State v. Kunze

• Decision Date: 30 August 2007
• Docket Number: No. 20060377.,20060377.
• Citation: 738 N.W.2d 472,2007 ND 143
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. David KUNZE, Defendant and Appellant.
• Court: North Dakota Supreme Court

738 N.W.2d 472

2007 ND 143

STATE of North Dakota, Plaintiff and Appellee, v. David KUNZE, Defendant and Appellant.

No. 20060377.

Supreme Court of North Dakota.

August 30, 2007.

Brandi Sasse Russell, Assistant State's Attorney, Bismarck, for plaintiff and appellee.

Todd A. Schwarz, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] David Kunze appealed from a criminal judgment entered after a jury found him guilty of the offense of assaulting a correctional officer. Kunze argues his constitutional right to a fair and impartial trial was violated when the district court ordered that he should be physically restrained with handcuffs and a waist restraining belt during his jury trial. We conclude the district court did not abuse its discretion when it ordered that Kunze be restrained in this manner during his jury trial and we affirm.

I

[¶ 2] The State charged Kunze with assaulting a correctional officer after an incident which occurred at the North Dakota State Penitentiary on August 12, 2005. Kunze was an inmate confined in a single-person cell in the administrative segregation unit at the penitentiary. At about 1:00 p.m. that day, four correctional officers conducted a shakedown of Kunze's cell. During the shakedown, the officers found and confiscated two religious magazines in his possession that belonged to another inmate, which was a violation of penitentiary policy. Kunze became angry and upset. A scuffle occurred, and Officer James Sayler suffered an injury to his hand which drew blood. According to the State, Kunze became verbally abusive, lunged at the officer, and bit his hand. Kunze denied that he assaulted the officer.

[¶ 3] Prior to trial, the State requested that Kunze be physically restrained during his trial. The district court considered the State's request at a hearing on the morning of Kunze's jury trial. The State argued restraints were justified for several reasons. The State emphasized the nature of the charge against Kunze, which involved committing a violent act against a correctional officer. The State also pointed to Kunze's history of assaults and escapes from custody. The State presented the district court with the following information about Kunze's record:

The record consists of basically back to '64 a number of assaults. He has an escape in '64, number of burglaries, an escape in 1970, possession of a firearm in 1972, another escape after conviction in 1981, many more counts of burglary. Another escape in 1991, '92 escape. He has many escapes and burglaries and counts of theft.

Basically, he does pose a flight risk based on the number of escapes he has. But also the records that I received from the penitentiary as far as the amount of assaults and different nature of—the violent nature he has at the penitentiary, is just a catalog of basically write-ups and violations of threatened staff, assaulted staff. It is—there is just several—several violations of that type of behavior.

The State also informed the court that Kunze had a record of "probably more than 50 violations of threats and assaults to guards and to [sic] just making threats to other individuals in the penitentiary."

[¶ 4] Furthermore, the State argued restraints were justified because of the manner in which Kunze was handled by law enforcement officers during transport and at the penitentiary. The State called Deputy Brad Banker to testify about his experience transporting Kunze. Deputy Banker stated that he had transported Kunze three times, and all three times Kunze was restrained using leg irons and belly chains. During one of these transports, Kunze was further restrained with shackles to two D-rings on the floor and wall of the transport van. Deputy Banker recounted this was the first time he had transported a defendant that way in his twenty-nine years of employment. When the State asked why Kunze was handled that way, Deputy Banker responded, "Basically, because of the information we've received from the penitentiary, his past records on escapes. His assaultive—alleged assaultive behavior towards guards. And they will not move Mr. Kunze or let him out of the penitentiary unless he is shackled that way."

[¶ 5] According to Deputy Banker, Kunze was always moved with at least three officers, two to hold him and one to act as a "chase person." He stated Kunze was in administrative segregation at the penitentiary and had no contact with anybody else because of his behavior. Deputy Banker requested that Kunze be restrained with belly chains and leg irons "for safety for the Court, the people and Mr. Kunze." On cross-examination, Deputy Banker stated that Kunze had not been violent during the three times he transported Kunze. He also testified that Kunze did not cause any problems when he was unshackled in order to change into civilian clothing for his trial.

[¶ 6] In response to the State's evidence, Kunze argued he should not be restrained because it would tell the jury that the trial was a "foregone conclusion." Kunze claimed he had every incentive not to get violent in the courtroom because that would result in another charge. Kunze's counsel stated that the defendant had assured him there would be no problems. Kunze also spoke on his own behalf and claimed that he never attacked or threatened anybody at the penitentiary.

[¶ 7] After considering the evidence and the parties' arguments, the district court granted the State's request to restrain Kunze during his jury trial. The district court had the following exchange with Kunze and Deputy Banker as it announced its ruling:

THE COURT: It is the order of the Court in this matter that the leg restraints I'll cause to be removed, but the hand restraints and the waist retaining [sic] belt will be continued. Is there any reason why that cannot be facilitated so—

THE DEFENDANT KUNZE: Why don't you leave the leg restraints on so I can write. I got to be able to participate in the trial.

THE COURT: You'll be able to write. You'll have a tablet and you'll have a pen. Any reason that cannot be accomplished?

DEPUTY BANKER: No, we can do that.

THE COURT: And the restraints for the hands of the defendant will be in place, the restraining belt underneath the sweater so to as to minimize the appearance of the same.

The district court did not provide any other reasoning for its decision to restrain Kunze with handcuffs and a waist restraining belt.

[¶ 8] After a brief ten-minute recess, Kunze's jury trial began. The State presented testimony from the four correctional officers involved in the incident with Kunze. Officer James Sayler testified Kunze became very upset and starting yelling obscenities when the magazines were confiscated. According to Officer Sayler, Kunze started to come at him aggressively, so he began pushing Kunze back into his cell, with his hands on Kunze's shoulder and chest. At that point, Officer Sayler claimed, Kunze turned his head, grazed Officer Sayler's hand with his teeth, and kicked Officer Sayler in the leg. Officer Sayler testified Kunze's bite broke the skin and drew blood on his two middle knuckles.

[¶ 9] The testimony of the three other officers generally supported Officer Sayler's version of events. Officer Shawn Fode stated that he saw Kunze's teeth going toward Officer Sayler's hand, but that he did not see the actual tearing of the skin. Officer Jason Brazell testified he saw Kunze's head come down toward Officer Sayler's hand in a lunging motion. Officer Patrick Ross recounted that he saw Kunze bite the top of Officer Sayler's hand and kick his leg.

[¶ 10] After the State rested its case, Kunze presented evidence in his defense. He called James Charles Thompson III, who was an inmate in the penitentiary at the time of the incident, to contradict the officers' testimony. Thompson testified he was in a nearby cell and witnessed part of the scuffle. According to Thompson, Kunze did not have his false teeth in his mouth on either the top or the bottom when he allegedly bit Officer Sayler. He stated the officers began roughing Kunze up while he was still handcuffed to the bars outside his cell. However, he could not see into Kunze's cell so he had no direct knowledge about whether Kunze bit or kicked Officer Sayler.

[¶ 11] Additionally, Kunze testified on his own behalf. Kunze claimed that he never resisted going back into the cell, and that Officer Sayler shoved him back towards it. When Officer Sayler put his hands near Kunze's face, Kunze raised his cuffed hands to block him. At that point, Officer Sayler pulled his hands back, and the officers slammed the door. Kunze claimed that he did not have his teeth in at the time of the scuffle, and that the marks on Officer Sayler's hand could have occurred when Kunze raised his cuffed hands to defend himself.

[¶ 12] After considering the evidence, the jury convicted Kunze of the offense of assaulting a correctional officer.

II

[¶ 13] Kunze argues his constitutional right to a fair and impartial trial was violated when the district court required him to be physically restrained with handcuffs and a waist restraining belt during his jury trial.

[¶ 14] We review a district court's decision about whether to physically restrain a defendant during court proceedings for an abuse of discretion. See In re R.W.S., 2007 ND 37, ¶ 1, 728 N.W.2d 326; see also Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); United States v. Mahasin, 442 F.3d 687, 691 (8th Cir.2006). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. Meier v. Said, 2007 ND 18, ¶ 20, 726 N.W.2d 852.

[¶ 15] This Court recently considered the use of physical restraints in the courtroom in In re R.W.S., 2007 ND 37, 728 N.W.2d 326. Although In re R.W.S. involved a juvenile who was tried before the court, see id. at ¶ 2, rather than a criminal defendant tried...