Appeal from the District Court of Barnes County, Southeast Judicial District, the Honorable John T. Paulson, Judge.
The opinion of the court was delivered by: Crothers, Justice.
[¶1] Moe Maurice Gibbs appeals from a criminal judgment entered after a jury found him guilty of murder. Gibbs argues (1) the State failed to provide him with adequate financial resources for necessary experts for his defense, (2) the prosecution's statements during the State's case- in-chief and during closing arguments constituted improper comment on his right not to testify, (3) the district court's refusal to allow the jury to hear and see law enforcement's pre-arrest videotaped interview of him violated the doctrine of completeness and (4) the State failed to introduce sufficient objective evidence for the jury to convict him. We affirm.
[¶2] At about 9:00 p.m. on September 13, 2006, Valley City State University student Mindy Morgenstern was found dead in her off-campus apartment. Morgenstern was found inside the front door of her apartment with a cloth belt around her neck, a slit throat and two kitchen knives next to her body. Pine Sol had been poured over her upper torso and face. George Mizell, the state forensic examiner, determined the cause of Morgenstern's death was "incised wound of neck/asphyxia."
[¶3] There were no signs of forced entry into Morgenstern's apartment and no known witnesses to her death. Morgenstern was last seen at the university campus where she logged off a school computer at 12:23 p.m. on September 13. Morgenstern's apartment was minutes from the campus, and she failed to answer a cell phone call from a friend at 12:47 p.m. Law enforcement officials testified they believed Morgenstern was killed between 12:45 p.m. and 1:30 p.m. on September 13. There were no usable fingerprints on the knives found by Morgenstern's body, and an analysis of deoxyribonucleic acid ("DNA") on the knives excluded Gibbs as a contributor of that DNA. Both an analysis of DNA on rubber gloves found in Morgenstern's apartment and a mitochondrial DNA analysis of a piece of hair found in her left hand excluded Gibbs as a contributor. However, DNA analysis of scrapings and clippings from Morgenstern's fingernails on her left hand matched a profile of Gibbs' DNA. A DNA analysis from the fingernail clippings resulted in 41.2 nannograms of DNA, with 30.8 nannograms matching Gibbs' DNA profile and the remainder matching Morgenstern's DNA profile. A DNA analysis of the scrapings from Morgenstern's fingernails indicated a 2 to 1 ratio of Gibbs' DNA to Morgenstern's DNA. A DNA analysis of a spot on Morgenstern's shirt indicated that Gibbs could not be excluded as a contributor of that DNA.
[¶4] At the time of Morgenstern's death, Gibbs was employed as a jailer for Barnes County, and he and his wife and fifteen-month-old stepdaughter lived in the same apartment complex as Morgenstern. On the morning of Morgenstern's death, Gibbs took his wife and stepdaughter to lunch, dropping his wife off at work between 12:20 p.m. and 12:30 p.m. Gibbs received a text message from his wife at 12:33 p.m. asking him to bring her something to drink at work, and his wife testified he brought her something to drink at her job, which was minutes from their apartment.
[¶5] On September 20, 2006, law enforcement officials conducted a videotaped interview of Gibbs lasting approximately two and one-half hours. Law enforcement officials testified that during the videotaped interview, Gibbs acknowledged he had helped Morgenstern carry laundry into her apartment about ten days earlier; however, he repeatedly denied killing Morgenstern. There was evidence Gibbs had a gouge on the back of his left hand and a scratch on his right hand, which were consistent with fingernail scratches. There was testimony that Gibbs claimed he cut his left hand on September 14, 2006, while moving boxes from his apartment to his in-laws' house and that he scratched his right hand on September 15, 2006, while putting his stepdaughter in a car seat.
[¶6] At the conclusion of the September 20, 2006 videotaped interview, the State arrested Gibbs and charged him with murdering Morgenstern. Gibbs initially retained counsel, and his trial was moved to Minot because of pretrial publicity. See Forum Commc'ns Co. v. Paulson, 2008 ND 140, 752 N.W.2d 177. At that trial, Gibbs did not testify or call any witnesses, and the jury deadlocked on a verdict. Gibbs thereafter asserted he was indigent, and counsel was appointed to represent him. At a second jury trial in Bismarck in October and November 2007, Gibbs did not testify, but presented evidence through four witnesses, including Leo Worner, a computer expert; Dr. Thomas Edwards, an expert in image analysis and enhancement; and Marc Taylor, a DNA expert. The jury found Gibbs guilty of murder.
[¶7] Gibbs moved for a new trial in December 2007. Although there is no transcript of a hearing on Gibbs' motion for a new trial and no contemporaneous written order denying the motion, the parties do not dispute that the district court orally denied Gibbs' motion for new trial at a December 17, 2007 sentencing hearing. Gibbs subsequently appealed from the judgment. No transcript of the sentencing hearing was ordered; however, the record includes a September 26, 2008 written order denying Gibbs' motion for a new trial.
[¶8] Gibbs argues he was not given an opportunity to participate meaningfully in his trial because he was not provided adequate funding to retain necessary experts for an effective defense. He claims he was not able to retain the services of Dr. Michael Baden, a prominent forensic pathologist, to counteract the State's forensic pathologist, because the North Dakota Commission on Legal Counsel for Indigents would pay only one-half of Baden's reduced retainer. Gibbs also claims he was not able to retain two forensic DNA experts to testify on his behalf, essentially permitting the State to argue its three experts' testimony against his one expert's testimony. Gibbs argues the nature of this case was a battle of the experts and the availability of a forensic expert for his defense was one of the basic tools of an adequate defense.
[¶9] In State v. Gonderman, this Court explained the State's obligation to ensure an indigent defendant has a meaningful chance to present a defense:
"When a State brings criminal charges against an indigent defendant, it must take steps to ensure that the accused has a meaningful chance to present a defense. See, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Although a State need not provide an indigent defendant with all the tools that a wealthier counterpart may buy, it must provide an indigent defendant with the `basic tools of an adequate defense.' Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400, 403 (1971). See State v. Valgren, 411 N.W.2d 390 (N.D. 1987) [where indigent defendant had adequate alternatives to discovery depositions of police officers and eye witnesses to arrest, defendant was not denied access to raw materials integral to an effective defense].
"In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), a capital case, the United States Supreme Court held that when an indigent defendant makes a preliminary showing that mental capacity at the time of an alleged offense is likely to be a significant factor at trial, that defendant has a federal due process right to have the State provide access to a psychiatrist's assistance on that issue. Under Ake, supra, 470 U.S. at 77, 105 S.Ct. at 1093, indigent defendants do not have carte blanche to obtain expert assistance; instead, they are entitled to expert assistance necessary to afford `an adequate opportunity to present their claims fairly within the adversary system.' See State v. Norman, 507 N.W.2d 522 (N.D. 1993) [indigent defendant not entitled to a second psychiatric evaluation at public expense]."
531 N.W.2d 11, 13 (N.D. 1995).
[¶10] The North Dakota Commission on Legal Counsel for Indigents has policies for reimbursement of extraordinary expenses. See Commission on Legal Counsel for Indigents, Policy on Reimbursement of Extraordinary Expenses. However, "[a] touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it." State v. Bell, 2002 ND 130, ¶ 9, 649 N.W.2d 243. "A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted." Id.
[¶11] Here, although Gibbs may have asked the Commission for funds for additional experts, the record does not reflect Gibbs raised this issue in the district court until his motion for new trial. In its written order denying Gibbs' motion for a new trial, the district court said Gibbs did not ask the court for funding for additional experts and, if he had, the court may have granted him some relief. See N.D.C.C. § 31- 01-19 ("[w]itness for indigent defendants subpoenaed and paid by city, county, or state under court order in criminal or municipal court action"). The court also said Gibbs failed to provide an adequate record of funding limitations and expenditures and Gibbs was not operating under any funding cap known by his counsel. The record supports the district court's statement that Gibbs did not ask the court for funding for additional experts until his motion for a new trial. We conclude Gibbs failed to timely raise this issue in the district court so that the court could intelligently rule on the issue.
[¶12] "When an issue is not preserved for appeal, we may provide limited review of the issue to determine whether obvious error affecting substantial rights has been committed." State v. Causer, 2004 ND 75, ¶ 16, 678 N.W.2d 552. See N.D.R.Crim.P. 52(b) ("obvious error... that affects substantial rights may be considered even though it was not brought to the court's attention"). In State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658, this Court said that an appellate court may not notice a claimed error that was not brought to the attention of the trial court unless there is "(1) error, (2) that is plain, and (3) affects substantial rights."
[¶13] In denying Gibbs' motion for a new trial, the district court also explained that the alignment of the expert witnesses for each party was not one sided. The court said Dr. Rick Staub was an independent DNA expert retained by agreement between the State and Gibbs, Dr. Mohamed Sedqi was a State-retained DNA expert whose testimony about mitochondrial DNA from a hair found in Morgenstern's left hand was of little or no value to either party, Hope Olson was the Director of the North Dakota State Crime Lab who testified to the results of testing conducted in the ordinary course of her duties, Marc Taylor was Gibbs' DNA expert, and Dr. Michael Bourke was the State's DNA expert. "[I]ndigent defendants... are entitled to expert assistance necessary to afford `an adequate opportunity to present their claims fairly within the adversary system."' Gonderman, 531 N.W.2d at 13 (quoting Ake, 470 U.S. at 77). The record in this case does not suggest Gibbs' experts were disproportionately outnumbered by the State's experts. We conclude Gibbs' claimed error for inadequate funding for experts does not rise to the level of obvious error.
[¶14] Gibbs argues the prosecution's statements during the State's case- in-chief and during closing argument to the jury, constituted improper comment on his Fifth Amendment right to remain silent and to not testify at trial. Gibbs claims the cumulative effect of the prosecution's statements violated his Fifth Amendment rights, and viewed in the context of the entire trial and the evidence, the statements were not harmless beyond a reasonable doubt.
[¶15] "`[I]t is a fundamental principle of constitutional law that a prosecutor may not comment on a defendant's failure to testify in a criminal case.'" State v. Scutchings, 2009 ND 8, ¶ 9, 759 N.W.2d 729 (quoting State v. Myers, 2006 ND 242, ¶ 7, 724 N.W.2d 168). See also Griffin v. California, 380 U.S. 609, 614 (1965); State v. His Chase, 531 N.W.2d 271, 273 (N.D. 1995); State v. Flohr, 310 N.W.2d 735, 736 (N.D. 1981). "This right emanates from the criminal defendant's privilege against self-incrimination. U.S. Const. Amend. V; Art. I, [§] 12, N.D. Const.; N.D.C.C. [§] 29-21-11." His Chase, at 273.
[¶16] During Gibbs' counsel's cross-examination of Dale Maixner, an agent for the Bureau of Criminal Investigation, Gibbs' counsel asked Maixner about statements made by Gibbs during the videotaped interview:
Q: And [Gibbs] wasn't concerned about your accusations, that you were making, was he?
A: He wasn't concerned at all.
Q: In fact, he could-he told you more than once, you and the other agents, you can talk until you're blue in the face.
MR. CRUFF: Objection, Your Honor. Hearsay.
THE COURT: Overruled. Go ahead.
Q: He said more than once, `You can talk until you're blue in the face and it's not going to change my statement that I wasn't there and I didn't have anything to do with this murder.' Isn't that right?
A: Yes, and that's what I'd expect from a street smart person.
Q: Well, that wasn't part of the question. I ask that it be stricken. Now, let me ask you another question. ...