State v. Frederick

                                                                                FILED
                                                                        IN THE OFFICE OF THE
                                                                     CLERK OF SUPREME COURT
                                                                            APRIL 26, 2023
                                                                      STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

State of North Dakota,                                 Plaintiff and Appellee
     v.
Demoris Omar Frederick,                             Defendant and Appellant

                                No. 20220070

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Dennis H. Ingold, Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                              State v. Frederick
                                No. 20220070

Jensen, Chief Justice.

[¶1] Demoris Frederick appeals from a criminal judgment entered after a jury
convicted him of aggravated assault. Frederick argues the district court
created a structural error by denying his constitutional right to a public trial,
and created a reversible error by conducting voir dire off the record, making a
transcript of the jury selection unavailable. Because Frederick has not
demonstrated any portion of trial was held privately, or that the public was
asked to leave the courtroom or was not allowed in, his right to a public trial
was not violated. Because Frederick also has not demonstrated an error
affecting his substantial rights when the district court failed to create an
adequate record during a bench conference in open court, he has failed to
demonstrate obvious error. We therefore affirm the criminal judgment.

                                        I

[¶2] On March 9, 2021, R.B. was seriously injured by a knife during an
altercation with Frederick. An amended information charged Frederick with
aggravated assault and conspiracy to commit aggravated assault. Testimony
at trial established that Frederick stabbed R.B. over a dispute R.B. had with
Frederick’s co-defendant. The jury found Frederick guilty of aggravated
assault with a dangerous weapon, but acquitted him of conspiracy to commit
aggravated assault.

[¶3] Frederick argues there were multiple closures during the trial that
violated his right to a public trial. Frederick claims two bench conferences were
held with no record taken creating closed proceedings—the first occurring right
before jury selection, and the second occurring during cross examination of
R.B. Frederick argues a violation occurred on the first day of trial shortly after
jury selection when the district court noted on the record that “[t]he door is
closed,” and then admonished Frederick for being late and discussed certain
matters such as jury instructions and exhibits. Frederick also asserts other
discussions relating to opening and closing statements, and jury selection,


                                        1
were taken off the record, not in view of the public. The State argues, in part,
that Frederick’s argument is foreclosed by his failure to comply with
N.D.R.App.P. 10(f) because Frederick made no attempt to recreate the record
through supplemental affidavits by the parties. Frederick also claims the court
created a reversible error by conducting voir dire off the record, resulting in a
transcript of jury selection being unavailable.

                                       II

[¶4] This Court applies a de novo standard to review whether facts rise to the
level of a public trial violation. State v. Martinez, 

, 

. “When considering on appeal a defendant’s claim that his right to a public
trial was violated, we first consider whether the claim of error was preserved
at trial. We then consider the threshold question of whether there was a closure
implicating the public trial right.” Id. at ¶ 3 (citation omitted). If there was a
closure, this Court determines “whether the trial court made pre-closure
Waller findings sufficient to justify the closure.” Id. When a defendant does not
preserve the public trial issue with a timely objection at trial, this Court
reviews only for obvious error. See State v. Pendleton, 

, 

; State v. Morales, 

, 

. To establish
obvious error, a defendant must demonstrate a plain error that affected the
defendant’s substantial rights. State v. Pemberton, 

, 

 (citing N.D.R.Crim.P. 52(b)).

[¶5] This Court has determined that a violation of a defendant’s right to a
public trial is a structural error that affects the substantial rights of a
defendant, and, therefore, constitutes obvious error. State v. Pulkrabek, 

, 

. Structural errors include three Sixth
Amendment rights—the right to counsel, right to self-representation, and right
to a public trial. 

 (citing State v. Rogers, 

, ¶ 5, 

).
When a structural error occurs, it affects the framework of the entire judicial
proceeding, and its detrimental effects are inherently difficult to assess. 

(citing Morales, 

). Thus, it is not necessary that a defendant
identify a specific prejudice or negative outcome. 

 (citing Morales, at ¶ 14).




                                        2
[¶6] In Pendleton, 

, this Court provided guidance on
determining when a closure has occurred:

      “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.” Martinez, 

, 

. “Contrary to what the ‘administrative’ label suggests, such
      proceedings are not limited to purely administrative procedures
      before the court, such as scheduling.” State v. Smith, 

 (Minn. 2016) (cited to favorably in Martinez, 

,
      

 and Morales, 

, 

). 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.” Martinez, 

,
      

. Additionally, “[n]on-public exchanges between
      counsel and the court on such technical legal issues and routine
      administrative problems do not hinder the objectives which the
      Court in Waller observed were fostered by public trials.” Smith,
      

 (quoting U.S. v. Norris, 

 (5th
      Cir. 1986)). Therefore, because administrative exchanges
      “ordinarily relate to the application of legal principles to admitted
      or assumed facts so that no fact finding function is implicated,” the
      public trial right is not implicated for these types of exchanges.
      Smith, at 329[.]

The above exchanges do not implicate a defendant’s Sixth Amendment right to
a public trial. The exchanges do not involve the public or specific persons being
asked to leave the courtroom, nor do they involve a truth-seeking function such
as testimony being taken from a witness or the selection of prospective jurors.
There is little threat of judicial, prosecutorial, or public abuse in these
instances, and thus, the truth is not at risk for compromise.




                                       3
[¶7] This Court has yet to address which party has the burden to demonstrate
the public was excluded from a proceeding to which the public had a right to
be present. We now clarify that an appellant bears the burden of proving this
error. See State v. Rademacher, 

, 

 (quoting L.C.
v. R.P., 

, ¶ 18, 

) (“On appeal, the appellant bears
the burden of showing error.”); see also Commonwealth v. Williams, 

 (Mass. 1980) (“The burden is clearly on the defendant to demonstrate
that the public was excluded from his trial[.]”); Cameron v. State, 

 (Tex. Crim. App. 2014), on reh’g (Mar. 2, 2016) (noting “the burden to
show that a trial is closed to the public is on the defendant”). In the instance of
an alleged public trial violation, this means the appellant must demonstrate
the public was excluded from a proceeding and the proceeding was of a nature
that the public had a right to be present.

[¶8] In most of our public trial cases, members of the public were specifically
asked to leave, or the parties discussed matters outside the presence of the
public. See State v. Davis-Heinze, 

, 

 (discussion
in hallway between trial court and parties on a question from the jury);
Pulkrabek, 

 (in-chamber pre-trial conference discussing jury
selection, evidentiary stipulations, and an attorney withdrawal request);
Martinez, 

 (portion of trial closed to public when testimony
from a minor was received); Morales, 

 (public asked to leave
during pre-trial and evidentiary hearings and at trial); Rogers, 

,
¶ 6 (public excluded from a competency hearing).

[¶9] In Pendleton, certain discussions occurred outside the presence of the
public (reviewing jury selection charts; examining the verdict forms), but one
instance involved whether an off-the-record bench conference, conducted in
open court, violated a defendant’s right to a public trial. 

, ¶ 7. The
bench conference was “an off-the-record discussion at the bench with the
parties discussing the numbering of exhibits[.]” Id. We acknowledged in that
case that “at no time did the court close the courtroom or ask members of the
public to leave before any matters were discussed.” Id. at ¶ 10. Instead, the
discussion “occurred at the bench in open court in view of the public.” Id.
Additionally, “[t]he content of the discussion was described by the court before


                                        4
it began, and the substance of the discussion was immediately summarized by
the court on the record at its conclusion.” Id. We concluded that this discussion
“was purely administrative in substance and did not constitute a closure
implicating the public trial right.” Id.

[¶10] We have yet to address whether a defendant’s right to a public trial is
violated when a bench conference conducted in open court is not recorded or
the district court does not explain on the record the substance of a bench
conference. Although our prior case law suggests an off-the-record bench
conference may violate a defendant’s right to a public trial if the court does not
make a record of the substance of the discussion, we have never directly held
so, and we refuse to now. A district court closing a proceeding to the public is
significantly different from the district court failing to make an adequate
record of a bench conference conducted in an open trial. An inadequate record
is not equivalent to a closed trial. See United States v. Cashwell, 

 (11th Cir. 1992) (quoting United States v. Selva, 

, 1306 n. 5
(5th Cir. 1977) (“[A] merely technically incomplete record, involving no
substantial or significant omissions, will not be sufficient to work a reversal.”).

[¶11] Rule 39, N.D. Sup. Ct. Admin. R., calls for preservation of the record.
“Except in small claims court cases under N.D.C.C. ch. 27-08.1 and in traffic
cases under N.D.C.C. § 39-06.1-03, the record of testimony and proceedings of
the district court must be preserved using audio-recording devices, videorecording devices, or stenographic shorthand notes.” N.D. Sup. Ct. Admin. R.
39(2). However, North Dakota law recognizes that not all proceedings will
always be recorded. Fenske v. Fenske, 

 (N.D. 1996). Our law
has also stated that while off the record discussions are “disapproved of,” the
trial record “will be searched and all parts of the record interpreted together.
A deficiency in one place may be cured by what appears in another.” State v.
Schlittenhardt, 

 (N.D. 1966) (citing Davidson v.
Nygaard, 

 (N.D. 1951)). While a district court’s failing to
preserve a record of testimony and proceedings may be error, it is not structural
error.




                                        5
[¶12] A defendant must object to a district court’s failure to preserve the
substance of a bench conference on the record. See State v. Entzi, 

, 

 (non-transcribed portions of record are not preserved for
appeal where there were no contemporaneous objections). If an alleged error is
forfeited, then we review only for obvious error. See Davis-Heinze, 

; Morales, 

. “An obvious error or defect that affects
substantial rights may be considered even though it was not brought to the
court’s attention.” N.D.R.Crim.P. 52(b). When analyzing a claim of obvious
error, we may “notice a claimed error that was not brought to the attention of
a trial court if there was (1) error, (2) that is plain, and (3) affects substantial
rights.” State v. Patterson, 

, 

 (quoting State v.
Clark, 

, 

). “An alleged error does not constitute
obvious error unless there is a clear deviation from an applicable legal rule
under current law.” 

 (quotation marks omitted). “In order to affect
‘substantial rights,’ an error must have been prejudicial, or affected the
outcome of the proceeding.” State v. Erickstad, 

, 

. The defendant bears the burden of showing the alleged error was
prejudicial. Patterson, at ¶ 4.

[¶13] To demonstrate that an inadequate record affects a defendant’s
substantial rights, the defendant must demonstrate the record cannot be
adequately supplemented or reconstructed. Our case law supports this
contention:

      The appellant bears the burden on appeal of proving error. State v.
      Raywalt, 

 (N.D. 1989) (citing, e.g., State v.
      Lind, 

 (N.D. 1982); State v. Azure, 

 (N.D. 1976); State v. Simpson, 

, 

 (1951)). It is the duty of an appellant who alleges error to
      bring up the entire record on the point as to which error is alleged.
      Raywalt; N.D.R.App.P. 10(b).
      ...
      Unless the record affirmatively shows the occurrence of the
      matters which the appellant relies upon for relief, he may not urge
      those matters on appeal. 

.




                                         6
City of Grand Forks v. Dohman, 

 (N.D. 1996) (internal
quotations omitted). A new trial is not appropriate when an appellant makes
no effort to reconstruct the missing record under N.D.R.App.P. 10(f) and
provides no reason for not doing so. See United States v. Savage, 

,
237 (3d Cir. 2020) (Despite “50 unrecorded oral communications . . . including
sidebars, [and] in-chambers charge conferences to hammer out jury
instructions” defendant’s “failure to pursue Rule 10 reconstruction forecloses
relief.”) (internal quotations omitted); United States v. Locust, 

 (4th Cir. 2004) (“Because [Rule 10] was specifically designed to give an
appellant the opportunity to reconstruct an otherwise insufficient record,
courts have consistently expected the appellant to make the first move[.]”);
United States v. Gallo, 

 (6th Cir. 1985) (“Absent a showing
by counsel on appeal of a reasonable but unsuccessful effort to determine the
substance of the off-the-record remarks and the nature of a claimed error,
reversal is not an appropriate remedy.”).

[¶14] Rule 10(f), N.D.R.App.P., provides a mechanism for an appellant to
reconstruct a record. It provides:

      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. The
      statement must be served on the appellee, who may serve
      objections or proposed amendments within 14 days after being
      served. The statement and any objections or proposed
      amendments must then be filed with the district court for
      settlement and approval. As settled and approved, the statement
      must be filed with the clerk of the supreme court by the appellant
      within 60 days after the notice of appeal is filed.

[¶15] The State may also prepare and file a statement of the case “showing
how the issues presented by the appeal arose and were decided in the district
court.” N.D.R.App.P. 10(g). The district court is the final arbiter of this
supplemental record. Rule 10(h)(1), N.D.R.App.P., states, “If any difference
arises about whether the record truly discloses what occurred in the district
court, the difference must be submitted to and settled by the district court and
the record conformed accordingly.” Only when an appellant attempts to


                                        7
reconstruct the record utilizing the legal tools above can this Court then review
the entirety of the record to determine if it establishes error or “affirmatively
shows the occurrence of the matters which the appellant relies upon for
relief[.]” Dohman, 

. Without such an attempted
reconstruction, this Court is unable to accurately complete an appellate review.
See United States v. Sussman, 

 (3rd Cir. 2013) (quoting United
States v. Sierra, 

 (3d Cir. 1992) (“[T]he reconstructed record
will enable the appellate court effectively to review the relevant issues.”).

                                       III

[¶16] Here, Frederick claims three public trial violations. We will examine
each in turn using the framework established above.

                                        A

[¶17] Frederick argues that a pre-trial conference held on the morning of his
trial just prior to the commencement of voir dire violated his right to a public
trial. Frederick has not demonstrated the pre-trial conference was held
privately, or that the public was asked to leave the courtroom or was not
allowed in. To the contrary, the record reveals the parties met in open court on
record and discussed evidentiary stipulations and Frederick’s unexpected
absence. Frederick does not meet his burden of demonstrating the public was
excluded during this portion of his trial.

                                        B

[¶18] Frederick argues a second closure occurred after the jury was selected
and excused temporarily but before opening arguments commenced. Frederick
contends that because the district court commented, “the door is closed,” that
the public was excluded from the courtroom. Frederick has not demonstrated
this portion of the trial was held privately, or that the public was asked to leave
the courtroom or was not allowed in. To the contrary, the record reveals the
parties met in open court and discussed, in part, Frederick’s right to a public
trial, where the jury would be seated, and that the public could sit in the




                                        8
gallery. Frederick does not meet his burden of demonstrating the public was
excluded during this portion of his trial.

                                       C

[¶19] Frederick argues a third closure occurred during trial, specifically,
during cross examination of a witness. The following exchange took place on
the first day of trial during cross examination of R.B. by defense counsel:

            Q. How had you heard that Rose was communicating with
      her brother about you assaulting her? I mean, who’d you hear that
      from?

            A. What’s the question, again?

            Q. At some—did you ever, oh, excuse me.

              THE COURT: Hold on one moment, Mr. Morrow. Just take a
      little break. And sometimes that happens.

            MS. VAAGEN: Your Honor, may we approach briefly.

            THE COURT: Sure.

            MS. VAAGEN: Thank you.

            (Sidebar held.)

            THE COURT: Mr. Morrow, why don’t you maybe go back a
      couple of questions if you can remember where you’re at.

            Q. (Mr. Morrow continued questioning.) I was just gonna do
      that. Approximately how many days or weeks prior to March 9,
      2021, Mr. B. Did you have this conversation about getting a
      motorcycle title with Rose Wickham?

[¶20] Frederick has not demonstrated this portion of the trial was held
privately, or that the public was asked to leave the courtroom or was not
allowed in. The record shows the courtroom was not closed to the public during
this exchange, and the off-the-record proceeding was held in view of the public.

                                       9
Frederick does not meet his burden of demonstrating the public was excluded
during this portion of his trial. The issue, rather, is whether the district court
erred in its failure to create an adequate record of the bench conference.

[¶21] Frederick did not object to the district court’s failure to preserve the
substance of the bench conference on the record. Thus, the alleged error is
forfeited and we review only for obvious error. The court should have recorded
the bench conference or summarized it and then permitted the parties the
opportunity to confirm or correct the court’s summary. This requirement is
outlined in Davis-Heinze, 

, Pendleton, 

, ¶
10, Martinez, 

, Morales, 

, and the court’s
failure to comply is clear deviation from applicable legal rule under current
law. The court’s error is plain. However, Frederick has made no effort to
supplement or reconstruct the record under N.D.R.App.P. 10(f) in order to
demonstrate prejudice. He has only shown the court failed to make a sufficient
record of a bench conference. He has not demonstrated how the error affected
his substantial rights, nor has he shown the bench conference addressed any
matters implicating his right to a public trial as distinguished from routine
evidentiary or administrate issues. Pendleton, 

. Frederick has
also not demonstrated the record cannot be adequately supplemented or
reconstructed. Frederick has failed to establish obvious error in the court’s
failure to create a record of the bench conference.

                                       IV

[¶22] Frederick claims the district court created a reversible error by
conducting voir dire off the record, making a transcript of jury selection
unavailable. Frederick argues this error requires automatic reversal. In Entzi,

, this Court held a “trial court’s failure to conduct voir dire on
the record does not alone entitle [a defendant] to a new trial.” We also noted in
Entzi that a defendant must request such a recording. Id. at ¶ 5. See also State
v. Rougemont, 

 (N.D. 1983) (holding failure to record voir
dire and arguments of counsel is not per se reversible error). Since Entzi, this
Court has adopted Appendix 1, Standard 7(d), of N.D. Sup. Ct. Admin. R. 9,




                                       10
requiring that “[i]n felony criminal cases, the voir dire process must be held on
record. . . .”

[¶23] This Court has never held that a violation of an administrative rule is
per se reversible error. Furthermore, Frederick did not object to the district
court’s failure to record voir dire. Therefore, the claim was not preserved at
trial and can only be reviewed for obvious error. See State v. Fickert, 

, 

 (reviewing district court’s violation of N.D. Sup. Ct.
Admin. R. 52 under the obvious error standard and holding defendant failed to
establish how the error affected his substantial rights). While the court’s
failure to record voir dire at a felony trial is error, Frederick has failed to
establish how the unrecorded proceeding affected his substantial rights, nor
has he even attempted to show he experienced prejudice. Because Frederick
has failed to establish obvious error, we will not reverse on these grounds.

                                          V

[¶24] Frederick references a number of other instances where he suggests a
closure may have occurred (indicating he believes the parties may have met
earlier to discuss trial specifics), but he fails to satisfy to any degree of certainty
that an off-record, non-public exchange took place outside of the three
exchanges discussed in this opinion. His arguments regarding any other
exchanges are without merit and unnecessary to our decision. The criminal
judgment is affirmed.

[¶25] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                          11