State v. Patterson

• Decision Date: 28 October 2014
• Docket Number: No. 20140048.,20140048.
• Citation: 855 N.W.2d 113
• Court: North Dakota Supreme Court
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Darrius Cortez PATTERSON, Defendant and Appellant.

855 N.W.2d 113

STATE of North Dakota, Plaintiff and Appellee

v.Darrius Cortez PATTERSON, Defendant and Appellant.

No. 20140048.

Supreme Court of North Dakota.

Oct. 28, 2014.

Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.

Opinion

CROTHERS, Justice.

[¶ 1] Darrius Cortez Patterson appeals from a criminal judgment after a jury found him guilty of delivery of cocaine within 1000 feet of a school. Patterson argues the district court should have declared a mistrial because testimony given by a confidential informant and statements made by the State during opening and closing arguments affected his right to a fair trial amounting to obvious error under N.D.R.Crim.P. 52(b). We affirm.

I

[¶ 2] On September 9, 2011, Patterson was the subject of a controlled drug buy conducted by Fargo Police Department using a confidential informant. Patterson was charged with delivery of cocaine near a school. Patterson presented a defense of entrapment. During opening arguments, the State made a statement regarding Patterson's option to present evidence. Later, the confidential informant testified about Patterson's prior drug dealings with her. Defense counsel objected, the objection was sustained and the statement was stricken. During closing arguments, the State referenced Patterson's prior convictions. After testimony from three law enforcement officers, the confidential informant, a forensic scientist and a crime analyst, the jury found Patterson guilty of delivery of cocaine near a school. Patterson appeals.

II

[¶ 3] We generally apply a de novo standard of review “to 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. However, Patterson did not object to these alleged errors at trial; “thus[,] our review is limited to determining if the prosecutor's conduct prejudicially affected [Patterson's] substantial rights, so as to deprive him of a fair trial.”State v. Duncan, 2011 ND 85, ¶ 18, 796 N.W.2d 672 (quoting State v. Burke, 2000 ND 25, ¶ 22, 606 N.W.2d 108 ). “This Court ‘exercise[s] our authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered serious injustice.’ ” Duncan, at ¶ 18 (quoting State v. Evans, 1999 ND 70, ¶ 9, 593 N.W.2d 336 ).

[¶ 4] “An obvious error or defect that affects substantial rights may be considered even though it was not brought to the court's attention.” N.D.R.Crim.P. 52(b). When analyzing claims of obvious error, this Court may “notice a claimed error that was not brought to the attention of a trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights.” State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765. “In order to affect ‘substantial rights,’ an error must have been prejudicial, or affected the outcome of the proceeding.” State v. Erickstad, 2000 ND 202, ¶ 22, 620 N.W.2d 136. “[T]he burden is upon the defendant to show the alleged error was prejudicial.” State v. Jensen, 2000 ND 28, ¶ 18, 606 N.W.2d 507. Even if the defendant meets his burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within the discretion of the appellate court, and the court should exercise that discretion only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” State v. Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658 (citations and quotation marks omitted). An alleged error does not constitute obvious error “unless there is a clear deviation from an applicable legal rule under current law.” Id. at ¶ 14.

III

[¶ 5] Patterson argues the confidential informant's stricken testimony regarding Patterson's selling crack cocaine from 2008 to 2011 had such an adverse effect on his substantial right to a fair trial that the trial judge should have ordered a mistrial. Patterson points to the inherent prejudicial effect prior bad act evidence may have on the trier of fact. See State v. Micko, 393 N.W.2d 741, 744 (N.D.1986) (“This general rule acknowledges the inherent prejudicial effect such evidence may present to the trier of fact[.]”). The State argues any harm from the confidential informant's testimony was limited and corrected. During the State's direct examination, the confidential informant testified to the following:

“Q. So prior to you and your probation officer going to see the police, had you had some sort of relationship with Darrius Patterson?

A. Yeah, I've known him since—2008 is when I first met him.

Q. Okay. And what was exactly—from 2008 to 2011, what was your relationship with Darrius Patterson?

A. Just purchasing crack cocaine from him.

MR. O'DAY: Objection, Your Honor.

THE COURT: Sustained. You're going to have to—

MR. O'DAY: Move to strike.

THE COURT: It's stricken. Disregard the last testimony. You are going to have to avoid any prior bad acts unless you can notice.

Q. (By Mr. Euren) Did you have any kind of an intimate relationship with Darrius Patterson?

A. No.”

The objection to the statement regarding prior bad acts was sustained under Rule 404(b) of the North Dakota Rules of Evidence. Rule 404(b), N.D.R.Ev. (2008), provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

[¶ 6] Patterson argues the State did not comply with the notice requirement of Rule 404(b) and the court cannot cure the State's introduction of prior bad acts when the notice requirement is not met. He argues the notice requirement of Rule 404(b) is a substantial right that protects the defendant from the admission of prior bad acts evidence without notice. Patterson further argues the confidential informant's statement regarding his prior bad acts had such an adverse effect on his right to a fair trial that the court should have ordered a mistrial.

[¶ 7] Assuming the informant's answer was improper, we analyze Patterson's argument that failure to declare a mistrial was obvious error. “[E]rror under [Rule 404(b) ] is subject to a harmless error analysis.” State v. Stewart, 2006 ND 39, ¶ 17, 710 N.W.2d 403 ; State v. Thompson, 552 N.W.2d 386, 390 (N.D.1996). Reversal of a conviction is warranted only if the admitted testimony is “so prejudicial that substantial injury occurred” and absent the error “a different decision would have resulted.” Thompson, at 390 (citations omitted). In State v. Trout, this Court stated, “If independent evidence exists which could lead the trier of fact to the same result, we consider the admission of prior bad acts to be harmless error.” 2008 ND 200, ¶ 8, 757 N.W.2d 556 ; see State v. Dieterle, 2013 ND 130, ¶ 13, 833 N.W.2d 473 (explaining failure to satisfy the notice requirement did not amount to harmless error because sufficient evidence supported conviction independent of evidence of the prior bad acts).

[¶ 8] Here, the district court did not permit testimony regarding Patterson's prior bad acts into evidence. The statement regarding Patterson's prior bad acts, selling cocaine to the confidential informant, was stricken and the jury was instructed to disregard the testimony. “A jury is generally presumed to follow instructions, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.” State v. Hernandez, 2005 ND 214, ¶ 24, 707 N.W.2d 449.

[¶ 9] Even if the jury considered Patterson's alleged prior bad acts, the statement did not increase or change the material evidence the jury had before it regarding Patterson's alleged criminal conduct. See State v. Demery, 331 N.W.2d 7, 12 (N.D.1983). Testimony from three law enforcement officers, testimony from the confidential informant and physical evidence support the jury's verdict. In contrast, the statement to which Patterson objected occurred in isolation during trial. See Duncan, 2011 ND 85, ¶ 24, 796 N.W.2d 672. Patterson failed to establish the confidential informant's statement regarding Patterson's prior bad acts had such an adverse effect on his right to a fair trial that the trial judge should have ordered a mistrial because of the district court's curative instruction, the other evidence against Patterson and the overall lack of proof of substantial prejudice.

IV

[¶ 10] Patterson argues the State's rebuttal closing argument mentioning Patterson's criminal record in violation of Rule 404(b), N.D.R.Ev., affected his right to a fair trial and required a mistrial. The State argues the statements were neither fundamental error nor prejudicial. In the State's closing rebuttal, the prosecutor stated:

“The State accepts the burden of beyond a reasonable doubt. Mr. Patterson's liberty here is at stake. If you find him guilty, the probability is he's going to go to prison. There's at least another conviction on his record for sure if you find him guilty. That's not the point. The point is what's the evidence. Look at the evidence....”

[¶ 11] While it is true, “[a] prosecutor's ‘improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none [,]’ ” State v. Evans, 1999 ND 70, ¶ 15, 593 N.W.2d 336 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) ), “[i]nappropriate prosecutorial comments, standing alone, would not justify a...