20160194 & 20160325 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT DECEMBER 5, 2016 STATE OF NORTH DAKOTA IN THE SUPREME COURT OF NOR TI-l DAKOTA Sean Michael Kovalevich, ) Petitioner and Appellant ) ) Supreme Court Case No. 20160194 Vs. ) District Courl Case No. 18-20 15-CV -02064 ) State of North Dakota, ) Respondent and Appellee ) State of North Dakota, ) Plaintiff/Appellee ) ) Supreme Court Case No. 20160325 Vs. ) District Court Case No. 18-2012-CR-03069 ) Sean Michael Kovalevich, ) Defendant/Appellant ) APPEAL FROM AN ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL IN GRAND FORKS COUNTY DISTRICT COURT, NORTHEAST CENTRAL JUDICIAL DISTRICT GRAND FORKS, NORTH DAKOTA THE HONORABLE JON JENSEN PRESIDING Rule 24- Supplemental Statement Sean Michael Kovalevich #39835 North Dakota State Penitentiary P.O. Box 5521 Bismarck, ND 58506
Transcript
20160194 & 20160325 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT DECEMBER 5, 2016 STATE OF NORTH DAKOTAIN THE SUPREME COURT OF NOR TI-l DAKOTA
Sean Michael Kovalevich, ) Petitioner and Appellant )
) Supreme Court Case No. 20160194 Vs. ) District Courl Case No. 18-20 15-CV -02064
) State of North Dakota, )
Respondent and Appellee )
State of North Dakota, ) Plaintiff/ Appellee )
) Supreme Court Case No. 20160325 Vs. ) District Court Case No. 18-2012-CR-03069
) Sean Michael Kovalevich, )
Defendant/ Appellant )
APPEAL FROM AN ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL IN GRAND FORKS COUNTY DISTRICT COURT, NORTHEAST CENTRAL
JUDICIAL DISTRICT GRAND FORKS, NORTH DAKOTA THE HONORABLE JON JENSEN PRESIDING
Rule 24- Supplemental Statement
Sean Michael Kovalevich #39835
North Dakota State Penitentiary
P.O. Box 5521
Bismarck, ND 58506
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................... i
TABLE OF AUTHORITIES ................................................................................. ii
JURISDICTION ............................................................................................... I
STATEMENT OF ISSUES .................................................................................. I
I. Did agents with the North Dakota Bureau of Criminal Investigation (BCI) have authority and jurisdiction to begin an investigation and assist in prosecution of Defendant under N.D.C.C. 12-60-07(6), N.D.C.C. 54-12-01(14), N.D.C.C. 54-12-03, and N.D.C.C 12-60-08 absent an explicit request or order from the Attorney General?
STATEMENT OF CASE
I. NATURE OF THE CASE ........................................................................ I
II. PROCEDURAL HISTORY ..................................................................... !
III. DISPOSITION BELOW ........................................................................ 2
STATEMENT OF FACTS ................................................................................... 3
LAW AND ARGUMENT .................................................................................... 5
N.D.C.C. 12-60-07(6), N.D.C.C. 54-12-01(14), and N.D.C.C. 54-12-03 did not Grant the BCI Jurisdiction to Investigate the Defendant. .................................... ~16
N.D.C.C. § 12-60-08 Does not Provide Jurisdiction for BCI Agents to Investigate Defendant. .......................................................................................... ~26
The District Court did not Rule That BCI S/ A Zachmeier was assisting with a Valid Investigation ......................................................................................... ~29
['lfl] The Defendant, Sean Michael Kovalcvich, timely appealed the final judgment
arising out of the Grand Forks County District Court. The North Dakota Supreme Court has
Jurisdiction over the appeal of this matter under N.D. Const. art. VI §6, and N.D.C.C §§ 29-28-
06 (1)(2)(4) and (5) and 29-28-03. A final judgment was entered on September 7, 2016.
STATEMENT OF THE ISSUES
['lf2] I. Did agents with the North Dakota Bureau of Criminal Investigation (BCI) have
authority and jurisdiction to begin an investigation and assist in prosecution of Defendant
under N.D.C.C. 12-60-07(6), N.D.C.C. 54-12-01(14), N.D.C.C. 54-12-03, and
N.D.C.C 12-60-08 absent an explicit request or order from the Attorney General?
STATEMENT OF CASE
I. NATURE OF THE CASE
['lf3] This is a criminal matter on appeal from Northeast Central Judicial District, Grand
Forks County appealing the order denying the Defendant's Motion for New Trial under
N.D.R.Crim.P. 33.
II. PROCEDURAL HISTORY
['lf4] This case was before the District Court in State v. Kova:levich, 18-2012-CR-03069.
An information was filed with the Court on November 30, 2012 charging the Defendant with two
counts of Gross Sexual Imposition and one count of Corruption of a Minor.
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[~5] The case proceeded without resolution to a jury trial held October 29 through
October 31, 2013. A verdict of guilty was returned by a jury on all counts and the case proceeded
to sentencing. Sentencing took place February 24, 2014. Defendant was sentenced to 30 years
incarceration followed by I 0 years supervised probation.
III. DISPOSITION BELOW
[~6] On August 19,2016 Defendant filed a Motion for New Trial based on newly
discovered evidence in the criminal matter 18-2012-CR-03069. This motion was filed ProSe as
defendant was only represented by counsel with regards to a Motion for New Trial filed in the
post-conviction relief proceedings.
' [~7] The State filed a Brief in Opposition to Defendant's Motion for New Trial on August
24, 2016. However, the Brief was served by electronic filing on Mr. Pulkrabek, Defendant's
counsel in the post-conviction proceedings. As a result, Defendant did not have the opportunity
to review the response prior to oral argument.
[~8] A hearing on Defendant's Pro Se motion was held on September 1, 2016 in
conjunction with the Motion for New Trial filed by Mr. Pulkrabek in the post-conviction relief
proceedings. Defendant argued that agents with the North Dakota Bureau of Criminal
Investigation lacked the authority and jurisdiction to investigate or assist in his prosecution
because they were not asked to assist in a valid investigation and did not show any directive or
assignment from the Attorney General.
[~9] On September 7, 2016 the district court denied Defendant's ProSe Motion for New
Trial.
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STATEMENT OF FACTS
[,10] On November 30, 2012 an information was filed with Grand rorks County North
Dakota District Court charging Defendant, Sean Michael Kovalevich, with two counts of Gross
Sexual Imposition and one count of Corruption of Minors.
[,II] In summary, the complaint alleged that the Defendant, Sean Michael Kovalevich,
engaged in a sexual act with a minor in two instances in which the minor was under 15 and one
instance in which the minor was older than 15. All counts were alleged to have occurred at the
Canadinn Hotel, I 000 South 42"d Street, City of Grand Forks, County of Grand Forks North
Dakota.
[,12] In his Pro Se Motion for New Trial (See appendix, Doc ID #392), Defendant
argued that the BCI lacked jurisdiction and authority to investigate and assist in prosecuting
Defendant. Defendant argued that N.D.C.C. 12-60-07(5) and N.D.C.C. 12-60-08 require BCI
agents to be asked by a law enforcement officer or agency before participating in an
investigation absent a request or directive from the Attorney General. Defendant offered several
exhibits to show that although BCI S/ A Craig Zachmeier stated on his reports that he was
assisting the Cando Police Department (See Defendant's Exhibit C, attached as part of appendix,
Doc ID #392), he was never asked by a law enforcement agency to assist with an active
investigation. See also: Defendant's Exhibit D, Letter from Towner County Sheriff Dustin
Kuchar explaining that the Cando Police Department never requested the assistance of the BCI
(Towner County Sheriffs Department assumed the duties of the Cando Police Department and
employs the former Chief of Police as a deputy). Defendant's Exhibit B, Letter from former
Towner County Sheriff Vaughn Klier stating that BCI S/A Zachmeier asked the Towner County
Sheriffs Department to participate and Sheriff Klier refused due to concerns over legality and
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transparency. Defendant's Exhibit F, Letter from BlA Chief of Police stating that no records
could be found indicating that BIA asked for the assistance of BCl S/ A Zachmeier (See
Appendix, Doc ID #392).
[~13] The State's argument consisted of three prongs. First, that N.D.C.C. 12-60-07(6),
which authorizes BCI agents to perform any other duties assigned by the Attorney General,
grants agents the authority and jurisdiction to conduct any investigation they choose because the
Attorney General is the head on the BCI and N.D.C.C. 54-12-03 authorizes the Attorney General
to make investigations in the counties. Second, that N.D.C.C. 12-60-08 grants BCI agents the
powers of a peace officer. Third, that BCI S/ A Zachmeier was in fact assisting several agencies.
The third prong was supported by an affidavit of S/ A Zachmeier, who also testified at the motion
hearing that the investigation was his idea and he called the other agencies on the phone and they
simply acquiesced to his wishes. "Q. But it's my understanding that in this case is it correct that
no one called you. You contacted these agencies and basically asked them to let you help them?
A. Correct." (Hearing on Motion for New Trial Trans. P. I I Ln 7-10) He also stated that there
was no written request, everything was done via telephone.
[~14] The District Court ruled that N.D.C.C. 12-60-07(6), N.D.C.C. 54-12-01(14), and
N.D.C.C. 54-12-03 granted the SCI jurisdiction to investigate the Defendant. The Court further
ruled that in addition, N.D.C.C. 12-60-08 grants BCI agents peace officer authority. The Court
did not rule that S/ A Zachmeier was asked by a law enforcement agency to assist in an active
investigation under N.D.C.C. 12-60-07(5).
4
LAW AND ARGUMENT
l Did agents with the North Dakota Bureau ofCriminallnvestigation (BCI) have authority and
jurisdiction to begin an investigation and assist in prosecution of Defendant under N D. C. C. 12-
60-07(6), ND.C.C. 54-12-01(14), ND.C.C. 54-12-03, and ND.C.C 12-60-08 absent an explicit
request or order fi'om the Attorney General?
Standard of Review
[~15] "The interpretation of a court rule or a statute is a question oflaw that we review
de novo. State v Ebertz 2010 ND 79 ~8, 782 N.W.2d 350. 'When we interpret a rule or statute,
we apply the rules of statutory construction and look at the language of the rule or statue to
determine its meaning.' Id." State v Chacano 2012 ND 113; 817 N.W.2d.369
N.D.C.C. 12-60-07(6), N.D.C.C. 54-12-01(14), and N.D.C.C. 54-12-03 did not Grant the BCI
Jurisdiction to Investigate the Defendant
[~16] In the order denying Defendant's ProSe Motion for New Trial, the Court states:
"Chapter 12-60 of the North Dakota Century Code provides the legislative authority for the BCI. N.D.C.C § 12-60-07 defines the powers duties and functions of the BCI. Subdivision 6 ofN.D.C.C. § 12-60-07 reads as follows: 6. The bureau shall perform such other duties in the investigation, detection, apprehension, prosecution, or suppression of crimes as may be assigned by the attorney general in the performance of the attorney general's duties. N.D.C.C. §54-12-01(4) assigns the Attorney General to serve as the Superintendent of the BCI and N.D.C.C. § 54-12-03 authorizes the Attorney General 'make an investigation in any county in this state to the end that the laws of the state shall be enforced therein and all violators thereof brought to trial.' These statutes provide jurisdiction to the BCI to investigate Kovalevich's criminal activity in this case. Additionally, N.D.C.C. § 12-60-08 provides the BCI agents shall have all the powers conferred by law upon any peace officer of this state." (Order Denying Defendant's Motion for New Trial P.3 ~8ln2-15, see appendix, Doc ID # 397).
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[~17] This Court has not, to Defendant's knowledge, had the opportunity to interpret
N.D.C.C. § 54-12-03- Attorney General to make investigations in county. In this case,
absolutely no evidence was provided by the State to show that the Attorney General's office
requested that S/A Zachmeier (BCI) investigate the Defendant. To interpret this statute as giving
individual BCI agents blanket authority and jurisdiction to investigate whatever they want
anywhere in the State is an overreach, contrary to the plain meaning of the statute, and not what
the legislature intended. N.D.C.C. 54-12-03 is intended to allow the Attorney General to
investigate on a case by case basis. This can be seen by reading the entire statute rather than just
the beginning.
[~18] To start, the full title of the statute is: "Attorney General may make investigations
in county- How expenses paid." (N.D.C.C. 54-12-03). The statute lists three circumstances
under which the Attorney General can make an investigation.
"The attorney general may make an investigation in any county in this state to the end that the laws of the state shall be enforced therein and all violators thereof brought to trial, when: 1. The attorney general deems it necessary for the successful enforcement of the laws of the State in such county; 2. Requested by a majority of the members of the board ofconnty commissioners of the county; or 3. Petitioned by twenty-five taxpaying citizens of the county."
The statute goes on to describe how repayment is made for conducting these investigations:
"The necessary expenses incurred in making the investigation or in prosecuting any resulting case, as determined by the attorney general and not otherwise specifically provided by law, must be paid by the county out of the State's attorney's contingent fund. All such expenses paid from the State's attorney's contingent fund must be paid by the county treasurer upon the warrant of the county auditor. The warrant must be executed and delivered by the auditor in an amount and to the person designated therein upon the written order of the attorney general." (S.L. 1919, ch68, §§ 1 to 3; 1925 Supp., §§ 162al to 162a3; R.C. 1943, §54-1203)
6
[~19] This statute is more complex than simply giving day to day investigative
jurisdiction to the Attorney General's office. The intent is clearly to give the Attorney General
the jurisdiction to engage in investigations when necessary and when certain requirements are
met, not on a regular basis. The State has not presented any evidence showing that the procedure
to pay expenses, laid out in N.D.C.C. § 54-12-03, was followed or that the Attorney General
authorized or was even aware that the BCI was investigating the Defendant. This statute
specifically requires that the Attorney General deem the investigation necessary for the
successful enforcement of the laws of the State in such county.
[~20] N.D.C.C. § 54-12-03 predates the establishment of the BCI. N.D.C.C. § 12-60-01
established the BCI and states: "A bureau of the state government, under the attorney general, is
hereby created and is designated as the bureau of criminal investigation, hereinafter referred to as
the bureau" S.L. 1965, chill,§!; 1971, ch 140, § 1.
[~21] The legislature could not have intended for N.D.C.C. § 54-12-03 to grant BCI any
jurisdiction because at the time it was passed, the BCI did not exist. Therefore, the State relies on
N.D.C.C. § 54-12-01(14) which assigns the Attorney General to serve as superintendent of the
BCI. However, the fact that the Attorney General is Superintendent of the BCI does not grant
individual BCI agents the powers of the Attorney General. The Attorney General may certainly
delegate powers to BCI agents; this is clearly laid out in the Powers, Duties and Functions of
Bureau subsection 6 "The bureau shall perform such other duties in the investigation, detection,
apprehension, prosecution, or suppression of crimes as may be assigned by the attorney general
in the performance of the attorney general's duties." N.D.C.C. §12-60-07(6).
[~22] Again, the State offered no evidence showing that, in Defendant's case, the
Attorney General assigned S/A Zachmeier to investigate. To the contrary, S/A Zachmeier claims
7
he was assisting the Cando Police Department and began his investigation alter receiving an
email from Rhonda Counts, Chief of Security at the Sky Dancer Hotel (See Defendant's Exhibit
A, attached as part of appendix).
['1!23] Had the legislature intended to grant the BCI jurisdiction in every situation,
N.D.C.C. § 12-60-07(6) could simply read: The bureau may perform any other duties in the
investigation, detection, apprehension, prosecution, or suppression of crime. Looking at the
entirety ofN.D.C.C. § 12-60-07, the legislature lays out specific duties and powers for the BCI.
The fact that BCI is granted specific authority necessarily contradicts the claim that BCI has
unlimited authority. If BCI has jurisdiction to investigate any alleged crime they choose, then
several provisions ofN.D.C.C. § 12-60-07 would be unnecessary. For example, subsection (5)
which allows BCI to assist other agencies would be unnecessary, as would be subsection (9)
which tasks BCI with investigating drug offenses.
['1!24] There is no plain language in the statute granting BCI jurisdiction over any
investigation they choose. This is contrary to N.D.C.C. § 11-15-03 which gives the County
Sheriff the power to conduct all law enforcement in the county. If these statutes were interpreted
to give BCI agents jurisdiction to engage in whatever investigation they choose, this would
completely remove any local oversight of law enforcement activities of the BCI. N.D.C.C. § 12-
60-07(5) provides that BCI agents may assist in investigations. This provides local oversight by
an elected official i.e. County Sheriff or Chief of Police. BCI agents often work alone with very
little supervision, making the local oversight provided for by statute all the more necessary.
['1!25] N.D.C.C. § 01-02-05 states: "when the wording of a statute is clear and free of all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."
N.D.C.C. § 12-60-07 is clear in assigning specific duties to the BCI, and N.D.C.C. § 54-12-03
8
clearly does not confer jurisdiction on BCI agents. Granting unlimited statewide jurisdiction to
BCI agents, and specifically to S/A Zachmeicr in the instant case, violates the Due Process rights
guaranteed by N.D. Const. Article. I Section 12, and the 5111 and 14111 Amendments of the United
States Constitution by granting the powers of an elected office, the Attorney General, to
uneleeted agents without a specific assignment of duties by the Attorney General.
N.D.C.C. § 12-60-08 Does not Provide Jurisdiction for BCI Agents to Investigate Defendant
[,26] The State also claims that N.D.C.C. § 12-60-08 granted BCI agents peace officer
authority to investigate the Defendant. Here, as was the case with N.D.C.C. § 54-12-03, a portion
of the statute was used and the rest was ignored. The statute in its entirety reads: "For the
purpose of carrying out the provisions of this chapter the investigators shall have all the powers
conferred by law upon any peace officer of this State." (N.D.C.C. § 12-60-08 Powers of
Investigators) The beginning of this statute is essential to interpreting its meaning. In order to
possess the powers of a peace officer, it is a requirement that the BCI agent be" ... carrying out
the provisions of this chapter." Namely, the duties and functions listed in N.D.C.C. § 12-60-07.
This statute is clear in limiting when BCI agents have peace officer powers. If the legislature had
intended for BCI agents to have peace officer authority in all situations, the beginning part of the
statute would have been omitted and the statute would simply read: The investigators shall have
all the powers conferred by law upon any peace officer of this State.
[,27] N.D.C.C. § 12-63-01 (4) states that "'Peace officer' means a public servant
authorized by law or by government agency or branch to enforce the law and to conduct or
engage in investigations of violations of the law." S/A Zachmeier was not carrying out one of the
9
provisions ofN.D.C.C. § 12-60-07 and therefore was not granted peace officer authority under
N.D.C.C. § 12-60-08. Conducting and engaging in investigations arc peace officer powers. In
Kroshel v Levi 2015 N.D. 185; 866 N.W.2d. 109,113: "This Court has recognized that as a
general rule a police officer acting outside of his jurisdiction is without official capacity and
without official power to arrest; Johnson,2004 N.D. 148,,110,683 N.W.2d. 886 (citing State v
Littlewind, 417 N.W.2d. 361,363 (N.D. 1987)."
[~28] In the present case, BCI S/ A Zachmeier and S/ A Ness were acting outside their
jurisdiction and used the powers of their office to investigate and gather evidence which was not
otherwise observable. An ordinary citizen would not have been able to gather the information
that S/A Zachmeier and S/A Ness did.
The District Court did not Rule That BCI S/A Zachmeier was assisting with a Valid
Investigation
[~29] In his Pro Se Motion for New Trial, Defendant argued that BCI S/ A Zachmeier was
not called upon by a law enforcement agent to assist with an active investigation. Defendant
advanced this argument because S/ A Zachmeier listed Cando Police Department on his reports
as the agency he was assisting. In their response, the State simultaneously claimed both that S/A
Zachmeier was assisting in several investigations and that he was not required to be asked, citing
N.D.C.C. § 54-12-03 and N.D.C.C. § 12-60-08.
[~30] Even with the affidavit of S/A Zachmeier, the District Court did not rule that S/ A
Zachmeier was asked to participate in an active investigation. Instead, the Court chose to rely on
N.D.C.C. 54-12-03, N.D.C.C. § 54-12-01(14), and N.D.C.C. § 12-60-08
10
[~31] Defendant did not previously have an opportunity to respond to the State's
argument regarding N.D.C.C. § 54-12-03, N.D.C.C. § 54-12-0 I ( 14), and N.D.C.C. § 12-60-08
because the State served their response on Mr. Pulkrabek instead of on the Defendant even
though the Motion for New Trial clearly indicated that it was being filed Pro Se and the State had
already responded to Mr. Pulkrabek's new trial motion. (Affidavit of Service by Electronic
Filing, attached as part of appendix, Doc lD #396.) Defendant did not receive the State's
response until 1113/16 after requesting it from Mr. Pulkrabeck.
[~32] To Defendant's knowledge, the only time this Court has commented on the
jurisdiction and authority of the BCI was in Larson v Baer (N.D. 1988) Footnote I states:
"The North Dakota Attorney General is the superintendent of the North Dakota Bureau of Criminal Investigation. N.D.C.C. § 12-60-05 reads in part 'The attorney general shall act as superintendent of the bureau and shall have the responsibility of and shall execute absolute control and management of the bureau.' The BCI is authorized to cooperate in a felony investigation under N.D.C.C. § 12-60-07(5), which reads 'The duties and responsibilities of the bureau shall be' : '(5) when called upon by any State's attorney, sheriff, police officer, marshal, or other peace officer, the superintendent, chief of the bureau, and their investigators may assist, aiel, and cooperate in the investigation, apprehension, arrest, detention, and conviction of all persons believed to be guilty of committing any felony within the State."'
Larson v Baer 418 N.W.2d. 282 (N.D. 1988) Footnote I.
[~33] Here the Court did not say that the BCI had authority and jurisdiction to investigate under
N.D.C.C. § 54-12-03, but rather that they are authorized to cooperate in a felony investigation
under N.D.C.C. § 12-60-07(5). EvenS/A Zachmeier himself stated "As a Bureau of Criminal
Investigations (BCI) special agent appointed by the Attorney General my duties included
assisting state, local, and federal officials with the identification, apprehension, and investigation
of suspects ... " (State's Exhibit I Affidavit ofS/A Zachmeier P.l ~1, Ln1-3 Emphasis Added, see
appendix, Doc ID #395)
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[~34] In the present case, the District Court did not rule that S/A Zachmeier was
cooperating or assisting with an active investigation. The Slate presented no evidence at the
Motion hearing, save an affidavit of Sf A Zachmeier, to counter evidence presented by the
Defendant which showed that the BCI was not asked to participate in an active investigation
pursuant to N.D.C.C. 12-60-07(5).
Conclusion
[~35] The State is asserting what is essentially a new interpretation of the statutes that
grant jurisdiction to the BCI and Attorney General. Because they were unable to show that S/ A
Zachmeier was assisting with a valid investigation, the State insists that the BCI has virtually
unlimited jurisdiction. To reach this conclusion requires several steps, each more untenable than
the last. First, they ignore that the statute requires BCI to be assisting with a valid investigation
except in drug cases, or when requested by the Attorney General. Next, the State refers to the
provision that BCI agents can perform other duties as assigned by the Attorney General without
presenting any evidence of an assignment in this case. Finally, they conclude that somehow
because of the previous, individual BCI agents have the same authority and jurisdiction as the
Attorney General.
[~36] Upholding the State's interpretation gives BCI agents free range statewide to
investigate anything they choose without the protection oflocal oversight by an elected official,
or a direct assignment from the Attorney General. These protections are provided by statute to
prevent the misuse of power and to ensure that citizens have a voice in local law enforcement. To
contravene these statutes would be a violation of due process.
12
[~37] In this case, the BCI did not have jurisdiction and authority to investigate or assist
in the prosecution of the Defendant. The State was unable to show that S/ A Zachmeier was
assisting with an investigation; the only way he could have obtained jurisdiction. The State's
argument of unlimited jurisdiction is severely flawed.
[~38] Therefore Defendant prays that this Court vacate his conviction or alternatively that
the case be reversed and remanded for a new trial, or any other relief the Court deems
appropriate.
Notary Public
____!_( -=s~~~- day of
PATRICK SCHATZ Notary Public
Slate of North Dako!a My Commission Expires January!, 2021
