State v. Yousif

                                                                              FILED
                                                                      IN THE OFFICE OF THE
                                                                   CLERK OF SUPREME COURT
                                                                        DECEMBER 22, 2022
                                                                    STATE OF NORTH DAKOTA




                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                

State of North Dakota,                                 Plaintiff and Appellee
     v.
Mohammed Yasin Yousif,                              Defendant and Appellant



                               No. 20220156

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Ashlei A. Neufeld, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
and appellee.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
                                State v. Yousif
                                 No. 20220156

McEvers, Justice.

[¶1] Mohammed Yousif appeals from a criminal judgment entered after a jury
found him guilty of aggravated assault. Yousif argues the district court erred
by excluding a witness’s recorded statement. We affirm.

                                        I

[¶2] On July 19, 2020, K.A. was shot while driving a vehicle. During his
initial interview with law enforcement, K.A. stated he was shot by an unknown
male. Upon investigating the scene, officers collected evidence showing the gun
was discharged from the back seat on the driver’s side where Yousif was sitting.
The bullet passed through the driver’s seat, through K.A.’s shoulder, and
struck the windshield. Upon being released from the hospital, K.A. contacted
law enforcement to correct his initial statement indicating Yousif shot him.

[¶3] At trial, K.A. testified about the inconsistencies in his statements during
direct examination. He was cross-examined by defense counsel. The next day,
during cross-examination of the case agent, defense counsel offered the
recording of K.A.’s statement made to law enforcement. The State objected.
The district court sustained the objection. At the end of the trial, the jury found
Yousif guilty of aggravated assault. Yousif appeals.

                                        II

[¶4] Yousif argues the district court erred by excluding the recording of K.A.’s
statement at trial. We disagree, concluding the court properly exercised its
broad discretion by excluding the recording.

[¶5] This Court reviews a district court’s evidentiary ruling under an abuse
of discretion standard. State v. Poulor, 

, 

. A
district court has broad discretion on evidentiary matters, and we will not
overturn its admission or exclusion of evidence on appeal unless that discretion
has been abused. State v. Peltier, 

, 

. A district
court abuses its discretion when it acts arbitrarily, capriciously, or

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unreasonably, or when its decision is not the product of a rational mental
process or if it misinterprets or misapplies the law. 

                                      III

[¶6] On the second day of trial, the case agent, Detective Freeman, testified.
During cross-examination, defense counsel offered the recording of K.A.’s
statement. The State objected:

             MS. NEUFELD: State would be objecting, Your Honor …
             K. was here under testimony. At this point in time the
      statement would be testimonial evidence. He was here, he testified
      yesterday. Under 613, extrinsic evidence which is what the audio
      would be, is not permissible unless the person or the inconsistent
      statements has been given the opportunity to admit or deny the
      statements. The extrinsic evidence is then used to impeach the
      individual and it is never received by the court, it has to be used
      when the witness is on the stand.
             This issue arose last week in trial with Judge Knudson . . . .
      Judge Knudson made the ruling that 613 is very clear, testimonial
      extrinsic evidence when it comes to impeachment purposes or to
      testimonial statements by a witness, there has to be part B of 613.
      Subsection B states and I can read it for Your Honor . . . .
             Your Honor, K. was on the stand yesterday. Yesterday was
      the time and place in which to get him to admit or deny any sort of
      inconsistent statements. There has to be, before any extrinsic
      evidence is used, there has to be a confrontation that takes place
      in which the witness is allowed to explain, admit, or deny the
      statement.
             THE COURT: Okay. So K. testified and was subject to cross-
      examination at that time and, and so I believe the way to proceed
      as far as the interview that took place is to ask this witness about
      information contained in that interview as it may be inconsistent
      with prior statements that are made.
             MS. NELSON: Yes, Your Honor. I did talk with Ms. Neufeld
      about this last week and she did know that I was intending to play
      the interviews. The interviews are not for the inconsistent
      statements of the person themselves. Inconsistent statements are
      throughout this case. It is how she took those inconsistencies and



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      I think it’s necessary for the jury to hear it for themselves, she
      made the determination based on those interviews.
             THE COURT: Well -- go ahead, counsel.
             MS. NEUFELD: It’s extrinsic evidence, Your Honor.
      Detective Freeman is on the stand right now. I’ve already asked
      her and certainly defense counsel can ask her why you found those
      statements inconsistent, what inconsistencies did you find.
             THE COURT: Well, I think she’s indicat -- are you
      challenging consistency at this point or are you asking her about
      why she believes --
             MS. NELSON: Right. It’s the weight and the credibility of
      the statements that were made by each individual that the jury
      has a right to.
             THE COURT: Well, it is credibility then.
             MS. NELSON: Right.
             THE COURT: Inconsistency and credibility. So you can ask
      her about those things. You have a transcript of the --
             MS. NELSON: I do, Your Honor.
             THE COURT: Okay. And so you know what’s on the
      interview. You can ask her questions that may point out
      inconsistencies, you can use the transcript to refresh her
      recollection if you need it, but I don’t think I’m going to allow the
      playing of this interview for the purpose that you’re indicating.

[¶7] North Dakota Rule of Evidence 613 governs a witness’s prior
inconsistent statement:

      Extrinsic evidence of a witness’s prior inconsistent statement is
      admissible only if the witness is given an opportunity to explain or
      deny the statement and an adverse party is given an opportunity
      to examine the witness about it, or if justice so requires.

N.D.R.Ev. 613(b). “It is the established rule in this State that a prior
inconsistent statement may be used to impeach a witness, but may not be used
substantively in a criminal case as direct evidence of the facts contained in the
statement unless the prior statement was made under oath.” State v. Demery,

 (N.D. 1983). There is no requirement that the prior statement
be in evidence at the time the impeaching questions are asked. 

.




                                       3
[¶8] Rule 613, N.D.R.Ev., is based on Fed.R.Evid. 613. N.D.R.Ev. 613,
Explanatory Note. “When our rule is derived from a federal rule, we may look
to the federal courts’ interpretation or construction of identical or similar
language as persuasive authority for interpreting our rule.” State v. Helm,

, 

 (citations omitted). The Eighth Circuit
similarly acknowledges “[u]nder Rule 613(b), a party seeking to introduce
a prior inconsistent statement must ordinarily confront the witness with
the prior inconsistent statement and afford him or her an opportunity to
explain or deny the inconsistency.” United States v. Buffalo, 

(8th Cir. 2004).

[¶9] Rule 613(b) of the Federal Rules of Evidence provides, “extrinsic
evidence of a prior inconsistent statement by a witness is not admissible
unless: (1) the witness is afforded an opportunity to explain or deny
the statement and the opposing party is afforded an opportunity to interrogate
the witness about the statement or (2) the interests of justice otherwise
require.” United States v. Schnapp, 

 (8th Cir. 2003); see also
United States v. Yarrington, 

 (8th Cir. 2011). The advisory
notes to Rule 613, Fed. R. Evid., explain:

      The traditional insistence that the attendance of the witness be
      directed to the statement on cross-examination is relaxed in favor
      of simply providing the witness an opportunity to explain and the
      opposite party an opportunity to examine on the statement, with
      no specification of any particular time or sequence. Under this
      procedure, several collusive witnesses can be examined before
      disclosure of a joint prior inconsistent statement.

Fed. R. Evid. 613(b), Advisory Committee Notes.

[¶10] Nevertheless, a trial court’s broad discretion in controlling the mode and
order of interrogating witnesses and presenting evidence permits it to exclude
extrinsic impeachment evidence “that was not revealed while the witness was
on the stand,” or at least before the witness was permitted to leave the court.
United States v. Surdow, 

 (2d Cir. 2005) (relying on
Weinstein’s Federal Evidence § 613.05[1] at 613-19 (2004)). Even if all the
foundational elements of Rule 613 are met, a court is not required to admit any

                                       4
or all extrinsic evidence of a prior inconsistent statement. Surdow, at 900. A
court may still exercise its discretion to exclude such evidence. Id.

[¶11] Here, K.A. made inconsistent statements and testified to those
statements at trial. Defense counsel attempted to play the recording of the
inconsistent statements during the testimony of another witness, but the court
did not allow it. Under N.D.R.Ev. 613(b), extrinsic evidence of K.A.’s prior
inconsistent statement was admissible because K.A. was “given an opportunity
to explain or deny the statement” and the parties were “given an opportunity
to examine the witness about it.” However, although the court could have
admitted the recording, it was not required to do so. According to Yousif ’s
attorney, the purpose for which the recording was offered was not to point out
inconsistencies in K.A.’s statements, but to demonstrate how the case agent
made determinations based on the inconsistent interviews. Rather than allow
the recording, the court allowed counsel to use a transcript of the statements
to cross-examine the case agent. Although the foundational elements of Rule
613 were met, the court was not bound to admit the extrinsic evidence and was
free to exercise its broad discretion. The court properly exercised its discretion
to exclude evidence during trial. The court’s decision to exclude the recording
was rational; therefore, the court did not abuse its discretion.

                                        V

[¶12] The judgment is affirmed.

[¶13] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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