[Copyrighted Material Omitted]
Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable David W. Nelson, Judge.
Paul R. Emerson, Assistant Attorney General, Office of the Attorney General, Bismarck, ND., for plaintiff and appellee.
Benjamin C. Pulkrabek, Mandan, ND., for defendant and appellant.
Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
[¶1] Ryan Anderson appeals from a district court's criminal judgment entered after a jury found him guilty of murder. Anderson argues the judgment should be reversed because the district court erred by allowing testimony on Anderson's post-arrest silence and allowing improper comments by the prosecutor which amounted to prosecutorial misconduct. Anderson further argues the district court abused its discretion by giving a jury instruction on flight and failed to give a curative instruction on testimony that should have been excluded based on a pretrial order. We affirm.
[¶2] In March 2013, the State charged Anderson with class AA felony murder after he killed Christopher King by stabbing him four times at Capitol Lodge " man camp" near Tioga, North Dakota.
[¶3] According to testimony, Anderson moved to Tioga, North Dakota, to work in the oil fields as a foreman on a surveying crew. He hired family members and friends to work for him, including Rebecca Rodgers, his fiancee; Julie Benson, his aunt; and Christopher King, his best friend and the victim. Anderson also hired others, including, Dave Nardi, Keith Hansen, and Joseph Dekeado. Anderson and the members of his crew lived at Capital Lodge.
[¶4] Anderson testified that he and members of his crew went to a local bar. Anderson drank heavily throughout the night. At one point, he left to find Rodgers and Benson at a different bar. Anderson testified, after finding Rodgers and Benson, he blacked-out and did not remember anything until returning to Capital Lodge early that morning. He testified his next recollection of the night was knocking a glass of ice out of Rodgers' hand and telling her to go to bed. Nardi and Hansen testified they restrained Anderson in order to protect Rodgers. Anderson testified the next thing he remembered was work-related arguments with Nardi, Hansen, and King in the Capital Lodge commons area. Anderson testified the arguments turned physical between King and himself. Anderson testified that, after the altercation, he returned to his room. Anderson testified that he came back out of his room, King approached him in the hallway, and he stabbed King four times in self-defense, twice in the stomach and twice in the chest. On direct examination, Detective Caleb Fry, of the Williams County Sheriff's Office, laid foundation for the admission of surveillance footage showing the incident.
[¶5] Anderson and Hansen testified they loaded King into Anderson's pickup and drove King to the Tioga Medical Center. Hansen testified that, once at the Medical Center, Anderson wanted to leave King in the parking lot. Hansen testified he refused to leave King in the parking lot and Anderson assisted King to the front door of the Medical Center where medical staff loaded King onto a gurney and took him inside. Hansen testified Anderson
asked Hansen to leave the Medical Center with him, but Hansen refused. King was pronounced dead at the Medical Center. Tioga Police Officer Kyle Martin was dispatched to the Medical Center after the incident was reported. Officer Martin testified he arrived at the Medical Center and a nurse explained to him King was dead and Anderson was attempting to leave out the front lobby. Officer Martin testified that, when he arrived in the lobby, Anderson looked at him and then looked at the door. Officer Martin announced himself as a police officer, then he " pursued [Anderson] to the front door." Officer Martin testified he grabbed Anderson, Anderson began " flailing his hands and his body" attempting to get away, and then he put restraints on Anderson. Officer Martin testified Anderson stated, " I didn't mean to do it" and that Anderson was trying to defend himself. Anderson was transported to the Williams County Correctional Center where he was placed under arrest for murder.
[¶6] On direct examination, the State asked Detective Fry whether Anderson made a statement at the Williams County Correctional Center after Detective Fry informed Anderson he was under arrest for murder. Detective Fry testified Anderson did not make a statement and put his head down on the counter. Anderson's counsel did not object to the State's question or Detective Fry's answer. No further comment on Anderson's post-arrest silence was made during the trial.
[¶7] On direct examination, the State asked Hansen about the events leading up to the incident. Hansen testified that, at one point, Anderson knocked Rodgers' glasses off her face, breaking them. Hansen then testified Rodgers commented that " this is the stuff that he does to me. He always takes my glasses." Anderson's counsel objected on the grounds that the district court previously denied the State's motion to offer evidence of domestic violence under N.D.R.Evid. 404(b) before trial, and that the district court ordered evidence of Anderson's past domestic violence was inadmissible. The district court sustained Anderson's objection and told the State to " keep . . . a little bit tighter control" on the questioning. Later, on direct examination, Hansen testified Rodgers told him things Anderson previously had done to her. Anderson's counsel again objected. Outside the hearing of the jury, the district court found no misconduct occurred in the form of the question and invited the parties to submit a proposed limiting instruction on prior bad acts.
[¶8] During cross-examination of Anderson, the State asked Anderson about the amount of time he spent going over his testimony. Anderson testified he had not even gone through his testimony one full time because " he refused." During the State's rebuttal closing argument, the State referred to Anderson's answer concerning his testimony preparation on cross-examination as " ridiculous." Anderson's counsel did not object to the State's questions on cross-examination or to the State's comment in closing argument.
[¶9] The State submitted its proposed jury instructions. The State included an instruction on Anderson's " flight" at the hospital as circumstantial evidence of his consciousness of guilt. Anderson objected to the instruction, arguing the instruction was not appropriate because Anderson did not immediately flee after he stabbed King. The district court overruled the objection and allowed the jury instruction on flight. The State also submitted a proposed limiting instruction on prior bad acts as requested by the district court. Anderson objected to the State's proposed limiting instruction, but did not submit an
alternative instruction. The district court did not use the State's instruction.
[¶10] The jury found Anderson guilty of murder. The district court sentenced Anderson to twenty years in prison. Anderson appeals the district court's criminal judgment of conviction entered on the jury's guilty verdict.
[¶11] Anderson argues he was denied a fair trial because the district court allowed the State to introduce testimony about his post-arrest silence in violation of his Fifth Amendment right to remain silent. Anderson further argues, despite not raising an objection at trial, Detective Fry's comment rises to the level of obvious error and affected his substantial rights. The State conceded at oral argument the question should not have been asked, but argues Detective Fry's comment on Anderson's post-arrest silence was harmless.
[¶12] " When a defendant invokes his Fifth Amendment right against self-incrimination by choosing to remain silent, it is a violation of the defendant's due process rights to use his silence for impeachment." State v. Hill, 1999 ND 26,
¶ 16, 590 N.W.2d 187; see also Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). " [An] [i]mproper comment about a defendant's invocation of the right to remain silent is a constitutional error that may be reviewed on appeal even though not raised at trial." State v. Gaede, 2007 ND 125,
¶ 18, 736 N.W.2d 418.
[¶13] During trial, the State called Detective Fry to testify about his initial interview with Anderson after his arrest:
Q. And when you got to Williams County Correctional Center, what happened there?
a. Ryan Anderson had been brought by another deputy to the correctional center, and I informed Mr. Anderson that he was under arrest for Murder.
Q. Of Christopher King?
a. Of Christopher King.
. . .
Q. Thank you. Did Mr. Anderson make any statement at that time?
A. He did not.
Q. Did he--how did he respond to your placing him under arrest?
A. He put his head down on the counter when I informed him of that.
The record does not establish whether Anderson's silence was post-Miranda warning, or whether Anderson invoked his Fifth Amendment right to remain silent.
[¶14] Here, the State asked whether Anderson made a statement after his arrest. Based on the State's concession at oral argument that the question should not have been asked, we assume the response " he did not" was an improper comment of Anderson's post-Miranda silence; therefore, a harmless error analysis is appropriate. See Gaede, 2007 ND 125,
¶ 18, 736 N.W.2d 418. However, when the State is the beneficiary of a constitutional error, it must prove beyond a reasonable doubt that comments on Anderson's post-arrest silence did not contribute to the verdict. See State v. Rivet, 2008 ND 145,
¶ 15, 752 N.W.2d 611. In Gaede, we outlined the following factors for deciding whether an improper comment about a defendant's post-arrest silence was harmless error:
1. The use to which the prosecution puts the post arrest silence.
2. Who elected to pursue the line of questioning.
3. The quantum of other evidence indicative of guilt.
4. The intensity and frequency of the ...