State v. Fischer

• Decision Date: 21 February 2008
• Docket Number: No. 20060140.,20060140.
• Citation: 744 N.W.2d 760,2008 ND 32
• Parties: STATE of North. Dakota, Plaintiff and Appellee v. Paul A. FISCHER, Defendant and Appellant.
• Court: North Dakota Supreme Court

744 N.W.2d 760

2008 ND 32

STATE of North. Dakota, Plaintiff and Appellee v. Paul A. FISCHER, Defendant and Appellant.

No. 20060140.

Supreme Court of North Dakota.

February 21, 2008.

Brian David Grosinger, Assistant State's Attorney, Mandan, N.D., for plaintiff and appellee.

Paul A. Fischer, Jamestown, N.D., pro se.

VANDE WALLE, Chief Justice.

[¶ 1] Paul A. Fischer appealed from a criminal judgment entered on a jury verdict finding him guilty of manufacturing a controlled substance, possessing a controlled substance with intent to deliver, and possessing methamphetamine-related drug paraphernalia. We conclude the district court did not err in denying Fischer's suppression motion. We further conclude Fischer failed to establish his court-appointed attorneys provided ineffective assistance of counsel, his due process rights were infringed by trial delay, and his jury was not impartial. We affirm.

I

[¶ 2] On November 30, 2004, Fischer was arrested after law enforcement officers discovered him manufacturing methamphetamine in a pole barn in rural Morton County. At the time, Fischer had been released on bond for an October 9, 2004, arrest which resulted in charges of manufacturing a controlled substance and possessing a controlled substance and drug paraphernalia. Fischer was again charged with three drug-related felonies and criminal trespassing. He was held on $50,000 cash bond and the same attorney who was appointed to represent him on the October 2004 charges was appointed to represent him on the November 2004 charges.

[¶ 3] Shortly after counsel was appointed, Fischer made motions to discharge his attorney and to allow Fischer to represent himself in the two criminal proceedings. He also moved to reduce his bail so he could access legal materials for his defense. Fischer's bond was reduced to $20,000 cash or surety bond, but he was unable to post bail. On January 7, 2005, the district court granted court-appointed counsel's motion to withdraw as Fischer's attorney. A second attorney was appointed to represent Fischer on January 12, 2005, and she requested discovery. Fischer's preliminary hearing was rescheduled for February 14, 2005, and the second attorney represented Fischer during that proceeding.

[¶ 4] On March 10, 2005, Fischer moved to have the second attorney discharged. The court granted the second attorney's motion to withdraw on March 14, 2005. On March 31, 2005, the court appointed a third attorney to represent Fischer, and that attorney requested discovery. In May 2005, the court set the trial date for July 21-22, 2005. Fischer's third attorney subsequently moved to suppress evidence and moved for approval of funds to take depositions. A deposition hearing was scheduled for July 14, 2005, and the hearing on the motion to suppress, originally scheduled for July 8, 2005, was rescheduled for September 2, 2005. Fischer's scheduled trial was also continued and rescheduled for November 3-4, 2005. On August 31, 2005, Fischer's third attorney requested that the suppression hearing be rescheduled because "Mr. Fischer does not want me to represent him and he says he is going to file an ineffective assistance of counsel claim. There is no line of communication. I will be filing a motion to withdraw," The district court denied the motion, and at the September 2, 2005, suppression hearing, the court allowed Fischer to represent himself, but required his third court-appointed attorney to provide assistance as standby counsel. After Fischer told the court he was "[a]bsolutely not" prepared to go forward with the hearing, the court rescheduled the suppression hearing for October 18, 2005.

[¶ 5] At the beginning of the suppression hearing, Fischer once again asked for a continuance, but the court denied the request. The third court-appointed attorney assisted Fischer during the hearing. The district court denied the suppression motion on October 20, 2005.

[¶ 6] On November 2, 2005, Fischer moved for a continuance of his November 3, 2005, jury trial on the charges stemming from the October 9, 2004, incident, so he could have more time to prepare. The court denied the motion and Fischer represented himself with the assistance of his third court-appointed attorney. The jury acquitted Fischer of those charges. The district court rescheduled Fischer's jury trial on the charges stemming from the November 30, 2004, incident for February 22, 2006. The Department of Corrections and Rehabilitation granted a variance to allow Fischer to be housed in the Morton County Correctional Center for more than one year.

[¶ 7] On November 21, 2005, Fischer moved for dismissal of all remaining charges against him "for the unreasonable delay in bringing defendant to trial." The district court denied Fischer's motion on December 6, 2005, concluding although it was "concerned with the length of his confinement awaiting trial," "the delay in the trial of this case has [not] been excessive." Fischer attempted to appeal the court's order, but this Court dismissed the appeal on February 2, 2006.

[¶ 8] Fischer represented himself with the assistance of his third court-appointed attorney at the February 22-23, 2006, jury trial. The jury returned a verdict of guilty on all charges except criminal trespass, which was dismissed before the trial began. Fischer was sentenced to 20 years in prison, with 11 years suspended for five years, on the manufacturing charge. He was sentenced concurrently to 20 years in prison, with 11 years suspended for five years, for possession with intent to deliver. He was sentenced concurrently to five years in prison for possession of drug paraphernalia. In State v. Fischer, 2007 ND 22, ¶ 1, 727 N.W.2d 750, a majority of this Court concluded the district court abused its discretion in denying Fischer's motion for an extension of time to file his notice of appeal.

II

[¶ 9] Fischer argues the district court erred in denying his motion to suppress.

[¶ 10] In State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578, we summarized the standard of review for a district court's decision on a motion to suppress evidence:

When reviewing a district court's ruling on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Woinarowicz, 2006 ND 179, ¶ 20, 720 N.W.2d 635 (citations omitted). Generally, a district court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the district court's findings, and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

[¶ 11] The record reflects that Fischer and his wife had been renting a home on a farmstead owned by the estate of Mabel Nelson. Randy Nelson served as the "acting landlord" of the premises. Fischer and his wife also were allowed access to a portion of a pole barn on the property. However, Fischer and his wife had been evicted from the property and were to have their belongings off of the premises by November 15, 2004. On the morning of November 30, 2004, Ricky Nelson, an heir of the estate, contacted a law enforcement officer and requested that he go to the farmstead and inspect a bucket he had found in the pole barn. Ricky Nelson told the officer he had tools in the barn and he and his family were allowed access to the building. Law enforcement officers went to the farmstead, went into the pole barn, and discovered Fischer in the process of manufacturing methamphetamine. The officers placed Fischer under arrest and gave him Miranda warnings. After the warnings were given, Fischer made incriminating statements.

[¶ 12] Fischer argues his Fourth Amendment rights were violated because the officers did not have a search warrant and because Ricky Nelson was not an actual owner of the property authorized to consent to the search. Even assuming Fischer had a reasonable expectation of privacy in property from which he had been evicted, see State v. Oien, 2006 ND 138, ¶ 13, 717 N.W.2d 593 (defendant had no reasonable expectation of privacy in his girlfriend's apartment after becoming aware landlord forbid him from being on Housing Authority property), consent is a clearly delineated exception to the warrant requirement. State v. Albaugh, 2007 ND 86, ¶ 21, 732 N.W.2d 712. "Law enforcement officials do not have to obtain consent from the owner of the property." State v. Zimmerman, 529 N.W.2d 171, 175 (N.D.1995). Rather, "[u]nder the Fourth Amendment, ... valid consent to search may be given by parties with actual or apparent common authority, when viewed from the officer's perspective." Id.

"[The] determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid."

Id. (quoting Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)).

[¶ 13] At the suppression hearing, Morton County Deputy Sheriff Rob Fonte-not testified:

Q Okay. But just again, for the record, you did not verify Ricky Nelson as a property owner, just simply by what he told you?

A I didn't personally verify it. Deputy Bitz spoke to some other members of the Nelson family that advised Deputy Bitz that Ricky Nelson had permission to allow us to go in and search.

[¶ 14] We conclude the officers could reasonably conclude Ricky Nelson had apparent authority to consent to the search, and...