Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
[¶1] Cornell Xavier Scutchings appealed from a criminal judgment entered on a jury verdict finding him guilty of class C felony corruption or solicitation of a minor. We conclude the prosecuting attorney's improper comment on Scutchings's failure to testify made during closing arguments constitutes reversible error. We reverse and remand for a new trial.
[¶2] In June 2007, Scutchings was charged with corruption or solicitation of a minor under N.D.C.C. § 12.1-20-05. The charge arose from a series of incidents in Grand Forks during the evening of March 31, 2007, and the morning of April 1, 2007, in which Scutchings allegedly solicited his 12-year-old niece, C.M., with the intent to engage in a sexual act with her. Scutchings was temporarily living with his brother, T.C., and T.C.'s wife. C.M. was spending the night with T.C. and his wife, who are her uncle and aunt. T.C., some friends, and Scutchings watched a basketball game that evening while C.M. and her 9- year-old cousin, J.C., were in the basement watching television. According to C.M., Scutchings came downstairs periodically and made inappropriate comments to her when others were out of hearing distance. C.M. also claimed she was alone with Scutchings on two occasions when Scutchings made inappropriate advances toward her.
[¶3] At trial, the State presented the testimony of Michael Iwan, a detective from the Grand Forks Police Department, C.M., J.C., and T.C. Iwan testified about his interview of C.M. after she reported the incident. C.M. testified about Scutchings's actions. J.C. and T.C. testified about their observations of Scutchings and C.M. during the evening and early morning hours the crime was alleged to have occurred. None of the State's witnesses, other than C.M., observed the actions which formed the basis for the criminal charge. Scutchings's attorney cross-examined the State's witnesses. Scutchings did not testify and rested without presenting any evidence in his defense.
[¶4] The district court instructed the jury as follows:
The Defendant has a constitutional right not to testify. You must not draw any inference of guilt from the Defendant's silence. The prosecutor cannot mention the Defendant's silence, and you must not discuss or consider it.
[¶5] During closing arguments, the prosecutor told the jury:
The witnesses that you heard from yesterday are the State's witnesses. The Defendant has no constitutional burden to testify. The only thing you can consider are the State's witnesses and any cross-examination by the defense counsel. What do you have to refute C.M.'s testimony? Nothing. There's no reasonable doubt in this case.
[¶6] Scutchings's attorney moved for a mistrial, arguing in part that the prosecutor improperly referred to Scutchings's failure to testify. The district court denied the motion:
I don't believe that the State went over the line in pointing out the Defendant didn't testify. The State can consider the, or the jurors, the jurors can consider, the State can argue that the jurors can only consider the evidence which is presented, presented to them and that's what the jury instructions say.
[¶7] The jury returned a verdict of guilty and the district court sentenced Scutchings to serve 5 years with the Department of Corrections ...