State v. Keener

• Decision Date: 28 August 2008
• Docket Number: No. 20070265.,No. 20080016.,No. 20070252.,20070252.,20080016.,20070265.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Laurie Marie KEENER, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Asa Kim Keener, Defendant and Appellant.
• Court: North Dakota Supreme Court

755 N.W.2d 462

2008 ND 156

STATE of North Dakota, Plaintiff and Appellee v. Laurie Marie KEENER, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee v. Asa Kim Keener, Defendant and Appellant.

No. 20070252.

No. 20080016.

No. 20070265.

Supreme Court of North Dakota.

August 28, 2008.

Rozanna Christine Larson, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Robert Wade Martin, North Dakota Public Defenders' Office, Minot, N.D., for defendant and appellant Laurie Marie Keener.

Thomas M. Tuntland, Mandan, N.D., for defendant and appellant Asa Kim Keener.

VANDE WALLE, Chief Justice.

[¶ 1] Laurie and Asa Keener appealed criminal judgments entered after a jury found each of them guilty of two counts of criminal conspiracy. Laurie Keener also appealed an amended criminal judgment entered after the district court ordered restitution. We affirm the criminal judgments and amended criminal judgment, concluding the record on direct appeal is inadequate to permit review of the Keeners' claim of ineffective assistance of counsel, the district court did not commit obvious error in admitting deposition testimony of Marvin and Florence Whisker, the Keeners waived their right to a preliminary hearing on an amended charge for a class B felony of conspiracy to exploit a vulnerable adult, and the district court did not abuse its discretion in ordering Laurie Keener to make restitution to the victims.

I

[¶ 2] In September 2005, Laurie and Asa Keener were each charged with conspiracy to exploit a vulnerable adult, a class B felony, and conspiracy to commit theft of property, a class B felony. They were accused of conspiring to steal money from Laurie Keener's elderly parents, Marvin and Florence Whisker. Laurie and Asa Keener were represented by the same attorney.

[¶ 3] At an October 2005, preliminary hearing, the defendants called Marvin Whisker as a witness, and questioned him about the circumstances of the alleged crimes. The district court found there was probable cause for conspiracy to commit theft of property; however, the court concluded there was not probable cause to charge the Keeners with a class B felony for conspiracy to exploit a vulnerable adult, but there was probable cause to charge them with a class C felony for conspiracy to exploit a vulnerable adult.

[¶ 4] Asa Keener requested the court order Marvin Whisker be deposed with the deposition to be used for discovery purposes and at trial. The court granted the request and entered an order stating the request was made to perpetuate testimony. Marvin Whisker was deposed on December 12, 2005. The record in Laurie Keener's case does not reflect that she received notice of the deposition, and she did not personally attend the deposition.

[¶ 5] The court also granted the State's motion to take Florence Whisker's deposition to perpetuate testimony, and she was deposed on January 10, 2006, with Laurie and Asa Keener both present. The deposition was recorded by videotape and by a court reporter. During the deposition, the Keeners' attorney objected and asked the court to terminate the deposition because Florence Whisker's responses were unintelligible and she had to have questions asked several times. The parties and Florence Whisker's guardian advised the court of the situation, and the court denied the request to terminate the deposition.

[¶ 6] In November 2006, the State moved to amend the information, and an amended information was filed. The amended information charged Laurie and Asa Keener with conspiracy to exploit a vulnerable adult, a class B felony, and conspiracy to commit theft of property, a class B felony. The Keeners did not respond to the motion. On January 29, 2007, the court held a pretrial conference and arraignments on the amended information. The court advised the Keeners of their rights, and advised them of the maximum penalties associated with the charges, including that both charges were class B felonies. The Keeners, with counsel, waived reading of the amended information, did not object to the amended information, and pled not guilty to the charges.

[¶ 7] During the jury trial, Marvin and Florence Whisker appeared as witnesses, but the court concluded they were both unavailable to testify because they both suffer from existing physical or mental illness or infirmity. The court allowed the State to read Marvin Whisker's deposition testimony to the jury, and allowed the State to play an edited version of Florence Whisker's videotaped deposition. The Keeners' attorney objected to the admission of Marvin Whisker's testimony arguing there was not notice that the deposition was to perpetuate testimony. The court permitted the transcript to be read after finding the court's order for the deposition stated it was to perpetuate testimony. The jury found the Keeners guilty of both charges.

[¶ 8] After the Keeners were sentenced, a separate restitution hearing was held, at which the Keeners were represented by separate counsel. The court ordered the Keeners to pay $109,921.03 in restitution, and their criminal judgments were amended to include the ordered restitution.

II

[¶ 9] Represented by separate counsel on appeal, the Keeners argue they were denied effective assistance of counsel because their trial attorney had a conflict of interest and divided loyalties. Asa Keener claims his attorney could not effectively pursue a viable defense to the conspiracy charges because pursuing that defense would have implicated Laurie Keener, who was also his attorney's client. Asa Keener contends his attorney should have argued he was not guilty of conspiracy because Laurie Keener made the financial arrangements with the Whiskers, Laurie Keener led him to believe her parents promised to reimburse their expenses and had authorized them to receive significant amounts of money for the Whiskers' care, and Laurie Keener duped or mislead him. Laurie Keener also argues she was denied effective assistance of counsel because her attorney had divided loyalties, however, she does not agree that she mislead or duped Asa Keener.

[¶ 10] The Sixth Amendment of the United States Constitution guarantees a defendant effective assistance of counsel, which includes assistance free from conflicts of interest. See Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). We generally assess ineffective assistance of counsel claims using the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a defendant to prove "(1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance." State v. Schweitzer, 2007 ND 122, ¶ 23, 735 N.W.2d 873 (quoting Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602). However, unlike other Sixth Amendment ineffective assistance of counsel cases, which apply the Strickland standard, in cases where the defendant alleges there was a conflict of interest due to multiple or joint representation, the defendant does not have to show there is a reasonable probability the result of the proceeding would have been different but for the counsel's unprofessional errors. Mickens v. Taylor, 535 U.S. 162, 166-68, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). A defendant arguing ineffective assistance of counsel because of a conflict of interest caused by multiple or joint representation, who did not object to the joint representation, must show there was an actual conflict that adversely affected counsel's performance. Id. at 173-74, 122 S.Ct. 1237; Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

[¶ 11] The Keeners argue the district court did not comply with N.D.R.Crim.P. 44. In cases of joint representation, N.D.R.Crim.P. 44(b)(2) requires the court to inquire about the propriety of joint representation to ensure the defendants understand the possible dangers:

The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel.

This provision of N.D.R.Crim.P. 44 became effective on June 1, 2006. When rules of procedure are amended or new rules are adopted they generally apply to pending actions, unless the application would not be feasible or would cause an injustice. In re T.F., 2004 ND 126, ¶ 8, 681 N.W.2d 786. Rule 44(b)(2), N.D.R.Crim.P., was not effective when the Keeners were originally arraigned, however, it became effective while the case was pending and was effective when the Keeners were arraigned on the amended information. The district court did not inquire about the propriety of the joint representation during any of the proceedings, and therefore the court did not comply with N.D.R.Crim.P. 44.

[¶ 12] Rule 44, N.D.R.Crim.P., is derived from Fed.R.Crim.P. 44, and we may look to the federal courts' interpretation of the federal rule as a guide in interpreting our rule. See In re B.B., 2007 ND 115, ¶ 7, 735 N.W.2d 855. The Advisory Committee comments to the federal rule state that a failure to comply with the rule by itself does not constitute reversible error. Federal courts have consistently held that the failure to comply with Fed. R.Crim.P. 44 by itself does not require reversal. See United States v. Lachman, 521 F.3d 12, 21 (1st Cir.2008); United States v. Finlay, 55 F.3d 1410, 1415 (9th Cir.1995); United States v. Mooney, 769 F.2d 496, 499 (8th Cir.1985); United States v. Alvarez, 696 F.2d 1307, 1309 (11th Cir.1983). We conclude a court's failure to advise co-defendants of the dangers of joint representation, as now required by N.D.R.Crim.P. 44(b)(2), does not, by itself, require reversal; rather there...