FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 4, 2024
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 66
State of North Dakota, Plaintiff and Appellee
v.
Tevin Dewayne Freeman, Defendant and Appellant
No. 20230207
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee.
Katie J. Miller, Minot, ND, for defendant and appellant.
State v. Freeman
No. 20230207
McEvers, Justice.
[¶1] Tevin Dewayne Freeman appeals from a criminal judgment entered after
a jury found him guilty of murder, a class AA felony. Freeman argues there was
insufficient evidence to support the conviction. Freeman also argues the court
erred in denying his motion for a mistrial because taking a recess during
defense’s closing argument was a manifest injustice that prejudiced him. We
affirm.
I
[¶2] In October 2020, Freeman was charged with the murder of Erica L.
Herrera under N.D.C.C. § 12.1-16-01, a class AA felony. A jury trial was held
in November 2022.
[¶3] The State’s witnesses at trial included the 911 dispatcher who received
the emergency call, the law enforcement officers who were dispatched to the
scene and those who investigated Herrera’s death, the medical examiner who
conducted the autopsy of Herrera, and a friend of Herrera and Freeman’s.
According to testimony, Freeman called 911 and reported Herrera was not
breathing. In an interview, Freeman stated Herrera sustained injuries from
falling. The medical examiner testified Herrera’s injuries were diffuse, and
inconsistent with self-inflicted or accident-related injuries, and she died from
blunt force trauma. Other testimony indicated previous violent arguments
between Freeman and Herrera and that Freeman made statements “he was
going to show everybody that she wasn’t nothing.” After the State rested its
case in chief, Freeman moved for a judgment of acquittal under N.D.R.Crim.P.
29. The district court denied Freeman’s motion. No witnesses were called by
the defense.
[¶4] During defense’s closing argument, the State objected to defense
counsel’s use of “I believe” statements in describing the evidence presented.
This led to a sidebar conference at the bench, immediately after which the
district court was informed a juror needed to use the facilities. The court
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allowed for a ten-minute recess for the juror to use the restroom. After
returning from the recess, Freeman moved for a mistrial, arguing the break
and the State’s objection during closing argument prejudiced the defendant
and no jury instruction would remedy the issue. The court denied Freeman’s
motion for a mistrial.
[¶5] The jury found Freeman guilty of murder. Judgment was entered in June
2023. Freeman appeals.
II
[¶6] Freeman argues the district court abused its discretion in denying his
motion for a mistrial because allowing a break during defense’s closing
argument showed indifference to the defense’s case, the defense did not have
an opportunity to object to the break outside the presence of the jury, and no
curative jury instruction would remedy the situation. He makes no argument
on appeal that the court erred in sustaining the State’s objections during his
closing argument.
[¶7] The standard of review for a district court’s denial of a motion for mistrial
is well-established:
Granting a mistrial is an “extreme remedy” and should only
be resorted to when a fundamental defect or occurrence in the trial
proceedings exists that makes it evident that further proceedings
would be productive of manifest injustice. When a problem occurs
during trial, the affected party must bring the irregularity to the
trial court’s attention and seek the appropriate remedy. A mistrial
must be declared before the trial is over and before the jury has
been discharged. The district court has broad discretion in deciding
whether to grant a mistrial. We will not reverse a court’s mistrial
decision unless there is a clear abuse of discretion or a manifest
injustice would result.
State v. Thomas, 2019 ND 194, ¶ 7,
931 N.W.2d 192 (cleaned up). Trial courts
have wide discretion over the conduct of trial and the courtroom. See State v.
Stevens,
123 N.W. 888, 891 (N.D. 1909) (“[I]t is well settled that trial courts are
vested with a wide discretion in the matter of controlling arguments of counsel
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. . . .”); State v. Knight, 2023 ND 130, ¶ 8,
993 N.W.2d 528 (“A district court has
broad discretion over the conduct of a trial, including the time in which a jury
may properly deliberate, but the court must exercise this discretion in a
manner that best comports with substantial justice.”).
[¶8] Freeman’s motion for a mistrial arises from the events occurring during
defense’s closing argument. The State objected during defense counsel’s closing
argument and the district court sustained the State’s objection. Defense
counsel asked to approach the bench and a sidebar conference occurred.
Immediately thereafter, the court was notified that a juror needed to use the
facilities. The court allowed a ten-minute recess. The record reflects the
following:
BAILIFF EIKEN: Your Honor . . .
(The bailiff conferred with the Court at the bench.)
THE COURT: I was just made aware that there’s a juror that needs
to take a break. I don’t like to do that in the middle of an argument,
but I guess we did have a short break there. Again, at this point,
to the jurors, remember the admonition. We will take about a ten-minute break. We’ll reconvene with Attorney McCabe’s comments.
After the recess, the court reconvened outside the presence of the jury, at the
request of defense counsel. Defense counsel moved for a mistrial, stating:
Basically, because of the actions prior to us taking a break, Your
Honor, I’m asking for a mistrial. My client was totally prejudiced
by the actions that just occurred within this court. I don’t believe
that there are any curative instruction [sic] can fix what just
happened. I believe that if I would have said no, it wouldn’t have
went on with it. I’ve never seen a closing argument stopped like
that except for an emergency or something.
THE COURT: Are you saying the actions of someone having to go
to the bathroom or Attorney Madden’s objection?
MR. McCABE: I’d saying [sic] both, Your Honor.
3
In denying Freeman’s motion for a mistrial, the court stated:
Okay. First of all, I am going to indicate that objections, while not
ideal, are allowed in closing statements. . . . The jury was advised
that, you know, “if there’s ever a point you need to take a break,
you need to let us know.” I am going to deny the motion for a
mistrial. I don’t find that there was any prejudice, and, frankly, no
need for any type of curative instruction because the jury was the
one itself that — one of the jurors needed to use the facilities, and
with regard to the objection, I did sustain that objection. The —
counsel are not to make any “I believe” statements. . . . So motion
is noted. Denied.
(Emphasis added.)
[¶9] Freeman has not shown that allowing a short break in defense’s closing
argument at the request of a juror to use the restroom is a manifest injustice
or that the district court abused its discretion. He has not provided, nor has
this Court found, legal authority indicating a short break to use the restroom
is an abuse of discretion or creates a manifest injustice. To the contrary, in
other similar instances, courts have concluded it was not an abuse of discretion
for a court to grant a recess when jurors are ill or have other such emergencies.
See United States v. Horne, 755 F.2d 691 (8th Cir. 1985) (concluding the trial
court did not abuse its discretion in denying a defendant’s motion for mistrial
where one of the jurors became visibly ill with stomach flu during trial,
requiring a break between witnesses and an early recess on one day of the
trial); United States v. Thomas,
451 F.3d 543, 546-47 (8th Cir. 2006)
(concluding the precautions taken by the trial court in allowing a twenty-four
day break in the proceedings, due to several juror emergencies and conflicts,
was not an abuse of discretion).
[¶10] We conclude the district court did not abuse its discretion by allowing a
bathroom break requested by a juror during defense’s closing argument, and
Freeman has not shown a manifest injustice.
[¶11] Therefore, the district court did not abuse its discretion in denying
Freeman’s motion for a mistrial.
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III
[¶12] Freeman argues the convictions are not supported by sufficient evidence,
regarding the culpability element of intentionally or knowingly.
[¶13] “In reviewing challenges to the sufficiency of the evidence on appeal, the
defendant bears the burden of showing the evidence reveals no reasonable
inference of guilt when viewed in the light most favorable to the verdict.” State
v. Heinrich, 2023 ND 102, ¶ 1,
991 N.W.2d 65 (quoting State v. Rai,
2019 ND
71, ¶ 13,
924 N.W.2d 410). After reviewing the record, we conclude sufficient
evidence exists for a jury to draw a reasonable inference that Freeman
intentionally or knowingly committed the charged offense. We summarily
affirm under N.D.R.App.P. 35.1(a)(3).
IV
[¶14] We affirm.
[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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