State v. Kruckenberg
| Decision Date | 24 November 2008 |
| Docket Number | No. 20080106.,20080106. |
| Citation | 758 N.W.2d 427,2008 ND 212 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Scott Al KRUCKENBERG, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Lloyd C. Suhr, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Mark T. Blumer, Valley City, ND, for defendant and appellant.
[¶ 1] Scott Al Kruckenberg appeals a criminal judgment entered on a jury verdict finding him guilty of delivery of methamphetamine, third offense. We affirm, concluding the district court's failure to follow proper statutory procedures for answering questions was not obvious error, the State did not commit prosecutorial misconduct by asking a question related to Kruckenberg's arrest, and the State did not commit prosecutorial misconduct in its closing argument.
[¶ 2] The State charged Scott Al Kruckenberg with Delivery of Methamphetamine and filed a Notice of Intent to Seek Habitual Offender Finding because it was Kruckenberg's third offense. At a pretrial conference, Kruckenberg objected to the introduction of any evidence that he was fleeing at the time of arrest. The State resisted the objection. The court stated, "I will give it more consideration, but at this point I tend to think I would not admit the evidence...."
[¶ 3] At trial, the State asked the arresting officer if Kruckenberg was easy to take into custody. Kruckenberg objected. The district court sustained the objection. Kruckenberg alleges he heard a brief response from the officer before the objection was made. A response was not noted in the trial transcript.
[¶ 4] After the direct examination of the arresting officer, the court held a conference with the attorneys. The following dialogue ensued:
[Defense]: I was just concerned about the jury before I got out my objection, I heard a brief response from [the arresting officer].
The Court: I'm concerned that anything more I would say about it would simply draw more attention to it, but if you have a proposed instruction I'll consider it. I don't think—at this point I don't think they would draw any particular attention to that so ...
. . .
[Defense]: For the record, just to preserve the record, I would move for a mistrial based upon the prejudiced response from [the arresting officer] [ ], it was an issue dealt with at pretrial[;] the jury heard it.
[State]: Actually what I was referring to, your Honor, was the recordings of the conversations that we were talking about. Not the statement—not the fact that he fled. I wasn't going to offer any statements that he made during the time that he was in custody.
The Court: If I wasn't clear enough, that was not appropriate. I'm not going to declare a mistrial at this point, but obviously the facts and circumstances around the arrest are not admissible at this point.
[¶ 5] The State called two more witnesses: the confidential informant and the owner of the residence where the drug transaction took place. The confidential informant testified Kruckenberg gave her methamphetamine from his backpack in exchange for money. The confidential informant stated she handed the methamphetamine to the owner of the residence to split it. She then left the residence. The owner testified he was under the influence of methamphetamine at the time of the transaction and split the methamphetamine for the confidential informant. After the owner's testimony, the State rested its case.
[¶ 6] Kruckenberg offered the testimony of the other two individuals who were at the residence when the confidential informant purchased methamphetamine. The first witness testified that Kruckenberg was giving her a tattoo the entire time the confidential informant was at the residence. She also stated she never saw Kruckenberg deliver methamphetamine to the confidential informant or receive any money. This witness also testified that the owner was "up and down" while the confidential informant was there. Kruckenberg called the other witness, but she exercised her Fifth Amendment right against self-incrimination.
[¶ 7] During Kruckenberg's closing argument, his attorney asserted, "[W]hat the State has to prove, beyond a reasonable doubt, is that Scott Kruckenberg was the one who delivered the methamphetamine to [the] confidential informant." The State then opened its rebuttal, stating, The State further argued that "no evidence has been offered, none, that anyone other than the defendant sold the drugs." Kruckenberg did not object to these statements.
[¶ 8] After the jury retired to deliberate, the jury foreperson sent out two questions to the court. The first question was a request to listen to a recording of the controlled buy. The court returned the jury to the courtroom where the jury listened to the recording twice before retiring to the jury room. The second question was: "Can we have [the] transcript of [the owner's] testimony?" Both the prosecutor and defense attorneys met with the court and were on the record. The record does not indicate whether Kruckenberg was present. The district court informed the attorneys about the jury's request and the court's proposed response that: The court asked both attorneys if they had any comments about the proposed response. Both attorneys stated they had no comments. The court then inquired if they had any problems with the response. Both attorneys said they did not.
[¶ 9] Seven minutes later, the jury found Kruckenberg guilty. After finding Kruckenberg was a habitual offender, the district court sentenced him to twenty-five years with the North Dakota Department of Corrections. A criminal judgment was entered.
[¶ 10] Kruckenberg appeals, arguing (1) the district court erred in not following statutory procedures for answering jury questions; (2) the State committed prosecutorial misconduct by asking a question that assumed misconduct or consciousness of guilt; and (3) the State committed prosecutorial misconduct in its closing argument by suggesting the burden of proof shifted.
[¶ 11] Kruckenberg contends the district court erred by (1) failing to bring the jury into the courtroom after the jury sent the court a question; and (2) not providing the jury with a transcript of a witness's testimony or reading back a witness's testimony.
[¶ 12] Kruckenberg argues the district court erred by not bringing the jury to the courtroom to address its request to have a transcript of a witness's testimony. "A defendant has a right to be present in the courtroom at every stage of the trial." State v. Fehl-Haber, 2007 ND 99, ¶ 11, 734 N.W.2d 770; N.D. Const. art. I, § 12. Section 29-22-05, N.D.C.C., governs a district court's procedures for handling jury questions after the jury has retired to deliberate:
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 the court, the information required must be given in the presence of, or after notice to, the state's attorney and the defendant or his counsel, or after they have been called.
[¶ 13] "Although N.D.C.C. § 29-22-05 specifically refers only to jury questions on a `point of law' and jury requests to have testimony read, this Court has long construed the statute 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." State v. Parisien, 2005 ND 152, ¶ 8, 703 N.W.2d 306. When a defendant fails to object to a district court's procedure, we review that procedure for obvious error under N.D.R.Crim.P. 52(b). State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765.
[¶ 14] Kruckenberg concedes he did not object to the district court's procedure when the jury asked to have a transcript of a witness's testimony. Rather, the district court asked the State and Kruckenberg's attorney if they had comments regarding the court's proposed response to the jury that the jurors were to rely on their collective memories, and both attorneys stated they had no comments or objections to that response. Because Kruckenberg did not object, this Court reviews the district court's error for obvious error.
[¶ 15] To establish obvious error, the defendant must show: (1) error; (2) that is plain; and (3) affects substantial rights. State v. Wegley, 2008 ND 4, ¶ 14, 744 N.W.2d 284. If the error affects the accused constitutional rights, the prosecution must prove the error was harmless beyond a reasonable doubt. State v. Faul, 300 N.W.2d 827, 833 (N.D.1980). "Because of the constitutional underpinnings of the defendant's right to be present, a violation of the right is subject to the harmless error standard for constitutional errors—harmless beyond a reasonable doubt." Parisien, 2005 ND 152, ¶ 8, 703 N.W.2d 306 (citations omitted). When determining whether the error was harmless beyond a reasonable doubt, we consider the probable effect of the error in light of all the evidence. State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988).
[¶ 16] Kruckenberg argues the jury should have been brought...
To continue reading
Request your trial
-
State v. Blunt
...by the court. E.g., State v. Stridiron, 2010 ND 19, ¶ 8, 777 N.W.2d 892; State v. Paul, 2009 ND 120, ¶ 27, 769 N.W.2d 416; State v. Kruckenberg, 2008 ND 212, ¶ 24, 758 N.W.2d 427. [¶ 60] I therefore presume that the jury found Blunt had committed multiple instances of misapplication of entr......
-
State v. Anderson, 20150015.
...if the conduct, in the context of the entire trial, was sufficiently prejudicial to violate a defendant's due process rights. State v. Kruckenberg, 2008 ND 212, ¶ 20, 758 N.W.2d 427. When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitute......
-
State v. Curtis
...with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.'" State v. Kruckenberg, 2008 ND 212, ¶ 13, 758 N.W.2d 427(quoting State v. Parisien, 2005 ND 152, ¶ 8, 703 N.W.2d 306). See State v. Fehl-Haber, 2007 ND 99, ¶ 11, 734 N......
-
State v. Estrada
...The State argues Stodola did not have any problems remembering answers to questions unrelated to this exchange, and citing State v. Kruckenberg, 2008 ND 212, ¶ 20, 758 N.W.2d 427, argues the prosecutor's conduct in the context of the entire trial was not sufficiently prejudicial. [¶ 31] The......