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State v. Romanick

Supreme Court of North Dakota

March 3, 2017

State of North Dakota, Petitioner
v.
The Honorable Lolita G. Hartl Romanick, Judge of the District Court, Northwest Judicial District, and Steven Kukowski, Respondents

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

         SUPERVISORY WRIT GRANTED.

          Seymour R. Jordan, State's Attorney, for petitioner.

          Matthew A. Sagsveen (appeared), for respondent The Honorable Lolita G. Hartl Romanick.

          Peter D. Welte (argued), Mark A. Friese (appeared), Drew J. Hushka (on brief), for respondent Steven Kukowski.

          OPINION

          Crothers, Justice.

         [¶ 1] The State petitions this Court for a supervisory writ requiring the district court to grant the State's motion to amend its criminal complaint against Ward County Sheriff Steven Kukowski to allege that criminal conduct occurred in 2014 rather than 2015. We conclude this is an appropriate case to exercise our discretionary supervisory jurisdiction, and we direct the district court to grant the State's motion to amend the criminal complaint.

         I

         [¶ 2] In a February 16, 2016, criminal complaint signed by Bureau of Criminal Investigation Special Agent Allen Kluth, the State charged Sheriff Kukowski with three class A misdemeanors pertaining to alleged inadequate inmate care occurring "on or about October 6, 2015." The complaint alleged two counts of reckless endangerment under N.D.C.C. § 12.1-17-03 and one count of a public servant refusing to perform a duty imposed by law under N.D.C.C. § 12.1-11-06. One of the reckless endangerment counts explicitly alleged Sheriff Kukowski willfully created a substantial risk of serious bodily injury to another by failing to provide inmate Dustin Irwin with medical care. The remaining two counts generally alleged Sheriff Kukowski knowingly refused to perform a public duty imposed by law by employing correctional facility staff with inadequate training to ensure inmates received adequate medical care, and Sheriff Kukowski willfully created a substantial risk of serious bodily injury to another by maintaining an inmate population greater than the suggested population for a facility of its size.

         [¶ 3] A February 16, 2016, affidavit of probable cause executed by Special Agent Kluth stated:

"1. That on October 3, 2014 Dustin J Irwin was arrested in Ward County and held at the Ward County Correctional Center. While Mr. Irwin was being held in Ward County his health deteriorated over the three days he was held. By the time of his transport, Irwin was incoherent, urinating on himself, disoriented, and had to be physically loaded into the transport vehicle.
"2. On the third day, Sheriff Steven Kukowski and Captain Michael Nason transported Mr. Irwin. He was exchanged for another prisoner held by Burleigh County. Both Kukowski and Nason had to carry Irwin to the Burleigh County vehicle. Upon the Burleigh County Deputy taking custody of Mr. Irwin, he was transported directly to the hospital with emergency lights flashing. Mr. Irwin passed away a short time later.
"3. That Mr. Kukowski was aware of Mr. Irwin's medical state and did not attempt to get Mr. Irwin any medical care, which created a substantial risk of serious bodily injury or death to another. According to Kukowski, Irwin was not transported to get medical attention because of 'dollars and cents.' The Ward County Jail was afraid to spend money, according to Kukowski, who was responsible for the jail's budget.
"4. That Mr. Kukowski maintained an inmate population 150% over the suggested population for a correctional center of its size during the time of this incident, which created a substantial risk of serious bodily injury or death to another.
"5. That Mr. Kukowski knowingly employed correctional facility staff and that staff did not have adequate training. Nine correctional officers had been employed for more than a year but had not attended a correctional officer's training course. Mr. Kukowski also did not ensure that inmates had adequate medical care."

         [¶ 4] During a December 23, 2016, pre-trial motion hearing several days before a scheduled jury trial, the State moved to amend its complaint to allege the offenses occurred in 2014, claiming the amendment was necessary to correct a clerical mistake. In denying the State's motion the district court found Sheriff Kukowski failed to establish he was misled by the erroneous date in the complaint and he had notice of the correct year of the underlying incident giving rise to the charges. The court nevertheless concluded the amendment would substantially prejudice Sheriff Kukowski's rights by broadening or changing the charges against him because time is an essential element of the offenses under the rationale of United States v. Gammill, 421 F.2d 185 (10th Cir. 1970) and City of West Fargo v. Hawkins, 2000 ND 168, 616 N.W.2d 856. The court explained that the inmate had been dead for a year before the date of the offenses charged in the complaint and that ...


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