State v. Flohr, Cr. N

• Decision Date: 19 December 1980
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James P. FLOHR, Sr., Defendant and Appellant. o. 732.
• Court: North Dakota Supreme Court

Page 367

301 N.W.2d 367

STATE of North Dakota, Plaintiff and Appellee, v. James P. FLOHR, Sr., Defendant and Appellant.

Cr. No. 732.

Supreme Court of North Dakota.

Dec. 19, 1980.

Rehearing Denied Jan. 8, 1981.

James M. Vukelic, State's Atty., Mott, for plaintiff and appellee.

Greenwood, Greenwood & Greenwood, Dickinson, for defendant and appellant; argued by Diane Melbye, Dickinson.

PEDERSON, Justice.

James P. Flohr, Sr., was convicted for delivery of an alcoholic beverage to a minor, § 5-01-09, NDCC. We reverse and remand for retrial.

The case was tried to a six-person jury in the Stark County Court With Increased Jurisdiction. Flohr now seeks a new trial for the following reasons:

(1) That amendment of Rule 12.1 of the North Dakota Rules of Criminal Procedure was in this case ex post facto in violation of Article I, Section 10, of the Federal Constitution;

(2) That he was denied his due process right to present defense evidence; and

(3) That the court was "manifestly unjust" in its refusal to allow, for the record, an offer of proof regarding evidence sought to be introduced at trial.

I.

On October 13, 1978, Melvin Raab, 20 years old at the time, entered Cap's Liquor Store in Dickinson, North Dakota, and purchased two pints of vodka. At trial in June 1980, Raab testified that the person from whom he purchased the vodka was the defendant, James Flohr. When the State rested, Flohr attempted to introduce evidence showing he was not at Cap's Liquor Store on the evening of October 13, and that he was in Billings County with his brother. The State objected that Rule 12.1, NDRCrimP, required the defendant to notify the prosecution of intent to establish an alibi defense, and that, because Flohr had not given notice, he was precluded from offering alibi evidence beyond his own testimony. The court sustained the objection.

Flohr believes that the continual postponement of proceedings over a year-and-a-half between the purchase by Raab and the trial significantly affects the equities of this case. Until January 1, 1980, a criminal defendant in North Dakota had no duty to inform the prosecuting attorney of a possible alibi defense unless the latter served a written demand. ¹ However, Rule 12.1(a) now requires a defendant to notify the prosecution of an alibi defense whether or not a request has been made. ² Thus, when the offense allegedly was committed and for over a year following, Flohr had no obligation to give notice of an alibi, but by the time the matter came to trial the rule had changed. Apparently presuming the old rule would govern at trial, Flohr did not notify the prosecution of his defense and was subsequently prevented from offering it.

The long delay resulted from difficulty in finding an attorney to prosecute the case. The court set trial originally for April 12, 1979, and a pretrial conference was scheduled and conducted on February 28, 1979. However, about two weeks before the trial was to begin, counsel for Flohr moved the court to disqualify the Stark County state's attorney because of a possible conflict of interest. The court granted the motion on April 5, 1979, and on April 25, 1979, appointed another attorney, Thomas Tuntland, to be "special prosecutor with the powers of the state's attorney" for the purpose of continuing the action against Flohr. On July 9, 1979, Tuntland, of his own motion, withdrew as prosecuting attorney before trial was held. Though both of these prosecutors were active in the case, neither requested notice of alibi pursuant to the prior rule. The current prosecutor, James Vukelic, was not appointed until March 10, 1980, by which time the amended rule was in effect.

II.

Flohr contends the revision of Rule 12.1 violates the constitutional prohibition of ex post facto laws. In his brief, Flohr cites a well-known and often-quoted passage defining an ex post facto law:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798).

We accept this formal statement, but reject Flohr's conclusion that the amendment of Rule 12.1 falls within any one of its categories. The new form of Rule 12.1 does not "criminalize" any acts not criminal before January 1, 1980, nor does it increase the penalty for any criminal act. It effects no revision in the rules of evidence which lessens the burden of proof on the prosecution. Thus we are presented with none of the standard indicia of an ex post facto law.

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Supreme Court declared that "even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." The ban against laws ex post facto "was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." (Emphasis added.) Dobbert, supra, 97 S.Ct. at 2298, quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925).

Any rule or procedure can have substantive consequences. Thus determining whether a procedural change violates the ex post facto clause is necessarily an ad hoc process of line drawing. Beazell, supra, 46 S.Ct. at 69. Certainly, Rule 12.1 is procedural. It is found in a compilation entitled "North Dakota Rules of Criminal Procedure." Its purpose is to provide an orderly means by which evidence of alibi is adduced at trial. Further, we do not believe its modification represents an arbitrary and oppressive encroachment upon a defendant's substantial personal rights. The exclusionary sanction is not new it was not created by the amended rule. The change in the rule's provision for penalty benefits defendant by ending the mandatory exclusion of alibi testimony. That the defendant must now initiate the discovery process is no basis for an ex post facto argument. Such a change contrasts with those appearing in cases like Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), where the prejudicial effects of the new laws were both new and beyond the control of the defendants. Here, Flohr's failure to give notice, not the independent working of the rule, was the direct cause of the evidence being barred. We conclude that the amendment of Rule 12.1 is procedural in the sense that it will not ground a challenge based on the ex post facto clause.

III.

The rule provides discovery rights to the defendant as well as the prosecution. Notice by the defendant actuates a similar duty of the prosecution to provide names of rebuttal witnesses. And the threat of exclusion of alibi evidence as a penalty for noncompliance is balanced against the inadmissibility of an alibi notice if the defendant later decides not to use the defense. The United States Supreme Court in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), held that a notice-of-alibi rule comports with due process if it grants the defendant reciprocal rights. Rule 12.1 puts the defendant at no disadvantage which the prosecution escapes, and cannot be overturned on these due process grounds.

Flohr challenges the exclusionary sanction of subsection (c) of the Rule as a violation of the Sixth Amendment compulsory process clause. Compulsory process "in plain terms the right to present a defense" is an element of due process guaranteed a state criminal defendant. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Whether the power given by the rule to exclude evidence of alibi violates the defendant's right to make his case is an issue which was expressly left unresolved in Wardius, supra, 93 S.Ct. at 2211, note 4, and in its predecessor, Williams v. Florida, 399 U.S. 78, 83, 90 S.Ct. 1893, 1897, note 14, 26 L.Ed.2d 446 (1970). Thus we lack authoritative precedent to guide our review.

Case law we have found on the subject would support a holding that the sanction is constitutional. E. g., Hartman v. State, 376 N.E.2d 100 (Ind.1978); People v. Jackson, 71 Mich.App. 395, 249 N.W.2d 132 (1976); State v. Smith, 88 N.M. 541, 543 P.2d 834 (1975); Bush v. State, 203 Kan. 494, 454 P.2d 429 (1969); State v. Dodd, 101 Ariz. 234, 418 P.2d 571 (1966); Rider v. Crouse, 357 F.2d 317 (10th Cir. 1966); see also, United States v. Smith, 524 F.2d 1288 (D.C.Cir. 1975). In fact, we know of no precedent which has held unconstitutional the exclusion of alibi testimony for noncompliance with a notice rule.

A defendant's right to present evidence on his own behalf, while fundamental, is not unaffected by other considerations. It is not a right to confound otherwise reasonable rules of procedure aimed at ascertaining the truth and accomplishing justice. United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). Recognizing that there are "legitimate demands of the adversarial system," Nobles, supra, which can properly influence the expression of the Sixth Amendment right, we must determine whether the exclusion of alibi evidence is justifiable.

We note initially that the Supreme Court has declared its approval of increased pretrial discovery in criminal cases, specifically in the form of notice of alibi rules. The court termed "the growth of such discovery devices ... a...