State v. Eldred

Decision Date03 June 1997
Docket Number960316,Nos. 960315,s. 960315
Citation564 N.W.2d 283
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Mike ELDRED, Defendant and Appellant. Criminal, and 960317.
CourtNorth Dakota Supreme Court

Marvin K. Madsen, State's Attorney, Mohall, for plaintiff and appellee. Submitted on brief.

Scott J. McDonald, McDonald Law Offices, Bowman, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Mike Eldred appealed from a jury verdict finding him guilty of carrying a loaded weapon in a vehicle, possession of a firearm by a convicted felon, and possession of drug paraphernalia. Eldred challenges the conviction on several grounds. We affirm.

¶2 On October 17, 1994, outside a Mohall, North Dakota bar, Renville County Sheriff Robert Thomas served Eldred with a search warrant for his vehicle. Eldred contends he was intoxicated at the time of service. Sheriff Thomas searched the vehicle and discovered a shotgun and drug pipe. As the vehicle was being searched, Eldred remained outside the bar, even though Sheriff Thomas had not instructed him to do so. Eldred was not handcuffed, read his Miranda rights, or arrested during the time of the search. Later that day, Eldred, without being asked, went to the Sheriff's office and volunteered information regarding the items discovered in the search. Eldred was charged with possession of drug paraphernalia, carrying a loaded firearm in a motor vehicle, and, unlawful possession of a firearm, because Eldred had a previous felony conviction. 1

¶3 Eldred, through his attorney, waived his right to a preliminary hearing. 2 Prior to trial, Eldred moved to suppress all evidence of his conversation with Sheriff Thomas during the search and Eldred's subsequent visit to the Sheriff's office prior to his arrest. Eldred also moved to dismiss the unlawful possession of a firearm charge. The trial court denied these motions and Eldred challenges these rulings on appeal and raises four other issues.

Preliminary Hearing

¶4 Eldred contends the trial court erred in denying his motion for a preliminary hearing. Under Rule 5(c)(1), N.D.R.Crim.P., a defendant charged with a felony has a right to a preliminary hearing and, if assisted by counsel, can waive this right. 3 We will not reverse a trial court's decision to grant a counsel-assisted waiver absent evidence on the record which demonstrates there was no valid reason to waive the preliminary hearing. State v. Kunkel, 366 N.W.2d 799, 801 (N.D.1985). It is not the role of this Court to determine trial strategy. Id. at 801 (citing State v. Motsko, 261 N.W.2d 860, 864 (N.D.1977)).

¶5 Here, Eldred argues the trial court improperly denied his motion to withdraw his waiver of his right to a preliminary hearing. However, there is nothing on the record which demonstrates Eldred was not aware of his right to a preliminary hearing. At Eldred's initial appearance, the trial court made clear the right to the hearing and the right to have counsel present at such a hearing. Eldred stated he understood this right and told the court he would seek counsel to represent him. Eldred, through his counsel, then waived his right.

¶6 Eldred cites to Kunkel as authority that the right to a preliminary hearing should not be "hastily disregarded as a mere formality ..." because it provides the defendant an opportunity to more fully understand the charges against him or her. 366 N.W.2d at 801. Eldred is correct in this assertion, but Kunkel does not hold a party cannot validly waive the right to a preliminary hearing. Our holding in Kunkel only states counsel does not need to "articulate on the record" why counsel gave such advice. Id. Moreover, Kunkel was argued on the ground of ineffective assistance of counsel and is distinguishable because Eldred does not make such a contention. Eldred validly waived his right to a preliminary hearing, and his argument the trial court abused its discretion in not permitting him to withdraw that waiver is not supported by any authority. We conclude the trial court did not abuse its discretion in denying Eldred's motion to withdraw his waiver.

Motion to Suppress

¶7 Eldred argues the trial court erred when it denied his motion to suppress the statements he made to Sheriff Thomas during the vehicle search and at the Sheriff's office. Eldred maintains he was in a custodial situation and had not been given his Miranda warning, and therefore, any comments made during this time are inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶8 We will affirm a trial court's motion to suppress evidence, "unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless we conclude the decision goes against the manifest weight of the evidence." State v. Martin, 543 N.W.2d 224, 226 (N.D.1996) (quoting State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995)).

¶9 Although we generally defer to a trial court's finding of facts on interrogations, the ultimate question of "whether a suspect is 'in custody,' and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review." Thompson v. Keohane, --- U.S. ----, ----, 116 S.Ct. 457, 460, 133 L.Ed.2d 383 (1995). Thus, we fully review whether a peace officer's questioning was investigatory or custodial in nature. Martin, 543 N.W.2d at 226.

¶10 When a person is in custody and being interrogated by law enforcement, the individual must be apprised, or warned, of his or her rights. Id. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; State v. Pitman, 427 N.W.2d 337, 340 (N.D.1988). When analyzing whether an individual was in custody, all the circumstances surrounding the interrogation must be considered, but "the ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)); see also State v. Connery, 441 N.W.2d 651, 654 (N.D.1989). As the Supreme Court explained in Berkemer v. McCarty, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984).

¶11 Eldred contends he was in a custodial situation when Sheriff Thomas escorted him out of the bar to serve the search warrant. Eldred maintains, despite the fact he was not told he had to stay, the totality of the circumstances give rise to a custodial interrogation, requiring a Miranda warning.

¶12 On this record, it does not appear Eldred was ever in custody, let alone involved in an interrogation. Eldred walked out of the bar with Thomas and voluntarily stayed outside while Thomas searched his vehicle. Eldred was never handcuffed nor were their any restraints placed upon his freedom. From this, Eldred could not have reasonably understood this to be a custodial situation for the purposes of interrogation.

¶13 Eldred further argues his intoxication led to a involuntary waiver of his constitutional right against self-incrimination. For a waiver of a constitutional right to be valid, the waiver must be given voluntarily. State v. Olson, 544 N.W.2d 144, 146 (N.D.1996). Eldred is not claiming Sheriff Thomas threatened or coerced him to make the statements or that he was under duress when he talked to the Sheriff. Eldred contends but for his intoxication, he would have never made a statement to the Sheriff. Eldred argues he was so intoxicated he did not know what he was doing, and thus, the statements were involuntary.

¶14 This argument, although creative, is meritless. The evidence shows Eldred walked with Sheriff Thomas out of the bar, did not need any assistance to stand, and communicated with the Sheriff and Deputies with no evidence of total intoxication. There is nothing on this record to show Eldred was so intoxicated he did not know what he was doing. Moreover, it is not the State's burden, upon receiving statements or confessions, to prove the speaker was lucid enough to understand what he or she was saying. To say peace officers may not rely on statements and confessions given voluntarily would severely hamper their ability to investigate criminal activity. The evidence does not show Eldred was too intoxicated to understand or comprehend his actions. He made the statements and confessions to the Sheriff outside of a custodial setting, and these statements were voluntarily made. The trial court did not err when it denied Eldred's motion to suppress.

Motion to Dismiss

¶15 Eldred maintains the trial court erred when it denied his motion to dismiss the unlawful possession of a firearm charge. Eldred makes two contentions: 1) the statute requires the previous felony conviction be one involving the use and possession of a firearm, and; 2) the statute is unconstitutionally vague and ambiguous.

¶16 North Dakota Century Code Section 62.1-02-01, "Who not to possess firearms" states, in relevant part:

"1. A person who has been convicted anywhere for a felony involving violence or intimidation, as defined in chapters 12.1-16 through 12.1-25, is prohibited from owning a firearm or having one in possession or under control from the date of conviction and continuing for a period of ten years after the date of conviction or release from incarceration or probation, whichever is the latter.

2. A person who has been convicted of any felony not provided for in subsection 1 or has been convicted of a class A misdemeanor involving violence or intimidation and that crime was committed while using or possessing a firearm...

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