State v. Wilson, Cr. N

• Decision Date: 28 July 1992
• Docket Number: Cr. N
• Citation: 488 N.W.2d 618
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Donald E. WILSON, Defendant and Appellant. o. 910335.
• Court: North Dakota Supreme Court

Page 618

488 N.W.2d 618

STATE of North Dakota, Plaintiff and Appellee, v. Donald E. WILSON, Defendant and Appellant.

Cr. No. 910335.

Supreme Court of North Dakota.

July 28, 1992.

Wayne D. Goter (argued), Bismarck, for defendant and appellant; appearance by Donald E. Wilson.

Charles R. Isakson (argued), State's Atty., Stanton, for plaintiff and appellee.

JOHNSON, Justice.

Donald Wilson appeals from a conviction by a jury for delivery of a controlled substance in violation of section 19-03.1-23, N.D.C.C. We affirm.

This is the third time that Wilson has appealed to this Court. State v. Wilson, 466 N.W.2d 101 (N.D.1991); State v. Wilson, 450 N.W.2d 422 (N.D.1990). This appeal follows a new trial, which was held in Mercer County on September 18, 1991.

On January 23, 1989, Linda Keller, a police informant and former companion of Wilson, discussed and completed a purchase of marijuana from Wilson. Charles Turner, special agent of the Narcotics Division of the North Dakota Bureau of Criminal Investigations, testified that Wilson was targeted for this investigation because Keller indicated she had previously purchased marijuana from Wilson. Keller testified that she met with Wilson twice. Prior to the first meeting, Keller was searched and wired with radio equipment. She met with Wilson and gave him $100. She then went home, but was accompanied by law enforcement officers until she again met with Wilson. At this time, she received a baggie containing a green substance. Analysis of the substance revealed that it was composed of parsley and marijuana. Testimony of the law enforcement officers revealed that they did not search Keller prior to her meeting with Wilson, but that a search was conducted by a female employee of the Mercer County Sheriff's Department who did not testify at trial. Wilson's trial attorney made no objection to the hearsay testimony regarding the search of Keller.

On appeal, Wilson raises two issues: (1) Whether the trial court abused its discretion in not ordering a new trial at a later date; and, (2) Whether Wilson was denied the effective assistance of counsel.

Wilson's first issue involves the inclusion of the alternate juror in the jury deliberations. After the trial was concluded, the judge had the bailiff retire the jury, but neglected to dismiss the alternate juror. ¹ When the error was discovered, the judge consulted with Wilson, his attorney, and the State's Attorney on the record. The following exchange took place:

THE COURT: Any objection if I bring the jurors into the courtroom, excuse the alternate juror and tell them to commence their deliberations from the beginning?

MR. ISAKSON [State's Attorney]: State would have no problem with that, Your Honor.

MR. SLETTEN [Wilson's Attorney]: Any thoughts on that?

MR. WILSON: Yeah, but I don't want nothing throwed at me so I don't want to--

MR. SLETTEN: Do you want to go out and talk to me for a minute about it?

MR. WILSON: Sure.

(Interval.)

THE COURT: Okay. You are back in the room.

MR. SLETTEN: We've talked it over. We are asking that you declare a mistrial.

THE COURT: We'll start trial tomorrow at 9 o'clock. We'll call in the jury tomorrow for the morning if you do that. Tomorrow at 9.

MR. SLETTEN: Pardon? Is that what you would do? Do it right away?

THE COURT: Yes.

MR. SLETTEN: There is no point in doing this tomorrow, Don. Let's agree then that the judge will take them out, remove the one juror and instruct them to disregard what he said and we'll live with the verdict. Fair enough?

MR. WILSON: Definitely fine with me.

THE COURT: That's what I'll do. I think there is some legal bases [sic] for proceeding that way. They could deliberate for six hours and one of them have to be let go and I could call the alternate in and tell them to commence their deliberations from the beginning. That would be perfectly in accordance with case law as I understand. I don't see anything improper with this and I'll do it right away.

The court immediately called the jury into the courtroom, excused the alternate, and gave a curative instruction. ²

When the trial court failed to dismiss the alternate, it violated Rule 24(c) of the North Dakota Rules of Criminal Procedure. ³ The trial court was willing to give Wilson a new trial due to this error. However, after consulting his attorney, Wilson agreed that he would allow the alternate to be dismissed and accept the verdict.

Our case law allows a defendant to waive many constitutional rights, as long as the waiver is made voluntarily, knowingly, and intelligently. See City of Fargo v. Christiansen, 430 N.W.2d 327 (N.D.1988) (defendant can waive right to counsel if such waiver is knowingly and intelligently made); State v. Haugen, 384 N.W.2d 651 (N.D.1986) (defendant can waive right to jury trial but such waiver must be a voluntary, knowing, and intelligent decision done with awareness of circumstances and possible outcomes); State v. Carlson, 318 N.W.2d 308 (N.D.1982), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 609 (1982) (defendant can waive Miranda warnings, but the waiver must be voluntarily, knowingly, and intelligently made under the totality of the circumstances); see also Rule 23(a), N.D.R.Crim.P. (defendant may waive a jury trial in writing or in open court). We find that such waivers of constitutional rights must not be inferred, but must be clearly and intentionally made. State v. Manning, 134 N.W.2d 91, 97 (N.D.1965). Where a record is silent, a waiver cannot be presumed. State v. Kranz, 353 N.W.2d 748, 752 (N.D.1984). In fact, there is a presumption against waivers. Id. Manning, 134 N.W.2d at 97.

Wilson had opportunity to discuss the presence of the alternate with his attorney when they left the courtroom. Wilson requested a mistrial because of the alternate's presence in the jury room. The trial court was willing to grant Wilson a new trial the next day. Wilson claims that the trial court abused its discretion by setting the trial for the next day because, under section 29-16-07, N.D.C.C., defendants are allowed one day of trial preparation. ⁴ We recognize that section 29-16-07 requires at least one day preparation after a not guilty plea. However, this was not the case with Wilson's trial. He was allowed adequate trial preparation time prior to the September 18, 1991, trial. In fact, this was the second trial for Wilson. We cannot assume that setting a new trial for the next day was burdensome to Wilson. If the parties were prepared for trial, it may be assumed that starting again the following day would not create new problems of preparation. We do not conclude that the trial court abused its discretion or violated section 29-16-07, N.D.C.C.

Wilson knowingly, after conferring with counsel, waived his right to a new trial, by stating that he wanted to continue. While there might have been more extensive and private consultation, such is not required. Because we decide that Wilson knowingly waived his right to a new trial, we do not address the affect of the inclusion of an alternate juror in the jury deliberations. ⁵

Wilson's second issue involves a claim of ineffective assistance of counsel. Wilson alleges that he was deprived of effective assistance of counsel because his trial attorney allowed certain hearsay testimony into evidence. Wilson claims this testimony would not have been admissible under Rules 403, 404(b), 801, and 802 of the North Dakota Rules of Evidence. Specifically, Wilson claims two errors regarding the admission of hearsay testimony: (1) Counsel did not object to hearsay testimony regarding the search of the police informant prior to the alleged delivery of marijuana; ⁶ and, (2) Counsel did not object to testimony that Wilson was targeted because he had sold marijuana in the past. Wilson claims that this testimony created a reasonable probability of changing the outcome of the trial; however, Wilson does not indicate why or how the exclusion of these two pieces of evidence would have changed the guilty verdict. Additionally, Wilson claims that he was denied effective assistance of counsel when his attorney did not persist in the motion for mistrial. As we have already discussed, Wilson knowingly waived his right to a new trial; therefore, this argument is without merit.

We recognize that effective assistance of counsel is a guarantee of the Sixth Amendment to the United States Constitution and is applied to the States through the Fourteenth Amendment, and by Article I, Section 12, of the North Dakota Constitution. State v. Ricehill, 415 N.W.2d 481, 484 (N.D.1987). In Ricehill, this Court adopted a review standard for ineffective assistance of counsel claims raised on direct appeal. ⁷ The Court will review the whole record on appeal to determine if the record shows the defendant has been denied effective assistance of counsel. Ricehill, 415 N.W.2d at 485; State v. Sayler, 443 N.W.2d 915, 918 (N.D.1989).

We have stated, in several cases, that a defendant who claims ineffective assistance of counsel must establish two elements. Houle v. State, 482 N.W.2d 24 (N.D.1992); State v. Woehlhoff, 473 N.W.2d 446 (N.D.1991); State v. Skaro, 474 N.W.2d 711 (N.D.1991); State v. Ricehill, 415 N.W.2d 481 (N.D.1987); State v. Kunkel, 366 N.W.2d 799 (N.D.1985); State v. Patten, 353 N.W.2d 30 (N.D.1984); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must prove that the counsel's performance was deficient. Second, the defendant must prove that the deficient performance prejudiced the defendant. The burden of proving an ineffective assistance of counsel claim is on the defendant. State v. McLain, 403 N.W.2d 16, 17 (N.D.1987). Defense counsel in a criminal case is presumed to be competent and adequate in the absence of contrary evidence. State v. Wolf, 347 N.W.2d 573, 575 (N.D.1984). It is for trial counsel and not appellate courts to determine trial strategy and tactics. State v. Motsko, 261...