State v. Lyman, 978 N.W.2d 734

In March 2021 Lyman was stopped after witnesses reported his vehicle swerving; officers observed signs of intoxication and arrested him for DUI. He did not submit to chemical testing.
Lyman moved to suppress any evidence or references to a refusal to submit to testing; the district court found officers never validly requested testing and granted the motion, ordering no references to a refusal or related testing.
The State amended the complaint to charge only driving under the influence (not refusal) and proceeded to trial.
During opening statement the prosecutor said an officer ‘‘made a mistake’’ and there would be no chemical test, prompting Lyman’s objection that this referred to suppressed or unsupported evidence.
The court sustained the objection, instructed the jury that counsel’s statements are not evidence, struck the prosecutor’s comment, and denied Lyman’s motions for mistrial (renewed after evidence presentation).
The jury found Lyman guilty; on appeal the Supreme Court affirmed, holding any comment was not deliberate misconduct and, in any event, the curative instruction removed prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State’s opening statement constituted prosecutorial misconduct/sought to violate the suppression order	The prosecutor’s remark was a permissible outline of expected evidence (or lack thereof); not a deliberate misstatement	The prosecutor referenced suppressed testing evidence and mischaracterized the record (refusal/test), prejudicing Lyman’s right to a fair trial	No misconduct shown; statements were not improper and, even if misconduct, were not prejudicial given the court’s curative instruction and strike; affirmed
Whether the district court abused its discretion by denying a mistrial after the opening statement	Denial appropriate because the court promptly struck the remark and instructed jury; mistrial is an extreme remedy	Mistrial required because the remark referenced excluded evidence and tainted the jury	No abuse of discretion; curative instruction and striking the comment were sufficient to cure any potential prejudice

State v. Schimmel, 409 N.W.2d 335 (N.D. 1987) (opening statements afforded considerable latitude; reversal only for deliberate misstatement)
State v. Marmon, 154 N.W.2d 55 (N.D. 1967) (purpose of opening statements is to outline expected proof to help jury follow evidence)
State v. Carlson, 881 N.W.2d 649 (N.D. 2016) (mistrial is extreme remedy; review for abuse of discretion)
State v. Foster, 942 N.W.2d 829 (N.D. 2020) (de novo review for constitutional violations from prosecutorial misconduct; two-step inquiry: misconduct then prejudice)
City of Bismarck v. Sokalski, 879 N.W.2d 88 (N.D. 2016) (prosecutorial misconduct can violate due process if it infects trial fairness)
State v. Pena Garcia, 812 N.W.2d 328 (N.D. 2012) (inappropriate prosecutor comments alone do not require reversal in otherwise fair proceeding)
State v. Bazile, 971 N.W.2d 884 (N.D. 2022) (jury presumed to follow curative instructions; instructions generally remove prejudice)