Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice.
[¶1] Darrius Cortez Patterson appeals from a criminal judgment after a jury
found him guilty of delivery of cocaine within 1000 feet of a school. Patterson argues the district court should have declared a mistrial because testimony given by a confidential informant and statements made by the State during opening and closing arguments affected his right to a fair trial amounting to obvious error under N.D.R.Crim.P. 52(b). We affirm.
[¶2] On September 9, 2011, Patterson was the subject of a controlled drug buy conducted by Fargo Police Department using a confidential informant. Patterson was charged with delivery of cocaine near a school. Patterson presented a defense of entrapment. During opening arguments, the State made a statement regarding Patterson's option to present evidence. Later, the confidential informant testified about Patterson's prior drug dealings with her. Defense counsel objected, the objection was sustained and the statement was stricken. During closing arguments, the State referenced Patterson's prior convictions. After testimony from three law enforcement officers, the confidential informant, a forensic scientist and a crime analyst, the jury found Patterson guilty of delivery of cocaine near a school. Patterson appeals.
[¶3] We generally apply a de novo standard of review " to whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant's due process right to a fair trial." State v. Pena Garcia,2012 ND 11, ¶ 6, 812 N.W.2d 328. However, Patterson did not object to these alleged errors at trial; " thus[,] our review is limited to determining if the prosecutor's conduct prejudicially affected [Patterson's] substantial rights, so as to deprive him of a fair trial." State v. Duncan, 2011 ND 85, ¶ 18, 796 N.W.2d 672 (quoting State v. Burke, 2000 ND 25, ¶ 22, 606 N.W.2d 108). " This Court 'exercise[s] our authority to notice obvious error cautiously and only in exceptional ...