State ex rel. Roseland v. Herauf

• Decision Date: 26 July 2012
• Docket Number: No. 20120170.,20120170.
• Citation: 819 N.W.2d 546,2012 ND 151
• Parties: STATE of North Dakota, ex rel. Aaron W. ROSELAND in his capacity as Adams County State's Attorney, Petitioner v. The Honorable William A. HERAUF, in his capacity as Judge of the District Court, Southwest Judicial District, and Gwen Bohmbach, Respondents.
• Court: North Dakota Supreme Court

819 N.W.2d 546

2012 ND 151

STATE of North Dakota, ex rel. Aaron W. ROSELAND in his capacity as Adams County State's Attorney, Petitioner

v.The Honorable William A. HERAUF, in his capacity as Judge of the District Court, Southwest Judicial District, and Gwen Bohmbach, Respondents.

No. 20120170.

Supreme Court of North Dakota.

July 26, 2012.

Aaron W. Roseland, State's Attorney, Hettinger, ND, for petitioner.

Ashley E. Holmes, Dickinson, ND, for respondent Gwen Bohmbach.

Nicholas D. Thornton, Fargo Public Defender Office, Fargo, ND, for amicus curiae North Dakota Association of Criminal Defense Lawyers; submitted on brief.

VANDE WALLE, Chief Justice.

[¶ 1] The State of North Dakota, through Adams County State's Attorney Aaron Roseland, petitioned for a supervisory writ directing the district court to withdraw its pretrial order holding N.D.R.Ev. 707 required the State to produce at trial the person who drew Gwen Bohmbach's blood on the charge of driving under the influence. We conclude this is an appropriate case in which to exercise our supervisory jurisdiction. Because we hold N.D.R.Ev. 707, when construed with N.D.C.C. § 39–20–07, requires the State to produce at trial the individual who drew Bohmbach's blood, we deny the State's petition.

I.

[¶ 2] Bohmbach was arrested for driving under the influence and submitted to a blood draw, which was conducted by a nurse. The State notified Bohmbach that it intended to introduce the analytical report at trial. Bohmbach sent the State a subpoena to serve on the nurse who drew her blood. The State moved to quash the subpoena, arguing N.D.R.Ev. 707 did not require it to produce the nurse who drew Bohmbach's blood because the nurse had no knowledge of the analytical report. The district court, after a hearing on the motion, concluded the State was required to produce the nurse at trial.

II.

[¶ 3] This Court's authority to issue supervisory writs under N.D. Const. art. VI, § 2 and N.D.C.C. § 27–02–04 is a discretionary authority exercised on a case-by-case basis. State v. Holte, 2001 ND 133, ¶ 5, 631 N.W.2d 595. We exercise this discretionary authority rarely and cautiously and only to rectify errors and prevent injustice in extraordinary cases in which no adequate alternative remedy exists. Id. We generally will decline to exercise supervisory jurisdiction if the proper remedy is an appeal. Id.

[¶ 4] We conclude this is an appropriate case to exercise our supervisory jurisdiction because the State lacks another adequate remedy. The State's ability to appeal is limited. SeeN.D.C.C. § 29–28–07. If Bohmbach were found not guilty by a jury, the State could not appeal. See State v. Bernsdorf, 2010 ND 123, ¶ 5, 784 N.W.2d 126;State v. Deutscher, 2009 ND 98, ¶ 7, 766 N.W.2d 442;City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D.1994). If Bohmbach were found guilty by a jury, she would not likely raise the issue on appeal and the possibility that the State could raise it is remote. See Holte, 2001 ND 133, ¶ 6, 631 N.W.2d 595;State v. Sabinash, 1998 ND 32, ¶ 19, 574 N.W.2d 827.

[¶ 5] Bohmbach and the North Dakota Association of Criminal Defense Lawyers, as amicus curiae, argue the State has two adequate alternative remedies. The first suggested remedy, which would have the State proceed to trial under N.D.C.C. § 39–08–01(1)(b) based solely on the officer's testimony, is inadequate because it limits the State to proceed under one theory of driving under the influence when generally it can present the jury with two separate theories. Under N.D.C.C. § 39–08–01(1)(a), the per se violation, a person can be convicted of driving under the influence based on the results of a chemical test. Section 39–08–01(1)(b), N.D.C.C., provides a person can be convicted of driving under the influence of intoxicating liquor regardless of the driver's blood alcohol level if the State proves the person drove a motor vehicle on a public way lacking “the clearness of intellect and control of himself that he would otherwise have.” State v. Knowels, 2003 ND 180, ¶ 8, 671 N.W.2d 816 (quoting State v. Whitney, 377 N.W.2d 132, 133 (N.D.1985)). The second suggested remedy, to produce the nurse at trial or depose her and offer her deposition in lieu of testimony, requires the State to comply with the district court order and, seemingly, reserve any challenge to the order for appeal. However, as discussed above, the State is unlikely to be able to raise the issue on appeal, making this remedy inadequate.

III.

[¶ 6] The State argues the district court misinterpreted N.D.R.Ev. 707 to conclude the State was required to produce the nurse at trial. The State asserts the rule only requires it to produce those persons who have knowledge about the analytical report, and the nurse who drew the blood sample has no knowledge about the report.

[¶ 7] We interpret rules of court, including the rules of evidence, in accordance with principles of statutory construction. Walker v. Schneider, 477 N.W.2d 167, 172 (N.D.1991); State v. Manke, 328 N.W.2d 799, 801 (N.D.1982). Statutory interpretation is a question of law, which is fully reviewable on appeal. Nelson v. Johnson, 2010 ND 23, ¶ 12, 778 N.W.2d 773. Words used in statutes are to be understood in their ordinary sense unless a contrary intention is apparent. N.D.C.C. § 1–02–02. Statutes should be harmonized to give meaning to related provisions and to avoid conflicts between statutes. Great Western Bank v. Willmar Poultry Co., 2010 ND 50, ¶ 7, 780 N.W.2d 437;N.D.C.C. § 1–02–07. When construing statutes, this Court considers “the context of the statutes and the purposes for which they were enacted.” Great Western Bank, at ¶ 7 (quoting Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719). Statutes and rules are presumed to be constitutional and courts will construe them to be constitutional if possible. Paluck v. Bd. of Cnty. Comm'rs, Stark Cnty., 307 N.W.2d 852, 857 (N.D.1981); N.D.C.C. § 1–02–38(1). “[I]f a statute is susceptible of two constructions, one which will be compatible with constitutional provisions or one which will render the statute unconstitutional, we must adopt the construction which will make the statute valid.” Paluck, 307 N.W.2d at 856.

[¶ 8] Rule 707, N.D.R.Ev., provides in part:

Analytical Report Admission; Confrontation

(a) Notification to Defendant. If the prosecution intends to introduce an analytical report issued under N.D.C.C. chs. 19–03.1, 19–03.2, 19–03.4, 20.1–13.1, 20.1–15, 39–06.2, or 39–20 in a criminal trial, it must notify the defendant or the defendant's attorney in writing of its intent to introduce the report and must also serve a copy of the report on the defendant or the defendant's attorney at least 30 days before the trial.

(b) Objection. At least 14 days before the trial, the defendant may object in writing to the introduction of the report and identify the name or job title of the witness to be produced to testify about the report at trial. If objection is made, the prosecutor must produce the person requested. If the witness is not available to testify, the court must grant a continuance.

(c) Waiver. If the defendant does not timely object to the introduction of the report, the defendant's right to confront the person who prepared the report is waived.

[¶ 9] Rule 707, N.D.R.Ev., was adopted in response to Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). SeeN.D.R.Ev. 707, Explanatory Note. In Melendez–Diaz, the United States Supreme Court held that certificates of analysis, which showed the results of forensic analysis performed on seized substances, were testimonial statements for confrontation purposes. Melendez–Diaz, 129 S.Ct. at 2531–32. The Court outlined what qualifies as testimonial:

ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. at 2531 (quoting Crawford v. Washington, 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). The Court concluded the certificates constituted affidavits and therefore were testimonial because they were “solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact.” Melendez–Diaz, 129 S.Ct. at 2532 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Additionally, the certificates were made under circumstances which would lead an objective, reasonable witness to believe the certificates would later be used at trial, and “under Massachusetts law the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance [.]” Melendez–Diaz, 129 S.Ct. at 2532 (quoting Mass. Gen. Laws, ch. 111, § 13 (2004)) (emphasis in original). See Williams v. Illinois, –––U.S. ––––, 132 S.Ct. 2221, 2232–33, 2265–66, 183 L.Ed.2d 89 (2012) (plurality opinion) (Kagan, J., dissenting) (reaffirming the testimonial nature of the certificates in Melendez–Diaz because they were created solely to provide evidence against the defendant). Absent a showing that the analysts who prepared the certificates of analysis were unavailable for trial and the defendant had a prior opportunity to cross-examine them, the defendant was entitled to confront the analysts at trial. Melendez–Diaz, 129 S.Ct. at 2532. The Court clarified its holding:

Contrary to the dissent's suggestion, ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or...