State v. Studhorse

• Docket Number: 20230247
• Decision Date: 30 May 2024
• Citation: 2024 ND 110
• Parties: State of North Dakota, Plaintiff and Appellee v. Howard Anthony Studhorse, Defendant and Appellant
• Court: North Dakota Supreme Court

1

2024 ND 110

State of North Dakota, Plaintiff and Appellee v. Howard Anthony Studhorse, Defendant and Appellant

No. 20230247

Supreme Court of North Dakota

May 30, 2024

Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

Beau M. Cummings, State's Attorney, Devils Lake, N.D., for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justice Bahr joined.Justice McEvers filed an opinion concurring specially, in which Justice Crothers joined.

Tufte Justice.

[¶1]Howard Studhorse appeals from a criminal judgment entered following a jury trial.On appeal, he argues the district court misapplied N.D.R.Ev. 603;he was convicted of a non-cognizable offense on counts IV and V; the State committed obvious error by eliciting testimony on his right to remain silent; the jury instructions were improper resulting in obvious error because of a lack of unanimity among the jury; his convictions on counts II and V created a double jeopardy violation; and the evidence was insufficient to support the convictions on counts I and II.We reverse the convictions on counts I and V and affirm the remainder of the judgment.

I

[¶2]The State charged Studhorse with five counts of gross sexual imposition and one count of contributing to the deprivation or delinquency of minors.At trial, the State provided testimony from ten witnesses, which included the three victims, identified here as Jane Doe 1, Jane Doe 2, and Jane Doe 3, a forensic interviewer, a school counselor, police detectives, and a case worker.After the State rested Studhorse moved for acquittal under N.D.R.Crim.P. 29 on the five counts of gross sexual imposition.The court denied those motions.The jury returned a verdict of guilty on all six charges.Studhorse appeals.

II

[¶3] Studhorse argues the district court misapplied N.D.R.Ev. 603 and denied him his right to due process and a fair trial because the oath or affirmation given to Jane Doe 3 did not require the witness to tell the truth.

[¶4] Studhorse concedes he did not object to the affirmation given by the Court."When an issue has not been properly preserved, we review only for obvious error."State v. Hamilton, 2023 ND 233, ¶ 10, 999 N.W.2d 214.

To establish obvious error under N.D.R.Crim.P. 52(b), the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.We exercise our power to notice obvious error cautiously, and only in exceptional circumstances where the accused has suffered serious injustice.In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence.State v. Dahl, 2022 ND 212, ¶ 12, 982 N.W.2d 580(quotingState v. Yineman, 2002 ND 145, ¶ 22, 651 N.W.2d 648).

[¶5]Rule 603, N.D.R.Ev., requires "[b]efore testifying, a witness must give an oath or affirmation to testify truthfully.It must be in a form designed to impress that duty on the witness's conscience."We have stated, "While [N.D.R.Ev. 603] was not literally followed, we are not persuaded the degree of omission for a child compels a new trial or a different result."Ryan v. Flemming, 533 N.W.2d 920, 922(N.D.1995).In Ryan, a ten-year-old was not placed under oath, but the district court did instruct him his answers would be important.Id.We held that was sufficient under the rule because the child's credibility was for the district court to weigh, and if a party believes greater stimulus is required to encourage truthfulness, that party must object to the procedure.Id.

[¶6]The district court emphasized the importance of telling the truth.

THE COURT: And [Jane Doe 3], do you know what it means when somebody tells the truth and when somebody lies?Do you know the meaning of those two things?

THE WITNESS: Yes.

THE COURT: Okay.If I said I'm wearing a pink robe, is that the truth or a lie?

THE WITNESS: A lie.

THE COURT: Okay.And do you understand that it's important for, when somebody asks you a question, that you do the best you can to tell the truth?

THE WITNESS: Yes.

THE COURT: And at this point, do you promise that you will try to the best of your ability to tell the truth if somebody asks you a question?

THE WITNESS: Yes.

THE COURT: Well then, at this point I am going to allow you to testify, which means Mr. Cummings is going to ask you some questions, and then you just do the best you can.Will you promise to do that?

THE WITNESS: Yes.

[¶7]The State also emphasized telling the truth.

[THE STATE:] Last rule is, everything we talk about has to be true or real.Do you understand what that means?

[THE WITNESS] Yes.

As in Ryan, the child did not provide an oath or affirmation, but the court and State instructed the child on the importance of the truth.The district court's discussion with Jane Doe 3 impressed upon the witness that she had a duty to tell the truth, which complied with N.D.R.Ev. 603.Because we approved of a similar procedure in Ryan, this is not obvious error.

III

[¶8] Studhorse argues the State improperly elicited testimony about his silence because the State used the testimony to imply his guilt.

[¶9]"[An][i]mproper comment about a defendant's invocation of the right to remain silent is a constitutional error that may be reviewed on appeal even though not raised at trial."State v. Gaede, 2007 ND 125, ¶ 18, 736 N.W.2d 418(citingState v. Schneider, 270 N.W.2d 787, 792(N.D.1978), where we applied obvious error analysis in that circumstance).If an improper comment on a defendant's post-arrest silence is presented to the jury this Court reviews for harmless error.Id.

[¶10]"A comment on the defendant's post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution."State v. Wilder, 2018 ND 93, ¶ 5, 909 N.W.2d 684."[B]ecause the Miranda warning carries an implicit 'assurance that silence will carry no penalty,'"a defendant's invocation of his rights to counsel and to remain silent to end an interrogation cannot be used to infer guilt at trial.Id.(quotingDoyle v. Ohio, 426 U.S. 610, 617-19(1976)).Further, the United States Supreme Court extended the prohibition against commenting on a defendant's post-Miranda silence to a defendant's post-Miranda invocation of the right to counsel.Wainwright v. Greenfield, 474 U.S. 284, 295 n.13(1986)("With respect to post-Miranda warnings 'silence,'we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.").

[¶11] During direct examination in the State's case-in-chief, Detective Anthony testified:

Q.Approximately how long did your interview go on?

A.I believe it was about an hour and ten minutes.

Q.Why was the interview discontinued?

A.After a certain period of time Howard wished to refuse to speak to me until he was able to consult with a lawyer.

Q.Did you stop the interview?

A.Yes, I did.

Q.And did you ever attempt to reinterview the Defendant after that?

A.No, I did not.

Q Why not?

A.Because his right to counsel, and he never wanted to speak without - or with the lawyer.And I think he's gone through a couple.So we were never able to work with that.

[¶12]The State argues the line of questioning did not violate Doyle, and in the alternative, any error was harmless.For purposes of our analysis here, we assume without deciding whether the State's line of questioning improperly elicited comments on Studhorse's post Miranda silence.SeeWickham v. State, 2022 ND 116, ¶ 8, 974 N.W.2d 646.We consider the following non-exclusive factors when determining whether an improper comment was harmless:

1.The use to which the prosecution puts the post arrest silence.

2.Who elected to pursue the line of questioning.

3.The quantum of other evidence indicative of guilt.

4.The intensity and frequency of the reference.

5.The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

State v. Wilder, 2018 ND 93, ¶ 9, 909 N.W.2d 684.Assuming the State's comments were improper, the State must prove beyond a reasonable doubt that the comments did not contribute to the verdict and the error was harmless.SeeState v. Anderson, 2016 ND 28, ¶ 14, 875 N.W.2d 496.

[¶13] Here, the State's use of Studhorse's silence may be interpreted in two ways.Studhorse decided to be silent and ceased to be cooperative with police, or he was willing to talk but once he invoked his right to counsel, the police discontinued all contact with Studhorse.This factor is neutral.The prosecution, rather than the defense, elected to pursue the line of questioning.This factor weighs against the State.The quantum of the evidence for each charge is substantial.The testimony of the victims and the officers unrelated to Studhorse's invocation of his right to counsel is indicative of guilt.This factor favors the State.The State's reference to Studhorse's invocation of his right to counsel was brief and was not commented on by the State during its opening or closing arguments.This factor favors the State.Last, the district court did not have an opportunity to grant a motion for mistrial or give a curative instruction because there was no objection at trial.

[¶14] After considering these factors and the entire record, we conclude any error here was harmless and does not require reversal of Studhorse's convictions.

[¶15] Studhorse further argues the State's questions...