State v. Jasmann

• Decision Date: 28 April 2015
• Docket Number: No. 20140322.,20140322.
• Citation: 862 N.W.2d 809
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Matthew Alan JASMANN, Defendant and Appellant.
• Court: North Dakota Supreme Court

862 N.W.2d 809

STATE of North Dakota, Plaintiff and Appellee

v.Matthew Alan JASMANN, Defendant and Appellant.

No. 20140322.

Supreme Court of North Dakota.

April 28, 2015.

Rehearing Denied May 27, 2015.

Frederick R. Fremgen, State's Attorney, Jamestown, ND, for plaintiff and appellee.

Lee M. Grossman, Valley City, ND, for defendant and appellant.

Opinion

McEVERS, Justice.

[¶ 1]Matthew Alan Jasmann appeals from a judgment entered on a jury's verdict finding him guilty of gross sexual imposition.We affirm the judgment concluding the State did not commit prosecutorial misconduct, the failure of the district court to give a cautionary instruction did not amount to obvious error, and sufficient evidence supports the jury's verdict.

I

[¶ 2] According to trial testimony, Jasmann met his family members and friends at a local bar.While at the bar, Jasmann met A.W. who was with one of Jasmann's relatives.When the bar was about to close, some of the individuals, including Jasmann and A.W., went to the apartment where Jasmann was spending the night, to have a party.After a few hours, everyone had left the apartment, except for Jasmann, A.W., and two other individuals.The two other individuals slept in a bedroom of the apartment.Jasmann and A.W. slept in the living room.A.W. testified she fell asleep and awoke to Jasmann having sexual intercourse with her.The next day, A.W. reported to police that she had been sexually assaulted.A.W. made a phone call to Jasmann, which was recorded by law enforcement, to discuss the incident with him.The next day Jamestown Police Department OfficerJohn Gletne interviewed Jasmann about the incident.According to the transcript of this interview that was read into evidence at trial, Jasmann claims A.W. was awake and initiated the sexual contact, however, Jasmann denied sexual intercourse occurred.Jasmann was charged with gross sexual imposition.

[¶ 3] Before trial, Jasmann's attorney requested the transcript of the interview between Jasmann and Officer Gletne be redacted to omit Jasmann's statements about a previous conviction on a particular page of the transcript, if the State offered the transcript in evidence.The State redacted the requested portion of the transcript and another portion it found on its own volition.During trial, the State read the entire interview transcript into evidence, as redacted, including a statement Jasmann made: “I don't do criminal stuff like I used to.”Jasmann's attorney did not object at the time the statement was read, but did discuss it with the court during an in chambers hearing held afterward.Jasmann's attorney claimed he did not object to avoid calling the jury's attention to the statement.After discussing the matter with the State and Jasmann's attorney, the district court decided to strike the statement from the transcript, before the jury received it as an exhibit.At the conclusion of the trial, the jury found Jasmann guilty of gross sexual imposition.Jasmann appealed.On appeal, Jasmann argues that the State committed prosecutorial misconduct by improperly introducing at trial a statement where he admitted he had engaged in criminal behavior in the past.Jasmann also argues there was insufficient evidence to sustain the jury's verdict.

II

[¶ 4] Jasmann argues that the State committed prosecutorial misconduct when it read the interview transcript into evidence, without redacting Jasmann's statement.

[¶ 5]“In reviewing a claim of prosecutorial misconduct, this Court must first determine whether the prosecutor's actions were misconduct and, if they were, then ... examine whether the misconduct had prejudicial effect.”State v. Evans,2013 ND 195, ¶ 26, 838 N.W.2d 605(quotation marks omitted).“[P]rosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process.”State v. Kruckenberg,2008 ND 212, ¶ 20, 758 N.W.2d 427(quotation marks omitted).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.”State v. Pena Garcia,2012 ND 11, ¶ 6, 812 N.W.2d 328.

[¶ 6] Here, at the pretrial conference, the State indicated it would introduce a recording and transcript of Jasmann's interview with Officer Gletne.Jasmann did not object to the introduction of the interview, but requested a certain portion of the interview be redacted.At this time, Jasmann moved the district court to order the State to omit any references from the interview in which Jasmann “refers to a past sexual offense to Detective John Gletne; this specifically appears on the Transcriptat Page 17.”The district court and attorneys then discussed which specific portions Jasmann requested be redacted:

MR. MYHRE: Yes.I believe that specifically there appears a reference in the transcript on page 17 to a prior sexual offense when the defendant was 18 years of age.Since the defendant is not going [to] testify, under the rules of evidence and admissibility for prior convictions, we would request that that portion be edited or omitted from that portion of the recording.

MR. FREMGEN: We've already redacted it from the copy that's marked that's been given to Mr.—

THE COURT: Oh, I see there's some redacted parts on the top on page 17.

...

THE COURT: Was there anywhere else?

MR. FREMGEN: There was another area too.I only brought the court's copy and Mr. Myhre's copy of the exhibits.I don't have mine.But later on there was discussion about him saying I'll have to plead guilty because if I don't, I'll just get the maximum with my record, or words to that effect.And so that's redacted a little bit farther down.It might be a page later than the first one where he referred to having prior problems.And I don't think he used the word “convictions” in the first one.

THE COURT: But that's been deleted as well?

MR. FREMGEN: Yes, sir.And it's marked redacted so that we have some ease in finding it.It's marked with handwriting “redacted.”

During trial, the State conducted direct examination of Officer Gletne.The State asked Officer Gletne about particular parts of the interview.Jasmann's attorney asked to approach the bench, objecting to the State discussing only parts of the interview during its direct examination.Jasmann requested the transcript be read into the record in its entirety.The district court ordered the State read the transcript, State's exhibit 3, into the record in its entirety.The State then offered the redacted transcript into evidence, and Jasmann did not object.The State read the redacted transcript into evidence, with Officer Gletne reading his statements from the interview and the prosecutor reading Jasmann's statements.The State read the following statements from the transcript: “I have a job.I live an honest life.I don't do criminal stuff like I used to. ”(Emphasis added.)Afterward, the district court held an in chambers meeting to discuss the introduced statement regarding Jasmann's criminal history:

MR. MYHRE: ... I had filed with the court yesterday a motion in limine.I'm not sure if I articulately described it, but there was a portion of the transcript where—Mr. Jasmann did respond about how he did not do criminal things like he used to do.I did not raise an objection on the record because I did not want to draw attention to it in front of the jury, but this did slip into the record and I would request the court—I'm not sure exactly how to address this in terms of whether we should do a curative instruction or if we should just let this pass at this particular point in time, but I did want to bring that up that that part had not been redacted.

THE COURT: Mr. Fremgen, do you have any comment on that?I remember seeing that too.I was wondering—

MR. FREMGEN: That was accidental.We had, of our own volition, found the other two provisions and redacted them.It's a conundrum for the defense, and that's why Mr. Myhre says he doesn't know whether he wants to ask for an instruction or not.It's the old—as Professor [Ahlen] used to say at UND, do you bring attention to the white elephant you don't want anybody to look at, or do you just leave it unmentioned again.And I can't unring the bell.

THE COURT: Right.It's on—What you're referring to is on page 21 where he says: I have a job, I live an honest life, I don't do criminal stuff like I used to.

You know, he—It may be—You know, I'm not sure.We could strike that out, I don't do criminal stuff like [I] used to.On the other hand, he is contrasting it to his present life.And it does, because of his familiar—there are other parts of the transcript where he does show familiarity with the process, talks about well.I guess you guys will be doing a warrant, and about let me know and I'll turn myself in, and that sort of thing.So I think it may be self-evident that he had some familiarity with the criminal system.

MR. MYHRE: Your Honor, perhaps the resolution to this would be it's in on the record, I acknowledge that, but that before the exhibit is presented to the jury, perhaps we could redact that.

THE COURT: That would be fine.It's just, it's just one line, and that might be the way to handle this.

MR. FREMGEN: I have no objection, your Honor.If I would have realized it was in there and been careful, I would have redacted it of my own volition.

MR. MYHRE: And I will admit I overlooked that when I was reading through the transcript initially and thought that the impact was rather minimal anyway.

THE COURT: Yeah.I mean it caught my attention right away when it came up in the transcript, but I don't know how—you know, if the jury pays attention to that or not.

Jasmann's attorney did not object to the statement at the time it was read, nor did he request a curative instruction.Jasmann's attorney solely requested that the statement be redacted before the jury received the transcript, which the...