State v. Newark, 900 N.W.2d 807

Steven Newark Jr. was charged with burglary, terrorizing, and criminal mischief for allegedly breaking into an apartment, threatening occupants with a wine bottle, and causing at least $100 in damage.
The State amended the information pretrial, filed a witness list that included three Grand Forks police officers, and the court granted a continuance at the State's request.
At trial, after the jury was selected and sworn, the State informed the court the listed officers would not testify in its case-in-chief because they had not responded to the State’s attempts to contact them.
Newark moved for a continuance or dismissal with prejudice; the district court denied relief, noting Newark could have subpoenaed or call the officers as hostile witnesses.
The defense presented an alibi (girlfriend and Newark testified he was at restaurants). After the defense rested, the State called one of the previously listed officers in rebuttal; the court allowed the testimony and deferred ruling on the others, which the State then withdrew.
The jury convicted Newark on all counts; Newark appealed challenging denial of continuance/dismissal and the allowance of rebuttal testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denying a continuance or dismissal after State withdrew officers prejudiced defendant	State: defendant failed to show diligence to secure officers; State not required to call all endorsed witnesses	Newark: late disclosure after jury sworn caused surprise and prejudice; relied on State subpoenas and witness list	Court: No abuse of discretion; Newark showed no prejudice and could have subpoenaed or called officers as hostile witnesses
Whether allowing a police officer to testify in rebuttal was improper	State: rebuttal properly used to contradict Newark's alibi; officer had been disclosed on witness list	Newark: officer’s testimony did not rebut defense and unfairly prejudiced him	Court: No abuse of discretion; officer’s testimony rebutted Newark’s alibi and disclosure was adequate
Whether delaying ruling on additional rebuttal officers was improper	State: court has discretion to control evidence; delay permissible	Newark: delay compounded prejudice and surprise	Court: No abuse of discretion; trial court appropriately exercised discretion and later the State withdrew requests
Whether the cumulative/immaterial nature of officers' testimony warranted relief	State: officers’ testimony would have been cumulative; defendant did not show what favorable testimony would exist	Newark: officers could have provided impeaching or favorable evidence	Court: Defendant failed to identify what favorable testimony existed; no prejudice shown

State v. Muhle, 737 N.W.2d 636 (N.D. 2007) (standard for reviewing continuance and mistrial decisions)
State v. VanNatta, 506 N.W.2d 63 (N.D. 1993) (trial court discretion to control evidence)
State v. Kunkel, 452 N.W.2d 337 (N.D. 1990) (continuance review; no mechanical test)
State v. Ave, 21 N.W.2d 352 (N.D. 1946) (State not required to call everyone endorsed on the information)
Great Plains Supply Co. v. Erickson, 398 N.W.2d 732 (N.D. 1986) (party cannot rely solely on opposing party's subpoena when a witness fails to appear)
Flattum-Riemers v. Peters-Riemers, 630 N.W.2d 71 (N.D. 2001) (denial of continuance proper absent diligence or showing what witness would testify)
State v. Jungling, 340 N.W.2d 681 (N.D. 1983) (rebuttal witness need not be endorsed on information)
State v. Halvorson, 346 N.W.2d 704 (N.D. 1984) (rebuttal witness rules)