State v. Hamre, 20180055
| Decision Date | 18 March 2019 |
| Docket Number | No. 20180055,20180055 |
| Citation | 924 N.W.2d 776 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. John Phillip HAMRE, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Nicholas S. Samuelson (argued), under the Rule on Limited Practice of Law by Law Students, and Tristan J. Van de Streek (appeared), Assistant State’s Attorney, Fargo, North Dakota, for plaintiff and appellee.
Samuel A. Gereszek, East Grand Forks, Minnesota, for defendant and appellant.
[¶1] John Hamre appeals from a judgment entered after a jury found him guilty of two counts of simple assault on a peace officer, one count of fleeing or attempting to elude a peace officer, and one count of preventing arrest. Hamre argues he was denied his state and federal constitutional rights to a speedy trial, he was denied an evidentiary hearing on his motion to dismiss, and the evidence was insufficient to support the convictions. We affirm the judgment.
[¶2] On June 16, 2017, the State charged Hamre with two counts of simple assault on a peace officer, one count of preventing arrest, and one count of fleeing or attempting to elude a peace officer. The charges related to incidents on June 5, 2017, when Fargo Police Detective Phil Swan stopped a vehicle driven by Hamre for expired license plates and Hamre drove away from the scene of the stop after surrendering his driver’s license to Detective Swan, and on June 15, 2017, when Detectives Swan and Brent Malone approached Hamre at a Fargo storage unit and an altercation occurred.
[¶3] After an initial appearance on June 16, 2017, the district court set bail for Hamre at $ 20,000, and he remained in jail pending his trial. The court’s scheduling order set Hamre’s preliminary hearing for July 19, 2017, a motions hearing for September 18, 2017, a dispositional conference for September 20, 2017, and a jury trial for October 3, 2017. On June 22, 2017, counsel was appointed to represent Hamre, and he was arraigned after a contested preliminary hearing on July 19, 2017. The court thereafter denied his request for a bail reduction.
[¶4] At the September 20, 2017, dispositional conference, Hamre indicated that his counsel had not filed his requested motion to dismiss for a claimed failure to follow police protocol in arresting him on June 15, 2017, on an outstanding Clay County, Minnesota, warrant. Hamre stated that he may represent himself, he wanted a hearing on his motion, and he wanted more time. The court informed him a hearing must be properly noticed and continued the proceeding until its next scheduled date for a dispositional conference on October 18, 2017. That continuance effectively continued the jury trial scheduled for October 3, 2017.
[¶5] On October 11, 2017, Hamre filed a letter with the district court, seeking to dismiss his court-appointed counsel and represent himself and requesting a speedy trial. Hamre’s court-appointed counsel contemporaneously moved to withdraw as counsel. At an October 17, 2017, hearing the district court informed Hamre about the requirements for self-representation and found that he knowingly and voluntarily waived his right to counsel. The court granted Hamre’s court-appointed counsel’s motion to withdraw as counsel of record, but required her to appear as standby counsel. Hamre stated he wanted a hearing on his yet unfiled motion to dismiss, and the court continued the dispositional conference scheduled for the next day so Hamre could notice a hearing on his anticipated motion. The court advised Hamre to comply with applicable procedures for hearing motions based upon a notice of motion, and Hamre indicate he wanted time to make a motion. The court thereafter scheduled another dispositional conference for November 20, 2017.
[¶6] On November 6, 2017, Hamre filed another letter with the district court, again requesting a speedy trial. At the November 20, 2017, dispositional conference, Hamre filed a self-represented motion to dismiss, citing N.D.R.Crim.P. 48 and N.D.R.Ct. 3.2 and claiming "malicious abuse of legal process and police protocol negligence." Hamre’s motion stated:
that when police can see that a warrant is extraditable, they are required via protocol to call dispatch/jail, requesting agency to confirm the warrant. Once the warrant is confirmed, they are good to arrest. Again the protocol is, whether they (police) can see themselves on the NCIC database that the warrant is extraditable or not, they will be told it is or is not when they call dispatch to confirm. Dispatch/jail/requesting agency must be called either way to confirm the warrant, whether the officer can see it is extraditable via the NCIC database, or not.
Hamre also indicated he again wanted court-appointed counsel, and the court continued the dispositional conference to December 20, 2017, so Hamre could reapply for court-appointed counsel.
[¶7] On November 27, 2017, the State responded to Hamre’s motion to dismiss, arguing it did not articulate any coherent theory for suppression of evidence or dismissal. On November 30, 2017, Hamre filed a letter with the court, again requesting a speedy trial. On December 1, 2017, Hamre filed his second request for court-appointed counsel, and a different court-appointed counsel was ultimately appointed to represent him on December 8, 2017. On December 11, 2017, the State filed a response to Hamre’s most recent request for a speedy trial, indicating the State was ready for trial as soon as a date was available on the court’s calendar.
[¶8] On December 12, 2017, the district court judge recused himself, and another judge was assigned. On December 13, 2017, the clerk of court’s office issued notice of a dispositional conference scheduled for January 10, 2018. At a December 21, 2017, hearing the district court orally granted Hamre’s request to represent himself and allowed his recently appointed counsel to withdraw. The court also issued a written order on December 21, 2017, denying Hamre’s motion to dismiss. On January 2, 2018, Hamre filed a letter with the court, again requesting a speedy trial. At the January 10, 2018, dispositional conference, a jury trial was scheduled for January 23, 2018, and the district court responded to Hamre’s inquiry about a speedy trial by stating the scheduled trial was "pretty speedy." Hamre represented himself during the scheduled jury trial, and the jury found him guilty of all four charges.
[¶9] On appeal, Hamre, through his court-appointed appellate counsel, argues he was denied his state and federal constitutional rights to a speedy trial, the district court erred in failing to provide him an evidentiary hearing on his pretrial motion to dismiss, and the evidence was insufficient to support the convictions. In a self-represented supplemental statement filed under N.D.R.App.P. 24, Hamre claims the evidence was insufficient to support his convictions, the State improperly removed all but two men from the jury, and the Fargo law enforcement officers failed to follow proper procedure in executing a Clay County, Minnesota, warrant while arresting him on June 15, 2017.
[¶10] A defendant in a criminal proceeding has the right to a speedy trial under N.D. Const. art. I, § 12, and the Sixth Amendment to the United States Constitution. We review a district court’s speedy trial decision de novo, but the court’s findings are reviewed under the clearly erroneous standard. Koenig v. State , 2018 ND 59, ¶ 12, 907 N.W.2d 344 ; State v. Hall, 2017 ND 124, ¶ 12, 894 N.W.2d 836 ; State v. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915.
[¶11] In State v. Erickson , 241 N.W.2d 854, 859 (N.D. 1976), we adopted a four-part balancing test from Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to decide speedy trial claims under the state and federal constitutions. See Koenig , 2018 ND 59, ¶ 20, 907 N.W.2d 344 ; Moran , 2006 ND 62, ¶ 8, 711 N.W.2d 915 ; State v. Bergstrom , 2004 ND 48, ¶ 15, 676 N.W.2d 83. Under Barker , the four factors are: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of the right to a speedy trial; and (4) the prejudice to the accused. Koenig , at ¶ 20 ; Moran , at ¶ 8. In Barker , 407 U.S. at 533, 92 S.Ct. 2182, the United States Supreme Court described the balancing of those factors:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
Under that analysis, we have said a delay of one year or more is "presumptively prejudicial" and triggers an analysis of the other speedy trial factors. Moran , 2006 ND 62, ¶ 9, 711 N.W.2d 915 (citing Doggett v. United States , 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) ). See also Koenig , 2018 ND 59, ¶ 21, 907 N.W.2d 344.
[¶12] In Erickson , 241 N.W.2d at 859, we said that N.D.R.Crim.P. 48 acts as a vehicle for enforcing the right to a speedy trial and authorizes a court to dismiss a prosecution whenever there has been an unnecessary delay without requiring the court to decide whether the delay deprived a defendant of a constitutional right. The explanatory note for N.D.R.Crim.P. 48(b) explains that it is a codification of the inherent power of the court to dismiss a case for want of prosecution. See State v. Runck , 418 N.W.2d 262, 265 (N.D. 1987).
[¶13] We have also recognized that under federal law, "a defendant’s claim that his Sixth Amendment right to speedy trial was violated must be brought before the trial court by a timely motion to dismiss the charges...
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