State v. Borland

                                                                                     FILED
                                                                             IN THE OFFICE OF THE
                                                                          CLERK OF SUPREME COURT
                                                                                 MARCH 24, 2021
                                                                           STATE OF NORTH DAKOTA




                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                

State of North Dakota,                                 Plaintiff and Appellee
     v.
Jordan Lee Borland,                                Defendant and Appellant

                                No. 20200053

Appeal from the District Court of Nelson County, Northeast Central Judicial
District, the Honorable M. Jason McCarthy, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Quentin B. Wenzel (argued), Assistant State’s Attorney, Langdon, ND,
and Jayme J. Tenneson (on brief), State’s Attorney, Lakota, ND, for plaintiff
and appellee.

Jessica J. Ahrendt, Grand Forks, ND, for defendant and appellant.
                              State v. Borland
                                No. 20200053

Jensen, Chief Justice.

[¶1] Jordan Borland appeals from a criminal judgment entered after a jury
found him guilty of criminal vehicular homicide at the conclusion of a third
jury trial on the charge. Borland argues double jeopardy barred his retrial; the
district court erred by denying his requested jury instruction and special
verdict form seeking a jury finding on double jeopardy; and he was denied the
right to a speedy trial. We affirm.

                                       I

[¶2] The State charged Borland with the offense of criminal vehicular
homicide on October 17, 2017. Borland’s trial was set to begin July 24, 2018.
Two weeks before trial, the State requested additional trial time to present its
case in order to accommodate the increased number of potential trial
witnesses. Borland did not object to the State’s request to extend the length of
trial. To accommodate the request for additional trial time, the district court
rescheduled the trial to October 2, 2018. The trial was held as scheduled on
October 2, 2018, and the jury returned a guilty verdict. Borland filed a motion
for a new trial alleging juror misconduct after discovering a juror brought into
the jury room an extraneous, unauthorized definition of “reasonable doubt”
and shared the definition with other jurors during deliberations. On February
28, 2019, the court granted Borland’s motion for a new trial.

[¶3] A second trial was scheduled for June 3, 2019. Prior to trial, the State
filed a motion to continue trial and a motion to change the venue of the trial.
Borland objected to the motion for a change of venue but did not object to the
motion to continue. The district court granted the motion to continue, denied
the motion for a change of venue, and rescheduled the second trial for July 8,
2019. Borland’s second trial was held on July 8, 2019, as scheduled. After the
case had been submitted to the jury, the jury communicated to the court it was
unable to come to a unanimous decision. Borland moved for a mistrial, and his
motion was granted on July 16, 2019.


                                       1
[¶4] The third trial was scheduled for February 3, 2020. The State filed a
motion to continue the trial and a motion to change the venue of the trial.
Borland objected to both motions, and the district court denied both motions.
On December 27, 2019, Borland filed a motion to dismiss the case in the
interest of justice arguing double jeopardy barred retrial and he was denied
his right to a speedy trial. The court denied the motion to dismiss. Borland
subsequently filed proposed jury instructions including an instruction on
double jeopardy and a special verdict form which asked the jury to
determine if jeopardy had previously attached. The court denied the proposed
instruction and special verdict form. The jury returned a guilty verdict on
February 6, 2020. Borland appealed the criminal judgment.

                                        II

[¶5] Borland argues double jeopardy barred multiple retrials for the same
charges. The double jeopardy provisions of the federal and state constitutions
and state law prohibit successive prosecutions and punishments for the same
criminal offense. U.S. Const. amend. V; N.D. Const. art. I, § 12; N.D.C.C. § 29-
01-07. The standard of review for constitutional issues, such as double
jeopardy, is de novo. State v. Peterson, 

, 

.
“[J]eopardy attaches when the jury is empaneled and sworn.” City of W. Fargo
v. Ekstrom, 

, 

. “Each case in which a double
jeopardy violation is asserted must turn upon its own facts.” 

[¶6] A defendant waives the constitutional protection against being placed in
double jeopardy after a verdict or judgment against them is set aside at their
own instance, either by motion in trial court or upon successful appeal. City of
Minot v. Knudson, 

 (N.D. 1971); see also Tibbs v. Florida,

 (1982) (Double Jeopardy Clause imposes no limitations
whatever upon the power to retry a defendant who has succeeded in getting
their first conviction set aside, with the exception that no retrial is permissible
after a conviction has been reversed because of insufficiency of the evidence.).
Double jeopardy does not necessarily bar retrial when the previous trial was
terminated before a verdict is rendered. Ekstrom, 

, 

. If a mistrial is made with the defendant’s consent, such as when the


                                        2
defendant moves for mistrial without having been goaded into doing so by
prosecutorial misconduct, such mistrial does not generally bar a later
prosecution. 

[¶7] Regarding retrials following a mistrial, this Court has determined the
double jeopardy standard as stated by the United States Supreme Court in
Oregon v. Kennedy, 

 (1982), is the proper standard for North
Dakota. Ekstrom, 

, 

. The United States
Supreme Court in Kennedy, 

 (1982), stated:

      Prosecutorial conduct that might be viewed as harassment or
      overreaching, even if sufficient to justify a mistrial on defendant’s
      motion, therefore, does not bar retrial absent intent on the part of
      the prosecutor to subvert the protections afforded by the Double
      Jeopardy Clause. A defendant’s motion for a mistrial constitutes a
      deliberate election on his part to forgo his valued right to have his
      guilt or innocence determined before the first trier of fact. Where
      prosecutorial error even of a degree sufficient to warrant a mistrial
      has occurred, the important consideration, for purposes of the
      Double Jeopardy Clause, is that the defendant retain primary
      control over the course to be followed in the event of such error.
      Only where the governmental conduct in question is intended to
      “goad” the defendant into moving for a mistrial may a defendant
      raise the bar of double jeopardy to a second trial after having
      succeeded in aborting the first on his own motion.

(internal citations and quotations omitted). Furthermore, the Court in
Kennedy held:

      [T]he circumstances under which such a defendant may invoke the
      bar of double jeopardy in a second effort to try him are limited to
      those cases in which the conduct giving rise to the successful
      motion for a mistrial was intended to provoke the defendant into
      moving for a mistrial.

.

[¶8] Borland argues double jeopardy barred his retrial for the same offense
after the district court granted his motion for a new trial following the first


                                       3
trial and after the court granted his motion for a mistrial in the second trial.
Borland asserts the State took advantage of the repeated trials to enhance the
trial strategy by speaking with jurors, obtaining additional evidence, and
refining the presentation of evidence. He does not argue the State intentionally
provoked him to move for the new trial or the mistrial.

[¶9] We conclude double jeopardy did not bar retrial following Borland’s first
and second trials. After the jury reached a guilty verdict in Borland’s first trial,
the district court granted Borland’s motion for a new trial. Because the jury’s
guilty verdict in the first trial was set aside at Borland’s insistence after the
discovery of juror misconduct, the State was entitled to retry the case. Further,
double jeopardy does not prohibit a retrial of Borland following the second trial
because the court granted Borland’s motion for mistrial after the jury
communicated it could not reach a unanimous verdict. The State did not
provoke Borland into requesting the mistrial. Under the Kennedy standard
adopted by this Court, the district court did not err finding double jeopardy
was inapplicable. Having concluded the court did not err in finding double
jeopardy to be inapplicable, we also conclude the court did not err by denying
Borland’s requested jury instruction and special verdict form seeking a jury
finding on double jeopardy.

                                       III

[¶10] Borland argues his constitutional right to a speedy trial was violated.
The Sixth Amendment to the United States Constitution and article 1, section
12 of the North Dakota Constitution guarantees the right to a speedy trial.
This Court has adopted a four-part balancing test from Barker v. Wingo, 

 (1972), to decide speedy trial claims under the state and federal
constitutions. State v. Erickson, 

 (N.D. 1976). The four-part test includes the following: (1) the length of the delay; (2) the reason for
the delay; (3) the accused’s assertion of the right to a speedy trial; and (4) the
prejudice to the accused. 

 No single factor of the test is controlling, and the
Court must weigh all factors. State v. Moran, 

, 

. When an appellant raises a speedy trial issue, this Court reviews the
district court’s findings of fact under a clearly erroneous standard, and this


                                         4
Court reviews a speedy trial determination de novo. State v. Wayland, 

, 

.

[¶11] Before turning to the Barker balancing test, we note Borland’s case was
tried three times. Borland was charged on October 17, 2017. His first trial
began on October 2, 2018. The district court subsequently granted a new trial
due to juror misconduct. The second trial began on July 8, 2019, and a mistrial
was declared in that trial after the jury was unable to reach a unanimous
verdict. The third trial commenced on February 3, 2020, and resulted in a final
conviction.

[¶12] This Court must initially consider what effect the multiple trials have on
the calculation of the length of the delay. While we have not yet considered the
effect of a defendant’s right to a speedy trial following retrial, courts in other
jurisdictions have addressed speedy trial claims after a retrial. Some
jurisdictions have court rules addressing the length of delay for the purpose of
a speedy trial determination relative to multiple trials. See
e.g., Burmingham v. State, 

 (Ark. 2001); State v. Carson,

 (Wash. 1996). Some jurisdictions have state statutes
addressing the length of delay for the purpose of a speedy trial determination
relative to multiple trials. See, e.g., State v. Dockery, 

 (Neb.
2007); State v. White, 

 (Kan. 2003); Mason v. People, 

 (Colo. 1997). Some jurisdictions have relied on the American
Bar Association for guidance. State v. Strong, 

 (Mont.
1993); Pernell v. State, 

 (Tenn. Crim. App. 1971).

[¶13] The North Dakota Rules of Criminal Procedure do not speak directly to
the effect to a defendant’s right to a speedy trial in light of a mistrial or a
granted motion for new trial, the legislature has not provided statutory
guidance regarding this issue, and this Court has not yet considered the issue.
Because the four-factor Barker analysis allows for full consideration of
intervening retrials under the second factor, “reason for delay,” we will
measure the period of delay from the time the State charged Borland to the
time of his final trial. See Goncalves v. Com., 

 (Ky.
2013).


                                        5
                                        A

[¶14] The length of delay is a triggering factor to initiate a speedy trial
analysis. Moran, 

. Typically, the length of delay is measured
by the time between the earlier of the arrest or the charge and the time the
trial begins. See State v. Buchholz, 

, 

 (right to
speedy trial does not attach until defendant has been accused by either a
formal indictment or information or else actual restraints imposed by arrest
and holding to answer a criminal charge). Generally, a post accusation delay
of “one year or more is ‘presumptively prejudicial,’ which triggers an analysis
of the other speedy trial factors.” State v. Hall, 

, 

 (quoting Moran, at ¶ 9).

[¶15] Borland was charged with criminal vehicular homicide on October 17,
2017. The trial which resulted in a conviction commenced on February 3, 2020.
Because this Court generally considers delays over one year to be
presumptively prejudicial, we conclude the period between the State’s charge
against Borland and third trial is presumptively prejudicial.

                                        B

[¶16] The second factor for a speedy trial analysis is the reason for delay.
Moran, 

. The Court assigns different weights to different
reasons for delay. Barker, 

. This “reason for delay” factor is
closely related to the fourth factor, “prejudice to the accused.” Koenig v. State,

, 

. If the State deliberately attempts to delay
trial in order to hamper the defense, this reason weighs heavily against the
State. Moran, at ¶ 10. If the State is negligent by not diligently pursuing the
defendant, or the court is overcrowded, this factor weighs less heavily against
the State. Barker, at 531. When the defendant causes the delay, this factor
weighs against the defendant. Koenig, at ¶ 22. A valid reason for delay, such
as a missing witness, will not be weighed against the State because valid
reasons for delay are appropriately justified. Barker, at 531.

[¶17] The first notable delay occurred at the scheduling conference two weeks
before Borland’s first trial. At the scheduling conference, the State requested


                                        6
additional trial time to accommodate the increased number of potential trial
witnesses. To accommodate the increased number of witnesses, the district
court determined it was necessary to reschedule the trial. Borland did not
object to the continuance, and the court rescheduled the trial from July 24,
2018, to October 2, 2018. Another delay occurred before the second trial when
the State moved to continue the trial without providing a justification for the
request. Borland did not object to the State’s motion to continue. The motion
to continue was granted by the court, and the trial was rescheduled from June
3, 2019 to July 8, 2019.

[¶18] The overarching reasons for the delay between the charge and the trial
that produced a conviction on appeal were the granting of Borland’s request
for a new trial after the first trial and conviction, and the granting mistrial in
the second trial. Borland’s first trial began on October 2, 2018, and the jury
returned a guilty verdict. Borland subsequently moved for a new trial based on
juror misconduct. The district court granted the motion. Borland’s second trial
began on July 8, 2019. A mistrial was declared as a result of the jury’s inability
to reach a unanimous decision. The court scheduled Borland’s third trial to
February 3, 2020, and the trial commenced on that date.

[¶19] In this case, there were valid reasons for the delay between Borland
being charged and the final trial. The State is not responsible for the juror
misconduct during the first trial or the jury’s inability to reach a verdict during
the second trial. Additionally, the delays that were caused by the State’s
requests for a continuance and additional trial time carry no indication of an
intentional or negligent delay on behalf of the State. The State fulfilled its
obligation to pursue the charge and present the case to a jury on three separate
occasions. Therefore, the reason for the delay does not weigh against the State.

                                         C

[¶20] The third factor in a speedy trial analysis is whether the defendant
asserted their right to a speedy trial in due course. City of Grand Forks v. Gale,

, 

. “A failure to timely assert the right to a
speedy trial weighs against establishing a speedy trial violation has occurred.”
State v. Fischer, 

, 

. Borland did not assert his

                                        7
right to a speedy trial in 2017 when he was first charged. The first time
Borland raised the right to a speedy trial was in his motion to dismiss filed on
December 27, 2019. Borland’s motion was brought less than two months before
the third trial was scheduled to begin, and there were no delays subsequent to
his motion. Because the third trial was held almost immediately following
Borland’s eventual assertion of his right to a speedy trial, we conclude this
factor does not weigh in favor of finding a speedy trial violation.

                                        D

[¶21] The final factor we must consider is whether there was any prejudice to
the defendant as the result of a delay. Moran, 

. The prejudice
factor must be analyzed in light of the interests of defendant which the speedy
trial was meant to protect, including: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.” Barker, 

.
The last interest is most important to the prejudice analysis. 

 We examine
the interests in light of the specific facts and circumstances of each case. See

.

[¶22] When analyzing impairment to the accused’s defense, this Court must
consider the burden of establishing prejudice. Gale, 

, 

. This Court has determined the burden to establish prejudice
under this factor turns on whether the government was diligent, negligent, or
acting in bad faith in its prosecution:

      If the [government] was diligent in its prosecution, [the defendant]
      must show actual prejudice. If the government delayed prosecution
      in bad faith, prejudice is presumed. If the government was
      negligent in its prosecution, the weight of the evidence controls
      whether the prejudice must be actual or presumed.

Id. at ¶ 21. “Proving actual prejudice requires a defendant to factually link his
loss of liberty with any specific prejudice to his right to a fair trial.” Koenig,

, 

.




                                        8
[¶23] There is no evidence the State intentionally or negligently delayed the
proceedings. In the absence of the State intentionally or negligently delaying
the proceedings, Borland is required to show actual prejudice to his right to a
fair trial.

[¶24] Our first consideration in determining whether Borland has
demonstrated actual prejudice is whether Borland was subject to oppressive
pretrial incarceration. Borland was not incarcerated prior to his sentencing on
February 7, 2020. Absent pretrial incarceration, the first interest is irrelevant
to our analysis. See Moran, 

.

[¶25] Our second consideration is the minimization of anxiety and the concern
of the accused. Borland argues only generalized and hypothetical reasons any
defendant may experience anxiety or concern while awaiting trial. We conclude
his generalized and hypothetical reasons are insufficient to support his claim
of actual prejudice.

[¶26] Our third consideration is the limitation of the possibility that the
defense will be impaired. Borland argues his defense was impaired because
witnesses could have been subjected to pressure by other community members,
may have changed their perception over time, or their memories may have
faded. He also argues evidence contained in the vehicle at issue could have
deteriorated because the vehicle was stored outdoors. Borland has not directed
this Court’s attention to any changes or inconsistencies in witness testimony
over the course of his three trials. Although he argues evidence may have
degraded as the result of the vehicle being stored outside, Borland does not
claim he was unable to collect evidence from the vehicle or that any particular
evidence was unrecoverable as a result of how the vehicle was stored. Borland
has failed to articulate a factual link between his loss of liberty and any specific
prejudice caused by the length of time between the charges and the third trial.

                                         E

[¶27] The two-year period from Borland’s charge of criminal vehicular
homicide to the third trial was presumptively prejudicial. While the State
moved to continue the trial on multiple occasions, there is no demonstration

                                         9
the motions were made negligently or in bad faith. The most significant delays
resulted from Borland’s successful motion for a new trial after the conviction
following his first trial and motion for mistrial after submission of the case to
the jury during the second trial. The State did not attempt to deliberately delay
trial, but rather brought the case to a jury three times in two years and three
months. Borland did not assert his right to a speedy trial early in the
proceedings and first made the assertion two months before the third trial was
set to proceed. Additionally, Borland has failed to establish any actual
prejudice by the delay. When balancing the Barker factors, Borland was not
denied his right to a speedy trial.

                                      IV

[¶28] We conclude Borland’s retrials were not prohibited under double
jeopardy, the district court did not err by denying Borland’s requested jury
instruction and special verdict form seeking a jury finding on double jeopardy
and Borland was not denied the right to a speedy trial. We affirm the judgment.

[¶29] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte

      I concur in the result.

      Gerald W. VandeWalle




                                       10