State v. Foster

• Decision Date: 07 May 2020
• Docket Number: No. 20190298,20190298
• Citation: 942 N.W.2d 829
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Akeem Rheim FOSTER , Defendant and Appellant
• Court: North Dakota Supreme Court

942 N.W.2d 829

STATE of North Dakota, Plaintiff and Appellee

v. Akeem Rheim FOSTER , Defendant and Appellant

No. 20190298

Supreme Court of North Dakota.

Filed May 7, 2020

Joshua A. Amundson (argued), Assistant State’s Attorney, and Karlei K. Neufeld (on brief), Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.

James R. Loraas, Bismarck, ND, for defendant and appellant.

Jensen, Chief Justice.

[¶1] Akeem Foster appeals from a district court judgment entered following a jury verdict finding him guilty of Terrorizing and Carrying a Concealed Weapon. Foster contends he was denied a fair trial because he was asked during cross-examination if other witnesses were lying and because the prosecutor expressed personal beliefs about the evidence during closing arguments. Foster also contends there was insufficient evidence to convict him of either charge. We affirm Foster’s conviction for Carrying a Concealed Weapon, reverse his conviction for Terrorizing, and remand the case to the district court.

I

[¶2] On July 28, 2018, Foster drove to a public park in Bismarck to play soccer. During the soccer game, Foster got into an altercation with the goaltender on his team. The altercation evolved into a fight with at least one of the participants wielding a stick. At some point, Foster ran to his car, grabbed his handgun and displayed it to the other players. After displaying his handgun to the other players, Foster returned to his vehicle, drove a few blocks away from the park, and pulled over to the side of the roadway. A law enforcement officer responding to the incident pulled his patrol vehicle up behind Foster’s vehicle.

[¶3] During his interaction with the officer, Foster disclosed he had a handgun in the glove compartment of his vehicle. Foster’s loaded handgun was subsequently located in the glove compartment. At the time of the incident, Foster had a nondriver identification card that was issued on May 21, 2018, less than a year before the incident.

[¶4] The State called five witnesses, including the goaltender with whom Foster had the altercation. The goaltender testified Foster was not pursued off the soccer field and that Foster pointed the gun in his direction while Foster yelled he was not afraid to go back to jail. The State’s witnesses also testified Foster was the only person with a stick during the incident.

[¶5] Foster testified on his own behalf. Foster’s testimony conflicted with earlier testimony. Specifically, Foster testified he was pursued off the soccer field and he testified the goalie had a stick during the altercation.

[¶6] During cross-examination of Foster, the prosecutor commented about earlier witnesses who had testified they saw only Foster with a stick and asked Foster if it was correct none of the other witnesses "saw the goaltender with a stick." Foster’s attorney began to object and the district court overruled the objection. The prosecutor then asked Foster about the other witnesses testifying that they took a stick from Foster and followed up with asking Foster if the witnesses were lying.

[¶7] In the State’s closing argument, the prosecutor stated she did not believe there was any question Foster had a gun. The prosecutor began discussing Foster’s self-defense argument by stating, "Let’s jump first to the part where I don't believe the story of self-defense. There isn't a witness that was called that saw --." Foster objected, arguing the prosecutor was stating her personal beliefs. The court overruled the objection. The prosecutor subsequently argued the State had "purposely brought forth not one or two witnesses, but five witnesses to tell [the jury] what happened and there was no element of self-defense." During the State’s rebuttal argument, the prosecutor told the jury the defense was trying to lead them "into the weeds." Foster objected to the statement. The district court overruled the objection and the prosecutor then categorized the defense as putting up "smoke and mirrors."

[¶8] The jury found Foster guilty of both Terrorizing and Carrying a Concealed Weapon. Foster argues he was denied a fair trial by various instances of prosecutorial misconduct. Foster claims the prosecutor’s questions of him during cross-examination improperly required him to compare his testimony with other witnesses, and ultimately required him to state whether one or more of the witnesses were lying. Foster also claims the prosecutor improperly stated her personal belief regarding the evidence during closing arguments. Finally, Foster contends there was insufficient evidence to find him guilty of the terrorizing charge because the State failed to prove he did not act in self-defense, and insufficient evidence to prove he knowingly carried a concealed weapon in an illegal manner.

II

[¶9] Foster claims the prosecutor’s cross-examination requiring him to confirm whether earlier witnesses were lying denied him his right to a fair trial. "This Court applies a de novo standard of review when determining whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant’s due process right to a fair trial." City of Bismarck v. Sokalski , 2016 ND 94, ¶ 10, 879 N.W.2d 88 (citing State v. Jasmann , 2015 ND 101, ¶ 5, 862 N.W.2d 809 ). When reviewing a claim of prosecutorial misconduct, this Court first determines whether the prosecutor’s actions were misconduct and, if so, this Court examines whether the misconduct had prejudicial effect. Id.

[¶10] During the cross-examination of Foster, the prosecutor asked Foster if any of the prior witnesses saw the goaltender with a stick. Foster’s counsel objected and the objection was overruled. Foster argues it was improper for the prosecutor to ask questions that obligated him to compare his testimony to that of another, and to opine whether the other witnesses were lying. The State argues the questioning did not require Foster to opine on the accuracy and veracity of the other witnesses. Upon our review of the record we conclude the questions required Foster to comment on the credibility of other witnesses.

[¶11] The task of weighing evidence and assessing credibility is solely within the province of the jury. State v. Lemons , 2004 ND 44, ¶ 16, 675 N.W.2d 148 (citing State v. Bell , 2002 ND 130, ¶ 25, 649 N.W.2d 243 ). Other state courts have recognized it is generally improper to ask one witness to comment on the credibility of another witness or express an opinion regarding whether another witness was telling the truth. See State v. Morton , 701 N.W.2d 225, 233 (Minn. 2005) (improper to cross-examine defendant with "were they lying" questions where it could lead jury to believe they must think witnesses were lying in order to acquit defendant); State v. Isom , 306 Or. 587, 590-92, 761 P.2d 524 (1988) (on cross-examination, prosecutor suggested that contradictory witness was either mistaken or lying); People v. Zambrano , 124 Cal. App. 4th 228, 232, 21 Cal.Rptr.3d 160 (2004) (A prosecutor’s "were they lying" questions to the defendant were improper "because they sought defendant’s inadmissible lay opinion about the officers’ veracity, invaded the province of the jury to determine the credibility question, and were irrelevant to any issue in the case."). Federal courts have also recognized a prosecutor engages in misconduct by requiring a defendant to call a State’s witness a liar. See United States v. Geston , 299 F.3d 1130, 1136 (9th Cir. 2002) ; United States v. Sanchez , 176 F.3d 1214, 1219 (9th Cir. 1999). See also United States v. Sullivan , 85 F.3d 743, 749 (1st Cir. 1996) ; United States v. Boyd , 54 F.3d 868, 871 (D.C. Cir. 1995) ("It is ... error for a prosecutor to induce a witness to testify that another witness, and in particular a government agent, has lied on the stand."); United States v. Richter , 826 F.2d 206, 208 (2nd Cir. 1987) ("Prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper."). We conclude the questioning requiring Foster to give his opinion regarding the credibility of earlier witnesses was improper.

III

[¶12] Foster also argues the prosecutor’s expression of her personal belief regarding the evidence, and in particular his claim of self-defense, during the closing arguments was improper and is prosecutorial misconduct that deprived him of his right to a fair trial. This Court has identified three concerns arising from a prosecutor’s incorporation of their personal beliefs into closing argument. State v. Schimmel , 409 N.W.2d 335, 342-43 (N.D. 1987). First, a State’s attorney may act as an unsworn witness for the prosecution who is not subject to cross-examination and may be perceived as an expert witness testifying about scientific evidence. Id. Second, a "State’s attorney may convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant." Id. "Our final concern is that the prosecutor’s opinion carries with it the ‘imprimatur of the Government.’ " Id.

[¶13] Foster challenges the prosecutor expressing her personal belief that there was no question Foster had a gun and it was therefore unnecessary to even discuss whether Foster had a gun. Although couched in terms of the prosecutor’s personal belief, whether Foster had a gun was not in dispute. Even Foster testified he displayed a handgun to the other soccer players. The prosecutor’s expression of her belief regarding a fact not in dispute does not raise any of the concerns we identified in Schimmel , the prosecutor was not acting as an unsworn witness for the prosecution who was not subject to cross-examination nor could have the prosecutor been perceived as an expert witness testifying about scientific evidence. Second, the prosecutor did not convey the impression that evidence not presented to the jury, but known to the prosecutor, supported the...