State v. Kennedy – Clarifying Invited Error and the Trial Court’s Limited Duty to Exclude Rule 404(b) Evidence Sua Sponte

Introduction

State v. Kennedy, 2025 ND 130, presented the North Dakota Supreme Court with an appeal from Kamauri Siede Kennedy’s murder conviction. Kennedy raised three principal issues:

Admission of prior-bad-acts evidence without objection;
Alleged prosecutorial misconduct during closing argument; and
Denial of his request for substitute counsel following breakdown of the attorney–client relationship.

The decision reaffirms and refines existing doctrines—particularly the invited error rule and the contours of obvious-error review under N.D.R.Crim.P. 52(b)—while expressly warning trial courts against sua sponte exclusion of Rule 404(b) evidence absent a party objection. The Court’s reasoning offers fresh guidance on when trial judges must, and must not, intervene to protect a defendant’s rights, and sets a pragmatic benchmark for motions to withdraw or substitute counsel shortly before trial.

Summary of the Judgment

The Supreme Court (Justice Bahr writing for a unanimous Court) affirmed Kennedy’s life-without-parole sentence, holding:

The prior-bad-acts evidence was not reviewable on appeal because (i) Kennedy’s counsel invited much of it during voir dire and in jury-instruction discussions, and (ii) counsel failed to object to the remainder, foreclosing obvious-error relief;
The complained-of portions of the prosecutor’s summation either were not improper or, assuming impropriety, did not amount to obvious error affecting substantial rights; and
The district court acted within its discretion in denying defense counsel’s late motions to withdraw and Kennedy’s concurrent request for court-appointed replacement counsel given the prejudice to orderly trial administration.

Analysis

1. Precedents Cited and Their Influence

State v. Villazana, 2024 ND 211 – Articulated the three-step admissibility test under Rule 404(b). Kennedy relied on it; the Court distinguished because no contemporaneous objection had triggered the analysis.
State v. Woodman, 2025 ND 12 – Restated the tripartite obvious-error standard (error, plainness, effect on substantial rights). The Court used Woodman’s language to frame its review.
State v. Wiese, 2024 ND 39 and State v. Yoney, 2020 ND 118 – Confirmed that the invited-error doctrine bars obvious-error relief; integral to holding that Kennedy could not complain about evidence he himself placed before the jury.
Numerous out-of-state voir dire cases (e.g., Nix v. State, Ind. Ct. App. 2020) – Demonstrated national consensus that a defendant who exposes the jury to damaging information cannot later fault the court.
State v. Kaiser, 417 N.W.2d 376 (N.D. 1987) – Used to assess emotional appeals in closing argument; Kennedy’s cited language was deemed comparable to remarks in Kaiser that had been held not prejudicial.
United States v. Ware, 890 F.2d 1008 (8th Cir. 1989) – Five-factor framework for continuances when counsel seeks withdrawal; expressly applied by the district court and approved on appeal.

2. The Court’s Legal Reasoning

a. Invited Error & Waiver of Obvious-Error Review

The Court reiterated that obvious-error review is unavailable when a defendant invites the challenged error. Here, defense counsel’s voir-dire disclosure—“Mr. Kennedy has a criminal history that includes violence and drugs”—and acquiescence in a jury instruction referencing probation status constituted affirmative strategic choices. Citing Wiese and Yoney, the Court reasoned that allowing appellate relief in such circumstances would reward “sandbagging” and undermine finality.

b. No Sua Sponte Duty to Exclude Rule 404(b) Evidence

Kennedy argued the trial judge should have filtered out additional character evidence on the court’s own initiative. The Supreme Court rejected this proposition, stressing:

The adversary system assigns primary responsibility for evidentiary objections to counsel (N.D.R.Evid. 103(a));
Sua sponte intervention risks the judge’s improper intrusion into trial strategy (Ismail, 2022 ND 199); and
Only in exceptional cases—e.g., when constitutional rights are clearly jeopardized—might unsolicited exclusion be warranted, which was not the case here.

c. Prosecutorial Misconduct & Closing Argument

Applying the two-step test (misconduct → prejudicial effect) from Pena Garcia and Hannesson, the Court found:

The statement “This case is about seeking justice for [the victim]” paralleled language previously approved in Kaiser and did not exhort conviction based on sympathy.
Even if borderline, any prejudice was negated by comprehensive jury instructions reminding jurors to base their verdict solely on evidence and to avoid sympathy or emotion.

d. Denial of Substitute Counsel

The Court endorsed the district judge’s granular application of the Ware factors—especially the late timing, prejudice to the State, and the existing lawyer’s lack of diligence. The analysis underscores that a defendant’s Sixth-Amendment right to counsel of choice is qualified by the need for efficient judicial administration.

3. Impact of the Decision

Reinforced Boundaries for Obvious-Error Appeals: Litigants must now recognize that failure to object—particularly after having “opened the door” themselves—dramatically narrows appellate avenues.
Guidance for Trial Judges: Judges are not compelled to police Rule 404(b) issues sua sponte; intervention should be rare and constitutionally driven. This will influence courtroom dynamics and case-management expectations.
Voir Dire Strategy Warning: Defense counsel must weigh carefully the benefit of candor about prior crimes against forfeiture risks. The opinion will likely be cited when evaluating whether damaging disclosures constitute strategic “openings” that waive later complaints.
Counsel Withdrawal Timelines: Kennedy provides a practical timeline benchmark—motions to withdraw filed mere weeks before trial are presumptively untimely absent extraordinary cause. Courts may cite this to streamline dockets.

Complex Concepts Simplified

Invited Error: When a party creates or endorses a situation that it later claims is error, the appellate court will refuse to review. It is akin to “you can’t complain about a mess you made.”
Obvious Error (Rule 52(b)): A narrow safety-valve allowing appellate courts to fix clear, plain errors that affect substantial rights—even without objection—but only if those errors seriously threaten the integrity of proceedings.
Rule 404(b) Evidence: Evidence of “other crimes, wrongs, or acts” ordinarily inadmissible to prove character, but sometimes allowed for specific, non-character purposes (motive, intent, etc.) after a three-step test and Rule 403 balancing.
Sua Sponte: Latin for “of its own accord.” Refers to actions a court takes without being prompted by a party—here, excluding evidence without an objection.
Ware Continuance Factors: Federal five-part test (length of delay, diligence, conduct of the other party, effect of delay, and reasons) adopted in N.D. for evaluating continuances when counsel seeks withdrawal.

Conclusion

State v. Kennedy crystallizes three lessons for North Dakota practitioners and courts:

Speak now or forever waive: Evidentiary complaints not raised in real time—especially those the defense itself helped introduce—will seldom gain traction on appeal.
Judicial neutrality over paternalism: Trial judges must preserve fairness but avoid stepping into advocacy roles by wading into Rule 404(b) disputes absent a party’s prompt.
Timeliness is paramount: Late-breaking motions to withdraw or substitute counsel, unsupported by diligent advance action, justifiably yield to the systemic interest in timely trials.

By tying together invited-error doctrine, the standards for obvious error, and pragmatic counsel-withdrawal guidelines, the Kennedy decision fortifies procedural discipline in North Dakota criminal practice and offers a roadmap for comparable jurisdictions grappling with the balance between defendants’ rights and orderly court administration.