State v. Lefthand

• Decision Date: 27 October 1994
• Docket Number: Cr. N
• Citation: 523 N.W.2d 63
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael Shane LEFTHAND, Defendant and Appellant. o. 930362.
• Court: North Dakota Supreme Court

Page 63

523 N.W.2d 63

STATE of North Dakota, Plaintiff and Appellee, v. Michael Shane LEFTHAND, Defendant and Appellant.

Cr. No. 930362.

Supreme Court of North Dakota.

Oct. 27, 1994.

Leslie Deborah Johnson, Fargo, for defendant and appellant; argued by Alisha L. Ankers.

David D. Hagler, Asst. State's Atty., Fargo, for plaintiff and appellee.

SANDSTROM, Justice.

Michael Lefthand appeals from a judgment of conviction following a guilty verdict for class AA felony murder. He argues: (1) statements he made while jailed in Minnesota should have been excluded at trial, (2) hearsay testimony that a third party committed the murder should have been allowed, and (3) ineffective assistance of counsel. We affirm the judgment.

I

On November 12, 1985, Harlan Christensen was murdered in downtown Fargo. According to trial testimony, a group of men including the defendant, Michael Lefthand, accompanied Christensen to a liquor store on the night he was beaten to death. Charles Bush, Eugene Littlewind, and Kenneth TeJohn testified they were at the scene and saw Lefthand murder Christensen.

In October 1990, prior to being charged in North Dakota, Lefthand was arrested in Minnesota for two murders in that state. On October 7, 1990, Lefthand received court-appointed counsel at his arraignment on the Minnesota charges. On October 24, Lefthand requested to speak with law enforcement officers about the North Dakota murder. Counsel was not notified. During interrogations involving the North Dakota case, Lefthand orally and in writing waived his Miranda rights. During questioning, officers gave Lefthand cigarettes, pop, and sweets. The officers testified this was done as common courtesy and to provide food if questioning extended over the dinner hour. On November 6, Lefthand signed a written confession that he killed Christensen. On November 17, Lefthand requested to speak to officers, and during that meeting, recanted his confession.

The State charged Lefthand with Christensen's murder on November 28. After the jury found Lefthand guilty, a judgment of conviction was entered for murder.

The trial court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Sec. 27-05-06(1). This Court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 29-28-06(2). The appeal is timely under Rule 4(b), N.D.R.App.P.

II

A

Lefthand argues statements he made while jailed in Minnesota on separate charges were incorrectly admitted. The trial court denied Lefthand's motion to suppress, finding no violation of his constitutional rights. A trial court's conclusions of law are fully reviewable by this Court. City of Mandan v. Jewett, 517 N.W.2d 640, 641 (N.D.1994). A trial court's findings of fact on a motion to suppress will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. State v. Murray, 510 N.W.2d 107, 109 (N.D.1994).

The Fifth Amendment to the United States Constitution provides the privilege against self-incrimination. The United States Supreme Court has recognized a number of protective rights, including the right to have counsel present, to counteract the inherent pressures of custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once having asserted the right to counsel for interrogation, the accused may not be reapproached regarding any offense unless counsel is present. McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158, 168 (1991). Thus, the Fifth Amendment protections are not "offense-specific." McNeil. The Sixth Amendment recognizes the defendant's right to assistance of counsel in all criminal prosecutions. Unlike the Fifth Amendment right, however, the Sixth Amendment right is offense-specific.

"It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' "

McNeil, 501 U.S. at 175, 111 S.Ct. at 2207, 115 L.Ed.2d at 166-67 (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146, 154 (1984)).

Lefthand claims the appointment of counsel at his arraignment on Minnesota charges invoked his Fifth Amendment right to counsel, which could not be waived in subsequent interrogation. Once the right attached, he says, he could not be approached about the North Dakota case. Lefthand misconstrues the distinction between the Fifth and Sixth Amendments. The invoking of his Sixth Amendment right to counsel, as a matter of fact, did not invoke his Fifth Amendment right. McNeil, 501 U.S. at 178, 111 S.Ct. at 2209, 115 L.Ed.2d at 168. "To find that the defendant invoked his Fifth Amendment right to counsel on the present charges merely by requesting the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request." McNeil, 501 U.S. at 178-79, 111 S.Ct. at 2209, 115 L.Ed.2d at 169. Further, Lefthand explicitly waived his Miranda rights at each questioning on the North Dakota case, the first opportunity he had to invoke them.

Lefthand argues appointment of counsel for him at the arraignment, barred subsequent contact by the police.

The appointment of counsel on the Minnesota charges does not invoke Lefthand's Sixth Amendment right to counsel for the North Dakota murder. Because the Sixth Amendment right is "offense-specific," it attached for those matters which Lefthand was charged in Minnesota. At the time of questioning on the North Dakota murder, Lefthand had not been charged with the death of Christensen. The Sixth Amendment, therefore, posed no bar to the admission of statements in this case. See McNeil, 501 U.S. at 176, 111 S.Ct. at 2208, 115 L.Ed.2d at 167.

Relying on Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), Lefthand next argues the statements, even if admissible, should not have been introduced as substantive evidence. The question in Harvey was whether the prosecution could still use a statement, taken in violation of the defendant's Sixth Amendment right to counsel, to impeach his false testimony. Harvey, 494 U.S. at 345-46, 110 S.Ct. at 1177-78, 108 L.Ed.2d at 299. The Court held it may. Harvey, 494 U.S. at 346, 110 S.Ct. at 1178, 108 L.Ed.2d at 299. Nothing in that case limited the use of statements validly obtained, as in this case, as substantive evidence. On the contrary, even statements illegally obtained could be introduced, though only to impeach. Harvey, 494 U.S. at 351, 110 S.Ct. at 1180-81, 108 L.Ed.2d at 302-03.

B

Lefthand contends his admissions were coerced and should not have been admitted. The trial court found the statements were voluntarily given. "Because voluntariness of a confession depends upon questions of fact to be resolved by the trial court, and because the trial court is in a superior position to judge credibility and weight, we show great deference to the trial court's determination of voluntariness." State v. Taillon, 470 N.W.2d 226, 228 (N.D.1991). We will reverse the decision only if it is contrary to the manifest weight of the evidence. Taillon.

The voluntariness of a confession is found using the totality-of-the-circumstances test. Taillon. "The inquiry focuses on two elements: (1) the characteristics and condition of the accused at the time of the confession and (2) the details of the setting in which the confession was obtained. No one factor is determinative." Taillon (citations omitted). The first element, the characteristics and condition of the accused, includes the age, sex, race, education level, physical or mental condition, and prior experience with police. State v. Pickar, 453 N.W.2d 783, 785 (N.D.1990). Lefthand has been active in his defense, and at oral argument his lawyer conceded he is "not a stupid individual by any means." Lefthand did not present evidence he was physically or mentally unable to deal with police interrogation.

The second element of voluntariness includes the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused's powers of resistance or self-control. Taillon at 229. The trial court did not find Lefthand's Minnesota detention, for less than one month prior to questioning on Christensen's murder, coercive. Lefthand also argues law enforcement officials coerced him into confessing by providing cigarettes, pop, and sugary treats while questioning him. Lefthand does not argue he was not provided three meals a day. In fact, officials testified the snacks were given in case the questioning extended over the dinner hour. Lefthand's novel theory is not persuasive. The trial court's finding of voluntariness is supported by the evidence.

III

The trial court denied testimony tendered on Lefthand's behalf. Lefthand's private detective was to testify on statements Charles Bush allegedly made to a third party concerning Christensen's murder. According to the private detective, in the offer of proof, Bush told the third party that he was the person responsible for Christensen's death. The third party allegedly related these statements to the private detective. The State objected to the testimony as inadmissible hearsay. The trial court denied the private detective's testimony, holding the statements could not be introduced as impeachment evidence against Bush. Lefthand claims the testimony should have been admitted. The evidence is a classic example of hearsay within hearsay. Under Rule 805, N.D.R.Ev., hearsay is not excluded if each part of the combined statements (Bush to the third party, the third party to the private detective) conforms with an...