State v. Fehl-Haber

• Decision Date: 26 June 2007
• Docket Number: No. 20060086.,20060086.
• Citation: 734 N.W.2d 770,2007 ND 99
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Nathan FEHL-HABER, Defendant and Appellant.
• Court: North Dakota Supreme Court

734 N.W.2d 770

2007 ND 99

STATE of North Dakota, Plaintiff and Appellee v. Nathan FEHL-HABER, Defendant and Appellant.

No. 20060086.

Supreme Court of North Dakota.

June 26, 2007.

Cynthia M. Feland (argued), Assistant State's Attorney and Lloyd C. Suhr (on brief), Assistant State's Attorney, Bismarck ND, for plaintiff and appellee.

Kent M. Morrow (argued), Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶1] Nathan Fehl-Haber appeals from a judgment entered after a jury verdict finding him guilty of gross sexual imposition. He also appeals from the district court's denial of his motion for a new trial. We affirm.

I

[¶ 2] In May 2005, Fehl-Haber and K.L.S., a seventeen-year-old female, attended a party in Bismarck. K.L.S. consumed alcohol, became intoxicated, vomited, and passed out. While she was unconscious, K.L.S. was moved from the bathroom to a bedroom. Later, L.H., another partygoer, saw Fehl-Haber leave the bedroom while pulling up and zipping his pants. L.H. went into the bedroom to check on K.L.S. and found her unclothed. K.L.S. only remembered someone being pulled from the bed she was in and someone yelling at Fehl-Haber to get out of the bed. While leaving the party, K.L.S. complained her groin area hurt. The next morning, K.L.S. was taken to a hospital to be examined for a possible sexual assault. A sexual assault nurse examiner (S.A.N.E.) concluded K.L.S. had been sexually assaulted.

[¶ 3] Fehl-Haber was charged with delivery of alcohol to a minor and gross sexual imposition. At trial, Fehl-Haber attempted to introduce L.H.'s written statement concerning her observations while at the party. The State objected. The court refused to allow the statement into evidence, informing Fehl-Haber's counsel that he could cross-examine L.H. concerning her statement. After a two-day trial, the jury received the case shortly after 12:30 p.m. At 4:20 p.m., the jury submitted a question to the court, asking whether "it [was] an option to be a hung [jury]." The court discussed how to respond to the question with counsel and Fehl-Haber on the record. The court informed counsel it intended to send a written response into the jury room asking the jurors to keep working to reach a decision. Neither the State nor the defense objected to the court's procedure. At 5:35 p.m., the jury asked another question: "How long do we go before we can call it a night [and] can we order supper?" After another discussion with counsel on the record, the court again instructed the jury to keep working to reach a decision. The court also informed the jurors they would have a break at 6:00 p.m. to eat, after which they would return to continue deliberating. At 7:35 p.m., the jury returned a verdict of not guilty on the delivery of alcohol count, but a guilty verdict on the gross sexual imposition count.

[¶ 4] Fehl-Haber appealed. While the matter was pending on appeal, Fehl-Haber discovered the victim had made a similar allegation against another individual, Terry Pribyl, in July 2005. This information was not disclosed to him prior to his November 2005 trial. Fehl-Haber asked this Court to remand the case so he could file a motion for a new trial with the district court. While retaining jurisdiction over the pending appeal, this Court remanded the case for the limited purpose of deciding Fehl-Haber's motion for a new trial. Fehl-Haber's motion was based on newly discovered evidence, the State's failure to disclose the second allegation. Fehl-Haber claimed K.L.S.'s second accusation was relevant to her credibility. The district court denied the motion, finding the new evidence was non-exculpatory, irrelevant, immaterial, and would not likely have resulted in an acquittal. Fehl-Haber appealed, adding the court's denial of his motion for a new trial to his issues on appeal.

II

[¶ 5] On appeal, Fehl-Haber argues the district court erred in excluding L.H.'s written statement; the court should have called the jury into court to discuss its written questions; and the evidence was insufficient to support the verdict. He also argues the district court erred in denying his motion for a new trial. We conclude the district court did not abuse its discretion in excluding L.H.'s written statement; the court's procedure to address the jury's questions did not rise to the level of obvious error under N.D.R.Crim.P. 52(b); there was sufficient evidence to support the verdict; and the district court did not abuse its discretion in denying Fehl-Haber's motion for a new trial.

A

[¶ 6] Fehl-Haber argues the district court erred when it excluded a written statement L.H., another partygoer, made regarding the night in question. When Fehl-Haber sought to admit L.H.'s written statement as substantive evidence, the State objected, arguing the statement had been given to them with insufficient notice and the statement was barred under N.D.R.Ev. 412(a) as a statement involving K.L.S.'s alleged past sexual behavior. Fehl-Haber offered to redact any reference to K.L.S.'s sexual behavior before offering the statement. When asked about the purpose of admitting it, Fehl-Haber's attorney argued the statement was not intended to attack the victim's credibility, but rather to "allow the jury to see other statements such as even the next day K.L.S. didn't see the police which Nathan suggested to do, which I think is important as to whether a sexual event happened, whether she reported it." The district court excluded the written statement, telling Fehl-Haber's counsel he could question L.H. about the assertions she made in the statement.

[¶ 7] A district court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless there has been an abuse of discretion. State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or when it misapplies the law. Id. Here, the district court did not abuse its discretion.

[¶ 8] The State called L.H. as a witness. Fehl-Haber was able to cross-examine L.H. about the assertions she made in the statement concerning K.L.S. and Fehl-Haber, but could not use L.H.'s written statement as substantive evidence. See State v. Kelly, 2001 ND 135, ¶ 23, 631 N.W.2d 167 (holding a prior inconsistent statement can be used for impeachment purposes, but may not be offered as substantive evidence unless the statement was made under oath); State v. Demery, 331 N.W.2d 7, 11-12 (N.D.1983) (same); see also N.D.R.Ev. 801(d)(1)(I).

[¶ 9] If L.H.'s testimony was inconsistent with her written statement, Fehl-Haber could use it to impeach her testimony under N.D.R.Ev. 613. Further, the State was not provided adequate notice of the defendant's intention to use the statement if it was offered to prove that someone other than the accused was the source of the sexual injury. See N.D.R.Ev. 412(b)(c) (requiring the party intending to offer evidence to show that someone other than the defendant caused the sexual injury to file a written motion at least 14 days before trial). We conclude the district court did not abuse its discretion in excluding L.H.'s written statement.

B

[¶ 10] Fehl-Haber argues the failure to call the jury into open court to address its questions constitutes reversible error. On this record, his claim is without merit.

[¶ 11] A defendant has a right to be present in the courtroom at every stage of the trial. State v. Parisien, 2005 ND 152, ¶ 7, 703 N.W.2d 306. Section 29-22-05, N.D.C.C., governs the general procedure for addressing jury questions posed to the court after the jurors have retired for deliberation. Section 29-22-05 provides:

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the cause, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state's attorney and the defendant or the defendant's counsel, or after they have been called.

This Court has construed N.D.C.C. § 29-22-05 to require that "all communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant." Parisien, at ¶ 8; see also State v. Klose, 2003 ND 39, ¶¶ 32-34, 657 N.W.2d 276; Hill v. State, 2000 ND 143, ¶¶ 16-18, 615 N.W.2d 135; State v. Ash, 526 N.W.2d 473, 481 (N.D.1995); State v. Zimmerman, 524 N.W.2d 111, 117 (N.D.1994); State v. Smuda, 419 N.W.2d 166, 167 (N.D.1988); State v. Hatch, 346 N.W.2d 268, 277-78 (N.D.1984). This right, however, is not absolute. Parisien, at ¶ 8. It "may be waived by failing to object to the trial court's procedure in responding to the jury's request." Id.

[¶ 12] At trial, Fehl-Haber failed to object to the court's procedure when the jury submitted the written questions. As we stated in Parisien:

When a problem arises during a trial, the party affected must bring the irregularity to the trial court's attention and seek appropriate remedial relief, because issues not raised below, even constitutional issues, generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b). To establish obvious error, the defendant has the burden of establishing plain error that affects substantial rights. Only constitutional error that is "egregious" or "grave" is subject to the obvious error rule.

Parisien, at ¶ 17 (citations omitted).

[¶ 13] Unlike the Parisien case, the error here does not rise to the level of obvious error. Fehl-Haber failed to meet his burden. His essential claim is the jury should have been called into court so the judge could observe the effect of the "prolonged late-night deliberations" on the jurors. While the...