In the Supreme Court
State of North Dakota
| State of North Dakota, | ||||||
| Plaintiff/Appellee, | ||||||
| vs. | ||||||
| Vicente Erasno Chacano, | ||||||
| Defendant/Appellant. | ||||||
| Supreme Court Nos. 20120187 | ||||||
| District Court Nos. 09-201-CR-3610 | ||||||
BRIEF OF THE APPELLEE
Appeal from Jury Verdicts of Guilty and Criminal Judgment and Commitment dated March 30, 2012
East Central Judicial District
The Honorable Steven E. McCullough, Presiding
| Jackson J. Lofgren, ID #06310 | |
| Special Assistant Adams County State's Attorney | |
| 210 2nd Ave. NW | |
| Mandan, ND 58554 | |
| Phone: 701.667.3350 | |
| Fax: | 701.667.3323 |
| Brian D. Grosinger, ID #04500 | |
| Special Assistant Adams County State's Attorney | |
| 210 2nd Ave. NW | |
| Mandan, ND 58554 | |
| Phone: 701.667.3350 | |
| Fax: | 701.667.332 |
| Table of Contents | ||||||||||||
| Table of Authorities | _ii | |||||||||||
| Statement of the Issues | _1 | |||||||||||
| Statement of the Facts | _1 | |||||||||||
| Standard of Review | _8 | |||||||||||
| Argument | _9 | |||||||||||
| Whether the courtroom audio recording of Chacano's attack was admissible? | 9 | |||||||||||
| Whether the prosecution's closing argument was improper, prejudicial, and obvious error? | 12 | |||||||||||
| Whether there was sufficient evidence to convict Chacano of attempting to murder Assistant Attorney General Jonathan Byers and Adams County Sheriff Eugene Molbert? | 22 | |||||||||||
| Conclusion | 24 | |||||||||||
| Table of Authorities | ||||||
| North Dakota Supreme Court Cases: | ||||||
| City of Grand Forks v. Cameron, 435 N.W.2d 700 (ND 1989) | __8 | |||||
| Lemer v. Campbell, 1999 ND 223, 602 N.W.2d 686 | 10 | |||||
| State v. Ash, 526 N.W.2d 473 (N.D. 1995) | 12 | |||||
| State v. Barth, 2005 ND 134, 702 N.W.2d 1 | 22 | |||||
| State v. Beciraj, 2003 ND 171, 670 N.W.2d 855 | 21 | |||||
| State v. Buckley, 2010 ND 248, 792 N.W.2d 518 | 11 | |||||
| State v. Cain, 2011 ND 213, 806 N.W.2d 597 | 9. 10 | |||||
| State v. Clark, 2004 ND 85, 678 N.W.2d 765 | 8, 9, 12, 13, 16, 20, 21 | |||||
| State v. Ebach, 1999 ND 5, 589 N.W.2d 566 | 20 | |||||
| State v. Ellis, 2001 ND 84, 625 N.W.2d 544 | 23 | |||||
| State v. Evans, 1999 ND 70, 593 N.W.2d 336 | 17 | |||||
| State v. Grant, 2009 ND 210, 776 N.W.2d 209 | 8 | |||||
| State v. Janda, 397 N.W.2d 59, 65 (N.D. 1986) | 20 | |||||
| State v. Kinsella, 2011 ND 88, 796 N.W.2d 684 | ___9, 23 | |||||
| State v. Klose, 2003 ND 39, 657 N.W.2d 276 | ___10, 11 | |||||
| State v. Moran, 2006 ND 62, 711 N.W.2d 915 | 20 | |||||
| State v. Olander, 1998 ND 50, 575 N.W.2d 658 | 21 | |||||
| State v. Procive, 2009 ND 151, 771 N.W.2d 259 | 10, 12 | |||||
| State v. Randall, 2002 ND 16, 639 N.W.2d 439 | _10, 12 | |||||
| State v. Rivet, 2008 ND 145, 752 N.W.2d 611 | 9, 20, 21 | |||||
| State v. Schimmel, 409 N.W.2d 335 (N.D. 1987) | 20 | |||||
| State v. Schmeets, 2009 ND 163, 772 N.W.2d 623 | 8 | |||||
| State v. Schmidkunz, 2006 ND 192, 721 N.W.2d 387 | 20 | |||||
| State v. Skorick, 2002 ND 190, 653 N.W.2d 566 | ____20 | |||||
| United States Supreme Court Cases: | ||||||
| Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464 (1986) 13, 14 | ||||||
| United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993) 21, 22 | ||||||
| United States v. Young, 470 U.S. 1, 105 S. Ct. 1038 (1985) 8 | ||||||
| Eight Circuit Court of Appeals Cases: | ||||||
| United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996) 17 | ||||||
| United States v. Eldridge, 984 F.2d 943 (8th Cir. 1993) | 17 | |||||
| United States v. Littrell, 439 F.3d 875 (8th Cir. 2006) | 14, 15, 16, 17 | |||||
| North Dakota Statutes: | ||||||
| N.D.C.C. §12.1-04-01 3 | ||||||
| N.D.C.C. §12.1-16-01 3, 22 | ||||||
| North Dakota Rules: | ||||||
| N.D. R. Crim. P. 52 21, 22 | ||||||
| N.D. R. Evid. 401 11 | ||||||
| N.D. R. Evid. 402 11 | ||||||
| N.D R. Evid. 403 5, 10, 12 | ||||||
| Secondary Sources: | ||||||
| Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, (1994) 10 | ||||||
Statement of the Issues
I. Whether the courtroom audio recording of Chacano's attack was admissible?
II. Whether the prosecution's closing argument was improper, prejudicial, and obvious error?
III. Whether there was sufficient evidence to convict Chacano of attempting to murder Assistant Attorney General Jonathan Byers and Adams County Sheriff Eugene Molbert?
Statement of the Facts
Assistant North Dakota Attorney General, Jonathan Byers, filed criminal charges against Vicente Erasno Chacano (Chacano) in Adams County, North Dakota, in January of 2010. (Trial Transcript (Tr.) pg. 138 lines 14-19; Tr. pg. 150 lines 13-14). The prosecution of these charges resulted in a jury trial that was held at the Adams County Courthouse in Hettinger, North Dakota. (Tr. pg. 138 lines19-25; Tr. pg. 139 lines 1-5). The trial began on Tuesday, February 1, 2011, and ended on Friday, February 4, 2011. (Tr. pg. 138 lines 23-25; Tr. pg. 139 line 1).
Closing arguments were submitted on February 4, 2011, near the break for the lunch hour. (Tr. pg. 139 lines 11-14). At around 2:45 in the afternoon, the parties were advised that the jury had reached a verdict. (Tr. pg. 140 lines 1-5). The Honorable Zane Anderson, the District Judge presiding over the trial, had the parties return to the courtroom. (Tr. pg. 141 liens 20-21). Judge Anderson received the verdict form, reviewed it, and gave it to the Clerk of Court to read. (Tr. pg. 141 liens 20-25). Afterwards, the jury was poled and all twelve jurors confirmed the verdicts. (Tr. pg. 142 lines 1-8). Judge Anderson thanked the jurors for their service and released them. (Tr. pg. 141 lines 9-13).
As a sign of respect, Mr. Byers stood and turned towards the jurors as they began to exit the jury box. (Tr. pg. 142 lines 14-19). In response to a clicking noise, he turned back towards the front of the courtroom. (Tr. pg. 142 lines 18-21). Chacano was standing in front of Mr. Byers with a handgun pointed directly at him. (Tr. pg. 143 lines 1-14). Chacano was in a shooter's stance with both hands on the weapon. (Id.). He was pulling on the trigger which was making a clicking sound. (Id.). He then turned the gun from Mr. Byers towards the members of the jury and continued squeezing the trigger. (Tr. pg. lines 1-5). Because the gun was not firing, Chacano began pounding on the bottom of the clip and was attempting to pull the gun's slide back to insert a new round into the chamber. (Tr. pg. 144 lines 6-11).
Mr. Byers determined it was only a matter of time until Chacano got the gun to fire with the way Chacano was working the slide. (Tr. pg. 144 lines 14-18). In an incredible act of bravery, Mr. Byers ran at Chacano. (Tr. pg. 144 lines 19-24). Chacano stepped backwards, turned the gun back on Mr. Byers, and continued to pull the trigger. (Tr. pg. 145 lines 4-6).
Adams County Sheriff, Eugene Molbert, saw the gun pointed at Mr. Byers and rushed towards Chacano trying to knock the gun out of his hand. (Tr. pg. 224 lines 24-25; Tr. pg. 225 line 1). Sheriff Molbert missed Chacano's hand and ended up between Chacano and the jury box. Chacano pointed the gun at Sheriff Molbert and pulled the trigger as he continued working the slide. (Tr. pg. 145 lines 16-20). Sheriff Molbert was able to grab Chacano's arm as Mr. Byers tackled him to the floor. (Tr. pg. 146 lines 2-7). Mr. Byers and Sheriff Molbert landed on top of Chacano. (Tr. pg. 146 lines 10-13). Sheriff Molbert wrenched the gun from Chacano's hand, ejected the clip, and threw the gun across the floor to get it away from Chacano. (Tr. pg. 225 lines 13-18). Juror, Thomas Braaten, jumped over the rail of the jury box and grabbed the gun and clip off of the floor. (Tr. pg. 193 lines 6-19). The clip was fully loaded. (Tr. pg. 194 lines 1-3).
Chacano was handcuffed and searched by Sheriff Molbert and Adams County Deputy Travis Collins. (Tr. pg. 250 lines 6-11). Two more fully loaded clips were found on Chacano. (Id.; Tr. pg. 211 lines 7-15). Chacano apologized to his brother, Alejandro Chacano, who was in the court room. (Tr. pg. 251 lines 2-3). On the way back to the jail Chacano stated that he was sorry and that he had made a mistake. (Tr. pg. 251 lines 13-18).
Later that day, Chacano was interviewed by Special Agent Pat Helfrich of the North Dakota Bureau of Criminal Investigations. (Tr. pg. 212 lines 17-25). Chacano told Special Agent Helfrich that he took the gun and clips from his vehicle after being notified that the jury had reached a verdict. (Tr. pg. 213 lines 21-25; Tr. pg. 214 lines 1-4). He claimed that after hearing the verdict he blacked out and did not remember anything until people were on top of him. (Tr. pg. 214 lines 9-11). Chacano stated that he was sorry about taking the gun to court and that it was a mistake. (Tr. pg. 214 lines18-22).
Special Agent Helfrich took Chacano's gun and clips to the North Dakota State Crime Lab. (Tr. pg. 211 lines 7-15). The clips contained thirty-eight rounds of ammunition. (Tr. pg. 216 lines 1-5). The gun was test-fired by Forensic Supervisor, Lamont Jacobson, using three rounds of ammunition that were taken from Chacano. (Tr. pg. 256 lines 22-25; Tr. pg. 257 lines 1-3). The gun successfully fired all three rounds. (Id.)
Chacano was charged with fourteen counts of Attempted Murder in violation of N.D.C.C. §12.1-16-01 and N.D.C.C. §12.1-04-01 for attempting to kill Mr. Byers, Sheriff Molbert, and the twelve members of the jury. (Appendix (App.) pages 6-12). A preliminary hearing was held before the Honorable Steven E. McCullough, District Judge, on August 25, 2011. (Preliminary Hearing Transcript pg. 3 lines 1-8). During the preliminary hearing, many of the defense's questions revolved around whether some of the jurors may have made it out of the courtroom before Chacano produced his gun. (Preliminary Hearing Transcript pg. 16 lines 21-23)("Do you recall if any [of the jurors] had actually left the courtroom through those doors?"); (Preliminary Hearing Transcript pg. 17 lines 6-7)("Do you recall how many would have would have maybe been between the jury box and the door?"); (Preliminary Hearing Transcript pg. 32 lines 9-10)("When you did interview the jurorsdid you ask them if they were present in the courtroom when the gun was allegedly pulled out?"); (Preliminary Hearing Transcript pg. 38 lines 15-18)("And reading that statement, do you believe [the juror] is referring to the jury when she says half of them were out and then everyone started screaming?"). At the conclusion of the preliminary hearing, the defense argued there was not probable cause to show that Chacano attempted to kill all of the jurors because some of them may have made it out of the courtroom. (Preliminary Hearing Transcript pg. 46 lines 3-4)("It hasn't even been shown that they were actually still in the courtroom.") Probable cause was found for all fourteen counts. (Preliminary Hearing Transcript pg. 46 lines 19-25).
Trial was set to commence on February 7, 2012. The State intended to present an audio recording from the conclusion of Chacano's Adams County trial. (Tr. pg. 16 lines 1-8). The recording included Judge Anderson's release of the jury and yelling seconds later as Chacano produced his gun and advanced on Mr. Byers and the jurors. (Tr. pg. 16 lines 9-20; Tr. pg. 17 lines 1-6). The defense filed a Motion in Limine before trial based on N.D. R. Evid. 403 claiming that because the recording was an audio recording and not a visual recording the jury could not "weigh the intentions versus the reaction" of the people in courtroom and therefore Chacano would be biased. (Tr. pg 15 lines 8-22). The State argued that the recording should be admitted because it identified the members of the jury, showed Chacano's motive for wanting to kill Mr. Byers and the jurors, showed that none of the jurors had time to exit the courtroom, and depicted the seriousness of the situation. (Tr. pg. 16 lines 12-14; Tr. pg. 17 lines 16). In support of its argument, the State pointed out that the defense made it clear at the preliminary hearing they were going to attempt to show Chacano was not trying to kill the jurors. (Tr. pg. 16 lines 21-25). The audio recording showed that there was not time for the jurors to exit. (Id.).
Following an in camera review of the recording Judge McCullough denied Chacano's Motion in Limine. (Tr. pg. 116 lines 18-19; Tr. pg. 117 line 7). Judge McCullough found "under Rule 403 analysis there's great probative value in terms of intent of the Defendant here and we're really talking about probably the best evidence of what happened here is the recording of it." (Tr. pg. 117 lines 7-13). Judge McCullough advised the jury that Chacano's Adams County convictions were on appeal and therefore not final. (Tr. pg. 307 lines 8-14). In addition, a limiting instruction was included in the closing jury instructions that advised the jury that Chacano's Adams County convictions were pending on appeal and therefore not final. As such, they could only be used for the sole purpose of establishing Chacano's intent to commit attempted murder. The jury was never informed of the nature of Chacano's Adams County charges.
The State called ten witnesses at trial. (Tr. pgs. 3-4). They included Mr. Byers; Judge Anderson; Court Reporter, Gina Wariner; Adams County Clerk of Court, Ginger Dangerud; Juror, Thomas Braaten; Juror, Sheri Uecker, Special Agent, Pat Helfrich; Sheriff Molbert, who had retired by the time of trial; current Adams County Sheriff, Travis Collins; and North Dakota Crime Lab Supervisor, Lamont Jacobson. (Id.).
Chacano and his brother testified for the defense. (Id.). Chacano admitted that he had the gun in the courtroom but merely "forgot" he had it because of stress. (Tr. pg. 277 lines 14-18). He claimed that he had been sick the night before and went to his house to get medicine. (Tr. pg. 8 lines 8-9; Tr. pg. 280 lines 3-4). He claimed that while taking grain to his chickens he saw some sort of animal. (Tr. pg . 281 lines 2-5). He went to his shed and loaded his gun but the animal got away so he returned to his pickup. (Tr. pg. 281 lines 1-22). He claimed he left the gun in his pickup until after lunch the next day when he placed it in his waistband and forgot to take it out before going into the courtroom. (Tr. pg. 282 lines 1-2; Tr. pg. 286 1-15). He claimed that after the trial he remembered he had the gun but wanted to get rid of it before he could be searched by the police. (Tr. pg. 287 lines 15-25). He tried to exit the courtroom but felt like he had "electricity in [his] body" and a "pain right here in [his] head" (Tr. pg. 288 lines 13-16). He claimed the next thing he remembered was being on the floor. (Tr. pg. 289 lines 17-18).
In its closing arguments, the State went through the testimony of its witnesses. (Tr. pg. 318 line 12 through Tr. pg. 321 line 13). The State then went through the defendant's testimony and pointed out the implausibility. (Tr. pg. 321 lines 14-25; Tr. pg. 322 lines 1-6). The State concluded by asking the jurors to consider the version of what happened testified to by a district judge, assistant attorney general, sheriff, retired sheriff, court reporter, clerk of court and two jurors to be the truth and consider the version of event's offered by Chacano to be a lie. (Tr. pg. 322 lines 7-16). In its closing arguments, the defense argued that the State's case was built upon "a tragically false perception of what happened on February 4th of last year in Hettinger." (Tr. pg. 323 lines 5-6). The defense argued "[w]hen the Adams County people saw a gun they immediately jumped to a very frightening conclusion" and "[t]hey assumed the very worst, not because it was the truth but because once they saw the gun this conclusion was the only thing, easiest thing, they could believe and understand in that moment." (Tr. pg. 323 lines 19-24). The defense argued that Chacano "did not mean to bring a gun and did not inten[d] to shoot anyone as the evidence shows and the prosecution fails to show." (Tr. pg. 327 lines 1-4). The following instruction was included in the jury instructions:
An attorney is an officer of the Court. It is an attorney's duty to present evidence on behalf of his or her client, to make objections he or she considers proper, and to argue fully his or her client's cause. However, the argument or other remarks of an attorney, except admissions and stipulations noted in the course of the trial, must not be considered by you as evidence.
If counsel or I have made any comments or statements concerning the evidence which you find are not warranted by the evidence you should wholly disregard them and rely upon your own recollection or observation.
If counsel have made any statements as to the law which are not warranted by these instructions, you should wholly disregard those statements. (App. pg. 4).
After deliberation, a twelve person Cass County jury found Chacano guilty of attempting to murder Mr. Byers and Sheriff Molbert. (Tr. pgs. 348-353). He was acquitted of attempting to kill the jurors. (Id.).
Standard of Review
Evidentiary Rulings
"The standard of review of a district court's evidentiary rulings is abuse of discretion." State v. Schmeets, 2009 ND 163, ¶7, 772 N.W.2d 623. "A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." Id. "This Court recognizes district courts have broad discretion regarding evidentiary matters." State v. Grant, 2009 ND 210, ¶10, 776 N.W.2d 209. "The appellant bears the burden on appeal of proving error." Schmeets, 2009 ND at ¶7.
II. Prosecution's Closing Argument
"A trial court is vested with discretion to control the scope of closing argument, and we will not reverse on the ground the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown." State v. Clark, 2004 ND 85, ¶7, 678 N.W.2d 765. "Unless an error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial." Id. "To be prejudicial, 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. "'Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.'" City of Grand Forks v. Cameron, 435 N.W.2d 700, 703 (ND 1989)(quoting United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044, (1985)).
When defense counsel does not object to the argument review is limited to obvious error. Clark, 2004 ND at ¶5. "This Court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice." Id. at ¶6. "[A]n appellate court may notice a claimed error that was not brought to the attention of a trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights." Id. "In deciding if there is obvious error, we consider the probable effect of the prosecutor's improper comments on the jury's ability to judge the evidence fairly." State v. Rivet, 2008 ND 145, ¶5, 752 N.W.2d 611.
III. Sufficiency of the Evidence
The standard of review for challenges to sufficiency of the evidence is well established:
When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty. State v. Kinsella, 2011 ND 88, ¶7, 796 N.W.2d 684.
Argument
I. The Courtroom Audio recording of Chacano's Attack was Admissible.
"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.D. R. Evid. 401. "Relevant evidence is generally admissible." State v. Cain, 2011 ND 213, ¶31, 806 N.W.2d 597 (citing N.D. R. Evid. 402). Under N.D. R. Evid. 403 relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." "A district court has broad discretion in deciding whether evidence is relevant or not relevant." State v. Klose, 2003 ND 39, ¶28, 657 N.W.2d 276.
"'While N.D. R. Evid. 403 gives a district court the power to exclude relevant evidencethat power should be sparingly exercised.'" Cain, 2011 ND ¶31 (quoting State v. Klose, 2003 ND 39, ¶ 28, 657 N.W.2d 276). "'The power to exclude evidence under N.D. R. Evid. 403 should be sparingly exercised,' and '[p]rejudice due to the probative force of evidence is not unfair prejudice.'" State v. Procive, 2009 ND 151, ¶9, 771 N.W.2d 259 (quoting Lemer v. Campbell, 1999 ND 223, ¶18, 602 N.W.2d 686). "In determining whether to exclude evidence under Rule 403, courts should 'give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.'" State v. Randall, 2002 ND 16, ¶15, 639 N.W.2d 439 (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence ¶403[03], pp. 403-49, 403-51 (1994)).
Here, Judge McCullough performed an in camera review of the audio recording from the conclusion of Chacano's Adams County trial and ruled that it was admissible. (Tr. pg. 117 lines 7-13). Judge McCullough found "under Rule 403 analysis there's great probative value in terms of intent of the Defendant here and we're really talking about probably the best evidence of what happened here is the recording of it." (Tr. pg. 117 lines 7-13). His ruling was not an abuse of discretion. Giving the audio recording its maximum probative force, it provided an accurate truthful depiction of what occurred in Adams County without any of the distorting effects of faded recollections or hindsight. Numerous witnesses were called to testify about what occurred in the Adams County Courtroom after Chacano's trial. The audio recording aided their testimony. Further, it provided proof that Chacano had a motive to kill and that, contrary to his defense, the jurors did not have time to exit the courtroom before he produced his gun. Generally, there is no way to tell if a particular piece of evidence assisted the jury in its determination of the facts. However, in this case it can be shown that the jury valued the audio recording's evidentiary value because they sent a note asking to hear it again during their deliberation. (Tr. pg. 331 lines 9-15). The audio recording was relevant, probative, and admissible. N.D. R. Evid. 401; N.D. R. Evid. 402.
Chacano argued that because the recording was an audio recording and not a visual recording the jury could not "weigh the intentions versus the reaction" of the people in the courtroom and therefore Chacano would be biased. (Tr. pg 15 lines 8-22). However, it is the job of the jury to determine the weight and credibility of the evidence. State v. Buckley, 2010 ND 248, ¶12, 792 N.W.2d 518 (holding "The jury's role was to determine the weight and credibility of the evidence"). As such, it was within the province of the jury to weigh the value of the audio recording in connection with the testimony of the witnesses.
In his brief, Chacano additionally argues that the "alarmed state of the person heard on the tape could only inflame the passions of the jury" (Appellant's Brief pg. 12 ¶25). But, this Court has held that evidence is admissible even if it "could have the additional effect of exciting the emotions of the jury." State v. Klose, 2003 ND 39, ¶ 29, 657 N.W.2d 276. "[E]ven gruesome pictures are admissible for the purpose of offering proper proof." Id. In determining whether evidence should be admitted under N.D. R. Evid. 403, courts view the evidence with its minimum reasonable prejudicial value. State v. Randall, 2002 ND 16, ¶15, 639 N.W.2d 439. Any prejudice caused by the probative force of the evidence is not unfair prejudice. State v. Procive, 2009 ND 151, ¶9, 771 N.W.2d 259. Only unfair prejudice is barred by N.D. R. Evid. 403. Considering the audio recording in conjunction with the testimony of the State's witnesses, there was little danger of Chacano being unfairly prejudiced. It was therefore not an abuse of discretion for Judge McCullough to rule that the audio recording was admissible and Chacano's conviction should be affirmed.
II. The Prosecution's Closing Argument was not Improper, Prejudicial, and Obvious Error.
The Prosecution's Closing Arguments was not Improper.
"A trial court is vested with discretion to control the scope of closing argument, and we will not reverse on the ground the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown." State v. Clark, 2004 ND 85, ¶7, 678 N.W.2d 765. "[A] defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial." Id. "To be prejudicial, 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. "Long agothis court declared counsel's duty in closing argument: 'It is his duty to use all the convincing power of which he has command, and the weapons of wit and satire and of ridicule are all available to him so long as he keeps within the record.'" State v. Ash, 526 N.W.2d 473, 482 (N.D. 1995).
In State v. Clark, the defendant, Clark, testified at trial but his version of events conflicted with the testimony of the prosecution's witness. 2004 ND at ¶3-4. During closing arguments, the prosecutor stated numerous times that Clark's testimony did not make sense. Id. at ¶8. Clark was convicted but appealed claiming the prosecutor's statements constituted an improper incorporation of personal beliefs and vouching for the credibility of witnesses. Id. This Court disagreed concluding "the prosecutor's statements in this case were permissible comments about the nature of the evidence and his opinion that Clark's version did not make sense." Id. at ¶8. Because "[t]here were conflicting versions about the events" this Court found "the prosecutor's statements about Clark's version not making sense and there being no evidence of excuse, taken in the context of the entire argument, reflect[ed] permissible inferences about Clark's version of the incident." Id. at ¶11. As such "[t]he prosecutor's comments were not beyond the bounds of any fair and reasonable criticism of the evidence." Id. In addition, this Court noted that "the trial court instructed the jury that 'arguments of counsel are not evidence,' and '[i]f counsel have made statements or expressed opinions to you not supported by the evidence, you should disregard those statements and opinions and be guided by the evidence in this case.'" Id. Therefore, "any possible prejudice was minimized by the court's cautionary instruction andany isolated statements that may suggest the prosecutor incorporated his personal beliefs into closing argument or vouched for the credibility of witnesses are not obvious error." Id.
Similar reasoning was employed by the United States Supreme Court in Darden v. Wainwright. 477 U.S. 168, 106 S. Ct. 2464 (1986). In Darden, the prosecution made a number of condemnable statements in closing arguments such as insinuating the death penalty was the only way to prevent the defendant from committing a similar crime, the Division of Corrections was partially responsible for the defendant's crimes, and using the word "animal" in its summation. Id. at 179. However, the Supreme Court found "[t]he prosecutor's argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent." Id. at 181-182. Because "[t]he trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence" coupled with the fact "[t]he weight of the evidence against petitioner was heavy" due to "'overwhelming eyewitness and circumstantial evidence'" there was "...reducedlikelihood that the jury's decision was influenced by argument." Id. As such, the Supreme Court "agree[d] with the reasoning of every court to consider [the prosecution's] comments that they did not deprive [the] petitioner of a fair trial." Id.
Other Courts have reached analogous results. In United States v. Littrell, the Eighth Circuit Court of Appeals rejected a claim by the defendant, Littrell, that "the prosecutor made improper remarks vouching for the credibility of witnesses" 439 F.3d 875, 881-82 (8th Cir. 2006). While summarizing for the jury during closing arguments the prosecutor made several statements regarding witnesses. The prosecutor stated that the investigator was "'a meticulous investigator,' that '[h]e was just telling the truth as he knew it,' and that 'there [wa]s a reason to believe that his testimony was reasonable.'" Id. at 880. "The prosecutor also made other comments regarding other witnesses and their truthfulness, stating, 'you knew [the] Investigator was telling the truth,' and '[i]t was clear he was telling the truth.'" "The prosecutor also made statements about the truthfulness of Littrell's testimony on certain incidents." Id.
The Court of Appeals found "when taken in the proper context, the prosecutor's statements were neither improper nor unduly prejudicial." Id. at 882. "A careful review of the transcript of the closing arguments convince[d] [the Court of Appeals] the comments were made as part of the prosecutor's review of the evidence before the jury." Id. "[C]omments about how the jury could know the other investigator was telling the truth came while the prosecutor was explaining how the evidence supported that investigator's testimony." Id. The prosecutor was not barred from arguing "the fair inference from the facts presented [was] that a witness had no reason to lie." Id. The Court of Appeals recognized "prosecutors, as well as defense lawyers, may and must argue as to the credibility of witnesses, and in a case of this kind the issue of credibility is critical." Id. at 882-83. And, "[t]he very nature of closing argument requires a detailed analysis of the testimony of each witness and the inferences to be drawn from the evidence." Id. "As to the prosecutor's comments that Littrell was not telling the truth" the Court of Appeals likewise found "these comments again were not improper." Id. at 883. "However, even assuming the comments were in some way improper, Littrell would not [have been] entitled to the relief..." because he could not show prejudice. Id. at 883. "[A]ny statements regarding Littrell's truthfulness were not unfairly prejudicial, for the government presented overwhelming evidence of Littrell's guilt." Id. The Court of Appeals further noted, "[t]he district court also instructed the jury that closing arguments are just that, argument, and are not evidence of anything." Id. Littrell's conviction was therefore affirmed.
Here, a review of the entirety of the State's closing argument reveals that it was a recollection of the testimony provided by its witnesses and the inferences that reasonably flowed from the evidence. (Tr. pgs. 317-321). The prosecutor recalled the testimony of Mr. Byers, Judge Anderson, Sheriff Collins, the two jurors that testified, Clerk of Court, Ginger Dangerud, Court Reporter Gina Wariner, and Forensic Supervisor, Lamont Jacobson. (Id). The prosecutor only briefly commented on Chacano's defense "that through absent mindedness" "[h]e takes a gun to court, then he panics when he realizesthe gun is in his possession in court and then forgets the important part from the perspective of why we're here." (Tr. pg. 321 lines 16-19). When viewed in context, statements by the prosecutor about Chacano's lack of truthfulness were an appeal to the jury to find the State's witnesses believable and Chacano unbelievable based upon the evidence. (Tr. pg. 322 lines 7-16). The message conveyed by the prosecutor's statements was substantively no different than the statements made by the prosecutor in State v. Clark. 2004 ND 85, 678 N.W.2d 765. Like the defendant in Clark, Chacano's version of events drastically differed from the version offered by the State's ten witnesses. It was also inconsistent with the physical evidence because in addition to the gun Chacano was found with two additional clips and 38 rounds of ammunition. As such, the prosecutor's closing argument was a fair criticism of Chacano's testimony based upon the evidence and therefore not improper.
The prosecutor's criticism of Chacano's testimony during closing arguments is comparable to the argument made in United States v. Littrell. 439 F.3d 875 (8th Cir. 2006). In Littrell, the prosecutor questioned the "truthfulness of Littrell's testimony on certain incidents." Id. at 880. The Eighth Circuit Court of Appeals found that the argument was not improper or prejudicial. The Court of Appeals recognized "prosecutors, as well as defense lawyers, may and must argue as to the credibility of witnesses, and in a case of this kind the issue of credibility is critical." Id. at 882-883. "The very nature of closing argument requires a detailed analysis of the testimony of each witness and the inferences to be drawn from the evidence." Id. Just as in Littrell, the criticism of the truthfulness of Chacano's version of events was based upon its inconsistency with the evidence. The prosecutor's closing argument was therefore not improper.
B) Chacano was not prejudiced.
Even if the prosecution's closing argument was somehow improper, Chacano cannot establish that he was prejudiced. In reviewing whether a prosecutor's remarks prejudicially affected the defendant's substantial rights a reviewing court considers "'(1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of [Defendants'] guilt; and (3) the curative actions taken by the trial court."" State v. Evans, 1999 ND 70, 593 N.W.2d 336 (quoting United States v. Eldridge, 984 F.2d 943, 946-47 (8th Cir. 1993)." United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996). Here, the prosecution's closing arguments had little effect. Chacano was acquitted of twelve of fourteen counts of attempted murder. His defense was therefore largely successful and he cannot establish prejudice.
On the two counts that resulted in conviction, the weight against Chacano was heavy due to overwhelming eyewitness testimony. Numerous witnesses testified that upon Judge Anderson's release of the jury Chacano ran over to Mr. Byers's counsel table, pointed the gun at him, and repeatedly pulled on the trigger. (Mr. Byers: "Mr. Chacano had--was standing in front of my counsel table with a handgun.") (Tr. pg. 142 lines 20-21). (Mr. Byers: "He was pointing at me pulling the trigger. It was going 'click,' 'click,' 'click.'") (Tr. pg. 143 lines 5-6). (Mr. Byers: "He just kind of had himself in a shooter's stance. If I recall right he had both hands on the weapon. And at first he was just pulling the trigger'") (Tr. pg. 143 lines 9-11). (Judge Anderson: "I noticed the Defendant walk quickly across the front of the courtroom, I noticed that he had a--what looked to be a big gun, silver in color, I believe, in his hand, and he approached Jonathan Byers who was the prosecutor where he was sitting at the table.") (Tr. pg. 163 lines 6-11). (Judge Anderson: "When he went up to Mr. Byers he put his hand on his shoulder, he put his--the gun to his chest and then I heard it click three times.) (Tr. pg. 163 lines 14-16). (Court Reporter Gina Wariner: "I remember a lady screamin 'No, Vicente." And then I looked up and he was coming up around the table and he pointed a gun at Jonathan Byers and was clicking it but it wasn't working.) (Tr. pg. 177 lines 3-6). (Clerk of Court Ginger Dangerud: "The gun was just coming up. I thought he was shooting. Directly behind the prosecutor's table was the victim and her mother.") (Tr. pg. 185 lines 3-5) (Juror Thomas Braaten: "I saw [Chacano] come up with--pulled the gun on Mr. Byers. I could hear the hammer in the gun clicking. I heard it click three times.") (Tr. pg. 191 liens 16-19). (Question: "Where is the gun pointed when you see that? Juror Sheri Uecker: "At Jon Byers. Jonathan Byers."; Question: "And where was Mr. Byers standing at that time?" Juror Sheri Uecker: He was at his table at that time."; Question: "And you can year the clicks of the trigger." Juror Sheri Uecker: "Yes.") (Tr. pg. 199 lines 5-10) (Sheriff Molbert: "I looked up towards the bench area and I seen Vicente Chacano with a gun trying to work the action of it. And it was pointed towards the area of Jonathan Byers who was the prosecutor at that time.") (Tr. pg. 224 lines 16-20). (Sheriff Molbert: "I could hear clicking.") (Tr. pg. 224 line 22).
Numerous eyewitnesses testified that Chacano turned the gun on Sheriff Molbert when he tried to intervene. (Question: "Did Mr. Chacano point the gun at Sheriff Molbert." Mr. Byers: "Yes."; Question: "What did he do with the gun?" Mr. Byers: "Pulled the trigger." Question: "Did you continue to hear the clicks as he pulled on that trigger?" Mr. Byers: "Yes.") (Tr. pg. pg 145 lines 16-23). (Sheriff Molbert: "After I had went by him and was in front of the jury box between Chacano and the jury box it was pointed--I seen it pointed directly at me.") (Sheriff Molbert: "I seen Chacano working that action many times.") (Tr. pg. 227 line 11). (Sheriff Collins: "I looked back into the courtroom and at that time I observed Mr. Chacano in the middle are of the courtroom in from of the tables" "He had a firearm and was pointin' it toward Sheriff Molbert and the jury at that time.") (Tr. pg. 248 lines 20-25). There was overwhelming evidence against Chacano on the two counts that resulted in conviction. Because of this he cannot show that he was prejudiced by the prosecution's closing argument.
Lastly, the jury instructions minimized any danger of prejudice. The following jury instruction was included in Judge McCullough's instructions to the jury:
An attorney is an officer of the Court. It is an attorney's duty to present evidence on behalf of his or her client, to make objections he or she considers proper, and to argue fully his or her client's cause. However, the argument or other remarks of an attorney, except admissions and stipulations noted in the course of the trial, must not be considered by you as evidence.
If counsel or I have made any comments or statements concerning the evidence which you find are not warranted by the evidence you should wholly disregard them and rely upon your own recollection or observation.
If counsel have made any statements as to the law which are not warranted by these instruction, you should wholly disregard those statements. (App. pg. 4).
This instruction is based on North Dakota Pattern Jury Instruction K-5.50 and is used in almost every criminal trial. This Court has long held that this instruction minimizes the risk of any possible prejudice caused by statements made during closing arguments. See State v. Rivet, 2008 ND 145, ¶5, 752 N.W.2d 611 (holding "[A]ny possible prejudice was minimized by the instructions and any isolated statements suggesting the prosecutor incorporated his personal beliefs into closing argument or vouched for the credibility of witnesses was not obvious error."); State v. Schmidkunz, 2006 ND 192, ¶11, 721 N.W.2d 387; State v. Moran, 2006 ND 62 ¶27, 711 N.W.2d 915 (holding "[T]his Court has held the trial court's instructionthat arguments by counsel are not evidence have minimized any prejudice suffered by the defendant."); State v. Clark, 2004 ND 85, ¶11, 678 N.W.2d 765, (stating "[W]e conclude any possible prejudice was minimized by the court's cautionary instruction"); State v. Skorick, 2002 ND 190, ¶17, 653 N.W.2d 698 (holding "The prejudice, if any, that resulted from the prosecutor's rebuttal closing argument was minimized by the jury instructions."); State v. Ebach, 1999 ND 5, ¶8, 589 N.W.2d 566 (holding "Thus, any prejudice resulting from the prosecutor's comment was minimized.") State v. Schimmel, 409 N.W.2d 335, 343 (N.D. 1987) (finding "The prejudice, if any, that resulted from the prosecutor's closing argument was minimized by this cautionary instruction by the trial court."). "Generally, a jury is presumed to have followed a trial court's admonition." State v. Janda, 397 N.W.2d 59, 65 (N.D. 1986). Here, the jury was instructed that statements by counsel must not be regarded as evidence and should be wholly disregarded if not supported by the evidence. Therefore, any risk to Chacano was minimized and he cannot show that he was prejudiced.
The Prosecution's Closing Argument was not Obvious Error.
When the defendant does not object to the prosecutor's closing argument review is limited to obvious error. State v. Clark, 2004 ND 85, ¶5, 678 N.W.2d 765; N.D. R. Crim. P. 52(b). "This Court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice." Id. ¶6. "In analyzing obvious error, our decisions require examination of the entire record and the probable effect of the alleged error in light of all the evidence." State v. Olander, 1998 ND 50, ¶12, 575 N.W.2d 658. "In deciding if there is obvious error, we consider the probable effect of the prosecutor's improper comments on the jury's ability to judge the evidence fairly." State v. Rivet, 2008 ND 145, ¶5, 752 N.W.2d 611. "We have rarely noticed obvious error under N.D. R. Crim. P. 52(b)." Olander, 1998 ND at ¶12.
This Court "..applie[s] the plain error framework from federal law for analyzing claims of obvious error under North Dakota law." Id. at ¶6. "Our rule differs from the federal rule only in the substitution of the word 'obvious' for 'plain.'" State v. Olander, 1998 ND 50, ¶13, 575 N.W.2d 658. "[B]efore an appellate court may notice a claimed error that was not brought to the attention of a trial court, the appellant must prove '(1) an error, (2) that is plain, and (3) affects substantial rights.'" State v. Beciraj, 2003 ND 171, ¶8, 670 N.W.2d 855 (quoting Olander, 1998 ND at ¶14). "'[P]lain' error" is "'clear' or 'obvious' error that an appellate court should not correctunless there is a clear deviation from an applicable legal rule under current law." Olander, 1998 ND at ¶14 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770 (1993)). "..[A] clear or obvious deviation from an applicable legal rule also must affect 'substantial rights,' that is, it must have been prejudicial, or affected the outcome of the proceeding." Id. at ¶15 (citing Olano, 507 U.S. at 734-35). The burden is on the accused to show the error was prejudicial. Id.
Here, Chacano did not object to the prosecution's closing argument. Therefore, this Court's review is limited to obvious error. To prove obvious error he must show that his substantial rights were affected. In other words, Chacano must demonstrate that the State's closing arguments prejudiced him or affected the outcome of the proceeding. Examining the entire record shows that there was little effect of the alleged error upon the jury and its ability to judge the evidence fairly. Chacano was acquitted of twelve of the fourteen counts of attempted murder the State was attempting to prove. There was overwhelming evidence on the two counts of which he was convicted and the jury was instructed that the arguments of counsel were not evidence. Because Chacano cannot show that he was prejudiced or that the outcome of the proceeding was affected he cannot prove obvious error.
III. There was Sufficient Evidence to Convict Chacano of Attempting to Murder Assistant Attorney General Jonathan Byers and Adams County Sheriff Eugene Molbert.
"Criminal attempt requires an actor to intentionally engage in conduct constituting a substantial step toward commission of the crime." State v. Barth, 2005 ND 134, ¶32, 702 N.W.2d 1 (citing N.D.C.C. §12.10601). "A 'substantial step' is "any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime." Id. "The offense of attempted murder requires the defendant to take a substantial step toward committing the crime of attempting to intentionally or knowingly cause the death of another and does not require the victim to suffer bodily injury." State v. Ellis, 2001 ND 84, ¶15, 625 N.W.2d 544. "A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty." State v. Kinsella, 2011 ND 88, ¶7, 796 N.W.2d 684.
Here, there was sufficient competent evidence for the jury to draw a reasonable inference that Chacano was guilty and his conviction was warranted. Chacano had a motive to kill Mr. Byers for filing criminal charges against him. (Tr. pg. 159 lines 2-13). Numerous witnesses testified that upon Judge Anderson's release of the jury Chacano ran over to Mr. Byers's counsel table, pointed the gun at him, and repeatedly pulled on the trigger. Witnesses testified Chacano appeared confused as to why the gun was not firing and he began beating on the bottom of the clip and working the slide on the gun in an attempt to get it to fire. (Tr. pg. 144 lines 6-18) (Tr. pg. 227 line 11). Two more fully loaded clips were found on Chacano. (Tr. pg. 250 lines 6-11; Tr. pg. 211 lines 7-15). On the way back to the jail Chacano stated that he was sorry and that he had made a mistake. (Tr. pg. 251 lines 13-18). Forensic Supervisor, Lamont Jacobson, testified that he used three rounds of ammunition that were taken from Chacano and the gun successfully fired all three rounds. (Tr. pg. 256 lines 22-25; Tr. pg. 257 lines 1-3). This evidence was sufficient for the jury to reasonably infer that Chacano was intentionally making a substantial step towards causing the death of Mr. Byers.
Likewise, Chacano had a motive to kill Sheriff Molbert. Sheriff Molbert was attempting to subdue Chacano. (Tr. pg. 224 lines 24-25; Tr. pg. 225 line 1). Multiple eyewitnesses testified that Chacano turned the gun on Sheriff Molbert and pulled the trigger. This evidence was sufficient for the jury to reasonably infer that through his actions Chacano was intentionally making a substantial step towards causing the death of Sheriff Molbert.
Conclusion
The audio recording that truly and accurately depicted what occurred during Chacano's attack was relevant, probative, and not unfairly prejudicial. He therefore cannot prove Judge McCullough's ruling that the audio recording was admissible constituted an abuse of discretion. The State's closing argument was based upon contradictions between Chacano's testimony and the testimony the State's witnesses and evidence. The argument was therefore not improper. However, even if the argument was improper, Chacano cannot show that he was prejudiced or that there was obvious error. Finally, there was sufficient competent evidence for the jury to convict Chacano of attempting to murder Mr. Byers and Sheriff Molbert. His convictions should therefore be affirmed.
| Dated the 30th day of August, 2012. |
| Jackson J. Lofgren, ID #06310 |
| Special Assistant Adams County State's Attorney |
| 210 2nd Ave. NW |
| Mandan, ND 58554 |
| Phone: 701.667.3350/Fax:701.667.3323 |
| Dated the 30th day of August, 2012. |
| Brian D. Grosinger, ID #04500 |
| Special Assistant Adams County State's Attorney |
| 210 2nd Ave. NW |
| Mandan, ND 58554 |
| Phone: 701.667.3350/Fax:701.667.3323 |