State v. Smith, 989 N.W.2d 490

Background

On July 6, 2021, Travis Smith stabbed Corinth Booker multiple times in Booker’s apartment; the encounter was recorded and Smith fled, saying he discarded the knife.
Smith was charged with aggravated assault with a deadly weapon and proceeded to a jury trial in April 2022.
At trial Smith testified he acted in self-defense and admitted discarding the knife; on cross-examination the prosecutor asked whether the knife was important to proving Smith’s innocence — objections were made and the court struck/rephrased questions and sustained objections.
Several bench conferences/sidebars were held off the record (scheduling, short evidentiary objections, and one objection about the cross-examination question).
The State called Dr. Joshua Gebur as an expert on Booker’s injuries; the defense argued the testimony was cumulative and the expert was not properly noticed.
The jury convicted Smith; on appeal he challenged (1) prosecutorial misconduct and burden shifting, (2) violation of the public-trial right by off‑the‑record sidebars, and (3) admission of cumulative/improperly‑noticed expert testimony. The Supreme Court of North Dakota affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State’s cross-examination amounted to prosecutorial misconduct or impermissibly shifted the burden	State: questioning was invited by defense and not improper; any form issues were corrected by the court	Smith: prosecutor’s questions and comments shifted burden to him and constituted misconduct	Not preserved as misconduct (obvious‑error review). Questions were invited by defense opening the door; near the line but no prejudice or burden shifting shown; conviction affirmed
Standard of review / preservation for misconduct claims	State: Smith failed to raise prosecutorial misconduct at trial, so obvious‑error review applies	Smith: claims should be reviewed de novo	Court: Smith did not specifically raise prosecutorial misconduct or move for mistrial; obvious‑error standard applied
Whether off‑the‑record bench conferences violated the Sixth Amendment right to a public trial	State: sidebars were routine scheduling/administrative/evidentiary matters and did not close the courtroom	Smith: unrecorded sidebars excluded the public and deprived him of a public trial	Not preserved; reviewed for obvious error. Sidebars addressed scheduling or routine evidentiary matters in view of the public and did not constitute a closure implicating the public‑trial right; no obvious error
Whether expert testimony was cumulative or improperly noticed under Rule 16	State: Dr. Gebur was timely noticed (three months before trial) with CV and records; testimony was relevant to severity of injury and not overly cumulative	Smith: testimony was needlessly cumulative and the expert was not properly noticed	Court: notice complied with Rule 16; district court did not abuse discretion — expert testimony was relevant and not substantially cumulative; admission upheld

Key Cases Cited

State v. Bazile, 971 N.W.2d 884 (appellate standard when defendant moves for mistrial on prosecutorial misconduct)
State v. Vondal, 803 N.W.2d 578 (obvious‑error review when misconduct not raised at trial)
State v. Samaniego, 970 N.W.2d 222 (preservation required for prosecutorial‑misconduct claims; courts may review obvious error)
State v. Schimmel, 409 N.W.2d 335 (prosecutor must not express personal beliefs or act as an unsworn witness)
State v. Kruckenberg, 758 N.W.2d 427 (no reversal for invited argument or invited response)
State v. Olander, 575 N.W.2d 658 (when self‑defense supported by evidence, State must prove defendant did not act in self‑defense)
State v. Bauer, 783 N.W.2d 21 (self‑defense jury instruction places burden on State)
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (presumption of public trials; limited exceptions)
State v. Martinez, 956 N.W.2d 772 (bench conferences on routine issues ordinarily do not implicate public‑trial right)
State v. Pendleton, 978 N.W.2d 641 (administrative/off‑record conferences typically do not frustrate public‑trial objectives)
State v. Poulor, 932 N.W.2d 534 (abuse‑of‑discretion standard for evidentiary rulings)
State v. Thompson, 777 N.W.2d 617 (district court has broad discretion on relevance and cumulative‑evidence balancing)
United States v. Bentley, 561 F.3d 803 (comments highlighting defense weaknesses do not shift burden)
State v. McDaniel, 777 N.W.2d 739 (prosecutor’s comment on lack of evidence supporting a defense does not necessarily shift burden)