State v. Cone

847 N.W.2d 761

2014 ND 130

STATE of North Dakota, Plaintiff and Appellee

v.Michael David CONE, Defendant and Appellant.

No. 20130236.

Supreme Court of North Dakota.

June 24, 2014.

Jaimee F.E. Towers (argued) and Kelly A. Dillon (appeared), Assistant State's Attorneys, Minot, N.D., for plaintiff and appellee.

Tom P. Slorby, Minot, N.D., for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Michael Cone appeals a criminal judgment entered after a jury found him guilty of aggravated assault. Cone argues the district court erred in denying his requested remedy for a discovery violation, the court erred in admitting evidence of his prior criminal convictions, the State committed prosecutorial misconduct and the court erred in allowing the State to comment on attorney-client privilege. We affirm the judgment.

I

[¶ 2] In July 2012, the State charged Cone with aggravated assault and with felonious restraint, alleging he punched the complainant in the face and broke her nose.

[¶ 3] Cone requested discovery, and the State filed a response to the request. In October 2012, Cone requested discovery under N.D.R.Crim. P. 16, including a request for records of the witnesses' prior criminal convictions. The State filed a response listing the names of potential witnesses and stating the witnesses' criminal history was attached, but no documents were attached to the filed response. In a November 19, 2012 letter to the State, Cone's attorney requested information related to the complainant's criminal history and for police reports for various incidents he alleged involved the complainant. Cone did not file anything else related to his discovery requests until he requested the State supplement its response to his discovery request on July 12, 2013. Cone's request stated he believed the complainant had been arrested or charged with various offenses since the charges were filed in this case.

[¶ 4] A jury trial was held on July 22–24, 2013. The State provided Cone with the complainant's criminal history on the morning of the first day of the trial. Cone argued the State's disclosures violated discovery rules and requested the complainant not be allowed to testify at the trial. Cone also requested the State provide copies of police reports related to the complainant's criminal history. The court found the State had not complied with discovery requests, but said the failure was not a violation of constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and was not necessarily a violation of N.D.R.Crim. P. 16. The court ordered the State to provide copies of the police reports to Cone by 7:00 p.m. that day. The court also ordered the complainant to be available for questioning outside the jury's presence to allow Cone to prepare for questioning the complainant in front of the jury. The court adjourned for the day to allow the State to produce the police reports and to give Cone time to prepare. Cone received copies of the police reports.

[¶ 5] The next day, July 23, 2013, Cone's attorney stated he was not ready for trial because he did not have enough time to prepare and Cone would be denied effective assistance of counsel if the trial proceeded. Cone requested the court exclude any testimony from the complainant or grant a mistrial or a continuance. The court ordered the trial to proceed and denied Cone's motion to exclude the complainant's testimony, but stated Cone would be given more time during the trial if he needed to review records and the court would subpoena witnesses if needed.

[¶ 6] Cone, the complainant, and other witnesses testified during the trial. Before Cone testified, he moved to exclude any evidence about his prior misdemeanor assault convictions. The State argued it could use evidence of Cone's criminal history as rebuttal evidence under N.D.R.Ev. 404 because Cone was allowed to question the complainant about her history of violence. The court reserved ruling on the motion until Cone testified to determine whether a question existed about his character and whether he had a propensity for violence. Cone decided to testify, and his attorney advised the court he was going to question Cone about his criminal history in view of the court's ruling that it was going to admit evidence of Cone's prior acts of violence. Cone testified about his prior misdemeanor assault convictions. The jury found Cone guilty of aggravated assault, but found him not guilty of felonious restraint.

II

[¶ 7] Cone argues the district court did not provide a sufficient remedy for the State's discovery violation. Cone claims he did not have sufficient time to prepare for the trial after he received information about the complainant's criminal history and the court should not have allowed the complainant to testify or it should have granted a continuance or mistrial as a remedy for the discovery violation.

[¶ 8] When a party has shown a discovery violation, the district court has discretion in applying a remedy under N.D.R.Crim. P. 16(d)(2). State v. Blunt, 2011 ND 127, ¶ 10, 799 N.W.2d 363. In State v. Muhle, 2007 ND 131, ¶ 25, 737 N.W.2d 636 (citation omitted), we said the court “should impose the least severe sanction that will rectify the prejudice, if any, to the opposing party.” The court's decision will not be reversed on appeal unless the court abused its discretion. Blunt, at ¶ 10. “A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Id. The court's decision about discovery violations and sanctions is not reversible error unless the defendant was denied a substantial right. Id. at ¶ 11. A defendant has not been denied a substantial right “unless [he] was significantly prejudiced by the violation.” Id. A court's decision not to exclude evidence or impose other sanctions does not constitute an abuse of discretion if the defendant fails to show he was significantly prejudiced by the violation. Id.

[¶ 9] Cone argues the district court's remedy for the discovery violation was not sufficient. His argument assumes a discovery violation occurred, but he does not specify whether it was a violation of N.D.R.Crim. P. 16 or a Brady violation. The district court did not rule the State violated N.D.R.Crim. P. 16 and the court specifically found a Brady violation did not exist. Cone does not argue the court erred in finding a Brady violation did not occur. Because Cone did not provide any argument supporting his claim of a discovery violation, we will not decide whether the State violated N.D.R.Crim. P. 16. See Engstrom v. N.D. Dept. of Transp., 2011 ND 235, ¶ 17, 807 N.W.2d 602 (arguments not adequately supported will not be considered).

[¶ 10] However, even if we assume a discovery violation occurred under N.D.R.Crim. P. 16, the district court did not abuse its discretion in applying a remedy. The court delayed the start of the trial and ordered that Cone have an opportunity to review the police reports and examine the complainant outside the presence of the jury to prepare for questioning during the trial. The court also advised Cone that it would issue subpoenas for any police officers he wanted to question about the complainant's criminal history and that he would be given more time during the trial if he needed to review records. The court's order was directed at remedying any potential violation and rectifying any potential prejudice. Cone has not explained why the court's remedies were not sufficient or how he was significantly prejudiced by the alleged violation despite the remedies provided. We conclude the court did not abuse its discretion by refusing to exclude the complainant's testimony or by refusing to grant a continuance or a mistrial.

III

[¶ 11] Cone argues the court erred in admitting evidence of his misdemeanor assault convictions. He contends the evidence was not admissible under N.D.R.Ev. 404 or 609 and the court's decision to allow the evidence forced him to choose to testify about the convictions or not to testify at all. He claims there was no purpose for the evidence, other than to impugn his character and attempt to show he acted in conformity in this case. He also argues the State failed to provide the required notice under N.D.R.Ev. 404(b).

[¶ 12] We review a district court's evidentiary rulings under an abuse of discretion standard. State v. Wacht, 2013 ND 126, ¶ 23, 833 N.W.2d 455; State v. Aabrekke, 2011 ND 131, ¶ 11, 800 N.W.2d 284. A “court abuses its discretion when its decision is arbitrary, capricious, or unreasonable, or when the court misapplies or misinterprets the law,” or when its decision is not the product of a rational mental process leading to a reasoned determination. Aabrekke, at ¶ 11.

[¶ 13] Rule 609, N.D.R.Ev., governs impeaching a witness by evidence of a criminal conviction and allows a party to present evidence of felony convictions under certain conditions, or evidence of any conviction regardless of punishment if the elements of the crime required proof of a dishonest act or false statement. Cone's misdemeanor assault convictions were not admissible under N.D.R.Ev. 609 because they did not require proof of a dishonest act or false statement.

[¶ 14] Rule 404(b), N.D.R.Ev., provides the general rule for the admission of evidence of other crimes, wrongs, or acts and provides:

“(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

“(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The prosecutor must:

(A) provide reasonable...