North Dakota Supreme Court hears appeal over other‑acts evidence, prosecutor remarks and counsel withdrawal in Kennedy murder trial

The North Dakota Supreme Court heard oral argument in State v. Kennedy (file no. 20240346) on whether a trial court plainly erred by admitting other‑acts evidence, whether a prosecutor’s rebuttal urged juror sympathy, and whether the district court abused its discretion by denying a request to replace trial counsel.

Appellate counsel Kiera Krausspar argued for the appellant that testimony about alleged drug dealing and collateral misconduct was admitted as Rule 404(b) ‘‘other‑acts’’ evidence without the notice the law requires and without the Rule 403 balancing the court should have conducted. Krausspar told the court, “This case wasn't about a drug deal. This had nothing to — he was not charged with drugs. It is irrelevant to the issue of whether or not he committed the crime of murder.” She said the evidence was used to portray Kennedy as a bad person rather than for a permissible 404(b) purpose such as motive, intent, plan or lack of mistake.

Krausspar urged the justices to treat the record as showing obvious error because, she said, the state never identified a non‑character purpose at trial and the district court had no opportunity to perform the required prejudice/prejudice‑vs‑probative balancing. She also pressed one narrow prosecutorial‑misconduct claim: that a remark in rebuttal — “this case isn't about Mr. Kennedy. It's about the victim” — improperly appealed to sympathy and exceeded permissible argument.

Appellate counsel John Gonzales, arguing for the state, said the defense opened the door to some of the contested evidence during voir dire and in jury‑instruction negotiations. Gonzales described defense trial counsel’s voir dire statements that Kennedy “is an African American male who hails from Detroit, Michigan area and he does have a criminal history that includes both violence and drugs,” and argued that tactic invited consideration of the defendant's background. Gonzales said the state used contested testimony to explain the course of its investigation and to show identity and opportunity, and maintained that any remarks in rebuttal were within the bounds of persuasive argument about the victim and the evidence.

On the counsel‑withdrawal claim, Krausspar argued the district court erred by denying two motions to withdraw trial counsel after late, potentially exculpatory DNA disclosures and amid apparent financial conflict between defendant and counsel. She said the record shows the defense requested alternate counsel in March and again before the rescheduled trial and that trial counsel told the court he could not financially carry the case. Krausspar argued those facts, combined with the late DNA disclosure and subsequent continuance, justified appointing new counsel or granting a continuance different than denial of withdrawal.

Gonzales replied that the record shows defense counsel sought withdrawal on the eve of trial and that the district court reasonably weighed the factors of the relevant WEAR/time‑diligence analysis (as reflected in the lower court's reasoning). He noted an earlier speedy‑trial request and said the defendant at times wanted the matter to proceed; he also told the justices that Judge Lee found the delay would prejudice multiple parties and that trial counsel ultimately performed effectively at trial.

The justices asked questions about when a party ‘‘opens the door’’ to evidence during voir dire, the notice requirements for 404(b) material, the interplay of Rule 403 balancing and 404(b) notice, and whether the limited jury instruction the parties later agreed did or did not cure the complained‑of testimony. Krausspar emphasized the difference between limited admission of probation status and the broader collateral testimony that came in during direct examination; Gonzales emphasized the investigation‑and‑identity rationale and the defense’s voir‑dire wording.

The court took the matter under advisement. No decision was announced from the bench; the Supreme Court will issue a written ruling in due course.