State v. Pickens, 916 N.W.2d 612

Background

In 2013 the State charged Clyde Pickens with three counts of gross sexual imposition for alleged sexual contact with M.R. in late 2012; M.R. and her brother C.R. testified for the State.
Pickens testified and denied the allegations; the defense emphasized alleged inconsistencies in witnesses’ statements.
During trial the court admitted live testimony plus recorded interviews; Pickens had previously pled guilty to a separate simple assault related to a December 31, 2012 incident.
During deliberations the jury asked for transcripts of M.R.’s and C.R.’s testimony; no transcripts existed and the court told the jury in writing that none were available without bringing the jury into open court to inform them that audio replay was an option.
The jury then requested to view the videotaped interview of M.R.; over Pickens’ objection the court sent a court clerk with a laptop to play the video in the jury room.
The jury convicted Pickens; on appeal he argued the court’s responses to the jury requests and the clerk’s involvement during deliberations violated his rights and prejudiced his trial.

Issues

Issue	State's Argument	Pickens' Argument	Held
Whether the court erred by not bringing the jury into open court to offer audio playback of testimony when the jury requested transcripts	Court did not explicitly support replay at that moment; maintained there were no transcripts and suggested reliance on jurors’ recollection	Jury should have been told audio replay was available and brought into court per Rule 43(a)(3)(A)	Error: court must allow jury to rehear testimony and must bring jury into courtroom unless an alternative is agreed; failing to do so was erroneous
Whether allowing a clerk to play the videotaped interview in the jury room during deliberations violated statutory protections against contacts with jurors	State proposed clerk-only playback to avoid influence; argued clerk would not engage with jurors	Allowing a third person into jury room to display evidence risks improper communication and compromises deliberation integrity	Error: sending a clerk into jury room to present evidence raised serious concerns under §29-22-02 and could affect verdict; improper and problematic
Whether cumulative trial errors warranted reversal (including possible sequestration and limiting-instruction issues)	Some claimed errors were harmless or not preserved; limiting-instruction error not fully briefed below	Cumulative effect of errors denied fair trial and prejudiced substantial rights	Court reversed and remanded for new trial based on cumulative effect; declined to decide some additional errors on appeal

Key Cases Cited

State v. Parisien, 703 N.W.2d 306 (N.D. 2005) (cumulative trial errors may warrant reversal)
State v. Klose, 657 N.W.2d 276 (N.D. 2003) (defendant’s right to be present at every stage; Confrontation Clause protection)
State v. Austin, 727 N.W.2d 790 (N.D. 2007) (court must allow jury to rehear requested testimony)
United States v. Fredericks, 599 F.2d 262 (8th Cir. 1979) (entering jury room to display evidence may be per se reversible error)
State v. Weisz, 654 N.W.2d 416 (N.D. 2002) (statutory prohibition on communications with jurors prevents extraneous influences)
State v. Smuda, 419 N.W.2d 166 (N.D. 1988) (standard for harmless-error review of constitutional trial errors)