IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | |||||||
| Plaintiff/Appellee, | Supreme Court No. 20120377 | ||||||
| vs. | |||||||
| Cynthia F. Kusy, | Grand Forks Co. No. 18-2011-CR-02057 | ||||||
| Defendant/Appellant. | |||||||
APPEAL FROM THE CRIMINAL JUDGMENT ENTERED OCTOBER 4, 2012 BY THE DISTRICT COURT FOR THE NORTHEAST CENTRAL JUDICIAL DISTRICT THE HONORABLE DEBBIE KLEVEN PRESIDING.
BRIEF OF THE APPELLANT
| David Ogren Grand Forks Public Defender Office |
| 405 Bruce Avenue, Suite 101 |
| Grand Forks, ND 58201 |
| (701) 795-3910 |
| ND ID #05336 |
| Attorney for Defendant/Appellant Cynthia F. Kusy |
| TABLE OF CONTENTS | |
| TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i | |
| TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii | |
| STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . iii | |
| STATEMENTOF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶¶1-4 | |
| Nature of the Case and Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶¶1-2 | |
| Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶¶3-4 | |
| JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶¶5-6 | |
| STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ¶¶7-9 | |
| LAW AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶¶10-12 | |
| I. The Assistant State's Attorney's Office engaged in prosecutorial | |
| Misconduct when he improperly said that E. B. was abducted | |
| from his mother's home which denied Ms. Kusy her right | |
| to a fair trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶¶10-12 | |
| CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶13 | |
| TABLE OF AUTHORITIES |
| NORTH DAKOTA CONSTITUTION |
| N.D. Const. art. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶6 |
| N.D.C.C. § 27-05-06. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ¶6 |
| N.D.C.C. §29-28-03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶5 |
| N.D.C.C. § 29-28-06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ¶¶ 5, 6 |
| NORTH DAKOTA CASES |
| State v. Duncan, 2011 ND 85, 796 N.W.2d 672. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ¶9 |
| State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427. . . . . . . . . . . . . . . . . . . . . . . . ¶¶7, 8 |
| State v. Lewis, 291 N.W.2d 735 (N.D. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ¶5 |
| State v. Paulson, 477 N.W.2d 208 (N.D. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶8 |
| State v. Vondal, 2011 ND 186, 803 N.W.2d 578. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶8 |
| OTHER STATE'S CASESGriffin v. State, 352 So.2d 847 (Ala.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ¶14 |
| NORTH DAKOTA RULES |
| N.D.R.App.P. 4(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .¶6 |
STATEMENT OF ISSUE PRESENTED FOR REVIEW
II. DID THE ASSISTANT STATE'S ATTORNEY'S OFFICE ENGAGE IN PROSECUTORIAL MISCONDUCT WHEN HE IMPROPERLY SAID THAT E. B. WAS ABDUCTED FROM HIS MOTHER'S HOME WHICH DENIED MS. KUSY HER RIGHT TO A FAIR TRIAL?
NATURE OF THE CASE AND PROCEDURAL HISTORY
¶1 This appeal is taken from a Criminal Judgment entered by the Honorable Debbie Kleven, Judge of the District Court for the Northeast Central Judicial District on October 4, 2012, convicting the Defendant and Appellant Cynthia Kusy of two counts of sexual assault and one count of luring a minor by computer. (Docket 91-93; App. at 8-15). Notice of Appeal was filed on October 11, 2012. (Docket 94; App. at 16).
¶2 Appellant, Cynthia Kusy, timely filed a Notice of Appeal on October 11, 2012. (Docket 94; App. at 16).
STATEMENT OF FACTS
¶3 On October 6, 2011 the State charged Ms. Kusy with two counts of sexual assault and one count of luring a minor by a computer. The case was set for a jury trial which began on October 26, 2012. During the State's opening argument, Mr. Grant, a third year law student stated, "You're here because April of last year, Cynthia F. Kusy, 46 years old, came to Grand Forks from her home in Tennessee and engaged in multiple sexual acts with 16-year-old E.B. Investigation of this case began April 25th, 2011, when the defendant abducted E. from his mother's home." (Transcript of Jury Trial June 26, 2012, [hereinafter "Transcript"] page 11; App. 17). The defense objected arguing that the State never filed abduction or kidnapping charge. (Transcript, page 11-12; App. 17-18).
¶4 At the close of the trial, the jury found Ms. Kusy guilty. (Docket 80-83). In this manner, Ms. Kusy brings this appeal before this Court.
JURISDICTIONAL STATEMENT
¶5 Appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law. Pursuant to constitutional provisions, the North Dakota legislature enacted §§ 29-28-03 and 29-28-06 which provide as follows:
§ 29-28-03. "Appeals as a matter of right. An appeal to the supreme court provided for in this chapter may be taken as a matter of right."
§ 29-28-06. "From what defendant may appeal. An appeal may be taken by the defendant from:
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for new trial; or
5. An order made after judgment affecting any substantial right of the party."
State v. Lewis, 291 N.W.2d 735 (N.D. 1980).
¶6 The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Ms. Kusy's appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06(1).
STANDARD OF REVIEW
¶7 This Court has held:
prosecutorial misconduct may 'so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.' However, we have also recognized that not every assertion of prosecutorial misconduct, followed by an argument the conduct denied the defendant his constitutional right to a fair trial, automatically rises to an error of constitutional dimension. 'To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial.' To determine whether a prosecutor's misconduct rises to a level of a due process violation, we decide if the conduct, in the context of the entire trial, was sufficiently prejudicial to violate a defendant's due process rights.
State v. Kruckenberg, 2008 ND 212, ¶ 20, 758 N.W.2d 427 (internal quotations omitted).
¶8 When there is a claim of prosecutorial misconduct, we determine whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. State v. Vondal, 2011 ND 186, ¶ 12, 803 N.W.2d 578. If the prosecutor's comment is improper, we consider the probable effect it would have on the jury's ability to fairly judge the evidence. Kruckenberg, at ¶ 20. " 'Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.' " State v. Paulson, 477 N.W.2d 208, 210 (N.D.1991).
¶9 A de novo standard of review applies to whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant's due process right to a fair trial. State v. Duncan, 2011 ND 85, ¶ 10, 796 N.W.2d 672.
LAW AND ARGUMENT
III. The Assistant State's Attorney's Office engaged in prosecutorial misconduct when he improperly said that E. B. was abducted from his mother's home which denied Ms. Kusy her right to a fair trial.
¶10 The dispositive issue on appeal is whether the State, during the opening statement, committed reversible error by telling the jury that E. had been abducted by Ms. Kusy. The opening statement sets the stage for the trial to come. The prosecutor's comment that Ms. Kusy abducted E. was made within minutes of the State's opening statement. It was one of the very first things the jury was told by the State.
¶11 This statement is not only untrue; it is highly prejudicial to Ms. Kusy. The State consciously misadvised the jury. The State, in an attempt to appeal to the jurors' emotions, deceptively told the jury that Ms. Kusy's had committed kidnapping. It was the first time this allegation had been made in the case. Usually prosecutorial comments alone would not justify a reversal. However, in this case, the prosecutions comments rose to such a level that it tautened and poisoned the minds of the jurors against Ms. Kusy. Right from the beginning, the State made sure Ms. Kusy was at an unfair level, portraying her falsely as a kidnapper.
¶12 The State's misconduct rises to such a level that Ms. Kusy's due process right to a fair trial was clearly violated.
CONCLUSION
¶13 Based on the foregoing, given the conscious and deliberate manner of the misconduct by the State, Ms. Kusy's conviction should be reversed. Ms. Kusy was denied her rights to Due Process and a Fair and Impartial Trial. Although one defect on its own may not support a reversal, the severity of the State's misconduct, especially after being clearly informed by the Court which instructions would be given to the jury, sufficiently prejudiced Ms. Kusy's due process rights. Ms. Kusy respectfully requests a reversal of the judgment and that the matter be remanded for a new trial.
| Dated this 19th day of December, 2012. | |||||
| David Ogren | |||||
| Grand Forks Public Defender Office | |||||
| 405 Bruce Avenue, Suite 101 | |||||
| Grand Forks, ND 58201 | |||||
| (701) 795-3910 | |||||
| Attorney ID No. 05336 | |||||
| Attorney for Appellant. | |||||