Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.
The opinion of the court was delivered by: Crothers, Justice.
[¶1] Danial Ray Curtis appeals from a criminal judgment entered after a jury found him guilty of assaulting a police officer, disarming or attempting to disarm a law enforcement officer and preventing arrest or discharge of other duties. Curtis claims he was denied a fair trial because he did not receive assistance in subpoenaing witnesses for trial and because the district court failed to follow the appropriate procedure for answering requests from the jury during its deliberations. We hold Curtis's request for subpoenas was not timely and the error involving the jury requests was harmless beyond a reasonable doubt. We affirm.
[¶2] In February 2007, the State charged Curtis with simple assault on a peace officer, attempting to disarm a law enforcement officer, preventing arrest or discharge of other duties, and criminal mischief. The charges stemmed from a February 4, 2007, altercation between Curtis and Fargo law enforcement officers while the officers were attempting to arrest Curtis.
[¶3] The district court granted Curtis's application for court-appointed counsel, and Patrick O'Day was appointed to represent Curtis. A jury trial was scheduled for September 11, 2007, and Curtis appeared with counsel that day. However, the trial was continued after Curtis stated he wanted to represent himself, and the court ordered him to undergo a competency examination, resulting in a determination that he was competent to stand trial and to assist his defense.
[¶4] On November 1, 2007, O'Day moved to withdraw as counsel, stating Curtis had "repeatedly insisted upon representing himself" and had "stated unequivocally on the record" at least two to three times at the September 11, 2007 hearing "that he did not desire to have his attorney represent him." A hearing on O'Day's motion to withdraw was scheduled for November 14, 2007, but Curtis did not appear at the hearing. The record does not reflect that the district court ruled on the motion before trial; however, during jury selection on December 4, 2007, O'Day informed the district court that Curtis wanted to represent himself. After an extended colloquy with Curtis, the court granted his request to represent himself and ordered O'Day to assist Curtis as standby counsel.
[¶5] After jury selection, Curtis informed the district court he "need[ed] more time for [his] subpoena powers, to subpoena the doctor that was involved in the case. I've not had time to work out all the subpoena things." Curtis explained his "whole case wraps around a doctor. If you're not going to proceed with the doctor being here-I want her to be here. I need more time, because I can't defend myself with this last minute separation." The court stated the "last minute separation" was a result of Curtis's choice to represent himself and treated his request as a motion for a continuance, which the court denied.
[¶6] At trial, Fargo Police Officer Bret Witte testified that on February 4, 2007, Curtis did not have a valid driver's license and there were outstanding warrants for his arrest. Witte testified he observed Curtis driving a motor vehicle in Fargo, he activated the flashing lights on his patrol car to make a traffic stop and he approached Curtis's vehicle as it was turning into a driveway at Curtis's residence. Witte testified he saw Curtis exit "the vehicle quickly and begin jogging towards his residence" and he shouted at Curtis to "stop." According to Witte, Curtis "continued jogging toward his residence" and he apprehended Curtis near the residence where an altercation ensued between them. During the altercation, other Fargo police officers arrived at the scene, including Officers William Ahlfeldt, Sarah Rasmussen, Brad Zieska and Jason Loos. Witte testified he used pepper spray on Curtis and, with the other officers, eventually subdued and arrested Curtis. There was evidence that Officer Witte's taser was broken during the altercation, that Curtis attempted to grab Officer Ahlfeldt's gun, that Officer Rasmussen deployed her taser on Curtis and that the officers used force to subdue Curtis. At trial, the State introduced into evidence and played a video and audio recording of the altercation, which was recorded from Officer Ahlfeldt's patrol car.
[¶7] According to Curtis, his son, Shane, was driving the vehicle that night, and Curtis came out of his residence when Shane arrived there. Curtis testified he did not know who grabbed him and he thought he was being mugged. During trial, Curtis reiterated that he wanted to exercise his subpoena powers but did not know how to issue subpoenas and that his court-appointed counsel had not helped him. Curtis also identified several potential witnesses he wanted at trial, including his son, his brother and his probation officer.
[¶8] The jury began deliberations at about 5:15 p.m. on December 5, 2007. At about 5:50 p.m. on December 5, the jury asked to "have a laptop to view [the recording from Officer Ahlfeldt's patrol car] in the jury room." The district court considered that request on the record outside the presence of the jury with the prosecuting attorney, Curtis and O'Day present and decided to play the video and audio recording the next morning for the jury in open court. At about 9:00 a.m. on December 6, the court played the video and audio recording for the jury in open court with the prosecuting attorney, Curtis and O'Day present. The jury thereafter continued its deliberations.
[¶9] At about 11:50 a.m. on December 6, the district court met in open court on the record outside the presence of the jury with the prosecuting attorney and O'Day. The record reflects Curtis was not present because he had been taken by ambulance to a Fargo hospital for a medical emergency. The court informed the prosecuting attorney and O'Day that the jury had submitted a second request to the court at about 10:50 a.m. to "listen to audio of Officer Ahlfeldt's car video" for a specific time frame and asked to have that "time frame played twice." The court asked the prosecutor for his thoughts on how to proceed, and the prosecutor recommended allowing the jury to continue to deliberate and offered to do some additional legal research on the issue of Curtis's absence. The court offered standby counsel an opportunity to respond, and O'Day informed the court his role was standby counsel and he could not speak on behalf of Curtis. The court allowed the jury to continue deliberating without answering the second request or otherwise communicating with the jury.
[¶10] At about 1:35 p.m., the court met on the record outside the presence of the jury with the prosecuting attorney and O'Day and informed them a third request had been received from the jury at about 12:50 p.m. That request referred to the recording from Officer Ahlfeldt's car and read "could we have a laptop to view the [video and audio recording]? (In the jury room)." O'Day stated he had telephoned Curtis at the hospital and Curtis demanded to be present during the proceedings. The court and the prosecuting attorney discussed how to proceed on the record. The court was then informed Curtis would be returning "to the courtroom shortly" and recessed for the next half hour without answering the two requests or otherwise communicating with the jury.
[¶11] The jury continued to deliberate, and at about 2:30 p.m., while Curtis was still at the hospital, the jury indicated it had reached a verdict. The court met with the prosecutor and O'Day on the record and informed them that Curtis would not be returning to the courtroom from the hospital that day and the jury had reached a verdict. After further discussions on the record with the prosecuting attorney and with O'Day present about how to proceed, the court accepted sealed verdicts from the jury in open court while Curtis was absent. The court reconvened on December 7 with the attorneys, Curtis and the jury present and opened the sealed verdicts in open court. In those verdicts, the jury found Curtis guilty of assaulting a police officer, disarming or attempting to disarm a law enforcement officer, preventing arrest or discharge of other duties and not guilty of criminal mischief.
[¶12] Curtis argues he was denied his state and federal constitutional rights to a fair trial because he did not receive assistance in subpoenaing his witnesses. Curtis claims that his son, Shane, would have testified Shane was driving the vehicle on February 4, 2007; that Curtis's brother would have testified about his observations during the arrest and that Curtis's probation officer would have testified there were no outstanding warrants for Curtis's arrest. Curtis asserts his proffered reasons for subpoenaing those witnesses indicated they would have provided favorable and material testimony to aid his defense. He argues the failure of the district court and standby counsel to secure the attendance of those relevant and favorable witnesses violated his constitutional rights.
[¶13] In State v. Curtis, 2008 ND 108, ¶ 12, 750 N.W.2d 438, we outlined requirements for a criminal defendant's constitutional right to compulsory process for procuring attendance of witnesses:
"A criminal defendant's Sixth Amendment right [to compulsory process] is not absolute, and does not guarantee the right to secure the attendance and testimony of any and all witnesses. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); State v. Hilgers, 2004 ND 160, ¶ 25, 685 N.W.2d 109; State v. Stockert, 2004 ND 146, ¶ 12, 684 N.W.2d 605; State v. Treis, 1999 ND 136, ¶ 11, 597 N.W.2d 664. The trial court `is not obligated to issue every subpoena requested by a defendant.' Hilgers, at ¶ 32. The defendant has the burden of showing that the testimony would have been both favorable and material to his defense. Valenzuela-Bernal, at 867; Hilgers, at ¶ 25; Stockert, at ¶ 12; Treis, at ¶ 11. `Whether the district court's refusal to issue a subpoena violates the Sixth Amendment is a question of law, and our standard of review for a claimed violation of a constitutional right is de novo.' Hilgers, at ¶ 25 (quoting Treis, at ¶ 11); see also Stockert, at ¶ 12."
[¶14] According to Curtis, the witnesses he claims should have been subpoenaed would have provided favorable and material testimony for his defense. Curtis's claims, however, are intertwined with his decision to represent himself and with the timing of his requests.
[¶15] "[A]s a corollary to a criminal defendant's Sixth Amendment right to counsel, the defendant also has a right to self-representation if the defendant knowingly and intelligently elects to proceed pro se." State v. Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451 (citing Faretta v. California, 422 U.S. 806, 807 (1975)). This Court has explained, that "a defendant's right to self-representation is not a license to abuse the dignity of the courtroom, nor to ignore rules of procedure." Hart, at ¶ 6. A court may appoint "`standby counsel' to assist the defendant and to represent the defendant if termination of self-representation is necessary." Hart, at ¶ 6 (citing Faretta, at 834 n.46). However, there is no constitutional right to standby counsel or to hybrid representation. See State v. Ochoa, 2004 ND 43, ¶ 29, 675 N.W.2d 161; City of Fargo v. Rockwell, 1999 ND 125, ¶ 18, 597 N.W.2d 406. "An attorney participating as standby counsel remains an officer of the court, and he therefore must `always aid in facilitating the judicial process.'" Curtis, 2008 ND 108, ¶ 15, 750 N.W.2d 438 (quoting State v. Stokes, 243 N.W.2d 372, 375 (N.D. 1976)). "[T]here is no federal or state constitutional right to standby counsel." Rockwell, at ¶ 18. In Rockwell, we explained:
"`Absent a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective.' `As the word "standby" implies, standby counsel is merely to be available in case the court determines that the defendant is no longer able to represent himself or in case the defendant chooses to consult an attorney.' As a practical matter, standby counsel does not represent the defendant; the defendant represents himself and may or may not chose to consult with his standby counsel during the course of the proceedings. The duties and responsibilities of standby counsel are understandably less than the obligations of retained or appointed counsel. Thus, standby counsel is not `counsel' within the context of the Sixth Amendment."
Id. at ¶ 19 (citations omitted).
[¶16] The record indicates there were some delays in this case, including a continuance for a competency examination after Curtis said he wanted to represent himself and a delay when Curtis did not show up for a hearing on O'Day's motion to withdraw as counsel. On the first day of trial during jury selection and after an extended discussion with Curtis about the dangers of self-representation, the district court granted Curtis's request to represent himself and designated O'Day as standby counsel. Curtis does not claim that he did not knowingly and intelligently waive his right to counsel, see Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451, and the court informed Curtis that standby counsel was available to assist Curtis, but was not representing him.
[¶17] After the jury was chosen, the following colloquy occurred:
"MR. CURTIS: As far as I'm aware, if I'm counsel today, I need more time for my subpoena powers, to subpoena the doctor that was involved in the case. I have not had time to work out all the subpoena things. I've been asked by the doctor that said I should have the right to have subpoena rights. The only non-official, non-police officer person, is not going to be here, and that my whole case wraps around a doctor. If you're not going to proceed with the ...