State v. Loughead, 20060160.

• Citation: 2007 ND 16,726 N.W.2d 859
• Decision Date: 01 February 2007
• Docket Number: No. 20060160.,20060160.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Kenneth Robert LOUGHEAD, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

726 N.W.2d 859

2007 ND 16

STATE of North Dakota, Plaintiff and Appellee v. Kenneth Robert LOUGHEAD, Defendant and Appellant.

No. 20060160.

Supreme Court of North Dakota.

February 1, 2007.

Robin Thompson Gordon (on brief), State's Attorney, Drake, ND, for plaintiff and appellee.

Kenneth R. Loughead (on brief), pro se, defendant and appellant.

KAPSNER, Justice.

[¶ 1] Kenneth Loughead appeals from a judgment entered after a bench trial for failing to properly tag a big game animal. We conclude Loughead's constitutional rights were not violated, and he did not receive ineffective assistance of counsel. We affirm the district court.

I

[¶ 2] In November 2005, Game Warden Ken Skuza received an anonymous RAP (Report All Poaching) tip concerning a deer that was shot and not immediately tagged in McHenry County. The tipster noted the deer was located in a red Dodge pickup belonging to Loughead's hunting partner. Skuza located the pickup and approached several men standing near it. Skuza asked the men who owned the pickup. Once the owner was identified, Skuza asked him about the untagged deer. The owner informed Skuza that Loughead shot the deer, and the carcass was in the truck owner's quonset. Upon viewing the untagged deer, the wardens seized Loughead's unused deer tag and the rifle used to take the animal.

[¶ 3] An attorney represented Loughead in pretrial proceedings. The attorney filed several motions on Loughead's behalf, including motions to dismiss based on prejudice and bias; to return the seized rifle; to reduce the amount of bond, to produce copies of discovery material; and to establish Loughead's membership in the Little Shell Band of North America. The district court denied Loughead's motions. After the pretrial rulings, the attorney informed the court that Loughead "want[ed] to represent himself pro se." After a colloquy about self-representation, the court allowed Loughead to represent himself. During the bench trial, Loughead cross-examined the State's witnesses and made numerous objections to the manner in which the State presented evidence. Loughead also made claims against the government, including evidence tampering. In his defense, Loughead presented no evidence or witnesses and did not testify at his trial. At the conclusion of the bench trial, the court convicted Loughead.

[¶ 4] Loughead appealed, but then filed a motion to arrest judgment under N.D.R.Crim.P. 34 on the grounds that the court and prosecutor "exceeded their authority and [gave him] a severely harsh punishment without justification." Loughead also filed an application that this Court treated as an application for post-conviction relief challenging only the severity of his sentence. We temporarily remanded the case to the district court for the limited purpose of considering Loughead's pending motions. The district court denied Loughead's motion to arrest judgment and post-conviction relief application, stating the "sentence, including all of the terms and conditions of [Loughead's] probation is well within the minimum and maximum amount which the Court could impose. The sentence is typical . . . and the Court does not find that it is cruel and unusual." Loughead appealed from the judgment, the denial of his motion to arrest judgment, and the denial of his motion for post-conviction relief.

II

[¶ 5] On appeal, to the extent we can discern his issues, Loughead argues he was denied the right to confront and cross examine witnesses against him; he was not read his Miranda rights; he received the ineffective assistance of counsel; the evidence was insufficient to support his conviction; the State vindictively prosecuted him; the State improperly examined witnesses at trial; the State failed to disclose discovery material; and the sentence was harsh and cruel. Essentially, Loughead raises Fifth, Sixth, Eighth, and Fourteenth Amendment claims. The State argues Loughead failed to adequately present this case for appellate review; the handling of the investigation, prosecution, and trial against Loughead was legally authorized; Loughead received adequate assistance of counsel; and the pronounced sentence was legally authorized.

III

[¶ 6] Loughead claims a litany of his constitutional rights were violated by the manner in which he was investigated and prosecuted. His primary constitutional claim is that the State failed to provide him with the name of the anonymous RAP tipster who indicated there was an untagged deer in the bed of Loughead's hunting partner's vehicle. With respect to this concern, Loughead claims the failure to disclose the identity of this tipster violated his Fifth Amendment due process rights and his confrontation rights. We conclude his claims are without merit.

A

[¶ 7] Loughead's concern with the ability to confront and cross-examine the RAP tipster can be characterized as a Sixth Amendment Confrontation Clause argument. "The Sixth Amendment guarantees a criminal defendant the right `to be confronted with the witnesses against him' in all criminal prosecutions." City of Fargo v. Komad, 2006 ND 177, ¶ 5, 720 N.W.2d 619 (quoting U.S. Const. Amend. VI; City of Mandan v. Baer, 1998 ND 101, ¶ 8, 578 N.W.2d 559). The denial of a criminal defendant's Sixth Amendment right to confront witnesses against him violates due process of law under the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The standard of review for constitutional issues is de novo. State v. Campbell, 2006 ND 168, ¶ 6, 719 N.W.2d 374, cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (U.S. Jan. 22, 2007) (No. 06-564); State v. Blue, 2006 ND 134, ¶ 6, 717 N.W.2d 558.

[¶ 8] However, Loughead misconstrues the anonymous tipster's role in his criminal trial. The RAP tipster did not "testify" against Loughead for Sixth Amendment purposes. A person does not have the constitutional right to confront a mere informer who does not testify against him. See Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court stated:

The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to "witnesses" against the accused-in other words, those who "bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Ibid.

Crawford, 541 U.S. at 51, 124 S.Ct. 1354. The information provided by the anonymous tipster was not "testimony." The tipster did not testify at any pretrial or trial proceedings, and the information provided by the tipster was not a solemn declaration or affirmation used to establish or prove some fact. See id. The tipster merely provided information about illegal poaching to the Game and Fish department, which warranted further investigation. The game wardens did not approach Loughead until after speaking with the other members of his hunting party and obtaining specific information that Loughead had not immediately tagged a deer he had killed. A person does not have the constitutional right to confront a mere informer who does not testify against him. See id.

[¶ 9] Additionally, the State is not required to provide information to Loughead which is not in its possession, custody, or control. See City of Grand Forks v. Scialdone, 2005 ND 24, ¶ 8, 691 N.W.2d 198; N.D.R.Crim.P. 16. In this case, the RAP tipster was anonymous—the State did not have the tipster's identity. The State did not intend, nor was it possible, to call the tipster to testify without the tipster first disclosing his or her identity. Even if the State had the tipster's name, N.D.R.Ev. 509(a) creates a limited privilege against disclosure of the tipster's identity. Specifically, Rule 509(a) provides:

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law. . . .

This informer's privilege is unavailable in several instances, none of which apply here. N.D.R.Ev. 509(c), cmt. The anonymous tipster was a mere informer in this case. The State is not required to disclose the identity of a mere informer. Loughead's Confrontation Clause argument is without merit.

B

[¶ 10] Loughead claims his Miranda rights were violated when Skuza approached him and questioned him about the untagged deer. We recently explained Miranda's requirements in State v. Genre, 2006 ND 77, ¶¶ 23-24, 712 N.W.2d 624, where we stated:

An officer is required to administer the Miranda warning when a person is subject to custodial interrogation. State v. Martin, 543 N.W.2d 224, 226-27 (N.D. 1996). A suspect is in custody when there is a formal arrest or restraint on the suspect's freedom of movement to the degree associated with a formal arrest. Id. at 226. When determining if a person is subject to custodial interrogation the court examines all circumstances surrounding the interrogation and considers what a "`reasonable man in the suspect's position would have understood his situation.'" Id. [at 227] (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Whether a suspect is "in custody" and entitled to a Miranda warning is a mixed question of law and fact and, therefore, is fully reviewable on appeal. Martin, at 226.

An individual detained during a routine traffic stop generally is not "in custody" for the purposes of Miranda. See Berkemer, 468 U.S. at 437-38, 104 S.Ct. 3138; State v. Fasching, 453 N.W.2d 761, 763-64 (N.D.1990). Likewise, ordering a driver out of the vehicle for officer safety or to issue a citation is reasonable and does not result in a custodial interrogation. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985) (ordering...