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State v. Cone

Supreme Court of North Dakota

June 24, 2014

State of North Dakota, Plaintiff and Appellee
Michael David Cone, Defendant and Appellant

Page 762

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date

Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Richard L. Hagar, Judge.


Jaimee F.E. Towers (argued) and Kelly A. Dillon (appeared), Assistant State's Attorneys, Minot, N.D., for plaintiff and appellee.

Tom P. Slorby, Minot, N.D., for defendant and appellant.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. I concur in the result. Dale V. Sandstrom. Opinion of the Court by Crothers, Justice.


Page 763

Crothers, Justice.

[¶1] Michael Cone appeals a criminal judgment entered after a jury found him guilty of aggravated assault. Cone argues the district court erred in denying his requested remedy for a discovery violation, the court erred in admitting evidence of his prior criminal convictions, the State committed prosecutorial misconduct and the court erred in allowing the State to comment on attorney-client privilege. We affirm the judgment.


[¶2] In July 2012, the State charged Cone with aggravated assault and with felonious restraint, alleging he punched the complainant in the face and broke her nose.

[¶3] Cone requested discovery, and the State filed a response to the request. In October 2012, Cone requested discovery under N.D.R.Crim.P. 16, including a request for records of the witnesses' prior criminal convictions. The State filed a response listing the names of potential witnesses and stating the witnesses' criminal history was attached, but no documents were attached to the filed response. In a November 19, 2012 letter to the State, Cone's attorney requested information related to the complainant's criminal history and for police reports for various incidents he alleged involved the complainant. Cone did not file anything else related to his discovery requests until he requested the State supplement its response to his discovery request on July 12, 2013. Cone's request stated he believed the complainant had been arrested or charged with various offenses since the charges were filed in this case.

[¶4] A jury trial was held on July 22-24, 2013. The State provided Cone with the complainant's criminal history on the morning of the first day of the trial. Cone

Page 764

argued the State's disclosures violated discovery rules and requested the complainant not be allowed to testify at the trial. Cone also requested the State provide copies of police reports related to the complainant's criminal history. The court found the State had not complied with discovery requests, but said the failure was not a violation of constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and was not necessarily a violation of N.D.R.Crim.P. 16. The court ordered the State to provide copies of the police reports to Cone by 7:00 p.m. that day. The court also ordered the complainant to be available for questioning outside the jury's presence to allow Cone to prepare for questioning the complainant in front of the jury. The court adjourned for the day to allow the State to produce the police reports and to give Cone time to prepare. Cone received copies of the police reports.

[¶5] The next day, July 23, 2013, Cone's attorney stated he was not ready for trial because he did not have enough time to prepare and Cone would be denied effective assistance of counsel if the trial proceeded. Cone requested the court exclude any testimony from the complainant or grant a mistrial or a continuance. The court ordered the trial to proceed and denied Cone's motion to exclude the complainant's testimony, but stated Cone would be given more time during the trial if he needed to review records and the court would subpoena witnesses if needed.

[¶6] Cone, the complainant, and other witnesses testified during the trial. Before Cone testified, he moved to exclude any evidence about his prior misdemeanor assault convictions. The State argued it could use evidence of Cone's criminal history as rebuttal evidence under N.D.R.Ev. 404 because Cone was allowed to question the complainant about her history of violence. The court reserved ruling on the motion until Cone testified to determine whether a question existed about his character and whether he had a propensity for violence. Cone decided to testify, and his attorney advised the court he was going to question Cone about his criminal history in view of the court's ruling that it was going to admit evidence of Cone's prior ...

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