State v. Hart

• Decision Date: 30 September 1997
• Docket Number: No. 960370,960370
• Citation: 1997 ND 188,569 N.W.2d 451
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. William Jude HART, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 451

569 N.W.2d 451

1997 ND 188

STATE of North Dakota, Plaintiff and Appellee, v. William Jude HART, Defendant and Appellant.

Criminal No. 960370.

Supreme Court of North Dakota.

Sept. 30, 1997.

Mark R. Boening (appearance), Assistant State's Attorney, Fargo, for plaintiff and appellee. Argued by Adam Hamm, third year law student.

Alisha Ankers, Fargo, for defendant and appellant.

SANDSTROM, Justice.

¶1 William Jude Hart appealed from a conviction entered upon a jury verdict finding him guilty of attempted murder of Cliff Rodenburg. We hold Hart was not denied his Sixth Amendment right to self-representation, the trial court did not abuse its discretion in excluding some evidence about an alleged business relationship between Hart, Rodenburg and Bill Engelhardt, and the court committed harmless error in excluding Hart's testimony about a statement made by an unavailable declarant. We affirm.

I

¶2 Hart shot Rodenburg on March 26, 1996, at the Fargo YMCA. The evidence about the shooting is conflicting. The State presented evidence Hart entered the weight room at the YMCA in the early morning hours of March 26 and shot Rodenburg five times in retaliation for Rodenburg filing a civil action against Hart and for Rodenburg's part in having Hart extradited to Iowa. According to Hart, he was involved in a business relationship with Rodenburg and Bill Engelhardt, and Rodenburg refused to pay Hart money. Hart testified he had approached Rodenburg earlier in the morning of March 26 in the YMCA parking lot in an attempt to locate Engelhardt, and Rodenburg shot at Hart. Hart testified he went to his motel room for a gun and returned to the YMCA where he located Rodenburg in the weight room. Hart testified Rodenburg fired shots at him, and he shot Rodenburg in self-defense.

¶3 Rodenburg survived the shooting, and Hart was charged with attempted murder. The trial court granted Hart's request to represent himself at trial, but the court appointed standby counsel to assist him. During trial, standby counsel participated in some of the proceedings. A jury found Hart guilty of attempted murder, and he appealed.

¶4 The district court had jurisdiction under N.D. Const. Art. VI, § 8 and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. Art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

¶5 Hart asserts standby counsel's participation in the trial denied him his Sixth Amendment right to represent himself.

¶6 In Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975), the United States Supreme Court held, as a corollary to a criminal defendant's Sixth Amendment right to counsel, the defendant also has a right to self-representation if the defendant knowingly and intelligently elects to proceed pro se. The Court explained a defendant should be made aware of the dangers and disadvantages of proceeding pro se so the record establishes the defendant's decision is knowingly and intelligently made. Faretta, 422 U.S. at 834-36, 95 S.Ct. at 2541. The Court, however, recognized a defendant's right to self-representation is not a license to abuse the dignity of the courtroom, nor to ignore rules of procedure. The Court thus authorized the appointment, over a defendant's objection, of "standby counsel" to assist the defendant and to represent the defendant if termination of self-representation is necessary. Faretta, 422 U.S. at 834, n. 46, 95 S.Ct. at 2541, n. 46.

¶7 In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the Court elaborated on the role of standby counsel. There the trial court permitted the defendant to proceed pro se, but appointed standby counsel to assist him. During trial, the defendant frequently changed his mind regarding standby counsel's role, objecting to standby counsel's participation on some occasions, but agreeing to it on other occasions. After his conviction, the defendant claimed standby counsel's participation at trial deprived him of his right to self-representation.

¶8 The Court recognized a defendant's right to self-representation is not violated if the defendant agrees to standby counsel's participation at trial. McKaskle, 465 U.S. at 181-83, 104 S.Ct. at 953. In cases of unsolicited participation, however, the Court said standby counsel need not be categorically silenced, and the primary focus is whether the defendant had a fair chance to present his case in his own way. McKaskle, 465 U.S. at 176-77, 104 S.Ct. at 950. The Court imposed two limits on standby counsel's unsolicited participation: (1) the defendant must be entitled to preserve actual control over the case presented to the jury, and (2) standby counsel's participation must not be allowed to destroy the jury's perception the defendant is representing himself. McKaskle, 465 U.S. at 178-79, 104 S.Ct. at 951. For standby counsel's unsolicited participation outside the presence of the jury, a defendant's self-representation rights are preserved if he is allowed to address the court freely on his own behalf and if disagreements between standby counsel and the defendant are resolved in the defendant's favor. McKaskle, 465 U.S. at 178-79, 104 S.Ct. at 951. For standby counsel's unsolicited participation in the presence of the jury, once a defendant agrees to any substantial participation by counsel, subsequent appearances are presumed to be with the defendant's acquiescence until he expressly and unambiguously renews his request to silence counsel. McKaskle, 465 U.S. at 181-83, 104 S.Ct. at 953. In McKaskle, 465 U.S. at 187-89, 104 S.Ct. at 956, the Court affirmed the defendant's conviction, holding his Sixth Amendment right to self-representation was not violated, because he was allowed to present his case in his own way and standby counsel's unsolicited participation in the presence of the jury was held within reasonable limits without seriously undermining the defendant's appearance to the jury as representing himself.

¶9 Here, Hart informed the trial court he wanted to represent himself. The court granted Hart's request, but asked his previously appointed counsel, Joe Johnson, to "remain present in the event that Mr. Hart might need any legal advice or assistance." Hart then asked the court to "appoint a legal aid ... to assist [him] in reading and writing," and the court designated Johnson to assist Hart. The court outlined Johnson's status:

"THE COURT: In the event that Mr. Hart requests of yourself either to read a document or to give any legal advice in the course of these proceedings, I wish you to be available to offer that assistance if requested.

"MR. JOHNSON: Very well.

"THE COURT: For all practical purposes if Mr. Hart wishes to represent himself he has a right under the constitution to do so."

¶10 At trial, Hart made his own opening statement to the jury. During the State's case-in-chief, Hart objected to testimony by the State's witnesses, and he cross-examined the State's witnesses. Standby counsel's participation was limited to reading previous statements by witnesses during Hart's examination of the witnesses, to making an offer of proof outside the presence of the jury, and to asking the court to sequester witnesses. During Hart's case-in-chief, Hart called Rodenburg to testify, and Hart conducted the examination of him. During Hart's examination of Rodenburg, Hart had Johnson read a previous statement by Rodenburg.

¶11 Hart then took the stand. The court had previously informed Hart, outside the presence of the jury, of the procedure the court would employ if Hart exercised his right to testify:

"You may testify in a narrative form. If you testify in a narrative form, it will be necessary for you to write down that narrative form or have someone write it down for you so that the State is given an opportunity to object to those parts of the narrative that would be objectionable to them, and that the Court can rule on them.

"The other way that you may testify is through your counsel. You may give him such questions as you deem necessary or appropriate. And he may ask you those questions and you may answer those questions, subject to the objection of the State."

Standby counsel conducted the examination of Hart. Hart then called Deputy Gail Wischmann, and he examined her. Standby counsel thereafter questioned the four remaining defense witnesses, and the State's four rebuttal witnesses. Hart made his own closing argument to the jury.

¶12 Hart concedes he knowingly and intelligently waived his right to an attorney. He contends the assistant he requested to aid him in reading and writing should not have been an attorney. Under Faretta and McKaskle, however, the trial court was authorized, over Hart's objection, to appoint standby counsel to assist Hart and to represent him if termination of self-representation was necessary. His argument the assistant he requested should not have been an attorney is meritless.

¶13 Hart argues standby counsel assumed control of his defense in violation of his Sixth Amendment right to self-representation. Hart contends the trial court ordered him to confer with standby counsel and those consultations affected the jury's perception he was representing himself.

¶14 Two of the consultations cited by Hart were outside the presence of the jury. The record does not show any disagreement between standby counsel and Hart regarding defense tactics during those two consultations. Instead, those consultations were to relieve the trial court of the need to explain evidentiary rules and courtroom procedure to Hart. In McKaskle, 465 U.S. at 184, 104 S.Ct. at 954, the Court explicitly said:

"A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel--even over the defendant's objection--to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in...