IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|The State of North Dakota,||)||Supreme Court No. 20120082||)|
|Plaintiff and Appellee,||)|
|)||District Court No. 18-10-K-00647|
|Defendant and Appellant.||)|
ON APPEAL FROM CRIMINAL JUDGMENT
FROM THE DISTRICT COURT
FOR THE NORTHEAST CENTRAL JUDICIAL DISTRICT
GRAND FORKS COUNTY, NORTH DAKOTA
THE HONORABLE JUDGE DEBBIE KLEVEN, PRESIDING.
BRIEF OF APPELLEE
|Meredith H. Larson (06206)|
|Assistant State's Attorney|
|Grand Forks County|
|P.O Box 5607|
|Grand Forks, ND 58206|
|M. Jason McCarthy (05656)|
|Assistant State's Attorney|
|Grand Forks County|
|P.O Box 5607|
|Grand Forks, ND 58206|
TABLE OF CONTENTS
|Table of Authorities||ii|
|Statement of the Issues||iv|
|Statement of the Case.¶1|
|Statement of the Facts¶5|
|I.||The Defendant is precluded from raising issues not properly preserved|
|in his Motion for a New Trial¶20|
|II.||Alternatively, should the Court consider the issues Defendant failed|
|to preserve in his district court Motion for a New Trial, the district|
|court did not err with respect to its rulings on the victim's medical|
|records and the prosecutor's closing arguments¶23|
|A.The district court did not err when denying the Defendant access|
|to the victim's privileged medical records when the victim had not|
|waived the privilege ¶25|
|B.The district court did not err with respect to its ruling on the scope|
|of the prosecutor's closing argument¶27|
TABLE OF AUTHORITIES
|North Dakota State Cases|
|Andrews v. O'Hearn, 387 N.W.2d 716 (N.D. 1986)||¶20|
|City of Fargo v. Levine, 2008 ND 64, 747 N.W.2d 130||¶23|
|Coughlin Constr. Co., Inc. v. Nu-Tec, Indus, 2008 ND 163, 75||¶21|
|Grain v. Tibert, 2009 ND 213, 776 N.W.2d 49||¶20, 21, 22|
|Schaan v. Magic City Beverage Co., 2000 ND 71, 609 N.W.2d 82||¶21|
|State v. Ash, 526 N.W.2d 473, 481 (N.D. 1995)||¶23, 27, 29, 31|
|State v. Bingham, 2002 ND 202, 655 N.W.2d 51||¶23|
|State v. Carpenter, 2011 ND 20, 793 N.W.2d 765||¶23|
|State v. Hernandez, 2005 ND 214, 707 N.W.2d 449||¶20|
|State v. Kopp, 419 N.W.2d 169 (N.D. 1988)||¶23, 24, 28|
|State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427||¶28, 29, 31|
|State v. Schimmel, 409 N.W.2d 335 (N.D. 1987)||¶27|
|State v. Vantreece, 2007 ND 126, 736 N.W.2d||¶27|
|State v. Zajac, 2009 ND 119, 767 N.W.2d 825||¶20, 22|
Sullwold v. Hoger, 110 N.W.2d 457 (N.D. 1961)
|Other State Cases|
|Chambers v. Smith, 198 S.E.2d 806 (W.Va. 1973)||¶20|
|Gloede v. Texas, 328 S.W.3d 668 (Tex. Crim. App. 2010)||¶29, 31|
|People v. Sisneros, 55 P.3d 797 (Colo. 2002)||¶25|
|State v. Clow, 10 N.W.2d 359 (Minn. 1943)||¶20|
|Begordis v. Fabian, Civ. No. 05-2090, 2007 WL 737781|
|(D.Minn. Mar. 8, 2007)||¶25, 26|
|Newton v. Kemna, 354 F.3d 776 (8th Cir. 2004)||¶25|
|United States v. Stone, No. CR. 05-30049, 2005 WL 1845153|
|(D.S.D. July 29, 2005)||¶25, 26|
|United States Supreme Court|
|Jaffee v. Redmond, 518 U.S. 1 (1996)||¶25, 26|
|Pennsylvania v. Ritchie, 480 U.S. 39 (1987)||¶25, 26|
|North Dakota Rules|
|N.D.R.Crim.P. 33||¶20, 22|
STATEMENT OF THE ISSUES
.Whether the Defendant is precluded from raising issues on appeal that were not properly preserved in the Defendant's motion for a new trial?
.Alternatively should the Court allow the Defendant to raise the issues not previously preserved in Defendant's motion for a new trial, whether the district court's erred when making rulings regarding the victim's medical records and the scope of the prosecutor's closing argument?
STATEMENT OF THE CASE [¶1] On March 29, 2010, the Defendant was charged with a Class AA Felony Continuous Sexual Abuse of a Child and a Class C Felony Corruption of a Minor. (Appellant's App. at 10.) The charges related to allegations that the Defendant was perpetrating sexual acts upon his biological daughter from when she was age 12 until age 17. (Appellant's App. at 9, 42.) A preliminary hearing was scheduled for May 24, 2010. (Appellant's App. at 3.) The Defendant waived preliminary hearing. (Appellant's App. at 3.) The Defendant was arraigned on May 28, 2010 and entered a formal plea of not guilty. (Appellant's App. at 3.) On August 26, 2010 a pre-trial conference was held. (Appellant's App. at 3.) A jury trial was scheduled for April of 2011 and July of 2011 but due to various reasons both of those dates were continued. (Appellant's App. at 4.) A jury trial was rescheduled to commence October 24, 2011. (Appellant's App. at 4.)
[¶2] Prior to the jury trial commencing, the Defendant filed a Motion to Release Medical Records. (Appellant's App. at 15.) There was no brief or case law cited supporting the Defendant's motion. (Appellant's App. at 15.) The State filed a Brief in Response to Defendant's Motion to Release Medical Records. (Appellant's App at 16-18.) The State objected to the records being released. (Appellant's App at 16-18.) The trial court issued an Order denying the Defendant's Motion. (Appellant's App. at 19-20.) A jury trial was conducted from October 24, 2011 through October 28, 2011. (Appellant's App. at 5.) Guilty verdicts to both counts were delivered on October 29, 2011. (Appellant's App. at 38-39.) The Defendant was sentenced on January 4, 2012. (Appellant's App. at 49, 56.) On the charge of Continuous Sexual Abuse of a Child Defendant was sentenced to 80 years with the North Dakota Department of Corrections with 20 years suspended. (Appellant's App. at 49.) On the charge of Corruption of a Minor, the Defendant was sentenced to a 5 year concurrent sentence. (Appellant's App. at 56.)
[¶3] Subsequent to sentencing, the Defendant filed a Motion for a New Trial. (Appellant's App. at 40.) The Defendant filed a Brief in Support of Motion for New Trial. (Appellant's App. at 41.) The Defendant included one sentence as to why he was entitled to a new trial, in the interest of justice. (Appellant's App. at 41.) The District court denied the Defendant's Motion for a New Trial. (Appellant's App. at 47-48.)
[¶4] On January 27, 2012, the Defendant filed a Notice of Appeal in this matter. (Appellee's App. at 57.) On February 9, 2012, the State filed a Notice of Motion, Motion and Brief in Support of Motion for an Amended Judgment to correct a clerical error in the original Judgment which indicated the Defendant pled guilty. (Appellee's App. at 1-4.) The district court granted the State's motion on February 17, 2012. (Appellee's App. at 5.) Amended Judgments were entered on February 17, 2012. (Appellant's App. at 7, 49, 56.)
STATEMENT OF THE FACTS
[¶5] On March 29, 2010, the State charged the Defendant with Class AA Felony Continuous Sexual Abuse of a Child and Class C Felony Corruption of a Minor. (Appellant's App. at 10.) The charges stemmed from allegations that the Defendant had repeatedly perpetrated sexual assaults upon his oldest biological daughter, J.M. (Appellant's App. at 9.) A jury trial commenced on October 24, 2011. (Appellant's App. at 5.) In opening statements, the Defendant portrayed J.M. as an emotional, troubled teenage girl who gets attention by falsely accusing her father of sexually abusing her. Jury Trial Tr. pp. 30-32. The State called five (5) witnesses; J.M., Dr. Witucki, Detective James Vigness, D.S., and Ms. Jacquelynn Middleton. Jury Trial Tr. p. 2. J.M., who was eighteen (18) years old at the time of the trial, was the State's first witness. Jury Trial Tr. p. 44. J.M. testified that she was a graduate of Grand Forks Central High School, had two younger siblings, and lived in a split level house in Grand Forks. Jury Trial Tr. pp. 44-46. On January 6, 2010, J.M. reported to her therapist, Dr. Witucki, that her biological father had been sexually assaulting her for several years. Jury Trial Tr. pp. 47-48, 199-200. After being advised by Dr. Witucki that he was a mandated reporter, J.M. also disclosed this information to her mother. Id. Ultimately, this information was relayed to law enforcement due to the fact that Dr. Witucki and a school counselor were mandated reporters. Id. at 206. J.M. did not know at the time of disclosing to her therapist that law enforcement would be contacted. Jury Trial Tr. p. 85. J.M. did not initiate contact with law enforcement, however, an investigation did commence. Jury Trial Tr. p. 85. The investigation revealed that J.M. initially disclosed having been molested by her father for the first time when she was in the sixth (6th) grade. Jury Trial Tr. p. 49. The Defendant went into a bedroom where J.M. was at, locked the door behind him, kissed J.M. and shoved his tongue into her mouth. Jury Trial Tr. pp. 50-54. Further, the Defendant put J.M. on top of him and rubbed her back and forth on top of him. Jury Trial Tr. p. 51. Additionally, the Defendant touched her chest and jeans area pressing down on her vaginal area hard. Jury Trial Tr. pp. 51-52. The assault continued until the Defendant attempted to unbutton her jeans, at which point J.M. jumped up and told him no. Id. J.M.'s mother, Jackie Middleton, was not home when the first assault took place, but J.M. did immediately tell her what had taken place upon her return. Id. at 52. Unfortunately, this incident was explained by the Defendant as a "misunderstanding" and no further action was taken after J.M.'s disclosure. Id. at 52-54; 287. J.M. remembered very specific details about the first incident and testified to that effect at trial. Id. at 50-54.
[¶6] The second time J.M. recalls being assaulted by her father was when she was in middle school, around the seventh (7th) or eighth (8th) grade. Id. at 56. The Defendant came into her room, locked the door, put a blanket on the floor, and started to wrestle with her. Jury Trial Tr. p. 55. The Defendant then proceeded to rub his penis into her hand until he ejaculated. Id. at 57. Again, J.M. remembered very specific details about this incident, where it took place, the clothing she was wearing when it happened (yellow shorts), and how she felt when it happened and she testified to those details at trial. Id. at 55-58.
[¶7] The next time J.M. recalls specifics about being molested by her father was when the Defendant first forced vaginal intercourse upon her. Id. at 56-61. The Defendant again came into her room, locked the door, and put a blanket on the floor. Id. at 58. J.M. recalled that when the Defendant would molest her, he would act like he was teaching her something. Id. at 59. J.M. specifically recalled that the Defendant spit into his hand and forced his penis into her vagina. Jury Trial Tr. p. 59. J.M. was shaking and in fear and pain. Id. She told the Defendant it hurt but he continued to rape her until he ejaculated. Id. at 60. Afterwards he told her she would need to go to the bathroom because she would be leaking for awhile. Id. J.M. testified to very specific details about the incident, what she was doing before it happened, who was home at the time, where exactly it took place, and how it felt before, during, and after the assault took place. Id. at 56-61.
[¶8] After the Defendant first forced vaginal intercourse upon J.M., he repeatedly perpetrated the same kind of assaults on her for a period of years. Id. at 65. J.M. testified that it would happen once a month on average. Id. J.M. did not remember the details of every single incident, but did remember that prior to her ninth (9th) grade year of school, the Defendant repeatedly perpetrated sexual assaults on her consisting of vaginal sex. Jury Trial Tr. p. 66. J.M. was fourteen (14) until Christmas Day of her ninth (9th) grade year of school. Id. at 66, 67, 68, 495. The sexual assaults continued into her ninth (9th) and tenth (10th) grade years of school. Id. at 67-68.
[¶9] The next sexual assault J.M. could remember very specific details about was Christmas Day on her sixteenth (16th) birthday. Id. at 68-69. J.M. testified that the Defendant made her believe he was buying her a car for her birthday. Id. at 68-69. When J.M. realized that she was not going to be receiving a car she went to her room in the basement of their split level home. Id. The Defendant followed her down there. He locked the door and stated "this is risky". Jury Trial Tr. p. 69. J.M. testified that the Defendant stated that because her entire family was home. Id. at 69-70. The Defendant proceeded to perpetrate a sexual assault on J.M. which consisted of vaginal intercourse. Id. at 68-70. Again, J.M. testified to specific details surrounding this incident to include the type of breakfast her mother was making her that morning. Id. at 70.
[¶10] J.M. testified that the repeated acts of forced vaginal intercourse were continuous from the first time it ever happened at approximately age fourteen (14) until the last incident which was the summer before her junior year in high school. Id. at 71. The longest period of time that it stopped was for two months. Id. at 74. J.M. specifically testified that prior to her fifteenth (15th) birthday the sexual contact perpetrated by her father took place three or more times over a period of three or more months. Jury Trial Tr. p. 96. After her fifteenth birthday, J.M. testified the sexual intercourse continued. Id. at 97. The last time the Defendant sexually assaulted J.M. he did so in her sister's bedroom. Id. at 72. This incident also included vaginal intercourse. Id. at 72-73. J.M. also testified to specific details about this incident. Id.
[¶11] J.M. testified that she never told anyone, other than her boyfriend, D.S., because her father would tell her he would go to jail if she did. Id. at 62, 75-76. J.M. indicated that she knew it would tear up the whole family and ruin everything. Jury Trial Tr. p. 62. She also testified that she had previously disclosed the first incident to her mother, but the Defendant had manipulated it into being an innocent wrestling match. Id. at 63. J.M. was worried about the consequences disclosing the molestations would have on her family, including financially, and she was also very embarrassed. Id. at 74-75. Further, after the molestations had stopped J.M. did confront the Defendant about what he had done to her. Id. at 81-82. In response, the Defendant detailed his thoughts of suicide to J.M., including where and how he would kill himself. Id. at 81-83.
[¶12] In addition to testifying about the sexual acts the Defendant perpetrated upon her, J.M. testified at trial that the Defendant treated her favorably over her siblings. Id. at 54. Further, the fact that the Defendant favored her was well-known to the rest of her family. Jury Trial Tr. p. 54, 288. The Defendant's favoritism of J.M. started after he began molesting her. Id. at 55. J.M. testified that the favoritism of J.M. continued throughout the years and in fact increased as the years progressed and the molestations continued. Id. at 58, 64, 67-68, 78.
[¶13] After J.M. disclosed to her therapist and her mother, the Defendant's parents, J.M.'s paternal grandparents were also notified. Id. at 84-86. Subsequently, the Defendant sent J.M. a series of text messages that were incriminating in nature. Id. at 87-88. These messages were offered and received into evidence. Jury Trial Tr. at 87-88. Additionally, law enforcement utilized an investigative technique with J.M.'s assistance, called a pre-text phone call. Id. at 89, 207-212. The Defendant was unaware that J.M. was with law enforcement at the time of making the call. Id. at 207-212, 533. The phone call was recorded. Id. at 89-90. The recording was offered and received into evidence. Id. During the recorded phone call the Defendant is repeatedly confronted with the fact that he had sexual intercourse with J.M. and never once denies it. (Appellant's App. at 5.); State's Exhibit #3; Jury Trial Tr. pp. 518-533.
[¶14] Defendant made the following statements:
J.M.: I, I don't know, I guess I I don't know because I felt better but now I don't. It's back and like, I need that closure, you know what I mean?
Defendant: That's fine.
J.M.: And II couldn't keep, and I don't want to get, I don't want the police involved, I don't want any of that, I just want it to be resolved with us.
Defendant: It will be. I, I already started counseling.
J.M.: You did?
Defendant: Yes. And umI got a lot, lot of work to do.
J.M.: Did, I mean, did you tell her about the, the abuse and stuff with me?
J.M.: I'm glad you're going to like, a therapist or whatever.
Defendant: I have to.
J.M. And did you, like did you actually tell her that, you know, that both, you know, that we had sex and stuff like that?
Defendant: We got in there.
Defendant: But, so, it's not like I'myou know, all I know is I'm I like her and I told her that, that it's important that it's confidential for lifeI could never run a business in this town after, for the aftermath and she knows that and she's like no, we're fine.
J.M.: Well, I'm seeing my therapist more now.
J.M.: And I mean he doesn't, he doesn't know but do you think I should talk to like, him, about us having sex and like all that stuff because what you were saying, I don't understand.
Defendant: Well, I, I think that you gotta do whatever's good for you. I don't really have the right to answer, I'm so lost right now that I don't even have an opinion. All I know is thatI just don't know, I don't know, I mean, is it through the school system?
Defendant: I don't know, I meanyou know, I mean, I'm not even
worried about me but if it goes to authorities, we're both gonna be famous, you know and..
J.M.: I don't want that.
Defendant: I don't really, I really, you know, I don't give two flying f**ks about myself right now but I do care about your future and the rest of your life.
Defendant: You know, I do know that I'm gonna be okay. I mean, I know that now but you know, I had a pretty dark weekend and it's time to, hit rock bottom.
J.M.: Well, maybe that's what you need, is to get there.
Defendant: Yeah, I'm there. I'm not getting there anymore. I'm there. I can't believe, I couldn't look in the mirror, I'm so f**king ashamed. I'm very, very ashamed of who I am right now. But I do see some light down the road and with hard work, it's gonna be okay.
Defendant: I don't know how to make this up to you. I have no idea. I don't even know what to do, and I don't want you ever leave me, you know, you don't have to do anything now or even in six months but I mean someday you know, I need, I just, I hope to God I can still be your dad. You know what I mean?
Defendant: Even..its..the only thing, I don't care about nothing else in the world right now, just you. It's for you. I mean right away, when I found out that it was out in the open, all I could think of what to do, texting you. I texted you right away and I said hey, it's gonna be okay, you know?
Defendant: It's okay. I was never, not for one second mad at you.
Defendant: You did nothing wrong.
Defendant: I got, I got a lot to say and I want to talk to you. I mean, you don't have to, if you're uncomfortable you don't ever have to call me. but I sure hope you do.
(Appellant's App. at 5.); State's Exhibit #3; Jury Trial Tr. pp. 518-533.
[¶15] J.M.'s mother, Jacquelyn Middleton testified at the trial. Jury Trial Tr. pp. 277-313. Ms. Middleton, although she never witnessed any sexual assaults personally, was able to corroborate many details that J.M. provided to the jury. Id. at 277-313. Specifically, Ms. Middleton described for the jury the time in which J.M. was in the sixth (6th) grade and disclosed that her father tried to have sex with her. Id. at 287. This was the incident in which the Defendant indicated that he and J.M. were wrestling and she may be too old to do that. Id. Ms. Middleton also corroborated the fact that J.M. was treated differently by the Defendant than her other children. Id. at 288. Ms. Middleton also corroborated the details of the Christmas Day incident on J.M.'s sixteenth (16th) birthday in which J.M. went to her bedroom upset and the Defendant followed her down supposedly to comfort J.M. Id. at 289-290. Ms. Middleton also testified that she was making crepes on J.M.'s birthday, just as J.M. recalled. Jury Trial Tr. pp. 70, 289-290. Ms. Middleton testified that J.M. did in fact have a blanket as J.M. described being used by the Defendant to place on the floor when he was sexually assaulting her. Id. Importantly, Ms. Middleton testified that after J.M. initially disclosed to her she had gradually would disclose more details to Ms. Middleton. Id. at 293. J.M. testified that Defendant would spit in his hand for lubrication before putting his penis in her vagina. Id. at 59. This fact was disclosed to Ms. Middleton before the trial. Id. at 281-282, 293. Ms. Middleton testified that this was something the Defendant did with Ms. Middleton and that only someone who was intimate with the Defendant would know that detail. Id. Further, Ms. Middleton testified that she had never previously told J.M. the Defendant engaged in this behavior. Id. Even after J.M. disclosed that the Defendant did it with J.M., Ms. Middleton did not share with J.M. that the Defendant would spit in his hand when intimate with Ms. Middleton. Id. In addition to corroborating details of J.M.'s testimony, Ms. Middleton also testified that she confronted the Defendant about J.M.'s allegations shortly after she disclosed. Jury Trial Tr. p. 284. The Defendant's response to her was that he would go to counseling. Id. The Defendant never denied J.M.'s allegations to Ms. Middleton and never called her expressing concerns about J.M.'s behavior or claimed that J.M. was making this all up. Id.
[¶16] D.S., J.M.'s ex-boyfriend also testified. Id. at 262-277. D.S. testified that J.M. disclosed the sexual assaults to him prior to telling Dr. Witucki. Id. at 265-267. D.S. testified that J.M. would call her crying and upset after being sexually assaulted by the Defendant. Id. D.S. also testified that the Defendant looked at J.M. inappropriately. Jury Trial Tr. pp. 267-268.
[¶17] Prior to trial, the Defendant sought to obtain J.M.'s therapy records from Dr. Witucki. (Appellant's App. at 15.) The Defendant filed a motion that contained no supporting brief or case law. (Appellant's App. at 15.) The State filed a responsive Brief in Opposition with supporting case law. (Appellant's App. at 16.) The district court denied the Defendant's motion. (Appellant's App. at 19.) The district court indicated that the Defendant would have an opportunity to cross-examine Dr. Witucki at trial as the State intended on calling Dr. Witucki to testify. (Appellant's App. at 19.) Dr. Witucki did in fact testify at trial. Jury Trial Tr. pp. 198-203. Dr. Witucki explained that J.M. disclosed to him on January 6, 2010, that she had been molested by her father from approximately her eighth (8th) grade year of school to her sophomore year. Id. at 199-200. Dr. Witucki is a mandated reporter and explained that fact to J.M. upon her disclosure. Id. at 200. J.M. was unaware of that fact and asked Dr. Witucki to wait a couple days so she could tell her mother. Id. Dr. Witucki testified that J.M. seemed embarrassed, nervous and reluctant to disclose the sexual molestations. Id. at 201. J.M. expressed concerns to Dr. Witucki about how the disclosure would affect her family. Id. The Defendant was given the opportunity to cross-examine Dr. Witucki. Id. at 203. The Defendant did not cross-examine Dr. Witucki. Id.
[¶18] The Defendant presented eight (8) witnesses. Jury Trial Tr. p. 2-3. Many of the witnesses were either character witnesses or had no specific information regarding the allegations of sexual assaults. Id. at 350-368, 425-437, 555-558, 561-565. The Defendant testified. Id. at 445-553. The Defendant denied all of the sexual allegations that J.M. made and testified to under oath. Id. at 445. The Defendant also denied that he displayed any favoritism towards J.M. Id. at 462-464. The Defendant claimed J.M. was suicidal at the time that she confronted him about being sexually assaulted. Id. at 478-479. The Defendant claimed during the pre-text phone call he was simply responding in a way that would keep J.M. calm and that he was calling her bluff. Id. at 484-486, 521. The Defendant alleged the same thing with respect to the incriminating text messages in which he promises to get help and states he is glad J.M. went to "mom". Jury Trial Tr. 489-490. However, the Defendant acknowledged during cross-examination that he never contacted law enforcement, Ms. Middleton, or any other official regarding his alleged concerns that J.M. was suicidal at the time of the pre-text call. Id. at 504, 533. The Defendant also testified that various components of Ms. Middleton and J.M.'s testimony were lies. Id. at 497-499, 537, 540-541. The Defendant acknowledged that he never denied the sexual abuse during the pre-text call. Id. at 510. The Defendant testified that J.M. and Ms. Middleton conspired to testify regarding the Defendant spitting in his hand during sexual acts with both of them in an effort to get him into trouble. Id. at 538. The Defendant testified that J.M. and Ms. Middleton lied under oath, made up the allegations of molestation in order to get back at him, and maintained that lie for almost two years. Id. at 543.
[¶19] The State and Defendant both presented closing arguments. Jury Trial Tr. p. 567. Prior to delivering closing arguments, the district court provided the jury closing instructions as to the law. Id. at 578-584. The district court's instructions included "Statements by Counsel and Judge". (Appellant's App. at 33.); Jury Trial Tr. at 581-582. The instruction included the caution that arguments by counsel must not be considered by the jury as evidence. Id. During closing arguments, the State utilized a power point presentation. Id. at 604. The State's presentation contained a timeline as a visual aid demonstrating the age of the victim and the sexual acts that were being perpetrated upon her at those ages. Id. at 604. In addition, the State utilized school photographs of J.M. at the ages she was molested by the Defendant for the purposes of a demonstrative or visual aid. Id. at 611-613. The Defendant objected and the district court overruled the objection. Id. at 611. During the Defendant's closing argument, J.M. was again presented as a suicidal out of control teenager gone bad and needing attention. Id. at 616-639. During rebuttal argument, the State reminded the jurors that what the attorneys say in closing argument is not evidence. Id. at 640. The State also argued to the jury that the victim was a child when these sexual assaults began, not a cold and calculating teenager on a runaway train as Defendant portrayed J.M. Id. at 642. Closing arguments concluded on October 28, 2011. Id. at 650. The jury delivered verdicts of guilty to both Continuous Sexual Abuse of a Child and Corruption of a Minor on October 29, 2011. Id. at 671-672.
I. The Defendant is precluded from raising issues not properly preserved in his Motion for a New Trial.
[¶20] Although a motion for a new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial. State v. Zajac, 2009 ND 119, ¶8, 767 N.W.2d 825; (citing State v. Hernandez, 2005 ND 214, ¶34, 707 N.W.2d 449). This rule applies equally to criminal and civil cases. Id.; see also Grain v. Tibert, 2009 ND 213, 776 N.W.2d 49. This restriction of appealable issues applies not only to a review of a denial of the motion for a new trial, but also to the review of the appeal from the judgment itself. Grain v. Tibert, 2009 ND 213, ¶16; (citing Andrews v. O'Hearn, 387 N.W.2d 716, 728 (N.D. 1986)). Motions for a new trial must be made with particularity and specify the alleged defects and errors with particularity. N.D.R.Crim.P. 33(a). The Defendant does not properly preserve issues on appeal by making vague or general statements. Grain at ¶¶24-27; see also Sullwold v. Hoger, 110 N.W.2d 457 (N.D. 1961) (ruling that a motion for a new trial on the grounds that the verdict was against the weight of the evidence with no other particulars or specifications was not made with appropriate particularity); State v. Clow, 10 N.W.2d 359 (Minn. 1943) (finding that a motion for a new trial making a general assignment of errors of law occurring on the trial without specifying the particular errors claimed did not sufficiently preserve the issues for appellate review); Chambers v. Smith, 198 S.E.2d 806, 810 (W.Va. 1973) (ruling that merely stating the verdict was contrary to the evidence was not sufficient to meet the requirements of stating grounds with particularity).
[¶21] In Grain v. Tibert, this Court extensively discussed parties preserving issues in a motion for a new trial under the comparable Civil Rule of Procedure 59. 2009 ND 213. In Grain, the Defendant filed a motion for a new trial based on juror misconduct pursuant to North Dakota Rules of Civil Procedure 59. On appeal, the Defendant raised multiple issues that were not addressed in its District court Motion for a New Trial. Id. at ¶14. This Court ruled that motions for a new trial must be stated with particularity. Id. at ¶24. The purposes of the particularity requirement should not be viewed as a technical obstacle to a moving party seeking justice, but rather a procedural safeguard. Id. at ¶25. Further, this Court noted three policy grounds supporting the particularity requirement: 1) it spares the court a search of the record and directs the court's attention to possible faults; 2) it advises opposing counsel so counsel may prepare and adequately contest the motion; and 3) it provides an adequate record for appellate review. Id. at ¶25; citing Schaan v. Magic City Beverage Co., 2000 ND 71, ¶12, 609 N.W.2d 82. This Court has said that judges are not ferrets who engage in unassisted searches of the record for evidence to support a litigant's position. Id. at ¶27; citing Coughlin Constr. Co., Inc. v. Nu-Tec, Indus, 2008 ND 163, ¶9, 755 N.W.2d 867.
[¶22] In the case at hand, the Defendant filed a Motion for a New Trial and Brief in Support on November 8, 2011. (Appellant's App. at 40-41.) The law and argument of the brief states in whole: "Under Rule 33 of the North Dakota Rules of Criminal Procedure, the court may grant a new trial to the defendant if required in the interest of justice". (Appellant's App. at 40-41.) The Defendant cited to State v. Kraft to support his position. (Appellant's App. at 40-41.) However, there were no facts stated with particularity or even a reason in which the motion for a new trial should be granted. The Defendant failed to even provide to the district court a basis in which justice required a new trial be granted. The district court noted that the Defendant failed to include any legal argument or facts to support his assertion. (Appellant's App. at 47.) As stated in Zajac and Grain, although the Defendant was not required to file a motion for new trial, once he chose to do so, the Defendant is limited on appeal to the issues raised in the motion for a new trial. Further, the requirement that the issues in the motion for a new trial be preserved on appeal applies not only to the Defendant appealing the district court's denial of a motion for a new trial but also an appeal on the criminal judgment. The Defendant's vague and general statement that a new trial can be granted in the interests of justice is not sufficient to preserve the issues he has raised on appeal regarding the victim's medical records and the prosecutor's closing arguments. Case law is extensive and clear that the Defendant is limited on appeal to the issues raised in Defendant's motion for a new trial. In the case at hand, the Defendant should be precluded from raising the issues set forth in his brief before this Court as they were not previously raised and preserved in the Defendant's district court Motion for a New Trial.
II. Alternatively, should the Court consider the issues Defendant failed to preserve in his district court Motion for a New Trial, the district court did not err with respect to its rulings on the victim's medical records and the prosecutor's closing arguments.
[¶23] Typically, a review of discovery motions is analyzed under the abuse of discretion standard. City of Fargo v. Levine, 2008 ND 64, ¶5; 747 N.W.2d 130. A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably or when its decision is not the product of a rational mental process leading to a reasoned determination or when it misinterprets or misapplies the law. Id. at ¶5. Additionally, the North Dakota Supreme Court has indicated that the control of closing arguments is largely within the discretion of the trial court and the Supreme Court will not reverse on the ground that a prosecutor exceeded the scope of permissible closing argument unless a clear abuse of the trial court's discretion is shown. State v. Ash, 526 N.W.2d 473, 481 (N.D. 1995). However, as previously discussed in the preceding section, these issues were not properly preserved on appeal. In State v. Kopp, this Court, when discussing issues the Defendant had not properly preserved for appeal, indicated that such issues not previously raised before the district court should be reviewed on an obvious error standard. State v. Kopp, 419 N.W.2d 169, 172-173 (N.D. 1988). To establish obvious error, the defendant must show: 1) error; 2) that is plain; and 3) affects substantial rights. State v. Carpenter, 2011 ND 20, ¶16, 793 N.W.2d 765. To determine whether an obvious error has been made, an appellate court will examine the entire record and the probable effect of the alleged error in light of all the evidence. State v. Bingham, 2002 ND 202, ¶ 9, 655 N.W.2d 51. This Court has indicated that the Court's authority to notice obvious error is exercised cautiously and only in exceptional circumstances where the defendant has suffered a serious injustice. Id. at 173.
[¶24] In the case at hand, the Defendant raises two issues in his appellate brief; whether the district court abused its discretion when it denied the Defendant access to the victim's medical records and whether the district court abused its discretion in allowing the prosecutor to utilize school photographs of the victim, not previously admitted into evidence, for a demonstrative aid in closing arguments. (Appellant's Brief at 1.) For both issues, the Defendant alleges an abuse of discretion standard is appropriate. As in Kopp, the State's position is that this should be reviewed under an obvious error standard as the Defendant failed to properly preserve the issues in his Motion for a New Trial. However, the State's position is that the district court's decisions with respect to the victim's medical records and the prosecutor's closing argument were correct and were neither an abuse of discretion nor obvious error.
A. The district court did not err when denying the Defendant access to the victim's privileged medical records when the victim had not waived the privilege.
[¶25] Confidential communications made by patients to their psychotherapists in the course of diagnosis or treatment are protected from compelled disclosure. Jaffee v. Redmond, 518 U.S. 1, 15-17 (1996); see also United States v. Stone, No. CR. 05-30049, 2005 WL 1845153, at *3 (D.S.D. July 29, 2005). Defendants do not have a right to pre-trial disclosure of such records or an in camera review. Newton v. Kemna, 354 F.3d 776, 785 (8th Cir. 2004); Begordis v. Fabian, Civ. No. 05-2090, 2007 WL 737781 at *14, (D.Minn. Mar. 8, 2007); United States v. Stone, No. CR. 05-30049, 2005 WL 1845153 at *3 (D.S.D. July 29, 2005); People v. Sisneros, 55 P.3d 797, 799 (Colo. 2002); c.f. Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (addressing a state statute that deemed the records privileged rather than a juvenile victim's statutory testimonial privilege). In United States v. Stone, the defendant filed a motion to compel disclosure of a juvenile victim's mental health records. Id. at 1. The district court noted that confidential communications are privileged as held in Jaffee v. Redmond. Id. Further, the court noted that making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest and privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. Id. The Court specifically contrasted the facts in the Stone case from Pennsylvania v. Ritchie, which the defendant had cited in support of his position to obtain the records. Id. at 2. In People v. Sisneros, the Colorado Supreme Court overruled the trial court's decision to allow an in camera review of a juvenile child's psychologist records who had disclosed being sexually assaulted by the defendant. People v. Sisneros, 55 P.3d 797 (Colo. 2002). In doing so, the court specifically stated that the purpose of psychologist-patient privilege is to assure a victim of a sexual assault that all records and treatments will be confidential unless otherwise directed by the victim. Id. To do otherwise could hamper a victim's treatment and ability to be open with a psychologist if a perpetrator was able to access the victim's treatment records. Id. The Colorado Supreme Court held that the defendant was not entitled to the psychologist records of the juvenile victim and that an in camera review was inappropriate. Id.
[¶26] In the instant case, the Defendant made a pre-trial motion to obtain J.M.'s psychologist records. (Appellant's App. at 15.) The Defendant failed to cite any law to support his position. (Appellant's App. at 15.) The State objected with supporting case law. (Appellant's App. at 16-18.) The district court noted that the Defendant failed to file a brief in support of his motion. (Appellant's App. at 19.) The district court, relying on Jaffee v. Redmond, Pennsylvania v. Ritchie, United States v. Stone, and Begordis v. Fabian, denied the Defendant's motion. (Appellant's App. at 19-20.) At the district court level and on appeal, the Defendant failed to cite one case to support his position that a juvenile victim's psychotherapy or psychologist records must be released or provided for an in camera review pursuant to pre-trial discovery. In fact, Defendant reiterates an argument relying on Pennsylvania v. Ritchie that was utilized by the defendant in United States v. Stone and found to be inapplicable to the facts at hand, a juvenile victim of sexual abuse and his/her privileged psychologist records. The Defendant does not allege that the district court committed obvious error by failing to order the release of the confidential records either pursuant to an in camera review or directly producing them to the Defendant. Rather, the Defendant alleges an abuse of discretion. As stated above, the State's position is that the standard of review for this issue is obvious error as the Defendant failed to raise this issue in his Motion for a New Trial at the district court level. Regardless of whether this Court analyzes this issue under an abuse of discretion or obvious error standard, the district court did not err. The district court relied on case law that was directly on point and provided that a victim's psychologist/psychotherapist records are confidential and not subject to compelled disclosure unless the victim waives his/her privilege. The victim in this case did not waive her privilege and therefore the Defendant was not entitled to obtain these records, nor have an in camera review of them. Further, it should be noted that the Defendant had the opportunity to cross-examine the witness and declined. The district court did not err and the Defendant's appeal with respect to this issue should be denied.
B. The district court did not err with respect to its ruling on the scope of the prosecutor's closing argument.
[¶27] The general rule is that the control of closing arguments is largely within the discretion of the trial court, and the Supreme Court will not reverse on the ground that a prosecutor exceeded the scope of permissible closing argument unless a clear abuse of the trial court's discretion is shown. State v. Ash, 526 N.W.2d 473, 481 (N.D. 1995). To establish that a trial court abused its discretion with regard to a prosecutor's argument, a defendant must establish the argument was improper and prejudicial. State v. Schimmel, 409 N.W.2d 335, 342 (N.D. 1987). To be prejudicial, absent a fundamental error, improper closing argument by the state's attorney 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. The Court has stated that a state's attorney's statements of fact to the jury which are not warranted by the evidence are improper and such statements are presumed to be prejudicial unless harmless in themselves. State v. Vantreece, 2007 ND 126, 736 N.W.2d.
[¶28] However, issues that are not previously raised in a district court motion for a new trial are not preserved and considered to be raised for the first time on appeal. State v. Kopp, 419 N.W.2d 169 (N.D. 1988). Therefore, this issue must be reviewed on an obvious error standard. Id. at 172-174. In order to establish obvious error, a defendant must show: 1) error; 2) that is plain; and 3) affect substantial rights. State v. Kruckenberg, 2008 ND 212, ¶ 27, 758 N.W.2d 427. In deciding if there was obvious error, the court must consider the probable effect of the prosecutor's improper comments on the jury's ability to judge the evidence fairly. Id. When doing so the court must consider: 1) the cumulative effect of such misconduct; 2) the strength of the properly admitted evidence of defendant's guilt; and 3) the curative actions taken by the trial court. Id. Further, inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding. Id. at ¶ 20.
[¶29] In State v. Ash, this Court addressed the scope of a prosecutor's closing argument and a demonstration used during that argument. State v. Ash, 526 N.W.2d 473, 481-483 (N.D. 1995). The prosecutor, with the assistance of law enforcement, reenacted an execution style killing. Id. The court found that the reenactment was no more than a vivid visual summarization of the state's view of a large body of evidence and found that it was not improper or obvious error. Id. In Gloede v. Texas, a prosecutor utilized an object, a bottle, in his closing argument that had not been previously entered into evidence. Gloede v. Texas, 328 S.W.3d 668 (Tex. Crim. App. 2010). The defendant objected based on the fact that the instrument had not been previously admitted into evidence. Id. at 675. The court agreed that the prosecutor was not merely summarizing the evidence as the type of object used, a plastic bottle, was a key disputed issue in the murder trial. Id. at 675-676. However, the court held that a summation of the evidence is not the only area of proper argument. Id. The court indicated that permissible jury arguments falls into one of four areas: 1) summation of the evidence; 2) reasonable deduction from the evidence; 3) an answer to the argument of opposing counsel; or 4) a plea for law enforcement. Id. In Gloede, because the prosecutor was simply answering the argument of opposing counsel, the argument was not improper. Id. Similarly, in State v. Kruckenberg, this Court addressed invited comments during closing arguments. State v. Kruckenberg, 2008 ND 212, ¶ 28, 758 N.W.2d 427. In Kruckenberg, the defendant opened the door to an argument regarding the identity of the person who sold to drugs to the confidential information. Id. at 29. The state then argued in its closing argument that there had been no evidence that any other person sold the drugs, other than the defendant. This Court indicated that a defendant cannot claim error for arguments that are invited. Id. The Court found that the state's comments simply responded substantially in order to right the scale. Id.
[¶30] In the case at hand, the issue is whether the State's use of the victim's school photographs depicting her ages at the time of the alleged sexual assaults in a power point presentation was an error. The photographs were never entered into evidence. Jury Trial Tr. p. 612. The Defendant objected at trial to the State utilizing the photographs in closing argument. Id. In Defendant's brief, Defendant alleges that the State countered that the photographs were demonstrative evidence. (Appellant Brief at 17.) (emphasis added). However, a plain reading of the transcript reveals that the State's response to the court was that the photographs were not evidence, they were being utilized for a demonstrative purpose, and that the State was not attempting to admit them into evidence. Jury Trial Tr. pp. 612-613. Further, the State also put on the record that it was not clear how the utilization of photographs merely depicting the age of J.M. during the time in which she alleged she was molested by the Defendant would be damaging to the Defendant considering the defense was simply that the Defendant did not have sex with J.M. Id.
[¶31] During the trial, there was ample testimony about the victim's date of birth, age, and age during certain grades in school. Jury Trial Tr. pp. 44, 49, 56-57, 60-61, 65-68, 287. The Defendant did not contest that testimony whatsoever. Id. at 336-553. It is important to look at the entire context of the trial and Defendant's continued statements about J.M. when viewing the State's closing argument. Beginning with the Defendant's opening statement, the defense made it clear that they would portray J.M. as a troubled teenage girl who made up stories about the Defendant molesting her as retribution for the Defendant divorcing her mother or to gain attention from her boyfriend D.S. Id. at 28-35, 336-553, 615-640. However, the testimony and evidence in the case is that J.M. was actually a child when the first sexual molestation took place in the sixth (6th) grade. Jury Trial Tr. pp. 44-68, 287. Not only that, but the testimony and evidence in the case is that J.M. did not wait until she was upset with the Defendant for divorcing her mother to disclose that the Defendant had been molesting her. The testimony and evidence in this case reveals that J.M. did not wait to disclose that the Defendant had been molesting her until she was a teenage girl dating D.S. and wanted attention. Rather, the testimony and evidence in the trial is that J.M. first disclosed being molested by her father when she was in the sixth (6th) grade. Jury Trial Tr. pp. 44-68, 287. Simply because the Defendant was able to manipulate that situation and characterize it as a "wrestling match", does not mean that J.M. did not previously disclose the molestations. In closing arguments, the State was merely reminding the jury that J.M. was in fact a child when she was molested by the Defendant. Jury Trial Tr. pp. 611-613. As permitted in State v. Ash, the State is permitted to give a visual illustration of the State's view of the evidence previously presented at trial, which did include the age of the victim when she alleged she was molested. Additionally, just as in Gloede and recognized in Kruckenberg, the State is entitled to respond in closing arguments to arguments made by the Defendant. The Defendant certainly opened the door to the State demonstrating for the jury how young J.M., this out of control diabolical teenage girl they were attempting to portray, really was when she first disclosed being molested by the Defendant. In fact, contrasted from Gloede and Ash, the content of the State's illustration in Gloede and Ash was not in contention. Whereas in Ash and Gloede the prosecutor visually demonstrated a reenactment of the crime and in Gloede did so with an object not previously admitted into evidence, in this case, the State merely utilized photographs of the victim at the ages she alleged to be molested for a visual aid. The photographs themselves were not inflammatory, prejudicial, or contentious. Further, while the Defendant complains of a discovery violation, this issue is not relevant as Rule 16 of the North Dakota Rules of Criminal Procedure applies to evidence being offered and the State's closing argument was not evidence. See N.D.R.Crim.P. 16. The Defendant states "the photographs of J.M. are evidence and were offered and presented as exhibits at trial." (Appellant's Brief at 26.) (emphasis added). This is simply untrue. There is absolutely nowhere on the record that indicates the State offered them as evidence or presented them at exhibits in trial. In fact the record indicates to the contrary. Jury Trial Tr. pp. 612-613
[¶32] In this case, the State's utilization of school photographs of J.M. at the ages she was molested by the Defendant as a visual illustration of her age was not error. Further, even if the court found it to be error, it did not prejudice the Defendant. First, the court provided the jurors an instruction that closing arguments are not evidence. (Appellant's App. at 33.) The State also reminded the jurors of that during its rebuttal closing argument. Jury Trial Tr. p. 640. The evidence in this case was overwhelming. To briefly summarize, the victim gave very detailed and descriptive testimony, the victim had previously disclosed being molested in the sixth (6th) grade, the Defendant was confronted in a pre-text call and made several incriminating statements and never denying the sexual assaults on J.M., the Defendant never denied the sexual assaults on J.M. when speaking to Ms. Middleton, and the Defendant sent incriminating text messages to J.M.. The photographs of J.M. were plain school photographs merely depicting her age. Jury Trial Tr. pp. 611-614. The Defendant's appeal with respect to this issue should be denied. The State's utilization of these photographs as a visual illustration of J.M.'s age was not improper and even if the Court found it to be improper it did not prejudice the Defendant. The jury was able to weigh the compelling evidence against the Defendant in this case during a weeklong trial and deliberated for parts of two days. Jury Trial Tr. pp. 649-660, 666-671. A brief depiction of the victim's age during closing arguments did not contribute to a guilty verdict or affect the Defendant's substantial rights. Again, the Defendant does not even allege the district court committed an obvious error, but rather an abuse of discretion. The State submits that neither took place in this case and requests the Defendant's appeal be denied.
[¶33] For the above-stated reasons, the State requests that this Court deny the Defendant's appeal and affirm the criminal judgments.
DATED this day of May, 2012.
|Meredith H. Larson (06206)|
|Assistant State's Attorney|
|124 South 4th Street|
|PO Box 5607|
|Grand Forks, ND 58206-5607|
|M. Jason McCarthy (05656)|
|Assistant State's Attorney|
|124 South 4th Street|
|PO Box 5607|
|Grand Forks, ND 58206-5607|