State v. Sevigny

20050315 State of North Dakota, Plaintiff and Appellee
v.
Alan Daniel Sevigny, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge Laurie A. Fontaine
Nature of Action: Sexual Offense
Counsel:
Appellant: Reichert Armstrong Law Office
Appellee: Barbara L. Whelan , Spec. Asst. State's Atty.
Term: 06/2006   Argument: 06/30/2006  9:30am
ND cite: 2006 ND 211
NW cite: 722 N.W.2d 515

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the trial court err by excluding defendant's alibi evidence because the defendant did not give notice of an alibi defense before trial when the dates of the alleged offense only came after the trial had begun and when the state thereby amended its complaint to include the new dates?
A. The trial court erred when it did not allow alibi evidence as an exception to Rule 12.1 because Sevigny had good cause for not giving prior notice of an alibi defense.
B. The trial court erred and it violated Sevigny's Due Process rights when it did not allow Sevigny to testify at trial in regards to his own alibi defense
2. Did the trial court err by allowing hearsay testimony under North Dakota Rules of Evidence, Rule 803 (24), when there was insufficient indicia of reliability as far as time, content, and circumstances of the statement and when it did not make sufficient findings of fact in regards to the time, content, and circumstances of the statement that provide sufficient guarantees of trustworthiness?
3. Did the trial court err when it allowed the testimony of hearsay witnesses under North Dakota Rules of Evidence Rule 803(24), before the testimony of the actual children witnesses during the trial?
4. Did the trial court err in holding the defendant's attorney in contempt in the presence of the jury when he gave his opinion to the jury regarding the sufficiency of the evidence during closing argument?

Appellee's Statement of the Issues:
The State of North Dakota takes exception to issues number one, two and four, as set forth by Mr. Sevigny. The issues are presented contain factual inaccuracies that are not supported by the record. More specifically, the issues should read:
Issue 1: Did the trial court err by excluding defendant's alibi evidence because the defendant did not give notice of an alibi defense before trial, when the dates in question had been disclosed during pre-trial discovery?
Issue 2: Did the trial court err by allowing hearsay testimony pursuant to Rule 803(24) of the North Dakota Rules of Evidence, following a pre-trial hearing on the issue where testimony was presented regarding the time, content and circumstances of the hearsay statements?
Issue 3: The State accepts the issue as presented by Mr. Sevigny.
Issue 4: Did the trial court err in finding the defendant's attorney in contempt of the court when, during his closing argument, the defendant's attorney continually failed to follow the directives of the trial court regarding the scope of argument?


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Docket entries:
109/12/2005 NOTICE OF APPEAL: 09/08/2005
209/12/2005 ORDER FOR TRANSCRIPT: 09/08/2005
310/06/2005 RECORD ON APPEAL (2 Vol.) and separates including PSI
410/13/2005 MOT. EXT/TIME TRANSCRIPT (letter from Anita Schwartz)
510/13/2005 ACTION BY CLERK. Granted: 11/23/2005
611/22/2005 MOT. EXT/TIME TRANSCRIPT (letter from Anita Schwartz dated 11-20-05)
711/22/2005 ACTION BY CHIEF JUSTICE. Granted: 12/15/2005
812/13/2005 TRANSCRIPTS DATED December 3, 2004, December 6, 2004, Dec. 8, 2004, March 28, 2005, March 31, 2005,
912/13/2005 April 8, 2005, April 11, 2005, April 19, 2005, April 25, 2005, April 26, 2005, April 27, 2005,
1012/13/2005 April 28, 2005, April 29, 2005, August 10, 2005, January 14, 2005
1112/15/2005 DISK - Compact Disk w/14 complete transcripts (August 10 is not complete)
1212/21/2005 Affidavit of Mailing (transcript/15 volumes)
1301/17/2006 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support
1401/17/2006 E-FILED MOTION (MAT)
1501/17/2006 ACTION BY CLERK. Granted: 02/21/2006
1602/09/2006 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support (E-filed)
1702/09/2006 E-FILED MOTION (MAT)
1802/09/2006 ACTION BY CHIEF JUSTICE. Granted: 03/23/2006
1903/23/2006 APPELLANT BRIEF (e-filed) (PDF)
2003/23/2006 E-FILED BRIEF (ATB)
2103/23/2006 APPELLANT APPENDIX (e-filed)
2203/23/2006 E-FILED APPENDIX (ATA)
2303/28/2006 Received $25 surcharge (Receipt #16810)
2404/03/2006 Copies of ATB received from Central Duplicating
2504/03/2006 Copies of ATA received from Central Duplicating
2604/18/2006 MOT. EXT/TIME APPELLEE BRIEF (faxed)
2704/18/2006 E-FILED MOTION (MAE)
2804/18/2006 ACTION BY CLERK. Granted: 05/23/2006
2905/23/2006 APPELLEE BRIEF
3005/23/2006 E-FILED BRIEF (aeb)
3105/26/2006 Request for Radio/TV Coverage - AP (e-mail dated May 26, 2006, from Dale Wetzel) (approved)
3205/31/2006 Received $25 surcharge for AEB (Receipt #16881)
3305/26/2006 Copies of AEB made
3406/06/2006 REPLY BRIEF
3506/06/2006 E-FILED BRIEF (RYB (efiled--pdf))
3606/30/2006 APPEARANCES: Jay D. Knudson; Barbara L. Whelan
3706/30/2006 ARGUED: Knudson; Whelan
3806/30/2006 ORAL ARGUMENT WEBCAST
3910/17/2006 DISPOSITION: AFFIRMED
4010/17/2006 UNANIMOUS OPINION: Kapsner, Carol Ronning
4110/17/2006 Judgment Mailed to Parties
4211/08/2006 MANDATE
4311/13/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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