State v. Murchison, Cr. N

Decision Date29 December 1995
Docket NumberCr. N
Citation541 N.W.2d 435
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Kenneth MURCHISON, Defendant and Appellant. o. 950106.
CourtNorth Dakota Supreme Court

Patricia L. Burke (argued), State's Attorney, Bismarck, for plaintiff and appellee.

LaRoy Baird, P.C., Bismarck, for defendant and appellant; argued by Ross H. Espeseth.

MESCHKE, Justice.

Kenneth Murchison appeals from a jury verdict finding him guilty of delivery of marijuana. We affirm.

In June 1993, the North Dakota Bureau of Criminal Investigation (Bureau) hired Harold Wolff to buy drugs undercover in the Bismarck area. A mutual friend introduced Wolff to Murchison in July. On August 6, 1993, Wolff went to Murchison's apartment to buy some marijuana. Murchison told Wolff that he did not have any, and suggested Wolff come back later that night. When Wolff returned, Murchison sold him five "joints." On April 14, 1994, Murchison was arrested for that delivery of a controlled substance.

Murchison's first attorney, Marvin Hager, filed a demand for a speedy trial on April 28, 1994. At Murchison's request, Hager was removed as his attorney on May 4, 1994. Two weeks later, Murchison's second attorney, Wayne Goter, was replaced because of a potential conflict of interest. A third attorney, Ross Espeseth, represented Murchison at his preliminary hearing on June 21, 1994, and at his arraignment on August 15, 1994.

While Murchison awaited trial for this drug charge, he was convicted in September 1994 of unrelated crimes: two felony counts of terrorizing, one felony count of aggravated assault, and one misdemeanor count of assault. The trial court sentenced Murchison to six years in prison for these convictions.

On October 13, 1994, Murchison was notified that trial of this drug case would begin March 28, 1995. On February 17, 1995, Murchison moved to dismiss, alleging the delay between his arrest and trial violated his right to a speedy trial. The trial court denied dismissal, ruling that the delays "were either caused by [Murchison] or have not been substantiated to have caused prejudice to him."

At his trial on March 28-29, 1995, Murchison admitted to selling marijuana to Wolff, but claimed entrapment. The jury found Murchison guilty, and the trial court sentenced him to thirty months in prison, consecutive to his prior six-year sentence. Murchison appeals.

On appeal, Murchison argues: (1) the delay from his arrest to trial violated his right to a speedy trial; (2) the trial court abused its discretion in allowing a plainclothes officer to sit behind Murchison, but in front of the railing, during the trial; (3) the Bureau's compensation scheme for Wolff established entrapment as a matter of law, and violates public policy; and (4) the trial court erred in allowing the jury to hear evidence of Murchison's September 1994 convictions. We reject Murchison's first three contentions, but we agree that the trial court abused its discretion in admitting evidence of Murchison's 1994 convictions. Still, because this error was harmless, we affirm.

1. Speedy Trial.

Murchison argues that the delay between his demand for a speedy trial on April 28, 1994, and his trial on March 28, 1995, denied him a speedy trial. We disagree.

The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution, Article I, Sec. 12 of the North Dakota Constitution, and NDCC 29-01-06(5). 1 The United States Supreme Court designates four factors for analyzing a speedy trial claim: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 531-33, 92 S.Ct. 2182, 2192-94, 33 L.Ed.2d 101 (1972); see also State v. Sahr, 470 N.W.2d 185, 187 (N.D.1991). As we explained in State v. Connery, 441 N.W.2d 651, 655 (N.D.1989), each factor must be weighed, but "no single factor is controlling."

Murchison argues that the "delay in bringing this case to trial was excessive, and it should be determined on that basis alone that [he] was denied his right to a speedy trial." Although the delay of nearly one year from Murchison's arrest to trial was significant, we have explained that "the length of the delay is not controlling by itself." State v. Wunderlich, 338 N.W.2d 658, 661 (N.D.1983). This delay was not presumptively prejudicial.

The reason for the delay is another factor to consider. There is no indication that the prosecution purposefully delayed the trial to hinder Murchison's defense. See Connery, 441 N.W.2d at 656. Rather, Murchison's two attorney changes contributed. See State v. Runck, 418 N.W.2d 262, 265-66 (N.D.1987) (new attorney request is relevant to speedy trial claim). Furthermore, intervening court proceedings, especially Murchison's September 1994 trial and convictions, added to the delay.

Although Murchison clearly asserted his right to a speedy trial by the demand on April 28, 1994, actual prejudice to him from the delay is not apparent. Prejudice, the fourth factor, can take three forms: "oppressive pretrial incarceration," "anxiety and concern" caused by the delay, and an impaired defense. State v. Dilger, 338 N.W.2d 87, 92 (N.D.1983) (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193). While Murchison was in jail for much of the time before his trial on this drug charge, the jail time is unrelated because Murchison began serving it for the separate 1994 convictions on September 16, 1994. Thus, almost seven months of his incarceration was unrelated to this case. "Oppressive pretrial incarceration" did not occur here.

Like the defendant in Dilger, Murchison only makes "conclusory allegations" that the delay caused him anxiety and concern. Id. He has also failed to differentiate his anxiety and concern for this delay from that for his September 1994 trial, convictions, and sentence. What is more, Murchison's failure to invoke NDCC ch. 29-33, see n. 1 ante, which might have produced a trial within ninety days, contradicts his claim that he actually suffered additional anxiety.

Murchison argues that, "[w]hile being hard to define and identify in a quantitative manner, the lengthy delay in bringing [him] to trial affected his ability to defend himself." Murchison, however, has not demonstrated that the delay caused any evidence or testimony to be lost, or impaired his defense in another way. Conclusory allegations of an impaired defense from a delayed trial do not prove prejudice. See Dilger, 338 N.W.2d at 92-93. Murchison has not shown any substantial impairment to his defense.

The "absence of prejudice substantially weakens [a] speedy trial claim." Sahr, 470 N.W.2d at 188. The absence also distinguishes this case from State v. Presbuch, 366 N.W.2d 794, 796 (N.D.1985), where we affirmed a dismissal of a misdemeanor traffic charge after a two-year delay because of the "obvious" prejudice to the accused, whom the Air Force had transferred to Germany. From our consideration of the relevant factors, we conclude that Murchison was not denied his right to a speedy trial.

2. Plainclothes Officer.

Murchison was brought into the courtroom for trial in shackles that deputies removed before the jury entered. However, acting on statements that Murchison made to deputies as they brought him to court, the trial court granted the prosecution's request that a plainclothes deputy sit directly behind Murchison, but in front of the railing, during trial. Murchison, stating that he "had been in trial previously with the same trial judge, and there had been no problem," argues that the court abused its discretion when it allowed the deputy to sit behind him in front of the railing. We disagree.

"A trial court has great latitude and discretion in conducting a trial," State v. Erban, 429 N.W.2d 408, 413 (N.D.1988), and "we are unwilling to 'second-guess' the trial court in matters which depend upon the trial judge's observations of the proceeding." Hansen v. Winkowitsch, 463 N.W.2d 645, 647 (N.D.1990). We will not question the trial court's decision about courtroom safety absent a showing that the court's actions prejudiced the accused's right to a fair and impartial trial. See State v. Hendrick, 164 N.W.2d 57 (N.D.1969) (affirming, for lack of prejudice, denial of mistrial motion after jury momentarily viewed defendant in "prison garb"). The trial court must be able to maintain order and ensure courtroom safety.

Murchison argues that by "placing a deputy sheriff directly behind [him] inside the rail, it was obvious to the members of the jury that [Murchison] was being denied fundamental rights." But a conclusory assertion of prejudice is not enough for us to interfere with the trial court's discretion in securing the courtroom. Nothing here shows that any of the jurors noticed the presence of the officer or understood his role, much less indicates that the officer's presence influenced the jury in any way. See Hendrick, 164 N.W.2d at 62. We decline to find an abuse of discretion based upon an unsubstantiated allegation of prejudice.

3. Entrapment.

Murchison argues that there was "insufficient evidence for the jury to conclude that [Murchison] was not entrapped." We disagree.

Our legislature recently amended the definition of entrapment. 1993 N.D.Laws ch. 117, Sec. 1. This amended version applies here because it took effect on August 1, 1993, five days before this drug sale. The amendment redefined the affirmative defense of entrapment:

A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute...

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