State v. Hoverson

• Decision Date: 02 March 2006
• Docket Number: No. 20050237.,20050237.
• Citation: 2006 ND 49,710 N.W.2d 890
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Danny Ray HOVERSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

710 N.W.2d 890

2006 ND 49

STATE of North Dakota, Plaintiff and Appellee v. Danny Ray HOVERSON, Defendant and Appellant.

No. 20050237.

Supreme Court of North Dakota.

March 2, 2006.

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Kelly Ann Dillon, Minot, N.D., for plaintiff and appellee.

Chad Rory McCabe, Bismarck, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Danny Hoverson appeals from an amended judgment of conviction for unlawful delivery of a controlled substance. We affirm, concluding: (1) the district court did not err in denying Hoverson's motion to dismiss based upon his claim of outrageous government conduct; (2) the court interpreted the law too narrowly when it refused to allow Hoverson to cross examine a witness on the underlying facts of a prior conviction, but the error was harmless; (3) the court did not abuse its discretion in refusing to allow Hoverson to cross examine a witness on specific instances of conduct; and (4) the court did not substantially rely on an impermissible factor in sentencing Hoverson.

I

[¶ 2] On October 24, 2003, law enforcement officers, including North Dakota Bureau of Criminal Investigations Agent Michael Marchus, set up a controlled purchase of methamphetamine from Hoverson. A confidential informant called Hoverson to set up the purchase. The confidential informant went to Hoverson's automotive shop to purchase the drugs. Upon completing the purchase, the confidential informant left the shop and met with law enforcement officers. The confidential informant gave the officers a small zip lock bag, decorated with dollar bill signs, containing .69 grams of methamphetamine. In June 2004, the State charged Hoverson, under N.D.C.C. § 19-03.1-23, with a Class A Felony for unlawful delivery of a controlled substance.

[¶ 3] Hoverson moved to dismiss the charge, arguing the State was guilty of outrageous conduct and asking the district court to exercise its inherent powers and dismiss the charge to protect the integrity of the judicial process. Hoverson claimed Agent Marchus was stalking and harassing him. In support of his motion, Hoverson offered evidence that between April 5, 2002 and September 8, 2004, Agent Marchus was involved in arresting Hoverson on eight separate occasions for driving under suspension. Four arrests occurred after Agent Marchus saw Hoverson driving around town. Two other arrests were the result of tips Agent Marchus received from members of the community. Agent Marchus also saw Hoverson driving on two other occasions while conducting surveillance on Hoverson's shop in connection with the drug investigation. On all eight occasions, Agent Marchus verified that Hoverson's license was suspended. During one encounter with Hoverson, Agent Marchus told Hoverson, "Now look at this face ... you'll get to know it. You are my project boy." Another encounter occurred after Hoverson drove by Agent Marchus' home and made a comment about Agent Marchus' children. In response, Agent Marchus drove by Hoverson and said, "You drove by my place so I drove by your place." During the eighth arrest for driving under suspension, Hoverson accused Agent Marchus of harassing him and Agent Marchus said if he arrested Hoverson one more time he would get a free toaster or microwave. Agent Marchus admitted making all those statements to Hoverson.

[¶ 4] The district court denied Hoverson's motion to dismiss, concluding there was no outrageous government conduct because Agent Marchus was doing his duty as a law enforcement officer when he arrested Hoverson eight times for driving under suspension.

[¶ 5] A jury found Hoverson guilty of unlawful delivery of a controlled substance. After considering the sentencing factors in N.D.C.C. § 12.1-32-04, the district court sentenced Hoverson to ten years in the State Penitentiary, with four years suspended, and five years of supervised probation.

II

[¶ 6] Hoverson argues the district court erred in not dismissing the prosecution based upon outrageous government conduct or the court's supervisory powers. Hoverson argues Agent Marchus' conduct, specifically his involvement in Hoverson's eight arrests and the comments he made to Hoverson, constituted harassment and stalking and deprived him of due process.

[¶ 7] An argument for outrageous government conduct usually arises in cases where government agents have been involved in sting operations and is used in place of an entrapment defense. See United States v. Kummer, 15 F.3d 1455, 1459-60 (8th Cir.1994). The defense is reserved only for "the most intolerable government conduct." United States v. Musslyn, 865 F.2d 945, 947 (8th Cir.1989). "Government conduct is not outrageous simply because it may be somewhat offensive." Id. In order to succeed with an outrageous government conduct defense, the defendant must show that the government's conduct is "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The level of outrageous conduct necessary to prove a due process violation is quite high and must shock the conscience of the court. Id. The outrageous government conduct argument is usually used in place of an entrapment defense and it is extremely rare to conclude that a defendant's due process rights were violated by the government's outrageous conduct. United States v. Berg, 178 F.3d 976, 980 (8th Cir.1999) (stating the United States Supreme Court and the Eighth Circuit Court of Appeals have yet to see a case where the government's conduct rose to that level). Whether the government's conduct is so outrageous that it bars prosecution is a question of law, fully reviewable on appeal. Musslyn, at 947.

[¶ 8] The government conduct in this case is not so outrageous that due process principles absolutely bar the government from invoking judicial processes to obtain a conviction. Agent Marchus was involved to some degree in all eight of Hoverson's prior arrests for driving under suspension. In each case, Hoverson was arrested on valid charges after Agent Marchus witnessed him engaging in illegal activity. Agent Marchus witnessed Hoverson violating the law and had a duty as a law enforcement officer to uphold and enforce the law by arresting Hoverson for the illegal acts. Although some of Agent Marchus' statements to Hoverson were inappropriate and unprofessional, we conclude Agent Marchus' conduct does not rise to the level of outrageous government conduct that would bar this prosecution. We reject Hoverson's due process claims.

III

[¶ 9] Hoverson argues he was severely prejudiced when the court refused to allow him to cross examine the confidential informant regarding the underlying details of the informant's prior theft conviction and other specific instances of conduct not resulting in a conviction.

[¶ 10] During trial, Hoverson asked the district court to allow him to cross examine the confidential informant regarding his past convictions, including a 1997 felony conviction for failure to appear and a 2004 theft of property conviction. The court admitted evidence of the felony conviction for failure to appear under N.D.R.Ev. 609(a)(i), concluding the probative value of the conviction was not substantially outweighed by the unfair prejudicial effect. The court also admitted evidence of the theft of property conviction under N.D.R.Ev. 609(a)(ii) after looking at the underlying facts of the conviction and concluding that it involved dishonesty or deceit. The court allowed Hoverson to cross-examine the informant about those convictions, but limited questioning to the name of the crime, the time and place of the conviction, and the punishment. Hoverson asked the court to allow him to cross examine the confidential informant regarding the underlying facts of the theft of property conviction under N.D.R.Ev. 608(b). The court denied Hoverson's request, concluding it circumvented the limitations imposed by Rule 609.

[¶ 11] Hoverson also sought to cross examine the confidential informant regarding allegations that the informant stole a car and broke into a house. Hoverson argued N.D.R.Ev. 608(b) allows questioning of specific instances of conduct not resulting in a conviction. The court denied Hoverson's requests, concluding the confidential informant could not be questioned about those instances of conduct because they were mere allegations and did not result in a conviction. The court also concluded that theft of a vehicle and breaking into a house were not probative of truthfulness or untruthfulness.

A

[¶ 12] A witness's character for truthfulness may be impeached through cross examination regarding specific instances of conduct under N.D.R.Ev. 608(b), or through evidence of a conviction under N.D.R.Ev. 609(a).

[¶ 13] Rule 608(b), N.D.R.Ev., governs the admissibility of evidence of specific instances of conduct by a witness for impeachment purposes and states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. However, in the discretion of the court, if probative of truthfulness or untruthfulness, they may be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness ...

A court has discretion to permit cross examination of a witness regarding specific instances of conduct under N.D.R.Ev. 608(b), and we review the court's decision under the abuse of discretion standard. State v. Moran, 474 N.W.2d 77, 78 (N.D. 1991). "A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law." State v....