State v. Torkelsen

Decision Date21 July 2008
Docket NumberNo. 20070140.,20070140.
Citation2008 ND 141,752 N.W.2d 640
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Steven Arthur TORKELSEN, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Lonnie Olson (argued), Ramsey County State's Attorney, Devils Lake, ND, and Lisa Beckstrom Gibbens (appeared), Towner County State's Attorney, Cando, ND, for plaintiff and appellee.

Daniel Eric Gast (argued) and Ross Wheeler Brandborg (on brief), Fargo, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Steven Torkelsen appeals from a criminal judgment after a jury found him guilty of murdering Rebecca Flaa. We affirm, concluding the district court did not err in denying Torkelsen's motion to suppress evidence seized, and Torkelsen was not denied the right to represent himself.

I

[¶ 2] At approximately 9:00 a.m., on June 27, 2004, Tom Belzer, a local farmer, discovered a human body burning in a ditch east of Cando. Belzer told one of his employees to call emergency personnel. Before law enforcement officers arrived, Torkelsen drove up to the scene in his pickup, stepped out onto the road, and asked Belzer if he needed any help. Torkelsen was smoking a cigarette at the time, and a cigarette butt containing Torkelsen's DNA was later found on the gravel road above the body. Belzer told Torkelsen to leave the area, and Torkelsen complied with the request.

[¶ 3] When law enforcement officers arrived, Belzer told them about Torkelsen. A "be on the lookout" bulletin was issued for Torkelsen's pickup. While en route to the crime scene, North Dakota Bureau of Criminal Investigations Agent Craig Zachmeier saw a green Florida Marlins jacket in the middle of the road, but proceeded on to the crime scene. The jacket was located on a direct route from the crime scene to Cando. Zachmeier arrived at the crime scene around 10:30 a.m., but later went back to collect the jacket. He noticed blood on the jacket, which was later tested and confirmed as Flaa's blood.

[¶ 4] At approximately 1:26 p.m., Torkelsen's vehicle was stopped 28 miles west of Cando. Torkelsen was informed that he was wanted for questioning and would be handcuffed for his own safety. Torkelsen was transported to Cando, and his pickup was left at the scene of the stop.

[¶ 5] Torkelsen's handcuffs were removed upon his arrival at the Towner County Sheriff's Office. Zachmeier began interviewing Torkelsen at approximately 2:15 p.m., and the interview was videotaped. Zachmeier read Torkelsen his Miranda rights, and Torkelsen acknowledged he understood them. Zachmeier informed Torkelsen he was not under arrest, but was being detained for questioning because he was at the crime scene; however, Zachmeier did not tell Torkelsen he was free to leave. Zachmeier asked Torkelsen if he could talk to him about what happened that morning, and Torkelsen consented. Zachmeier asked Torkelsen what he saw when he ran into Belzer earlier that day, where he was staying, and what he had been doing. Torkelsen said he stayed at his parents' house in Cando the previous night, but went to his camper in the morning, and then watched a movie and slept. Zachmeier requested Torkelsen's consent to search his pickup and camper, and Torkelsen consented to a search of his camper twice and to a search of his pickup three times. Zachmeier requested Torkelsen's permission to photograph Torkelsen's hands, arms, back and legs, and Torkelsen consented. Zachmeier noticed an odor of alcohol on Torkelsen's breath, and tests showed he had a blood alcohol concentration of .003 percent. At approximately 3:00 p.m., Zachmeier read Torkelsen the written consent to search form, which included language about the right to refuse to consent to the search. Torkelsen signed consent forms for searches of the camper and pickup.

[¶ 6] At approximately 3:30 p.m., Torkelsen and law enforcement officers arrived at the camper, located on the Abrahamson farm. Torkelsen consented to the search again and showed officers how to unlock and enter the camper. Law enforcement officers found incriminating evidence in the camper, including tissue containing what appeared to be human blood; marijuana cigarette packs; rolling papers; papers with Flaa's name on them; a video cassette case with what appeared to be human blood on it; blood on a cupboard, cabinet doors, molding, and the ceiling; a bag containing makeup with the name Becky; a knife with a broken tip in the sink; cigarette and marijuana cigarette butts; and papers with Torkelsen's name on them. At approximately 5:00 p.m., before leaving the site of the camper search, Torkelsen again consented to a search of his pickup. Before going to Torkelsen's pickup, officers gave Torkelsen something to eat and drink, but denied his request to stop at his parents' house.

[¶ 7] At 6:20 p.m., the officers and Torkelsen arrived at the pickup for the search. Torkelsen consented to a search of the pickup again. The officers searched the pickup and found human hair; burnt fabric; a bloody bed sheet, which was later tested and confirmed as Flaa's blood; a pillow case; a knife; a blanket with hairs on it; three .270 caliber rifle cartridges; nylon rope; and black plastic bags. The search was completed around 7:45 p.m., and Torkelsen was transported back to Cando for a second interview.

[¶ 8] At 6:30 p.m., Highway Patrol Trooper Robert Kennedy learned from another law enforcement officer that Torkelsen and Flaa had been staying together at the Abrahamson farm, owned by J.R. Gibbens. Kennedy visited with Gibbens and learned Gibbens had padlocked the farmhouse a week earlier to prevent Torkelsen and Flaa from using it. At 7:40 p.m., Gibbens signed a consent form allowing officers to search the farmhouse located on the Abrahamson farm. At 8:45 p.m., officers searched the farmhouse and outbuildings and found a document and a magazine with Torkelsen's name in the farmhouse, a clump of auburn hair similar to Flaa's in the bathroom garbage and a spot of blood in the living room.

[¶ 9] At 9:45 p.m., Torkelsen was interviewed a second time, and the interview was videotaped. Zachmeier read Torkelsen the Miranda warning again, and Torkelsen acknowledged he understood his rights. Torkelsen reviewed the consent to search forms and stated he did not have a problem with the searches of his camper and pickup. Zachmeier asked Torkelsen about the evidence found during the searches. Torkelsen said he was in a sexual relationship with Flaa. He said that she stayed with him in his camper on June 23, that he left the camper the next morning to go to his parents' house in Cando, but Flaa was not at the camper when he returned at 9:00 p.m. that night and that he thought she left to go back to her boyfriend. He said he stayed at his parents' house on June 25 and 26, but he left his parents' house at 6:00 a.m. on June 27 and returned to the camper where he slept until 8:30 a.m. He stated he was traveling back to Cando on a rural county road out of his way, when he saw Belzer and asked if he needed any help. He said that after he talked to Belzer, he returned to his parents' house, showered, changed his clothes, then left, after which law enforcement stopped his vehicle and took him into custody. Torkelsen also said he left a pair of work boots and a pair of tennis shoes at his parents' house. He gave a description of Flaa, which matched the body found in the ditch, and identified the green Florida Marlins jacket as Flaa's. Torkelsen claimed Flaa cut her lip and had a bloody nose to explain the blood found in the camper. At 10:05 p.m., Torkelsen consented to give a saliva sample for DNA. Torkelsen was formally arrested and taken to the Lake Region Correctional Center at approximately 11:30 p.m.

[¶ 10] At around 11:30 p.m., Zachmeier interviewed Torkelsen's parents, Art and Leona Torkelsen. They said Torkelsen had been with Flaa, he came to their home on June 24 to get candy and food for Flaa, but he told them she was gone when he returned to the camper. Art and Leona Torkelsen consented to a search of their house, but Art Torkelsen later revoked his consent. The officers left the house, but one officer came back to watch the house. Zachmeier applied for a search warrant by telephone and testified in support of the warrant. Zachmeier requested the warrant authorize a no-knock search and nighttime service. Zachmeier testified a nighttime search warrant was justified because they were investigating a serious offense, because he was concerned Torkelsen's parents may try to get rid of evidence to protect their son, and because Torkelsen's parents had posted a substantial bond for him before. A search warrant was issued at 2:28 a.m., authorizing a search of Art and Leona Torkelsen's home for controlled substances and items connected to the murder. The warrant included no-knock and nighttime service provisions. The issuing magistrate authorized a nighttime search and said, "Based on the seriousness of the crime, and based on the unwillingness of the owners of the residence to help you in the search a night time service of this search warrant is authorized."

[¶ 11] The officers executed the search warrant at 2:45 a.m., and Zachmeier did not participate in the search. They knocked and rang the doorbell to wake Art and Leona Torkelsen and did not use the no-knock provision. The officers seized boots located in the garage which were splattered with blood and had hair on the bottom, gas cans from the shed, and firearms.

[¶ 12] On June 28, 2004, officers talked to a witness who saw Torkelsen pour gas into his pickup from a red gas can on the morning of June 27, in the alley behind his parents' house. A second witness, one of Art and Leona Torkelsen's neighbors, reported seeing Torkelsen place a yellow woman's shirt in the witness's trash can on the morning of June 27. Two other individuals reported seeing Torkelsen acting strangely as he unloaded items from his truck at his parents' house on June 27.

[¶ 13] Later that...

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