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State v. Bird

Supreme Court of North Dakota

February 12, 2015

State of North Dakota, Plaintiff and Appellee
v.
Damon John White Bird, Defendant and Appellant

Page 643

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.

Tristan J. Van de Streek, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Monty G. Mertz, Fargo Public Defender Office, Fargo, N.D., for defendant and appellant.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice. Opinion of the Court by Sandstrom, Justice.

OPINION

Page 644

Sandstrom, Justice.

[¶1] Damon White Bird appeals from a criminal judgment entered after a jury found him guilty of attempted murder, felonious restraint, tampering with physical evidence, and aggravated assault. We affirm, concluding White Bird was competent to waive his right to counsel, the district court did not err in regulating the introduction of evidence and instructing the jury at the trial, and sufficient evidence supported his convictions.

I

[¶2] In April 2013, Fargo Police officers investigated two separate violent assaults on two victims, which occurred between twelve to eighteen hours apart at the same location, White Bird's apartment. On the basis of the investigation, White Bird was subsequently charged with attempted murder, a class A felony; two counts of felonious restraint, class C felonies; tampering with physical evidence, a class A misdemeanor; and aggravated assault, a class C felony. White Bird made

Page 645

his first appearance in the district court on April 5, 2013, and he applied for and was appointed a public defender.

[¶3] On April 30, 2013, on the basis of a defense motion, the district court ordered White Bird committed to the North Dakota State Hospital to evaluate his fitness to proceed and criminal responsibility. A psychologist at the State Hospital evaluated White Bird and prepared two reports, which were both filed with the court on June 10, 2013. White Bird was found both fit to proceed and criminally responsible. In June 2013, White Bird and his attorney appeared at the preliminary hearing. White Bird waived his preliminary hearing and pled not guilty to all of the charges.

[¶4] In July 2013, White Bird filed a document in which he fired his attorney and moved to dismiss the case. On July 24, 2013, the district court held a hearing at which White Bird's attorney said White Bird had fired him and wanted to represent himself. His attorney raised the issue of White Bird's ability to represent himself. The court then discussed with White Bird his decision to represent himself. White Bird said he did not believe his appointed counsel was giving him an " adequate defense." The court continued discussing the issue with White Bird, but White Bird did not change his mind, insisting on representing himself. The court informed him that trial was only six days away, and he would have to subpoena his witnesses and be ready to try his case.

[¶5] At another pretrial hearing on July 26, 2013, the district court again addressed White Bird's desire to represent himself. The hearing ended with White Bird's consenting to permit his appointed counsel to represent him. However, on July 29, 2013, the day before trial, at the final pretrial hearing, White Bird again insisted that he wanted to represent himself. The court again discussed with White Bird the dangers of self-representation and his decision to fire his appointed counsel. The court allowed White Bird to represent himself and appointed his former attorney as standby counsel. The court also denied White Bird's motion to dismiss.

[¶6] At the five-day jury trial in late July and August 2013, White Bird represented himself with limited assistance of standby counsel. The jury found White Bird guilty on all five counts. In October 2013, White Bird moved for an evidentiary hearing, alleging he was not competent to waive his right to counsel. At a November 2013 hearing, the court denied White Bird's motion and sentenced him.

[¶7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. White Bird timely appealed from the criminal judgment under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶8] White Bird argues he was not competent to waive his right to counsel.

[¶9] Generally, the corollary to a criminal defendant's constitutional right to counsel is a defendant's right to self-representation. See State v. Garge,2012 ND 138, ¶ 15, 818 N.W.2d 718; State v. Dahl, 2009 ND 204, ¶ 22, 776 N.W.2d 37. To represent oneself, a criminal defendant must voluntarily, knowingly, and intelligently waive the right to counsel. State v. Jones, 2011 ND 234, ¶ 20, 817 N.W.2d 313. " '[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the ...


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