State v. Skorick

• Decision Date: 04 December 2002
• Docket Number: No. 20020090.,20020090.
• Citation: 2002 ND 190,653 N.W.2d 698
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Edward SKORICK, Defendant and Appellant.
• Court: North Dakota Supreme Court

653 N.W.2d 698

2002 ND 190

STATE of North Dakota, Plaintiff and Appellee, v. Edward SKORICK, Defendant and Appellant.

No. 20020090.

Supreme Court of North Dakota.

December 4, 2002.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Thomas K. Schoppert, Schoppert Law Firm, Minot, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Edward Skorick appeals his jury trial conviction for gross sexual imposition. We hold there was no prosecutorial misconduct during the State's rebuttal closing argument which denied the defendant a fair trial, and although the trial court erred in permitting sequestered witnesses to remain in the courtroom after they testified for purposes of returning as rebuttal witnesses, the error was harmless. We affirm.

I.

[¶ 2] Skorick was charged with class A felony gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d), for engaging in sexual contact with a minor under the age of 15. The jury found Skorick guilty, and the trial court sentenced him as a habitual offender to 20 years incarceration with the North Dakota Department of Corrections and Rehabilitation. On appeal, Skorick argues the trial court erred when the judge sequestered the witnesses until they offered direct testimony, but permitted them to remain in the courtroom for purposes of returning as rebuttal witnesses. Skorick also argues the State committed prosecutorial misconduct in its rebuttal closing argument by vouching for the complaining witness's date of occurrence and for suggesting the burden shifted.

II.

[¶ 3] Skorick claims the trial court committed reversible error by allowing a rebuttal witness to testify for the State, even though he had listened to testimony of other witnesses in violation of Rule 615, N.D.R.Ev.

[¶ 4] Rule 615, N.D.R.Ev., provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

It is mandatory to order exclusion of witnesses when requested by a party. State v. Heart, 334 N.W.2d 479, 482 (N.D.1983). This Court has applied Rule 615, N.D.R.Ev., to rebuttal witnesses. State v. Hill, 1999 ND 26, ¶ 6, 590 N.W.2d 187.

[¶ 5] Prior to trial in this case, the judge ordered "all witnesses be sequestered until they have offered direct testimony. Once they have testified I'm going to allow witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses, and I believe that is appropriate under the rules." Skorick objected to the judge's order and argued Rule 615, N.D.R.Ev., does not provide for witnesses who may be recalled to remain in the courtroom after they have testified. The judge responded, "We'll address the matter should it arise, if there is a request for rebuttal." On the second day of trial, Skorick renewed his objection about witnesses remaining in the courtroom. The State was in the middle of its case-in-chief and responded: "[a]t this point we don't even know if the defense will put on any evidence. We don't know if there will be any rebuttal. Pretty hard to anticipate if there will be rebuttal at this point." At this time, only the complaining witness for the State was present and she was ordered to leave pursuant to the sequestration order.

[¶ 6] The trial judge erred when he permitted witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses. See Hill, at ¶ 6 (applying N.D.R.Ev. 615 to rebuttal witnesses). Our review of the trial court error is guided by Rule 52(a), N.D.R.Crim.P. This rule provides: "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Trial court error which does not prejudice substantial rights of the accused may be disregarded. State v. Micko, 393 N.W.2d 741, 746 (N.D.1986). In deciding whether an error is harmful, we examine the entire record and evaluate the error in the context of the circumstances in which it was made to see if it had a significant impact upon the jury's verdict. State v. Demery, 331 N.W.2d 7, 12 (N.D.1983). In cases of nonconstitutional error, we do not have to find the error was harmless beyond a reasonable doubt. State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987).

[¶ 7] In this case, the State's rebuttal witness was called to address several issues raised during the defense, including the placement of the coffee table. Skorick argues one of the critical contentions of his defense was the placement of the coffee table; and if the witness had not heard the prior testimony, he might not have known the importance of the placement of the coffee table. The rebuttal witness's testimony supported the defense's witnesses that there was a coffee table in the room. Because the weight of the evidence and the credibility of witnesses are questions for the jury, Heart, at 481, we cannot conclude, after examining the entire record, the rebuttal witness's testimony affected Skorick's substantial rights. Therefore, the trial court's error in permitting witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses was harmless and does not require reversal.

[¶ 8] During the trial, Skorick renewed his objection to witnesses remaining in the courtroom after they have testified, and argued it was a violation of N.D.R.Ev. 615 for the trial court to allow the rebuttal witness to testify after having heard prior testimony. Our review of the trial court's decision to permit the rebuttal witness to testify despite a sequestration order is governed by Hill. A trial court's decision during trial to permit a witness to testify even though the witness heard prior testimony in violation of a sequestration order is reviewed under an abuse of discretion standard. Hill, at ¶ 6. A court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner. Id. at ¶ 14.

[¶ 9] "If the objecting party clearly shows, by offer of proof or other appropriate means, a witness's testimony would be influenced by prior testimony the witness heard in violation of a sequestration order, it would be an abuse of discretion for the court to allow the witness to testify." Hill, at ¶ 14. No such showing is present in this case. "The purpose of the sequestration rule `is to prevent witnesses from tailoring their testimony to that which has already been presented and to help in detecting testimony that is less than candid.'" Id. at ¶ 5 (citing United States v. Hargrove, 929 F.2d 316, 320 (7th Cir.1991)). There is no showing that the rebuttal witness's testimony was either tailored to a prior witness or made less candid by his having heard prior testimony. The testimony supported Skorick's witnesses that a coffee table was present in the living room. Skorick made his objection to this rebuttal witness having heard prior testimony in the presence of the jury. The jury was, therefore, alerted to the potential for the rebuttal testimony being affected by prior testimony and could factor that information into its determination of credibility. Thus, we are not convinced that allowing the rebuttal testimony amounted to an abuse of discretion.

III.

[¶ 10] Skorick also argues the State committed prosecutorial misconduct in its rebuttal closing argument by vouching for the complaining witness's date of occurrence and for suggesting the burden shifted.

A.

[¶ 11] "The control and scope of opening and closing arguments is largely a matter left to the discretion of the trial court, and a case will not be reversed on the ground that the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown." State v. Schimmel, 409 N.W.2d 335, 342 (N.D.1987). Unless the error is fundamental, the defendant must demonstrate that the prosecution's comments during closing argument were improper and prejudicial. Id. Ordinarily, "inappropriate prosecutorial comments, standing alone, do not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." Thiel, 411 N.W.2d at 71.

[¶ 12] Skorick argues the prosecutor committed prosecutorial misconduct in her rebuttal closing argument when she vouched for the credibility of the victim and was allowed to change the date of the occurrence by stating:

Okay. When did [K.B.] say this happened? When did it happen? Between fourth and fifth grade. At the end of fourth grade, commencing fifth grade. When about after fourth grade? June, May or June. She said 1997. The school year started in `97. It didn't end in `97. It ended in `98. That is right as she is sitting up here that that slip is made. I think when I started out in opening statement I said to you that it happened in `97. I missed that. And she said `97 the way that Mr. Schoppert did. Then it is my fault for not jumping on it and correcting it and asking some specifics.

[¶ 13] Skorick has failed to prove the prosecutor's remarks were improper and prejudicial. The date of the occurrence can be calculated through the testimony in the record, and it is consistent with the date the prosecutor stated in her rebuttal closing argument. The victim testified on direct examination:

Q. Okay. Now I am going to stop and back you up again. Do you know when about this was?

A. Right about the summer of `97 when I was entering fifth grade.

Q. Okay. So you would have—you finished fourth grade and were going to start fifth grade or you had already started fifth grade?

A. I was going into the fifth grade.

The victim also testified that she was in 7th grade last year. From her testimony, we can determine that fourth grade for the victim...