North Dakota v. Azure

Under North Dakota Rules of Evidence 804, it does not matter that the defendant may have had significantly less incentive to cross-examine the witness at the preliminary examination hearing than at the trial, the testimony is permissible at trial if it meets the requirements under the rule. If a prior consistent statement is to be admitted under Rule 801(d)(1)(B), the declarant must testify and be subject to cross-examination at the trial or hearing at which it is being offered. Duane Azure, Jr., appealed a criminal judgment after a jury found him guilty of aggravated assault. A deputy observed Yvette Belgarde lying on the floor in the living room when responding to a 911 call to the Azure residence. The deputy requested an ambulance to the residence and Belgarde was transported to the local emergency room. Her initial explanation to law enforcement and medical personnel about her injuries was that she fell on the deck. Approximately two weeks later, while in the hospital, Belgarde contacted law enforcement and stated her injuries were not caused by falling on the deck, but by Azure assaulting her. Belgarde was interviewed by Agent Allen Kluth of the North Dakota Bureau of Criminal Investigation. Belgarde restated to Agent Kluth that Azure had assaulted her and that she was afraid to say anything at first. Azure was subsequently charged with aggravated assault. Prior to trial, Belgarde died from causes unrelated to the assault. Azure argued the district court abused its discretion by allowing two prior statements of the State's witness into evidence at trial. Because the district court abused its discretion in allowing the victim's prior statement to police into evidence under North Dakota Rules of Evidence 801(d)(1)(B), the North Dakota Supreme Court reversed and remanded. View "North Dakota v. Azure" on Justia Law