State v. Syvertson

Decision Date13 July 1999
Docket NumberNo. 980027.,980027.
Citation1999 ND 134,597 N.W.2d 652
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Charles E. SYVERTSON, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Wade Lykken Webb, Assistant State's Attorney, Fargo, for plaintiff and appellee.

Charles E. Syvertson, Bismarck, pro se.

Joe A. Johnson, Fargo, submitted brief for defendant and appellant.

MARING, Justice.

[¶ 1] Charles E. Syvertson appealed from a criminal judgment entered on a jury verdict finding him guilty of two class B felony counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03. We conclude the trial court did not err in refusing to suppress Syvertson's confession, Syvertson failed to show any prejudice resulting from the disclosure of the prosecution's sealed notice of intent to have Syvertson, if convicted, sentenced as a dangerous special or habitual offender, and any error the trial court committed in admitting parts of Syvertson's pretrial psychiatric evaluation at the sentencing hearing was harmless beyond a reasonable doubt. We affirm.

I

[¶ 2] On May 17, 1997, Syvertson was arrested and jailed in Wahpeton on charges unrelated to this appeal. On May 19, 1997, Sergeant Don Hukee of the Wahpeton Police Department interviewed Syvertson about the pending charges against him and pictures of children found in Syvertson's car. Syvertson was brought from his cell in the Richland County Jail to Hukee's office for the interview. Hukee did not inform Syvertson of his Miranda rights1 at any time during this first interview.

[¶ 3] While Syvertson was being held in the Richland County Jail, Syvertson's daughter met with a social worker in Minnesota and told her Syvertson had touched her sexually in Fargo about three years earlier when she was seven years old. The social worker, who handled intake assessments to determine the merits of child abuse allegations, forwarded a report to the Wahpeton Police Department. As a result of the report, Syvertson, while in jail, was also served with a restraining order to stay away from his daughter.

[¶ 4] About 4 a.m. on May 22, 1997, Syvertson gave a jail guard two notes and asked that he give them to the officer who arrested him. Later that day, Hukee received Syvertson's notes from another police officer. One of the notes gave police permission to retrieve items from the trunk of Syvertson's car. The other note said:

To: Cass County States Attorney
My daughter accused me of melosting (sic) her in the year of 1993 and I would like to let it be known that she was telling the truth. The incident occured (sic) in Fargo N.D. and no such incident has happend (sic) since. Dated this 21 May 1998(sic).
Charles E. Syvertson

[¶ 5] After receiving the notes, Hukee conducted a second interview with Syvertson in his office. Near the beginning of this interview, Hukee informed Syvertson of his Miranda rights and Syvertson responded that he understood them. During this interview, Hukee repeatedly encouraged Syvertson to confess to the molestation of his daughter, assured him he was not interested in arresting him, and was only interested in helping him and his daughter. Syvertson confessed in detail to molesting his daughter. The confession was videotaped.

[¶ 6] In July 1997, Syvertson was charged in Cass County with two counts of gross sexual imposition. The information alleged Syvertson had sexual contact with his daughter by placing his hand or fingers in her vaginal area on two occasions about one month apart in late 1993 or early 1994.

[¶ 7] Shortly after being charged, Syvertson, through court-appointed defense counsel, requested a psychological examination under N.D.C.C. §§ 12.1-04-06 and 12.1-04.1-02. The trial court granted the motion. The order of commitment to the State Hospital specified the purpose of the examination was to determine:

1) Defendant's fitness to proceed and assist in his own defense;
2) Whether Defendant lacks the substantial capacity to comprehend the harmful nature or consequences of the alleged conduct with which he is charged;
and,
3) Whether the alleged conduct with which Defendant is charged is the result of a loss or serious distortion of the Defendant's capacity to recognize reality.

[¶ 8] In the report of the psychiatric evaluation, the doctor concluded Syvertson was fit to proceed and assist in his own defense, did not lack substantial capacity to comprehend the harmful nature of his acts, and the alleged conduct was not the result of a loss or serious distortion of his ability to recognize reality. The doctor said "[i]t is our feeling that his behavior is a result of a sexual deviation best labeled as pedophilia and that the patient should be considered quite dangerous and capable of being quite aggressive." The doctor also said "[w]e could find no evidence of any thought disorder but clear evidence of a lot of sexual pre-occupation, difficulty dealing with anger and broad underlying destructive and aggressive impulses that make this individual quite frightening."

[¶ 9] In October 1997, the State filed a notice of intent to have Syvertson, if convicted, sentenced as a dangerous special or habitual offender. On the State's motion, the trial court sealed the request from public inspection. Nevertheless, the Forum, a Fargo newspaper, reported before trial "[p]rosecutors have filed a sealed notice with the court of their intent to have Syvertson, if convicted, be sentenced as a special dangerous offender or habitual offender, which would increase the potential sentences he faces."

[¶ 10] In December 1997, Syvertson filed several motions with the trial court, some of them pro se. Syvertson filed a notice of his intention to rely on the defense of lack of criminal responsibility by reason of mental disease or defect and moved to have the State's attempt to have him sentenced as a special dangerous or habitual offender dropped because of the newspaper's disclosure of that information to the public. He also asked for a change of venue because of the disclosure. Syvertson also moved to suppress various statements he made while in custody because Miranda warnings were not given before his first interview with Hukee.

[¶ 11] The trial court granted Syvertson's suppression motion in part, ruling statements he made during his first interview with Hukee would be suppressed because he was not given Miranda warnings. However, the court refused to suppress statements Syvertson made during the second interview with Hukee after he had been given Miranda warnings. The court found those statements were made voluntarily. The court also denied Syvertson's motion for change of venue because of the newspaper's disclosure of the State's intention to have Syvertson sentenced as a special dangerous or habitual offender because "as of this point in time the basis for a change of venue does not exist...."

[¶ 12] Four days before trial, the court granted Syvertson's request to represent himself during the trial, but appointed Syvertson's court-appointed attorney to serve as standby counsel. During trial, standby counsel questioned the victim and Syvertson when he took the stand to testify. Otherwise, Syvertson conducted his own defense. The jury returned a verdict of guilty on both counts. At the sentencing hearing, the State, over Syvertson's objection, presented certified copies of Syvertson's five prior felony convictions which were at least class C or above and were committed when he was an adult. The State requested Syvertson be sentenced as a habitual offender and given a total of 40 years in prison. The State, again over Syvertson's objection, quoted from the pretrial psychiatric evaluation during its sentencing argument. The trial court found Syvertson was a "habitual offender" under N.D.C.C. § 12.1-32-09(1)(c) because he had previously been convicted of two felonies, class C and above, and sentenced him to consecutive sentences of 15 years on each count, for a total of 30 years in prison. Syvertson2 appealed.

II

[¶ 13] Syvertson contends the trial court erred in denying his motion to suppress statements he made during his second interview with Hukee.

[¶ 14] The trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. State v. Garrett, 1998 ND 173, ¶ 11, 584 N.W.2d 502. This standard of review recognizes the importance of the trial court's opportunity to observe the witnesses and assess their credibility, and we accord great deference to its decision in suppression matters. State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827.

[¶ 15] Syvertson first claims all of his statements should be suppressed because he was not provided counsel after he requested an attorney when he was first booked into the Richland County Jail in Wahpeton on charges unrelated to this appeal. On May 17, 1997, Syvertson was arrested and given citations for open container, illegal possession of marijuana, driving under the influence, driving under suspension and possession of materials depicting sexual conduct by a minor in violation of N.D.C.C. § 12.1-27.2-04.1. Although the jailers and officers either denied or could not remember if Syvertson had requested counsel when Syvertson questioned them during the trial, Syvertson relies on part of an arresting officer's report of his driving under the influence charge to support his argument:

UPON ARRIVING AT THE JAIL I READ THIS SUBJECT HIS MIRANDA WARNING. TO WHICH THE SUBJECT STATED THAT HE WANTED A LAWYER AND THAT I HAD TO GET HIM ONE. I INFORMED HIM THAT I WOULD AFFORD HIM EVERY OPPORTUNITY TO CALL A LAWYER AND GET HIM A PHONE BOOK AND A PHONE TO USE. THE SUBJECT STATED THAT HE DID NOT WANT TO CALL A LAWYER AND HE WANTED ME TO GET HIM ONE.

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