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State v. Shaw

Supreme Court of North Dakota

January 24, 2018

State of North Dakota, Plaintiff and Appellee
v.
Delvin Lamont Shaw, Defendant and Appellant

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.

          Jodi Bass (argued), Assistant State's Attorney, and Carmell F. Mattison (on brief), Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee.

          Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Delvin Shaw appealed from a criminal judgment after a jury found him guilty of murder and burglary. Shaw argues the district court erred in admitting evidence of other crimes or bad acts, and the court erred in playing the earlier testimony of a State's witness after finding the witness was unavailable to testify at trial. We affirm.

         I

         [¶ 2] In June 2014, two men broke into Jose Lopez's apartment in Grand Forks. A fight broke out and one of the men shot Lopez. Lopez died from the gunshot wounds. Shaw was arrested and charged with murder and burglary. At trial, Dametrian Welch testified he accompanied Shaw to Lopez's apartment. Welch testified Shaw kicked the door open, got into an altercation with Lopez, and then shot Lopez four times. Welch testified that after the shooting, he confessed to the police about what happened at the apartment. After a jury found Shaw guilty, he appealed. A majority of this Court reversed and remanded for a new trial, holding the district court misapplied the law on N.D.R.Ev. 404(b) and N.D.R.Ev. 403 relating to evidence of Shaw's alleged involvement in a burglary that occurred a few days before Lopez's murder. State v. Shaw, 2016 ND 171, 883 N.W.2d 889.

         [¶ 3] Before Shaw's second trial, the State provided notice of its intent to introduce evidence that Shaw was involved in a burglary at an apartment in the same building as Lopez's apartment four days before the murder. The State argued the evidence of the earlier robbery was admissible to show Shaw and Welch had a plan, motive, and intent to go back to the same apartment to respond to a threat, but the men mistakenly went to Lopez's apartment. The State also argued the alleged burglary was intrinsic to the murder charge because it completed the story of why Shaw went back to the apartment building. Shaw objected to the admission of the evidence. The district court issued a written order allowing the State to present evidence of the alleged burglary four days before Lopez's murder.

         [¶ 4] Welch refused to testify at the second trial. The district court found Welch was an unavailable witness under N.D.R.Ev. 804(a)(2) because he refused to testify after the court ordered him to testify. The court allowed an audio recording of Welch's testimony from the first trial to be played for the jury at the second trial. The jury found Shaw guilty.

         II

         [¶ 5] Shaw argues the district court erred in admitting evidence of crimes or other acts under N.D.R.Ev. 404(b).

         [¶ 6] We review a district court's evidentiary ruling for an abuse of discretion. State v. Campbell, 2017 ND 246, ¶12, 903 N.W.2d 97. A court abuses its discretion when it acts in an arbitrary, capricious, or unreasonable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned decision. Id. at ¶6.

         [¶ 7] Rule 404(b), N.D.R.Ev., governs the admissibility of evidence of a prior crime, wrong, or other act. Under N.D.R.Ev. 404(b)(1), evidence of a prior crime "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Under N.D.R.Ev. 404(b)(2), evidence of a prior bad act may be admissible for another purpose, such as proving motive, plan, or intent. "The rule excludes admission of evidence of other crimes or bad acts unless the evidence is substantially relevant for some purpose other than to show a defendant's criminal character and that the defendant's acts conformed with that character." Shaw, 2016 ND 171, ¶7, 883 N.W.2d 889.

         [¶ 8] In deciding whether evidence of prior bad acts is admissible, the district court ...


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