In The Supreme Court
of the State of North Dakota
|Supreme Court Case Number:||20070130|
|Cass County Case Number:||06-K-02831|
|STATE OF NORTH DAKOTA,|
|Plaintiff and Appellee,|
|Defendant and Appellant.|
APPEAL FROM FINAL JUDGMENT, SENTENCING AND ORDERS DENYING MOTIONS FOR NEW TRIAL IN A CRIMINAL CASE
|David J. Chapman (Atty #05531)|
|Chapman Law Firm|
|The Black Building|
|118 Broadway, Suite 806|
|Fargo, ND 58102|
|FAX: (701) 232-6470|
|Attorney For Defendant|
TABLE OF CONTENTS
|Table of Contents i|
|Table of Authorities ii|
|Statement of Issue 1|
|Statement of the Case 1|
|Statement of the Facts 3|
|I. JUROR MISCONDUCT THAT INJECTED RACE INTO THE DELIBERATIONS IN THIS CASE WARRANTED A NEW TRIAL. 11|
|II. THE TRIAL COURT SHOULD HAVE GRANTED THE DEFENDANT A NEW TRIAL BASED ON THE NEWLY DISCOVERED EVIDENCE PROVIDED BY THE TESTIMONY OF ASHLEY KRON, WHO TESTIFIED THAT SHE WAS AT THE FIGHT AND THAT WHILE SHE WAS THERE, SHE DID NOT SEE MEVLUDIN HIDANOVIC FIGHT OR USE A BASEBALL BAT 20|
|III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF THE DEFENDANT FOR THE CRIME OF PARTICIPATING IN A RIOT WHILE ARMED WHERE NO PHYSICAL EVIDENCE TIED THE DEFENDANT TO THE CRIME, ONLY ONE EYEWITNESS IDENTIFIED THE DEFENDANT AS A PARTICIPANT, AND THE EYEWITNESS IDENTIFICATION IS HIGHLY UNRELIABLE 25|
|IV. A NEW TRIAL IS WARRANTED WHERE THERE WAS PROSECUTORIAL MISCONDUCT WHERE THE PROSECUTOR CONTINUOUSLY INJECTED ETHNICITY INTO CROSS EXAMINATION OF A WITNESS AS IF THE WITNESS'S ETHNICITY WAS A DIRTY SECRET, AND AT ONE POINT CLAIMED THAT THE WITNESS'S ETHNICITY WAS A "BAD WORD" 28|
|V. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE PHOTOGRAPHIC LINEUP IDENTIFICATION OF MR. HIDANOVIC 30|
TABLE OF AUTHORITIES
|Andrews v. O'Hearn, 387 N.W.2d 716 (N.D. 1986)||18|
|City of Fargo v. McMorrow, 367 N.W.2d 167 (N.D. 1985)||25|
|Devoney v. State, 717 So.2d 501 (Fla. 1998)||16|
|Keyes v. Amundson, 391 N.W.2d 602 (N.D. 1986)||21, 23, 24|
|Kimbrough v. Cox, 444 F.2d 8 (4th Cir. 1971)||31|
|Leet v. City of Minot, 2006 ND 191, 721 N.W.2d 398 (ND 2006)||18|
|Marshall v. State, 854 So.2d 1235 (Fla. 2003)||14|
|McFarland v. Smith, 611 F.2d 414 (2nd Cir. 1979)||29|
|Parker v. Gladden, 385 U.S. 363 (1966)||12|
|People v. McKay, 485 N.E.2d 1257 (Ill. App. 1985)||29|
|Powell v. Allstate Ins., Co., 652 So.2d 354 (Fla. 1995)||13, 14, 16|
|Sanderson v. Walsh County, 2006 ND 83, 712 N.W.2d 842 (ND 2006)||19|
|Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987)||16, 17|
|Simmons v. United States 390 U.S. 377 (1968)||30|
|Smith v. Brewer, 444 F.Supp. 482 (D.C. Iowa, 1978)||12|
|State v. Austin, 2007 ND 30, 727 N.W.2d 790 (ND 2007)||11|
|State v. Azure, 243 N.W.2d 363 (N.D. 1976)||30|
|State v. Brooks, 520 N.W.2d 796 (N.D. 1994)||18|
|State v. Dubbs, 390 N.W.2d 41 (N.D. 1986)||25|
|State v. Gonzalez, 606 N.W.2d 873 (N.D. 2000)||25|
|State v. Johnson, 2001 SD 80, 630 N.W.2d 79 (SD 2001)||19, 20|
|State v. Loftin, 922 A.2d 1210 (N.J. 2007)||12|
|State v. McKinney, 518 N.W.2d 696 (N.D. 1994)||28|
|State v. McMorrow, 286 N.W.2d 284 (N.D. 1979)||25|
|State v. Miller, 357 N.W.2d 225 (N.D. 1984)||25|
|State v. Rudge, 624 N.E.2d 1069 (Ohio Ct. App. 1993(||20|
|State v. Smith, 2005 ND 21, 691 N.W.2d 203 (ND 2005)||11, 20|
|State v. Westmillaer, 2007 ND 52, 730 N.W.2d 134 (ND 2007)||11, 20|
|Testa v. Katt, 330 U.S. 386 (1947)||18|
|United States v. Workman, 470 F.2d 151 (4th Cir. 1972)||30|
|United States v. Heller, 785 F.2d 1524 (11th Cir. 1986)||14|
|U.S. Const., Amend VI||11|
|N.D.C.C. §12.1-25-02||1,2. 23, 26|
|N.D.R. Crim. P., Rule 33||20|
|N.D.R. Crim. P., Rule 37||1|
|N.D.R.E., Rule 402||23|
|N.D.R.E., Rule 606||11, 12, 18|
|SECONDARY AUTHORITY & TREATISES:|
|Brown, Kenneth S., et al, eds., McCormick On Evidence, 5th Ed. (West, 1999)||23|
|Blackstone, Sir William, Commentaries on the Laws of England, 9th Ed.,|
|Book IV (London, 1783)||28|
STATEMENT OF ISSUES
I. WHETHER OVERT EXPRESSIONS OF ETHNIC OR RACIAL BIAS BY A JUROR CONSTITUTED OVERT JUROR MISCONDUCT, AND IF IT WAS MISCONDUCT WHETHER THAT MISCONDUCT WARRANTED A NEW TRIAL?
II. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE NEWLY PRESENTED TESTIMONY OF ASHLEY KRON?
III. WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF THE DEFENDANT FOR PARTICIPATING IN A RIOT WHILE ARMED?
IV. WHETHER THERE WAS PROSECUTORIAL MISCONDUCT JUSTIFYING A NEW TRIAL WHEN THE PROSECUTOR CONTINUOUSLY INJECTED ETHNICITY INTO CROSS EXAMINATION OF A WITNESS AND AT ONE POINT CLAIMED THAT THE TERM USED TO REFER TO GYPSIES, NAMELY "ZIGEUNER" IN GERMAN WAS A "BAD WORD"?
V. WHETHER THE DEFENDANT'S MOTION TO SUPPRESS WITNESS IDENTIFICATION WAS IMPROPERLY DENIED?
On February 26, 2007, the Defendant was sentenced for the crime of Engaging in a Riot while Armed in violation of N.D.C.C. §12.1-25-02 (1)(c), a Class C Felony. The Defendant filed two Motions for New Trial that were denied by the Court on April 5, 2007, and May 3, 2007. This appeal was filed on May 4, 2007. This appeal of right was timely filed under N.D.R. Crim. P., Rule 37 (b)(1).
STATEMENT OF THE CASE
The Defendant was charged with the crime of Participating in a Riot while Armed in violation of North Dakota Century Code (12.1-25-02 (1)(c), pursuant to the criminal Complaint dated July 20, 2006. App. at 1.
North Dakota Law states:
"1. A person is guilty of a class C felony if he: . . .
c. While engaging in a riot, is knowingly armed with a firearm, dangerous weapon, or destructive device."
N.D.C.C. §12.1-25-02 (1)(c).
The State of North Dakota went to trial to prove: (1) that Mr. Hidanovic was engaging in a riot, and (2) that he was knowingly armed with a firearm, dangerous weapon or destructive device. These are the elements the State is required to prove.
Trial was held on January 3, 2007 through January 5, 2007. The Jury returned a verdict of guilty on January 5, 2007.
Sentencing occurred on February 26, 2007, before the Honorable Wade L. Webb, District Judge. The Court imposed a sentence of five (5) years to be served in the custody of the Department of Corrections with all but eighteen (18) months suspend for a period of five (5) years, during which time the Defendant was placed on supervised probation. The Defendant was required to pay a pre sentence investigation fee of fifty dollars ($50) and to provide a sample of his DNA to the State. App. at 2-4. The Defendant appeals from this Judgment and Sentence.
The Defendant filed two motions for new trial, which are also the subject of this appeal. One motion was heard on April 5, 2007, and the other on May 3, 2007. The Court denied both motions. App. at 9 & 10.
Notice of Appeal dated May 4, 2007, appealing this matter to the North Dakota Supreme Court. App. at 11. Therefore, the appeal was timely filed.
This brief is due July 23, 2007, based on the grant by the Clerk of the Supreme Court of an extension of time to file and is, thus, timely filed.
STATEMENT OF THE FACTS1
1. The Red River Valley Fair Riot of June 24, 2006:
On June 24, 2006, Mevludin Hidanovic, wearing a wild, multi colored sweater, white pants, and what has been described as pointed toe "elf shoes" was enjoying some quality leisure time with his wife and children at the Red River Valley Fair (hereafter "Fair") in Fargo. Tr. II at 132-133, 136-138, 146-149, 173-177, 189. The trip to the Fair followed an enjoyable picnic that the Hidanovic's had enjoyed with extended family in Fargo's Lindenwood Park earlier in the day. Tr. II at 170. It was at this picnic that the couple's children begged to go to the Fair. Tr. II at 170. As with many parents, the Hidanovic's treated their children to a visit to the Fair. Tr. II at 170. For the Hidanovic's the day was shaping up to be no different than an average day enjoyed by any other American family.
Arriving at the Fair between 5:30 p.m. and 6:00 p.m., the Hidanovic's purchased tickets and went from ride to ride with their children. Tr. II at 171. Nurija Beganovic, a lifelong friend of Mevludin Hidanovic, joined the family at the Fair. Tr. II at 151-152. However, while enjoying the amusement park rides at the Fair, a cell phone call to Nurija Beganovic notified him, Chanda and Mevludin Hidanovic that a fight was in progress. Tr. II at 151-152, 177, 190-191. As the amusement park ride came to a stop, Mr. Beganovic, Chanda and Mevludin Hidanovic left the ride. Tr. II at 152. Not sure exactly what was going on, the three met up with the Hidanovic's four children just outside the ride where the Hidanovic children were sitting on a bench holding Chanda Hidanovic's purse and a small toy that Mr. Beganovic had won for them. Tr. II at 161. Concerned about Mevludin's brother and other family members, Nurija Beganovic, Chanda and Mevludin Hidanovic ran to the scene of the fight, which was essentially over when they arrived. Tr. II at 153, 179, 182, 191, 197.
As the fight was essentially over when they arrived, their rendition of events does not cover the extreme violence of the fight itself. However, Nurija Beganovic, Chanda Hidanovic and Mevludin Hidanovic are adamant that Mr. Hidanovic was not in possession of a bat or a knife. Tr. II at 146, 178, 190. At trial no physical evidence linked Mr. Hidanovic to a weapon at all. In fact, other than slight mud stains on the cuffs of his pants where they touched the ground after a recent rain, Mr. Hidanovic's clothing was in pristine condition and suffered not so much as a stretch, tear, stain or scuff from his alleged participation in a riot. Tr. II at 192.
The prosecution presented several witnesses, who discussed the events of that cloudy, rainy, dimly lit and very, very dark evening. Tr. II at 21, 23, 43 and 57. Rosa Arpero testified that she was at the Fair with her husband, Juan Arpero, and their four children. Tr. at 33. Ms. Arpero was standing on the Midway because she wanted to get her daughters onto the rides. Tr. at 33. While in the vicinity of the rides, Ms. Arpero heard a loud noise-like aluminum hitting rock as she describes it-her evening was about to become a terrifying odyssey into the vortex of a violent riot. Tr. at 34. The sound was a baseball bat striking her husband over the head as he waited at a ride with the two youngest children. Tr. at 34. Focused on her husband, Rosa Arpero noticed that his head was bleeding. Tr. at 34. The gruesome gash to Mr. Arpero's head eventually required sixteen (16) staples to close. Tr. at 47.
Ms. Arpero then ran in terror to find her infant son, who had been in the care of her husband and who had fallen out of his stroller in the mle. Tr. at 37. With his father incapacitated by a blow to the head, two young girls rescued the terrified youngster and protected him by taking him a safe distance from the fight. Tr. at 37. When Rosa Arpero recovered her son, he had a bump on his head suffered in the fall from the stroller during the fight. Tr. at 37. Despite giving a detailed account of that evening, Rosa Arpero did not testify as to having seen Mevludin Hidanovic at the fight or armed.
Juan Arpero also testified and stated that he saw a group of people come up to his brother, say something and then swing at him. Tr. at 52. Rushing to the aid of his brother, Juan Arpero valiantly struggled with four to five attackers. Tr. at 52. As he struggled, he felt multiple hard strikes to his head, one of which connected with the top of his head and caused the gash that required sixteen (16) staples to close. Tr. at 52 and 53. Juan Arpero blacked out momentarily and fell to the ground under the crushing blows to his head. Tr. at 52. When he rose from the ground everyone was running. Tr. at 52. Mr. Arpero did not testify as to having been hit by Mr. Hidanovic, or having seen him participate in the fight at all.
Juan Arpero's brother Jose also witnessed the events of June 24, 2006. Juan testified that he was being confronted by a group of individuals, one of them swung at him. Tr. at 56. He wrestled on the ground with one of the attackers in a headlock while others beat him in the back and hit him in the head with a baseball bat. Tr. at 56. As a result of the fight, Juan Arpero's ear was nearly bitten off and he was also punched above his eye. Tr. at 56. X-Rays were required to determine if injuries were serious, and Mr. Arpero had his ear stitched back together. Tr. at 57. Juan Arpero did not identify Mr. Hidanovic as one of the attackers. Mr. Arpero did not know the attackers or recognize their faces. Tr. at 58.
Juan Arpero's other brother, Lionardo Arpero, was also at the Fair and testified at trial. Tr. at 60. Lionardo Arpero attended with his pregnant girlfriend, Ashley Kron, and their child. Tr. at 60. Running to the aid of Juan and Jose Arpero, Lionardo was punched in the head and thrown to the ground where he was kicked in the leg. Tr. at 61. As a result of the fight, Lionardo Arpero suffered a laceration below his eye that required four stitches to close. Tr. at 62. Lionardo Arpero did not identify Mr. Hidanovic as being involved in the fight.
Following trial of this matter a new witness came forward to testify. Ashley Kron is the girlfriend of Lionardo Arpero. App. at 19, MFNT2 Tr. at 8. Ashley Kron came forward to testify that she had seen Mr. Hidanovic at the fight. App. at 19. She was also absolutely certain that Mr. Hidanovic was not the one swinging the baseball bat. App. at 19, MFNT2 Tr. at 33.. While she was watching, Ms. Kron did not see Mevludin Hidanovic fighting at all. MFNT2 Tr. at 14 and 33. Ms. Kron testified that although she was not at the fight throughout its entirety, she arrived right after it started and she did see the incident where Juan Arpero was beaten over the head with the baseball bat. App. at 19, MFNT2 Tr. at 12. This is very important to remember in light of the testimony of the state's most crucial witness, Tecola Sparks. Ms. Kron did not testify at trial and did not know who was actually on trial until she saw the picture of Mevludin Hidanovic as the individual who was convicted and sentenced. App. at 20. Even at the Motion for New Trial hearing, Ms. Kron did not want to be present because she feared repercussions for her testimony exonerating Mr. Hidanovic. MFNT2 Tr. at 32.
On cross-examination the prosecution asked whether Mr. Hidanovic was present at the fight or was running away. MFNT2 Tr. at 27-28. Through a series of questions, Ms. Kron became confused, but stuck to her claim that Mr. Hidanovic was present at the fight. MFNT2 Tr. at 27-29. However, Ms. Kron did not see him fight at all. MFNT2 Tr. at 30 and 33. Ms. Kron saw him run away with the other Bosnians. MFNT2 Tr. at 29. As one needs to be at a riot to be running away after it, it is not tough to understand Ms. Kron's confusion. The prosecution was unable to present any evidence to show that Ms. Kron was a person with a personal interest in freeing the real criminal who beat her boyfriend and his brothers with a baseball bat. The prosecution was unable to show that Ms. Kron testified in anything other than a truthful manner. MFNT2 Tr. at 66. As a result, the Court made no determination on her credibility. MFNT2 Tr. at 66.
Tecola Sparks watched the riot at the Fair as well. Tr. at 119. Two rides separated Ms. Sparks from the fight. Tr. at 119. As she observed the fight occur, she emphasized twice that the lighting was not great, as it was getting dark. Tr. II at 21 and 43. Ms. Sparks observations could have been more reliable if the lighting was better, but as she stated, it had rained, it was cloudy, and very, very dark. Tr. II at 23 and 43. Ms. Sparks recalls that a man in a white sweater or white pull over hooded sweatshirt and blue jeans was swinging a bat at others. Tr. at 119-120 and Tr. II at 21, 43 and 44. Ms. Sparks also said she was not sure what the assailant was wearing. Tr. II at 44. Ms. Sparks also told law enforcement right after the incident that the person was wearing a white jacket with blue stripes. Tr. II at 45. Mevludin Hidanovic was wearing a wildly colored sweater and not a plain white sweater. Tr. at 132-133, 136-138, 146-149, 173-177, 189. Mevludin Hidanovic was wearing white pants. Tr. at 132-133, 136-138, 146-149, 173-177, 189. Ms. Sparks identified Mr. Hidanovic as the person wielding the bat despite the fact that his clothing did not at all resemble the clothing of the man she witnessed wielding the bat. Tr. II at 26. However, it is important to note that Ms. Sparks' identification of Mr. Hidanovic came a full six (6) days after the incident. Tr. II at 24. It is also important to note that Ms. Sparks could not remember what she did the night before her testimony. Tr. II at 46. It is also important that Ms. Sparks mistakenly identified another person as having been in the courthouse the day before her testimony, when in fact the person was not there. Tr. II at 49-50.
Joanna Kjono was also at the Fair. Tr. at 66. She had no connection with the Bosnian community, Mr. Hidanovic, the Arpero's, or anyone else involved in the fight. Ms. Kjono was simply enjoying what should have been a peaceful night at the Fair with her husband and two children. Tr. at 66. Ms. Kjono witnessed the fight in which she said there was one man swinging a bat at anyone in striking distance. Tr. at 67-68. Ms. Kjono observed two separate "globs of people just kicking, and punching, and fighting each other." Tr. at 68. She did not identify the person wielding a baseball bat and striking others. Tr. at 75 and Tr. II at 9. Witnessing this fight was very traumatic for Ms. Kjono. Tr. at 78. After twenty minutes of pondering a pile of photos one at a time, she identified Mr. Hidanovic as a person who was familiar to her. Tr. at 104. As she said: "[t]here were a lot of people fighting, but that picture just struck me as a face that I remember." Tr. at 104. On cross-examination, she said saw him fighting, but not armed. Tr. at 75 and Tr. II at 9, 11. She later confirmed that she could not say for sure what the person she identified was doing. Tr. II at 12. Ms. Kjono could not remember what any of the people were wearing. Tr. II at 10. Ms. Kjono initially told Police that all of those fighting were Hispanic. Tr. at 78.
Brandee Haas, a carpentry and construction worker was at the Fair with her mother. Tr. II at 53 and 54. She also testified that she observed the fight on that rainy, cloudy and dimly lit June evening in 2006. Tr. II at 57. She identified Mevludin Hidanovic as being present at the fight. Tr. II at 63 and 65. She did not identify Mr. Hidanovic as the person wielding the bat. Tr. II at 65. Ms. Haas likewise identified the person with the bat as wearing a cream or tan shirt. Tr. II at 67. The assailant was possibly wearing black pants according to Brandee Haas. Tr. II at 68. Once again the identification is a far cry from a wild sweater and white pants that Mevludin Hidanovic was wearing. Tr. II at 132-133, 136-138, 146-149, 173-177, 189. She did not identify Mr. Hidanovic as the person with the bat. Tr. II at 68.
Cassandra Belgarde also testified. Cassandra Belgarde is engaged to Jose Arpero. Tr. II at 72. She was at the Fair with her fianc and his family members. Tr. II at 72. Cassandra Belgarde testified that there were twenty five (25) to thirty (30) Bosnians in the group at the riot. Tr. II at 77. Cassandra Belgarde could not identify the person swinging the bat at trial. Tr. II at 81. She did identify Sinan Suljic to police as the person with the bat. Tr. II at 85. Ms. Belgarde was not sure who else had the bat. Tr. II at 88. Ms. Belgarde stated she was not sure if Mr. Hidanovic swung the bat or even held it or had any connection to it. Tr. II at 92. Ms. Belgarde identified Mr. Hidanovic to police as a person present at the fight, but she was not sure what he was doing. Tr. II at 86. She said he was participating in the fight. Tr. II at 87. Ms. Belgarde did not remember what Mr. Hidanovic was wearing, but said that to the best of her recollection it was a cream colored sweater. Tr. II at 89. This is closely allied with Tecola Sparks' recollections of a white hooded sweatshirt, Tr. at 119-120 and Tr. II at 21, 43 and 44, and Brandee Haas' recollection of a cream sweater, Tr. II at 67. Once again it does not even remotely resemble what Mr. Hidanovic was wearing. Tr. II at 132-133, 136-138, 146-149, 173-177, 189.
No physical evidence was presented linking the Defendant to the baseball bat that was recovered at the scene. Tr. at 106-107. The bat was not submitted for forensic examination. Tr. II at 112. The bat was not even introduced into evidence. Brandee Haas placed the bat in the hands of Fikret Golubovic. Tr. II at 111. Cassandra Belgarde placed it in the hands of Sinan Suljic. Tr. II at 111. Only Tecola Sparks said Mr. Hidanovic had the bat. Tr. II at 111. Out of thirty-two witnesses interviewed, only one placed the bat in the hands of Mr. Hidanovic. Tr. II at 111. That one witness was also inaccurate in describing Mr. Hidanovic's clothes-she was not even close. Tr. at 119-120 and Tr. II at 21, 43 and 44.
2. The Fact of Race and Ethnicity in the Trial of Mevludin Hidanovic:
Ethnicity or race was a factor in the trial. During the trial the prosecutor asked if he should refer to Nurija Beganovic as Roma or Gypsy? Tr. at 158. The prosecutor also asked Mr. Beganovic if he was referred to as Zigeuner in Germany? Tr. at 158. The prosecutor then labeled the witness by stating, "Zigeuner's a bad word in German, right?" Tr. at 158.
The prosecutor later returned to the issue and stamped the label on the witness and his compatriots again. Mr. Beganovic had stated that he did not see who was fighting prior to getting on the ride, although he noticed a commotion and screaming that was out of the ordinary. Tr. at 163. When he stated that he did not know if it was Bosnian people fighting, the prosecutor interjected, "Gypsies were fighting." Tr. at 163. Finally, the witness had had enough. The witness responded to the prosecutor's attempt to capitalize on the negative connotations in the word Gypsy and stated that his passport did not say Gypsy, but did say Bosnian. Tr. at 164. However, the prosecutor had completed the deed and planted a reprehensible seed in the mind of the jury . . . Gypsies are bad and the witness and Mr. Hidanovic are gypsies.
The seed planted by the prosecutor hit home with Becky Rettig, a juror. Ms. Rettig stated that she "used [her] own experiences with ethnic groups, specifically Bosnians and/or Gypsies, to influence the jury." App. at 16. Ms. Rettig told the jury that she had personal experience with Bosnians, or Gypsies and they stole and lied to her in relation to her business. App. at 16. At the very least, Ms. Rettig bit the prosecutor's hook on the ethnicity issue. She then polluted the deliberations with her extraneous information.
I. JUROR MISCONDUCT THAT INJECTED RACE INTO THE DELIBERATIONS IN THIS CASE WARRANTED A NEW TRIAL.
1. Standard of Review:
Constitutional questions, as well as questions related to evidentiary rules and statutes are questions of law and are fully reviewable. State v. Smith, 2005 N.D. 21, 11, 691 N.W.2d 203, 208 (N.D. 2005).
Questions of fact are reviewed under a clearly erroneous standard of review. State v. Austin, 2007 N.D. 30, 32, 727 N.W.2d 790 (N.D. 2007). Whether a finding of fact meets a particular legal standard is a question of law and is fully reviewable on appeal. State v. Westmiller, 2007 N.D. 52, 7, 730 N.W.2d 134 (N.D. 2007).
Rule 606(b) generally limits inquiry into jury verdicts and deliberations. However, courts must not only consider the jurisdictional rules such as Rule 606 (b). Courts must also consider the sixth amendment right of a defendant to a fair trial by an impartial jury. U.S. Const., Amend VI. This constitutional consideration is of paramount importance and in the hierarchy of law is superior to any evidentiary rule. As one recent New Jersey Supreme Court opinion stated, "[a] defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 922 A.2d 1210, 1218 (N.J. 2007).
To grant preeminent importance to Rule 606 (b) may run afoul of the guarantees provided by the constitution. Smith v. Brewer, 444 F.Supp. 482, 490 (D.C. Iowa, 1978) , aff'd 577 F.2d 466, cert. denied 439 U.S. 967 (stating that Rule 606 (b) should not be applied dogmatically and that to do so could run afoul of basic constitutional guarantees). As the U.S. Supreme Court stated in Parker v. Gladden, 385 U.S. 363, 364-365 (1966) [citations omitted], "[w]e have followed the undeviating rule . . . that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial." Mr. Hidanovic's counsel raised constitutional rights to a fair trial.2 MFNT Tr. at 8.
Unfortunately, the trial court granted absolute primacy to Rule 606 (b) and exercised excessive caution in protecting the jury verdict to the exclusion of Mr. Hidanovic's constitutional right to counsel, to confront witnesses and confront evidence and to have a verdict by an impartial jury. The trial court stated that:
"[a]ll are equal before the Court. All are entitled to fair administration of justice. There is no place in this courtroom for prejudiced, biased [sic.], race or otherwise. This is simply not to be tolerated. And it's not excusable."
MFNT Tr. at 28.
The trial court then proceeded to demonstrate that tolerance of ethnic and racial bias would be allowed and denied admission of juror affidavits discussing the issue. MFNT Tr. at 30. The court determined that racial and ethnic prejudice is "the types of thoughts and general information and personal knowledge that a person has, good or bad, whether I find it reprehensible or not, that people bring with them to serve as a juror in regards to our jury system." MFNT Tr. at 31. Whether the trial court found the views reprehensible or not is of no importance. The trial court is correct on that point. However, to so zealously guard the primacy of a jury deliberation as to exclude the possibility of examining a verdict for overt bias was an outright abdication of the trial court's responsibility to protect the constitutionally mandated rights of Mr. Hidanovic. The trial court cannot allow itself to become the conduit for the deprivation of constitutional rights.
What good is the right to counsel when one juror presents extra judicial matters of racial bias behind closed doors? What good is the right to confront evidence when unsubstantiated and stereotypical issues of ethnic bias are prejudicially injected into deliberations? What good is the right to an impartial jury considering the case based on the evidence when one juror injects non-evidentiary racial or ethnic bias into deliberations? These rights are gutted by such action and the defendant receives a less than fair and impartial adjudication. Such action should not and cannot be tolerated.
The trial court also erred in its rationale for zealous protection of this jury verdict. The trial court erred in confusing a juror's internal considerations within the jury room and the over acts that pollute and sully deliberations. There is a difference between a juror's internal being and external or overt acts. Powell v. Allstate Ins., Co., 652 So.2d 354, 357 (Fla. 1995). Overt jury misconduct may be the subject of inquiry after a verdict is rendered. Id. Matters jurors keep to themselves can inhere in the verdict and are matters "resting alone in the juror's breast." Id.
As the Florida Supreme Court stated:
"In the instant case, we find the alleged racial statements made by some of the jurors to constitute sufficient "overt acts" to permit trial court inquiry and action. Under Maler and Hamilton [citations omitted], it would be improper, after a verdict is rendered, to individually inquire into the thought processes of a juror to seek to discover some bias in the juror's mind, like the racial bias involved here, as a possible motivation for that particular juror to act as she did. Those innermost thoughts, good and bad, truly inhere in the verdict.
But when appeals to racial bias are made openly among the jurors, they constitute overt acts of misconduct. This is one way that we attempt to draw a bright line. This line may not keep improper bias from being a silent factor with a particular juror, but, hopefully, it will act as a check on such bias and prevent the bias from being expressed so as to overtly influence others."
Id. The Court further held in Marshall v. State, 854 So.2d 1235, 1242 (Fla. 2003) that: ". . . when appeals to racial bias are made openly among the jurors, they constitute overt acts of misconduct." These overt acts are cause for reversal of a verdict.
The Florida Supreme Court agreed with the opinion of Eleventh Circuit Judge Tuttle and quoted his opinion in United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986) extensively and with favor. As Judge Heller wrote:
"Despite longstanding and continual efforts, both by legislative enactments and by judicial decisions to purge our society of the scourge of racial and religious prejudice, both racism and anti-Semitism remain ugly malignancies sapping the strength of our body politic. The judiciary, as an institution given a constitutional mandate to ensure equality and fairness in the affairs of our country when called on to act in litigated cases, must remain ever vigilant in its responsibility. The obvious difficulty with prejudice in a judicial context is that it prevents the impartial decision-making that both the Sixth Amendment and fundamental fair play require. A racially or religiously biased individual harbors certain negative stereotypes which, despite his protestations to the contrary, may well prevent him or her from making decisions based solely on the facts and law that our jury system requires. The religious prejudice displayed by the jurors in the case presently before us is so shocking to the conscience and potentially so damaging to public confidence in the equity of our system of justice, that we must act decisively to correct any possible harmful effects on this appellant."
Id. [emphasis added].
Judge Heller's sentiments are exactly the basis upon which the Court must act in this case. Confidence in the North Dakota jury system is shaken by the actions of Ms. Rettig. Who would want to risk a trial where by chance a juror does not like your ethnicity and skin color and injects that useless information into deliberations? So much for a fair adjudication based on the evidence presented. It casts a pall over our system when a verdict is arrived at by a chance happening such as juror dislike. This Court cannot allow confidence in our jury system to be swallowed by strict adherence to the secretive nature of deliberations in every case.
The rationale of the Florida Supreme Court is that to allow silent or secreted bias to retrospectively undo a jury verdict is to place the twelve at the mercy of the one. It makes good sense to address the issue this way. Although racial bias of any kind is unsettling, the Court cannot allow juries of one person to rule the entire process. Racial bias as the basis for one juror's vote in convicting is base, vile and disgusting. However, unless openly stated in deliberations there is no way to determine whether bias truly played a part in deliberations, or whether it was the product of after verdict remorse by a single juror?
In Mr. Hidanovic's case it is respectfully offered that the juror misconduct was anything but a private part of Ms. Rettig's mental process. Her feelings were overtly stated and not private. Her conduct was overt juror misconduct. Her feelings were heard by other jurors, but the trial court would not accept affidavits to that effect. However, the prosecutor summed up the affidavits in a supplemental filing, stating that three of the jurors stated they did remember Becky Rettig making the anti-Bosnian statements contained in paragraph 11 of her affidavit. Thus, her racial statements are overt. Her statements are not private thoughts she kept to herself. Her thoughts do not place the eleven at the mercy of the one juror. Her actions are not the actions of a person who simply decided post-trial to get Mr. Hidanovic out of jail and made up a story about her anti-Bosnian bias to do so. Becky Rettig's motivations are supported by her actions. Three jurors heard her.
In this case we had overt juror misconduct. The Court refused to accept juror affidavits in this case despite the fact that juror Becky Rettig had injected the issue of race overtly into the deliberations. This was an act of overt jury misconduct and was not simply a matter inherent in the verdict and resting within the soul of the juror.
3. The courts should give special attention to ethnic bias in jury deliberations and the delicate balance between the secrecy of deliberations and the right to a fair trial.
The Florida Supreme Court was very careful to point out in a later decision in Devoney v. State, 717 So.2d 501, 504 (Fla. 1998) that Powell v. Allstate Insurance Company was a unique case because it involved racial or ethnic bias. Such bias requires extra vigilance on the part of the Courts. As the Court stated: "[I]n Powell we set aside a verdict because members of the jury had made numerous racial jokes and statements about the plaintiffs, who were black citizens of Jamaican birth. . . Powell appears to have established that a juror who spreads sentiments of racial, ethnic, religious or gender bias, fatally infects the deliberation process in a unique and especially opprobrious way and the courts will be vigilant to root it out." Id [emphasis added]. Although we must jealously guard the sanctity of the jury process, we have an equally important task in guarding the "sacred trust to assure equal treatment before the law." Id.
The trial court focused on Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) as authority for the conclusion that Ms. Rettig's comments are not the province of inquiry of the trial court. The trial court cited to the Shillcutt v. Gagnon case as authority for the proposition that: " [a] fruitful exchange of ideas and impressions among jurors is thought to hinge heavily on some assurance that what is said in the jury room will not reach a larger audience. This exchange, however crude or learned, is important enough to preserve. Jurors are expected to bring commonly known facts and their experiences to bear in arriving at their verdict. We cannot expunge from the jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies. These involve the very human elements that constitute one of the strengths of our system." Tr. At 32 (citing Shillcutt v. Gagnon, 827 F.2d at 1159. If it is a strength of our system to allow a man to be convicted because someone dislikes his ethnic origin then our system has a serious problem that must be addressed. However, that is not the case. We should not allow such convictions and rational vigilance will protect against such verdicts. Blindly protecting jury deliberations will not serve the ends of justice in cases where ethnic bias is a factor in deliberations. If that were the case then we have not matured far from the days of white southern juries convicting African American defendants just because they are African American. We need to zealously protect the right to a fair trial regardless of color, race, creed, ethic origin and other immutable characteristics that have nothing to do with the facts of a case.
Although the sanctity of jury deliberations are of great importance, the trial court should not be reduced to being the instrument of a racially biased verdict, thus, violating the equally sacred right to a fair and impartial jury. The trial court consideration of the matter of juror misconduct fully ignored the delicate balance between the jury system and the right to an impartial jury. Although the trial court stated that: "Mr. Hidanovic has a right to the fair administration of justice in this courtroom. And by gosh, I'm going to do my best to ensure that occurs . . .", the trial court judgment in the case so swayed the balance away from fair administration of justice as to pay no attention to the principle. Under the trial court's reasoning jury secrecy should be embraced at all costs. A minority defendant could be convicted and sentenced to prison just because. Such illogical adherence to the sanctity of the jury system is indefensible.
Although the trial court relied upon Andrews v. O'Hearn, 387 N.W.2d 716 (N.D. 1986) in its decision, such reliance is misplaced. Andrews v. O'Hearn did not involve overt racial prejudice, it did not involve a criminal case and it did not result in anyone going to prison. Additionally, the North Dakota Supreme Court was clearly dealing with a situation involving the "mental processes or reasoning of jurors." Id. at 719.3 Mental processes and reasoning are not observable. Mental processes and reasoning are not overt. If we allowed a juror to come forward and provide an affidavit based on what was in their mind then we place the jury system at the mercy of one juror concerning why they reached their verdict. That is not the case here. Becky Rettig overtly stated her bias. Other jurors heard her. Reliance on Andrews v. O'Hearn is misplaced. In our case we are dealing with a criminal case involving racial or ethnic bias in which the defendant ended up in prison.
4. Interpretation of Rule 606 (b):
The defendant contends that although the trial court erred in granting preeminent status to Rule 606 (b), the rule itself is open to a construction that would avoid finding it specifically to be unconstitutional. Testa v. Katt, 330 U.S. 386, 391 (1947) (stating that the Constitution is binding, state constitutions and statutes notwithstanding); Leet v. City of Minot, 2006 N.D. 191, 13, 721 N.W.2d 398 (N.D. 2006) (stating that the Court will construe statutes in order to avoid constitutional infirmities); Sanderson v. Walsh County, 2006 N.D. 83, 16, 712 N.W.2d 842 (N.D. 2006) (applying rules of statutory construction to court rules in determining intent). The Rule is clearly open to an interpretation that allows it to be given full force and effect in protecting legal deliberations, namely, overt deliberations that follow jury instructions and the law. Deliberations that overtly express any juror's intent or motivation to deny a defendant a fair trial, especially based on a characteristic such as race or ethnicity, should not be protected.
5. Prejudice to the Defendant:
North Dakota has not specifically dealt with racial prejudice in jury deliberations. In the hearing considering the Defendant's Motion for New Trial based on juror misconduct, the prevailing law was and currently is set forth in State v. Brooks, 520 N.W.2d 796,798 (N.D. 1994). Brooks dealt with juror misconduct quite different from our current situation. In State v. Brooks a juror brought in outside information regarding the background of the Defendant. It was not juror misconduct based on an immutable characteristic such as the racial background of the Defendant.
South Dakota dealt with racial bias in the case of State v. Johnson, 2001 S.D. 80, 630 N.W.2d 79 (S.D. 2001). The South Dakota Supreme Court found that when juror misconduct occurs there is a rebuttable presumption of prejudice to the defendant's right to a fair trial. Id. at 10, 630 N.W.2d at 82. The State v. Johnson court dealt with an issue much like the issue in our case. An eyewitness stated that Mr. Hidanovic was the man with the baseball bat beating the victim. As in State v. Johnson identification was a key component of the ability to convict. Credibility of witnesses was crucial. In this case the key defense witness and the Defendant were Bosnians. Becky Rettig was arguing that Bosnians are dishonest and lie. Although other jurors stated this did not influence them, such conclusions are of little importance. There are 12 jurors and Ms. Rettig was one of them. She was overtly prejudiced and that is enough to destroy Mr. Hidanovic's right to a fair trial. See State v. Johnson, 630 N.W.2d at 85 (citing State v. Rudge, 624 N.E.2d 1069, 1076 (Ohio Ct. App. 1993) for the proposition that: "[i]f only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel.").
The North Dakota Supreme Court should follow South Dakota's lead in the very narrow band of cases such as this one.
II. THE TRIAL COURT SHOULD HAVE GRANTED THE DEFENDANT A NEW TRIAL BASED ON THE NEWLY DISCOVERED EVIDENCE PROVIDED BY THE TESTIMONY OF ASHLEY KRON, WHO TESTIFIED THAT SHE WAS AT THE FIGHT AND THAT WHILE SHE WAS THERE SHE DID NOT SEE MEVLUDIN HIDANOVIC FIGHT OR USE A BASEBALL BAT.
1. Standard of Review:
Questions of law and are fully reviewable. State v. Smith, 2005 N.D. 21, 11, 691 N.W.2d 203, 208 (N.D. 2005). Whether a finding of fact meets a particular legal standard is a question of law and is fully reviewable on appeal. State v. Westmiller, 2007 N.D. 52, 7, 730 N.W.2d 134 (N.D. 2007).
2. Newly discovered evidence warranted the grant of a new trial.
Rule 33 of the North Dakota Rules of Criminal Procedure provides that newly discovered evidence can serve as the basis for a motion for new trial. N.D.R. Crim. P. 33 (b)(1).
In order to grant a new trial based on newly discovered evidence, the evidence must satisfy a five (5) point test. See Keyes v. Amundson, 391 N.W.2d 602 (N.D. 1986). The five (5) points are:
1. The evidence must have been discovered after trial.
2. The movant must have exercised due diligence in discovering it.
3. The evidence must not be merely cumulative or exonerating.
4. The evidence must be material and admissible.
5. The evidence must be of such a nature that a new trial would probably produce a different result.
Id. at 605.
3. The witness whose affidavit is offered in support of this motion was mentioned at trial, but the evidence was discovered after trial.
In this case the witness came forward after trial. The witness was at the scene of the fight on the night of June 24, 2006. The witness observed a man the witness identified recently for the Cass County Sheriff's Department as Fahrudin Hidanovic with the bat and striking the victim. The witness saw Mevludin Hidanovic at the scene and at no time observed him fight with or assault anyone. The witness did not see him engage in a riot at all let alone while armed. The witness only came forward after trial and sentencing because the witness observed a picture of the man convicted and sentenced and realized the State prosecuted the wrong man. Prior to seeing Mevludin Hidanovic's picture, the witness assumed the man convicted was the same man the witness saw engaging in the riot while armed. Having not attended trial, the witness had no way to know the State had the wrong man. The evidence she could contribute was not discovered by counsel until the State provided her statement post trial.
4. The moving party must have exercised due diligence in discovering the evidence.
The Defendant could not have exercised any diligence prior to the witness coming forward. The witness did not come forward and tell defense counsel about the State's mistaken identity. The witness went to the Cass County Sheriff's Department to make the witness's statement. The witness identified Mevludin Hidanovic and pointed out that he was not the perpetrator. Once the evidence was discovered, new counsel sent his investigator to talk with the witness and prepared the affidavit for signature based on what the witness conveyed. The witness reviewed the statement twice, suggested changes and signed it. The Defendant exercised due diligence.
5. The evidence must not be merely cumulative or impeaching.
The evidence provided by Ms. Kron is not merely cumulative or impeaching. First, Ms. Kron provides a unique vantage point for observation. She arrives shortly after the fight begins, but is there to see the beating of Juan Arpero with the baseball bat. She testified that Mr. Hidanovic was not fighting while she was there and did not have the baseball bat. Only one person identified Mr. Hidanovic as having the baseball bat, namely, Tecola Sparks. Although Ms. Kron was not present for the whole fight, she was there for the baseball bat beating where Tecola Sparks allegedly saw Mr. Hidanovic with the bat. Ms. Sparks had two rides between her and the fight and she misidentified Mr. Hidanovic's clothing on that dimly lit Midway, on a rainy, cloudy and very, very dark June evening, Ms. Kron's evidence is of great importance.
Ms. Kron is not impeaching Ms. Sparks. No one is saying Ms. Sparks is telling two separate stories. We are saying she was wrong and the jury should have had Ms. Kron's very important testimony to weigh in determining how much reliance could be placed on Ms. Sparks's otherwise unchallenged testimony.
6. The evidence must be material and admissible.
Under the North Dakota Rules of Evidence, all relevant evidence is admissible unless otherwise excluded by law. N.D.R.E. Rule 402. Relevancy is generally considered to have two main components: (1) materiality, and (2) probative value. Under Keyes v. Amundson, 391 N.W.2d at 605, the evidence offered to secure a new trial must be material. Material evidence is evidence offered as proof on a matter in issue. Brown, Kenneth S., et al, eds., McCormick On Evidence, 5th Ed., vol. 1, 637 (West, 1999).
In this case the Defendant was charged and convicted for engaging in a riot while armed under N.D.C.C. §12.1-25-02 (1)(c). Mr. Hidanovic has protested his innocence. Ms. Kron saw the fight and did not see the Defendant with the baseball bat. In fact, Ms. Kron did not see Mr. Hidanovic fight at all throughout the confrontation. The evidence is clearly material.
7. The evidence the witness would offer is of a sufficiently strong nature that it would probably result in an acquittal.
The trial court in its sound discretion is charged with the task of determining the strength of new evidence. Keyes v. Amundson, 391 N.W.2d at 605. Evidence must be sufficiently strong to make it probable that a different result would be reached in a new trial. Id.
In this case there was no strong evidence against Mr. Hidanovic. Ms. Kron was at the fight. Ms. Kron is associated with the victim and not the perpetrators. Ms. Kron stated that the Defendant did not fight at all while she was present, which was for much of the fight. The witness states that it was another man who had the baseball bat. The lighting, the weather, and the identification of Mr. Hidanovic's clothes are all problems with Ms. Sparks' opposing testimony.
Although no one can say with absolute certainty that the results would have changed, it is definitely more probable than not that Mr. Hidanovic would have been acquitted if this witness were to testify.
It is important to note that the trial court is not really being asked to determine the accuracy or truthfulness of Ms. Kron's testimony. That should be for the jury to decide. This was strictly a legal decision as to whether or not there was sufficient evidence provided by Ms. Kron to warrant a new trial.
III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF THE DEFENDANT FOR THE CRIME OF PARTICIPATING IN A RIOT WHILE ARMED WHERE NO PHYSICAL EVIDENCE TIED THE DEFENDANT TO THE CRIME, ONLY ONE EYE WITNESS IDENTIFIED THE DEFENDANT AS A PARTICIPANT, AND THE EYEWITNESS IDENTIFICATION IS HIGHLY UNRELIABLE?
1. Standard of Review:
The Court reviews issues challenging sufficiency of the evidence by looking at only the evidence favorable to the verdict, and any reasonable inferences that could be drawn from that evidence in order to determine whether substantial evidence exists to support the verdict. State v. Miller, 357 N.W.2d 225, 226 (N.D. 1984).
The standard is high when challenging the sufficiency of the evidence, and numerous cases discuss this standard. The Court looks only to the evidence that favors the verdict and draws all reasonable inferences from the evidence. State v. Miller, 357 N.W.2d 225, 226 (N.D. 1984). In State v. Dubs, 390 N.W. 2d 41, 43 (N.D. 1986) Justice Levine explained in her concurrence that: ((we do not weigh conflicting evidence, nor do we judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.(
To determine whether there is substantial evidence to warrant a conviction the court in City of Fargo v. McMorrow, 367 N.W. 2d 167, 167 (N.D. 1985) concluded that the evidence was to be viewed: (. . . in a light most favorable to the prosecution . . .(, and that the conviction can only be overturned (. . . if no rational fact finder could have found the defendant guilty beyond a reasonable doubt.( Essentially, the evidence must not allow any reasonable inference of guilt. State v. Gonzalez, 606 N.W.2d 873, 875, 2000 ND 32, (14 (N.D. 2000).
As the Court in State v. McMorrow, 286 N.W. 2d 284, 287 (ND. 1979) explained:
(In State v. Holly Bull, 238 N.W.2d 52 (N.D. 1975), this court concluded that where the evidence did not in any manner connect the defendant with the crime and permitted mere speculation that the defendant may have been in the general vicinity of the crime, the evidence was totally insufficient to establish guilt beyond a reasonable doubt, not because it was circumstantial evidence but because the evidence did not establish guilt as required by the Constitution and the appropriate rules of law.(
As an initial matter it is important to note that proving Mr. Hidanovic was involved in a riot is not enough. His participation could not support a finding of guilt under the statute. The State had to prove that he was knowingly armed with a firearm, dangerous weapon or destructive device in addition to actually participating in the riot. N.D.C.C. §12.1-25-02 (1)(c).
Tecola Sparks was the only person who identified Mr. Hidanovic as having a baseball bat. Tecola Sparks was the only person who said Mr. Hidanovic was armed. Normally, this should be enough to convict. However, Ms. Sparks testimony is of lesser value because of all the problems with it.
* Tecola Sparks said Mr. Hidanovic was wearing a white sweater, which she then changed to hooded sweatshirt. It is well established from testimony and from the actual sweater introduced at trial that Mr. Hidanovic was wearing a wildly bright, multi colored sweater.
* Ms. Sparks said Mr. Hidanovic was wearing blue jeans. and blue jeans. It is well established from testimony and evidence at trial that Mr. Hidanovic was wearing white pants.
* Ms. Sparks actual identification of Mr. Hidanovic occurred 6 days after the incident. Her identification conflicted with 32 other witnesses questioned, who did not identify Mr. Hidanovic as having a bat at any time they saw him.
* Ms. Sparks observed Mr. Hidanovic on a very, very dark, cloudy and rainy evening. She observed him in dimly lit conditions, with two amusement park rides between them.4
No one else identified Mr. Hidanovic as being armed at the riot. With all the problems with the testimony of Ms. Sparks, if she had identified Pope Benedict the XVI as being at the riot and swinging a baseball bat then we would all dismiss her testimony outright. It is not reasonable to infer that her testimony is reliable given the testimony of Ashley Kron, the fact that two rides separated Ms. Sparks from the fight, the fact that the evening was very dark, cloudy and rainy. More importantly, it is not reasonable to conclude that Ms. Sparks identified Mr. Hidanovic correctly when she did not identify any of his wild clothing properly. Ms. Sparks was wrong-period.
Ms. Kron was at the fight when Juan Arpero was struck with the bat. Ms. Kron did not see Mr. Hidanovic fight at all from that point until the end of the fight. Although she concluded he might have fought before that, the time frame for Tecola Sparks identification is smack dab in the middle of the time Ashley Kron was at the fight. Ashley Kron identified the man with the bat. This is not merely an issue of credibility. The weight of the evidence is for a jury to decide, but it is not reasonable to infer guilt from Ms. Sparks testimony given the problems inherent in it.
Once you remove Ms. Sparks identification because it is flat out wrong, there was insufficient evidence to convict Mr. Hidanovic of being armed because no other evidence established he was armed. Some witnesses said he was at the riot. Some witnesses said he participated. However, none other than Tecola Sparks established that he was armed To conclude that such an off the wall identification is sufficient borders on making the verdict a result arrived at by chance. Mr. Hidanovic should not have been convicted by chance.
Although the Supreme Court has stated that it does not resolve conflicts in evidence, determine the credibility of witnesses, reconcile testimony or weigh evidence, the court should not simply allow evidence to stand simply because it was shoveled into the cauldron of deliberation. See State v. McKinney, 518 N.W.2d 696, 699 (N.D. 1994) (stating the appellate court does not ". . . resolve conflicts in evidence, determine the credibility of witnesses and reconcile their testimony, or weigh the evidence). As Blackstone wrote in his famous treatise on the laws of England,
". . . [criminal law] should be founded upon principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind. . . ."
Blackstone, Sir William, Commentaries on the Laws of England, 9th Ed., Book IV, 3 (London, 1783).
We live on the principle that the rule of law governs in the United States. We live on the principle that a fair trial is of paramount importance. We live on the principle that our jury verdicts are not arrived against reason and against the weight of evidence. We live on the principle that our jury verdicts are not arrived at by chance. To ignore the feeble nature of the evidence in this case would be to abdicate responsibility to protect principles as old as Blackstone. Those principles serve as the bedrock foundation of our justice system. To allow justice to be swallowed by rules is to acknowledge that justice is no longer the founding principle of our criminal justice system. Our claims that justice shall be served rings hollow if Mr. Hidanovic's conviction is allowed to stand.
IV. A NEW TRIAL IS WARRANTED WHERE THERE WAS PROSECUTORIAL MISCONDUCT WHERE THE PROSECUTOR CONTINUOUSLY INJECTED ETHNICITY INTO CROSS EXAMINATION OF A WITNESS AS IF THE WITNESS'S ETHNICITY WAS A DIRTY SECRET, AND AT ONE POINT CLAIMED THAT THE WITNESS'S ETHNICITY WAS A "BAD WORD"
Mr. Hidanovic is entitled to a fair trial. U.S. Const., Amend V. "A prosecutor's statements calculated to inflame the racial, religious, or ethnic prejudices of jurors introduce into the trial elements of irrelevance and irrantionality that cannot be tolerated in a society based upon the equality of all citizens before the law." State v. McKinney, 518 N.W.2d 696, 702 (N.D. 1994). Comments that arouse animosity based on racial or ethnic origin undermine the judicial process. People v. McKay, 485 N.E.2d 1257, 1261 (Ill. App. 1985). Remarks by a prosecutor based on racial or ethnic origin designed to persuade the jury to return a verdict of guilty denied Mr. Hidanovic his right to due process and a fair trial. McFarland v. Smith, 611 F.2d 414 (2nd Cir. 1979).
Ethnicity or race was injected into this trial. The prosecutor asked if he should refer to Mr. Beganovic as Roma or gypsy? Tr. at 158. The prosecutor then proceeded to ask the witness if he was referred to as Zigeuner in Germany? Tr. at 158. The prosecutor then labeled the witness by stating, "Zigeuner's a bad word in German, right?" Tr. at 158.
The prosecutor later returned to the ethnic label issue. Mr. Beganovic stated that he had no idea if it was Bosnian people fighting, and the prosecutor interjected, "Gypsies were fighting." Tr. at 163. Mr. Beganovic had had about enough of this blatant attempt to label him with a word that is universally viewed with distrust. The witness responded stating that his passport did not say Gypsy, but did say Bosnian. Tr. at 164. However, the prosecutor had completed the deed and planted a reprehensible seed in the mind of the jury . . . Gypsies are bad and the witness and Mr. Hidanovic are gypsies.
Of what possible legitimate relevance this continued reference to Gypsies could serve is beyond rational comprehension. The only possible reason for continuously asking about the Gypsy ethnicity is to continuously label the witness as untrustworthy because of his ethnicity. To refer to Zigeuner and ask the witness to confirm that Zigeuner is a bad word only reinforces what the prosecution was doing here. The prosecution injected the word Zigeuner into the proceedings. That word was not offered by the witness. The prosecution wanted the jury to believe that Zigeuner was a bad word, that Mr. Beganovic was a Zigeuner and, thus, Mr. Beganovic was a bad person. Beyond that, the prosecutor had already established that the witness and Mr. Hidanovic knew each other since they were children, and that both of them were Roma Bosnian. Thus, by association the witness and Mr. Hidanovic were both Zigeuners and, thus, both associated with a derogatory term. Such action cannot and should not be tolerated by a society that is supposed to judge a person based on facts and not through guilt by association. The prosecutor blatantly appealed to bias here and this conviction should be reversed on that basis alone.
V. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE PHOTOGRAPHIC LINEUP IDENTIFICATION OF MR. HIDANOVIC.
The United States Supreme Court has frowned upon showing single photographs to witnesses in an effort to identify suspects. Simmons v. United States, 390 U.S. 377, 383 (1968) (stating that "improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals."). As the Supreme Court stated:
"[a] witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals, wihtout indicating whom they suspect, there is some danger that the witness may make an incorrect identification. . . . Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than that of the person actually seen, reducing the trustworthiness of subsequent . . . courtroom identification."
Id. at 383-384.
In State v. Azure, 243 N.W.2d 363, 365 (N.D. 1976), the Supreme Court pointed out the danger of using single photographs in identification procedures. The Court stated that "no absolute rule forbidding [single photo identification procedures] . . . has been adopted." State v. Azure, 243 N.W.2d at 365. Each case is decided on its own facts. Id. In State v. Azure the Court did deal with a wealth of strong circumstantial evidence pointing to guilt that had nothing to do with the lineup. Id. However, the Court distinguished that situation from federal cases where the conviction rested solely on out of court identification. Id. at 366.
The Court cited to United States v. Workman, 470 F.2d 151 (4th Cir. 1972), where the in-court identification was based solely on out of court photo identification. The Court also cited to Kimbrough v. Cox, 444 F.2d 8 (4th Cir. 1971), where the photographic identification was the only evidence that sustained the conviction, and the identification was made two weeks after the actual crime.
In our case there was no physical evidence linking Mr. Hidanovic to the crime. The photographic identification was the means by which Mr. Hidanovic was identified as being at the riot. The photographic identification was the means by which Mr. Hidanovic was identified as having been armed by the only witness who said he was armed. The witness identifying Mr. Hidanovic as being armed was asked to look at the photos six (6) days after the riot. This process was highly suspect and the result is too tenuous to allow the photographic lineup to be admitted or to permit it to serve as the basis for in-court identification. The trial court erred in allowing the photographic identification to serve as the basis for in-court identification. The photographic identification evidence should have been suppressed.
Based on all of the foregoing reasons, the Defendant respectfully requests that his conviction be reversed and that he be granted a new trial.
|David J. Chapman (Atty #05531)|
|Chapman Law Firm|
|The Black Building|
|118 Broadway, Suite 806|
|Fargo, ND 58102|
|FAX: (701) 232-6470|
1 Unfortunately, the transcript is not consecutively paginated. Throughout Appellant's Brief the following abbreviations are utilized to refer to the different transcripts. "Tr." refers to volume one of the trial transcript. "Tr. II" refers to volume two of the trial transcript. "MFNT Tr." refers to the transcript of hearing on the Defendant's first motion for new trial held on April 5, 2007. "MFNT2 Tr." refers to the transcript of hearing held on May 3, 2007, regarding the Defendant's second motion for new trial.
2 Although the transcriber indicates that "extra prejudicial" information were the stated words of counsel, counsel actually stated "extra judicial" and not extra prejudicial.
3 Unlike the Plaintiffs in Andrews v. O'Hearn, Mr. Hidanovic is not asking that the rule against probing into the mental processes or reasoning of the jurors be abandoned. To do so would require we abandon the jury system because we would end up examining every verdict in which a juror reconsidered their opinions after rendering a verdict and decided to "make it right". Mr. Hidanovic's case is much more substantial than the airy assertions of Andrews v. O'Hearn.
4 It is to be noted that Ms. Sparks is African-American. She made a cross-racial identification. Although not the province of this court, Counsel is preparing to make an ineffective assistance of counsel claim for failure to present expert testimony on the failures of eyewitness identification in general, and cross racial identification specifically. Other courts have concluded that cross racial identification is suspect, and that it requires a cross racial identification warning to the jury in certain situations. See . However, counsel is aware that ineffective assistance of counsel claims are not properly made in a direct appeal and reserves that issue for post conviction relief.