State v. Red Paint, Cr. N

• Citation: 311 N.W.2d 182
• Decision Date: 23 October 1981
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Darrell Wayne RED PAINT, a/k/a Darrell Wayne Clifford Red Paint, Defendant and Appellant. o. 764.
• Court: United States State Supreme Court of North Dakota

Page 182

311 N.W.2d 182

STATE of North Dakota, Plaintiff and Appellee, v. Darrell Wayne RED PAINT, a/k/a Darrell Wayne Clifford Red Paint, Defendant and Appellant.

Cr. No. 764.

Supreme Court of North Dakota.

Oct. 23, 1981.

Garcia & Garcia, Devils Lake, for defendant and appellant; argued by David Garcia, Devils Lake.

Arne F. Boyum, Jr., State's Atty., Rolla, for plaintiff and appellee.

PAULSON, Justice.

Darrell Wayne Red Paint appeals from a judgment of conviction entered in the District Court of Ward County on January 29, 1981, upon the jury's verdict finding him guilty of two counts of murder. We affirm.

On the afternoon of May 22, 1980, Donald and Bernice Johnson, husband and wife, were shot to death in their farm home located in rural Rolette County. Earlier that same day, two juveniles, Darrell Wayne Red Paint and Daniel C. DeNoyer, had run away from the Lighthouse of Hope, a group home for juveniles located approximately one mile north of the Johnson farm. Upon learning of the disappearance of Red Paint and DeNoyer, Franklin Bell, the executive director of the Lighthouse of Hope, instructed one of his assistants to notify the police. Later that evening, Bell was informed by a deputy sheriff of Rolette County that two murders had been committed and that Red Paint and DeNoyer might have been involved. The deputy sheriff asked Bell where the boys might be going and Bell replied that they would probably go to the home of Gwen Gourneau, Daniel DeNoyer's girlfriend, in St. John, North Dakota.

Several hours later, at approximately 1:00 o'clock on the morning of May 23, 1980, Bell received a telephone call from Mrs. Julia Gourneau, the mother of Gwen Gourneau. Mrs. Gourneau informed Bell that the two boys were at her home and that they wanted to talk with him. Bell immediately went to the Gourneau home and spoke with the boys, who agreed to turn themselves in to the sheriff if Bell drove them to the sheriff's office. The boys left with Bell in his car, and were arrested when police, who had the Gourneau home under surveillance, stopped Bell's car.

Red Paint and DeNoyer were transported by sheriff's deputies to the Rolette County jail in Rolla. Bell rode to the jail in a separate vehicle, and, upon arriving there, Bell asked if he could speak to Red Paint alone. Bell was allowed to speak to Red Paint at that time in the sheriff's private office at the Rolette County jail with no one else present.

At trial, Bell testified that, during the course of his conversation with Red Paint in the sheriff's office, Red Paint admitted that he had shot the Johnsons with a shotgun. Bell also testified, in chambers, that he had suggested to Red Paint that he consult an attorney before making any statements to the law enforcement officers. The record does not reveal, however, whether Bell gave this advice to Red Paint before or after Red Paint admitted the killings to him. When Bell's conversation with Red Paint was concluded, Bell informed Sheriff Bryant Mueller of Red Paint's statement that he had shot the Johnsons.

The sole issue presented by Red Paint on appeal is whether the district court committed reversible error in allowing Frank Bell to testify at trial regarding his conversation with Red Paint at the Rolette County sheriff's office. ¹ The district court ruled during the trial that Bell's testimony did not fall within the purview of any of the privileges set forth in the North Dakota Century Code and the North Dakota Rules of Evidence, and held that Bell's testimony was admissible. We agree.

At the time of the murder, Bell was the executive director of the Lighthouse of Hope. He had previously served as a state highway patrolman and had briefly been a Rolette County special deputy sheriff. On May 22, 1980, however, Bell was not serving as a law enforcement officer in any capacity, and there is no evidence indicating that Bell was acting on the orders of law enforcement officers during his involvement in the instant case. The district court noted that Bell's duties as executive director of the Lighthouse of Hope were similar to those of a social worker.

Rule 501 of the North Dakota Rules of Evidence states that only those privileges provided for "by constitution or statute or by these or other rules promulgated by the supreme court of this state" are recognized in North Dakota. After perusal of the Constitution, the statutes, and the rules, we find no authority which would require the exclusion of Bell's testimony regarding the conversation which he had had with Red Paint at the Rolette County sheriff's office.

Rule 502, N.D.R.Ev., provides that a client may refuse to disclose, and prevent others from disclosing, confidential communications between the client and "his lawyer or his lawyer's representative". Frank Bell was not at the time of his conversation with Red Paint a "lawyer or a lawyer's representative", as those terms are defined in Rule 502, and Rule 502 is therefore inapplicable.

Rule 505, N.D.R.Ev., states that a person may refuse to disclose and may prevent others from disclosing confidential communications by the person to a clergyman. Bell was not a "clergyman" as that term is defined in Rule 505, and Rule 505 is therefore inapplicable.

Section 31-01-06.1, N.D.C.C., provides that a school counselor who possesses a valid North Dakota guidance credential from the State Department of Public Instruction and who has been duly appointed a counselor for a school system may not disclose confidential communications received in a counseling interview. The record does not indicate that Frank Bell, at the time of his conversation with Red Paint, possessed a valid North Dakota guidance credential. Additionally, he had not been appointed counselor in a school system, and, therefore, § 31-01-06.1, N.D.C.C., does not apply.

The foregoing are the only privileges recognized by constitutional provision, the statutes, or rules in North Dakota which protect relationships similar to the one existing in the instant case between Bell and Red Paint. ² Because the relationship between Bell and Red Paint fails to fall within the purview of any of the recognized privileges, we conclude that Bell's testimony was not a privileged confidential communication and the district court did not commit error in allowing Bell to testify.

Notwithstanding the fact that Bell's testimony did not fall within any of the recognized privileges, Red Paint urges this court to expand the law of privilege and to create a "quasi-attorney-client privilege" to apply to situations when a private individual gives "legal" advice to a defendant. Red Paint argues that Bell was acting "in the role" of an attorney when he discussed the events which occurred on the evening of May 22, 1980, with Red Paint and advised him to consult an attorney before making any statements; and that, therefore, the same protections afforded to confidential communications between attorney and client should apply here.

Rule 501, N.D.R.Ev., explicitly provides, in pertinent part, that: "Except as otherwise provided by constitution or statute or by these or other rules promulgated by the supreme court of this state, no person has a privilege" to refuse to disclose or prevent another from disclosing any matter. The import of this rule is clear only those privileges provided for by rule, statute, or constitutional provision are recognized in this State.

Red Paint argues that the rules of privilege are "out-moded" and should be liberally construed. We conclude, however, that rules of privilege should be narrowly construed because they are by nature in derogation of the search for truth. See United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974). As noted by the United States Supreme Court in Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186, 195 (1980):

"Testimonial exclusionary rules and privileges contravene the fundamental principle that 'the public ... has a right to every man's evidence.' United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). As such, they must be strictly construed and accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)."

Those relationships which have been deemed sufficiently important to warrant a rule of privilege have been expressly delineated by rule, statute, and constitutional provision in this State. These provisions will be strictly construed to protect only those relationships which have been deemed to engender a public good which outweighs the principle that all rational means should be employed to ascertain the truth. Although there is a legitimate public interest in protecting confidential communications between an attorney and his client made for the purpose of facilitating the...