State v. Kollie

994 N.W.2d 367

STATE of North Dakota, Plaintiff and Appellee v. Arthur Prince KOLLIE, Defendant and Appellant

No. 20220343

Supreme Court of North Dakota.

Filed August 17, 2023

Rehearing Denied September 6, 2023

Ryan J. Younggren (argued), Katherine M. Naumann (on brief), and Nicholas S. Samuelson (appeared), Assistant State's Attorneys, Fargo, N.D., for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.

Tufte, Justice.

[¶ 1] Arthur Kollie appeals from a criminal judgment entered after a jury found him guilty of murder, robbery, and aggravated assault. Kollie argues his rights to a public trial and against double jeopardy were violated and the district court erred in instructing the jury and admitting a video of the victim. We affirm.

I

[¶ 2] On June 4, 2021, Jane Doe was walking from her father's home to her mother's home in south Fargo when she was attacked in an alley. A truck driver driving through the alley saw Jane Doe lying on the ground, unconscious, with Kollie beside her with one hand on her throat and the other hand pinching her nose. Both Jane Doe and Kollie were covered in bloodstains. The truck driver called 911 and approached Kollie. After the truck driver told Kollie that he "need[ed] to wait for the cops," Kollie "took off," fleeing the scene. The medical examiner testified that Jane Doe was stabbed 25 times then strangled. Jane Doe died three days later. The autopsy report listed the cause of death as asphyxia by strangulation, complicated by multiple sharp force injuries. Kollie was charged with murder, robbery, and aggravated assault. The jury found him guilty on all three counts. The district court sentenced Kollie to life imprisonment without the possibility of parole.

II

[¶ 3] Kollie argues his constitutional rights to a public trial were violated when the district court held several bench conferences, or sidebars, within view of the public, but outside the hearing of the public and without an adequate record being made available.

[¶ 4] In criminal prosecutions, the accused shall have the right to a public trial. U.S. Const. amend. VI ; N.D. Const. art. I, § 12. Kollie concedes he did not preserve the public trial issue by objecting at trial. Thus, we review only for obvious error. State v. Davis-Heinze , 2022 ND 201, ¶ 8, 982 N.W.2d 1. To demonstrate obvious error, the defendant must show (1) an error, (2) that was plain, and (3) affected his substantial rights. Id. at ¶ 6. However, because the doctrine of structural error applies to certain Sixth Amendment rights, including the public trial right, "[w]hen a claim of structural error is reviewed under the obvious error standard, the defendant need not demonstrate that the error affected the defendant's substantial rights or the trial's outcome because structural errors ‘defy analysis by "harmless-error" standards.’ " Id. at ¶ 7 (quoting State v. Pulkrabek , 2022 ND 128, ¶ 7, 975 N.W.2d 572 ).

[¶ 5] As a threshold question, we must determine whether these sidebars were closures implicating the public trial right. State v. Pendleton , 2022 ND 149, ¶ 4, 978 N.W.2d 641. "We have said that brief sidebars or bench conferences conducted during trial to address routine evidentiary or administrative issues outside the hearing of the jury ordinarily will not implicate the public trial right." Id. at ¶ 6. "For example, routine evidentiary rulings, objection rulings, or ‘[m]atters traditionally addressed during private bench conferences or conferences in chambers generally are not closures implicating the Sixth Amendment.’ " Id. (quoting State v. Martinez , 2021 ND 42, ¶ 20, 956 N.W.2d 772 ). We have also said, "Where a bench conference is held in view of both the public and the jury, despite their inability to hear what is said, the public trial right is satisfied by prompt availability of a record of those proceedings." State v. Morales , 2019 ND 206, ¶ 17, 932 N.W.2d 106.

[¶ 6] In State v. Frederick , we clarified our public trial jurisprudence. 2023 ND 77, 989 N.W.2d 504. The appellant bears the burden to demonstrate the public was excluded from a proceeding to which the public had a right to be present. Id. at ¶ 7. "An inadequate record is not equivalent to a closed trial." Id. at ¶ 10. "While a district court's failing to preserve a record of testimony and proceedings may be error, it is not structural error." Id. at ¶ 11. Accordingly, a sidebar addressing routine evidentiary or administrative matters during trial, even without an adequate record, is not a closure implicating the public trial right. Id. at ¶¶ 10, 20-21. With these principles in mind, we turn to the alleged violations.

[¶ 7] Kollie argues that nine sidebars constituted courtroom closures. The first five sidebars complained of occurred during voir dire. The first sidebar was initiated by the district court after the State finished questioning prospective jurors, but prior to the defense beginning its questions. The transcript shows that although the sidebar was "on the record," what was said was "Indiscernible." Based on the context, the sidebar likely concerned scheduling. However, without a more complete record, this Court is left to assume the content of the discussion. The second sidebar, partially indiscernible, was called for by the State in response to the defense's questioning and commenting on criminal responsibility. During the sidebar, defense counsel confirmed that he understood the State's concern and that he would "stay away from it." The third sidebar, partially indiscernible, arose after the State asked to approach during the defense's questioning concerning whether the prospective jurors would accept a jury instruction on a lack of criminal responsibility defense. After the sidebar, the court adjourned for the day. Thus, an inference can be drawn that this sidebar dealt, in part, with a scheduling matter. Without a complete record, we cannot discern whether part of the sidebar involved an objection to the defense's questioning and discussion.

[¶ 8] The fourth sidebar was initiated by the district court after the defense was questioning a prospective juror about a hardship he was experiencing by missing time at his job. After the sidebar ended, the court went back on the record and excused the prospective juror from jury service. Similarly, the fifth sidebar came after the defense was questioning a prospective juror concerning a work trip which would cause a hardship. After the sidebar, the court more extensively questioned the prospective juror about the trip before excusing her due to hardship.

[¶ 9] On the fifth day of the trial, the district court called a sidebar prior to the State's direct examination of the detective who interviewed Kollie about the incident. Although partially indiscernible, it appears defense counsel objected to certain exhibits coming into evidence. The court then inquired about further objections on the record in open court. Thus, this sidebar appears to involve the court either ruling on objections or clarifying past rulings on objections or arguments.

[¶ 10] On the seventh day of trial, the State objected to the defense's question eliciting the educational background of a lay witness and asked to approach. The sidebar was held off the record. After being back on the record, the district court overruled the State's objection. Later that day, defense counsel objected after a witness mentioned Kollie's probation and asked to approach. After a sidebar off the record, the court instructed the jury to disregard the reference to probation. Thus, a reasonable inference is that the defense asked the court to strike that portion of the witness's answer, which the court granted. The last sidebar occurred off the record just after the State rested its rebuttal case. Back on the record, the court sent the jury home for the day and then stated it would be addressing final jury instructions after a lunch break. The context suggests this sidebar addressed scheduling matters.

[¶ 11] We conclude Kollie has failed to show these sidebars constitute courtroom closures. At all times, the public was able to observe the sidebars. The public was not asked to leave the courtroom or prevented from entering the courtroom. See Frederick , 2023 ND 77, ¶ 20, 989 N.W.2d 504. Although what was said at the nine sidebars is either partially or completely absent in the record, the context provides some insight as to the substance of the sidebars. Based on the context, the sidebars appear to address routine evidentiary rulings, objection rulings, or administrative matters such as scheduling.

[¶ 12] To the extent that Kollie argues the context does not provide enough information on what was discussed, he has failed to state what was discussed at the sidebars or taken any measures to supplement or reconstruct the record. "A defendant must object to a district court's failure to preserve the substance of a bench conference on the record." Frederick , 2023 ND 77, ¶ 12, 989 N.W.2d 504. Because Kollie did not object to the district court's failure to preserve the substance of the sidebars on the record, we review this forfeited error under the obvious error standard of review. Id. "To demonstrate that an inadequate record affects a defendant's substantial rights, the defendant must demonstrate the record cannot be adequately supplemented or reconstructed." Id. at ¶ 13. Under N.D.R.App.P. 10(f), "If a transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection."

[¶ 13] The district court erred by failing to either adequately record the sidebars or summarize the sidebars on the record and then allowing the parties the opportunity to confirm or correct the court's summary. Frederick , 2023 ND 77, ¶ 21, 989 N.W.2d 504. Kollie, however, failed to "supplement or reconstruct the record under ...