State v. Valgren, Cr. N

• Decision Date: 20 August 1987
• Docket Number: Cr. N
• Citation: 411 N.W.2d 390
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gordon E. VALGREN, Jr., Defendant and Appellant. o. 1226.
• Court: North Dakota Supreme Court

Page 390

411 N.W.2d 390

STATE of North Dakota, Plaintiff and Appellee, v. Gordon E. VALGREN, Jr., Defendant and Appellant.

Cr. No. 1226.

Supreme Court of North Dakota.

Aug. 20, 1987.

James O. Johnson, Asst. State's Atty., Stanton, for plaintiff and appellee.

Hagen, Quast & Alexander, Beulah, for defendant and appellant; argued by Larry W. Quast.

LEVINE, Justice.

Gordon E. Valgren, Jr., appeals from a judgment of conviction entered upon a jury verdict finding him guilty of driving while under the influence of alcohol. We affirm.

On May 3, 1986, Beulah police officer Mike Lynk arrested Valgren outside the incorporated city limits of Beulah for driving while under the influence of alcohol. Valgren was taken to the Mercer County Sheriff's Office where he was recorded on audio-visual tape while he was being booked and given two Intoxilyzer tests.

The court determined that Valgren was indigent and appointed counsel to represent him. On May 16, 1986, Valgren moved to take discovery depositions, at state expense, of officer Lynk and all other eyewitnesses to the arrest. He also moved to dismiss the complaint on the ground that, at the time of the arrest, officer Lynk did not have probable cause to believe Valgren was driving while under the influence of intoxicating liquor. The State resisted the motion to take depositions at its expense, contending that less formal means of discovery were available and that the motion should be denied for reasons of "economics and practicality." The court denied the motion for depositions, but granted a hearing to determine probable cause:

"THE COURT: I'll grant a hearing as regards Officer Link. Anyone else you want at the hearing?

"MR. QUAST: At this point I'm not sure, Your Honor. I would prefer to make that definitive statement to this Court after all of the depositions have been completed.

"THE COURT: I'm not going to allow the depositions.

"MR. QUAST: How am I going to discover the facts and examine and cross examine?

"THE COURT: Be ingenious, get the facts from your client and make a determination as to who you need at that hearing. If you want all three of them, get all three of them.

"MR. QUAST: I would then like all three of them if I'm not going to be permitted to take discovery.

"THE COURT: All right, you may have all three of them."

However, Valgren did not avail himself of the opportunity for a probable cause hearing.

On June 4, 1986, Valgren served a demand for discovery and inspection on the State's Attorney which requested, among other things, "[a]ll books, papers, documents, photographs, sound or video recordings, tangible objects, buildings, or places which are intended for use by the State as evidence at the trial or were obtained from or belonging to Defendant." The Assistant States Attorney responded:

"In response to your Demand for Discovery and Inspection, the following documents are enclosed: (1) Intoxilyzer test record (2), (2) Request and Notice form, (3) Offense/Incident Report, and (4) Driving record.

"The witnesses that may be called are Mike Lynk, Beulah Police Department, Stan Burling, Mercer County Sheriff's Office, Kevin Boeshans, Mercer County Sheriff's Office and Florence Giles, Mercer County Sheriff's Office. To the best of my knowledge none of these witnesses have prior felony convictions.

"Any of your client's statements are either recorded on video tape or reflected in the officer's report. You may inspect the video tape at your convenience at the Mercer County Sheriff's Office.

"This is intended as a complete response to your Demand for Discovery and Inspection."

At trial, Valgren moved to prevent the State from playing the audio-visual tape to the jury. The trial court denied his motion, ruling that it was not timely. Valgren also moved to dismiss the complaint, asserting that Lynk, a Beulah police officer, lacked jurisdiction to arrest him because the arrest was more than one and one-half miles outside the Beulah city limits. The court denied his motion. Thereafter, the jury returned a guilty verdict and Valgren appealed.

Valgren initially contends that the trial court erred in denying his motion for discovery depositions at state expense. He asserts that he would have been able to take those depositions had he not been indigent. Thus, he argues that the denial of his motion violated the equal protection and due process clauses of the United States Constitution and Art. 1, Sec. 12 of the North Dakota Constitution. He argues that his inability to take those depositions deprived him of a fair trial.

The State responds that there were adequate alternatives to discovery depositions which Valgren failed to employ. The State asserts that the police officers were available for tape recorded interviews and would have been available for cross-examination at the probable cause hearing.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Court held that an indigent defendant, who makes a preliminary showing that his sanity at the time of the alleged offense is likely to be a significant factor at trial, must be provided, at State expense, access to psychiatric assistance on that issue. The rationale for providing an indigent defendant the basic tools of an effective defense, or an adequate alternative, is instructive:

"This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake....

"Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600 [94 S.Ct. 2437, 41 L.Ed.2d 341] (1974), it has often reaffirmed that fundamental fairness entitled indigent defendants to 'an adequate opportunity to present their claims fairly within the adversary system,' id., at 612 To implement this principle, we have focused on identifying the 'basic tools of an adequate defense or appeal,' Britt v. North Carolina, 404 U.S. 226, 227 [, 92 S.Ct. 431, 433, 30 L.Ed.2d 400] (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them." Ake v. Oklahoma, 470 U.S. at 76-77, 105 S.Ct. at 1093-1094, 84 L.Ed.2d at 61-62.

See Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) [indigent defendant was not denied due process or equal protection where he had access to adequate alternative for requested materials].

In this case, Valgren was not denied access to the "raw materials integral to ... an effective defense." He had the opportunity to take statements from each of the officers involved. The court also authorized Valgren to examine the arresting officer or any other officers at the probable cause hearing. However, Valgren did not exercise that authority. The trial court's denial of Valgren's motion for discovery depositions at state expense is no indication that Valgren would have been limited in any manner in examining any officers at the probable cause hearing. Under these circumstances, we conclude that Valgren had an adequate alternative to taking discovery depositions at state expense, and the trial court did not err in refusing to allow him to take those depositions.

Valgren next contends that the trial court erred in permitting the jury to view the audio-visual tape because the tape compelled him to be a witness against himself.

Valgren did not make a pre-trial motion to suppress the audio-visual tape. His objections to the audio-visual tape were made at trial. The trial court denied Valgren's motion to suppress, determining that it was not timely. Thereafter, Valgren moved for a continuance or, alternatively, that the audio portion of the tape not be played to the jury. The trial court also denied that motion.

N.D.R.Crim.P. 12 provides:

"(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:

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"(3) Motions to suppress evidence on the ground that it was illegally obtained;

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"(c) Motion Date. At the time of the arraignment or as soon thereafter as practicable, the court may set a time for making pretrial motions and, if required, a later date for hearing.

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"(f) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to Subdivision (c), or prior to any extension thereof made by the court, shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver." [Emphasis added].

In State v. Demery, 331 N.W.2d 7 (N.D.1983), we said that the failure to make a motion required to be made prior to trial pursuant to N.D.R.Crim.P. 12(b), operates as a waiver of that motion under N.D.R.Crim.P. 12(f). In that case we declined to consider the defendant's argument on appeal, noting that she had not attempted to establish just cause for her...