from the District Court of Morton County, South Central
Judicial District, the Honorable David E. Reich, Judge.
AFFIRMED AND REMANDED.
D. Grosinger (argued) and Gabrielle J. Goter (on brief),
Assistant State's Attorneys, Mandan, N.D., for plaintiff
G. Mertz, Fargo, N.D., for defendant and appellant.
1] Rodney Friesz appeals from a criminal judgment entered
after a jury found him guilty of manslaughter and arson. We
conclude the district court did not err in denying his motion
to suppress evidence and sufficient evidence exists to
sustain his convictions for manslaughter and arson. We affirm
Friesz's convictions. We remand, however, for the
district court to correct a clerical error in the criminal
judgment because the judgment does not clearly state the jury
entered a verdict of guilty to the offenses.
2] On October 9, 2014, Friesz shot Geno Jassmann in a home in
Mandan, causing his death. While Jassmann was still
breathing, Friesz lit the home on fire and left. Friesz was
subsequently charged with murder, a class AA felony, and
arson, a class B felony, alleging Friesz had intentionally
caused the death of another human being and had willfully
started the fire.
3] On the day of the shooting, police and firefighters
responded to a report of a fire. Mandan police officer Riley
Gentzkow was dispatched at about 2 p.m. and was the first
officer on the scene. Gentzkow testified he did not see any
signs of fire on arriving, but could smell and see smoke
coming from the roof line as he got closer. Gentzkow knocked
and attempted to open the front door. The door was locked,
and no one answered. Concerned someone might be inside or the
home might go up in flames, Gentzkow kicked in the door, and
black smoke poured out of the home.
4] Firefighters arrived on the scene to contain the fire, and
Gentzkow secured the perimeter while the fire was
extinguished. After firefighters had informed him a dead body
was inside on the living room couch, Gentzkow entered about
three feet into the home and observed the dead body ten to
fifteen feet away. He exited the home and informed his
supervisor, Mandan police officer Dan Poppe, regarding what
he had seen.
5] Mandan Fire Department Captain Mike Hanson arrived on the
scene after the first engine arrived and two firefighters had
made entry into the home. Hanson testified at trial the fire
was a small, smoldering fire that did a lot of smoke damage,
in addition to some obvious flame damage. The two
firefighters reported to Hanson there were firearms inside
and a deceased person on the living room couch. When Hanson
entered, he saw a rifle leaning up against the wall with the
barrel pointed upwards. Hanson testified he was concerned the
rifle could have been knocked over and accidentally
discharged. He testified he removed the firearm from the home
and handed it to a uniformed police officer outside the door,
later identified as Officer Poppe, who eventually turned it
over to Officer Jay Grueble.
6] Officer Grueble, a Mandan police sergeant at that time,
testified that when he arrived at the scene, Hanson told him
a dead body was inside. Grueble, Hanson, and Mandan Detective
April Jose entered the residence to view the body. Grueble
sent Jose to obtain a search warrant. Grueble was also
informed the residence belonged to Todd Friesz, Rodney
Friesz's brother. Rodney Friesz had also lived in his
brother's home at some point. Grueble spoke with Rodney
Friesz, who was present at the scene with a group of about
eight to ten people outside the front of the residence and
was smoking a cigarette.
7] Friesz told Grueble he was there to pick up a white
Cadillac parked out front and the keys were in the residence.
Friesz then said he was there to pick up a pickup and to move
some of his property to a residence in Bismarck where he had
been living. Grueble testified his conversation with Friesz
was "confusing, " Friesz was hard to track, and his
story of why he was there was not making sense. Grueble grew
suspicious of Friesz's explanations for the fire. He
testified Friesz was calm, not upset about anything, not
excited, and did not appear to be "tweaking" or
under the influence of methamphetamine during his
conversation with him.
8] Morton County Detective David Bjorndahl testified at trial
that he had seen Friesz earlier in the day driving a white
Cadillac while conducting surveillance in another matter.
Bjorndahl had also spoken with Friesz at the scene, noting
Friesz's answers had not made sense and it did not seem
significant to Friesz that his brother's house was on
fire. Bjorndahl testified that Friesz seemed calm, did not
wonder whether anyone was inside or hurt, and was not
concerned about any of his own possessions that might be in
the home. Bjorndahl did not believe Friesz was heavily
intoxicated, nor did Friesz show other indicia of heavy
intoxication. He testified that Friesz said he had consumed
methamphetamine that morning and the day before.
9] Friesz initially said he had not been in the home;
however, Bjorndahl testified that after he told Friesz a dead
body was inside, Friesz eventually told him the dead person
was "Geno." Bjorndahl testified Friesz told him
that he had shot Geno. Friesz said he shot Geno in
self-defense, also stating Geno had tried to stab him with a
knife. Although Friesz also initially denied knowledge of the
fire to Bjorndahl, he subsequently admitted starting the fire
by getting gasoline from outside and lighting the fire with a
torch lighter. An audio recording of the conversation between
Friesz and Bjorndahl was admitted and played at trial, in
addition to two later audio and video recordings of law
enforcement interviews with Friesz at the Mandan Law
Enforcement Center. During the interviews, Friesz admitted
Jassmann was still breathing when he started the fire.
10] Among three vehicles Grueble searched with the search
warrant was a white Cadillac registered to Friesz. Grueble
found a black cap ring from a red gasoline can and a black
cigarette lighter on the front passenger seat, and a receipt
from a Mandan gas station dated the morning of October 9 on
the floor of the front passenger compartment. Grueble
testified he had seen a red gasoline can earlier in Todd
Friesz's residence that did not have a cap on it. Grueble
also verified Rodney Friesz had received the receipt
indicating the purchase of a container of lighter fluid.
11] Dr. William Massello, a forensic pathologist and State
forensic examiner, performed an autopsy on Jassmann in
October 2014. Massello issued a report of death, an autopsy
report, and toxicology reports or reports of studies for
drugs and alcohol. Massello testified at trial that the cause
of Jassmann's death was a gunshot wound to the head with
a contributory cause of smoke inhalation. Massello further
explained that the wound to Jassmann's brain would not
have been survivable. He testified that soot found in
Jassmann's trachea would have resulted from his
continuing to breathe for a short time before he died.
12] Before trial, Friesz moved the district court to suppress
all evidence obtained from the home. He argued the initial
search was a seizure of property and was illegal because the
search was conducted without a warrant and no exception to
the warrant requirement applied. In June 2015, the court held
a suppression hearing and subsequently denied his motion. In
February 2016, the court held a jury trial. Friesz moved for
a judgment of acquittal under N.D.R.Crim.P. 29 on both counts
at the close of the State's case and again at the close
of all evidence. The court denied his motions. The jury found
Friesz guilty of the lesser-included offense of manslaughter,
a class B felony, and guilty of arson. In April 2016, Friesz
was sentenced, and a criminal judgment was entered.
13] Friesz argues the district court erred in denying his
motion to suppress, because the initial search of the
residence and seizure of property was illegal.
14] Our standard for reviewing the district court's
decision denying a suppression motion is well-established:
[T]his Court defers to the district court's findings of
fact and resolves conflicts in testimony in favor of
affirmance. This Court will affirm a district court decision
regarding a motion to suppress if there is sufficient
competent evidence fairly capable of supporting the district
court's findings, and the decision is not contrary to the
manifest weight of the evidence. Questions of law are fully
reviewable on appeal, and whether a finding of fact meets a
legal standard is a question of law.
State v. Knox, 2016 ND 15, ¶ 6, 873 N.W.2d 664
(quotation marks omitted).
15] Under our federal and state constitutions, individuals
are protected from unreasonable searches and seizures in
their homes. U.S. Const. amend. IV; N.D. Const. art. I,
§ 8; see also State v. Karna, 2016 ND 232,
¶ 7, 887 N.W.2d 549. Warrantless, non-consensual
searches and seizures made inside a home are presumptively
unreasonable, unless an exception to the warrant requirement
applies. Karna, at ¶ 7; State v. Hart,
2014 ND 4, ¶ 13, 841 N.W.2d 735. In a criminal
proceeding, "[e]vidence seized from a warrantless
search, when no recognized exception to the warrant
requirement exists, must be suppressed under the exclusionary
rule." Hart, at ¶ 13. "[A]ll evidence
obtained by searches and seizures in violation of the
Constitution is, by that same authority, inadmissible in a
state court." Id. (quoting Mapp v.
Ohio, 367 U.S. 643, 655 (1961)).
16] Here, Friesz moved the district court to suppress all
evidence obtained from the home. Although Rodney Friesz had
previously been living in his brother Todd's home, the
State argued in responding to the motion that Friesz lacked
standing to assert Fourth Amendment rights because he no
longer had permission to be in the home at the time of the
incident. However, the district court noted Todd Friesz
testified at the suppression hearing that Rodney Friesz had
his permission to be in the trailer to remove his possessions
and had until the end of October 2014 to do so. The district
court therefore assumed for purposes of deciding the
suppression motion that Rodney Friesz had standing to assert
privacy rights under the Fourth Amendment. For purposes of
addressing Friesz's arguments on appeal, we also assume
Friesz had standing.
17] In denying Friesz's motion to suppress evidence, the
district court focused its analysis on the seizure of the
rifle that had been leaning against the wall and on the
officers' entry into the home to view the dead body, both
events having occurred before the search warrant had been
obtained. The court applied the emergency exception to the
warrant requirement to allow the removal of ...