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State v. Bailey

Supreme Court of North Dakota

June 7, 2017

State of North Dakota, Plaintiff and Appellee
v.
Precious Bailey, Defendant and Appellant

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Todd L. Cresap, Judge.

          Ashley K. Schell, Minot, ND, for plaintiff and appellee; on brief.

          Samuel A. Gereszek, East Grand Forks, MN, for defendant and appellant; on brief.

          OPINION

          Crothers, Justice.

         [¶ 1] Precious Bailey appeals a criminal judgment entered after a jury found her guilty of possessing a controlled substance with the intent to deliver. Bailey argues the district court erred by excluding hearsay testimony after analyzing the credibility of the witness she wanted to testify on her behalf. We affirm.

         I

         [¶ 2] In September 2015 Bailey was arrested for driving under suspension. According to the affidavit of probable cause and as testified to at trial, a corrections officer felt something "crinkling" in Bailey's bra while booking her into jail. The officer placed Bailey in a holding cell. The officer returned to take Bailey to a restroom to perform a further search. While Bailey was being searched other officers entered the holding cell and under the bench discovered a black bundle containing smalls pills. The officers identified the pills as Oxycodone. Bailey was charged with possessing a controlled substance with the intent to deliver.

         [¶ 3] Bailey indicated she intended to present evidence through the testimony of Brittany Beeter. According to Bailey, Beeter would testify that another inmate, Valarie Miller, told her Bailey was charged with pills Miller left in the booking area. Bailey indicated she attempted to subpoena Miller but was unsuccessful. Bailey was informed by jail staff that Miller had another warrant out on her and was unlikely to be found. The district court did not allow Beeter to testify, determining Beeter's multiple convictions for false reports to law enforcement did not indicate reliability as required under N.D.R.Ev. 804(b)(3). A jury found Bailey guilty of possessing a controlled substance with the intent to deliver and driving under suspension. Bailey appeals.

         II

         [¶ 4] Bailey argues the district court erred by not allowing her to present testimony from Beeter, who claimed inmate Miller told her Bailey was charged with possession of Miller's pills. Bailey argues the district court erred by weighing the credibility of Beeter's potential testimony and thus abused its discretion by not allowing Beeter to testify. "A district court's exclusion or admission of evidence under N.D.R.Ev. 804 will not be overturned on appeal unless the court abused its discretion." State v. Stridiron, 2010 ND 19, ¶ 21, 777 N.W.2d 892.

         [¶ 5] Bailey claimed Miller's statement was admissible as a statement against interest under N.D.R.Ev. 804(b)(3). The State objected to the testimony, arguing it was not established that Miller was unavailable to testify and there were no corroborating circumstances clearly indicating the trustworthiness of the statement.

         [¶ 6] Under N.D.R.Ev. 804(b)(3), a statement against interest is an exception to the hearsay rule if the declarant is unavailable as a witness:

"Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) if it is offered in a criminal case to exculpate the accused, is supported by corroborating circumstances that clearly indicate its trustworthiness as a statement that tends ...

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