State v. Kollie

                                                                                   FILED
                                                                           IN THE OFFICE OF THE
                                                                        CLERK OF SUPREME COURT
                                                                              AUGUST 17, 2023
                                                                         STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                   Plaintiff and Appellee
      v.
Arthur Prince Kollie,                                 Defendant and Appellant



                                No. 20220343

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

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.
                                State v. Kollie
                                No. 20220343

Tufte, Justice.

       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

      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

      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.

       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


                                        1
obvious error. State v. Davis-Heinze, 

, 

. 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, 

, 

).

       As a threshold question, we must determine whether these sidebars were
closures implicating the public trial right. State v. Pendleton, 

, 

. “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, 

, 

). 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, 

, 

.

       In State v. Frederick, we clarified our public trial jurisprudence. 

, 

. 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.



                                         2
       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.

      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.

      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.


                                       3
       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.

      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, 

. 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.

      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, 

. 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. 

 “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.”


                                        4
       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, 

. Kollie, however, failed to “supplement or reconstruct the record under
N.D.R.App.P. 10(f) in order to demonstrate prejudice.” 

 Because he has only
shown the court failed to make an adequate record, Kollie “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 administrative issues.” 

Thus, we conclude Kollie has failed to establish that the court’s failure in
creating a record of the sidebars was an obvious error requiring reversal or
that his constitutional rights to a public trial were violated.

                                     III

      Kollie argues the district court erred in instructing the jury on the
murder count. We review jury instructions “as a whole to determine whether
they correctly and adequately advise the jury of the applicable law even if part
of the instruction standing alone may be insufficient or erroneous.” State v.
Gaddie, 

, 

. Because Kollie did not object to the
instructions, we review for obvious error. Id. at ¶ 4.

        Under N.D.C.C. § 12.1-16-01(1), “A person is guilty of murder, a class
AA felony, if the person: (a) Intentionally or knowingly causes the death of
another human being; (b) Causes the death of another human being under
circumstances manifesting extreme indifference to the value of human life; or
(c) . . . commits [felony murder].” The jury instructions defined murder as “A
person who intentionally or knowingly causes the death of another human
being is guilty of murder or if the person willfully causes the death of another
human being under circumstances manifesting extreme indifference to the
value of human life.” The instructions provided the essential elements of the
offense:

      The State’s burden of proof is satisfied if the evidence shows
      beyond a reasonable doubt, the following essential elements:



                                       5
      1)    On or about June 4, 2021, in Cass County, North Dakota, the
            Defendant Arthur Prince Kollie, caused the death of [Jane
            Doe], a human being; and

      2)    Either:

            a)    The Defendant intentionally or knowingly caused the
                  death of [Jane Doe]; or

            b)    The Defendant willfully caused the death of [Jane Doe]
                  under circumstances manifesting extreme indifference
                  to human life.

Kollie contends that because the definition section combined N.D.C.C. § 12.1-
16-01(1)(a) and (b)—2(a) and 2(b) of the essential elements—he was not
assured of a unanimous verdict on the murder charge. Essentially, he asserts
that some jurors could have found he intentionally or knowingly caused the
death of Jane Doe and other jurors could have found he willfully caused the
death of Jane Doe under circumstances manifesting extreme indifference to
human life.

        In City of Mandan v. Sperle, we concluded the district court did not err
in submitting a general verdict form to the jury that did not require the jury to
unanimously find which subsection of the city ordinance defining disorderly
conduct the defendant had violated. 

, 

.
Because the ordinance allowed the jury to find the defendant guilty “through
a number of alternative behaviors, any one of which is deemed disorderly
conduct and none of which is exclusive,” the general verdict form was
appropriate. 

 In State v. Pulkrabek, we concluded that the district court did
not err in combining subsections of the theft of property statute into one jury
instruction. 

, 

. We stated that “it is clear the
subsections of § 12.1-23-02 are alternative means of completing the crime of
‘theft’ and are not separate offenses. The jury was not required to unanimously
agree upon which of the State’s theories, Pulkrabek taking the property
himself or Pulkrabek receiving the property, it believed the State proved
beyond a reasonable doubt.” Id. Similarly, in State v. Gardner we concluded,
“The jury was not required to unanimously agree upon which of the two


                                       6
alternative means of committing child abuse—Gardner inflicting bodily injury
or Gardner allowing bodily injury to be inflicted—it believed the State proved
beyond a reasonable doubt.” 

.

      The plain language of N.D.C.C. § 12.1-16-01(1) shows murder is one
offense that has alternative, nonexclusive means of committing the offense, as
noted by the use of “or” in the statute. Pulkrabek, 

 (stating
that “or” is used in the theft statute to “set apart both the separate subdivisions
and the different actions within the subdivision”); Gardner, 

(noting child abuse statute “uses ‘or’ to set apart the two nonexclusive means
of committing child abuse”). Because either of the several means is sufficient
to commit the crime of murder—intentionally or knowingly causing the death
of another or willfully causing the death of another under circumstances
manifesting extreme indifference to human life—the jury unanimously found
Kollie guilty of murder, even if individual jurors may have found Kollie
committed the offense under different subdivisions. If the legislature intended
to create separate offenses for intentional murder and extreme indifference
murder, it would not have listed them as alternative means of committing
“murder” under N.D.C.C. § 12.1-16-01(1). Thus, we conclude the district court
did not err in instructing the jury on the offense of murder.

                                       IV

      Kollie argues that his murder and aggravated assault convictions violate
the double jeopardy clauses of the state and federal constitutions and N.D.C.C.
§ 29-01-07. He asserts that aggravated assault is a lesser included charge of
murder and that one of the two convictions must be vacated.

      The double jeopardy provisions of the federal and state constitutions and
state statute guarantee that a person may not “be twice put in jeopardy” for
the same criminal offense. U.S. Const. amend. V (“[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or limb.”); N.D.
Const. art. I, § 12 (“No person shall be twice put in jeopardy for the same
offense.”); N.D.C.C. § 29-01-07 (“No person can be twice put in jeopardy for the
same offense.”). “The constitutional guarantee against double jeopardy
encompasses three separate protections: protection against a second

                                        7
prosecution for the same offense after acquittal, protection against a second
prosecution for the same offense after conviction, and protection against
multiple punishments for the same offense.” State v. Moos, 

,

. We apply de novo review to constitutional issues, including
double jeopardy claims. State v. Borland, 

, 

.

       “[W]here the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger v. United States, 

(1932); see also State v. Bertram, 

, 

 (applying
“same elements” or Blockburger test). Under this test, the offenses are different
if “each offense contains an element not contained in the other.” Peterka v.
State, 

, 

. The jury instruction setting out the
elements of the murder charge required proof Kollie “intentionally or
knowingly caused the death” or “willfully caused the death … under
circumstances manifesting extreme indifference to human life.” One of the
essential elements of aggravated assault in this case was proof beyond a
reasonable doubt that Kollie “[k]nowingly caused bodily injury or substantial
bodily injury … [w]ith a dangerous weapon, namely, a knife.” See also N.D.C.C.
§ 12.1-17-02(1)(b). Each offense requires proof of an element the other lacks.
The murder charge required that Kollie caused the death of the victim, either
intentionally or knowingly or willfully, under circumstances manifesting
extreme indifference to human life. The aggravated assault charge did not
require intentionally, knowingly, or willfully causing death. It did, however,
require proof of a dangerous weapon. Thus, these offenses contain different
elements and are not the same offense. We do not address Kollie’s remaining
double jeopardy arguments because they depend on aggravated assault and
murder being the same offense for double jeopardy purposes. See United States
v. Good Bird, 

 (8th Cir. 1999); State v. Washington, 

 (N.C. Ct. App. 2000); State v. Tricomo, No. 47238-4-II, 

, at *10 (Apr. 26, 2016). Accordingly, we conclude that
Kollie’s constitutional and statutory rights against double jeopardy were not
violated.



                                       8
                                       V

      Kollie argues the district court erred in admitting a video of Jane Doe
under N.D.R.Ev. 401 and 402. “We review a district court’s evidentiary ruling
under an abuse-of-discretion standard.” State v. Chase, 

,

. A court abuses its discretion when it “acts arbitrarily,
capriciously, or unreasonably or if it misinterprets or misapplies the law.” 

        During direct examination of Jane Doe’s father, the State offered Exhibit
84, which the attorney for the State stated was a short video of Jane Doe
speaking about “her view on life.” Counsel for the State explained the jury had
only seen Jane Doe in “grainy video across the parking lot that doesn’t really
humanize who she was and how she may have interacted with other people.”
Defense counsel objected under N.D.R.Ev. 401 and 403. The district court
overruled the objection and received the video into evidence, citing N.D. Const.
art. I, § 25, which protects the rights of crime victims.

       “Irrelevant evidence is not admissible.” N.D.R.Ev. 402. Under N.D.R.Ev.
401, “Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” The State does not argue which fact
of consequence the video made more or less probable with its admission. Nor
do we discern any fact at issue that the video made more or less probable. Thus,
we are left to rely on the State’s initial assertion of its purpose, which was to
“humanize” Jane Doe in presenting its case before the jury. We conclude use of
the video for this purpose is improper and should have been excluded as
irrelevant evidence in this criminal trial.

       The State argues the video was appropriately admitted under N.D.
Const. art. I, § 25(1)(a), which guarantees crime victims the “right to be treated
with fairness and respect for the victim’s dignity.” Under N.D. Const. art. I,
§ 25(4), “If a victim is deceased, . . . the victim’s spouse, parent, grandparent,
child, sibling, grandchild, or guardian, and any person with a relationship to
the victim that is substantially similar to a listed relationship, may also
exercise these rights.” None of these individuals exercised § 25(1)(a) rights on
behalf of Jane Doe with respect to the video admission. Instead, the district

                                        9
court asserted the crime victim’s rights. Section 25 does not provide for the
court’s enforcement of a crime victim’s rights on behalf of a deceased victim
absent the assertion by an individual listed under § 25(4). See Cleveland v.
Alrefaei, 

, 

, ¶ 89 (8th Dist.) (Boyle, J., concurring)
(noting trial court erred in her view when it asserted crime victims’ rights
without knowing the victims’ wishes); see also State v. Montgomery, 

, 

, 

 (cautioning courts to
refrain from reading more into crime victims’ rights beyond the language of the
constitutional provisions). Because the court may not invoke section 25 rights
on behalf of a victim and no individual exercised the victim’s rights on her
behalf, we conclude the court erred in admitting the video under N.D. Const.
art. I, § 25(1)(a). We need not decide here whether, if the victim’s rights were
properly invoked, the video would have otherwise been admissible under the
Constitution or the Rules of Evidence.

       An erroneous evidentiary ruling, however, “shall be disregarded as
harmless error under N.D.R.Crim.P. 52(a) if it does not affect substantial rights
of the defendant.” City of Fargo v. Erickson, 

, 

. The explanatory note to N.D.R.Crim.P. 52 provides, “To determine
whether error affecting substantial rights of the defendant has been
committed, the entire record must be considered and the probable effect of the
error determined in the light of all the evidence.” When evaluating the likely
effect of a trial error, we determine “whether the error was so prejudicial that
substantial injury occurred and a different decision would have resulted
without the error.” State v. Rende, 

, 

 (quoting
State v. Schimmel, 

 (N.D. 1987)). Kollie states that the
video was prejudicial, but fails to argue how it was prejudicial or the probable
effect of the video in light of the rest of the evidence, let alone argue that the
result would have been different. Given the weight of the evidence against
him—particularly the testimony of the truck driver describing Kollie’s actions
at the scene—we conclude that the admission of a short video showing the
victim when she was alive was harmless error under N.D.R.Crim.P. 52(a).




                                       10
                              VI

The criminal judgment is affirmed.

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




                              11