State v. Copeland, Cr. N

• Decision Date: 28 November 1989
• Docket Number: Cr. N
• Citation: 448 N.W.2d 611
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. John Lee COPELAND, Defendant and Appellant. o. 890051.
• Court: North Dakota Supreme Court

Page 611

448 N.W.2d 611

STATE of North Dakota, Plaintiff and Appellee, v. John Lee COPELAND, Defendant and Appellant.

Cr. No. 890051.

Supreme Court of North Dakota.

Nov. 28, 1989.

Ronald W. McBeth (argued), Asst. State's Atty., Wahpeton, for plaintiff and appellee.

Krassin Law Office, Wahpeton, for defendant and appellant; argued by Don R. Krassin.

ERICKSTAD, Chief Justice.

John Lee Copeland has appealed from a criminal judgment entered upon conviction of the crime of corruption of a minor, ¹ two orders denying his motions for a new trial, and an amended criminal judgment. We affirm.

On July 19, 1988, Copeland was tried before the court without a jury on charges of gross sexual imposition and corruption of a minor. The trial court issued its memorandum opinion on August 25, 1988, finding Copeland guilty of corruption of a minor and not guilty of gross sexual imposition. A criminal judgment dated October 31, 1988, was filed on November 4, 1988.

On November 7, 1988, Copeland filed the following motion dated November 3, 1988:

"Comes now the Defendant, John L. Copeland, and moves the Court for an Order appointing an attorney to represent me for purposes of appeal and other Motions. Further, Defendant requests a 30 day enlargement of time, pursuant to Rule 45(b) of the North Dakota Rules of Criminal Procedure, to file a Motion for New Trial and appeal of the criminal conviction."

By order of November 10, 1988, the trial court appointed an attorney and "granted a 30-day enlargement of time, pursuant to Rule 45(b) of the North Dakota Rules of Criminal Procedure, to file a motion for new trial and appeal of the criminal conviction, to the extent permitted by said Rule."

Copeland moved for a new trial on December 9, 1988. The trial court denied that motion on January 23, 1989, and an amended criminal judgment was filed on January 26, 1989. Copeland filed a motion for new trial on the ground of newly discovered evidence on February 1, 1989. The trial court denied that motion in an order dated February 3, 1989.

Copeland appealed the conviction, the orders denying his motions for new trial, the judgment and the amended judgment, raising the following issues:

"I.

"WAS MR. COPELAND'S LAWYER CLIENT PRIVILEGE VIOLATED BY DISCLOSURES TO THE PROSECUTION AND THE COURT BY THERAPIST PAUL WHITE?

"II.

"WAS THE EVIDENCE SUFFICIENT TO CONVICT MR. COPELAND?

"III.

"WAS MR. COPELAND DEPRIVED OF A FAIR TRIAL BY GUARDIAN AD LITEM BONNIE RASMUSSON NOT BEING SEQUESTERED AND TESTIFYING AGAINST MR. COPELAND?

"IV.

"DID THE COURT ABUSE ITS DISCRETION IN NOT ORDERING A NEW TRIAL WHEN NEWLY DISCOVERED EVIDENCE ELIMINATED PROOF OF AN ESSENTIAL ELEMENT OF THE OFFENSE?"

The State contends that the only issue properly before us is the trial court's denial of Copeland's motion for a new trial based on newly discovered evidence. The State argues that a timely motion for a new trial pursuant to Rule 33(c), N.D.R.Crim.P., should have been filed within ten days of the trial court's finding of guilt on August 25, 1988; that no such motion was filed until December 9, 1989; and that Copeland's untimely motion for a new trial could not suspend the running of the time to appeal from the criminal judgment. Copeland argues that there was no "finding of guilt" until the judgment was entered.

Rule 33(c), N.D.R.Crim.P., provides that a motion for new trial on any ground other than newly discovered evidence or jury misconduct "shall be made within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period." Rule 33(c) is derived from Rule 26.04, Minn.R.Crim.P. (Explanatory Note, Rule 33, N.D.R.Crim.P.), which appears to have been drawn, in part, from Rule 33, F.R.Crim.P. ² Thus, we deem it appropriate to consider construction of Rule 33, F.R.Crim.P., as an aid to interpreting Rule 33(c), N.D.R.Crim.P.

"The time limitations of Rule 33 are jurisdictional. The court is without power to consider an untimely motion for a new trial. It cannot extend the time in which to move for a new trial except as specifically provided in Rule 33 itself." 3 C. Wright, Federal Practice and Procedure: Criminal 2d Sec. 558, pp. 360-361 (1982). See also United States v. Brown, 587 F.2d 187 (5th Cir.1979); United States v. Beran, 546 F.2d 1316 (8th Cir.1976). "If trial was to a jury, the time runs from the return of the verdict rather than the date of sentence. If trial was to the court, the time runs from the entry of the court's finding that defendant is guilty." 3 C. Wright, Federal Practice and Procedure: Criminal 2d Sec. 558, pp. 364-365 (1982). See also Pugh v. United States, 197 F.2d 509, 511 (9th Cir.1952), where the court said:

"We do not agree with the district court's opinion that a finding of guilt ... must be deemed made on the day of entry of judgment. If this were the law, in every case the 5 [now seven] days for such a motion for a new trial would run from the entry of the judgment and the beginning of the running of time from the making of the finding of guilt provided in Rule 33 would be an absurd superfluity."

In its memorandum opinion issued on August 25, 1988, the trial court said: "I find the defendant ... guilty of the crime of corruption of a minor." We conclude that that finding was a "finding of guilt" commencing the seven-day period within which Copeland was permitted to make a motion for a new trial on grounds other than newly discovered evidence or jury misconduct. Copeland's December 9, 1989, motion for new trial was, therefore, untimely, as was his November 7, 1989, request for an enlargement of the time within which to file a motion for new trial. Because that request was not made within 7 days after the trial court's finding of guilt, the trial court had no power to enlarge the time.

We have held, however, that a defendant may appeal from an amended judgment even though the appeal was not filed within 10 days of the entry of the original judgment. See State v. Chyle, 297 N.W.2d 409 (N.D.1980). Copeland filed a timely notice of appeal from the amended judgment. All of the issues raised in that appeal are, therefore, properly before us.

I.

While representing Copeland in a pending divorce, before any charges were brought against Copeland, Copeland's attorney ³ arranged to have Copeland meet with Paul White, a social worker employed by Cass County Social Services. Copeland disclosed his sexual relationship with the minor victim involved in this case to White, who reported the matter to the State's attorney. White also testified at trial. Copeland contends that White's testimony was admitted in violation of Rules 502 and 503, N.D.R.Ev.

Rule 502, N.D.R.Ev., provides in part:

"RULE 502. LAWYER-CLIENT PRIVILEGE

"(a) Definitions. As used in this rule:

* * * * * *

"(4) A 'representative of the lawyer' is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.

"(5) A communication is 'confidential' if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

"(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client."

The Explanatory Note elaborates:

"If the benefits this rule of privilege offers to the judicial system--that is, a client's frank and open disclosure of facts to his attorney--are to be realized, then a client need be assured that confidential communications made to those necessarily involved in the performance of legal services will not be disclosed. Subdivision (a)(4) achieves this by including, as privileged communications, those made to a lawyer's representative. As used in this rule, the term 'employed' is not limited to those employed for compensation."

See Annot., Applicability of Attorney-Client Privilege To Communications Made In Presence Of Or Solely To Or By Third Persons, 14 A.L.R. 4th 594 (1982). However, "the burden of showing that the communication is privileged rests on the one who seeks to have it excluded." 3 Jones on Evidence Sec. 21:9, p. 769 (1972). Rules of privilege are narrowly construed because they are by nature in derogation of the search for truth. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313 (N.D.1986); State v. Red Paint, 311 N.W.2d 182 (N.D.1981).

In denying Copeland's motion to suppress White's testimony, the trial court concluded that communications between Copeland and White "were not for the purpose of 'facilitating the rendition of professional legal services' but, instead, were for the purpose of attempting to correct Mr. Copeland's sexual problems." We agree. In a pretrial affidavit, ⁴ Copeland's attorney said that he "contacted Paul White of Cass County Social Services regarding the evaluation and treatment of Mr. Copeland in their incest program." The affidavit did not refer to any "purpose of facilitating the rendition of professional legal services" to Copeland. At trial, in objecting to testimony by White, Copeland's attorney argued:

"I'm going to raise the privilege again, Your Honor. I believe this is privileged information that was related to Mr. White by Mr. Copeland...