State v. Dilger, Cr. N

• Decision Date: 18 August 1983
• Docket Number: Cr. N
• Citation: 338 N.W.2d 87
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Adam John DILGER, Defendant and Appellant. o. 902.
• Court: North Dakota Supreme Court

Page 87

338 N.W.2d 87

STATE of North Dakota, Plaintiff and Appellee, v.Adam John DILGER, Defendant and Appellant.

Cr. No. 902.

Supreme Court of North Dakota.

Aug. 18, 1983.

Robert G. Hoy, States Atty., Fargo, for plaintiff and appellee.

Kraemer, Beauchene & Associates, Fargo, for defendant and appellant; argued by Frederick D. Kraemer, Fargo.

ERICKSTAD, Chief Justice.

This is an appeal by the defendant, Adam John Dilger[Dilger] from a judgment entered upon a jury verdict finding him guilty of the offense of murder and from an order denying his motion for a new trial.We affirm.

At approximately 5:00 p.m., November 18, 1981, Dilger was drinking at the bar of the Catholic War Veterans Club in Fargo, North Dakota.Approximately two or three hours later, Katherine Hall, with whom Dilger shared an apartment in a house owned by Hall next door to the Club, entered the bar.After an argument occurred between Dilger and Hall, Hall left and returned a few minutes later with clothing and other items belonging to Dilger.After making two trips carrying in items belonging to Dilger, Hall left the bar at approximately 9:00 p.m. Persons in the bar began teasing Dilger about having to sleep in the bar's kitchen.Dilger then left the bar.When he returned about fifteen to twenty minutes later, Dilger was in a very agitated state and declared that he had killed Hall.When he started to leave and said he was going to kill himself, several persons restrained him until the police arrived shortly after 9:30 p.m. and took Dilger into custody.

At approximately 9:22 p.m., the Cass County sheriff's office received a telephone call in which Katherine Hall said Dilger was going to shoot her, followed by a gunshot and a scream.Fargo police officers, dispatched to the scene, found the body of Katherine Hall with the telephone receiver lying near the body.

In this appeal, Dilger has raised the following issues:

I.Did the court err in not suppressing statements made by Defendant?

II.Was the Defendant denied his right to a speedy trial as guaranteed by the United States Constitution and the laws and Constitution of the State of North Dakota?

III.Did the court err in refusing to instruct as to reasonable doubt as to murder or manslaughter?

IV.Was it error to refuse to give Defendant's requested instruction number 6?

V.Did the court err in refusing to grant Defendant's motion for new trial?

We will discuss the issues in the order presented.

I.Suppression of Statements

On February 16, 1982, Dilger moved to suppress all statements made by him "to law enforcement officers prior to, during, and following his arrest," on the grounds that Dilger "was not adequately informed of his Miranda ¹ rights and furthermore, even if informed of his Miranda rights, the statements taken were not voluntary."The trial court, finding that Dilger's statements were adequately protected by the officers' conduct via the Miranda warnings, that the statements were voluntary, and that Dilger waived his Miranda rights, denied the motion.

In reviewing an order denying a motion to suppressa defendant's statements, we said, in State v. Thompson, 256 N.W.2d 706, 710(N.D.1977), quotingState v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 677(1947):

" 'As to whether a confession is voluntarily or involuntarily made is a matter to be determined in the first instance by the court.And where the evidence is conflicting, such determination by the court will not be disturbed on appeal unless manifestly against the weight of the evidence.' "

We have also said:

"This court has previously considered whether or not a defendant's statements or confessions were made in violation of the Fifth Amendment to the United States Constitution.In State v. Klevgaard, 306 N.W.2d 185, 195(N.D.1981), we paraphrased the United States Supreme Court's decision in Miranda v. Arizona as saying that 'a defendant could waive these rights [the Miranda warnings], but that any waiver must be made "voluntarily, knowingly and intelligently." 'We consider the totality of the circumstances to determine whether or not a waiver is made voluntarily, knowingly, and intelligently.Klevgaard, 306 N.W.2d at 195.The standard of review which we employ when considering the totality of the circumstances is 'whether or not a determination of voluntariness is manifestly against the weight of the evidence ...'State v. Roquette, 290 N.W.2d 260, 264(N.D.1980)."State v. Carlson, 318 N.W.2d 308, 311(N.D.1982).

The evidence presented to the trial court on the motion was in the form of 31 depositions and six exhibits entered through stipulation.

From parts of those depositions one could conclude that when Dilger returned to the Catholic War Veterans Club he was in a very agitated state.Those parts include the statements: "I shot Kay!I think I killed her!", "I shot Kay!I shot Kay!I shot Kay!", "I killed her.She is dead.", "I want to kill myself.", and, "I killed Kay.I killed Kay.I should have killed myself.I'm going to kill myself.", before he was taken into custody.Those parts also indicate he had to be restrained until the police arrived, and may not have understood the Miranda warning when it was first administered to him at the time of his arrest.

There is also testimony from which one could conclude that Dilger's condition improved as the evening wore on; that when Detective Lindblad arrived at the Club, Dilger knew who Lindblad (whom Dilger had known for 15 years) was and why he was there; that at the police station Dilger knew where he was, that he was under arrest, who Lindblad was, requested to telephone his brother and, when he was unavailable, talked to his brother's wife by telephone for about ten minutes, and asked that his dog be taken care of; that Dilger was advised of his Miranda rights several times at the police station; that Detective Lindblad, who had been employed by the Fargo Police Department for 17 years and had been a detective for nine years and who had known Dilger for 15 years, and other officers at the station believed that Dilger understood his Miranda rights; and that Dilger made statements in addition to those he had previously made at the Club.

Considering the totality of the circumstances surrounding Dilger's statements, we conclude that the trial court's determination of voluntariness and its order denying the motion to suppress Dilger's statements were not manifestly against the weight of the evidence.

Some of the statements sought to be suppressed were made before or during the process in which Dilger was arrested.Miranda proscribed the use of statements made in custodial interrogation without the use of adequate procedural safeguards to secure the privilege against self-incrimination.The court specifically stated that, "Volunteered statements of any kind are not barred by the Fifth Amendment."Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

As to the statements made by Dilger after he was arrested, it is important to note that he was read his Miranda warnings at the time of his arrest and several times thereafter; when asked if he understood his rights, Dilger nodded his head in the affirmative; he never indicated that he did not wish to be interrogated; he never indicated that he wished to consult an attorney; there was no lengthy interrogation or incommunicado incarceration; and there was no evidence that Dilger was threatened, tricked, or cajoled into a waiver.Further, the statements made by Dilger after he was arrested and read his Miranda warnings were merely cumulative of those made prior to and during his arrest.

II.Speedy Trial

Dilger contends that a 10-month delay between arraignment and trial deprived him of the speedy trial guaranteed by the United States and North Dakota Constitutions.

A look at the chronology of events will be helpful in determining this issue.Katherine Hall was killed and Dilger arrested on November 18, 1981.On November 19, a complaint charging Dilger with murder was issued.On November 20, the county court granted Dilger's motion for a psychiatric evaluation at the State Hospital.On January 18, 1982, Dilger was bound over to district court, he filed a demand for speedy trial, and trial was set for March 1.On February 16, Dilger filed six suppression motions and a motion for a 30-day continuance.On February 17, the trial was rescheduled to commence April 5.On March 30, Dilger filed a motion for a continuance"for a period of time in order to enable the defendant to receive a written report of Dr. Sharbo and to prepare for the cross examination of Dr. Sharbo."On April 2, an order suppressing photographs was entered, the State filed a notice of appeal of the suppression order, and Dilger withdrew his pending motion for continuance.This Court, in State v. Dilger, 322 N.W.2d 461(N.D.1982), dismissed the State's appeal on July 30, 1982.Jury selection began on September 13.Testimony was first offered on September 22.The jury returned a verdict of guilty on October 8, 1982.

Relying on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972), we said in syllabus paragraph 1, State v. Erickson, 241 N.W.2d 854(N.D.1976):

"There are four factors to be assessed in determining whether a defendant has been deprived of his right to a speedy trial.These are: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

We do not deem the period between November 19, 1981, and the beginning of the trial to be presumptively prejudicial in view of the nature of the case, the types of evidence necessary, and the amount and types of discovery and preparation necessary for trial.Nevertheless, we will assess the four factors outlined in State v. Erickson, supra, andBarker v. Wingo, supra.

The period between November 19, 1981, and April 2, 1982, when the State filed its notice of appeal from the suppression order,...