State v. Edwards , 2020 ND 200 ( 2020 )


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  •                  Filed 9/15/2020 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2020 ND 200
    State of North Dakota,                                Plaintiff and Appellee
    v.
    Coby Edwards,                                      Defendant and Appellant
    No. 20200044
    Appeal from the District Court of Ward County, North Central Judicial
    District, the Honorable Douglas L. Mattson, Judge.
    AFFIRMED.
    Opinion of the Court by Crothers, Justice.
    Kelly A. Dillon, Assistant Attorney General, Bismarck, ND, for plaintiff and
    appellee.
    Richard E. Edinger, Fargo, ND, for defendant and appellant.
    State v. Edwards
    No. 20200044
    Crothers, Justice.
    [¶1] Coby Edwards appeals from a criminal judgment after a jury found him
    guilty of gross sexual imposition, a class AA felony. We affirm.
    I
    [¶2] Edwards was charged with gross sexual imposition, a class AA felony.
    Prior to trial Edwards retained a psychologist to testify about the accuracy of
    the child victim’s memories. Trial was held on July 16-18, 2019. Shortly before
    Edwards began presenting his case, his attorney informed the district court his
    expert would not be testifying because “He could not make it today.”
    Additionally, during cross-examination of a police detective by Edwards’
    counsel, the detective made a statement regarding Edwards’ post-arrest
    silence. The statement received no objection, nor was a motion made to strike
    the statement as non-responsive. The jury convicted Edwards of gross sexual
    imposition.
    II
    [¶3] Edwards argues reversible error occurred when his retained expert did
    not testify. He argued in his brief that it was error for his expert to not testify
    at trial. During oral argument, Edwards argued the district court obviously
    erred by failing to require that his retained expert witness testify at trial.
    [¶4] Edwards sought and received funding to retain an expert witness to
    testify about the accuracy of the child victim’s memories. At trial, Edwards’
    counsel first informed the district court the expert witness would testify, and
    the next day told the court the expert would not be testifying. No offer of proof
    was made to establish what the expert would state during testimony. Edwards
    did not otherwise discuss the issue at trial.
    [¶5] “Issues not raised at trial will not be addressed on appeal unless the
    alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).”
    State v. Pemberton, 
    2019 ND 157
    , ¶ 8, 
    930 N.W.2d 125
    (quoting State v. Lott,
    1
    
    2019 ND 18
    , ¶ 8, 
    921 N.W.2d 428
    ). “A defendant has the burden to show an
    obvious error that affects his substantial rights, and we are not required to
    exercise our discretion to notice obvious error when the defendant has not
    raised an issue about obvious error.” State v. Smith, 
    2019 ND 239
    , ¶ 15, 
    934 N.W.2d 1
    .
    [¶6] Edwards did not brief his claim as obvious error. Moreover, no
    controlling precedent exists requiring a criminal defendant’s expert witness
    testify at trial. But see Ake v. Oklahoma, 
    470 U.S. 68
    (1986) (explaining that
    participation of a psychiatrist may be important enough to the preparation of
    a defense to require the State to provide an indigent defendant with access to
    competent psychiatric assistance). Although we may review an issue for
    obvious error even when it has not been argued, we decline to address the
    question presented here. Smith, 
    2019 ND 239
    , ¶ 15.
    III
    [¶7] Edwards argues the detective’s comments regarding Edwards’ post-
    arrest silence constitute reversible error. The State argues testimony
    regarding Edwards’ exercise of his right to remain silent was elicited by
    Edwards’ counsel and was harmless.
    [¶8] In State v. Schneider, 
    270 N.W.2d 787
    , 792 (N.D. 1978), this Court first
    said comment on a defendant’s post-arrest silence is reviewable on appeal even
    though there was no objection at trial. Schneider involved testimony on silence,
    the responses for which were elicited by the prosecutor.
    Id. This Court in
    Schneider applied a harmless error analysis derived from Chapman v.
    California, 
    386 U.S. 18
    (1967). Schneider, at 792.
    [¶9] Since Schneider, the United States Supreme Court has spoken on the
    difference in analysis between Fed.R.Crim.P. 52(a) and 52(b). See U.S. v.
    Olano, 
    507 U.S. 725
    , 731-37 (1993). At its core, Olano explains that a forfeited
    error, even one affecting constitutional rights, may be noticed by an appellate
    court only if it is plain and affects substantial rights.
    Id. at 732.
    Further, Olano
    distinguished between a forfeiture and a waiver, where a forfeiture is the
    failure to make the timely assertion of a right, and a waiver is the intentional
    2
    relinquishment or abandonment of a known right.
    Id. at 733.
    This Court
    adopted the Olano framework in 1998. See State v. Olander, 
    1998 ND 50
    , ¶¶
    13-14, 
    575 N.W.2d 658
    (explaining the only difference between the federal rule
    and the Court’s rule is the word “obvious” in place of “plain”).
    [¶10] Our framework for noticing a defendant’s failure to raise a claimed error
    in a timely manner requires error that is plain or obvious and affects
    substantial rights. State v. Finneman, 
    2018 ND 203
    , ¶ 13, 
    916 N.W.2d 619
    (citing Olander, 
    1998 ND 50
    , ¶¶ 13-14). An obvious error is a clear deviation
    from an applicable rule under current law. Olander, at ¶ 14. A defendant
    claiming a clear or obvious deviation from an applicable legal rule must show
    the deviation affected a substantial right in that it was prejudicial or affected
    the outcome of the proceeding.
    Id. at ¶ 15.
    If a defendant establishes a forfeited
    obvious error involves substantial rights, “an appellate court has discretion to
    correct the error and should correct it if it ‘seriously affect[s] the fairness,
    integrity or public reputation of judicial proceedings.’”
    Id. at ¶ 16
    (quoting
    
    Olano, 507 U.S. at 736
    ).
    [¶11] The defendant has the burden of showing an obvious error affected
    substantial rights, and this Court is not required to exercise its discretion to
    notice obvious error when the defendant has not raised the issue on appeal.
    Smith, 
    2019 ND 239
    , ¶ 15. Edwards did not brief his claim regarding comments
    on his post-arrest as obvious error. Although we may review an issue for
    obvious error when it has been argued but not briefed, we decline to address
    the question presented here.
    Id. 3 IV
    [¶12] The district court judgment is affirmed.
    [¶13] Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    Gerald W. VandeWalle
    Jon J. Jensen, C.J.
    4