State v. Rademacher

• Decision Date: 20 January 2023
• Docket Number: 20220126,20220127,20220128
• Citation: 2023 ND 9
• Parties: State of North Dakota, Plaintiff and Appellee v. Steven Charles Rademacher, Defendant and Appellant
• Court: North Dakota Supreme Court

2023 ND 9

State of North Dakota, Plaintiff and Appellee v. Steven Charles Rademacher, Defendant and Appellant

Nos. 20220126, 20220127, 20220128

Supreme Court of North Dakota

January 20, 2023

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

Nathan K. Madden, Assistant State's Attorney, Williston, ND, for plaintiff and appellee; submitted on brief.

Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.

Crothers, Justice.

[¶1] Steven Rademacher appeals from criminal judgments after a jury found him guilty of murder, attempted murder and terrorizing. Rademacher argues the district court erred in conducting a portion of the jury trial outside of his presence. He also argues this Court should amend N.D.R.Crim.P. 43 because it is internally contradictory. We affirm.

I

[¶2] On July 29, 2019, a vehicle driven by Rademacher struck three people. Rademacher was charged with one count of murder, two counts of attempted murder, and three counts of terrorizing. At trial Rademacher conceded that the incident occurred, and that three individuals were struck by his vehicle. The issue for the jury was whether Rademacher had the requisite intent for the charged crimes. Rademacher claims the district court violated his right to be present during trial on two occasions-prior to jury deliberations and after the jury started deliberations. On December 3, 2021, the jury found Rademacher guilty of murder, attempted murder and terrorizing. Rademacher timely appealed.

II

[¶3] Rademacher argues the district court improperly removed him from the courtroom prior to jury deliberations and he was not present for jury instructions and closing arguments.

[¶4] A defendant has a right to be present in the courtroom at every stage of trial. N.D.R.Crim.P. 43(a)(1)(B). We have explained the scope of North Dakota's Rule requiring a defendant's presence at trial, and the constitutional underpinning of the presence requirement:

"The presence requirement has its roots in the Confrontation Clause of the Sixth Amendment. Illinois v Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, reh'g denied, 398 U.S 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970). The Sixth Amendment provides that: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .' U.S. Const. amend. VI. This constitutional guarantee was made obligatory on the states through the Fourteenth Amendment. Allen, 397 U.S. at 338, 90 S.Ct. at 1058 (citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). We have a similar guarantee in our State Constitution:' In criminal prosecutions in any court whatever, the party accused shall have the right . . . to appear and defend in person .' N.D. Const. art. I, § 12.

"North Dakota has long recognized the constitutional right of a defendant to be personally present during the whole of a trial. State v. Schasker, 60 N.D. 462 235 N.W. 345 (N.D. 1931) (calling in jury after retirement and allowing court stenographer to read evidence from notes in absence of defendant in a felony prosecution was a plain violation of defendant's constitutional rights under the North Dakota Constitution Article I, section 12 (previously N.D. Const. Art. I, § 13)). The right is not absolute, and may be affirmatively waived by the defendant. See, e.g., Rule 43(c)(2), N.D.R.Crim.P. (permitting absence with the written consent of the defendant for pleas of guilty for misdemeanor offenses). Cf. State v. Ash, 526 N.W.2d 473, 481 (N.D. 1995) (concluding trial court erred in responding to jury communications without the defendant being present, but the error was harmless considering, in part, defense counsel's repeated waiver of defendant's right of presence). The right, too, may be lost by a defendant's unruly and disruptive behavior. Allen, 397 U.S. 337, 90 S.Ct. 1057.

"When the constitutional right of presence is violated, it is subject to the harmless error standard for constitutional errors- 'harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, reh'g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967) (holding a reviewing court must declare error harmless beyond a reasonable doubt before a federal constitutional error can be held harmless). See also Ash, 526 N.W.2d at 481; State v. Hatch, 346 N.W.2d 268, 278 (N.D. 1984) (stating error is harmless 'where it can be determined beyond a reasonable doubt that the substantial rights of the defendant are not affected. . . .'). "In addition to the constitutional guarantee, Rule 43(a) of the North Dakota Rules of Criminal Procedure requires the presence of the defendant 'at every stage of the trial including the impaneling of the jury. . . .' Our North Dakota Rule is fashioned after the similarly-worded Federal Rule 43. Compare F.R.Crim.P. 43, with N.D.R.Crim.P. 43. The presence requirement embodied in Federal Rule 43 has been interpreted as being broader than the constitutional right. United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir. 1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981) (reasoning Federal Rule 43 is broader than the constitutional right because it 'embodies the right to be present derived from the Sixth Amendment Confrontation Clause, the Due Process Clause of the Fifth and Fourteenth Amendments, and the common law privilege of presence'). Despite the purported breadth of Rule 43, it, too, is subject to express limitation. See, e.g., F.R.Crim.P. 43(b), (c); N.D.R.Crim.P. 43(b), (c) (noting certain instances where the defendant's presence is not required).

"Although Rule 43 is contained in our procedural rules, our past decisions view its violation in light of the constitutional requirements. See, e.g., Ash, 526 N.W.2d at 481 (concluding error of communicating with jury outside of defendant's presence was harmless beyond a reasonable doubt); State v. Smuda, 419 N.W.2d 166, 168 (N.D. 1988) (noting presence requirement of Rule 43, N.D.R.Crim.P., but concluding defendant's right was violated under the North Dakota Constitution and violation was harmless beyond a reasonable doubt); Hatch, 346 N.W.2d at 278 (noting recent adoption of Rule 43, N.D.R.Crim.P., and concluding trial court violated Rule 43 by communicating with jury outside presence of defendant and counsel but violation was disregarded under constitutional standard for harmless error)."

City of Mandan v. Baer, 1998 ND 101, ¶¶ 8-12, 578 N.W.2d 599.

[¶5] Here, the first question is whether Rademacher was absent during "trial." The parties did not cite to a case, and we have not found one, where North Dakota generally defines which proceedings constitute "trial" under N.D.R.Crim.P. 43. However, we have decided cases identifying particular court proceedings that are part of trial requiring the defendant's presence. See, e.g., Smuda, 419 N.W.2d 166 (N.D. 1988) (communications between the court and jury); Hatch, 346 N.W.2d 268 (N.D. 1984) (communications between the court and jury); Baer, 1998 ND 101 (jury selection); State v. Curtis, 2009 ND 34, 763 N.W.2d 443 (return of verdict); Hill v. State, 2000 ND 143, 615 N.W.2d 135 (testimony being read to the jury).

[¶6] We also take guidance from another context where we have held a defendant's public trial right is not violated when the defendant or the public is not present during "discussions about routine administrative" matters that do not involve resolution of disputed facts, "but instead involve logistical, procedural and housekeeping matters" as well as rulings on evidence and objections. State v. Pendleton, 2022 ND 149, ¶¶ 8, 13, 978 N.W.2d 641.

[¶7] We take further guidance from another jurisdiction describing the proceedings constituting "trial" under their statutes requiring that a defendant be present:

"'The defendant in a felony case shall be present . . . at every stage of the trial including the impaneling of the jury and the return of the verdict . . . except as otherwise provided by law.' (Emphasis added.) Harrison claims the note-passing moment in the jury room was a 'stage of the trial' requiring his presence.

"In State v. Killings, 301 Kan. 214, 241, 340 P.3d 1186 (2015), the court explained what constitutes a 'stage of trial' triggering the statutory directive for defendant's presence. The court said:

'A felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command . . . is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.' (Emphasis added.)

See also State v. McDaniel, 306 Kan. 595, 601, 395 P.3d 429 (2017) (stating the right to be present under K.S.A. 2019 Supp. 22-3405(a) 'extends to "any stage of the criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure."' (Emphasis added.)"

State v. Harrison, 467 P.3d 477, 481 (Kan. 2020).

[¶8] Rademacher contends he was not present during closing arguments or final jury instruction. He acknowledges he has the burden of showing a violation of his rights occurred. See L.C. v. R.P., 1997 ND 96, ¶ 18, 563 N.W.2d 799 ("On appeal, the appellant bears the burden of showing error."). Rademacher claims, and we agree, closing arguments and instructing the jury are stages of the criminal proceeding critical to its outcome so that his presence was required.

[¶9] Rademacher...