933 N.W.2d 918
N.D.2019Background:
- Terrance Tyler was charged with aggravated assault and tried in Burleigh County; the victim was subpoenaed and testified for the State.
- After direct examination and cross-examination, the victim was sequestered and told she could be recalled by either party.
- The victim went into premature labor before the next day of trial and became unavailable to provide additional testimony.
- Tyler moved twice for a mistrial and requested the victim be recalled by telephone; the court denied the mistrial motions and the telephone recall.
- The State called three additional witnesses, rested, Tyler was convicted, and he appealed asserting abuse of discretion, an improper change in trial order, and manifest injustice.
Issues:
| Issue | State's Argument | Tyler's Argument | Held |
|---|---|---|---|
| Whether denial of mistrial for victim unavailability was an abuse of discretion | Denial proper: victim had testified and been cross-examined; no prejudice shown; unavailability not party fault | Prejudiced by loss of additional testimony; mistrial required | Denial affirmed — no abuse of discretion; mistrial is extreme remedy and defendant showed no prejudice |
| Whether court erred by referencing Tyler's failure to say he would recall the victim (Rule 16 concern) | References were context-specific and did not impose a Rule 16 disclosure obligation on defendant | Court impermissibly required defendant to disclose potential defense witnesses, violating N.D.R.Crim.P. 16 | No misapplication of law — references were part of assessing remedy for an unavailable witness, not a disclosure requirement |
| Whether court improperly changed order of trial without notice | Court did not change trial order; it addressed an unforeseen unavailability of a witness who had already testified | Court effectively forced part of defense into State’s case-in-chief without notice, violating N.D.C.C. § 29-21-01 | No improper change — court did not alter procedure; it considered the fact a witness had already testified for the State |
| Whether victim's unavailability caused manifest injustice requiring mistrial | No manifest injustice: victim was cross-examined, defendant had latitude, no offer of proof or continuance sought | Unavailability caused manifest injustice and deprived Tyler of material testimony | No manifest injustice shown — defendant failed to make offer of proof or seek continuance; denial of mistrial affirmed |
Key Cases Cited
- State v. Rende, 905 N.W.2d 909 (N.D. 2018) (mistrial is an extreme remedy; standard of review for mistrial motions)
- State v. Lemons, 675 N.W.2d 148 (N.D. 2004) (district court has broad discretion when a material witness is unavailable and defendant shows no prejudice)
- Rogers v. State, 903 N.W.2d 730 (N.D. 2017) (abuse-of-discretion standard for denying new-trial or mistrial motions)
- Flatt v. Kantak, 687 N.W.2d 208 (N.D. 2004) (assessing the trial court's ruling as a whole to determine abuse of discretion)