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State v. Majetic

Supreme Court of North Dakota

August 29, 2017

State of North Dakota, Plaintiff and Appellee
v.
Ale Majetic, Defendant and Appellant

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Norman G. Anderson, Judge.

          Leah Jo Viste, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          Richard E. Edinger, Fargo, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶ 1] Ale Majetic appeals from a judgment entered after a jury found him guilty of two counts of gross sexual imposition. Majetic argues his right to an impartial jury was usurped when, after a 56-day continuance, the district court failed to inquire whether the jury had formed an opinion in the case or had been influenced by the media. He also argues the court abused its discretion in commenting on his expert witness's testimony. We conclude the district court did not commit obvious error, and we affirm the judgment.

         I

         [¶ 2] In May 2015, the State charged Majetic with two counts of gross sexual imposition, alleging that between September 1, 2011 and April 22, 2015, he was at least 22 years old and he engaged in repeated acts of sexual penetration of a minor and he also engaged in sexual contact with another minor by shaving her genitals and other incidents of sexual contact. According to one complainant, Majetic touched her private parts and shaved her pubic hair, but she did not disclose those contacts until one year later. According to the other complainant, Majetic penetrated her vaginally and anally "more times than [she could] count" and inappropriately touched her several other times before she reported the acts in April 2015.

         [¶ 3] Majetic denied engaging in sexual acts or sexual contact with the complainants and claimed they fabricated their allegations because they hated him, they did not like his methods of discipline and they wanted their mother to divorce him. He contended the complainants' medical examinations established there was no physical evidence they had been sexually abused or assaulted.

         [¶ 4] After a jury was selected and sworn, and before the first recess on May 17, 2016, the district court admonished the jury:

"Okay. We're going to take a break here in just a minute to get the courtroom organized; but before we do this, I want to give you an admonition. And it's something that I'll try to remember to tell you every time we recess or end court for the day. Sometimes I may simply refer to it as 'the admonition.' And as I said, if for some reason I forget, just keep it in mind every single time that you're out of the courtroom.
Throughout the trial we will take recesses, and at the end of the day you will be going to your homes. It is vital that throughout this case you keep an open mind until you have heard all of the evidence. You must not discuss this case among yourselves, or with anyone else, until you have heard, number one, all of the evidence from both parties; the final closing arguments of the lawyers; and, finally, the law as given to you by the court. This admonition applies during the entire course of the trial, and it especially applies when you're not in the courtroom and you go home to your daily lives."

         [¶ 5] After that recess, defense counsel argued the State failed to timely disclose an expert witness who he claimed would ostensibly opine that a medical examination revealing no physical evidence of sexual abuse does not mean sexual abuse did not occur. The district court ruled the State failed to provide Majetic with proper notice about the expert, but declined to preclude the State from offering the expert's opinion and invited Majetic to contact an expert to address that evidence.

         [¶ 6] The district court read preliminary instructions to the jury, which included an admonition that "[a]t each adjournment, you must not converse among yourselves, nor with anyone else, on any subject connected with the trial, and you must not form or express any opinion on this case until the case is finally submitted to you for your deliberation and decision." The parties thereafter made opening statements to the jury, and the court adjourned for the day after again admonishing the jury not to discuss the case with anyone.

         [¶ 7] Before the jury heard evidence the next day, the district court granted an indefinite continuance for Majetic to procure an expert to address the expected testimony by the State's expert. The jury was instructed:

"But you should know that although you're going to be allowed to leave today, that you're still a sworn member of this jury and you cannot discuss this case with anyone. You cannot listen to any news reports or read any news accounts. You can't do any research. The same things I told you before. All of that applies until you're called back to testify--or, excuse me--called back to sit as a jury in this case. And you should try to look at your calendar to make sure that there's not going to be any conflicts within the next 30 to, I'm guessing, 45 days. And I know that's asking a lot, but I don't know any way around it. So let me give you the admonition again that it's vital that throughout this case you keep an open mind until you have heard all the evidence. You must not discuss the case amongst yourselves, or with anyone else, until you have heard all the evidence from both parties, until you've heard the final arguments of counsel, and the law as it's given to you by the Court. I'll also tell you that it's possible that there might be news stories in this case, either on the radio, television, or in print. Please do not listen to, watch, or read any such story while this trial is going on. If you happen to come across a story while we are in recess or adjourned for the evening, please change the channel or skip that page of the paper. The bottom line is that you don't want to talk to each other, or anyone else, about this thing because you want to make sure that you come in here in the same status that you are in now where you don't know anything about the case until the evidence is presented. It's just that that is going to be delayed for a period of time. So with that, the jury will be excused, and this matter will be continued on a day-to-day basis. Hopefully we'll get it tried within the next 30 days."

         [¶ 8] On July 13, 2016, the district court reconvened the jury and asked the jurors:

"And one last thing. Has any juror discussed this case with anyone else since we broke on May 17th? (No response.)
Okay. Thank you."

         The court thereafter reread the preliminary instructions to the jury, including the admonition that at each adjournment the jurors must not converse among themselves, nor with anyone else, on any subject connected with trial, and they must not form an opinion until the case is finally submitted to them.

         [¶ 9] After a noon recess that day, the following colloquy occurred ...


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