State v. Myers

20050368 State of North Dakota, Plaintiff and Appellee
v.
Daniel Myers, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Bruce B. Haskell
Nature of Action: Drugs/Contraband
Counsel:
Appellant: Benjamin C. Pulkrabek
Appellee: Cynthia Mae Feland , Asst. State's Attorney
Term: 09/2006   Argument: 09/05/2006  9:00am
ND cite: 2006 ND 242
NW cite: 724 N.W.2d 168

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Issues: Appellant's Statement of the Issues:
I. Should this case be remanded for a new trial because the prosecutor in her closing argument referred to Defendant Myers' post arrest silence?
II. Was it reversible error for the trial court to fail to give the admonishment required by N.D.C.C. 29-21-28?
III. Was there evidence sufficient to convict Daniel J. Myers of the offenses charged?

Appellee's Statement of the Issues:
I. Whether a reference to a proposition presented in the defendant's opening statement by the State in its closing argument constitutes harmless error.
II. Whether the District Court's failure to admonish the jury prior to a ten-minute recess constitutes reversible error.
III. Whether there was sufficient evidence presented at trial to sustain the jury verdict of guilty.

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Docket entries:
110/25/2005 NOTICE OF APPEAL: 10/20/2005
210/25/2005 ORDER FOR TRANSCRIPT: 10/20/2005
311/18/2005 RECORD ON APPEAL including separate PSI. Not sent was No. 132 (Tapes)
412/01/2005 TRANSCRIPT DATED June 24, 2005 and September 27, 2005, (in 1 Volume)
512/01/2005 DISK - TRA (6/24/05 & 9/27/05)
601/10/2006 MOT. EXT/TIME APPELLANT BRIEF, Brief in Support, Notice of Mot. (faxed)
701/10/2006 E-FILED MOTION (MAT)
801/10/2006 ACTION BY CHIEF DEPUTY CLERK (MAT). Granted: 02/09/2006
902/09/2006 Notice of Appointment of Counsel (Wayne D. Goter) (faxed)
1002/09/2006 Reset due date for ATB in light of Mr. Goter's recent appointment
1102/09/2006 Reset due date for ATB in light of Mr. Goter's recent appointment. Granted: 03/13/2006
1202/10/2006 Notice of Appearance as counsel for Appellant (Wayne Goter)
1303/07/2006 MOT. EXT/TIME APPELLANT BRIEF (due to conflict of interest)
1403/07/2006 ACTION BY CLERK. Granted: 04/12/2006
1504/07/2006 Appellant Brief (Withdrawn)
1604/07/2006 ADDENDUM ATTACHED TO APPELLANT'S BRIEF
1704/07/2006 APPELLANT APPENDIX
1804/07/2006 DISK - ATB
1904/21/2006 Transcript of Opening Statements and Closing Arguments dated June 24, 2005
2004/21/2006 DISK - tra (6/24/05--Opening Statements & Closing Arguments)
2104/26/2006 MOTION TO WITHDRAW ATB, WHICH WAS FILED BY SUPREME COURT ON 04-07-06, AND BRIEF IN SUPPORT
2204/26/2006 ACTION BY CLERK (Mot to withdraw ATB). Granted
2304/26/2006 MOT. EXT/TIME REPLACEMENT APPELLANT BRIEF (Part of Motion to withdraw ATB)
2404/26/2006 ACTION BY CLERK (MAT). Granted: 05/26/2006
2505/17/2006 APPELLANT BRIEF (replacement)
2605/19/2006 Corrected page 12 for ATB
2705/19/2006 DISK - atb (e-mailed)
2806/14/2006 APPELLEE BRIEF
2906/14/2006 DISK - AEB (emailed)
3009/05/2006 APPEARANCES: Benjamin C. Pulkrabek; Cynthia M. Feland, Asst. State's Attorney
3109/05/2006 ARGUED: Pulrabek; Feland
3209/05/2006 ORAL ARGUMENT WEBCAST
3311/28/2006 DISPOSITION: AFFIRMED
3411/28/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
3511/29/2006 Judgment Mailed to Parties
3612/07/2006 PETITION FOR REHEARING
3712/08/2006 DISK - PER
3812/13/2006 ACTION BY SUPREME COURT (PER ). Denied: 12/13/2006
3912/26/2006 MANDATE
4001/11/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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