Summary
The North Dakota Supreme Court affirmed Michael David Cone’s aggravated-assault conviction. The court held that the district court did not abuse its discretion in addressing an alleged discovery violation, and that any error concerning evidence of Cone’s prior misdemeanor assault convictions was invited because Cone introduced the evidence before the court ruled on his motion. The court also rejected Cone’s prosecutorial-misconduct and attorney-client-privilege arguments.
Topics
Practice areas
Questions Presented
- Whether the district court provided an adequate remedy for the State's alleged discovery violation.
- Whether the district court erred in admitting evidence of Cone's prior misdemeanor assault convictions under the rules governing impeachment and other-acts evidence.
- Whether the prosecutor committed misconduct through statements made during trial.
- Whether the State violated N.D.R.Ev. 512 by questioning a witness about attorney-client privilege.
- Whether any asserted errors required reversal of Cone's conviction.
Holdings
- Even assuming the State violated N.D.R.Crim.P. 16, the district court did not abuse its discretion by delaying the trial, ordering production of the police reports, permitting additional preparation and examination of the complainant, and denying exclusion of the complainant's testimony, a continuance, or a mistrial.
- The court declined to decide whether the State actually violated N.D.R.Crim.P. 16 because Cone did not adequately support or brief that argument.
- The prior misdemeanor assault convictions were not admissible under N.D.R.Ev. 609 because they did not require proof of a dishonest act or false statement, but any error in their admission was invited and therefore was not reversible error.
- Cone's prosecutorial-misconduct claim did not warrant relief because he offered only conclusory assertions and failed to provide supporting reasoning, authority, or an argument that the alleged conduct prejudiced his substantial rights.
- The State's questions about whether attorney-client privilege would apply to statements Cone might have made to the attorney did not violate N.D.R.Ev. 512 because no privilege claim was made and the State did not comment on or invite an inference from a claim of privilege.
Key quotations
“When a party has shown a discovery violation, the district court has discretion in applying a remedy under N.D.R.Crim.P. 16(d)(2).” (¶ 8)
“A district court must apply a three-step analysis to determine whether evidence of prior crimes or bad acts is admissible” (¶ 14)
“where [a litigant] “opened the door” and “invited error” there can be no reversible error.” (¶ 17)
“The State’s questions did not violate N.D.R.Ev. 512” (¶ 23)
Factual background
The State charged Cone with aggravated assault and felonious restraint based on allegations that he punched the complainant and broke her nose. The State provided the complainant's criminal history on the first morning of trial, after Cone had sought discovery of witness criminal histories and related police reports. The trial court postponed proceedings for the day, ordered production of police reports, allowed Cone to question the complainant outside the jury's presence, and offered additional preparation time and subpoenas. Cone later testified about his own prior misdemeanor assault convictions, and the jury convicted him of aggravated assault but acquitted him of felonious restraint.
Procedural history
The State charged Cone in Ward County District Court with aggravated assault and felonious restraint. During trial, the court found the State had not fully complied with discovery requests but ordered production of police reports, allowed additional preparation time, and denied Cone's requests to exclude the complainant's testimony, continue the trial, or declare a mistrial. The jury convicted Cone of aggravated assault and acquitted him of felonious restraint. The North Dakota Supreme Court affirmed.