State v. Motsko, Cr. N

• Decision Date: 19 December 1977
• Docket Number: Cr. N
• Citation: 261 N.W.2d 860
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. John Douglas MOTSKO, a/k/a Jack Motsko, Defendant and Appellant. o. 600.
• Court: North Dakota Supreme Court

Page 860

261 N.W.2d 860

STATE of North Dakota, Plaintiff and Appellee, v. John Douglas MOTSKO, a/k/a Jack Motsko, Defendant and Appellant.

Cr. No. 600.

Supreme Court of North Dakota.

Dec. 19, 1977.

Rehearing Denied Jan. 11, 1978.

As Corrected March 20, 1978.

Mervin D. Nordeng, State's Atty., Fargo, for plaintiff and appellee State of North Dakota.

Tom E. Eastman, Fargo, for defendant and appellant.

VOGEL, Justice.

This is an appeal from a conviction under both counts of an information charging kidnapping The trial was by a jury. The defendant claimed indigency and asked that a specific lawyer be appointed to represent him. This was done. The jury trial took nearly a week. The attorney on this appeal is not the same attorney who represented the defendant at the trial. The defendant did not testify in his own behalf.

                a Class A felony, in Count 1, and aggravated assault, a Class C felony, in Count 2.  1 We affirm
                

On the evening of June 22, 1976, the complainant, a young woman 20 years of age, met the defendant in a bar and accepted his offer to drive her to her place of employment, where she was working the night shift from 9 p.m. to 2 a.m. He asked what hours she worked and indicated that he might meet her afterwards, a suggestion to which she neither agreed nor disagreed. When she got off work, he was waiting, but she said she was expecting a male friend to pick her up. She sat in defendant's car for about half an hour, waiting for her friend, but he failed to come. She and the defendant then agreed to have breakfast elsewhere and did so. He agreed to take her home, but instead drove to a house which he said was his cousin's, but which was rented to him, and he asked her to come in but she refused. He went in for a few minutes and she waited for him, after which they drank a beer or two and talked in the car. Suddenly she was struck from behind with a blunt object and was forced toward the rear of the house. Part of the time she was dragged by the arms, face down. She was screaming for help, which providently arrived in the form of a young man, Rolf Jacobson, who lived across the street and who braved the darkness and the unknown to find the source of the screams. As a result, the defendant left the complainant in his yard and disappeared, perhaps into the house. Jacobson took her to his house, where he called the police and an ambulance.

A short time later, the police received a telephone call from the defendant, who offered to turn himself in. He was picked up by the police, was given a Miranda warning, and admitted that he had "blasted" the complainant, accompanying the admission with a demonstration of doubling up his fist.

Upon investigation, the police found bloodstains on the complainant's shoes, which had come off while she was being dragged, and on a piece of pipe subsequently received in evidence, on the clothing of the defendant, and on the back step of the house.

On appeal, the present attorney for the defendant makes no fewer than 21 claims of reversible error. We have reclassified them into the following categories:

1. Incompetence of counsel.

a. That the court should disregard the failure of the defendant's trial attorney to object when he assertedly should have objected, and reverse because of the incompetence and ineptness of counsel in failing to make objections.

2. (As to the information) ²

a. Failure to specify what felony was attempted in connection with the kidnapping.

b. Failure to charge "abduction."

c. Failure to specify the method used to effect the abduction.

d. Failure to set forth the type of restraint used.

e. Charging as two crimes what was only one single series of acts.

3. Unconstitutionality of Chapter 12.1-18 for failure to provide any ascertainable standard of conduct.

4. Error as to instructions.

a. That the court should have instructed that if the assault was a purpose of the abduction it could not be a separate crime.

b. Failure to define "deception," "force," and "intimidation."

c. Failure to define "substantial distance."

d. Failure to define relationship between "abduction" and "felony."

e. Failure to instruct on lesser included offenses, particularly Class B felony kidnapping, felonious restraint, and unlawful imprisonment.

f. Failure to instruct that the jury must be satisfied beyond a reasonable doubt as to every element of the crime, and to instruct what each element is.

g. That the instructions inadequately differentiated Counts 1 and 2, and thereby implied that a finding of a mere assault would be sufficient to permit a guilty verdict on Count 1.

h. That the court erred in stating that the defendant was accused in the information of "abducting" the complainant.

5. That the court erred in advising the defendant that Exhibit 64 would be admissible if he testified in his own behalf, thereby coercing him into not testifying in his own behalf.

6. That the court erred in admitting into evidence the metal pipe (Exhibit 21) over objection.

7. That the court erred in refusing to enter judgment of acquittal on Count 1 upon motion by the defense.

8. That the evidence was insufficient to sustain the verdict.

9. That the court erred in sentencing the defendant under both counts.

PRELIMINARY COMMENTS

We start with a few preliminary observations.

It is easy for new counsel on appeal (or for an appellate judge, for that matter) to go through a transcript and find matters that could have been explored further, questions that could have been asked but were not, questions that were asked that should not have been asked, objections that could have been made that were not, and witnesses who could have been called but were not or witnesses who would have been better left uncalled. Hindsight is perfect and criticism is easy. But the lawyer engaged in a trial, who has made an investigation of the facts and has talked to the witnesses, may have his own reasons and they may be very good reasons for not asking a question or making an objection or calling a witness. In all fairness, courts must pay some respect to the right and duty of attorneys, whether court-appointed or not, to use judgment in the heat of a trial, and we must have some doubts about the accuracy of second-guesses later on.

It is all too easy to think that a verdict of guilty shows that the tactics used at the trial failed, and from that jump to the conclusion that other tactics would have succeeded, and from that to the conclusion that the attorney must have been incompetent for not using successful tactics. This approach, of course, ignores the possibility that the defendant may be guilty and that no defense lawyer could succeed in obtaining an acquittal if the prosecution is reasonably competent and the court commits no reversible error.

The mere recital, above, of the facts of this case surely shows that a successful defense in the present case was highly unlikely and that a verdict of guilty is no reason, by itself, for suspecting incompetence of the defense.

We are, of course, alert to violations of the duty of counsel to their clients and of the rights of defendants, but we also are aware of the fact that convicted defendants seldom are grateful to counsel, no matter how competent, and that it is easy to accuse an attorney of incompetence, and difficult or impossible for him to defend himself, in view of his obligation not to reveal the confidences of his client, and especially when the attorney (as in this case) is not even a participant in the appeal process in which the charges are made against him.

1. INCOMPETENCE OF COUNSEL

We have read the transcript and find that it does not indicate incompetence of counsel. While, of course, some objections were not made and some possible avenues were not explored, it is for counsel, not appellate courts, to decide on trial strategy. If anything, the trial here was too long and too detailed, rather than the opposite.

Trial counsel for the defendant made extensive use of pretrial discovery. He followed the praiseworthy general rule of not objecting to matters which were harmless, while objecting to evidence which tended to convict his client. He made arguable objections to admission in evidence of the pipe which probably was used to strike the complainant, and he competently argued issues requiring knowledge of recent decisions of this court, such as Starr v. Morsette, 236 N.W.2d 183 (N.D.1975), stating the different categories of evidence formerly included within the catch-all description "res gestae." He succeeded in obtaining a ruling excluding Exhibit 64 (see below) and other photographs showing the contents of defendant's basement which, if admitted, probably would have made conviction inevitable.

It is just as true in criminal cases as in civil cases, and as true in appeals as it is in motions to reopen judgments, that parties will not be relieved from free, calculated, deliberate choices of counsel they have made (City of Wahpeton v. Drake- Henne, Inc., 228 N.W.2d 324 (N.D.1975); Schnell v. Schnell, 252 N.W.2d 14 (N.D.1977)), and that it is not our function to allow second-guesses on trial strategy (Waletzko v. Herdegen, 226 N.W.2d 648 (N.D.1975); Rummel v. Rummel, 234 N.W.2d 848 (N.D.1975)).

As we said in State v. Bragg, 221 N.W.2d 793 (N.D.1974), and reiterated in State v. McKay, 234 N.W.2d 853, 857 (N.D.1975),

"We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hind sight, but counsel reasonably likely to render and rendering reasonably effective assistance."

By that standard, trial counsel was competent.

2. LANGUAGE OF THE INFORMATION

In these days of broadening pretrial discovery in criminal cases (see Rule 16, N.D.R.Crim.P.), open or almost completely open prosecutorial files (see State v. Hilling, 219 N.W.2d 164 (N.D.1974)), and availability of omnibus hearings and pretrial conferences (Rule 17.1,...