State v. Bird, 20130402.

• Decision Date: 12 February 2015
• Docket Number: No. 20130402.,20130402.
• Citation: 858 N.W.2d 642
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Damon John WHITE BIRD, Defendant and Appellant.
• Court: North Dakota Supreme Court

858 N.W.2d 642

STATE of North Dakota, Plaintiff and Appellee

v.Damon John WHITE BIRD, Defendant and Appellant.

No. 20130402.

Supreme Court of North Dakota.

Feb. 12, 2015.

Rehearing Denied April 28, 2015.

Tristan J. Van de Streek, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Monty G. Mertz, Fargo Public Defender Office, Fargo, N.D., for defendant and appellant.

Opinion

SANDSTROM, Justice.

[¶ 1] Damon White Bird appeals from a criminal judgment entered after a jury found him guilty of attempted murder, felonious restraint, tampering with physical evidence, and aggravated assault. We affirm, concluding White Bird was competent to waive his right to counsel, the district court did not err in regulating the introduction of evidence and instructing the jury at the trial, and sufficient evidence supported his convictions.

I

[¶ 2] In April 2013, Fargo Police officers investigated two separate violent assaults on two victims, which occurred between twelve to eighteen hours apart at the same location, White Bird's apartment. On the basis of the investigation, White Bird was subsequently charged with attempted murder, a class A felony; two counts of felonious restraint, class C felonies; tampering with physical evidence, a class A misdemeanor; and aggravated assault, a class C felony. White Bird made his first appearance in the district court on April 5, 2013, and he applied for and was appointed a public defender.

[¶ 3] On April 30, 2013, on the basis of a defense motion, the district court ordered White Bird committed to the North Dakota State Hospital to evaluate his fitness to proceed and criminal responsibility. A psychologist at the State Hospital evaluated White Bird and prepared two reports, which were both filed with the court on June 10, 2013. White Bird was found both fit to proceed and criminally responsible. In June 2013, White Bird and his attorney appeared at the preliminary hearing. White Bird waived his preliminary hearing and pled not guilty to all of the charges.

[¶ 4] In July 2013, White Bird filed a document in which he fired his attorney and moved to dismiss the case. On July 24, 2013, the district court held a hearing at which White Bird's attorney said White Bird had fired him and wanted to represent himself. His attorney raised the issue of White Bird's ability to represent himself. The court then discussed with White Bird his decision to represent himself. White Bird said he did not believe his appointed counsel was giving him an “adequate defense.” The court continued discussing the issue with White Bird, but White Bird did not change his mind, insisting on representing himself. The court informed him that trial was only six days away, and he would have to subpoena his witnesses and be ready to try his case.

[¶ 5] At another pretrial hearing on July 26, 2013, the district court again addressed White Bird's desire to represent himself. The hearing ended with White Bird's consenting to permit his appointed counsel to represent him. However, on July 29, 2013, the day before trial, at the final pretrial hearing, White Bird again insisted that he wanted to represent himself. The court again discussed with White Bird the dangers of self-representation and his decision to fire his appointed counsel. The court allowed White Bird to represent himself and appointed his former attorney as standby counsel. The court also denied White Bird's motion to dismiss.

[¶ 6] At the five-day jury trial in late July and August 2013, White Bird represented himself with limited assistance of standby counsel. The jury found White Bird guilty on all five counts. In October 2013, White Bird moved for an evidentiary hearing, alleging he was not competent to waive his right to counsel. At a November 2013 hearing, the court denied White Bird's motion and sentenced him.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. White Bird timely appealed from the criminal judgment under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 8] White Bird argues he was not competent to waive his right to counsel.

[¶ 9] Generally, the corollary to a criminal defendant's constitutional right to counsel is a defendant's right to self-representation. See State v. Garge, 2012 ND 138, ¶ 15, 818 N.W.2d 718 ; State v. Dahl, 2009 ND 204, ¶ 22, 776 N.W.2d 37. To represent oneself, a criminal defendant must voluntarily, knowingly, and intelligently waive the right to counsel. State v. Jones, 2011 ND 234, ¶ 20, 817 N.W.2d 313. “ ‘[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances— even though the defendant may not know the specific detailed consequences of invoking it.’ ” Id. at ¶ 20 (quoting Iowa v. Tovar, 541 U.S. 77, 92, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) ). We review an alleged violation of a constitutional right de novo. State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635.

[¶ 10] In Dahl, 2009 ND 204, ¶¶ 24–26, 776 N.W.2d 37, this Court discussed Indiana v. Edwards, 554 U.S. 164, 174–178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), and a district court's responsibility for assessing a defendant's mental capacity to continue self-represented. In Edwards, 554 U.S. at 174, 128 S.Ct. 2379, the Supreme Court addressed “whether the Constitution permits a State to limit that defendant's self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” We discussed circumstances in which a defendant may be mentally competent to stand trial, but at the same time “be unable to carry out the basic tasks needed to present his own defense without the help of counsel,” such that permitting the defendant “to proceed without counsel ... could result in trials that are either not fair or do not ‘appear fair to all who observe them.’ ” Dahl, at ¶ 24 (quotation marks omitted).

[¶ 11] In deciding whether a defendant may continue self-represented, the district court may take a defendant's mental capabilities into account by inquiring whether the defendant is mentally competent to conduct his own trial. Dahl, at ¶ 24. A court may then reject a defendant's waiver of the right to counsel when a defendant suffers from mental illness or impairment, “such that the defendant would not be competent to conduct trial proceedings without counsel, even if the defendant is otherwise competent to stand trial. ” Id. (emphasis added). The district courts in these circumstances “can ask questions and observe the behavior of individual defendants [and] are in a better position than appellate courts to determine whether a defendant who is competent to stand trial is [also] competent to conduct his or her own defense.” Id. at ¶ 25.

[¶ 12] Edwards indicates the district court has a “continuing responsibility” at trial to decide whether a self-represented defendant is competent to present his or her own defense:

The United States Supreme Court [in Edwards ] explained, “Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways.” Edwards, [554 U.S. at 175, 128 S.Ct. at 2386 ]. This is true as a trial progresses, as well. A self-represented defendant that a district court determines to be competent at a pre-trial hearing may later suffer symptoms of mental illness that render him or her incapable of self-representation. The district court has a continuing responsibility to ensure the defendant is afforded a fair trial. As the United States Supreme Court noted, “The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.”Id. at [177, 128 S.Ct. at 2387 ] (quoting Illinois v. Allen, 397 U.S. 337, 350 [90 S.Ct. 1057, 25 L.Ed.2d 353] (1970) (Brennan, J., concurring)).

Dahl, at ¶ 26. “To ensure the defendant is afforded a fair trial, a district court can appoint counsel for the defendant during trial if the court determines the defendant is no longer competent to present his or her own defense.” Id. at ¶ 26.

[¶ 13] In this case, White Bird, now represented by counsel on appeal, argues his psychological evaluation demonstrated he had a rather low level of trial competence and a full scale IQ of 76 and had been diagnosed with a list of mental disorders affecting his intellectual and emotional functioning. He asserts that while he was found competent to stand trial, his evaluation did not address whether he could represent himself at trial. White Bird contends the record considered as a whole establishes he did not have sufficient knowledge and intelligence to be competent to waive his right to counsel.

[¶ 14] White Bird takes issue with a wide range of alleged errors he committed while representing himself at trial. White Bird asserts he did virtually nothing to establish his self-defense theory, he had no concept of presenting evidence or subpoenaing witnesses, and he essentially stipulated to introduce “everything.” He also asserts that he elicited a lot of hearsay testimony, which he argues would not have been heard by the jury had he been represented by counsel, and that his presentation at trial was self-destructive. White Bird concedes the district court made numerous comments to him about the dangers of self-representation, but asserts the court never addressed this subject in the context of his psychological evaluation. He contends the pretrial evaluation establishes his long history of institutionalization and his many deficits. White Bird argues the court erred in allowing him to represent himself.

[¶ 15] The State responds, however, that the district court properly allowed the defendant to represent...