State v. Jensen, 554

Decision Date22 April 1976
Docket NumberNo. 554,554
Citation241 N.W.2d 557
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Herbert O. JENSEN, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. A defendant who has a tax-free monthly income in excess of $1,000, has no dependents, and owns a substantial equity in real estate is not 'indigent' within the meaning of Rule 44, N.D.R.Crim.P.

2. One who is convicted of two counts of second-degree murder, has exhibited a tendency to resort to violent acts when angered, and admits to being a 'racist' as to Indians is not entitled to be released on bail pending appeal from the murder convictions.

Clifford C. Grosz, State's Atty., Fessenden, and Calvin N. Rolfson, Deputy Atty. Gen., Bismarck, argued, for plaintiff and appellee State of North Dakota; argued by Calvin N. Rolfson.

Leo Broden, Devils Lake, for defendant and appellant.

VOGEL, Justice.

Herbert O. Jensen has appealed to this court from his conviction of two counts of murder in the second degree. We will hear that appeal on the merits when the transcript and record on appeal are filed.

In the meantime, he has filed two motions in the court. One, based on Rule 9(b) of the North Dakota Rules of Appellate Procedure, seeks his release on bail while the appeal is pending. A similar motion was denied by the district court.

The second motion, based on Rules 5(b)(1)(v) and 44 of the North Dakota Rules of Criminal Procedure and Section 29--07-- We deny both motions. Since one of the motions calls for interpretation of rules which we have not previously interpreted, we will state our reasons more fully than we otherwise might.

01.1, noRth daKota ceNtury Code, asks that we find him indigent and order payment by the county of his attorney fees and expenses of appeal.


In State v. Stevens, 234 N.W.2d 623, 626 (N.D.1975), we approved the rule

'. . . that a convicted defendant is entitled to release while the appeal is pending only if it appears (1) that the appeal is not frivolous, (2) the appeal is not taken for the purpose of delay, (3) there is sufficient reason to believe that the conditions of release will reasonably assure that the defendant will not flee, and (4) there is sufficient reason to believe that the defendant does not pose a danger to any other person or to the community.'

Jensen was originally charged with two counts of first-degree murder. During the course of the trial the trial court, over the objection of the State, reduced the charges from first-degree to second-degree murder. The jury found him guilty of two counts of second-degree murder.

On February 19, 1976, he was sentenced to twenty years in prison on each count, with an additional ten years, pursuant to Section 62--01--02, N.D.C.C., because the murders were committed while armed. The sentences are concurrent.

On the day of sentencing Jensen moved for release from custody pending appeal. A hearing was held, and the court ruled against release. The court's oral statement of reasons for denying the motion included statements that a defense of insanity had been interposed, that a psychiatric examination had been made and a report furnished, and that the court believed that no substantial error had been committed at the trial. Within a week thereafter the court complied with the requirements of Section 12.1--32--09, subsection 4, N.D.C.C., requiring a written statement of its reasons for imposing an extended sentence. The court mentioned the jury verdict finding the defendant guilty of two murders with a firearm; that the defendant had previously resorted to violence, indicating that he has an unstable temperament and is sometimes given to resorting to overt violence; that he has no one dependent upon him or subjected to hardship by reason of his incarceration; and that he is a dangerous special offender.

Jensen appealed promptly and the appeal is moving expeditiously. He raises serious questions of substance on his appeal, some of them arising out of the fact that the crime was committed prior to the effective date of the complete revision of our substantive criminal law adopted by the 1973 Legislative Assembly and effective July 1, 1975, now codified in Title 12.1, N.D.C.C., while the trial and sentence occurred later. Uncertainties arose as to the applicability of the old and the new law.

We have no hesitation in finding that the appeal is not frivolous and was not taken for purposes of delay.

On the question of whether Jensen can be released on conditions which will reasonably assure that he will not flee, Jensen points to his compliance with prior orders of the court while he was on bail pending the trial, his ownership of real estate in this State, and his good record in the armed forces for more than twenty years. We must recognize, of course, that the temptation to flee after a conviction is greater than the temptation prior to trial, when there may be more hope of acquittal. However, just as the trial court seemed to accept the argument that Jensen would not flee if released on bail, we will likewise accept it.

There remains the question of whether the defendant poses a danger to other persons and the community, if released on bail.

We have mentioned his plea of insanity, the nature of the crime, and previous resort to violence. The latter finding of the trial We also take into account the fact that the trial judge had the opportunity, during a trial lasting almost two weeks, to observe the defendant and form an opinion as to his conduct.

court arose from an episode in which Jensen became angry at another motorist, pursued his vehicle onto private property and repeatedly rammed it with his own vehicle, and offered violence to the other driver. While Jensen minimizes this episode by referring to the fifty-dollar fine imposed on him after conviction of assault and battery as a result of this incident, we agree with the trial court that the episode is indicative of an unstable temperament and a proclivity for violent methods of resolving disputes, and that it justifies, along with the other facts, a finding that releasing the defendant pending the appeal would pose a danger to other persons and the community.

We also note that the two victims of the murders were Indians, whom the defendant had picked up while they were hitchhiking, and that the defendant admits to being a 'racist' so far as Indians are concerned.

We have no hesitancy in denying the motion for release pending appeal. We hold that there is not sufficient reason to believe that Jensen does not pose a danger to others and the community.


If a defendant is indigent, he is entitled to have an attorney appointed for him at public expense in the Supreme Court, as well as in other courts. Section 13 of the Constitution of North Dakota provides, in part:

'In criminal prosecutions in any court whatever, the party accused shall have the right . . . to appear and defend in person and with counsel. . . .'

Rule 44, North Dakota Rules of Criminal Procedure, provides:

'Absent a knowing and intelligent waiver, every indigent defendant shall be entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant shall be entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in all nonfelony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at his expense if he is unable to secure the assistance of counsel and is not indigent.'

The question before us is whether Jensen is 'indigent' within the meaning of Rule 44.

For decisions in which we construed our pertinent statutes, prior to the adoption of the Rules of Criminal Procedure, see State v. Heasley, 180 N.W.2d 242 (N.D.1970), and State v. Whiteman, 67 N.W.2d 599 (N.D.1954). For one view of standards for determination of eligibility for compensation of counsel from public funds, see ABA Standards Relating to Providing Defense Services, Part VI.

Once indigency is suggested, it is the duty of the court to '. . . go forward to determine whether or not the defendant is indigent . . .' State v. Heasley, supra, at 249.

One can be indigent even though he is not a pauper. Anaya v. Baker, 427 F.2d 73 (10th Cir. 1970); Application of Trevithick, 260 F.Supp. 852 (D.S.D.1966). In the context of the criminal law, the term 'indigent' has a meaning different from the standards used in determining eligibility for...

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