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State v. Pickens

Supreme Court of North Dakota

August 28, 2018

State of North Dakota, Plaintiff and Appellee
v.
Clyde Edward Pickens, Defendant and Appellant

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

          Britta K. Demello Rice (argued) and Jonathan R. Byers (appeared), Assistant Attorneys General, Bismarck, N.D., for plaintiff and appellee.

          Scott O. Diamond, Fargo, N.D., for defendant and appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶ 1] Clyde Pickens appeals a criminal judgment entered after a jury found him guilty of gross sexual imposition. Pickens argues the district court's errors in responding to two requests from the jury prejudiced his substantial rights and denied him a fair trial. We reverse and remand for a new trial.

         I

         [¶ 2] Pickens moved to western North Dakota in 2011 with D.R. and her children, M.R. and C.R. After arriving, Pickens and D.R. began CTC Cleaning Services and performed construction cleanup work. Pickens lived with D.R. and helped care for her children.

         [¶ 3] D.R. testified about an incident that occurred between her and Pickens on December 31, 2012. After an argument relating to the cleaning business, Pickens made physical contact with D.R. Pickens was arrested and pled guilty to simple assault. D.R. testified that about a week after the incident on New Year's Eve, M.R. told her that Pickens had inappropriately touched her.

         [¶ 4] In November 2013, after investigating the allegations by M.R., the State charged Pickens with three counts of gross sexual imposition for having sexual contact with M.R. The State alleged the sexual contact occurred in November or December 2012 when M.R. was eleven years old.

         [¶ 5] M.R. testified the sexual contact began after the parties moved to North Dakota. She testified Pickens touched her vagina and breasts under her clothes. She testified the sexual contact continued after she told him to stop.

         [¶ 6] C.R., M.R.'s younger brother, also testified. C.R. testified that he witnessed Pickens touch M.R.'s private parts on the couch and heard her tell him to stop. He testified he observed Pickens do this on more than one occasion. C.R. testified he did not tell anyone about what he saw until M.R. told their mom what Pickens did to her.

         [¶ 7] In addition to the live testimony, the district court admitted and played to the jury a video recording of an interview of M.R. Recorded audio from another interview of M.R., C.R., and D.R. with law enforcement was also admitted and played to the jury.

         [¶ 8] Pickens testified and denied having sexual contact with M.R. He testified that he believed D.R. had M.R. and C.R. fabricate the sexual contact after the incident on New Year's Eve so D.R. could gain control of the cleaning business. Pickens' attorney also explained to the jury that inconsistencies existed between statements made by D.R., C.R., and M.R.

         [¶ 9] While discussing the closing instructions to the jury, Pickens' attorney requested a limiting instruction for the evidence involving Pickens' simple assault conviction. The district court denied the request for an instruction limiting the jury's consideration of the evidence relating to the simple assault because Pickens used the evidence as part of his defense.

         [¶10] During deliberations, the jury requested transcripts of C.R.'s and M.R.'s testimony. Transcripts were unavailable; however, Pickens suggested providing the jury with an audiotape of the testimony, but the district court declined. The court informed the jury that transcripts of the testimony were not available and that they would have to rely on their recollection of the testimony.

         [¶11] The jury also requested the video interview of M.R. Over Pickens' objection, the court allowed a clerk to play the video for the jury in the jury room. The jury found Pickens guilty.

         II

         [¶ 12] Pickens argues the district court erred in responding to two jury requests made during deliberations. Pickens claims the court's responses to the jury prejudiced his substantial rights and entitle him to a new trial.

         [¶ 13] A defendant has a right to be present in the courtroom at every stage of trial. N.D.R.Crim.P. 43(a)(1)(B); State v. Parisien, 2005 ND 152, ¶ 7, 703 N.W.2d 306. A defendant's "right to be present in the courtroom at every stage of his trial is one of the most basic rights guaranteed by the Confrontation Clause" of the Sixth Amendment to the United States Constitution. State v. Klose, 2003 ND 39, ¶ 32, 657 N.W.2d 276 (citing Illinois v. Allen, 397 U.S. ...


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