State v. Duncan, 796 N.W.2d 672

Duncan was convicted by a jury of terrorizing, interference with a telephone during an emergency call, and simple assault-domestic violence stemming from events in February 2010.
The State alleged Duncan threatened Barbara Duncan with a rifle and interfered with her 911 call on February 6, 2010.
Barbara Duncan was called as a witness but refused to testify about February 6, 2010, resulting in contempt and her imprisonment.
The district court admitted an audio recording of Barbara Duncan’s 911 call under excited utterance/present sense impression exceptions, while excluding certain statements she made to officers.
The 911 call was played for the jury and described events including threats, cell phone destruction, and Barbara Duncan leaving to obtain a new phone.
Duncan appeals arguing prosecutorial misconduct and violation of confrontation rights, contending the State’s actions infected the trial and deprived him of due process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation clause and prosecutorial misconduct over the 911 call	Duncan contends the State’s proffer of the 911 call violated confrontation rights	State argues the issue is unsettled law and not prosecutorial misconduct	No due process violation; the prosecutor’s conduct did not prejudice the trial to the point of denial of fair trial
Elicitation of Barbara Duncan’s statements to police	Statements to police were improperly elicited in violation of admissibility rulings	Two instances did not deprive Duncan of a fair trial	Not prosecutorial misconduct; not prejudicial to substantial rights
Opening/closing remarks and inflammatory language	State’s comments inflamed the jury and violated prosecutorial norms	Comments isolated and did not render trial unfair	Not enough to constitute reversible error; trial remained fair
Overall impact of prosecutorial conduct given unsettled law	Unsettled confrontation-clause law renders conduct imputable to misconduct	Unsettled law cautions against automatic reversal	Courts did not find misconduct impairing due process; affirmed conviction

State v. Kruckenberg, 758 N.W.2d 427 (N.D. 2008) (determine when prosecutorial misconduct prejudices due process)
State v. Evans, 593 N.W.2d 336 (N.D. 1999) (essential for determining obvious error cautions)
State v. Burke, 606 N.W.2d 108 (N.D. 2000) (prejudice standard for failures to object at trial)
State v. Paulson, 477 N.W.2d 208 (N.D. 1991) (prosecutorial comments assessed in light of entire proceeding)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause; testimonial statements require cross-examination)