State v. Stockert

• Citation: 684 N.W.2d 605,2004 ND 146
• Decision Date: 22 July 2004
• Docket Number: No. 20030105.,20030105.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Scott D. STOCKERT, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

684 N.W.2d 605

2004 ND 146

STATE of North Dakota, Plaintiff and Appellee v. Scott D. STOCKERT, Defendant and Appellant.

No. 20030105.

Supreme Court of North Dakota.

July 22, 2004.

James A. Hope, Assistant State's Attorney, Dickinson, N.D., for plaintiff and appellee.

Scott D. Stockert, pro se, Dickinson, N.D., defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Scott Stockert appeals from a Southwest Judicial District Court criminal judgment finding him guilty of disobedience of a judicial order, a class A misdemeanor, in violation of N.D.C.C. § 12.1-10-05. Stockert argues he received an unfair trial, he was unlawfully extradited from the State of Colorado, he was wrongfully charged under N.D.C.C. § 12.1-10-05, he was precluded from being charged because of double jeopardy, and he was unlawfully sentenced. He also argues the trial judge should have recused himself from this case. We affirm the judgment of the district court.

I

[¶ 2] Scott Stockert and Wanda Stroud have two minor children. The couple divorced, and custody of the children was awarded to Stroud with Stockert's having visitation rights. On the weekend of September 15, 2000, Stockert had the children for visitation. On September 17, 2000, Stockert failed to return the children to Stroud. He was to have returned the children by 4:00 p.m. that day. On September 25, 2000, Stockert and the children were found in Los Angeles, California. [¶ 3] On May 3, 2001, a Dickinson police officer signed a complaint charging Stockert with disobedience of a judicial order, a Class A misdemeanor, for violating conditions of visitation found in the divorce court's September 13, 2000, memorandum, the divorce court's January 14, 2000, order amending judgment, and the divorce court's March 24, 1998, judgment.

[¶ 4] On March 11, 2003, Stockert was found guilty by a six-person jury. On April 14, 2003, Stockert was sentenced to one year in prison with all but 154 days suspended for a period of two years if certain conditions and terms were met, including that he comply with treatment recommendations of Dr. Belanger and that he have no contact with Stroud or his children until further court order.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 6] Stockert argues the district court denied him his constitutional right to a fair, unbiased, and impartial trial, and to jury selection. He claims he was denied a fair trial because the district court erred in not granting him a jury of more than six people, in not allowing him to challenge and question some of the jurors on their impartiality, in denying his jury instructions, and in denying his right to have subpoenaed witnesses appear in his favor.

A

[¶ 7] On May 23, 2001, Stockert moved for a jury of nine, and on July 9, 2001, he demanded a jury of twelve. On June 15, 2001, the district court informed Stockert that his request for a jury of nine was improper. The court did not explain why his request was improper, but referred him to N.D.R.Crim.P. 23(b). The district court instructed him that if he "wishes to request a jury of more than six qualified jurors, [he] is placed on notice that he must file a timely written demand as set forth in the rule." Rule 23(b) provides that in a class A misdemeanor case for which a jury is impaneled, the jury shall consist of six qualified jurors unless a timely demand is made for a jury of twelve. Rule 23(b) further provides that a demand must be filed with the clerk not later than the time set for making pretrial motions. N.D.R.Crim.P. 23(b). On June 6, 2001, Stockert received a notice of assignment of judge, pretrial conference, and trial. Within this notice the parties were informed that "[w]ithin 28 days from the date of this notice, all pretrial motions shall be served and filed with the Court." Stockert signed this notification on June 6, 2001, thus acknowledging he had received a copy of the notice. Twenty-eight days from June 6, 2001, would have been July 4, 2001. Because July 4, 2001, was a holiday, according to N.D.R.Crim.P. 45(a), the pretrial motions were to be served before July 5, 2001. Stockert's certificate of service states that his demand for a jury of twelve was electronically filed on July 6, 2001; however, Stockert's demand was filed with the court on July 9, 2001. His demand for a jury of twelve, whether filed on July 6 or July 9, was untimely.

[¶ 8] Stockert failed to attend the pretrial conference. On July 11, 2002, Stockert was sent a notice of pretrial and trial. Within this notice the parties were again informed that "[w]ithin 28 days from the date of this notice, all pretrial motions shall be served and filed with the Court." The district court administrator certified that a copy of this notice was mailed to or personally served upon Stockert on July 11, 2002. Twenty-eight days from July 11, 2002, would have been August 8, 2002. The pretrial motions, therefore, were to be served by August 8, 2002. On September 11, 2002, Stockert filed another demand for a jury of twelve. On September 13, 2002, at the pretrial conference, the district court denied his demand for a jury of twelve, finding it untimely. Because Stockert's demands for a jury of twelve were untimely, they were properly denied.

B

[¶ 9] Stockert also argues he was not able to challenge and question five of the seven jurors on their impartiality. The partial transcript of the jury trial shows that during voir dire, the court explained to the jurors, "we'll begin the voir dire process with the Court asking you some basic questions concerning your qualifications. After I'm done then Mr. Stockert will have an opportunity to question you, and then Mr. Hope." The transcript shows the district court allowed Stockert to question the jurors for cause. The district court stated to the jury, "At this point Mr. Stockert is going to be allowed to question you for cause concerning your qualifications." The district court then told Mr. Stockert that he could question the jurors for cause. Stockert questioned one of the jurors. After questioning the juror, Stockert said, "That's all I have. I will not challenge." The court asked Stockert if he passed for cause. Stockert replied, "I pass." The court then allowed Mr. Hope to question the jurors for cause. After Stockert was given the opportunity to question for cause, one juror was excused and another called. The court gave Stockert an opportunity to question the new juror for cause. At no time did Stockert assert that he was not finished questioning the jurors.

C

[¶ 10] Stockert also argues the district court erred in denying his jury instructions, including the affirmative defenses of duress and entrapment. He claims there was sufficient evidence to support the instructions. This Court has held, the failure to instruct the jury on an applicable defense when there was evidence to support that defense is obvious error. State v. Hersch, 445 N.W.2d 626, 634 (N.D.1989). "In assessing whether a defendant is entitled to jury instructions on a defense, we view the evidence in the light most favorable to the defendant." Id. During the trial, Stockert conceded there was no evidence to support his entrapment defense. He stated, "I could see the entrapment part being thrown out because I have no proof that any law enforcement officer installed those devices, so I wouldn't have an objection to that being stricken." N.D.C.C. § 12.1-05-10(1) provides, in part:

In a prosecution for an offense which does not constitute a felony, it is an affirmative defense that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force. Compulsion within the meaning of this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.

[¶ 11] Stockert claims he was compelled to disobey the judicial order because of threats of force. He claims these threats were demonstrated by a death-threat letter and by his having been assaulted by the mother of his children and her brother. The death-threat letter he discusses was not received into evidence. Further, there was no evidence of assaults presented at trial. Having reviewed the record, we conclude there was insufficient evidence for the jury instructions of duress and entrapment.

D

[¶ 12] Stockert claims, because he was indigent, the district court violated his right to have witnesses appear in his favor by means of subpoena. "Whether the district court's refusal to issue a subpoena violates the Sixth Amendment is a question of law, and our standard of review for a claimed violation of a constitutional right is de novo." State v. Treis, 1999 ND 136, ¶ 11, 597 N.W.2d 664. "This right is not absolute, and the defendant must show the testimony would have been both favorable and material to his defense." Id. The district court informed Stockert it "would sign subpoenas for [him] so that [he] could subpoena whoever [he] wish[ed]." The court did not refuse to issue subpoenas. The court did, however, tell Stockert he would have to pay for the costs himself unless he convinced the court that the witnesses were relevant and necessary. Stockert was then given the opportunity to convince the court that his witnesses were relevant and necessary.

E

[¶ 13] Stockert also argues he was unlawfully taken from the State of Colorado for a misdemeanor offense. We have been provided with no meaningful record as to what happened in Colorado. If the record on appeal does not allow a meaningful and intelligent review of the alleged error, we decline to review it. Sabot v. Fargo Women's Health Organization, Inc., 500 N.W.2d 889, 892 (N.D.1993); see also Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 8, 660...