 12] Hill argues the district court's memorandum opinion and order granting a new trial is not appealable. Under N.D.C.C. § 29-32.1-14, "[a] final judgment entered under this chapter [the Uniform Post-Conviction Procedure Act] may be reviewed by the supreme court of this state upon appeal filed ... by the state." Although N.D.C.C. § 29-32-07 previously provided that certain orders entered under the Uniform Post-Conviction Procedure Act were equivalent to a final judgment, "[t]he current law governing post-conviction procedure does not contain a provision which provides that certain orders are equivalent to a final judgment." Kaiser v. State, 417 N.W.2d 175, 177 (N.D. 1987). We have explained, however, "statutes conferring the right to appeal must be liberally construed, and that in determining appealability it is not the label which controls but, rather, the effect." Id. (citation omitted) (concluding the district court's order denying a petition for post-conviction relief was intended to have the effect of a final judgment).

[¶ 13] The effect of an order granting a new trial compels holding it is a final judgment. No further post-conviction relief proceedings will occur after an order granting a new trial is issued. Rather, a new criminal trial will result. An order granting a new trial therefore is "a final judgment entered under [the Uniform Post-Conviction Procedure Act]" and is appealable under N.D.C.C. § 29-32.1-14. Compare the instant case where a new trial was granted, with Gibson v. State, 1998 ND 89, ¶ 5, 578 N.W.2d 128,

where the district court denied a petitioner's post-conviction relief request for transcripts and we held the court's denial of the request was a nonappealable interlocutory order.

[¶ 14] We have held the grant of a new trial in a civil case is unappealable absent N.D.R.Civ.P. 54(b) certification. Ceartin v. Ochs, 479 N.W.2d 863 (N.D. 1992). We have further held post-conviction relief proceedings are civil in nature. Bell v. State, 1998 ND 35, ¶ 10, 575 N.W.2d 211. However, because the grant of a new trial in a post-conviction relief proceeding results in a new criminal proceeding, it is distinguishable from the grant of a new trial in a civil proceeding which results in a new civil proceeding.

[¶ 15] Based on the foregoing, we conclude an order granting a new trial to a post-conviction relief petitioner is appealable.

III

[¶ 16] The State contends the district court clearly erred in finding a violation of Hill's right to be present when testimony was read to the jury. Under N.D. Const. Art. 1, § 12, "[i]n criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person and with counsel." A defendant thus has a right to be present at all proceedings "during the whole of the trial." City of Mandan v. Baer, 1998 ND 101, ¶¶ 8-9, 578 N.W.2d 559 (noting the right to be present has its roots in the Sixth Amendment of the federal constitution).¹ When testimony is read to the jury, the defendant has the right to be present. State v. Schasker, 60 N.D. 462, 235 N.W. 345, 346 (1931). Hill's absence was not caused by disruptive or unruly behavior which may be the basis for forfeiture of the right to be present. Baer, at ¶ 9.

[¶ 17] A court's findings of fact in post-conviction relief proceedings will not be disturbed unless clearly erroneous. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. A finding is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 18] Here, there is evidence to support the district court's finding Hill's right to be present was violated. During the post-conviction relief hearing, Hill indicated he had not waived his right to be present when testimony was read to the jury and he had not been present at the final reading. Hill's trial counsel testified he had waived Hill's right to be present at the final reading despite knowing Hill had not authorized him to do so. Hill's trial counsel waived Hill's presence at the discussion with the trial court where the jury's request for a copy of the transcript was considered and at the following proceeding where the trial court informed the jury of the manner in which requests for reading testimony could be made. Hill's trial counsel also apparently did not ensure Hill was...