State v. Lind, Cr. N
| Decision Date | 30 July 1982 |
| Docket Number | Cr. N |
| Citation | 322 N.W.2d 826 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Gregory LIND, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Raymond CARROLL, a/k/a Buster Carroll, Defendant and Appellant. os. 791, 792. |
| Court | North Dakota Supreme Court |
Thomas H. Falck, Jr., Asst. State's Atty., Grand Forks, for plaintiff and appellee State.
Bruce E. Bohlman, of Murray, Olson, Larivee, Bohlman & Engen, Grand Forks, for defendant and appellant Lind.
Richard A. Ohlsen, of Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, and C. Michael Winters, New Orleans, La., for defendant and appellant Carroll; argued by C. Michael Winters, New Orleans, La.
Raymond Carroll and Gregory Lind appealed from the respective judgments of conviction for the offense of conspiracy to deliver a controlled substance and also appealed from the denial of their motions for acquittal [Rule 29, N.D.R.Crim.P.], for a new trial [Rule 33, N.D.R.Crim.P.], and for arrest of judgment [Rule 34, N.D.R.Crim.P.]. We affirm.
Carroll and Lind are two of four defendants who were charged with the offense of conspiracy to deliver a controlled substance. The other two defendants, Harry Blevins and Michael Burstad, pleaded guilty to the same charge and the disposition of the criminal charges against them is not part of this appeal. The evidence presented at trial revealed the following series of events:
--An agent of the Drug Enforcement Unit of North Dakota negotiated with Burstad for the purchase of one pound of cocaine. Burstad testified that Lind contacted a person in Florida to supply the cocaine. Because Burstad did not know the person in Florida, Lind advised Burstad of the progress in obtaining and transporting the cocaine to Grand Forks. Burstad provided Lind with almost half of the money that was needed to transport the cocaine from Florida. Burstad testified that he gave the money to Lind, who wired it to a motorcycle shop in Florida so that the transfer of money would look like a payment for motorcycle parts.
--Burstad also testified about the details of transporting the cocaine. Lind told him that two men would arrive in Grand Forks, one arriving a day before the other. When the first man arrived, Burstad found out from Lind that he was staying in Hillsboro. When Burstad later met the man he learned that his name was Harry Blevins.
--Blevins arrived in Grand Forks by airplane on October 18, 1980. At the airport watching the passengers deplane was another agent of the Drug Enforcement Unit. This agent had been requested by the agent negotiating the purchase to watch the airport the evening of October 18, 1980. Burstad had told the agent that he would have to go to the airport the evening of October 18 to pick up the man from Florida who was bringing the cocaine. The agent at the airport was waiting to see if Burstad would meet anyone arriving on the plane. When Burstad did not appear the agent watched the people departing from the plane. According to the agent two people "struck out." One left the terminal in a taxi. This person was subsequently eliminated from suspicion. The other person, later identified as Blevins, went to the airport bar. After some time the agent went into the bar and sat within ten to twelve feet of Blevins. The agent overheard Blevins's conversation and learned that Blevins was having problems finding a vacant motel room in Grand Forks. When the agent heard the barmaid suggest that Blevins call Hillsboro for a room, the agent offered Blevins a ride because the agent had to travel to Fargo that night, anyway. Blevins accepted the offer. On the way to Hillsboro, Blevins offered the agent a substance the agent believed to be cocaine. The conversation during the trip centered around drugs and that Blevins and others were selling drugs in North Dakota. Blevins also told the agent that his partner was flying in the next night. The agent offered to give Blevins a ride to Grand Forks the next day, Sunday, October 19, 1980. During a conversation the next day when the agent stopped in Hillsboro to give Blevins a ride to Grand Forks, Blevins described his partner as a "one-eyed biker." Blevins ultimately refused the agent's offer of a ride to Grand Forks. A third agent, assigned to watch the motel in Hillsboro, saw a person, later identified as Lind, pick up Blevins. The agent followed the van containing Lind and Blevins to Burstad's apartment in Grand Forks.
--Burstad testified that he, Lind, Blevins, and another man were at his apartment on Sunday afternoon, October 19, 1980. Blevins told Burstad that he would not release the package of cocaine until "Buster" arrived. Raymond Carroll's nickname is Buster. Contrary to what Blevins had told the agent during the drive from Grand Forks to Hillsboro the night before, Blevins apparently had the cocaine with him. Burstad testified that at his apartment he was sure that Blevins had the cocaine with him because the room they were sitting in smelled of cocaine.
--Burstad also testified that he knew Buster would be arriving the day after Blevins arrived and on the same flight that Blevins arrived. It was decided that afternoon, Sunday, October 19, 1980, in Burstad's apartment that Lind would go to the airport and pick up Carroll. Burstad had told the agent making the purchase that another man would be arriving on the 8:15 p. m. flight from Chicago. In the meantime, Blevins checked into a motel in Grand Forks, the same motel in which the drug-enforcement agents had set up headquarters. When the 8:15 flight from Chicago arrived, Lind was there to meet Carroll. When Lind and Carroll left the airport they were arrested, advised of their rights, and taken to the Grand Forks County jail. At the jail Lind was "asked" to call Burstad to tell him that Carroll was arrested for possession of marijuana and that they both were being held. When Burstad learned of the arrests he called Blevins and suggested that he pack his bags. However, when the agent called to determine how the deal was progressing, Burstad indicated that the purchase might still be completed even though Lind and Carroll had been arrested. Burstad then left town. He was arrested approximately one month later in Hillsboro when he was concluding a sale of drugs to an agent of the Drug-Enforcement Unit.
--At the county jail the wallets of both Lind and Carroll were searched. In Lind's wallet was found a picture on the back of which was written "Buster," a telephone number, and "Florida, home." Also found in Lind's wallet was a receipt for a Western Union Telegraph money order for $1,530.40 addressed to "Master Cycle, c/o Buster." Greg Lind is listed as the person sending the money order. From Carroll's wallet was taken a card which had written upon it "Greg Lind," a telephone number, and "Grand Forks, N.D."
--Later in the evening of Sunday, October 19, 1980, the agent who had given Blevins a ride to Hillsboro called Blevins at his room in the Grand Forks motel. The agent invited Blevins to the agent's room for a drink. When Blevins entered the room he was arrested. The agent asked Blevins if he could search Blevins's room, and Blevins consented. A search of Blevins's room produced approximately five ounces of cocaine.
--At trial both Blevins and Burstad testified, as did the agents of the Drug Enforcement Unit who were involved in the negotiation of the sale and the arrests of all of the defendants. Lind and Carroll were tried jointly and each was found guilty by a jury of conspiracy to deliver a controlled substance. Although each has appealed from his separate judgment of conviction, many of the issues raised by Carroll and Lind are identical. Therefore, we will address their appeals in one opinion.
The first issue was raised by Lind alone. He argues that denial of his motion for a separate trial, pursuant to Rule 14, N.D.R.Crim.P., was error. Rule 14 states:
"If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may ... grant a severance of defendants or provide whatever relief justice requires...."
The purpose of Rule 14 is Explanatory Note, Rule 14, N.D.R.Crim.P. We stated in State v. Erickson, 231 N.W.2d 758, 763 (N.D.1975), that we do not set aside a trial court's refusal to grant a separate trial unless it is shown that there has been a clear abuse of discretion. In Erickson and State v. Whiteman, 79 N.W.2d 528 (N.D.1956), where the defendant's request in each case for a separate trial was refused, neither defendant made a showing that he would be prejudiced by a joint trial nor had he made a showing that a codefendant would testify for him if a separate trial were granted. Erickson, supra, 231 N.W.2d at 763.
When Lind made his motion to sever the trials there were four defendants. When the trial judge denied the motion one codefendant had pleaded guilty. Only two defendants were tried jointly.
Lind has done more here than merely state that the trial must be separated in order to prevent prejudice. Lind argued that the jury would not be able to separate the evidence against each of the defendants. He also argued that there would be a spill-over effect of evidence submitted against one defendant upon the other defendant. These arguments had more weight when there were four defendants and there...
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