State v. Heasley

• Decision Date: 24 September 1970
• Docket Number: Cr. N
• Citation: 180 N.W.2d 242
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Fay HEASLEY, Defendant and Appellant. o. 389.
• Court: North Dakota Supreme Court

Page 242

180 N.W.2d 242

STATE of North Dakota, Plaintiff and Respondent, v. Fay HEASLEY, Defendant and Appellant.

Cr. No. 389.

Supreme Court of North Dakota.

Sept. 24, 1970.

Syllabus by the Court

1. The judge of the county court with increased jurisdiction must go forward to determine whether or not the defendant is indigent and a needy person, and the judge thereof, upon making a determination that the defendant is a needy person, must appoint counsel for the defendant at public expense in any proceeding arising out of a criminal case when the offense charged is a misdemeanor, under the provisions of chapter 259 of the Session Laws of 1967, § 29--07--01.1, pocket supplement to the North Dakota Century Code.

2. Where the record reveals that Mr. Heasley proceeded to trial without counsel without knowingly or intelligently waiving counsel, and the court having announced it would not appoint counsel for him although the record discloses that he was a needy person for whom the court should appoint counsel; and the record discloses a person thoroughly confused as to the issues involved, both of fact and of law, and an inadequate defense of his cause by himself as his own attorney, the verdict of the court finding him guilty of the offense should be reversed and the case remanded for new trial.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and Thomas Burgum, State's Atty., for Stutsman County, Jamestown, for respondent.

KNUDSON, Judge.

Mr. Heasley was found guilty by a jury in the County Court with Increased Jurisdiction for Stutsman County, North Dakota, of the offense of contempt of court for willful disobedience of the order of the District Court of Stutsman County, North Dakota, contained in that certain judgment and decree quieting title to real estate in the matter of Carl A. Bertel, et al., plaintiff, versus Stutsman County, et al., defendants, and Fay Heasley, intervenor, dated March 11, 1966, in the following language:

It is the further judgment of this court that * * * the intervenor, Fay Heasley, * * * shall be forever disbarred and enjoined from further asserting any right, claim, interest, estate, lien or encumbrance upon or to said premises.

It is the further judgment of this court that the title to said premises be quieted in favor of the plaintiffs as to any and all claims of said defendants and said intervenor, Fay Heasley, and that each and every one of them, their executors, administrators and assigns be forever debarred and enjoined from asserting any estate or interest in or lien or encumbrance upon said premises or any part thereof.

Mr. Heasley appealed from the judgment and sentence and also from the judgment and sentence of the forfeiture of $300 of the bail bond for failure to appear on the appointed date for hearing.

Mr. Heasley specified as error:

(1) That he was denied the right of counsel and that the court failed to secure counsel for him, after he informed the court that he was without funds to procure counsel to handle his defense;

(2) That he was sentenced on the bond forfeiture for failing to appear, when he did, in fact, appear on the date set by the court for such appearance, which date happened to be Sunday, and which date, as stated, was verified by the Jamestown paper, which published a similar date to the one on which the defendant appeared.

Mr. Heasley had intervened in the action to quiet title brought by Mr. Bertel and wife, contending that he was either the owner or the renter of the land involved, although the record is not clear as to the nature of his interest in the land, but, in any event, costs had been assessed against Mr. Heasley in the action to quiet title.

Mr. Heasley paid these costs to the clerk of court, and he asserted that upon the payment of these costs he became the owner of this land. From the testimony it appears that Mr. Heasley had been the owner of this land several years ago, and that in the immediate past that Mr. Heasley had been renting this land from Mr. Bertel, through the year 1967. Mr. Mountain and Mr. Wetherly purchased this land in the fall of 1967 from Mr. Bertel and wife.

In the spring of 1968, and particularly on April 30, Mr. Mountain discovered that someone was burning weeds and grass on this land and that there was a combine sitting on the cultivated area of this land. Upon learning that Mr. Heasley was the owner of the property, he asked him to move the machinery from the premises. Mr. Heasley declined to do so, whereupon Mr. Mountain and Mr. Wetherly caused the machinery to be placed on the section line. Mr. Heasley moved the machinery back onto the land, and Mr. Mountain and Mr. Wetherly again removed this machinery to the section line. In a conversation with Mr. Mountain and Mr. Wetherly, Mr. Heasley maintained that the land was his, that he had a check to prove it (the check to the clerk of court for the costs in the quiet title action), and Mr. Heasley objected to the moving of his machinery off the premises.

Mr. Mountain swore out a criminal complaint on May 1, 1968, charging Fay Heasley with contempt of court.

The criminal complaint alleged that the crime of willful disobedience of a court order was committed by the defendant by moving machinery onto the Southwest Quarter of Section 12, Township 138, Range 66, Stutsman County, North Dakota, burning weeds and grasses on the premises, and by advising complainant that he intended to farm said premises during the year 1968, all in violation of § 12--17--24, North Dakota Century Code.

The offense of contempt of court is a misdemeanor under the statute, § 12--17--24, N.D.C.C., as set forth therein:

Every person guilty of contempt of court of the following kinds is guilty of a misdemeanor:

4. Willful disobedience of any process or order lawfully issued by any court;

The defendant was sentenced to be punished by a fine of $500 and costs assessed in the sum of $1,000, and upon failure to pay such fine and costs within thirty days, to serve a sentence at the State Farm for a period of six months. The court also directed the forfeiture of $300 of the bail bond for the defendant's nonappearance on the 7th of February, and date set for sentencing, when the defendant failed to appear.

We will consider first the specification of error that the court erred in not appointing counsel for the defendant as an indigent after it appeared that the defendant had informed the court that he was unable to obtain counsel of his own because he was without funds to hire and pay for the services of an attorney.

The criminal complaint was issued on May 1, 1968, and the defendant was arrested shortly thereafter. The court set a jury trial for November 21, 1968, at 2:00 p.m. John Paulson, an attorney at Valley City, had filed an affidavit of prejudice against the county judge of Stutsman County on May 7, 1968, and the Honorable Kirk Smith, of the Grand Forks County Court with Increased Jurisdiction, agreed to preside over the jury trial upon the request by the Honorable T. E. George, Judge of the County Court with Increased Jurisdiction of Stutsman County. Thereafter, and before the date set for trial, November 21, 1968, Mr. Paulson wrote to Judge Smith that he was no longer representing the defendant because the defendant was unable to pay him for past or future services, and that Mr. Heasley would represent himself. The case was called for trial on November 21, 1968, with the jury assembled. Mr. Heasley then informed the court that he had no attorney to represent him; also, that he, Mr. Heasley, was barred from appearing in any court by the Internal Revenue Service and the federal government. The trial court replied that the injunction referred to by Mr. Heasley did not prevent the State from proceeding against the defendant in the prosecution of the criminal complaint, or the defendant from defending himself in this court. The defendant said he was ready to proceed, and then said probably he should call his attorney to see if he could come down, whereupon the court granted a recess of fifteen minutes for him to call the attorney. The court recessed to permit Mr. Heasley to call Mr. Paulson, who advised him that he did not wish to represent or appear for Mr. Heasley in this case, claiming that he had not been paid for services rendered for past representation. The judge, the state's attorney and Mr. Heasley engaged in a colloquy concerning the action to quiet title and the cost judgment therein entered against Mr. Heasley, and another proceeding relating to another judgment against Mr. Heasley upon which execution had been issued and levied upon a flax crop of the defendant and part of the flax sold to satisfy the other judgment, all of which indicated to the defendant that he had satisfied all the claims against him as it related to this tract of land, and that he was now the owner of the said tract of land.

At the conclusion of the colloquy the defendant indicated that he desired to proceed to trial with counsel, 'if I can.' The court was then adjourned until ten o'clock the next morning, to November 22, 1968.

Upon the court reconvening the next morning, the defendant informed the court that he had phoned an attorney by the name of 'George' at Oakes but that he did not know his last name and he could not recall it; that this attorney was not then in the courtroom. He had also phoned a couple of other attorneys, who said they would have to have a couple days to look into it. The court then was recessed, and the court, the state's attorney and Mr. Heasley retired to chambers, where a telephone call was placed to Mr. George Margulies, an attorney at Oakes, North Dakota, who informed the court that he did not represent Mr. Heasley. There then followed a colloquy among the court, the state's attorney and Mr. Heasley to continue the case over to some future date when a jury would be available, and to give Mr. Heasley time...