FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 26, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
S TA TE OF NOR T H DA KOTA
2023 ND 82
State of North Dakota, Plaintiff and Appellee
v.
Travis Edward Smith, Defendant and Appellant
No. 20220162
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Wade L. Webb, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Ryan J. Younggren (argued), Nicholas S. Samuelson (on brief), and Tracy A.
Gompf (on brief), Assistant State’s Attorneys, Fargo, ND, for plaintiff and
appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Smith
No. 20220162
McEvers, Justice.
[¶1] Travis Smith appeals from a criminal judgment entered after a jury
found him guilty of aggravated assault. Smith argues questions from the State
during trial amounted to prosecutorial misconduct and burden shifting. Smith
further argues the district court violated his constitutional right to a public
trial, and abused its discretion by admitting cumulative and improperly
noticed expert testimony. We affirm.
I
[¶2] On July 6, 2021, Travis Smith arrived at Corinth Booker’s apartment
wet from the rain. Booker let Smith in and gave him a change of clothes. An
argument ensued and Booker demanded Smith leave his apartment. Smith
shoved Booker, resulting in a fight. Smith stabbed Booker multiple times with
a knife. The altercation was captured on a video camera in Booker’s home.
Smith fled on foot and discarded the knife used to stab Booker.
[¶3] Smith was charged with aggravated assault committed with a deadly
weapon. A jury trial was held in April 2022. Booker testified about the night of
the altercation. The State also called Dr. Joshua Gebur as an expert to testify
about Booker’s injuries. Throughout the trial, the district court held several
unrecorded sidebars.
[¶4] Smith testified he was acting in self-defense when he stabbed Booker. He
also testified he discarded the knife while fleeing from the altercation. During
cross-examination, the State asked, “Now that knife is awfully important if
you’re trying to prove your innocence here, isn’t it?” Defense counsel objected.
The prosecutor rephrased the question. Counsel objected. The objection was
sustained. The jury found Smith guilty of aggravated assault. Smith appeals.
2
II
[¶5] Smith argues the State’s questioning of Smith about discarding the knife
amounted to prosecutorial misconduct and burden shifting.
[¶6] We first address the alleged prosecutorial misconduct and determine the
appropriate standard of review. Smith argues claims of prosecutorial
misconduct are reviewed de novo. Smith is correct if he made this argument in
the district court. See State v. Bazile, 2022 ND 59, ¶ 5,
971 N.W.2d 884
(applying de novo standard of review when a defendant moves for mistrial on
the basis of prosecutorial misconduct). The State argues Smith did not assert
prosecutorial misconduct at trial, and therefore the obvious error standard
applies. See State v. Vondal,
2011 ND 186, ¶ 12,
803 N.W.2d. 578.
[¶7] During cross-examination of Smith the following exchange occurred:
Q: [By Mr. Younggren] You got rid of the knife?
A: Yeah, I dropped it shortly after I left.
Q: You ditched it?
A: No, I – I dropped it. You could say I ditched it. I wasn’t trying
to hold onto the knife any longer as soon as I got a safe distance
away from the apartment building.
Q: Now that knife is awfully important if you’re trying to prove
your innocence here, isn’t it?
A: I wasn’t thinking I would have to –
MS. BRAINARD: Objection, Your Honor, my client doesn’t have to
prove –
THE COURT: Objection is –
A: – prove my innocence at the time.
MS. BRAINARD: – his innocence.
THE COURT: Objection – hold tight, sir. Just hold tight.
3
Objection sustained as to the form of the question. You may
proceed, Mr. Younggren.
MR. YOUNGGREN: Okay.
BY MR. YOUNGGREN:
Q: If we had that knife, that would have been –
THE COURT: The question’s stricken from the record. You may
proceed.
BY MR. YOUNGGREN:
Q: That would have been very important, wouldn’t it have, sir?
A: I’m not sure why. I mean –
Q: So if you were trying to – if you, sir, were trying to, as you’ve
said here, show self-defense in this case – or describe, as you’ve
described it as self-defense –
A: Yes, sir.
Q: – that would be great to have that knife, would it not?
A: For what purpose?
MS. BRAINARD: Objection, cause for speculation and legal
conclusion.
BY MR. YOUNGGREN:
Q: The same reason that you got –
MR. YOUNGGREN: Oh, sorry.
THE COURT: Counsel can approach; both parties please.
4
(Counsel approached the bench, the following occurred: [off
the record bench conference]1)
(Counsel returned to the trial tables, and the following
occurred in open court:)
THE COURT: Thanks, folks. The objection is sustained.
A.
[¶8] Smith did not assert prosecutorial misconduct in the district court. While
he objected to the State’s questions, prosecutorial misconduct was not
mentioned, and Smith did not move for a mistrial. This Court has held that a
party must make a specific objection to evidence at the time it is offered so that
the opposing party may have an opportunity to argue the objection, and to give
the district court an opportunity to appropriately rule on it. State v.
Samaniego, 2022 ND 38, ¶ 15,
970 N.W.2d 222. In Samaniego, the defendant
objected at trial to questioning by the State asserting evidentiary violations in
cross-examination, and on appeal alleged the questioning was prosecutorial
misconduct. Id. at ¶ 14. This Court noted the district court did not have the
opportunity to rule on whether the questioning was a violation of the
defendant’s right to remain silent. Id. at ¶ 15. As in Samaniego, the district
court had no opportunity to rule on whether the State’s questioning amounted
to prosecutorial misconduct.
[¶9] When prosecutorial misconduct is raised for the first time on appeal, we
may review for obvious error. Samaniego,
2022 ND 38, at ¶ 16.
Our review is limited to determining if the prosecutor’s conduct
prejudicially affected the defendant’s substantial rights, so as to
deprive the defendant of a fair trial. In deciding if there
was obvious error, we consider the probable effect of the
prosecutor’s improper comments on the jury’s ability to judge the
evidence fairly. Obvious error is noticed only in exceptional
1 Smith argues this bench conference violated his right to a public trial.
5
circumstances in which the defendant has suffered a serious
injustice.
Vondal, 2011 ND 186, ¶ 12 (cleaned up).
[¶10] In State v. Schimmel, this Court expressed our concerns regarding
prosecutors providing their own personal beliefs on the evidence:
When the state’s attorney comments personally on the evidence,
he is acting as an unsworn witness for the prosecution who is not
subject to cross-examination and who may be perceived as
an expert witness testifying about scientific evidence. Additionally,
we are concerned that personal comments made by the state’s
attorney may convey the impression that evidence not presented
to the jury, but known to the prosecutor, supports the charges
against the defendant. Our final concern is that the prosecutor’s
opinion carries with it the “imprimatur of the Government.”
Improper argument by the state’s attorney may induce the jury to
trust the government’s view rather than its own judgment of the
evidence when deliberating. Correspondingly, the prosecution’s
improper suggestions, insinuations and assertions of personal
knowledge distort the fundamental guarantee of a fair trial by
placing the great weight and presence of the government on the
side of the prosecutor, who is not the representative of an ordinary
party but of the sovereignty, whose obligation is not only to govern
but to govern impartially. The sovereign’s interest in a criminal
prosecution is not to win at all costs but to see that justice is done.
409 N.W.2d 335, 343 (N.D. 1987) (citations omitted). Accordingly, prosecutors
should not express their personal views on the evidence to the jury. A
prosecutor must walk a line between his or her duty to prosecute earnestly
while refraining from improper methods calculated to produce a wrongful
conviction.
Id. at 342. This can be a gray area and a difficult assessment to
make.
Id. The trial court must discourage inappropriate argument by the
prosecutor by taking prompt action, which may include corrective instructions
or an admonition. Id.
6
[¶11] Part of determining whether the State’s questioning was improper
requires looking at whether the questions were invited. A defendant cannot
claim error for arguments that are invited. State v. Kruckenberg, 2008 ND 212,
¶ 28,
758 N.W.2d 427. When determining whether a prosecutor’s invited
response prejudices the defendant, the defense counsel’s arguments must be
considered, and if the remarks did no more than right the scale, those
comments do not warrant reversal.
Id.
[¶12] A review of the record shows Smith asserted self-defense immediately.
During opening statements, the defense stated, “This isn’t a question of where
or what happened; it is a question of whether Travis Smith legally and validly
exercised his right to self-defense. . . .” During the State’s case-in-chief, the
defense cross-examined Booker and asked whether he thought Smith acted in
self-defense. Smith opened the door to the State’s questions regarding self-defense. The State’s questions here were advanced to glean evidence, or obtain
a concession, on whether discarding the knife was important to Smith’s claim
of self-defense. Whether Smith acted in self-defense was an issue of fact in
contention with regard to the aggravated assault charge. See State v. Pasha,
2008 WL 268863 (N.J. 2008) (admitting a statement from a defendant after
law enforcement asked the defendant to help prove his innocence was not
improper; rather, it was necessary phrasing employed to attempt to glean
relevant information). The State’s questioning does not warrant reversal
because it was invited and in response to similar questions by the defense. The
State’s questions regarding Smith’s claim of self-defense standing alone were
not improper, but they were perilously close to the line. However, even if the
questioning by the State was improper, as noted below, Smith has not shown
he was prejudiced.
B.
[¶13] Smith argues the prejudice that resulted from the alleged improper
statements was burden shifting. Although we concluded Smith did not
properly preserve the issue of prosecutorial misconduct on appeal, we will
address the burden shifting argument because his objection at trial was that
he did not have to “prove his innocence.”
7
[¶14] Under North Dakota law, the State must prove beyond a reasonable
doubt each element of a charged offense. State v. Olander, 1998 ND 50, ¶ 20,
575 N.W.2d 658. The element of an offense means the “nonexistence of a
defense as to which there is evidence in the case sufficient to give rise to a
reasonable doubt on the issue.”
Id. (quoting N.D.C.C. § 12.1-01-03(1)(e)). Smith
argues the statement amounted to burden shifting because twice the
prosecutor “tells the jury Mr. Smith has to show, or prove he acted in self-defense when the burden is on the State to prove that he did not act in self-defense.” “Comments intended to highlight the weaknesses of a defendant’s
case do not shift the burden of proof.” United States v. Bentley,
561 F.3d 803,
810 (8th Cir. 2009). Additionally, a prosecutor’s comment on the lack of
evidence supporting a defense theory does not improperly shift the burden.
State v. McDaniel,
777 N.W.2d 739, 750 (Minn. 2010).
[¶15] Here, counsel’s objection to the State’s question was sustained as to the
form of the question. The district court, taking prompt action, ordered the
initial question stricken. The prosecutor rephrased his question. Counsel
objected, noting the question now calls for speculation and a legal conclusion.
A sidebar occurred, and the objection was sustained. No further instruction
was given at that time. The jury instructions provided an explanation that
stricken questions must be disregarded. The jury instructions also provided
that “sustained” means the question must not be answered.
[¶16] The jury instructions further provided:
An attorney is an officer of the Court. It is an attorney’s duty to
interview witnesses in advance of the trial and present evidence
on behalf of a client, to make proper objections, and to argue fully
a client’s cause. However, the argument or other remarks of an
attorney, except admissions and stipulations noted in the course of
the trial, must not be considered by you as evidence. If counsel or
I have made any comments or statements concerning the evidence
which you find are not supported by the evidence, you should
disregard them and rely on your own recollection or observation. If
counsel have made any statements as to the law which are not
supported by these instructions, you should disregard those
statements.
8
[¶17] The jury instructions specifically included an instruction on the element
of self-defense:
Evidence has been presented that Defendant acted in self-defense.
The State must prove beyond a reasonable doubt as an additional
element of that offense charged that the Defendant was not acting
in self-defense. The Defendant does not have the burden of proof
as to this defense. If the State has failed to prove beyond a
reasonable doubt that the Defendant did not act in self-defense,
the Defendant is entitled to a verdict of not guilty.
We have previously held this self-defense instruction given by the court
correctly provides that the burden of proof is on the State to prove beyond a
reasonable doubt that the defendant was not acting in self-defense. State v.
Bauer, 2010 ND 109, ¶ 12,
783 N.W.2d 21; State v. Olander,
1998 ND 50, ¶ 22,
575 N.W.2d 658 (“[I]f there is enough evidence of self-defense for an instruction
on it, an accused is entitled to an instruction to the jury that the State must
prove beyond a reasonable doubt the accused did not act in self-defense as an
element of the offense.”). The jury instruction outlining each and every element
the State must prove beyond a reasonable doubt, included the element: “The
defendant did not act in self-defense.”
[¶18] These jury instructions were provided at the opening and closing of the
trial. Moreover, the burden of proof was discussed during opening statements
and closing arguments. The jury heard numerous times that the burden of
proof, including proof beyond a reasonable doubt that the defendant did not act
in self-defense, remained with the State. We presume the jury followed the
trial court’s admonition and disregarded improper statements. State v. Pena
Garcia,
2012 ND 11, ¶ 10,
812 N.W.2d 328; see also State v. Patterson,
2014 ND
193, ¶ 15,
855 N.W.2d 113 (“[W]e presume the jury followed the court’s
instructions.”). Any potential prejudice from the prosecutor’s questioning was
minimized by the jury instructions. We have reviewed the transcript of Smith’s
trial and are unable to conclude the State’s questions resulted in burden
shifting.
9
III
[¶19] Smith argues his right to a public trial was violated because the court
held various unrecorded bench conferences, or sidebars, regarding trial
matters, including: (1) an off-the-record discussion during voir dire at the
bench with counsel discussing when to take a lunch break; (2) an off-the-record
scheduling conference at the bench with counsel; (3) an off-the-record
discussion at the bench with counsel discussing sending the jury out for a
fifteen-minute break; (4) an off-the-record discussion at the bench with counsel
towards the end of the day, deciding to adjourn for the day; (5) the court
reconvening on the record shortly after announcing it was on a fifteen-minute
break; and, (6) an off-the-record discussion at the bench with counsel
discussing an objection made to a question by the State as identified above.
[¶20] The de novo standard of review applies to whether facts rise to the level
of a public trial violation. State v. Martinez, 2021 ND 42, ¶ 19,
956 N.W.2d 772.
“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. If we decide there was a closure,
“we determine whether the trial court made pre-closure Waller findings
sufficient to justify the closure.” Id. The appellant has the burden to
demonstrate the public was excluded from a proceeding to which the public
had a right to be present. State v. Frederick,
2023 ND 77, ¶ 7, --- N.W.2d ---. A
defendant’s right to a public trial is a structural error that affects the
substantial rights of the defendant and constitutes obvious error. Id. at ¶ 5.
[¶21] Smith did not preserve the public trial issue by timely objecting at trial.
Therefore, we review only for obvious error. State v. Morales,
2019 ND 206, ¶
24,
932 N.W.2d 106. “To establish obvious error, the defendant must
demonstrate (1) an error, (2) that was plain, and (3) affected his substantial
rights.”
Id. If obvious error is established by the defendant, this Court has
discretion to correct the error “and should correct it if it ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’”
Id. (quoting
Olander,
1998 ND 50, ¶ 16).
10
[¶22] “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, 2021 ND 42, ¶ 20. 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.; see also Morales,
2019 ND 206, ¶ 19 (concluding a
bench conference concerning an evidentiary objection seeking to exclude
evidence during trial is not a closure implicating a public trial right). There is
no right of public or press access to bench conferences. Richmond Newspapers,
Inc. v. Virginia,
448 U.S. 555, 598 n.23 (1980) (“The presumption of public
trials is, of course, not at all incompatible with reasonable restrictions imposed
upon courtroom behavior in the interests of decorum. Cf. Illinois v. Allen,
397
U.S. 337 (1970). Thus, when engaging in interchanges at the bench, the trial
judge is not required to allow public or press intrusion upon the huddle. Nor
does this opinion intimate that judges are restricted in their ability to conduct
conferences in chambers, inasmuch as such conferences are distinct from trial
proceedings.”).
[¶23] In addition, proceedings that do not implicate the right to a public trial
are not necessarily limited to purely administrative procedures such as
scheduling. State v. Pendleton,
2022 ND 149, ¶ 6,
978 N.W.2d 641. Non-public
exchanges between counsel and the court on technical legal issues and routine
administrative problems do not hinder the objectives which the United States
Supreme Court in Waller observed were fostered by public trials.
Id. In
Pendleton, the district court requested the parties meet “in chambers and off
the record” to discuss how the parties wanted to exercise their peremptory
challenges. Id. at ¶ 9. We stated this type of discussion was administrative and
concluded the challenged conference, even though it was off the record, did not
implicate the potential abuses a public trial is designed to protect against. Id.
[¶24] Here, all of the bench conferences or sidebars were unrecorded. The first
sidebar took place during voir dire:
THE COURT: If counsel for both parties could approach, please?
11
(Counsel approached the bench, and the following occurred: )
(Counsel returned to the trial tables, and the following occurred in
open court: )
THE COURT: Thank you, Counsel. Ms. Brainard, you may
continue.
MS. BRAINARD: The judge is worried about your lunch break,
folks. Rightly so, right?
Ms. Brainard’s comment indicates the sidebar was to discuss a scheduling
matter — when the prospective jurors would be dismissed for a lunch break.
[¶25] The next sidebar happened on the first day of evidence during the
defense’s cross-examination of a witness. Immediately after this sidebar, the
court announced an afternoon recess and released the jury for fifteen minutes,
showing that this sidebar was also addressing a scheduling matter — giving
the jury a break.
[¶26] The next sidebar was requested by the defense to address scheduling:
MS. BRAINARD: Your Honor, can we approach for just a quick
scheduling conference?
THE COURT: Counsel for the parties may approach.
(Counsel approached the bench for an off-the-record sidebar.)
[¶27] The next sidebar again appeared to address scheduling matters because
the court sent the jury home immediately following the sidebar:
THE COURT: . . . Next question, Ms. Brainard.
MS. BRAINARD: Your Honor, I think for the most part, the rest
that I want to go through is just snippets of the video again. And I
don’t know if you want to start in on that today or how you want
to do that. Like I said, I think it’ll take approximately 20 to 30
minutes. And Mr. Younggren and I have to set up how we’re going
to do that besides —
12
THE COURT: Okay.
MS. BRAINARD: —because we’re going to play it off his video.
THE COURT: If counsel for both parties could approach,
please.
(Counsel approached the bench for an off-the-record sidebar.)
THE COURT: Thank you, Counsel.
All right, folks, it’s 4:42 in the afternoon. Going to send you home
for the evening.
[¶28] The next alleged closure occurred when the court reconvened outside the
presence of the jury after announcing a fifteen-minute break. This conference
between the judge and both attorneys was recorded. Smith argues announcing
a recess and reconvening prior to the publicly announced time thwarts the
ability of the public to attend the trial and requires reversal. Smith provides
no legal authority to support this contention and no factual support that
anyone from the public was excluded. See State v. Obrigewitch, 356 N.W.2d
105, 109 (N.D. 1984) (where a party fails to provide supporting argument for
an issue listed in his brief, he is deemed to have waived that issue).
[¶29] The last sidebar Smith takes issue with involved an objection to a
question by the State. Smith’s counsel made the objection, the sidebar at the
bench occurred, and then the objection was sustained on the record.
[¶30] Smith acknowledges the bench conferences or sidebars were held in view
of the public. He has not shown the bench conferences addressed anything
other than scheduling, administrative matters, or routine evidentiary rulings.
A district court failing to make an adequate record is not the same as closing a
proceeding to the public. Frederick,
2023 ND 77, ¶ 10. While our district courts
should be mindful that the use of off-the-record discussions are disapproved of,
State v. Schlittenhardt,
147 N.W.2d 118, 125 (N.D. 1966), the challenged
conferences here were not closures implicating the public trial right. Smith has
not met his burden to show obvious error that the court’s procedure, while
imperfect, violated his right to a public trial.
13
IV
[¶31] Smith next argues the district court erred by admitting expert testimony
that was cumulative evidence in violation of Rule 403 of the North Dakota
Rules of Evidence, and improperly noticed expert evidence in violation of North
Dakota Rules of Criminal Procedure 16(a)(1)(F).
[¶32] The district court’s evidentiary rulings are reviewed under an abuse of
discretion standard. State v. Poulor, 2019 ND 215, ¶ 14,
932 N.W.2d 534. A
district court abuses its discretion when it acts arbitrarily, capriciously, or
unreasonably or if it misinterprets or misapplies the law.
Id. Further, “[a]
district court has broad discretion in deciding whether proffered evidence is
relevant, and we will not reverse the district court’s decision to admit or
exclude evidence unless it abused its discretion.” State v. Thompson,
2010 ND
10, ¶ 10,
777 N.W.2d 617. All relevant evidence is generally admissible, but
“[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by . . . needlessly presenting cumulative evidence.”
N.D.R.Ev. 402, 403. To exclude evidence on the basis of it being cumulative, the
concern over the “needless presentation of cumulative evidence” must
substantially outweigh the probative value of the evidence. State v. Randall,
2002 ND 16, ¶ 19,
639 N.W.2d 439.
Upon a defendant’s written request, the prosecution must
give to the defendant a written summary of any testimony that the
prosecution intends to use under N.D.R.Ev. 702, 703,
or 705 during its case-in-chief at trial. If the prosecution requests
discovery under Rule 16(b)(1)(C)(ii) and the defendant complies,
the prosecution must, upon the defendant’s written request, give
to the defendant a written summary of testimony that the
government intends to use under N.D.R.Ev. 702, 703, or 705 as
evidence at trial on the issue of the defendant’s mental condition.
Expert witness summaries must describe the witness’s opinions,
the bases and reasons for those opinions, and the witness’s
qualifications.
N.D.R.Crim.P. 16(a)(1)(F).
14
[¶33] Here, the State filed notice of an expert witness on January 11, 2022,
which was three months before trial. The notice included Dr. Gebur’s
curriculum vitae and provided his field of general surgery, qualifying him to
opine “regarding the severity and cause of the multiple stab wounds suffered
by the victim and inflicted by the Defendant.” Medical records previously
disclosed “describe his observations, medical interventions and opinions.” The
district court concluded this notice, filed three months before trial, complies
with N.D.R.Crim.P. 16(a)(1)(F). We agree. We hold the State properly noticed
Dr. Gebur as an expert witness under N.D.R.Crim.P. 16(a)(1)(F). The district
court did not abuse its discretion by admitting properly noticed expert
testimony.
[¶34] Additionally, the district court found that the expert testimony was
relevant and not overly cumulative. The court found Dr. Gebur’s testimony was
necessary to the trial for purposes of the severity of the victim’s injury, which
is relevant because serious bodily injury is an element of aggravated assault
and would be helpful to the jury. The court specifically noted it was balancing
Rules of Evidence 401, 402 and 403. These findings show the court properly
balanced the evidence under N.D.R.Evid. 403. Therefore, the court did not
abuse its discretion by allowing Dr. Gebur’s expert testimony because it was
relevant and not overly cumulative.
V
[¶35] The criminal judgment is affirmed.
[¶36] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
15
