Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.
The opinion of the court was delivered by: Sandstrom, Justice
[¶1] Billy Joe Valdez Aguero and Joseph Daniel Moncada appeal from criminal judgments entered after a jury found they were each guilty of two counts of murder and two counts of conspiracy to commit murder. We affirm the judgments.
[¶2] At approximately 11:45 p.m. on September 7, 2001, the bodies of Robert Belgarde and his son, Damien Belgarde, were found in a rural area near Grand Forks. Robert and Damien Belgarde each had several gunshot wounds, and Robert Belgarde suffered from a blunt force injury to his head. Law enforcement recovered a broken beer bottle, a partially smoked cigarette, unspent 9 mm cartridges, bullet casings, and fired bullets from the crime scene.
[¶3] In August 2008, Aguero and Moncada were each charged with two counts of murder in violation of N.D.C.C. § 12.1-16-01, a class AA felony, and two counts of conspiracy to commit murder in violation of N.D.C.C. § 12.1-06-04, a class AA felony, for the deaths of Robert and Damien Belgarde. The State alleged the Belgardes contacted Moncada to purchase drugs, Aguero and Moncada met the Belgardes at a grocery store, and Aguero and Moncada took the Belgardes to a rural area near Grand Forks where they hit Robert Belgarde on the head with a beer bottle and shot the Belgardes multiple times.
[¶4] The cases were joined for trial. Moncada was in prison in Minnesota at the time he was charged with the murders and he filed a request for final disposition under the Agreement on Detainers, requesting speedy disposition of the detainer under N.D.C.C. § 29-34-01. On January 30, 2009, the State moved to extend the time for the detainer, and Moncada objected. The court granted the State's motion. Before trial, Moncada's attorney requested the defendants wear non-visible restraints, and the court granted the request. A jury trial was held June 15-25, 2009. Moncada and Aguero wore leg restraints during the trial. The jury found Aguero and Moncada were both guilty as charged.
[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.
[¶6] After the appeal was filed, the defendant moved to remand the case to the district court to correct the record to reflect that restraints were visible to the jury. This Court remanded to the district court to hear the motion. After an evidentiary hearing, the district court denied the motion to amend the record.
[¶7] Aguero and Moncada argue they were denied the right to a fair trial because they were required to wear leg restraints during the trial. They claim the leg restraints were visible and the court did not make any findings that the restraints were necessary for courtroom security.
[¶8] We review a district court's decision whether to use physical restraints during court proceedings for an abuse of discretion. State v. Kunze, 2007 ND 143, ¶ 14, 738 N.W.2d 472. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.
[¶9] In Deck v. Missouri, 544 U.S. 622, 629 (2005), the defendant was shackled with leg irons, handcuffs, and a belly chain that were visible to the jury, and the United States Supreme Court held that the Constitution forbids the routine use of visible shackles during the guilt phase of a criminal trial, unless the use is justified by an essential state interest:
[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.
[¶10] State interests justifying the use of visible restraints include physical security, escape prevention, and courtroom decorum. Deck, 544 U.S. at 628. In deciding whether restraints should be used, a trial court should consider various factors, including the accused's record, temperament, desperateness of his situation, his physical condition; the security situation in the courtroom and courthouse; and whether there was an adequate means of providing security that was less prejudicial. Kunze, 2007 ND 143, ¶ 18, 738 N.W.2d 472. If visible restraints are used, the court must make case-specific findings and explain its reasons on the record, justifying the use. Id. at ¶¶ 18, 21, 24. When a court, "without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove 'beyond a reasonable doubt that the shackling error complained of did not contribute to the verdict obtained.'" Deck, at 635 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
[¶11] In a pretrial motion Moncada requested the court order the defendants wear non-visible restraints:
counsel for the Defendant is requesting that Joseph Daniel Moncada be allowed to appear before the finder of fact without visible restraints and in non-jail garb. There is a restraint that may be worn underneath the clothing of an accused that is more than adequate for security and still allows sedate movement to and from the witness stand with nothing more than a limp. Aguero joined Moncada's motion. In the March 19, 2009, pretrial conference the court granted Moncada's motion, stating, "we'll grant the Defendant's Motion for street attire and non-visible restraints." The defendants requested the court order non-visible restraints, and the court granted the motion. Because the defendants requested restraints, they waived any claim that the court violated their constitutional rights by failing to make the required findings about the necessity of restraints. Cf. State v. Klose, 334 N.W.2d 647, 651 (N.D. 1983) ("a person legally should not be permitted to benefit from an error resulting from or through the action that he promoted or instigated"; a defendant cannot complain and use to his advantage an error caused by the court's actions at the defendant's request).
[¶12] We have also said a court's findings on the necessity of restraints should include "the reason for not accommodating a request for one type of restraint rather than the other when the reason is not obvious on the record." Kunze, 2007 ND 143, ¶ 24, 738 N.W.2d 472. If Moncada's pretrial motion can be interpreted as a request for a specific type of restraint, the court granted the motion as requested. Although Moncada and Aguero were later restrained with leg shackles instead of restraints worn under clothing, the court did not make any findings about the reason for not accommodating the defendants' request. The defendants objected to the leg shackles, arguing they were potentially visible to the jury. Although an argument that there should have been findings about the reason for not accommodating the defendants' request for a certain type of restraint could have been raised more clearly, it was error to use another type of restraint without the required findings.
[¶13] The Deck standard applies "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury," Deck, 544 U.S. at 635, but failure to make findings about the court's reason for not accommodating a request for a specific type of restraint is harmless when there is no evidence the jury saw the restraints or the restraints interfered with a defendant's defense. See People v. McWhorter, 212 P.3d 692, 732 (Cal. 2009) (an unjustified or unadmonished shackling is harmless when there is no evidence the jury saw the restraints); Mendoza v. Berghuis, 544 F.3d 650, 654-55 (6th Cir. 2008) (Deck applies only to visible restraints). In this case, there is no evidence in the trial record that the jury saw the restraints. It is not clear from the record what type of restraints the defendants were wearing, only that they were leg restraints with chains. There is evidence in the record that the tables the defendants sat at during the trial blocked the view the jury had of their feet and that boxes were placed around the table to further obstruct the jury's view. The court specifically found the view of the defendants' feet was properly obstructed. Although Aguero claims jurors may have seen or heard the restraints when they were unexpectedly brought into the courtroom on one occasion and the defendants rushed to their seats, the parties did not approach the court during the trial with any concerns or request the record reflect the jury saw or heard either of the defendants' restraints. There was no evidence from jurors that they saw the restraints. Cf. Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) (five jurors testified they saw the restraints during the trial). There is nothing in the record supporting the defendants' claims that the restraints were visible, and the defendants do not claim the leg restraints interfered with their defense or prevented them from communicating with their attorneys. Moreover, the evidence in the record is overwhelmingly in support of the guilty verdicts. We conclude the error was harmless. N.D.R.Crim.P. 52(a).
[¶14] On the basis of this record, we conclude there was no reversible error in requiring that Aguero and Moncada wear restraints during the trial.
[¶15] Moncada argues his Sixth Amendment right to confront witnesses against him was violated when the district court allowed a witness to testify about Damien Belgarde's statement that he was meeting Moncada at a grocery store on the night of the murders. He contends the United States Supreme Court limited the right to use any of a decedent's out-of-court statements in Giles v. California, 128 S.Ct. 2678 (2008), and a decedent's out-of-court statements are not admissible unless the statements are a dying declaration or the accused had a prior opportunity to cross-examine the declarant.
[¶16] We apply a de novo standard of review to a claim of a constitutional violation. State v. Sorenson, 2009 ND 147, ¶ 16, 770 N.W.2d 701. Under the Confrontation Clause of the Sixth Amendment of the United States Constitution, an accused has a right to confront the witnesses against him. The United States Supreme Court has held the Sixth Amendment prohibits the admission of testimonial statements against an accused unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). The Confrontation Clause does not apply to non-testimonial statements. Sorenson, at ¶ 16. The United States Supreme Court has not specifically defined what a testimonial statement is, but has said, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford, at 51. This Court has held statements made to friends or family generally are not testimonial statements, and the Confrontation Clause does not apply. Sorenson, at ¶ 20.
[¶17] In Giles, 128 S.Ct. at 2681-82, the trial court allowed the admission of the murder victim's statements made to a police officer responding to a domestic violence call. The United States Supreme Court has held a defendant forfeits his Sixth Amendment right to confront a witness against him when his wrongful act made the witness unavailable to testify, only if the defendant engaged in the wrongful conduct with the intent to prevent the witness from testifying. Id. at 2684. Although Moncada argues this applies to all statements by a deceased declarant, the Court ruled confrontation rights apply only to testimonial statements, and the parties in that case did not dispute that the statements were testimonial. Id. at 2682. Giles did not extend Sixth Amendment confrontation rights to all statements made by a deceased declarant, including statements that are not testimonial. See id. at 2692-93 (the Confrontation Clause excludes only testimonial statements, and statements to friends and neighbors may be excluded only by hearsay rules, if at all).
[¶18] Here, a witness testified she was present when Damien Belgarde called Moncada at approximately 9:50 p.m. on September 7, 2001, Damien Belgarde said he was meeting Moncada at a nearby grocery store, and then the Belgardes left the apartment. Damien Belgarde's statements to the witness were casual remarks made to a friend or acquaintance. See Sorenson, 2009 ND 147, ¶ 20, 770 N.W.2d 701. We conclude the statements were not testimonial and the admission of the statements did not violate Moncada's confrontation rights.
[¶19] Moncada argues the district court erred in granting a continuance and failing to try him within 180 days of his request for speedy disposition of the detainer as required by N.D.C.C. § 29-34-01, the Interstate Agreement on Detainers ("IAD").
[¶20] We have explained the standard of review for deciding whether good cause exists to grant additional time:
Legal logic dictates sound discretion is the proper standard to be applied on the question whether or not good cause existed for extension or continuance, and that an appellate court will not reverse such decision except in instances where the trial judge abused his discretion. We have repeatedly stated that abuse of discretion is the equivalent of acting unreasonably, arbitrarily or unconscionably. State v. Foster, 1997 ND 8, ¶ 6, 560 N.W.2d 194 (quoting State v. Kania, 341 N.W.2d 361, 365 (N.D. 1983)).
[¶21] "[A] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he faces pending criminal charges in another jurisdiction and requesting the institution to hold the prisoner or give notice when his release is imminent." State v. Moe, 1998 ND 137, ¶ 20, 581 N.W.2d 468. "The IAD provides a method for the orderly disposition of detainers filed by one jurisdiction on prisoners incarcerated in another jurisdiction." Id. at ¶ 8. Section 1 of Article III of the IAD, as codified in N.D.C.C. § 29-34-01, provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
[¶22] When deciding whether there is good cause to grant additional time, we consider the length of the delay, the reason for the delay, the defendant's assertion of his right, and whether there is prejudice to the defendant. State v. Moore, 2007 ND 7, ¶ 6, 725 N.W.2d 910. Delay is not presumptively prejudicial, and a lack of prejudice substantially weakens a claim. Id.
[¶23] After a hearing on the State's motion, the district court found there was good cause to grant a continuance for a reasonable amount of time:
[T]his court determines that the State has met its burden of showing good cause why the 180 disposition timeline should be continued for a reasonable amount of time after March 8, 2009. This matter has been processed without unnecessary delay, and any lengthy delays which have occurred have been as a result of the conflict discovered between the initial court-appointed counsel and the Defendant (October 8, 2008-November 10, 2008), those sought by the Defendant's counsel to afford ample preparation for the Preliminary Hearing (November 12, 2008-January 16, 2009), and those necessitated by defense counsel's unavailability for hearing the State's motion (February 6, 2009-February 27, 2009).
[¶24] In considering the length of time of the delay, we have said, "The allowable delay for a minor street crime is considerably less than that for a more serious and complex charge." Moore, 2007 ND 7, ¶ 7, 725 N.W.2d 910. Moncada claims the trial was required to begin on March 8, 2009. The trial began on June 15, 2009, which was approximately 100 days after the 180-day period ended. Although there was a significant delay in this case, all of the factors must be given weight, and none of the factors is controlling, including the length of the delay. Id. at ¶ 6.
[¶25] The second factor to consider is the reason for the delay. In August 2007, Moncada began serving a thirty-nine month sentence for a conviction of a drug-related offense in Minnesota and was scheduled to be released on May 14, 2009. Moncada was charged in this case in August 2008, and his request for final disposition was filed on September 9, 2008. Moncada's request for court-appointed counsel was approved and counsel was appointed in early October 2008, but his counsel informed the court there was a conflict in November 2008 and new counsel was appointed. A preliminary hearing was scheduled for November 12, 2008, but Moncada requested a continuance and the hearing was rescheduled for January 16, 2009. On January 30, 2009, the State moved to extend the period for the detainer, and Moncada's counsel indicated he would not be available for a hearing on the motion until the last week of February. Moncada was responsible for many of the delays in the proceedings.
[¶26] We must also consider Moncada's assertion of his right and any prejudice. There are three types of prejudice: oppressive pretrial incarceration, anxiety caused by the delay, and an impaired defense. Foster, 1997 ND 8, ¶ 12, 560 N.W.2d 194. Moncada does not claim there was any anxiety caused by the delay or that his defense was impaired. Moncada was not subject to oppressive pretrial incarceration. Moncada was not scheduled to be released from his incarceration in Minnesota until a month before the trial began, and his pretrial incarceration was not unreasonable under the facts of this case. Any prejudice caused by the delay was not legally significant. Cf. Moore, 2007 ND 7, ¶ 9, 725 N.W.2d 910 (no prejudice when defendant is incarcerated on another charge during the delay).
[¶27] Here, Moncada was responsible for much of the delay in the proceedings and he has not shown or alleged any prejudice. The court reasonably concluded there was good cause. We conclude the court did not act unreasonably, arbitrarily, or ...