State v. Keyes, 990089.

• Citation: 2000 ND 83,609 N.W.2d 428
• Decision Date: 25 April 2000
• Docket Number: No. 990089.,990089.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kevin Robert KEYES, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

609 N.W.2d 428

2000 ND 83

STATE of North Dakota, Plaintiff and Appellee, v. Kevin Robert KEYES, Defendant and Appellant.

No. 990089.

Supreme Court of North Dakota.

April 25, 2000.

Carl O. Flagstad, Minot, N.D., for defendant and appellant.

Mark A. Flagstad, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

MARING, Justice.

[¶ 1] Kevin Robert Keyes appeals from a judgment entered upon a jury verdict finding him guilty of the delivery of a controlled substance, methamphetamine. On January 20, 1998, the Ward County Drug Task Force ("Task Force") sent an informant into Keyes' home to purchase methamphetamine. The informant had previously contacted the Task Force to inform on Keyes, stating that she had purchased drugs from Keyes for herself and others in the past. While outfitted with a wire, the informant entered Keyes' home and asked to buy drugs. Keyes removed several baggies from his closet and handed her a substance later identified as methamphetamine. She held up $350, of which Keyes took $250. After speaking for a few more minutes, the informant left Keyes' home and reported back to the Task Force officers. The informant and two Task Force officers testified about these events on behalf of the State at trial, and a jury found Keyes guilty of the charged offense on January 20, 1999. We affirm his conviction.

I.

[¶ 2] On appeal, Keyes first argues he was denied his constitutional right to confront a witness against him because the State refused to release the informant's address to him before trial. Our review of a claimed violation of a constitutional right is de novo. State v. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109. On the record before us, we conclude Keyes' constitutional right to confrontation was satisfied.

[¶ 3] Before his trial, Keyes served a request for discovery asking the State to provide names and addresses of witnesses it planned to call in its case-in-chief. At that time, the State served a response listing the informant only as "C.I. # 209." Keyes asked for the informant's identity; however, the State refused to provide the information, citing N.D.C.C. § 44-04-18.3(3) and N.D.R.Ev. 509. On November 30, 1998, the State filed a notice of endorsement of an additional witness, naming the informant. Keyes moved for sanctions, or in the alternative, a continuance, claiming he was prejudiced by the State's failure to name the informant as a witness because he had not been able to examine her at his preliminary hearing and prepare for her testimony at trial. The State justified its refusal to provide the name and address, again citing § 44-04-18.3(3) and Rule 509, and further argued Keyes already had the informant's name because the State inadvertently failed to redact her first name on one page of a statement she gave to criminal investigators, which had been provided to Keyes. The trial court granted a continuance so that the defense could depose the informant.

[¶ 4] Keyes deposed the informant on December 8, 1998; during the deposition, Keyes asked her to state her address, however she refused to answer upon the advice of the State. Keyes moved to dismiss the case or, in the alternative, to compel discovery and for a continuance. The trial court never issued a written ruling on the motion to dismiss and did not address the motion in court proceedings. Though we do not condone such inattentiveness on the part of the trial court and counsel, for the purposes of this appeal, we assume the motion to dismiss was denied because the case proceeded to trial and verdict. Under N.D.R.App.P. 35(c), in an appeal from a verdict or judgment, this Court "may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant."

[¶ 5] The right of a criminal defendant to confront witnesses is found in both the Constitution of the United States and in our own state's constitution. See U.S. Const. amend. VI; N.D. Const. art. I, § 12; State v. Haugen, 458 N.W.2d 288, 291 (N.D.1990). A criminal defendant has a right not only to confront witnesses physically, but also to cross-examine witnesses. State v. Velasquez, 1999 ND 217, ¶ 8, 602 N.W.2d 693. Our Court has held this right is satisfied when the defendant has had the "opportunity to expose weaknesses" in the testimony of a witness. Id. Though the right of confrontation guarantees to a defendant the opportunity for an effective cross-examination, we have recognized it does not guarantee a "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Messner, 1998 ND 151, ¶ 10, 583 N.W.2d 109 (quoting United States v. Spotted War Bonnet, 933 F.2d 1471, 1474 (8th Cir.1991)).

[¶ 6] Keyes argues the trial court erred in denying the motion to dismiss. He states that, without the informant's address, he was unable to conduct a proper background investigation into her character and reputation for truthfulness in the area of her residence, without which he could not effectively cross-examine her at trial. However, the record reflects Keyes had ample opportunity to cross-examine her and did, in fact, expose weaknesses in her testimony. First, though the State did not divulge the informant's address, it did provide her North Dakota and federal criminal records, containing both felony and misdemeanor convictions. Second, during the deposition, Keyes had an opportunity to ask the informant questions about her background and elicited details about several other criminal convictions which were not listed in the rap sheets. Finally, Keyes extensively cross-examined the informant at trial, eliciting testimony about her prior convictions for drug use, burglary, arson, and the domestic abuse of a boyfriend who had shot her dog. She also admitted on cross-examination that she currently used drugs and worked as a stripper, and once spent several years on the lam attempting to avoid arrest. It seems, to the extent the informant's character and reputation could be impeached, Keyes did so [¶ 7] Keyes argues that in State v. Lince, 490 N.W.2d 476 (N.D.1992), this Court recognized the importance of the State's disclosure of witnesses, in that it provides a defendant with an opportunity to prepare an effective cross-examination. Keyes correctly states our holding in that case; however, the circumstances presented in Lince are substantially dissimilar from the facts in this case. In Lince, the State provided the defendant with the name of only one witness before trial, but announced it intended to call six witnesses during in-chamber discussions shortly before the trial began. Lince, at 476. Lince argued the State's untimely disclosure denied him an opportunity to effectively cross-examine the witnesses because he could not conduct investigations of their backgrounds and had no time to obtain an expert to rebut expert testimony offered on behalf of the State. Id. at 477. Unlike the defendant in Lince, Keyes possessed the informant's name, criminal record and deposition testimony prior to trial, and he conducted an effective cross-examination at trial. Our law requires that Keyes be afforded an opportunity to expose weaknesses in a witness' testimony; we conclude Keyes' trial presented him with that opportunity and, thus, his constitutional right to confrontation was satisfied.

II.

[¶ 8] Keyes second argument on appeal concerns statements the State made during closing argument, which Keyes asserts were improper and unconstitutional comments on his decision to remain silent. Keyes did not object to these...