State v. Rademacher, 984 N.W.2d 660

Background

On July 29, 2019 Steven Rademacher drove a vehicle that struck three people; he was charged with murder, two counts of attempted murder, and three counts of terrorizing.
At trial Rademacher conceded the striking occurred; the disputed issue was his mental state/intent.
After closing arguments and final jury instructions the jury was sent to deliberate; the court and counsel then discussed exhibits and a missing Exhibit 121.
The court made a remark, “The defendant has been taken back to the jail,” and Rademacher later claimed he had been absent for closing, instructions, and parts of the post-instruction handling of exhibits.
Defense did not object at trial to the alleged absences; appellate review therefore applied the obvious-error standard.
The Supreme Court reviewed the record, concluded Rademacher was present for closing and instructions and for much of the exhibit discussion (including the decision about substituting a copy of Exhibit 121), and affirmed the convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rademacher was absent for closing arguments and final jury instructions	State: Record shows defendant was present for reconvening, initial/final instructions, and both closings; no removal during those stages	Rademacher: Judge’s remark indicates he was taken back to jail earlier and therefore was not present for closings/instructions	Court: Transcript shows no recess between instructions and closings and indicates defendant was present; defendant failed to show error
Whether defendant was excluded after jury sent to deliberate when court and counsel reviewed instruction folder	State: discussion was administrative; defense counsel declined further review and defendant was not prejudiced	Rademacher: He might have wanted to review the instruction folder and could have discovered an error if present	Court: Argument speculative and inadequate to show error; defendant did not establish he was improperly excluded
Whether defendant was excluded during handling/decisions about trial exhibits (including missing Exhibit 121)	State: Transcript shows defendant was brought back for the Exhibit 121 discussion and for decisions about large exhibits; handling was administrative	Rademacher: He was excluded for discovery/discussion and should have been present for resolution	Court: Record shows defendant was present for the Exhibit 121 discussion and agreed to substitute a copy; no error shown
Whether the Court should amend N.D.R.Crim.P. 43 as part of this appeal	State: Rule amendment request is improper in an appellate brief; there is a rulemaking petition process	Rademacher: Rule 43 is internally contradictory and should be amended	Court: Declined to amend rule in this adjudication; directed defendant to use N.D.R.Proc.R. § 3.1 petition process

Key Cases Cited

Illinois v. Allen, 397 U.S. 337 (1970) (defendant’s right to presence is constitutionally grounded and may be lost by disruptive behavior)
Pointer v. Texas, 380 U.S. 400 (1965) (Sixth Amendment confrontation right made applicable to states)
Chapman v. California, 386 U.S. 18 (1967) (federal constitutional error is harmless only if harmless beyond a reasonable doubt)
City of Mandan v. Baer, 578 N.W.2d 599 (1998) (discussing state constitutional right to presence and scope of Rule 43)
State v. Ash, 526 N.W.2d 473 (N.D. 1995) (communicating with jury outside defendant’s presence may be harmless if rights not affected)
State v. Hatch, 346 N.W.2d 268 (N.D. 1984) (Rule 43 presence requirement; communications with jury outside presence reviewed under harmless-error principles)
State v. Smuda, 419 N.W.2d 166 (N.D. 1988) (presence requirement and harmless-error analysis)
State v. Kruckenberg, 758 N.W.2d 427 (N.D. 2008) (failure to object at trial triggers obvious-error review)