State v. Schmidkunz, 20050141.

• Decision Date: 13 September 2006
• Docket Number: No. 20050141.,20050141.
• Citation: 2006 ND 192,721 N.W.2d 387
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Zachary SCHMIDKUNZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

721 N.W.2d 387

2006 ND 192

STATE of North Dakota, Plaintiff and Appellee, v. Zachary SCHMIDKUNZ, Defendant and Appellant.

No. 20050141.

Supreme Court of North Dakota.

September 13, 2006.

COPYRIGHT MATERIAL OMITTED

John P. Van Grinsven III, State's Attorney, Minot, N.D., for plaintiff and appellee.

Chad Rory McCabe, Bismarck, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Zachary Schmidkunz appealed from a criminal judgment entered after a jury found him guilty of murder, a Class AA Felony. We conclude the prosecutor's improper comments during closing arguments did not constitute obvious error, the district court did not abuse its discretion in admitting testimony by the State's expert witness, and the district court did not abuse its discretion in making comments to the jury before deliberations or in permitting the State's expert to testify regarding his competency evaluation of Schmidkunz. We affirm.

I

[¶ 2] On November 17, 2003, Minot police were dispatched to Schmidkunz's parents' residence after his parents contacted police upon discovering the body of a dead woman in their basement. Police officers determined the woman had been shot with a shotgun. Further investigation revealed a shotgun belonging to Zachary Schmidkunz on a bed in the basement. Zachary Schmidkunz was not at his parents' house, and his mother indicated she had last spoken with him by telephone earlier that day.

[¶ 3] Later that evening Schmidkunz surrendered to Jamestown law enforcement officers and claimed to have shot a woman in Minot. Upon confirming that a shooting had occurred in Minot, Jamestown law enforcement officers placed Schmidkunz under arrest. Schmidkunz was interviewed and gave a handwritten statement to Jamestown law enforcement officers, providing information and details implicating him in the shooting. A typed transcript of Schmidkunz's interview with Jamestown law enforcement officers was received at his subsequent trial, as well as his handwritten statement and his sketch of the basement.

[¶ 4] The State charged Schmidkunz with Class AA Felony murder. During trial, Schmidkunz presented expert testimony from Dr. Maureen Hackett. Dr. Hackett testified that, in her opinion, "Schmidkunz was in a state of mind of an `automaton' that was induced by extreme physiologic excitement fueled by a reaction to a medication withdrawal that created an extreme worsening of his psychiatric symptoms and a sudden onset of novel rage resulting in a prolonged episode of extreme emotional disturbance." The State provided rebuttal testimony from Dr. Joseph Belanger and Dr. James Roerig addressing Dr. Hackett's testimony about Schmidkunz's competency. A jury convicted Schmidkunz of the charge of murder. Schmidkunz appealed from the criminal judgment entered upon the jury verdict.

II

[¶ 5] Schmidkunz argues the prosecutor's improper comments during closing argument constitute obvious error and require reversal of his conviction. Schmidkunz argues the prosecutor referred to taped recordings by Schmidkunz's expert witness, Dr. Hackett, which were made during her interviews of Schmidkunz and were not admitted into evidence. Schmidkunz concedes, however, he did not object to the prosecutor's comments during closing argument and our review of this issue is for obvious error.

[¶ 6] "This Court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice." State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765 (citing State v. Anderson, 2003 ND 30, ¶ 8, 657 N.W.2d 245, and State v. Evans, 1999 ND 70, ¶ 9, 593 N.W.2d 336). In analyzing obvious error claims under North Dakota law, we have applied a plain error framework, explaining an appellate court may notice a claimed error that was not brought to the district court's attention if there was "(1) error, (2) that is plain, and (3) affects substantial rights." State v. Olander, 1998 ND 50, ¶¶ 13-14, 575 N.W.2d 658. Once the defendant establishes that a forfeited plain error affects substantial rights, this Court has discretion to correct the error, and should correct the error where it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at ¶ 16.

[¶ 7] In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Clark, 2004 ND 85, ¶ 7, 678 N.W.2d 765. Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial. Id. In order to be prejudicial, the improper closing argument must have "stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence." Id. (citing Evans, 1999 ND 70, ¶ 11, 593 N.W.2d 336).

[¶ 8] Here, Schmidkunz's expert witness, Dr. Hackett, tape-recorded approximately six and a half hours of her interviews with him. In cross-examining Dr. Hackett, the prosecutor played a portion of those taped interviews. The recordings themselves, however, were not admitted into evidence.

[¶ 9] During closing argument, the prosecutor argued:

[Dr. Hackett] testified in direct she liked to make these tapes because she could go back and review them. Remember I told you in my opening statement a lot of this information the State didn't get until three weeks before trial, inundated with material. Had to pour through them.

But we made time to listen to the tapes. And the thing that stuck out in my mind—you read her report, the first report. Nowhere in that tape or in that report, excuse me, does she mention that he advised her on the tape he took a pill on Sunday.

That was important because, you know, you heard in this discontinuation syndrome, which was their defense, that the best thing you can do is reintroduce the drug. And within 24 hours it will— things were going to get better. But somehow that didn't make it in here. She said I obviously would have put it in there.

Was it an oversight or was it because it just didn't fit? That is your call. But it doesn't help the theory. Certainly it doesn't.

And we played the tape. I would have played the tape all day. There were other things I would have liked to have shown on the tape.

(Emphasis added.)

[¶ 10] Schmidkunz argues the prosecutor's comments were improper because the State cannot rely or comment on facts not in evidence during closing argument. It is undisputed that the actual recordings of Dr. Hackett's interviews with Schmidkunz were not admitted into evidence so the evidence was limited to the portion of the tape actually heard by the jury. We have previously expressed our concern when a prosecutor comments personally on evidence "because he or she is acting as an unsworn witness for the prosecution who is not subject to cross-examination and who may be perceived as an expert witness." State v. Skorick, 2002 ND 190, ¶ 15, 653 N.W.2d 698 (citing State v. Schimmel, 409 N.W.2d 335, 343 (N.D.1987)). We have also stated that a prosecutor's improper statements of fact not supported by the evidence "are presumed to be prejudicial unless harmless in themselves." Evans, 1999 ND 70, ¶ 12, 593 N.W.2d 336 (quoting State v. Mehralian, 301 N.W.2d 409, 418 (N.D.1981)). In Evans, the prosecutor argued that the defendants had been identified on tape, without evidentiary support in the record. Evans, at ¶ 12. The issue of identification was disputed at trial, and the prosecutor's comments suggested the prosecutor knew of evidence that supported the charges but was not presented to the jury. Id. However, in Evans, the prejudicial effect of the prosecutor's improper comments was compounded by the district court's failure to admonish the jury to disregard the prosecutor's comments about the identification issue, which were not supported by any evidence. Evans, at ¶ 13.

[¶ 11] Here, the district court instructed the jury that statements by counsel were not to be considered evidence, any statements by counsel concerning facts not supported by the evidence were to be disregarded, and jury members were to rely on their own recollection or observation. See, e.g., Clark, 2004 ND 85, ¶ 11, 678 N.W.2d 765 (concluding any possible prejudice was minimized by the court's cautionary instruction and any isolated improper statements were not obvious error). Moreover, although the prosecutor's comments in closing arguments regarding the tapes were improper in suggesting they provided more evidence not heard by the jury, we cannot conclude that the comments were so prejudicial as to affect Schmidkunz's substantial rights. The evidence against Schmidkunz was overwhelming, and we cannot say that the prosecutor's single comment, which did not state any specific evidentiary facts, carried with it enough weight to impact the jury's verdict and Schmidkunz's ability to receive a fair trial. Schmidkunz has failed to demonstrate the prosecutor's remarks affected his substantial rights.

[¶ 12] Based upon our review of the record, we are unable to conclude the State's improper comment in closing argument prejudiced Schmidkunz. We therefore, conclude Schmidkunz was not denied a fair trial by the prosecutor's comment and the claimed error does not rise to the level of obvious error requiring reversal.

III

[¶ 13] Schmidkunz argues the district court committed reversible error by allowing the State's expert witness, Dr. Joseph Belanger, to testify to an element of the criminal charge. The State argues Dr. Belanger's testimony regarding criminal responsibility was appropriate under the circumstances.

[¶ 14] Rules 702 through 706 of the North Dakota Rules of Evidence govern the admissibility of expert testimony. "The test for admission of expert testimony is...