State v. Waters

• Decision Date: 30 January 1996
• Docket Number: Nos. 950231,950232 and 950233,s. 950231
• Citation: 542 N.W.2d 742
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James Peter WATERS, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 742

542 N.W.2d 742

STATE of North Dakota, Plaintiff and Appellee, v. James Peter WATERS, Defendant and Appellant.

Criminal Nos. 950231, 950232 and 950233.

Supreme Court of North Dakota.

Jan. 30, 1996.

Stuart A. Larson (argued), State's Attorney, Hillsboro, for plaintiff and appellee.

Nelson Law Office, Fargo, and Olson Law Office, Grand Forks, for defendant and appellant; argued by Robin L. Olson.

MESCHKE, Justice.

James Peter Waters appeals from jury convictions of driving under the influence, driving with his license suspended, and fleeing a police officer. We conclude the trial court did not abuse its discretion in denying the last-minute continuance motion by Waters for more time to hire counsel of his choice. We affirm.

On October 29, 1994, Waters was in a one-vehicle accident near Hillsboro, North Dakota, while he was fleeing from a police officer. Waters was charged with driving under the influence, driving with his license suspended, driving without liability insurance, and fleeing a police officer.

On November 2, 1994, Waters's request for court-appointed counsel was granted, and Steven Mottinger was soon appointed as Waters's attorney. On June 8, 1995, Waters received notice that his trial would begin on July 6.

In mid-June, Waters asked attorney Alan Larivee to represent him at trial. Because of a conflict with the trial date, Larivee asked the clerk of court if the trial could be rescheduled. The clerk told Larivee that the court would not reschedule the trial unless Waters formally moved for a continuance. Waters did not move for a continuance, and the trial court assumed Larivee would not represent him at trial. According to Waters, he also unsuccessfully tried to hire attorney Ward Johnson after learning of Larivee's conflict with the July 6 trial date.

On the morning of trial, still represented by Mottinger, Waters orally moved the trial court for a continuance so he could obtain private counsel. After noting that Waters was arrested on October 29, 1994, the court stated: "That's nine months ago. Mr. Waters has had nine months to retain counsel. Unless he has an awfully good explanation as to why he hasn't done that, I'm not inclined to grant any continuances." Waters tried to explain:

I ended up in the hospital with a broken neck and stuff. It took quite a while before they found the problem and operated on it and stuff. And because of another earlier injury from a construction accident, I had another operation on April 24th on my foot.

So I've been pretty much laid up all year long and stuff, and at that time I didn't have any money or resources.... And I just felt--since then I've made the settlement a little bit with workman's comp and I've gotten some more money and stuff, and I just felt I wanted--how to put it--better legal counsel than what I thought I was receiving; although, Mr. Mottinger is very good and stuff.

I just felt that a private lawyer would probably serve me best than having a court-appointed one, and I have been trying for the last two months to retain a lawyer. After I got the letters back from Mr. Larivee and stuff, I contacted Ward Johnson. And he wasn't going to be available until the 14th, and I couldn't talk to him. He's out on reserves for two weeks. So I have been looking for counsel.

The Court responded:

There are 500 lawyers that practice law between Fargo and Grand Forks. Now, I don't quite understand how it can come to pass that over a period of seven weeks you can't find a lawyer to try this case....

WATERS: As I said, I just came into some financial resources here recently.

COURT: How recently?

WATERS: About two months ago.

The Court then ruled:

I'm not going to grant that motion for a continuance. I don't see any reason for it. I don't see any reason why Mr. Mottinger--there's been no reason offered why Mr. Mottinger can't try this case. There's been no reason offered as to what difference hiring private counsel would be, and I just don't think that ... [a] continuance is in the best interest of justice, particularly in light of the fact that, if this case is continued, we're not going to get it on the calendar for another two months. At the very earliest, probably more like three months.... Motion's denied.

After the State presented its evidence at trial, the trial court ruled there was insufficient evidence for the charge of driving without insurance and dismissed it. A jury then found Waters guilty of driving under the influence, driving with his license suspended, and fleeing a police officer. Waters appealed.

Although Waters concedes that he "was afforded his right to counsel at trial," and that there are no cases "directly on point regarding this issue," Waters argues Article I, § 12 of the North Dakota Constitution grants him the "fundamental right to counsel of his choice if he is financially able to retain counsel." Section 12 declares, "In criminal prosecutions ..., the party accused shall have the right ... to appear and defend in person and with counsel."

Waters argues he "lost his right to an appointed attorney when he became financially able to afford his own and informed the Court." Waters suggests that the trial court did not find that he "was trying to delay the trial" or that the State "would be prejudiced in some way" by the continuance. Therefore, Waters argues, "given this fundamental right to counsel of choice," the trial court acted unreasonably in denying...