State v. Hidanovic

• Decision Date: 17 April 2008
• Docket Number: No. 20070130.,20070130.
• Citation: 747 N.W.2d 463,2008 ND 66
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mevludin HIDANOVIC, Defendant and Appellant.
• Court: North Dakota Supreme Court

747 N.W.2d 463

2008 ND 66

STATE of North Dakota, Plaintiff and Appellee, v. Mevludin HIDANOVIC, Defendant and Appellant.

No. 20070130.

Supreme Court of North Dakota.

April 17, 2008.

Mark Rainer Boening, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

David J. Chapman, Chapman Law Firm, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶1] Mevludin Hidanovic appeals from orders denying his motions for a new trial and from a criminal judgment entered after a jury found him guilty of engaging in a riot when armed. We hold the district court did not abuse its discretion in deciding allegations of juror misconduct would not have affected the verdict of an average hypothetical juror, the court did not abuse its discretion in denying Hidanovic's motion for a new trial on the ground of newly discovered evidence, the court did not abuse its discretion in ruling on relevancy objections during the prosecution's cross-examination of a defense witness, and the court did not err in admitting into evidence an out-of-court identification of Hidanovic from a photographic lineup. We affirm.

I

[¶2] The State charged Hidanovic with engaging in a riot when armed under N.D.C.C. § 12.1-25-02(1)(c), alleging that on June 24, 2006, he was knowingly armed with a dangerous weapon, a baseball bat, and participated in a fight that involved at least five persons and created a grave danger of damage and injury to persons or property.

[¶3] At trial, the State presented evidence about a "fight" on the evening of June 24, 2006, at the Red River Valley Fairgrounds in West Fargo between a "Mexican family," which consisted of three brothers in the Arpero family and their spouses or girlfriends, and "a group" of Bosnians. Witnesses to the fight estimated there were 15 to 30 people involved, and there was evidence some Bosnians were the assailants and they left the area after the fight. There was no evidence Hidanovic was detained or questioned by law enforcement on the evening of the fight. The State presented evidence that during the fight, Juan Arpero was hit in the head with a baseball bat and required 16 staples to close a scalp wound, Jose Arpero was hit in the back with a baseball bat, and Lionardo Arpero was kicked in the head and required 4 stitches to close a cut over his eye. An investigator for the Cass County Sheriff's Department, Allan Kulesa, investigated the fight and initially was unable to obtain information naming or identifying the assailants. Kulesa eventually used a photographic lineup with eleven pictures in an effort to identify participants in the fight. The Arperos were unable to name their assailants or to identify any individuals involved in the fight; however, four other witnesses to the fight, Joanna Kjono, Tecola Sparks, Brandee Haas, and Cassandra Belgarde, viewed the photographs and provided an out-of-court identification of Hidanovic as a participant in the fight. Kjono, Haas, and Belgarde were unable to identify Hidanovic as the person swinging the bat, but Sparks was "[a] hundred percent sure" Hidanovic was "participating in the riot, and swinging the bat."

[¶4] Hidanovic presented evidence that he is Bosnian and that he and his fiancee, Chanda Hidanovic, and their four children were at the fair on June 24 with a Bosnian friend, Nurija Beganovic, when Beganovic received a cellular telephone call about a fight at the fair grounds involving other Bosnians. Hidanovic introduced evidence that he, Chanda Hidanovic, and Beganovic proceeded to the scene of the fight, but the fight was over when they arrived. Hidanovic claimed he did not participate in the fight and did not have a baseball bat.

[¶5] After the jury returned a verdict finding Hidanovic guilty, the court polled the twelve jurors and each juror stated the verdict was his or her true verdict. Hidanovic moved for a new trial, claiming the evidence was insufficient to support the verdict, a juror introduced racial and ethnic bias into the jury's deliberations, the court erred in denying his motion to suppress evidence of the out-of-court photographic identification of him, and the court erred in denying his objection to the prosecutor's questions about race and ethnic background. The district court denied Hidanovic's motion for a new trial. Hidanovic thereafter filed a second motion for a new trial, alleging newly discovered evidence. The district court also denied Hidanovic's second motion for a new trial.

[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Hidanovic's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶7] Hidanovic argues he is entitled to a new trial because overt juror misconduct injected race into the jury deliberations. In his first motion for a new trial, Hidanovic submitted an affidavit of juror Becky Rettig, which he claimed supported overt juror misconduct, and which stated, in relevant part:

I told the jury that I had a personal experience with Bosnians and that they stole from my business and in the same experience lied to me regarding the theft and their conduct. Even though I had never met Mr. Hidanovic, or any of the witnesses, Mr. Hidanovic's and the witnesses' race was discussed in a negative way.

[¶8] After a hearing on the State's "motion to determine further proceedings" in which the State asked for permission from the court before approaching the jurors, the State submitted affidavits of the eleven other jurors stating their recollections about whether juror Rettig told the jury about her "personal experience with Bosnians and that they stole from [her] business and in the same experience lied to [her] regarding the theft and their conduct."

[¶9] The district court thereafter denied Hidanovic's motion for a new trial, concluding all twelve juror affidavits were inadmissible under N.D.R.Ev. 606(b). The court said Rettig's affidavit reflected "a change of heart" that went to the jury's mental or thought process during deliberations and her statements were not about extraneous matters and were general and not specific about Hidanovic. The court also decided Rettig's statements were not prejudicial, because they would not have affected the verdict of a hypothetical average juror.

[¶10] Hidanovic argues the district court's denial of his motion for a new trial on the ground of juror misconduct deprived him of his constitutional right to a fair trial by an impartial jury. He asserts Rettig's statements constitute overt juror misconduct that appealed to racial bias and were not part of her or the jury's mental or thought process. He claims the district court erred in relying solely on N.D.R.Ev. 606(b) to exclude Rettig's affidavit and exercised excessive caution in protecting the jury verdict while disregarding his constitutional right to counsel, to confront witnesses and evidence, and to have a verdict by an impartial jury. He contends courts should pay special attention to racial and ethnic bias in jury deliberations and to the delicate balance between the secrecy of jury deliberations and the right to a fair trial. The State responds the district court did not abuse its discretion in deciding Rettig's affidavit went to the jury's thought process. The State asserts Rettig did not provide the jury with specific additional information about Hidanovic, but discussed her generic experiences with an ethnic group. The State argues, even if the court was incorrect in its legal analysis about extraneous information, Rettig's statements would not have affected the deliberations of a hypothetical average juror.

[¶11] Rule 33(b), N.D.R.Crim.P., authorizes a defendant to move for a new trial on the basis of jury misconduct and requires the motion to be supported by an affidavit. We will not reverse a district court's denial of a motion for a new trial on the grounds of juror misconduct unless the court abused its discretion. State v. Brooks, 520 N.W.2d 796, 798 (N.D. 1994). A district court abuses its discretion if its decision is arbitrary, capricious, or unreasonable, or it misinterprets or misapplies the law. State v. Fehl-Haber, 2007 ND 99, ¶ 20, 734 N.W.2d 770.

[¶12] In considering whether to grant a new trial on the ground of juror misconduct, a district court must decide whether there was misconduct and, if so, whether the misconduct could have affected the verdict of a hypothetical average juror. Brooks, 520 N.W.2d at 798 (citing Keyes v. Amundson, 343 N.W.2d 78, 85 (N.D.1983)). The analysis of juror misconduct under N.D.R.Crim.P. 33(b) is juxtaposed with N.D.R.Ev. 606(b), which does not specify the substantive grounds for setting aside a verdict for misconduct, see Brooks, at 799, but deals with jurors' competency to testify about the grounds for setting aside a verdict, and as relevant to this proceeding, provided:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. However, a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the verdict of the jury was arrived at by chance. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

N.D.R.Ev. 606(b).¹

[¶13] Rule 606(b), N.D.R.Ev., generally prohibits a juror from testifying about matters or statements occurring during the course of the jury's deliberations. Under ...