Nefarious Intent Not Required

The North Dakota Supreme Court has reversed the denial of post conviction relief, finding prosecutorial misconduct in the admission of “prior bad acts” evidence

Here the evidence in question is statements made by the child, recorded during a forensic interview describing Gaddie sexually abusing the child’s mother. These statements relate to criminal charges against Gaddie that were dismissed. They are set out in both the “redacted” and “unredacted” transcripts of the interview. See supra, at ¶ 5. The State argues the statements were “not necessarily inadmissible” because there “was no reference to another criminal case.” We disagree.

Misconduct

The State’s knowing introduction of the prior bad act evidence coupled with its failure to comply with the Rule 404(b) notice requirement constitutes prosecutorial misconduct. The State argues this was a “misunderstanding between the attorneys, not an intentional scheme to backdoor evidence to which the defense objected.” The State has not provided us with authority for the proposition that a criminal defendant alleging prosecutorial misconduct is required to prove a nefarious intent. Furthermore, its argument fails to acknowledge that in another context we held otherwise. See In re Disciplinary Action Against Feland, 2012 ND 174, ¶ 25, 820 N.W.2d 672 (“We conclude the reach of Rule 3.8(d) is not limited to a prosecutor’s intentional failure to disclose exculpatory evidence, but also applies to a knowing or negligent failure to disclose.”). We reject the State’s argument that Gaddie was required to prove the prosecutors intended that this misconduct occur.

Prejudice

We are not persuaded by the State’s assertion that there is no indication prejudice occurred. The State offered detailed evidence of sexual abuse allegedly perpetrated by Gaddie on another person for no permissible purpose and without the notice required by our rules. The State agreed to redact the material and then failed to do so. The State’s conduct resulted in the district court apparently admitting the evidence without intending to do so and without weighing its prejudicial nature against any type of probative value. Gaddie has shown the prosecutorial misconduct in this case infringed his due process right to a fair trial. Gaddie therefore is entitled to postconviction relief under N.D.C.C. § 29-32.1-01(1)(a) (conviction obtained in violation of the law or constitution).

(Mike Frisch)