from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
A. Lawyer, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
Russell J. Myhre, Valley City, ND, for defendant and
1] Dylan Joel Groce appeals from an amended criminal judgment
and jury verdict finding him guilty of aggravated assault.
Groce argues the district court abused its discretion by
quashing subpoenas for two witnesses and denying a motion for
mistrial. We affirm, concluding the district court did not
err by quashing the subpoenas and did not abuse its
discretion in denying Groce's motion for a mistrial.
2] In the early morning hours of November 5, 2016 Groce
engaged in a heated discussion with Kyle Koenig, Casey Koenig
and two others at the back entrance to Groce's apartment
in Bismarck. Groce had been contacting Casey Koenig's
girlfriend via text and phone call, to which Casey Koenig
took offense. Kyle Koenig, Casey Koenig and two others
arrived at Groce's apartment after visits to local bars
and a stop at Casey Koenig's residence. The incident
occurred at or through Groce's sliding glass door,
partially obscured by hanging blinds. At some point, Casey
Koenig and Groce came to blows and Kyle Koenig attempted to
intervene. Groce stabbed Kyle Koenig with a kitchen knife.
Groce alleges Kyle Koenig attempted to pull him out of the
apartment, and the stabbing occurred inside the threshold.
Kyle Koenig stated Groce reached out of the door and stabbed
3] Officers Masset, Berger, Vetter, Van Neste and Rogstad
responded to a 911 call. Masset arrived first and was the
case officer. Rogstad arrived later. All of the officers
stayed within the same outdoor and kitchen area. Groce was
handcuffed and arrested. The State charged Groce with
aggravated assault under N.D.C.C. § 12.1-17-02 on
November 7, 2016.
4] The district court initially scheduled trial for March
28-29, 2017. On March 17, 2017 the State requested a
continuance of the trial. The district court rescheduled the
trial for July 20-21, 2017. In April 2017 Officer Masset
informed the State of a potential conflict with the new trial
date and her orders for training with the Army National Guard
beginning July 16, 2017. Officer Rogstad scheduled a vacation
that also conflicted with the new trial date. Groce served
subpoenas on Officers Masset and Rogstad on July 11, 2017. On
July 17, 2017 the State brought a motion to quash the
subpoenas. After a July 19, 2017 hearing the district court
found compliance with the subpoenas by Masset and Rogstad
would be unreasonable and oppressive, and no prejudice would
stem from quashal. The district court found the statements
Groce intended to elicit at trial from Officers Masset and
Rogstad would be inadmissible hearsay, the defense made no
effort to preserve testimony under N.D.R.Crim.P. 15, and the
remaining three officers could testify to the same events.
5] At trial Groce moved for mistrial based on Officer
Masset's absence. The district court denied the motion,
noting Groce never moved for a continuance of the trial so
the absent witnesses could testify. Groce appeals, claiming
Fifth and Fourteenth Amendment Due Process violations, and
that he was denied his Sixth Amendment and N.D. Const. art. I
§ 12 right to compel the presence of favorable
6] Groce argues the district court abused its discretion in
quashing subpoenas for Officers Masset and Rogstad. Rule
17(c)(2), N.D.R.Crim.P., provides, "On motion made
promptly, the court may quash or modify the subpoena if
compliance would be unreasonable or oppressive." We
review quashal of subpoenas for abuse of discretion.
Nesvig v. Nesvig, 2006 ND 66, ¶ 12, 712 N.W.2d
299; see also United States v. Nixon, 418
U.S. 683, 698-703 (1974); United States v. Mabie,
663 F.3d 322, 329 (8th Cir. 2011) ("A district
court's decision to quash subpoenas is reviewed for an
abuse of discretion."); United States v. Rubin,
836 F.2d 1096, 1100-02 (8th Cir. 1988) (finding a district
court did not abuse its discretion in quashing subpoenas
because it did not deprive defendant of Fifth or Sixth
Amendment rights). "A district court abuses its
discretion if it acts in an unreasonable, arbitrary, or
unconscionable manner, if its decision is not the product of
a rational mental process leading to a reasoned decision, or
if it misinterprets or misapplies the law." State v.
Hammer, 2010 ND 152, ¶ 26, 787 N.W.2d 716 (quoting
Citizens State Bank v. Symington, 2010 ND 56, ¶
8, 780 N.W.2d 676).
7] Groce generally asserts the district court violated his
constitutional rights by quashing the two subpoenas. He
neither cites North Dakota precedent nor articulates a
constitutional claim beyond the mere assertion of a
violation. "The Sixth Amendment to the United States
Constitution, applied to the states through the Fourteenth
Amendment, states in part, 'In all criminal prosecutions,
the accused shall enjoy the right... to have compulsory
process for obtaining witnesses in his favor.' This right
is not absolute, and the defendant must show the testimony
would have been both favorable and material to his defense.
United States v. Valenzuela-Bernal, 458 U.S. 858,
867 (1982)." State v. Treis, 1999 ND 136,
¶ 11, 597 N.W.2d 664. "The trial court 'is not
obligated to issue every subpoena requested by a
defendant.' The defendant has the burden of showing that
the testimony would have been both favorable and material to
his defense." State v. Curtis, 2008 ND 108,
¶ 12, 750 N.W.2d 438 (citations omitted) (affirming
district court's refusal to issue subpoena).
8] Here, the district court found forcing Officers Masset and
Rogstad to testify at trial would be unreasonable and
oppressive and other officers could provide impeachment
testimony at trial. The district court also ruled the
testimony Groce intended to elicit would be inadmissible
hearsay. See Taylor v. State, 443 S.W.3d 80, 84
(Tenn. 2014) ("[A] court properly quashes a subpoena
where the proposed witness is not competent or where the
expected testimony will not be admissible."). Because
this order is not arbitrary, unreasonable, or unconscionable,
appears to be the ...