from the District Court of Ward County, North Central
Judicial District, the Honorable Lolita G. Hartl Romanick,
Seymour R. Jordan, State's Attorney, for petitioner.
Matthew A. Sagsveen (appeared), for respondent The Honorable
Lolita G. Hartl Romanick.
D. Welte (argued), Mark A. Friese (appeared), Drew J. Hushka
(on brief), for respondent Steven Kukowski.
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.
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
"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