State v. Mehralian

• Decision Date: 30 January 1981
• Docket Number: Cr. N
• Citation: 301 N.W.2d 409
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ali MEHRALIAN, Defendant and Appellant. o. 723.
• Court: North Dakota Supreme Court

Page 409

301 N.W.2d 409

STATE of North Dakota, Plaintiff and Appellee, v. Ali MEHRALIAN, Defendant and Appellant.

Cr. No. 723.

Supreme Court of North Dakota.

Jan. 30, 1981.

Thomas M. Disselhorst, Bismarck, for defendant and appellant; argued by Disselhorst and by Duane G. Arndt, Minneapolis, Minn.

Owen K. Mehrer, State's Atty., Dickinson, for plaintiff and appellee.

PAULSON, Justice.

Ali Mehralian ("Mehralian") appeals from a judgment of conviction entered against him by the Stark County Court of Increased Jurisdiction on April 15, 1980. On November 26, 1979, and on December 6, 1979, criminal complaints alleging the commission of the crime of criminal trespass were filed against Mehralian. These cases were later consolidated for trial. A 12-member jury convicted Mehralian on one charge of criminal trespass, under § 12.1-22-03(2) of the North Dakota Century Code, but found Mehralian not guilty on the second charge of criminal trespass. We reverse the judgment of conviction and remand the case for a new trial.

Ali Mehralian and Jeana Kay Swett ("Jeana") were married on August 25, 1978, in Minneapolis, Minnesota, while both were students at the University of Minnesota. Jeana's parents, Herbert Darwin Swett ("Mr. Swett") and Marjorie Ann Swett ("Mrs. Swett") were not informed of the marriage until April of 1979, when difficulties arose in the relationship between Mehralian and Jeana. Jeana returned to her parents' home in August of 1979 and commenced divorce proceedings. Because of continued difficulties in the relationship, Jeana obtained a restraining order on October 3, 1979, which prohibited Mehralian from interfering in Jeana's activities. Despite these difficulties, Jeana and Mehralian continued to see each other, and Jeana stayed at Mehralian's apartment on several occasions. Sharon Swett ("Sharon"), Jeana's sister, rented an apartment in Dickinson while she worked for various seismograph companies. Sharon had not given Mehralian permission to stay in her apartment, but Mrs. Swett discovered that Mehralian was living in the apartment while Sharon worked in areas outside of Dickinson. On September 8, 1979, Mrs. Swett observed Mehralian sleeping in Sharon's apartment. The relationship between Mehralian and Mr. Swett was strained because he disapproved of Jeana's marriage to Mehralian. On the morning of November 20, 1979, Mehralian is alleged to have entered the home of the Swett family in order to see Jeana. On November 26, 1979, Mr. Swett signed a criminal complaint which stated that Mehralian had committed the crime of criminal trespass under § 12.1-22-03(2), N.D.C.C. A second complaint alleging that Mehralian had committed the crime of criminal trespass was signed by Sharon on December 6, 1979. This second charge was later consolidated with the original charge and the cases were tried on April 1, 1980. The jury found Mehralian guilty of criminal trespass on the charge lodged against Mehralian by Mr. Swett but found him not guilty on the charge lodged against Mehralian by Sharon.

The trial court determined that Mehralian was unable to employ counsel due to his financial circumstances; therefore, the court appointed an attorney for Mehralian on December 5, 1979. The attorney submitted motions pursuant to Rule 16 of the North Dakota Rules of Criminal Procedure for a court order directing the State to produce discovery material. Depositions were taken of Mr. Swett, Jeana, and Sharon, pursuant to Rule 15(g), N.D.R.Crim.P. Mehralian's apparent theory at trial and in part on this appeal is that he was privileged to enter the home of Mr. and Mrs. Swett.

During voir dire of the jury preceding the trial, the assistant state's attorney engaged in the following questioning of a prospective juror:

"MR. MAUS: Have you ever heard of the Koran? Do you know what that is?

"WILLIAM MASSEY: I don't think so, no.

"MR. MAUS: The bible of the Muslim faith.

"WILLIAM MASSEY: Okay.

"MR. MAUS: Have you ever heard the phrase, "Death to the infidel"? Have you ever heard that phrase?

"WILLIAM MASSEY: I believe so.

"MR. MAUS: What would that mean to you?

"MR. BURESH (defendant's attorney): Objection, Your Honor. The questions are highly prejudicial.

"MR. MAUS: I think, Your Honor, the testimony is going to bring out that phrase in the trial, and I think the understanding of the witnesses as to what that means is relevant.

"THE COURT: I'll overrule the objection."

Mr. Swett testified during the trial as follows:

"Q (by assistant state's attorney, Mr. Maus): Do you know what the Koran is?

"A Yes.

"Q Would you tell us, please, what that is?

"A My understanding is that it is the written prescription for life in the Islamic religion as prescribed by the Prophet Mohammed. It's based on the Judeo-Christian ethic.

"Q Are you aware of any teaching of the Koran?

"A I think the one that strikes me most in these times is perhaps from what we've seen on television with regard to our own relationship with Iran. And that is the complete rejection of anything non-Islamic.

"Q Do they have a phrase that characterizes what you just stated?

"A Well,

"MR. BURESH: Objection, Your Honor. I fail to see the relevancy of this line of questioning....

"THE COURT: Mr. Maus?

"MR. MAUS: Your Honor, I'm introducing this testimony to show the motive of the defendant in entering the Swett residence and in entering Sharon Swett's residence, and describing all his actions. I think the motive is always relevant. And there are bases in fact in that religion to explain some of the actions of the Defendant.

"Q (Mr. Maus continuing) Now, on this occasion back in December of '78, when you first met the Defendant, when he told you that he was Greek, did you talk to him about his visa status?

"A Not at that time. I was told at that time that he was here on a student visa....

"Q Are you familiar with the term American visa fraud?

"A Yes.

"Q Will you tell us, please, what that is?

"A This is a type of fraud that is perpetuated by many aliens coming to our country, and to some other countries. Aliens under one pretext or another, and then because it is frequently the only way he can remain in the country, he will marry a national of that country and seek to obtain immigrant status.

"Q Was there a confrontation between yourself and the Defendant?

"A On several occasions. On several issues.

"Q Did any of these take place in the kitchen of your home?

"A It did. And my son was present at the time as well. The Defendant, as you call him, was extolling the virtues of the Marxist society to us. I suggested that maybe he'd happier if he went to the Soviet Union to live. And he suggested maybe he would.

"Q Who else was present at that time?

"A My son Mark.

"Q And the Defendant?

"A And he was present, yes.

"Q Did the Defendant say anything about your daughter Jeana on that occasion?

"A No. He said several things. Primarily this was an argument about I was arguing that I didn't think she should go back with him, because it was obvious to me and to other members of my family that he wasn't making her very happy, that's why she left. She was unhappy. She was very distressed. And this is what we were arguing over.

"Q Did the Defendant call your daughter a name?

"A He did. I'm reluctant to repeat it, but he did. That's something I wouldn't like to say.

"Q But I would ask you to repeat it.

"MR. BURESH (defendant's attorney): Objection. Hearsay.

"MR. MAUS: It's not hearsay. It's admission of party.

"THE COURT: Overruled. He has asked you to repeat that name.

"A Well, in the presence of myself and my son he referred to my daughter as an American cunt...."

Jeana Swett also testified at the trial. She testified that Mehralian entered her parents' home at 5 a. m. on November 20, 1979; however, none of the remaining members of the Swett family were awakened by Mehralian. Mr. Swett did not see Mehralian, but testified that he was "awakened with a feeling that I had heard some noise of some kind". Jeana testified that she led Mehralian out of her parents' home and did not inform her father of Mehralian's presence at the time because violence would have ensued. She also testified that Mehralian had harassed her on several occasions. Upon further questioning, Jeana stated that when she visited friends' homes, their windows would be broken and the tires on their cars had been slashed; however, she could not verify that Mehralian was responsible for these occurrences. During his closing argument, the assistant state's attorney relied heavily upon the testimony elicited earlier in emphasizing Mehralian's motive for entering the Swetts' home and his lack of affection for Jeana:

"MR. MAUS: Nothing but an American cunt? Dirty words. I think we know what the Defendant's attorney meant when he started out saying that this thing was sick and unfortunate. I think we know a lot about the Defendant that we didn't know six hours ago.

"What did we learn about the defendant today? We learned that he's an Iranian that tells people he's a Greek for some reason. We learned that he lived with his wife from August of '78 until July or August of '79, and then she knew very little about him, that he had no visible means of support, that he was interested in a daughter of a U.S. diplomat. Think about those facts for awhile. Think about what that infers about the Defendant. Think about how you would feel if you had been in the situation the Swett family was, somebody continuously calling you, circling your house, slashing tires, breaking windows, and then breaking into your house in the middle of the night...."

Mehralian did not testify at the trial and at a sentencing hearing after Mehralian had been convicted, his attorney submitted a motion to withdraw as counsel for Mehralian on appeal because of a conflict of interest arising out of the grounds for appeal asserted by Mehralian. The court denied the motion to withdraw and the attorney appealed the ruling to this...