from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Robin A. Schmidt, Judge.
Stephenie L. Davis, McKenzie County Assistant State's
Attorney, for plaintiff and appellee.
Russell J. Myhre, for defendant and appellant.
1] Charles Russell appeals from the judgment entered after a
jury found him guilty of possessing drug paraphernalia.
Russell argues the district court erred when it granted the
State's motion in limine preventing him from
cross-examining the arresting officer about a pending
criminal charge, and evidence was insufficient to prove
beyond a reasonable doubt Russell possessed drug
paraphernalia. We affirm.
2] Russell was a passenger in a car stopped by Corporal
Travis Bateman of the McKenzie County Sheriff's Office.
Bateman testified he stopped the car because it was in a park
in violation of a city ordinance. Bateman testified a red bag
fell out when Russell exited the car. Russell picked up the
red bag and put it back in the car. Bateman took
identification from Russell and the other occupants of the
vehicle. Bateman testified he saw a box of syringes when he
accompanied another passenger to the trunk to get her
3] After running Russell's identification, Russell was
arrested on a failure to appear warrant out of McKenzie
County. A subsequent search revealed a used syringe in
Russell's left breast shirt pocket. The red bag contained
syringes, methamphetamine, a digital scale and baggies. The
car was very messy and scattered with drugs and other drug
paraphernalia. Russell was charged with possession of drug
paraphernalia and possession with intent to deliver within
1000 feet of a school.
4] Before trial the State orally moved to prevent any mention
of a pending criminal charge against Bateman. Bateman had a
pending reckless endangerment charge stemming from a traffic
stop a year and a half after Russell's arrest. The
district court granted the State's motion, determining
the charge against Bateman was not relevant to Russell's
case. The jury found Russell guilty of possession of drug
paraphernalia and not guilty of possession with intent to
deliver. Russell appeals his conviction for possession of
5] Russell argues the exclusion of evidence about
Bateman's arrest was a due process violation requiring a
new trial under Giglio v. United States, 405 U.S.
150 (1972) and Brady v. Maryland, 373 U.S. 83
(1963). He claims under the Brady-Giglio line of
cases the exclusion of potential impeachment evidence from
the jury was a failure to fulfill the duty to present all
6] The Brady-Giglio line of cases requires the
government to disclose to the defendant exculpatory material
and impeachment evidence. In Brady the Supreme Court
held "suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution." 373 U.S. at 87.
7] In Giglio the prosecution failed to disclose an
alleged promise to not prosecute the key witness if he
testified for the government. 405 U.S. at 150-151. The