N.D. Supreme Court hears appeal over 911 call evidence and jury instructions in State v. Llewellyn

The North Dakota Supreme Court heard arguments in State of North Dakota v. Llewellyn (No. 20240294) on whether a 911 call and related testimony tied to an earlier incident should have been admitted at trial and whether the jury instructions were sufficiently clear.

The issue on appeal centers on the admission of a 911 call and testimony from the 911 caller about an unrelated earlier incident that led officers to look for the defendant, and on whether the jury instructions might have allowed the jury to convict based on conduct not proven as to the arresting officer. Defense counsel Samuel Drasek argued that admitting the extra-county 911 evidence gave the jury “the benefit of 20/20 hindsight” and risked convicting the defendant for acts the arresting officer did not know about at the time of the stop. Julie Lawyer, attorney for the State of North Dakota, said the trial court weighed prejudice under Rule 403 and found the brief testimony probative to explain why officers were searching for the defendant.

Why it matters: The appeal raises standard appellate questions about relevance and prejudicial effect under Rule 403 and about the scope and clarity of jury instructions. The defense argues that the jury may have relied on the broader picture created by the 911 evidence rather than only the facts known to the arresting officer when deciding whether the officer was placed in fear; the State contends the instructions and closing arguments tied the elements to the arresting officer and that multiple witnesses corroborated reaching toward the waistband.

At argument, Drasek told the justices the central factual dispute was what Officer Geardot knew at the time of the arrest and what the jury should have been permitted to consider: "we can't give the jury the benefit of 20/20 hindsight by giving them other information that this officer did not know." He emphasized that without the 911 evidence and the 911 caller's testimony, the evidence presented at trial left a different picture—one in which the defendant was lifting his shirt and holding a Gatorade bottle in the other hand when officers approached.

Julie Lawyer, representing the State, said the trial judge conducted the required balancing, allowed only limited testimony and a redacted interview by the defendant, and that other evidence at trial—including testimony from another officer and a bystander at a nearby car wash—supported the conviction. "The testimony of the witness was very brief," she told the court, and she argued that, read as a whole, the jury instructions identified Officer Giridot as the victim and the closing arguments repeatedly tied the elements to the incident at the U-Haul location.

The defense also challenged jury instructions, seeking reversal under the obvious-error standard because there was no contemporaneous objection to the instructions at trial. Drasek argued the instructions, read together with the admitted 911 material, could have allowed the jury to convict based on fear experienced by someone other than the arresting officer. State counsel replied that the instructions must be read as a whole and that both sides' closing arguments clarified which incident and which officer the jury was to consider.

No ruling was announced at the argument. The court took the appeal under advisement. The court also announced the session was adjourned until 1:30 p.m.

Background and record notes: The file number called at the start of argument was 20240294. Counsel referenced testimony that the earlier incident occurred at a residence on Arlington Drive and that a U-Haul vehicle was involved in why officers were locating the defendant; a witness identified in the record as Spence Shea testified about seeing a gun drawn during that earlier incident. The parties and the panel discussed whether the trial court applied the proper Rule 403 balancing and whether the jury instructions properly identified the victim and tied the essential elements to the arresting officer.