948 N.W.2d 832
N.D.2020Background
- Defendant Coby Edwards was tried for gross sexual imposition (class AA felony) and convicted by a jury.
- Edwards obtained funding to retain a psychologist to testify about the accuracy of the child victim’s memories; counsel initially said the expert would testify but then announced the expert "could not make it" and the expert did not testify.
- Defense made no offer of proof about the expert’s expected testimony and did not otherwise press the issue at trial.
- During cross-examination of a detective, the detective commented on Edwards’ post-arrest silence; defense made no objection and did not move to strike.
- Edwards appealed, arguing (1) reversible error from his retained expert’s failure to testify and (2) reversible error from the detective’s comment about his silence; the State countered that the errors were unpreserved and, as to the silence, elicited by defense and harmless.
- The North Dakota Supreme Court declined to address either unpreserved claim under the obvious-error/forfeiture framework and affirmed the district court judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by allowing the defense's retained expert not to testify | Error not preserved; no legal requirement to force a retained expert to testify | Trial court should have required the retained expert to testify; reversal required | Court declined to reach on appeal because Edwards did not preserve or brief as obvious error and there is no controlling precedent requiring compelled testimony; affirmed conviction |
| Whether the detective's comment on defendant's post-arrest silence requires reversal | Testimony about silence was elicited by defense and any error is harmless or unpreserved | Comment on post-arrest silence was reversible error | Court applied forfeiture/obvious-error framework but declined to address the unpreserved claim because Edwards did not brief it as obvious error; affirmed conviction |
Key Cases Cited
- Ake v. Oklahoma, 470 U.S. 68 (1985) (discusses when state must provide psychiatric assistance to indigent defendant)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard for constitutional errors)
- U.S. v. Olano, 507 U.S. 725 (1993) (distinguishes forfeiture and waiver; plain-error review framework)
- State v. Schneider, 270 N.W.2d 787 (N.D. 1978) (addressed comments on defendant’s post-arrest silence and applied harmless-error review)
- State v. Olander, 575 N.W.2d 658 (N.D. 1998) (adopted Olano framework, using “obvious” error language)
- State v. Finneman, 916 N.W.2d 619 (N.D. 2018) (articulates obvious-error standard and prejudice requirement)
- State v. Pemberton, 930 N.W.2d 125 (N.D. 2019) (issues not raised at trial are reviewed only for obvious error)
- State v. Smith, 934 N.W.2d 1 (N.D. 2019) (defendant bears burden to show obvious error affecting substantial rights)