Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.
Tristan Jones Van de Streek, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.
Jay R. Greenwood, Fargo, N.D., for defendant and appellant.
Dale V. Sandstrom, Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Gerald W. VandeWalle, C.J.
Dale V. Sandstrom, Justice.
[¶1] Ibrahim Kardor appeals from a district court judgment after a jury found him guilty of robbery. He argues the district court abused its discretion in denying his motion for mistrial, claiming the State denied him due process by suppressing favorable evidence. Because Kardor was aware of the existence of the evidence and failed to conduct reasonable diligence in making further inquiry to obtain the undisclosed evidence, we affirm the district court judgment, concluding Kardor failed to establish a Brady violation.
[¶2] In 2014, a Fargo convenience store was robbed at gunpoint by two unknown persons. During the course of an
unrelated narcotics investigation, Fargo police officers conducted a garbage pull outside a residence where drug activity was suspected. They collected two matching bags containing a red jacket with white lettering, which appeared to be in new condition, a pair of cut-up sweatpants, and numerous pieces of mail indicating which residence the bags came from. One officer at the scene believed the jacket matched one worn during an armed robbery of a convenience store weeks earlier. On the basis of the evidence found in the garbage, the officers applied for a search warrant of the residence from which the bags were believed to have come.
[¶3] After obtaining a search warrant, the officers searched Kardor's residence and found a duffle bag containing three loaded handgun magazines, black boots, and a red hooded sweatshirt of his that matched the sweatshirt worn during the robbery, as shown by the store's security video. Officers informed Kardor of his Miranda rights and then interviewed him. Although Kardor denied involvement in the robbery, he was arrested for robbery and possession of marijuana with intent to deliver within 1,000 feet of a school.
[¶4] At trial, during jury deliberations, jurors discovered two pieces of jewelry not separately entered into evidence in the pocket of the red hooded sweatshirt, which was entered into evidence. The jewelry consisted of " a ring attached to a pearl necklace without any specific identifying information" and was contained in a small leather bag labeled " Honora Collection." Although Kardor had submitted a discovery request under N.D.R.Crim.P. 16 for all evidence possessed by the State, the State inadvertently failed to disclose the jewelry until it was found during jury deliberations. The record, however, reflects both parties agreed that the State was unaware of the jewelry until it was discovered during trial and that the State's failure to disclose the jewelry was inadvertent.
[¶5] After being made aware that the jury had discovered the items during its deliberations, the district court informed the parties of the discovery and allowed inspection of the jewelry. On the basis of the discovered evidence and its alleged potentially prejudicial effect, Kardor alleged a due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). When asked by the court how it should rule on the alleged evidentiary issue, Kardor suggested the possibility of a mistrial but did not move for such relief. The district court disagreed with Kardor's suggestion, finding the jewelry was not exculpatory and Kardor was not prejudiced, because Kardor's attorney stated at trial that Kardor was aware before trial that the jewelry had been found in the sweatshirt. The record reflects Kardor did not object to the district court's decision or move for a mistrial. The district court then instructed the jurors to disregard the presence of the jewelry. The jury returned a guilty verdict, which Kardor now appeals.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Kardor's appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § ...