State v. Denny

• Decision Date: 10 May 1984
• Docket Number: No. 963,963
• Citation: 350 N.W.2d 25
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dan Joe DENNY, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 25

350 N.W.2d 25

STATE of North Dakota, Plaintiff and Appellee, v. Dan Joe DENNY, Defendant and Appellant.

Crim. No. 963.

Supreme Court of North Dakota.

May 10, 1984.

Kent A. Reierson, State's Atty., Williston, for plaintiff and appellee.

Anseth & Zander, Williston, for defendant and appellant; argued by Janet Holter Zander, Williston.

SAND, Justice.

Dan Joe Denny, defendant, was found guilty by a jury of having delivered a controlled substance in violation of North Dakota Century Code Secs. 19-03.1-23(1)(b) and 19-03.1-05(4)(o ). The judge sentenced him to five years in the State Penitentiary. A criminal judgment was entered accordingly, from which the defendant appealed.

On 3 January 1983 Detective Kemmet introduced Special Agent Wiley to a confidential informant who told Wiley that the defendant Denny had marijuana for sale at his residence in the Red Barn Trailer Court in Williams County, North Dakota. A surveillance unit, consisting of Agent Oser, Detectives Kemmet, Wentz, Quickstad and Sanders, was formed, who were able to listen to the conversation between Wiley and the defendant by means of a listening device and transmitting unit that Wiley had on his person for his protection. At the Red Barn Trailer Court the confidential informant advised Wiley that the cost per ounce was $65.00. They then drove to Denny's trailer home. The confidential informant entered the trailer and in a short time came out with the defendant. The confidential informant handed the marijuana to Agent Wiley and introduced "Dan" to Wiley and stood by Wiley's car. Wiley then began negotiating on the price of the marijuana, for which Denny wanted $70. Wiley paid Denny the $70, after which the defendant said that Wiley could stop back for further deals with him (Denny). After the delivery was completed, Wiley looked at a police photograph to assure himself that the individual with whom he was dealing was Dan Denny. (A file, including pictures of persons investigated, was being maintained.)

On 22 August 1983 Dan Joe Denny was arrested for the offense of dealing in a controlled substance.

The defendant contended (1) his right to due process was violated by a prejudicial delay in not commencing prosecution until nearly nine months after the alleged occurrence; and by the court's failure to suppress in-court identification testimony which was tainted by an impermissibly suggestive identification procedure of having displayed a single police photo of the defendant to the witness before trial; and (2) his right to a fair trial was violated by the court's refusal to require the State to disclose and identify the confidential informant where the defendant claimed that the agent's in-court identification was mistaken.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Sec. 12 of the North Dakota Constitution. ¹ That right, however, does not attach until a defendant "in some way becomes an 'accused'." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (1971). Specifically, "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge" that activates the speedy trial provision of the Sixth Amendment. Id. at 320. 92 S.Ct. at 463, 30 L.Ed.2d at 479.

The Marion court noted that possible prejudice is inherent in any delay. Possible prejudice, however, is not itself sufficient to establish a due process claim. Relevant statutes of limitations guard against possible, as distinguished from actual, prejudice. Marion, supra, 404 U.S. at 322, 92 S.Ct. at 464, 30 L.Ed.2d at 479. Case law suggests that the amount of pre-accusation delay does not establish prejudice per se. See id.

Actual prejudice may "[make] a due process claim concrete and ripe for adjudication," but that does not "[make] the claim automatically valid." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 759 (1977). Thus, proof of prejudice is generally a necessary but not sufficient element of a due process claim. Id. at 790, 97 S.Ct. at 2048, 52 L.Ed.2d at 759. A due process inquiry considers "the reasons for the delay as well as the prejudice to the accused." Id.

In the present case the delay between the commission of the offense and Denny's arrest was about eight months. Under Marion, Denny became an accused when he was arrested on 22 August 1983. Further, the time factor did not exceed the applicable statute of limitations. Denny was convicted of a class B felony. North Dakota Century Code Sec. 29-04-02 provides that:

"An information for any felony other than murder must be filed, or an indictment must be found, within three years after its commission...."

In Marion the Court noted the role of statutes of limitation, saying:

"There is ... no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function." [Emphasis added.] Marion, supra, 404 U.S. at 323, 92 S.Ct. at 465, 30 L.Ed.2d at 480.

The Marion Court further noted, however, "that the statute of limitations does not fully define [a defendant's] right with respect to the events occurring prior to indictment." Id. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 480. Due process will not condone an intentional pre-indictment delay for the purpose of obtaining an advantage over the accused if the delay will cause prejudice to defendant's right to a fair trial. Id.

In the present case, as in Lovasco, the State claimed that the delay was caused by the need to continue an investigation in the hope that other persons would be arrested. During the period between Denny's involvement and his arrest, undercover agents from the drug enforcement unit, the Williston police department, and the Williams County sheriff's office, were conducting what the State termed an "undercover sting operation." The investigation reportedly involved controlled substances and stolen goods. The State argued that had Denny been arrested sooner the undercover agent's usefulness would have been destroyed.

As the court noted in Lovasco, investigative delay is unlike delay by the State solely to gain tactical advantage over the accused because investigative delay "is not so one-sided." 431 U.S. at 795, 97 S.Ct. at 2051, 52 L.Ed.2d at 762. The court explained:

"Rather than deviating from elementary standards of 'fair play and decency,' a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of 'orderly expedition' to that of 'mere speed.' [Citations omitted.] This the Due Process Clause does not require .... to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." Id. at 795-96, 97 S.Ct. at 2051-52, 52 L.Ed.2d at 762-63.

Even the legitimate reason of continuing investigation may be "stretched to the breaking point." United States v. Jackson, 504 F.2d 337, 340 (8 Cir.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). The record, however, supports the State's contention that the continuing investigation was legitimate. Special Agent Wiley testified that thirty-eight more people were arrested. Furthermore, we are cognizant of the important role that informants and undercover agents play in the apprehension of persons involved in illegal drug transactions. Under the circumstances, we cannot conclude that the investigation was "stretched to a breaking point."

Finally, we are not convinced that the defendant suffered any actual prejudice constituting a due process violation. Denny asserted that, because of the delay, he had no way of knowing where he was or who he was with on 3 January 1983. Denny himself, however, testified that he suffered from occasional blackouts caused by excessive drinking. The record further reflects that Denny recalled where he lived, who he was living with, and where he was working on 3 January. Further, the trial judge, in addition to granting several of Denny's discovery motions, granted his motion for preservation of an alibi defense pending an opportunity for him to fully investigate the facts.

Based upon the foregoing analysis, we conclude that the trial court did not err in denying Denny's motion for dismissal based upon pre-accusational delay.

Denny's second contention was that the trial court erred in denying his motion to compel disclosure of the identity of the confidential informant.

The State may generally refuse to disclose the identity of a person who has furnished information relating to a possible violation of the law. Rule 509, NDREv; see also NDCC Sec. 31-01-06(4) (public officer cannot be examined as to communications made to him in official confidence when public interests would suffer by disclosure). The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. State v. Mertens, 268 N.W.2d 446, 451 (N.D.1978); Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644 (1957); see generally Annot., 76 A.L.R.2d 262.

Rule 509, however, provides a means for disclosure of the identity of an informer if it appears that an informer may be able to "give testimony relevant to any issue in a criminal case." A determination of whether or not disclosure is justified requires a balancing of the interests of the public and the defendant. Mertens, supra, 268 N.W.2d at 451; Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 629, 1 L.Ed.2d at 646. A court must consider the totality of the particular circumstances of each case, particularly the crime...