State v. Frohlich
| Citation | 2007 ND 45,729 N.W.2d 148 |
| Decision Date | 22 March 2007 |
| Docket Number | No. 20060178.,20060178. |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Kelly FROHLICH, Defendant and Appellant. |
| Court | United States State Supreme Court of North Dakota |
Lloyd C. Suhr, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.
Steven Balaban, Bismarck, N.D., for defendant and appellant.
[¶ 1] Kelly Frohlich appeals the district court judgment after a jury found him guilty of attempted murder and reckless endangerment. Concluding the denial of a continuance was not an abuse of discretion and the evidence was sufficient for the jury to convict, we affirm.
[¶ 2] On August 25, 2005, Frohlich was arrested and charged with attempted murder after he allegedly tried to kill himself and his passenger—his seventeen-year-old girlfriend—by driving through a red light to collide with a semi tractor-trailer. Frohlich was also charged with reckless endangerment, because he did not hit the semi, but crashed into a van and injured its driver.
[¶ 3] In August 2005, Frohlich retained Ralph Vinje as counsel. On September 29, 2005, the district court held a preliminary hearing and bound Frohlich over for trial. On November 4, 2005, the district court granted Frohlich's motion for a continuance, and the trial date was changed from January 10-12, 2006, to March 7-9, 2006. On February 17, 2006, Frohlich again moved for a continuance on the basis of his need for "some additional time to prepare for the trial of this matter." The district court denied that motion on February 27, 2006.
[¶ 4] On March 1, 2006, the district court conducted a hearing to "reconsider a motion for continuance as a result of or in conjunction therewith a motion for substitution of counsel," despite the fact that neither of Frohlich's motions alleged as a basis for the continuance a conflict of interest or the need for substitution of counsel. The hearing transcript reveals the chronology of events that ultimately caused the district court to conduct the March 1 hearing. After Frohlich retained Vinje, the passenger was charged in a drug-related juvenile matter. Vinje represented her in that matter. In the "middle of December" 2005, Vinje learned the passenger had changed her story from one protecting Frohlich to one implicating him in the attempted murder charge in this case. Frohlich learned of the passenger's recantation in January 2006 and told Vinje about his concerns of a possible conflict of interest arising from Vinje's prior representation of her. Frohlich said he began looking for substitute counsel in January 2006. Frohlich met with another attorney, Steven Balaban, in "early" February 2006. At that meeting, Balaban told Frohlich he had a scheduling conflict with the March 7, 2006, trial. Balaban advised Frohlich to seek a continuance to reschedule the trial so he could represent Frohlich.
[¶ 5] According to the district court, Balaban "informally inquired" about the need for a hearing to reconsider Frohlich's motion for a continuance, because the actual basis for the motion was not alleged— namely, Frohlich's desire for substitute counsel. The district court said it caused Balaban to schedule the March 1 hearing.
[¶ 6] At the hearing, Vinje said that he did not have a conflict of interest but that Frohlich believed a conflict did exist which would hinder Vinje's representation of him. As prospective counsel, Balaban said that because he had a scheduling conflict with the March trial date, a continuance was necessary to allow him to represent Frohlich and avoid the risk of disciplinary proceedings against Vinje. Finding no conflict that would limit Frohlich's attorney's ability to cross-examine the passenger, the district court denied the motion for a continuance; however, the court advised Frohlich and Vinje that it would allow another attorney to cross-examine the passenger. The district court also concluded the additional statutory language the State added to the charging document did not merit a continuance.
[¶ 7] At trial, Frohlich made no offer of proof regarding the alleged conflict of interest. On direct examination, the State questioned the passenger, and she admitted having lied to the police on the day of the incident. She testified she initially lied to protect Frohlich. She testified she originally told police that Frohlich wanted to kill only himself and that she had "made matters worse" by arguing with him in the car. She also admitted having lied at the September 29, 2005, preliminary hearing by testifying that the crash was an accident. She testified she had called the investigating officer after the preliminary hearing and confessed to lying. That officer testified he met with her on October 14, 2005, and she changed her story.
[¶ 8] Frohlich did not hire another attorney to cross-examine the passenger, nor did he raise the issue of the conflict of interest during the trial. The jury found Frohlich guilty of the attempted murder of his passenger and guilty of reckless endangerment of the van driver. Frohlich appeals.
[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.
[¶ 10] Frohlich contends the district court abused its discretion by failing to grant his motion for a continuance.
[¶ 11] Under the North Dakota Rules of Court, motions for continuance "will be granted only for good cause shown, either by affidavit or otherwise." N.D.R.Ct. 6.1(b). "We will not reverse a trial court's decision to deny a continuance absent an abuse of discretion." State v. Hilgers, 2004 ND 160, ¶ 38, 685 N.W.2d 109 (citation omitted). "A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586.
[¶ 12] Frohlich argues that because his attorney had previously represented the passenger—a victim in this case and a prosecution witness—Frohlich perceived a conflict of interest that he claims forced his attorney to refrain from a vigorous cross-examination of the passenger. He contends the district court's denial of his motion for a continuance to resolve a scheduling conflict for one particular attorney he wanted as trial counsel resulted in an unfair trial.
[¶ 13] "`When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice.'" State v. Wicks, 1998 ND 76, ¶ 26, 576 N.W.2d 518 (quoting Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir. 1984)). In exercising its discretion, the district court may consider the time required for trial preparation and the diligence of the moving party. Wicks, at ¶ 27.
[¶ 14] At the March 1 hearing to reconsider the motion for the continuance, Frohlich's trial counsel said:
I'm not alleging that I have a conflict of interest. I am alleging that because I have previously represented Ms. S-B my client has the perception—and it may be correct—that I would not cross-examine her as aggressively as I would a police officer or somebody that was otherwise a complete stranger. When I represented her, she was on his side. Now she is not on his side. She has obviously committed perjury, either in the beginning or now, and that requires a very vigorous cross-examination, and my client, Mr. Frohlich, isn't convinced I am the person to do it. And so for those reasons I think there should be a continuance.
The district court found no conflict of interest that would impede Frohlich's representation, but offered an alternative to alleviate the alleged conflict and limit the interference with Frohlich's choice of trial counsel:
It appears to me that if Mr. Frohlich wishes to hire co-counsel for the purpose of cross-examination of a single witness that is certainly your prerogative. In this matter there has been sufficient time to prepare for trial. There has been discovery achieved. There has been disclosure. I find nothing in terms of a basis of conflict of interest such as to place Mr. Vinje in a position where he could not effectively represent you. But indeed, if you wish to have co-counsel for the purpose of cross-examination of a particular witness who Mr. Vinje has previously represented, you are certainly entitled to do that and you are free to do so. But we'll proceed to trial as scheduled.
[¶ 15] At trial, Frohlich did not substitute counsel for the cross-examination of the passenger. The record does not reflect why Frohlich did not hire an attorney other than Balaban for the cross-examination. This record reveals little, if any, evidence of the diligence Frohlich used in securing substitute counsel.
[¶ 16] Frohlich had several weeks to find another attorney to represent him at trial, which would likely have fully resolved his perceived conflict. Frohlich said he began looking for another attorney in January 2006. The trial was scheduled for March 7, 2006.
[¶ 17] On March 1, 2006, the district court offered Frohlich the remedy of having a different attorney cross-examine the victim; however, for reasons not in the record, Frohlich did not avail himself of that remedy. On this record, the district court did not abuse its discretion by denying the continuance.
[¶ 18] Frohlich argues the State's "last minute" amendment to the charging document, which he claims added a new culpability level, prevented him from adequately preparing for trial.
[¶ 19] The State charged Frohlich with the attempted murder of his passenger. See N.D.C.C. §§ 12.1-06-01(1) and 12.1-16-01.
[¶ 20] The information need only "name or otherwise identify the defendant, and must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." N.D.R.Crim.P. 7(c). "For each count, the...
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