Background
Royal Rockefeller appealed a criminal judgment entered after a jury found him guilty of aggravated assault, a class C felony under N.D.C.C. § 12.1-17-02(1)(a). The charge arose from an August 4, 2025, assault in downtown Fargo. The victim called 911, and a responding officer found him covered in blood with large lacerations on his forehead and the back of his head. A nearby bank’s security video recorded the assault. Officers found Rockefeller the next day a few blocks away wearing clothing and a chain necklace matching those worn by the assailant in the video. The victim did not testify at trial.
On the night of the assault, the victim signed a Sanford Health authorization permitting release of protected health information to the Fargo Police Department for a “Legal” purpose. The form marked “Abstract,” defined to include test results, labs, ER notes, and provider notes, but did not mark radiology reports or images and did not reference testimony. Rockefeller’s pretrial motion in limine sought to exclude medical records and medical testimony on hearsay, Confrontation Clause, and N.D.R.Ev. 403 grounds, but did not assert physician-patient privilege under N.D.R.Ev. 503. Defense counsel later agreed that medical records and testimony would be admissible under the medical-records exception, while seeking to exclude identification of Rockefeller by the absent victim. No written stipulation was filed, and the district court treated the motion as withdrawn based on the parties’ oral stipulation.
At trial, the prosecutor opened by asking jurors to put themselves in the victim’s shoes and describing the assault in the second person. Rockefeller did not object. Defense counsel said the defense would not dispute that the victim suffered serious bodily injury. When the State asked radiologist Dr. Bryn Putbrese about injuries visible on the victim’s CT images, she declined to discuss private medical information without a court order. Defense counsel deferred to the witness’s comfort level, and the court ordered the testimony after reviewing the authorization. Dr. Putbrese testified to multiple facial fractures involving the nasal region and both orbits, but did not identify Rockefeller. The jury convicted him.
The Court’s Holding
The North Dakota Supreme Court affirmed. It held that Rockefeller could not assert the victim’s physician-patient privilege. Under N.D.R.Ev. 503(b), the privilege belongs to the patient, and Rule 503(c) authorizes the patient, a guardian or conservator, or a deceased patient’s personal representative to claim it; a physician is presumed to have authority to claim it only on the patient’s behalf. The court agreed with decisions from other jurisdictions that a criminal defendant may not use a victim’s privilege as a shield against prosecution. Any error in compelling Dr. Putbrese’s testimony would infringe the victim’s privilege, not Rockefeller’s, and Rockefeller could not take advantage of that alleged error. The court distinguished State v. Moore, 204 N.W. 341 (N.D. 1924), because there the defendant was the patient and objected at trial.
The court also addressed preservation. Evidentiary rulings ordinarily receive abuse-of-discretion review, while N.D.R.Ev. 103(a)(1) requires a timely objection stating the specific ground unless apparent from context. Forfeited errors may be reviewed for obvious error, but waived errors are not reviewed. Although Rockefeller’s pretrial agreement and withdrawal of his motion raised a potential invited-error issue, the State did not argue invited error and Rockefeller had no opportunity to respond. The court therefore did not decide waiver under that doctrine.
On prosecutorial misconduct, the court held the opening statement was an improper “golden rule” argument because it invited jurors to place themselves in the victim’s position. Because Rockefeller did not object, reversal required obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). Considering the jury instructions, the single occurrence at the start of opening statement, and the fact that identity was the only contested issue, the court found no demonstrated error in the district court’s failure to intervene. It emphasized that judges ordinarily need not interrupt argument sua sponte, though particularly prejudicial circumstances may warrant intervention. Remaining arguments were unnecessary to the decision or without merit.
Key Takeaways
- A North Dakota criminal defendant cannot assert a victim’s physician-patient privilege to exclude medical evidence.
- The court did not decide whether the pretrial agreement constituted invited error because the State did not raise that argument.
- The prosecutor’s second-person opening was improper, but the unpreserved claim failed under circumstance-specific obvious-error review.
- The aggravated assault judgment was affirmed.
Why It Matters
The decision clarifies that Rule 503 protects the patient’s confidentiality interests and does not give a defendant standing to invoke a victim’s privilege as a trial defense. It also illustrates the practical importance of timely, specific objections: counsel’s pretrial agreement, nonobjection to the physician’s testimony, and concessions about serious injury shaped the appellate issues.
For prosecutorial-misconduct claims, the opinion distinguishes impropriety from reversible obvious error. Even a concededly problematic golden-rule argument did not require reversal on these facts, particularly where it occurred once, identity was the sole disputed issue, and no objection asked the trial court to intervene.