State v. Aguero , 2010 N.D. LEXIS 221 ( 2010 )

SANDSTROM, Justice.

[¶ 1] Billy Joe Valdez Agüero and Joseph Daniel Moneada appeal from criminal judgments entered after a jury found they were each guilty of two counts of murder and two counts of conspiracy to commit murder. We affirm the judgments.

I

[¶ 2] At approximately 11:45 p.m. on September 7, 2001, the bodies of Robert Belgarde and his son, Damien Belgarde, were found in a rural area near Grand Forks. Robert and Damien Belgarde each had several gunshot wounds, and Robert Belgarde suffered from a blunt force injury to his head. Law enforcement recovered a broken beer bottle, a partially smoked cigarette, unspent 9 mm cartridges, bullet casings, and fired bullets from the crime scene.

[¶ 3] In August 2008, Agüero and Mon-eada were each charged with two counts of murder in violation of N.D.C.C. § 12.1-16-01, a class AA felony, and two counts of conspiracy to commit murder in violation of N.D.C.C. § 12.1-06-04, a class AA felony, for the deaths of Robert and Damien Belgarde. The State alleged the Bel-gardes contacted Moneada to purchase drugs, Agüero and Moneada met the Bel-gardes at a grocery store, and Agüero and Moneada took the Belgardes to a rural area near Grand Forks where they hit Robert Belgarde on the head with a beer bottle and shot the Belgardes multiple times.

[¶ 4] The cases were joined for trial. Moneada was in prison in Minnesota at the time he was charged with the murders and he filed a request for final disposition under the Agreement on Detainers, requesting speedy disposition of the detainer under N.D.C.C. § 29-34-01. On January 30, 2009, the State moved to extend the time for the detainer, and Moneada objected. The court granted the State’s motion. Before trial, Moneada’s attorney requested the defendants wear non-visible restraints, and the court granted the request. A jury trial was held June 15-25, 2009. Moneada and Agüero wore leg restraints during the trial. The jury found Agüero and Monea-da were both guilty as charged.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.RApp.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

[¶ 6] After the appeal was filed, the defendant moved to remand the case to the district court to correct the record to reflect that restraints were visible to the jury. This Court remanded to the district court to hear the motion. After an eviden-tiary hearing, the district court denied the motion to amend the record.

II

[¶ 7] Agüero and Moneada argue they were denied the right to a fair trial because they were required to wear leg restraints during the trial. They claim the leg restraints were visible and the court did not make any findings that the restraints were necessary for courtroom security.

[¶ 8] We review a district court’s decision whether to use physical restraints during court proceedings for an abuse of discretion. State v. Kunze, 2007 ND 143, ¶ 14, 738 N.W.2d 472. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶ 9] In Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the defendant was shackled with leg irons, handcuffs, and a belly chain that were visible to the jury, and the United States Supreme Court held that the Constitution forbids the routine use of visible shackles during the guilt phase of a criminal trial, unless the use is justified by an essential state interest:

[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.

[¶ 10] State interests justifying the use of visible restraints include physical security, escape prevention, and courtroom decorum. Deck, 544 U.S. at 628, 125 S.Ct. 2007. In deciding whether restraints should be used, a trial court should consider various factors, including the accused’s record, temperament, desperateness of his situation, his physical condition; the security situation in the courtroom and courthouse; and whether there was an adequate means of providing security that was less prejudicial. Kunze, 2007 ND 143, ¶ 18, 738 N.W.2d 472. If visible restraints are used, the court must make case-specific findings and explain its reasons on the record, justifying the use. Id. at ¶¶ 18, 21, 24. When a court, “without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the shackling error complained of did not contribute to the verdict obtained.’ ” Deck, at 635, 125 S.Ct. 2007 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

[¶ 11] In a pretrial motion Moneada requested the court order the defendants wear non-visible restraints:

counsel for the Defendant is requesting that Joseph Daniel Moneada be allowed to appear before the finder of fact without visible restraints and in non-jail garb. There is a restraint that may be worn underneath the clothing of an accused that is more than adequate for security and still allows sedate movement to and from the witness stand with nothing more than a limp.

Agüero joined Moncada’s motion. In the March 19, 2009, pretrial conference the court granted Moncada’s motion, stating, “we’ll grant the Defendant’s Motion for street attire and non-visible restraints.” The defendants requested the court order non-visible restraints, and the court granted the motion. Because the defendants requested restraints, they waived any claim that the court violated their constitutional rights by failing to make the required findings about the necessity of restraints. Cf. State v. Klose, 334 N.W.2d 647, 651 (N.D.1983) (“a person legally should not be permitted to benefit from an error resulting from or through the action that he promoted or instigated”; a defendant cannot complain and use to his advantage an error caused by the court’s actions at the defendant’s request).

[¶ 12] We have also said a court’s findings on the necessity of restraints should include “the reason for not accommodating a request for one type of restraint rather than the other when the reason is not obvious on the record.” Kunze, 2007 ND 143, ¶ 24, 738 N.W.2d 472. If Moncada’s pretrial motion can be interpreted as a request for a specific type of restraint, the court granted the motion as requested. Although Moneada and Agüero were later restrained with leg shackles instead of restraints worn under clothing, the court did not make any findings about the reason for not accommodating the defendants’ request. The defendants objected to the leg shackles, arguing they were potentially visible to the jury. Although an argument that there should have been findings about the reason for not accommodating the defendants’ request for a certain type of restraint could have been raised more clearly, it was error to use another type of restraint without the required findings.

[¶ 13] The Deck standard applies “where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury,” Deck, 544 U.S. at 635, 125 S.Ct. 2007, but failure to make findings about the court’s reason for not accommodating a request for a specific type of restraint is harmless when there is no evidence the jury saw the restraints or the restraints interfered with a defendant’s defense. See People v. McWhorter, 47 Cal.4th 318, 97 Cal.Rptr.3d 412, 212 P.3d 692, 732 (2009) (an unjustified or unadmon-ished shackling is harmless when there is no evidence the jury saw the restraints); Mendoza v. Berghuis, 544 F.3d 650, 654-55 (6th Cir.2008) (Deck applies only to visible restraints). In this case, there is no evidence in the trial record that the jury saw the restraints. It is not clear from the record what type of restraints the defendants were wearing, only that they were leg restraints with chains. There is evidence in the record that the tables the defendants sat at during the trial blocked the view the jury had of their feet and that boxes were placed around the table to further obstruct the jury’s view. The court specifically found the view of the defendants’ feet was properly obstructed. Although Agüero claims jurors may have seen or heard the restraints when they were unexpectedly brought into the courtroom on one occasion and the defendants rushed to their seats, the parties did not approach the court during the trial with any concerns or request the record reflect the jury saw or heard either of the defendants’ restraints. There was no evidence from jurors that they saw the restraints. Cf. Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir.1999) (five jurors testified they saw the restraints during the trial). There is nothing in the record supporting the defendants’ claims that the restraints were visible, and the defendants do not claim the leg restraints interfered with their defense or prevented them from communicating with their attorneys. Moreover, the evidence in the record is overwhelmingly in support of the guilty verdicts. We conclude the error was harmless. N.D.R.Crim.P. 52(a).

[¶ 14] On the basis of this record, we conclude there was no reversible error in requiring that Agüero and Moneada wear restraints during the trial.

Ill

[¶ 15] Moneada argues his Sixth Amendment right to confront witnesses against him was violated when the district court allowed a witness to testify about Damien Belgarde’s statement that he was meeting Moneada at a grocery store on the night of the murders. He contends the United States Supreme Court limited the right to use any of a decedent’s out-of-court statements in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), and a decedent’s out-of-court statements are not admissible unless the statements are a dying declaration or the accused had a prior opportunity to cross-examine the declarant.

[¶ 16] We apply a de novo standard of review to a claim of a constitutional violation. State v. Sorenson, 2009 ND 147, ¶ 16, 770 N.W.2d 701. Under the Confrontation Clause of the Sixth Amendment of the United States Constitution, an accused has a right to confront the witnesses against him. The United States Supreme Court has held the Sixth Amendment prohibits the admission of testimonial statements against an accused unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause does not apply to non-testimonial statements. Sorenson, at ¶ 16. The United States Supreme Court has not specifically defined what a testimonial statement is, but has said, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, at 51, 124 S.Ct. 1354. This Court has held statements made to friends or family generally are not testimonial statements, and the Confrontation Clause does not apply. Sorenson, at ¶ 20.

[¶ 17] In Giles, 128 S.Ct. at 2681-82, the trial court allowed the admission of the murder victim’s statements made to a police officer responding to a domestic violence call. The United States Supreme Court has held a defendant forfeits his Sixth Amendment right to confront a witness against him when his wrongful act made the witness unavailable to testify, only if the defendant engaged in the wrongful conduct with the intent to prevent the witness from testifying. Id. at 2684. Although Moneada argues this applies to all statements by a deceased de-clarant, the Court ruled confrontation rights apply only to testimonial statements, and the parties in that case did not dispute that the statements were testimonial. Id. at 2682. Giles did not extend Sixth Amendment confrontation rights to all statements made by a deceased declar-ant, including statements that are not testimonial. See id. at 2692-93 (the Confrontation Clause excludes only testimonial statements, and statements to friends and neighbors may be excluded only by hearsay rules, if at all).

[¶ 18] Here, a witness testified she was present when Damien Belgarde called Moneada at approximately 9:50 p.m. on September 7, 2001, Damien Belgarde said he was meeting Moneada at a nearby grocery store, and then the Belgardes left the apartment. Damien Belgarde’s statements to the witness were casual remarks made to a friend or acquaintance. See Sorenson, 2009 ND 147, ¶ 20, 770 N.W.2d 701. We conclude the statements were not testimonial and the admission of the statements did not violate Moncada’s confrontation rights.

IV

[¶ 19] Moneada argues the district court erred in granting a continuance and failing to try him within 180 days of his request for speedy disposition of the detainer as required by N.D.C.C. § 29-34-01, the Interstate Agreement on Detainers (“IAD”).

[¶ 20] We have explained the standard of review for deciding whether good cause exists to grant additional time:

Legal logic dictates sound discretion is the proper standard to be applied on the question whether or not good cause existed for extension or continuance, and that an appellate court will not reverse such decision except in instances where the trial judge abused his discretion. We have repeatedly stated that abuse of discretion is the equivalent of acting unreasonably, arbitrarily or unconscionably.

State v. Foster, 1997 ND 8, ¶ 6, 560 N.W.2d 194 (quoting State v. Kania, 341 N.W.2d 361, 365 (N.D.1983)).

[¶ 21] “[A] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he faces pending criminal charges in another jurisdiction and requesting the institution to hold the prisoner or give notice when his release is imminent.” State v. Moe, 1998 ND 137, ¶ 20, 581 N.W.2d 468. “The IAD provides a method for the orderly disposition of detainers filed by one jurisdiction on prisoners incarcerated in another jurisdiction.” Id. at ¶ 8. Section 1 of Article III of the IAD, as codified in N.D.C.C. § 29-34-01, provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

[¶ 22] When deciding whether there is good cause to grant additional time, we consider the length of the delay, the reason for the delay, the defendant’s assertion of his right, and whether there is prejudice to the defendant. State v. Moore, 2007 ND 7, ¶ 6, 725 N.W.2d 910. Delay is not presumptively prejudicial, and a lack of prejudice substantially weakens a claim. Id.

[¶ 23] After a hearing on the State’s motion, the district court found there was good cause to grant a continuance for a reasonable amount of time:

[T]his court determines that the State has met its burden of showing good cause why the 180 disposition timeline should be continued for a reasonable amount of time after March 8, 2009. This matter has been processed without unnecessary delay, and any lengthy delays which have occurred have been as a result of the conflict discovered between the initial court-appointed counsel and the Defendant (October 8, 2008-No-vember 10, 2008), those sought by the Defendant’s counsel to afford ample preparation for the Preliminary Hearing (November 12, 2008-January 16, 2009), and those necessitated by defense counsel’s unavailability for hearing the State’s motion (February 6, 2009-Feb-ruary 27, 2009).

[¶24] In considering the length of time of the delay, we have said, “The allowable delay for a minor street crime is considerably less than that for a more serious and complex charge.” Moore, 2007 ND 7, ¶ 7, 725 N.W.2d 910. Moneada claims the trial was required to begin on March 8, 2009. The trial began on June 15, 2009, which was approximately 100 days after the 180-day period ended. Although there was a significant delay in this case, all of the factors must be given weight, and none of the factors is controlling, including the length of the delay. Id. at ¶ 6.

[¶ 25] The second factor to consider is the reason for the delay. In August 2007, Moneada began serving a thirty-nine month sentence for a conviction of a drug-related offense in Minnesota and was scheduled to be released on May 14, 2009. Moneada was charged in this case in August 2008, and his request for final disposition was filed on September 9, 2008. Mon-cada’s request for court-appointed counsel was approved and counsel was appointed in early October 2008, but his counsel informed the court there was a conflict in November 2008 and new counsel was appointed. A preliminary hearing was scheduled for November 12, 2008, but Moneada requested a continuance and the hearing was rescheduled for January 16, 2009. On January 30, 2009, the State moved to extend the period for the detain-er, and Moncada’s counsel indicated he would not be available for a hearing on the motion until the last week of February. Moneada was responsible for many of the delays in the proceedings.

[¶ 26] We must also consider Moncada’s assertion of his right and any prejudice. There are three types of prejudice: oppressive pretrial incarceration, anxiety caused by the delay, and an impaired defense. Foster, 1997 ND 8, ¶ 12, 560 N.W.2d 194. Moneada does not claim there was any anxiety caused by the delay or that his defense was impaired. Monea-da was not subject to oppressive pretrial incarceration. Moneada was not scheduled to be released from his incarceration in Minnesota until a month before the trial began, and his pretrial incarceration was not unreasonable under the facts of this case. Any prejudice caused by the delay was not legally significant. Cf. Moore, 2007 ND 7, ¶ 9, 725 N.W.2d 910 (no prejudice when defendant is incarcerated on another charge during the delay).

[¶ 27] Here, Moneada was responsible for much of the delay in the proceedings and he has not shown or alleged any prejudice. The court reasonably concluded there was good cause. We conclude the court did not act unreasonably, arbitrarily, or in an unconscionable manner, and it did not abuse its discretion.

V

[¶ 28] Agüero argues the district court erred in allowing Investigator Larry Hoffman to comment during the trial on Aguero’s decision to remain silent during an interview. On September 17, 2001, law enforcement officers from the Grand Forks County Sheriffs Department, including Hoffman, went to Aguero’s residence and asked him to come to the police station for an interview. Agüero agreed to go to the station, he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he was cooperative and answered the officers’ questions. During the trial Hoffman testified about questioning Agüero:

Q. At the end of the interview did you ask—

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Q. Investigator Hoffman, near the end of the interview did you ask Mr. Agüero if he was with Joe and met Robert and Damien on Friday night?

A. Yes.

Q. What was his response?

A. There was no response. He would not admit it or deny that he was with them.

Agüero objected to this testimony, arguing it was prohibited because he invoked his right to remain silent, but the court overruled his objection.

[1129] In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held Miranda warnings carry an implicit assurance that silence will not carry a penalty, and the use at trial of post-arrest, post-Miranda silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. The Court further explained the “use of silence for impeachment was fundamentally unfair in Doyle because ‘Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.... Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.’ ” Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (quoting Anderson v. Charles, 447 U.S. 404, 407-08, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980)). See also Jenkins v. Anderson, 447 U.S. 231, 239-40, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (use of pre-arrest silence for impeachment purposes did not violate fundamental fairness guaranteed by the Fourteenth Amendment because no governmental action or assurances induced the defendant to remain silent).

[¶ 30] Agüero had received the Miranda warning and had been advised of his right to remain silent. Once an individual has been advised of his rights, questioning must cease if he indicates he wishes to remain silent. See State v. Greybull, 1998 ND 102, ¶ 15, 579 N.W.2d 161. An individual also may selectively waive the right to remain silent and answer some but not all of the questions. See, e.g., United States v. Jumper, 497 F.3d 699, 704 (7th Cir.2007); United States v. Lorenzo, 570 F.2d 294, 297-98 (9th Cir.1978). The individual, however, must indicate that he is invoking that right, and silence alone may not be sufficient to invoke the right. See Jumper, at 705-06; see also Berghuis v. Thompkins, — U.S. -, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (invocation of right to remain silent must be unambiguous, and defendant did not invoke the right when he remained silent for a period of time).

[¶ 31] Here, Agüero was cooperative and answered the officer’s questions during the interview, but he remained silent in response to a question at or near the end of the interview. It is unclear from this record whether Agüero invoked his right to remain silent. Even if this was an improper use of Aguero’s post-Miranda silence, however, harmless error analysis is appropriate. See State v. Hill, 1999 ND 26, ¶ 17, 590 N.W.2d 187. The following factors should be considered in deciding whether the improper use of a defendant’s silence was harmless error:

1. The use to which the prosecution puts the [post-Míramfe ] silence.

2. Who elected to pursue the line of questioning.

3. The quantum of other evidence indicative of guilt.

4. The intensity and frequency of the reference.

5.The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

Id.

[¶ 32] The testimony about Aguero’s post-Miranda silence was in response to a question from the prosecutor and was used as substantive evidence of his guilt. However, the comment was brief, the State did not refer to his silence at any other time during the trial, Agüero did not move for a mistrial, and there was considerable evidence of Aguero’s guilt.

[¶ 33] There was testimony Agüero told a friend on the evening of September 7, 2001, that someone owed him money and “they were going to get dealt with.” Witnesses testified they saw Agüero and Mon-eada together on the night of the murders. There was evidence Robert and Damien Belgarde called Moneada to purchase drugs, they arranged to meet Moneada at a grocery store, and they left the apartment they were at and walked to a nearby grocery store around 9:50 p.m. A witness testified she saw the Belgardes sitting outside the grocery store at approximately 10 p.m., they were still there when she left the store approximately fifteen minutes later, and it appeared they were waiting for someone. Agüero was photographed by a surveillance camera at the grocery store at 10:10 p.m. Witnesses testified they saw Agüero and Moneada in a dark-colored Chevrolet Cavalier on the night of the murders. Law enforcement seized a black Chevrolet Cavalier at Aguero’s father’s house in September 2001, and the Cavalier’s tires were consistent with tire imprints at the scene of the murders. Witnesses testified Moneada said he and Agüero shot two people and Agüero said he shot someone with Moneada. There was evidence Moneada purchased two 9 mm handguns and three types of ammunition from an acquaintance a few weeks before the murders, and he used the same guns while target shooting at an abandoned farmstead during the winter before the murders. There was testimony that two of the types of ammunition Moneada purchased were expensive and hard to find for sale in the area. Unspent cartridges found at the crime scene were the same three types of ammunition Moneada purchased. Cartridge casings found at the crime scene and some found at the abandoned farmstead were fired from the same gun. There was evidence Moncada’s DNA was found on a partially smoked cigarette found approximately ten feet from Robert Belgarde’s body. There was evidence Agüero could not be excluded as one of the sources of DNA on a beer bottle found at the crime scene. Moncada’s DNA was found on cigarette butts in the Cavalier and Robert Belgarde’s DNA was consistent with DNA found on a cigarette butt in the Cavalier.

[¶ 34] Considering the relevant factors based on this record, we conclude any error in allowing Hoffman’s testimony about Aguero’s post-Miranda, silence was harmless.

VI

[¶ 35] Agüero argues the district court erred in allowing prejudicial hearsay testimony. He contends the court erred in allowing Brandy Clauthier to testify about statements she claimed her cousin, Shannon Clauthier, made about the murders. The State contends the statements were prior consistent statements and were not hearsay under N.D.R.Ev. 801(d)(l)(ii).

[¶ 36] Moneada called Brandy Clauthier as a witness. Agüero objected, but the court allowed her to testify. She testified Shannon Clauthier told her he and “a couple of guys” killed the Belgardes and he disposed of some clothing in the river. The court advised the State it could ask who the two other individuals were. Brandy Clauthier testified Agüero and Monea-da were the two people Shannon Clauthier told her he had helped with the murders.

[¶ 37] A district court has broad discretion over evidentiary matters, and we will not reverse the court’s decision unless the court abused its discretion. State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586. A statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the de-clarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.... ” N.D.R.Ev. 801(d)(1); see also State v. Wegley, 2008 ND 4, ¶ 17, 744 N.W.2d 284. We have explained the requirements for qualification as nonhearsay under the rule:

First, the declarant must have testified and been subject to cross-examination about the statement. Second, the statement must be offered to rebut a charge of recent fabrication or improper influence or motive. And finally, the statement must be a prior consistent statement made before the charge of recent fabrication or improper influence or motive arose.

State v. Leinen, 1999 ND 138, ¶ 9, 598 N.W.2d 102 (citations omitted).

[¶ 38] Shannon Clauthier, the declar-ant, testified at the trial and was subject to cross-examination. Shannon Clauthier testified he was at a residence with Agüero and Moneada on the night of the murders, Agüero and Moneada left, Moneada returned a few hours later, Moneada told him Agüero shot two people but later said they shot two people, and Moneada asked him to get rid of a garbage bag located in a vehicle. Shannon Clauthier testified he threw the garbage bag in the river and some clothes fell out of it. Shannon Clau-thier was interviewed about the murders by police on multiple occasions, beginning in October 2005.

[¶ 39] During the trial, Agüero and Moneada portrayed Shannon Clauthier as a liar and claimed he was responsible for the murders. Moneada and Agüero attacked Shannon Clauthier’s credibility by asking him about prior statements he made to law enforcement about the murders, arguing his statements had been inconsistent and he had said various other people were involved in the murders. Brandy Clauthier testified that Shannon Clauthier told her in May 2005 that he and Agüero and Moneada killed the Belgardes and that he disposed of clothes and a gun in the river. Shannon Clauthier’s statements to Brandy Clauthier were consistent with his testimony that Moneada and Agüero were involved in the Belgarde murders and that he disposed of a bag of clothing at Moncada’s request. Shannon Clauthier’s statements to Brandy Clauthier were made in May 2005, prior to the charge of recent fabrication or improper motive.

[¶ 40] Brandy Clauthier’s testimony is not hearsay under N.D.R.Ev. 801(d). We conclude the court did not abuse its discretion by allowing the testimony.

VII

[¶ 41] Agüero argues the district court erred by failing to properly admonish the jury at every break or adjournment in the proceedings. Under N.D.C.C. § 29-21-28, the court is required to admonish the jury:

The jurors also, at each adjournment of the court, whether permitted to separate or required to be kept in charge of officers, must be admonished by the court that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any opinion thereon, until the case is finally submitted to them.

Rule 6.11(b), N.D.R.Ct., also states that the court shall admonish the jurors in a criminal case at each adjournment not to converse among themselves or with anyone else about any subject connected to the trial and not to form or express an opinion about the case until it is submitted to them for deliberation.

[¶ 42] Here, the court did not admonish the jury at every break in the proceedings. However, Agüero concedes that he did not object to the court’s failure to admonish the jury and he has not demonstrated any prejudice. Under N.D.R.Crim.P. 52(a), we will disregard any error, defect, or irregularity that does not affect a defendant’s substantial rights. See also State v. Ripley, 2009 ND 105, ¶ 27, 766 N.W.2d 465 (the court’s failure to admonish the jury was harmless error when the defendant did not object or claim any prejudice). Agüero does not claim the alleged error affected his substantial rights. We therefore conclude any error was harmless and must be disregarded.

VIII

[¶ 43] We affirm the judgments.

[¶ 44] DALE V. SANDSTROM