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State v. Friesz

Supreme Court of North Dakota

July 12, 2017

State of North Dakota, Plaintiff and Appellee
Rodney Harold Friesz, Defendant and Appellant

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge. AFFIRMED AND REMANDED.

          Brian D. Grosinger (argued) and Gabrielle J. Goter (on brief), Assistant State's Attorneys, Mandan, N.D., for plaintiff and appellee.

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


          Tufte, Justice.

         [¶ 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 ...

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