State v. Peters

• Decision Date: 10 November 2022
• Docket Number: 20220074,20220075
• Parties: State of North Dakota, Plaintiff and Appellee v. Cole Lee Peters, Defendant and Appellant
• Court: North Dakota Supreme Court

2022 ND 196

State of North Dakota, Plaintiff and Appellee
v.
Cole Lee Peters, Defendant and Appellant

Nos. 20220074, 20220075

Supreme Court of North Dakota

November 10, 2022

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Joshua B. Rustad, Judge.

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

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

1

OPINION

TUFTE, JUSTICE.

[¶1] Cole Lee Peters appeals from criminal judgments for terrorizing, two counts of gross sexual imposition, attempted murder, and felonious restraint. Peters argues on appeal that the State violated his right to a speedy trial, that the district court erred when it failed to exclude duplicate photographs of B.C., the victim, and that the court should have given a curative instruction to the jury on the duplicate pictures. We affirm the judgments.

I

[¶2] Peters physically and sexually assaulted B.C. at a hotel on the evening of December 27, 2019. Police officers arrested Peters on December 28, and on December 31 the court entered a scheduling order setting a criminal jury trial for May 4, 2020. Consistent with this Court's Administrative Order 25 suspending jury trials during the COVID-19 pandemic, the trial was rescheduled to June 29, 2020, and again to August 24, 2020. Later, the court granted the State's motion to reschedule, resetting the trial for October 19, 2020.Peters then made two motions which delayed the trial to February 8, 2021,and then the parties stipulated to reschedule the trial for April 5, 2021. COVID-19 protocols prevented an expert witness, the DNA analyst assigned to Peters' case, from being able to travel to North Dakota and testify at his trial. The court rescheduled the trial to June 28, 2021, in response to the State's motion. On June 10, 2021, the parties again stipulated to reschedule the trial for a date after July 31, 2021, because the North Dakota State Crime Laboratory's biological screener who was assigned to Peters' case was out on maternity leave. At this point, Peters had not yet asserted his speedy trial right, nor had he objected to any of the delays. A trial was held on August 23, 2021, but it ended in a mistrial. On September 3, 2021, Peters moved to dismiss for violations of his speedy trial right, and the court denied the motion. Peters' second trial began on September 20, 2021. This trial was delayed because a member of the jury panel tested positive for COVID-19. During this delay, Peters again moved to dismiss for violation of his speedy trial right, and the

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court denied the motion. The trial resumed on October 13, 2021, and the jury found Peters guilty of all charges.

[¶3] On the night of the incident, B.C. was admitted to the hospital for treatment of her injuries. Police officers obtained photographs of B.C.'s injuries taken the night of the incident and days later after the swelling of B.C.'s injuries had subsided. At trial, the court admitted these photographs over Peters' objection. On appeal Peters argues that the State violated his right to speedy trial, that the photographs admitted by the district court were cumulative in violation of N.D.R.Ev. 403, and that the court erred in not issuing a curative instruction relating to the photographs.

II

[¶4] Peters argues his constitutional right to a speedy trial was violated.

[¶5] A criminal defendant's right to speedy trial is protected by the Sixth Amendment to the United States Constitution and N.D. Const. art. I, § 12. State v. Wayland, 2020 ND 106, ¶ 7, 942 N.W.2d 841. We conduct a de novo review of the district court's overall assessment, but review the court's factual findings for clear error. Id. at ¶ 8; United States v. Sims, 847 F.3d 630, 634 (8th Cir. 2017). The district court must analyze four factors to evaluate a speedy trial claim: "length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused." Koenig v. State, 2018 ND 59, ¶ 20, 907 N.W.2d 344 (citing State v. Hall, 2017 ND 124, ¶ 11, 894 N.W.2d 836). The factors are related, none is dispositive, and they must be considered together along with other circumstances. State v. Hamre, 2019 ND 86, ¶ 11, 924 N.W.2d 776.

A

[¶6] The length of delay is the time between either the arrest or indictment, whichever is first, and the beginning of the trial. State v. Borland, 2021 ND 52, ¶ 14, 956 N.W.2d 412; Sims, 847 F.3d at 634. Under the first factor, "a delay of one year or more is 'presumptively prejudicial' and triggers an analysis of the other speedy trial factors." Hamre, 2019 ND 86, ¶ 11. Peters' trial began on

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September 20, 2021, almost twenty-one months after his arrest. This delay is presumptively prejudicial and triggers analysis of the other speedy trial factors.

B

[¶7] The reason-for-delay factor weighs heavily against the State if the State deliberately delays trial to obstruct the defense. Borland, 2021 ND 52, ¶ 16. A lack of diligence in prosecution or docket overcrowding weighs less heavily against the State. Id. "A valid reason for delay, such as a missing witness, will not be weighed against the State." Id. (citing Barker v. Wingo, 407 U.S. 514, 531...