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State v. Russell

Supreme Court of North Dakota

November 9, 2016

State of North Dakota, Plaintiff and Appellee
v.
Charles William Russell II, Defendant and Appellant

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

         AFFIRMED.

          Stephenie L. Davis, McKenzie County Assistant State's Attorney, for plaintiff and appellee.

          Russell J. Myhre, for defendant and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 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.

         I

         [¶ 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 identification.

         [¶ 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 drug paraphernalia.

         II

         [¶ 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 material evidence.

         [¶ 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 ...


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