State v. Metzner

• Decision Date: 11 June 1976
• Docket Number: No. 532,532
• Citation: 244 N.W.2d 215
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Russell METZNER, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 215

244 N.W.2d 215

STATE of North Dakota, Plaintiff-Appellee, v. Russell METZNER, Defendant-Appellant.

Crim. No. 532.

Supreme Court of North Dakota.

June 11, 1976.

Syllabus by the Court

1. The time period provided in Rule 4(b), N.D.R.App.P., and Rule 37(b), N.D.R.Crim.P., within which a defendant in a criminal action must file a notice of appeal from his conviction is mandatory and jurisdictional. The Supreme Court, pursuant to Rule 26(b), N.D.R.App.P., cannot waive compliance with the jurisdictional requirement that the notice of appeal be timely filed. If the notice of appeal is not timely filed, the appeal should be dismissed.

2. A warrantless search or seizure conducted with the consent of the accused is a valid and permissible procedure pursuant to the Fourth and Fourteenth Amendments to the United States Constitution. Such consent, however, cannot be coerced, by explicit or implicit means, by implied threat or covert force.

3. A witness questioned in a general investigation which has not focused upon him need not be given the Miranda warnings.

4. The privilege against self-incrimination set forth in the Fifth Amendment to the United States Constitution protects an accused from providing evidence of a testimonial or communicative nature, but does not extend its protection to potentially incriminating real or physical evidence.

5. Boots seized by the police after they were voluntarily produced by the accused are real or physical evidence which is not 'testimonial' or 'communicative' in nature, and therefore not within the protection of the Fifth Amendment's privilege against self-incrimination.

6. The right to counsel guaranteed by the Sixth Amendment to the United States Constitution does not mean errorless counsel nor counsel judged ineffective by hindsight, but counsel reasonably likely to render, and rendering, reasonably effective assistance.

7. Counsel is presumed to be competent and adequate and the burden of proof to show inadequacy or incompetency of counsel lies upon the defendant.

Robert O. Wefald, Bismarck, for appellant.

John M. Olson, State's Atty., Bismarck, for appellee.

PAULSON, Judge.

The defendant, Russell Metzner, after trial to a jury in Burleigh County District Court, appeals from his conviction of the crime of burglary.

Metzner was convicted of the February 17, 1975, burglary of the Lauer Repair shop, a business establishment located at 309 South Washington Street in Bismarck. Also convicted of the same burglary was Donald Kerry Klesalek, Metzner's co-defendant at trial. Klesalek, however, has not appealed from his conviction.

The facts are not in dispute. At approximately 12:30 a.m. on February 17, 1975, Patrolman Dennis Walls of the Bismarck Police Department investigated a vehicle parked in an alley on the north side of the Lauer Repair shop. After calling for a backup unit, Patrolman Walls checked the vehicle and found footprints in newly fallen snow, leading from the driver's side of the vehicle to a window on the north side of the Lauer Repair shop. The second window on the north side of the building was broken and a tire wrench was lying on the ground about three feet from the broken window. Patrolman Walls observed a second set of footprints in the snow near such window.

Shortly thereafter, Sergeant Darrell Neas of the Bismarck Police Department Detective Division and Darrell Lauer, owner of the Lauer Repair shop, arrived at the scene. After Lauer unlocked the building's front door they went inside, where they discovered Klesalek in the bathroom. Sergeant Neas placed Klesalek under arrest for burglary, conducted a pat-down search, and advised Klesalek of his constitutional rights.

In the meantime, Patrolmen Donald Schaffer and David Torkildson were following the footprints which had been left in the snow near the broken window on the north side of the Lauer Repair shop. This set of footprints was not the same set which Patrolman Walls had followed from the driver's side of the parked vehicle in the alley, but was a second set of footprints found in the general area of the broken window. No attempt was made to determine the origin of the second set of footprints.

Patrolmen Schaffer and Torkildson followed the footprints to a trailer home located in a trailer court located on West Sweet Avenue. Both officers observed that the footprints which they were following led up to the trailer home, and that the same footprints then led away from the trailer home. Schaffer then returned to the Lauer Repair shop and Torkildson remained outside of the trailer home, awaiting Schaffer's return. Aptrolman Schaffer returned to the trailer home with the police squad car. He was accompanied by a Patrolman Rohrer.

After returning to the trailer home, Patrolman Schaffer knocked on the door and spoke with a man whom he identified as Clarence Hagel, owner of the trailer home. After ascertaining that no occupant of the trailer home was the person who had left the footprints in the snow, the officer left.

In the meantime, Patrolman Torkildson continued following the footprints as they led away from the trailer home. He followed the footprints to the back door of a house located at 912 West Sweet Avenue. Patrolman Torkildson then radioed his position and requested assistance, and shortly thereafter was joined by Patrolmen Schaffer and Rohrer.

Patrolman Schaffer knocked on the door of the house at 912 West Sweet Avenue; a person later identified as the defendant, Russell Metzner, opened the door. Metzner was standing in the doorway in his stocking feet. Schaffer asked Metzner if he had been out during that evening and Metzner replied that he had been over to see his girl friend in the trailer court. Schaffer asked to see Metzner's shoes or boots and Metzner walked into the living room, returned with his boots, and gave them to Patrolman Schaffer. The officers did not enter the house. Schaffer examined the boots, observed that the soles and a little bit of the leather uppers were wet, and that the square toe and the criss-cross heel pattern were similar to the pattern made by the footprints which they had been following from the Lauer Repair shop. Schaffer compared one of the boots with the footprints located directly below the doorstep at 912 West Sweet Avenue, and Schaffer concluded that the boot was identical to the boot which had left the impression in the snow. Schaffer thereupon placed Metzner under arrest for burglary, advised him of his constitutional rights, and returned to the Lauer Repair shop with Metzner in custody. At the Lauer Repair shop, Schaffer again compared the boot seized from Metzner with the footprints in the snow and concluded that they were identical.

On February 18, 1975, Metzner appeared before Judge Gerald G. Glaser of the Burleigh County Court of Increased Jurisdiction on a charge of burglary, at which time bond was set. Mr. Burt L. Riskedahl, a Bismarck attorney who was then representing Metzner in another case pending in Burleigh County, was appointed to represent Metzner on the burglary charge. On April 30, 1975, Judge Glaser conducted the preliminary hearing and thereafter Metzner was bound over to district court for trial on a charge of burglary.

On May 9, 1975, the Burleigh County District Court conducted a hearing on Metzner's request for the appointment of counsel at county expense. After such hearing, the district court, with the consent of Metzner, appointed Mr. Riskedahl to represent Metzner at county expense. On May 15, 1975, counsel for Metzner filed with the district court a motion to sever Metzner's trial from Donald Kerry Klesalek's trial on the same charge. Such motion was subsequently denied.

On May 21, 1975, Metzner, through his counsel, filed a motion to suppress evidence allegedly seized unlawfully at the time of his arrest--namely, the boots which were examined and compared with the footprints in the snow on the night of Metzner's arrest. After hearing such motion on May 28, 1975, the district court orally denied Metzner's motion to suppress evidence, concluding that the boots were lawfully seized by the police officers.

After trial to the jury, Metzner, on May 30, 1975, was found guilty of burglary. He was sentenced on June 24, 1975, to a term of one year at the State Farm. Sometime after such sentencing hearing, Metzner advised Mr. Riskedahl of his desire to appeal the conviction, and also of his desire to retain different counsel for such appeal. On July 28, 1975, Metzner requested that all of the documents in Riskedahl's possession relating to the burglary case be forwarded to him. On July 29 or 30, 1975, Riskedahl delivered the requested documents to Metzner at the State Penitientiary in Bismarck.

On August 13, 1975, a notice of appeal was filed with the clerk of the Burleigh County District Court. Such notice was dated July 31, 1975, was signed by Metzner, and was notarized on August 1, 1975. On August 14, 1975, the clerk of the Burleigh County District Court caused notice of the filing to be issued.

On September 15, 1975, Metzner filed a motion with the Burleigh County District Court requesting that Burt L. Riskedahl be relieved as counsel for Metzner. On September 25, 1975, Mr. Riskedahl filed a 'Notice of Withdrawal of Counsel', and on September 30, 1975, the Burleigh County District Court granted Metzner's motion and entered its order permitting Mr. Riskedahl's withdrawal from the case.

Metzner thereafter proceeded Pro se, acting as his own attorney, until May 6, 1976, when he requested a continuance from this Court to permit him to secure counsel. On May 6, 1976, we granted Metzner's request for a continuance of this case until June 2, 1976, to permit Metzner to obtain the services of counsel to further prosecute this appeal. On May 20, 1976, by order of the district court, Mr. Robert O. Wefald, a Bismarck attorney, was appointed to represent Metzner in his appeal to this Court; and, on June 2, 1976,...