State v. Harmon

Decision Date02 December 1997
Docket NumberNos. 970100-970102,Nos. 960206-960208,s. 960206-960208,s. 970100-970102
Citation575 N.W.2d 635,1997 ND 233
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Carl A. HARMON, III, Defendant and Appellant. Carl Aubrey HARMON, III, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. CriminalCivil
CourtNorth Dakota Supreme Court

Laura L. Gray (appearance), Assistant State's Attorney, Williston, and Jonathan R. Byers (argued), Assistant Attorney General, Office of the Attorney General, Bismarck, for plaintiff and appellee and for respondent and appellee.

William E. McKechnie (argued) and Law Clerk Robert Bredesen (appearance), William E. McKechnie & Associates, P.C., Grand Forks, for defendant and appellant and for petitioner and appellant.

SANDSTROM, Justice.

¶1 Carl Aubrey Harmon appealed from a judgment of conviction finding him guilty of gross sexual imposition, felonious restraint, and terrorizing. We conclude Harmon's post-conviction appeal was not timely. We also conclude the trial court did not abuse its discretion in denying substitute counsel, Harmon waived his right to counsel, the prosecution's closing remarks were not improper, and Harmon was not deprived of a fair and impartial jury. We therefore dismiss in part and affirm in part.

I

¶2 On July 21, 1995, Carl A. Harmon, III, was charged with gross sexual imposition, felonious restraint, and terrorizing. The Anseth & Johnson law firm was appointed as Harmon's counsel on July 21, 1995, at Harmon's bond hearing. On July 25, 1995, at another bond hearing, attorney LeRoy Anseth appeared on behalf of Harmon. On August 30, 1995, Judge Rustad heard a request for a change of defense attorney after Harmon wrote Judge Rustad a letter stating he had a conflict of interest with Anseth. Harmon explained Anseth had previously represented his eldest son and had once, while leaving the courthouse, remarked "like father, like son." Judge Rustad asked Harmon whether he had been willing to cooperate with Anseth. Harmon replied "Not totally." Upon further questioning by Judge Rustad, Harmon said he and Anseth had irreconcilable differences concerning trial strategy on "[o]ne certain thing at least." Judge Rustad did not ask Harmon to clarify what the one thing was. Judge Rustad then asked Anseth if he believed any past problems were hampering his representation of Harmon. Anseth replied "No." Judge Rustad concluded there was no conflict and denied Harmon's request for substitute counsel.

¶3 After a motion for a change of judge was granted, Harmon wrote to Judge McLees and requested Carl Flagstad be appointed counsel. Judge McLees analyzed Harmon's request under Rule 1.7 of the Rules of Professional Conduct and denied Harmon's request. On November 28, 1995, Anseth wrote to Judge McLees for instructions about his role in light of Harmon's refusal to sign a choice of legal services form. Judge McLees replied on November 29, 1995, stating he concluded Harmon had elected to proceed pro se. Judge McLees stated Anseth was relieved of "actively defending " Harmon, and Anseth was to serve in a standby role. Judge McLees issued an order stating Anseth was to "remain available to the Defendant in a standby capacity for consultation during the Defendant's pretrial preparation and during the trial of these cases" (emphasis added).

¶4 In another, undated letter, Harmon requested substitute counsel. Judge McLees replied on December 12, 1995, noting the selection of counsel is not the prerogative of the defendant. Judge McLees explained he revoked the appointment of Anseth & Johnson not for conflict-of-interest reasons, but because Harmon refused to accept the services of Anseth and "it appears to the Court that you have decided to proceed pro se...." Harmon wrote Judge McLees multiple letters on December 13, 1995, stating, among other things, Judge Nelson had relieved Anseth from another case for inadequate or insufficient counsel. On February 7, 1996, Harmon wrote another letter, noting Anseth had been brought before the State Bar and Supreme Court. Judge McLees replied by letter on February 13, 1996, once again noting defendants do not have the right to select their own attorneys. In his letter, Judge McLees referred to the North Dakota Supreme Court's decision in State v. DuPaul, 527 N.W.2d 238 (N.D.1995).

¶5 On May 6, 1996, during a pretrial conference, Judge McLees stated Anseth was acting in a "standby capacity." Subsequently, the attorneys for the State requested clarification on whether Harmon was asserting his right to counsel or his right to self-representation. Judge McLees recognized Harmon was not representing himself by choice, but was doing so because there was no basis for new counsel and, in refusing Anseth's services, Harmon had "in effect chosen to represent" himself.

¶6 During jury selection, it became clear Harmon did not understand the process, and Judge McLees asked him if he wanted Anseth to conduct voir dire. Harmon initially replied "if he wishes to do so, he is welcome to do so" and, on further comment from Judge McLees, Harmon stated, "Due to my lack of inability [sic], I would guess I will have to ask for his assistance." After further discussion, Harmon again said he felt he was being forced to proceed pro se.

¶7 During an in-chambers conference on May 7, the second day of trial, Harmon told Judge McLees he had decided to let Anseth represent him. Judge McLees initially ordered Anseth to be attorney of record, but later that afternoon reversed himself and ordered Harmon to continue to proceed pro se with Anseth as standby counsel, because to make Anseth attorney of record "would place Mr. Anseth in an entirely untenable, unworkable position." On May 9, however, Judge McLees allowed Anseth to take over, in part because Anseth asked to do so, and in part because Harmon indicated he did not have any problems with Anseth being less effective than he might have been had he had more time to prepare. The rest of the trial was conducted by Anseth. On May 14, 1996, Harmon was convicted on all counts.

¶8 Harmon filed a notice of appeal on August 2, 1996. The direct appeal was stayed pending the outcome of a petition for post-conviction relief. On January 10, 1997, the trial court denied Harmon's petition, and on April 3, 1997, Harmon filed a notice of appeal of the denial of post-conviction relief and a motion to consolidate with the trial court. The State sought to have the appeal of post-conviction relief dismissed as untimely. This Court denied the motion to dismiss by order of April 16, 1997. On June 19, 1997, an order for remand was entered "for the limited purpose of considering an appropriate motion for extension of time to file the Notice of Appeal." A motion was made, but on July 15, 1997, the trial court ruled Harmon had erroneously asked the court to consider the timeliness of the motion, instead of asking for an extension of time to file.

¶9 Harmon appeals from the August 1, 1996, judgment of the Williams County District Court and the January 10, 1997, memorandum and order of the Williams County District Court. The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. §§ 27-05-06(1), 29-32.1-03. This Court has jurisdiction over the direct criminal appeal under N.D. Const. Art. VI, § 6, and N.D.C.C. § 29-28-06.

II

¶10 The first issue we address is whether Harmon's post-conviction appeal is properly before us. Harmon's April 3, 1997, notice of appeal came 79 days after the order denying post-conviction relief was entered by the trial court. Under N.D.C.C. § 29-32.1-14, an appeal must be filed within 10 days. See also McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994) (applying N.D.R.App.P. 4(a) to post-conviction proceeding). Similar to our decision in McMorrow, the June 19, 1997, order of remand was for the purpose of allowing Harmon to make "an appropriate motion for extension of time to file the Notice of Appeal" under N.D.R.App.P. 4(a). N.D.R.App.P. 4(a) permits the trial court "[u]pon a showing of excusable neglect ... [to] extend the time for filing the notice of appeal...." Harmon instead filed a "Motion to Determine the Timeliness of Notice of Appeal." The trial court denied Harmon's motion, stating:

"It appears to the Court that counsel for the Defendant has misconstrued the directive of the North Dakota Supreme Court contained in its June 19, 1997, ORDER FOR REMAND. This matter was not remanded to the trial court for the purpose of determining the timeliness of the Defendant's Notice of Appeal-that issue has already been decided by our high court. Rather, the trial court is to consider 'an appropriate motion for extension of time to file the Notice of Appeal.' (emphasis added). Presumably, any such motion would be supported by a sufficient reason (or reasons).

"The Defendant's MOTION TO DETERMINE THE TIMELINESS OF NOTICE OF APPEAL is hereby DENIED."

Harmon has thus not shown "excusable neglect," and his appeal is not timely. The post-conviction appeal is therefore dismissed. We thus limit our review to Harmon's direct criminal appeal and the record compiled during the criminal case. See N.D.C.C. § 29-32.1-01(2) ("A proceeding under this chapter is not a substitute for and does not affect any remedy incident to ... direct review of the judgment of conviction or sentence in an appellate court.").

III

¶11 Harmon argues the trial court abused its discretion in refusing to appoint substitute counsel.

A

¶12 " 'The matter of substitution of appointed counsel is committed to the sound discretion of the trial court and, absent a showing of good cause for the substitution, a refusal to substitute is not an abuse of discretion.' " State v. Klein, 1997 ND 25, p 22, 560 N.W.2d 198 (quoting In Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987)). "The trial court has no duty to appoint a specific counsel, or to continually seek new counsel for a capricious and difficult...

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