State v. Foster, 942 N.W.2d 829

Background

Foster was involved in a July 28, 2018 altercation at a public park during a soccer game; at one point he ran to his car, retrieved a handgun, and displayed it to other players.
After driving a few blocks, Foster stopped; a responding officer found a loaded handgun in the glove compartment of his vehicle.
Several State witnesses testified Foster was the only person with a stick and that he pointed the gun at the goaltender; Foster testified the opposite—he was pursued to his car and the goaltender had a stick.
During cross-examination the prosecutor asked Foster whether other witnesses “saw” the goaltender with a stick and whether those witnesses were lying; the court overruled defense objections.
In closing the prosecutor stated she did not believe Foster’s self-defense claim; defense objections were overruled. The jury convicted Foster of Terrorizing and Carrying a Concealed Weapon.
On appeal the court addressed (1) whether the cross-examination and certain closing remarks constituted prosecutorial misconduct denying a fair trial, and (2) sufficiency of the evidence for both convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether cross-examining Foster by asking him to opine on other witnesses’ veracity was improper prosecutorial misconduct	State: questioning did not force Foster to opine on veracity; it was permissible impeachment/context	Foster: asking whether witnesses were lying invaded the jury’s exclusive role to determine credibility and was improper	Court: Improper — asking defendant to comment on other witnesses’ credibility was improper prosecutorial conduct
Whether prosecutor’s statements of personal belief in closing (esp. disbelief of self-defense) were improper	State: statements about undisputed facts (that Foster had a gun) were permissible; other criticisms were fair argument	Foster: prosecutor’s statement that she didn’t believe self-defense improperly injected the prosecutor’s personal opinion and carried government imprimatur on a contested factual issue	Court: Partially improper — remark that prosecutor didn’t believe self-defense (on contested fact) was improper; other criticisms ("smoke and mirrors") were permissible rebuttal
Whether prosecutorial misconduct was prejudicial so as to violate due process (affecting terrorizing conviction)	State: misconduct did not deprive Foster of a fair trial; evidence supported conviction	Foster: misconduct prejudiced jury’s assessment of credibility on the central dispute (pursuit to car), denying fair trial	Court: Prejudicial as to Terrorizing—misconduct undermined jury’s credibility assessment on the pivotal issue; Terrorizing conviction reversed
Whether evidence was sufficient for Carrying a Concealed Weapon (and whether knowledge/exemption required)	State: evidence showed loaded handgun in glove compartment and Foster lacked required one-year ND ID exemption; statute is strict liability so no knowledge element required	Foster: alleged insufficiency because no proof he knew it was illegal to carry concealed	Court: Sufficient—statute is strict liability; jury rationally found elements; Carrying a Concealed Weapon conviction affirmed

Key Cases Cited

City of Bismarck v. Sokalski, 879 N.W.2d 88 (2016) (de novo review and standards for prosecutorial-misconduct/due-process claims)
State v. Jasmann, 862 N.W.2d 809 (2015) (prosecutorial-misconduct standard cited)
State v. Lemons, 675 N.W.2d 148 (2004) (credibility determinations are for the jury)
State v. Schimmel, 409 N.W.2d 335 (1987) (concerns when prosecutor expresses personal belief in closing)
State v. Duncan, 796 N.W.2d 672 (2011) (prejudice threshold for due process violation from prosecutorial misconduct)
State v. Pena Garcia, 812 N.W.2d 328 (2012) (inappropriate comments alone do not automatically require reversal)
State v. Holte, 631 N.W.2d 595 (2001) (construction of statutory culpability; strict liability where statute omits mental state)
United States v. Geston, 299 F.3d 1130 (9th Cir. 2002) (prosecutor may not compel a witness to call another witness a liar)
United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999) (similar authority on improper impeachment that forces lie determinations)
United States v. Richter, 826 F.2d 206 (2d Cir. 1987) (error where prosecutor induces witness to state law enforcement lied)