State v. Owens, s. 20140142

CourtUnited States State Supreme Court of North Dakota
Citation860 N.W.2d 817
Docket Number20140143.,Nos. 20140142,s. 20140142
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Billy OWENS, Defendant and Appellant.
Decision Date24 March 2015

860 N.W.2d 817

STATE of North Dakota, Plaintiff and Appellee
v.
Billy OWENS, Defendant and Appellant.

Nos. 20140142
20140143.

Supreme Court of North Dakota.

March 24, 2015.


860 N.W.2d 819

Nathan K. Madden, Assistant State's Attorney, Williston, N.D., for plaintiff and appellee.

860 N.W.2d 820

Lee M. Grossman, Valley City, N.D., for defendant and appellant; submitted on brief.

Opinion

McEVERS, Justice.

¶ 1] Billy Owens appeals from criminal judgments entered after a jury found him guilty of leading a criminal association to commit felonious acts and of conspiracy to commit aggravated assault. We conclude Owens was not deprived of his right to a speedy trial, the district court did not abuse its discretion in determining the State did not violate the discovery requirements of N.D.R.Crim.P. 16, the evidence was sufficient to support the jury verdicts, and the prosecutor's comments to the jury during final argument did not constitute prosecutorial misconduct. We affirm.

I

[¶ 2] In a June 28, 2012 complaint, the State charged Owens with leading a criminal association for purposes of committing felonious acts under N.D.C.C. § 12.1–06.1–02 and with conspiracy to commit aggravated assault under N.D.C.C. §§ 12.1–06–04(1) and 12.1–17–02 for allegedly agreeing with one or more individuals to inflict serious bodily injury on Kenneth Moore. According to the State, the charges for leading a criminal association stemmed from an alleged drug dealing operation by a group of individuals in the Williston area, which was led by Owens and included Moore, Dallas Wellard, and Paul Huckstep. The conspiracy charges stemmed from Owens allegedly offering a reward for an assault on Moore after a disagreement with him.

[¶ 3] On January 3, 2013, Owens filed a demand for a speedy trial under N.D.C.C. § 29–01–06 and an anticipated five-day jury trial was scheduled to begin on April 1, 2013. On March 12, 2013, the district court allowed Owens' court-appointed attorney to withdraw due to a breakdown in the attorney-client relationship and granted Owens a continuance after informing him there was good cause for a trial outside the ninety-day speedy trial requirement of N.D.C.C. § 29–19–02. The court informed Owens the initial trial date had been set with “significant wiggling around of other court calendars” to comply with Owens' speedy trial request and Owens indicated he understood there was good cause for trial outside the ninety-day window. Another attorney was subsequently appointed to represent Owens, and in April 2013, the anticipated five-day jury trial was rescheduled to begin on October 7, 2013.

[¶ 4] In May 2013, Owens moved for reconsideration of his speedy trial claim, and on June 10, 2013, the court denied his motion. On June 27, 2013, Owens moved to dismiss the prosecution, claiming a violation of his right to a speedy trial. The court denied Owens' motion.

[¶ 5] In October 2013, the State moved to allow the admission at trial of Moneygram receipts in the possession of Wellard, an individual also involved with the criminal association. Owens moved to suppress the receipts, claiming they were not disclosed in a timely manner under N.D.R.Crim.P. 16. The district court ruled there was not a discovery violation under N.D.R.Crim.P. 16, because the receipts were not in the State's possession and could not have been discovered by the State with reasonable diligence. The court allowed the admission into evidence of the receipts at trial, and a jury thereafter found Owens guilty of both charges.

II

[¶ 6] Owens argues the district court erred in denying his motion to dismiss the prosecution on the ground he was denied his right to a speedy trial. He claims the

[860 N.W.2d 821

delay of more than one year from the beginning of the prosecution until trial is presumptively prejudicial, and he never relinquished his speedy trial demand. He argues that although he sought and obtained a new court-appointed attorney, he did not consent to his trial being delayed from April 2013 until October 2013, and he asserts the jury trial should have been rescheduled within the ninety-day speedy trial window. He claims he was prejudiced by the delay, because the State would not have had access to the Moneygram receipts without the delay, and he argues the charges against him should have been dismissed.

¶ 7] The State responds the district court correctly decided Owens waived his speedy trial demand and was not prejudiced by delay caused by his actions. The State claims the additional delay was created when Owens effectively fired his first court-appointed attorney and was informed that changing counsel constituted a waiver and would delay his trial outside the ninety-day speedy trial window. The State argues Owens was not prejudiced by the delay.

[¶ 8] A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by N.D. Const. art. I, § 12. See N.D.C.C. § 29–01–06(5). Under N.D.C.C. § 29–19–02, the State and the defendant have the right to a speedy trial, but a court may continue a case for good cause. The court may dismiss a prosecution if there is an unnecessary delay in bringing a defendant to trial. N.D.R.Crim.P. 48(b).

[¶ 9] In State v. Fischer, 2008 ND 32, ¶¶ 29–30, 744 N.W.2d 760 (quoting State v. Bergstrom, 2004 ND 48, ¶ 15, 676 N.W.2d 83), this Court discussed considerations for evaluating speedy-trial claims:

In State v. Erickson, 241 N.W.2d 854, 859 (N.D.1976), this Court adopted the United States Supreme Court balancing test announced in Barker v. Wingo, 407 U.S. 514 [92 S.Ct. 2182, 33 L.Ed.2d 101] (1972), which is used to evaluate the validity of a speedy trial claim under the United States Constitution, and now, the North Dakota Constitution, and the North Dakota statute. N.D.C.C. § 29–01–06(5). The test requires balancing four factors: length of the
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