State v. Poitra, 20090339.

• Citation: 2010 ND 137,785 N.W.2d 225
• Decision Date: 13 July 2010
• Docket Number: No. 20090339.,20090339.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Joshua John POITRA, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

785 N.W.2d 225

2010 ND 137

STATE of North Dakota, Plaintiff and Appellee

v.Joshua John POITRA, Defendant and Appellant.

No. 20090339.

Supreme Court of North Dakota.

July 13, 2010.

Kimberlee Jo Hegvik (argued), and Leah Jo Viste (on brief), Assistant State's Attorneys, Fargo, N.D., for plaintiff and appellee.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Joshua Poitra appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition and aggravated assault. Poitra contends the district court erred in denying his motion to suppress DNA evidence because he had a right to counsel before a search warrant was executed and because the affidavit for the search warrant contained false statements. Poitra also argues the court erred in denying his motion to suppress the photographic evidence and identification, the court abused its discretion by excluding evidence of the alleged victim's prior sexual history, and his sentence is illegal. We affirm.

I

[¶ 2] During the early morning hours on June 2, 2008, Jane Doe was at a Fargo residence with a group of people, including Poitra and at least two other men. At some point Doe called a taxicab to take her home. While she was outside waiting for the cab, someone grabbed her, threw her on the ground, removed her pants and underwear, and began having sexual intercourse with her. Eventually Doe was able to get away. Doe ran into the street, stopped a passing patrol vehicle from the Fargo Police Department and told the officers that she had been raped. Doe told the officers where the incident occurred, and the officers found a pair of women's underwear and a white baseball cap at the location.

[¶ 3] Fargo Police Detective James Shaw spoke to Doe on June 3, 2008, and she told him that her attacker's name was Josh or Justin, that he wore a white baseball cap with a footprint or bear claw and that he had a distinctive scar on his forehead. Shaw also talked to another individual who was with Doe on the night of the incident and she said a male named Josh was wearing a white hat with a foot emblem.

[¶ 4] On June 15, 2008, law enforcement officers were investigating an unrelated matter at the residence where the incident with Doe occurred. Poitra was at the residence and was taken into custody on a charge of minor in consumption of alcohol. Poitra was photographed when he was taken into custody. Law enforcement officers believed Poitra was eighteen, based on information from law enforcement databases and Poitra's statements.

[¶ 5] Later that day, Detectives Shaw and Paul Lies interviewed Poitra. They informed Poitra that a sexual assault had occurred on June 2, 2008, and they asked him to provide a DNA sample. Poitra told the detectives that he wanted to speak with his mother before he decided whether to give a DNA sample.

[¶ 6] On June 16, 2008, Shaw applied for a search warrant to obtain a DNA sample from Poitra. The affidavit in support of the warrant stated that the officer believed there was probable cause that Poitra was responsible in the gross sexual imposition because he "matches the general age group of the suspect, based on the fact that he was at the residence where the original incident occurred and based on the fact that he refused to voluntarily provide a DNA sample." A magistrate found probable cause existed and issued the search warrant. Shaw subsequently met with Poitra and collected a DNA sample.

[¶ 7] Shaw also took more photographs of Poitra to use in a photographic lineupbecause he noticed Poitra has a distinct scar on his forehead, which was consistent with Doe's description. On June 16, 2008, Shaw conducted a photographic lineup using the photograph of Poitra taken when he was arrested for minor in consumption of alcohol. Doe positively identified Poitra as her attacker.

[¶ 8] On June 18, 2008, Poitra informed the court during a hearing that he was a juvenile. Shaw checked with the Social Security Administration to determine Poitra's correct date of birth. The Social Security Administration confirmed Poitra was a juvenile.

[¶ 9] On June 19, 2008, a petition was filed in juvenile court charging Poitra with minor in consumption of alcohol in violation of N.D.C.C. § 5-01-08, aggravated assault in violation of N.D.C.C. § 12.1-17-02 and gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(a). After a hearing, the juvenile court transferred the aggravated assault and gross sexual imposition charges to adult district court.

[¶ 10] Poitra moved to suppress all statements made to law enforcement because they were the result of custodial interrogation and a parent or attorney was not present, to suppress the photographic identification because the photographs were taken without a parent or attorney present and law enforcement knew or should have known he was a juvenile, and to suppress all DNA evidence because the affidavit for the warrant was based on false or misleading information. After a hearing, the court granted Poitra's motion to suppress the statements made after he was taken into custody. The court denied Poitra's motion to suppress the DNA evidence and the identification evidence obtained through photographs.

[¶ 11] After trial in July 2009, a jury found Poitra guilty of aggravated assault and gross sexual imposition. Poitra was sentenced to twenty-five years in prison with five years suspended.

II

[¶ 12] Poitra argues the district court erred in denying his motion to suppress DNA evidence because the affidavit for the search warrant contained false statements or omitted information and because he had a right to have a parent or counsel present before the warrant was executed.

[¶ 13] A district court's decision to deny a motion to suppress " 'will not be reversed [on appeal] if there is sufficient competent evidence capable of supporting the district court's findings, and ... if its decision is not contrary to the manifest weight of the evidence.' " State v. Scholes, 2008 ND 146, ¶ 7, 753 N.W.2d 377 (quoting State v. Fischer, 2008 ND 32, ¶ 10, 744 N.W.2d 760). Questions of law are fully reviewable. Scholes, at ¶ 7. " '[W]hether a finding of fact meets a legal standard is a question of law.' " Id. (quoting State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578).

A

[¶ 14] Poitra argues law enforcement intentionally or recklessly included a false statement in the affidavit for the search warrant because the affidavit did not state he was a juvenile and did not include all of the possible dates of birth law enforcement had for him. He also claims information in the affidavit was "bare bones" information and was not sufficient to support finding probable cause.

[¶ 15] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures and require warrants be issued only upon probable cause. See State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375. Whether probablecause exists to issue a warrant is a question of law, which is fully reviewable on appeal. Id. " 'We defer to a magistrate's determination of probable cause so long as a substantial basis for the conclusion exists, and we resolve doubtful or marginal cases in favor of the magistrate's determination.' " Id. (quoting State v. Stewart, 2006 ND 39, ¶ 6, 710 N.W.2d 403). When reviewing the sufficiency of the information before the magistrate, we consider the totality of the circumstances and determine whether "there is a fair probability ... evidence of a crime will be found in a particular place [to be searched]." Ebel, at ¶ 13 (quoting State v. Corum, 2003 ND 89, ¶ 27, 663 N.W.2d 151).

[¶ 16] We address allegations that false or misleading statements were made in an application for a search warrant under the standard set out in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Ebel, 2006 ND 212, ¶ 20, 723 N.W.2d 375. Statements in an affidavit must be truthful:

"This does not mean 'truthful' in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be 'truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true."

Franks, 438 U.S. at 165, 98 S.Ct. 2674.

[¶ 17] A false statement is one that " 'misleads a neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause.' " Ebel, 2006 ND 212, ¶ 21, 723 N.W.2d 375 (quoting State v. Donovan, 2004 ND 201, ¶ 7, 688 N.W.2d 646). Statements may also be false or misleading by omission. Ebel, at ¶ 21. When there is a claim statements are misleading because important information was omitted, the defendant has the burden to show: (1) that law enforcement omitted facts with the intent or in reckless disregard of whether they made the affidavit misleading, and (2) the affidavit would not have been sufficient to support a finding of probable cause if the omitted information had been included. Myers v. State, 2009 ND 13, ¶ 17, 760 N.W.2d 362. Whether a defendant demonstrates recklessness or deliberate falsity is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Scholes, 2008 ND 146, ¶ 17, 753 N.W.2d 377. A finding is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports the finding or if this Court is convinced, based on the entire record, that a mistake has been made. Id.

[¶ 18] The district court found Poitra repeatedly gave law enforcement officers an incorrect date of birth and failed to correct the officers when they asked if they had the correct date before the warrant was executed. The court...