State v. Owens

• Decision Date: 24 March 2015
• Docket Number: 20140143.,Nos. 20140142,s. 20140142
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Billy OWENS, Defendant and Appellant.
• Court: North Dakota Supreme Court

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.

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

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 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 delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused. State v. Murchison, 541 N.W.2d 435, 438 (N.D.1995) (citing Barker, 407 U.S. at 531–33 ). In Barker v. Wingo, the Supreme Court of the United States held:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.

Barker, 407 U.S. at 533 (footnote omitted); see also State v. Johnson, 1999 ND 33, ¶ 21, 590 N.W.2d 192.

We review a district court's speedy trial decision de novo, with the district court's findings of fact reviewed under the clearly erroneous standard of review. State v. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915.

A delay of one year or more is “ ‘presumptively prejudicial,’ ” triggering an analysis of the other speedy trial factors. Moran, 2006 ND 62, ¶ 9, 711 N.W.2d 915 (quoting Doggett v. United States, 505 U.S. 647, 651–52 [112 S.Ct. 2686, 120 L.Ed.2d 520] (1992) ).

[¶ 10] The State charged Owens with these crimes on June 28, 2012, and he made his speedy trial demand on January 3, 2013. The scheduled five-day trial was originally set to begin on April 1, 2013, and the trial ultimately began on October 7, 2013, after Owens fired his first court-appointed counsel and a second court-appointed counsel was assigned to represent him. In allowing Owens' first court-appointed counsel to withdraw and continuing the trial, the district court explained the initial date for the anticipated five-day jury trial had been set with “significant wiggling around of other court calendars” to accommodate Owens' demand for a speedy trial. The court informed Owens there was good cause for trial outside the ninety-day window and Owens indicated his understanding. Part of the court's decision denying Owens' motion for reconsideration of the speedy trial issue indicates the projected length of the five-day trial and the need for new counsel to prepare for trial did not support his request for reconsideration of that issue. The court also agreed with the State that Owens' actions in requesting a continuance and effectively firing his first court-appointed attorney were the reasons for the delay. Although Owens' speedy trial rights did not disappear after the court granted him an initial continuance, the record indicates the reason for the delay was precipitated by Owens' actions and the extent of the delay involved reasonable scheduling considerations for an anticipated five-day jury trial and the designation of a second court-appointed counsel to represent Owens. Balancing the factors for evaluating speedy trial claims, we conclude Owens was not deprived of his right to a speedy trial under the circumstances of this case.

III

[¶ 11] Owens argues the district court erred in admitting the Moneygram receipts into evidence at trial because the receipts were not provided to him during discovery under N.D.R.Crim.P. 16(a)(1)(D) until October 2, 2013, which was only days before the October 7, 2013, jury trial. He claims he was prejudiced by the late disclosure because there was no time to investigate the veracity of the receipts. The State argues the court did not abuse its discretion in determining there was no violation of N.D.R.Crim.P. 16 and admitting the receipts into evidence because they were in the possession of Wellard, an uncooperative codefendant, until shortly before trial. The State asserts it provided the receipts to Owens' counsel via email within two hours after receiving the receipts from Wellard's counsel and argues it complied with N.D.R.Crim.P. 16.

[¶ 12] Rule 16, N.D.R.Crim.P., governs discovery in criminal cases and provides that upon a defendant's written...