State v. Fontaine, Cr. N

• Decision Date: 20 February 1986
• Docket Number: Cr. N
• Citation: 382 N.W.2d 374
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Elwin John FONTAINE, Defendant and Appellant. o. 1121.
• Court: North Dakota Supreme Court

Page 374

382 N.W.2d 374

STATE of North Dakota, Plaintiff and Appellee, v. Elwin John FONTAINE, Defendant and Appellant.

Cr. No. 1121.

Supreme Court of North Dakota.

Feb. 20, 1986.

Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendant and appellant; argued by Thomas E. Merrick.

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

The defendant Elwin John Fontaine appeals from a district court conviction of the crime of gross sexual imposition, finding him to be a dangerous special offender, and ordering him to be imprisoned in the State Penitentiary for a period of 30 years. We affirm.

At approximately 7:20 a.m., on the morning of Saturday, November 24, 1984, Dynae Gorman was suddenly awakened when the bed covers were thrown off her. Immediately after being awakened, Dynae observed a man with his pants down attempting to climb on top of her. The man grabbed her wrist with one hand and held it down and covered her mouth with the other hand. He then said, "Don't holler or scream; I have a gun and I will kill you." After attempting to have intercourse with Dynae for approximately 15 to 20 minutes, the man got up and left the bedroom and house.

After the man left, Dynae locked the front door and called her husband. Dynae's husband arrived shortly and the police were called. Dynae gave a description of the intruder to the police officers when they arrived at her home. Later in the day Dynae again described the intruder and the clothes he was wearing from which a composite drawing was made. This composite was made available to police officers and was also published in the Jamestown newspaper.

Fontaine was arrested as a suspect in the crime on Monday, November 26, 1984. A criminal complaint was filed in the County Court of Stutsman County, November 30, 1984, charging Fontaine with the crime of gross sexual imposition in violation of Section 12.1-20-03(2)(b), N.D.C.C. Fontaine was declared by the court to be indigent and counsel was appointed for him. After Fontaine's motion for change of venue was granted, the matter was transferred to Richland County for a trial commencing on May 7, 1985. Following a trial by jury, Fontaine was convicted of gross sexual imposition, a class A felony.

After the conviction, the State alleged that Fontaine was a dangerous special offender under Section 12.1-32-09, N.D.C.C., and urged that he should be sentenced accordingly. A hearing was held on June 24, 1985, at which time the court received evidence from the State in support of its position that Fontaine was a dangerous special offender. After reviewing the evidence the court found Fontaine to be a dangerous special offender. The court sentenced Fontaine to 30 years in the State Penitentiary.

Three issues have been raised on appeal:

1) Whether or not Fontaine was indigent within the meaning of Rule 44, N.D.R.Crim.P., when he did not have sufficient income and resources to secure his release on bond.

2) Whether or not the trial court abused its discretion by not permitting Fontaine's expert witness to answer a hypothetical question based on facts and evidence about the validity of the eyewitness's identification.

3) Whether or not Fontaine's State and Federal Constitutional rights to counsel were violated when prior convictions were considered in sentencing where the record did not indicate that Fontaine had or waived counsel.

I

Article I, Section 12, of the North Dakota Constitution guarantees that "[i]n criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person and with counsel." This basic right is also guaranteed by the Sixth Amendment of the United States Constitution. Article I, Section 11, of the North Dakota Constitution provides "[a]ll persons shall be bailable by sufficient sureties.... Excessive bail shall not be required, nor excessive fines imposed...." Rule 44 of the North Dakota Rules of Criminal Procedure provides that "[a]bsent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all felony cases."

The same day the criminal complaint was filed the court determined Fontaine to be indigent and appointed counsel to represent him in all matters pertaining to this action. On February 27, 1985, approximately three months after the court had appointed counsel for Fontaine, the State made a motion to review the indigency status of Fontaine. After reviewing the evidence which indicated that Fontaine had recently become entitled to social security benefits in the sum of $7,334.20, the court revoked his indigency status.

Fontaine is not asserting that he was denied his right to counsel at any stage of the proceedings. His objection relates to the court's order revoking his indigency status. Fontaine's argument seems to focus on the fact that bail was set by the court at $10,000 cash and his financial resources were insufficient to cover this expense and secure his release from jail.

When determining eligibility for defense services pursuant to Section 27-20-26, N.D.C.C., the trial court should give consideration to the defendant's (1) income resources, (2) non-income resources, (3) expenses and liabilities, and (4) estimated costs of defense services. Financial Guidelines for Eligibility for Defense Services for Indigent Defendants Pursuant to Section 27-20-26, NDCC, North Dakota Legal Counsel for Indigents Commission. When determining whether or not a defendant is indigent within the meaning of Rule 44, N.D.R.Crim.P., "consideration should be given to (a) the cost of providing the person and his dependents with the necessities of life, and (b) the cost of a defendant's bail bond if financial conditions are imposed." State v. Jensen, 241 N.W.2d 557, 562 (N.D.1976).

The cost of bail is only one of the considerations in determining the indigency of a defendant. An inability to provide bail does not automatically classify a defendant as indigent.

The financial guidelines established by the North Dakota Legal Counsel for Indigents Commission suggests that a single person whose annual gross income is below $6,225 should be eligible for public paid defense services. While these are only guidelines and are not mandatory, it should be noted that Fontaine's income was above the level suggested by the North Dakota Legal Counsel for Indigents Commission.

We also find it significant that bail was fixed at $10,000 on November 30, 1984, a time when Fontaine was represented by counsel. It was not until March 18, 1985, more than three and a half months later, that Fontaine's indigency status was revoked.

Fontaine alleges on appeal that, as a result of his indigency status being revoked, he was without an attorney for a period of two weeks. Assuming this assertion to be true, Fontaine has failed to show how he was in any way prejudiced by this action. The record indicates that the revocation of Fontaine's indigency status did not put any undue burden upon Fontaine or disrupt the flow of court proceedings. We conclude, therefore, that Fontaine was not prejudiced by the court's order revoking his indigency status. ¹

II

At the trial Fontaine called as a witness Dr. Ruth Maki, an Associate Professor of Psychology at North Dakota State University. Dr. Maki's field of specialty is in human memory. The State made a motion to disallow any testimony from Dr. Maki concerning eyewitness identification. The court denied this motion and allowed the witness to testify. The State then asked the court to not allow the witness to answer a hypothetical question based on the specific facts and testimony of that case. The specific question which counsel for Fontaine intended to ask Dr. Maki was:

"[T]he hypothetical situation is one in which a man has come into the bedroom of a woman, and for approximately 15 to 20 minutes was on top of that woman, attempting to rape her, the woman said that for almost that entire time she was looking up into the face of her attacker from a distance of a few inches; the lighting, according to the witness, was sufficient, although it was early in the morning before sunrise; the next time that the woman saw this person was two days later; at that time she was presented a photo lineup consisting of five photographs, one of which was the defendant; she was unable to identify the defendant or anyone else in the photographs; within five minutes the woman saw the defendant from a distance of four to ten feet following a gesture by a police officer pointing to the defendant. Given those stated facts, would you be able to come to an opinion as to the accuracy of the eyewitness identification?"

The court concluded that allowing that hypothetical situation to be answered would be "invading the province of the jury." Accordingly, the court disallowed the question.

On appeal, Fontaine is arguing that the trial court abused its discretion when it prevented Dr. Maki from answering the hypothetical question. Rules 702 through 706 of the North Dakota Rules of Evidence govern the admissibility of testimony by expert witnesses. The test for admission of expert testimony is whether or not such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue and whether or not the witness is qualified as an expert. State v. Ohnstad, 359 N.W.2d 827, 841 (N.D.1984); State v. Skjonsby, 319 N.W.2d 764, 790 (N.D.1982); South v. National R.R. Passenger Corp., 290 N.W.2d 819, 831 (N.D.1980). The determination to admit or not to admit expert testimony rests within the sound discretion of the trial court, and its determination will not be reversed on appeal unless the court has abused its discretion. State v. Ohnstad, 359 N.W.2d at 841; State v. Skjonsby, 319 N.W.2d at...