State v. Shaw, 905 N.W.2d 905

In June 2014 Jose Lopez was shot and killed after two men forced entry into his apartment; Delvin Shaw was charged with murder and burglary.
At the first trial, witness Dametrian Welch testified Shaw kicked the door, fought with Lopez, and shot him four times. A jury convicted Shaw, but this Court reversed and remanded based on misapplication of N.D.R.Ev. 404(b) and 403 involving an earlier burglary.
Before the second trial, the State gave notice it would introduce evidence that Shaw participated in a burglary in the same building four days before Lopez’s murder to show plan, motive, or that the murder completed the story of events.
The district court admitted the prior-burglary evidence after applying the Rule 404(b) three-part test and a Rule 403 assessment.
Welch refused to testify at the second trial; the court found him unavailable under N.D.R.Ev. 804(a)(2) and allowed his prior trial audio testimony to be played for the jury.
A jury convicted Shaw; he appealed, arguing improper admission of other-act evidence and that Welch was not properly deemed unavailable. The Supreme Court of North Dakota affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior burglary under N.D.R.Ev. 404(b)	Prior burglary shows motive, plan, intent and completes the story; admissible under 404(b)(2)	Admission was improper and highly prejudicial; court failed to properly weigh Rule 403 balancing	Court affirmed admission: 404(b) three-step test satisfied and district court did not abuse discretion on 403 review
Rule 403 balancing clarity	State argued evidence was relevant and completed the story explaining why Shaw returned to building	Shaw argued court should explicitly state "probative value" vs "prejudice" in order to show proper balancing	Court held explicit phrasing not required; inherent prejudice recognized but probative value (completing the story) justified admission
Unavailability of Welch under N.D.R.Ev. 804(a)(2)	State: Welch refused to testify despite court order and warnings, so he was unavailable and former testimony admissible	Shaw: Welch was not properly found unavailable, so prior testimony should not be admitted	Court held district court did not abuse discretion: Welch refused after order and warning; former testimony admissible
Use of prior trial testimony (hearsay exception)	Former testimony is admissible under 804(b)(1)(A) when witness is unavailable	Shaw: admission of the older testimony was improper because unavailability not established	Court affirmed admission under 804(b)(1)(A) given established unavailability

State v. Campbell, 2017 ND 246, 903 N.W.2d 97 (discussing abuse of discretion standard for evidentiary rulings)
State v. Aabrekke, 2011 ND 131, 800 N.W.2d 284 (describing the three-step 404(b) analysis)
State v. Shaw, 2016 ND 171, 883 N.W.2d 889 (prior appellate decision reversing for misapplication of 404(b) and 403)
U.S. v. Zappola, 646 F.2d 48 (2d Cir. 1981) (procedure for court order and contempt warning when witness refuses to testify)