State v. Cone, 2014 ND 130

Background

In July 2012 Cone was charged with aggravated assault and felonious restraint for allegedly punching a complainant and breaking her nose.
Cone requested discovery of witnesses’ criminal histories; the State’s response listed witnesses but did not attach records; the complainant’s criminal-history records were produced only the morning of trial.
Cone moved to exclude the complainant’s testimony or for a continuance/mistrial based on the late disclosure; the district court found no Brady violation, ordered production of police reports and allowed the trial to proceed after giving Cone time to review and examine the complainant outside the jury’s presence.
Cone testified and put his prior misdemeanor assault convictions into evidence on direct; the State cross-examined about them (the court had not made a clear on-the-record ruling on a prior motion in limine).
A jury convicted Cone of aggravated assault (not guilty on felonious restraint). Cone appealed, arguing discovery remedy was inadequate, prior-conviction evidence admission was erroneous, prosecutorial misconduct occurred, and the State improperly commented on attorney-client privilege. The Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Remedy for alleged discovery violation	State: district court’s remedial measures (delay, production of reports, voir dire outside jury, subpoenas, extra review time) were adequate	Cone: late disclosure prejudiced defense; complainant’s testimony should be excluded or mistrial/continuance granted	Court: affirmed — even assuming a Rule 16 violation, district court did not abuse discretion; Cone failed to show significant prejudice
Admission of Cone’s prior misdemeanor assault convictions	State: convictions admissible in rebuttal if defense opens door on complainant’s violence/character	Cone: convictions inadmissible under Rules 404(b) and 609; admitting them impermissibly attacked character and coerced testimony choice	Court: affirmed — any error was invited by Cone when he testified about the convictions (opened the door); no reversible error
Prosecutorial misconduct	State: prosecutor’s comments were proper or harmless	Cone: various prosecutor statements amounted to misconduct depriving him of a fair trial	Court: affirmed — Cone offered no developed argument or demonstration of prejudice; claims not adequately briefed
State’s questions about attorney-client privilege	State: questioning was abstract about whether privilege would apply to Cone’s statements; not a comment on a claim of privilege	Cone: Rule 512 prohibits comment or inference about privilege and the questions were improper	Court: affirmed — no claim of privilege was made; Rule 512 not violated by abstract questioning

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor’s suppression of evidence favorable to defendant violates due process)
State v. Blunt, 799 N.W.2d 363 (N.D. 2011) (district court’s remedy for discovery violation reviewed for abuse of discretion)
State v. Muhle, 737 N.W.2d 636 (N.D. 2007) (court should impose least severe sanction that rectifies prejudice)
State v. Wacht, 833 N.W.2d 455 (N.D. 2013) (abuse-of-discretion standard for evidentiary rulings)
State v. Aabrekke, 800 N.W.2d 284 (N.D. 2011) (Rule 404(b) prior-act admissibility framework and probative-prejudicial balancing)
State v. Grager, 713 N.W.2d 531 (N.D. 2006) (invited-error doctrine: a litigant who opens the door cannot obtain reversal)
State v. Kruckenberg, 758 N.W.2d 427 (N.D. 2008) (prosecutorial misconduct may require reversal if it deprives defendant of due process)
State v. Estrada, 830 N.W.2d 617 (N.D. 2013) (test for assessing prosecutorial misconduct and prejudice)
State v. Evans, 838 N.W.2d 605 (N.D. 2013) (inappropriate comments alone do not require reversal absent prejudice)
State v. Lange, 497 N.W.2d 83 (N.D. 1993) (discusses limits on cross-examining about asserted privileges)