City of Mandan v. Baer

• Decision Date: 20 May 1998
• Docket Number: No. 970127,970127
• Citation: 578 N.W.2d 559
• Parties: CITY OF MANDAN, Plaintiff and Appellee, v. Richard B. BAER, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 559

578 N.W.2d 559

1998 ND 101

CITY OF MANDAN, Plaintiff and Appellee, v. Richard B. BAER, Defendant and Appellant.

Criminal No. 970127.

Supreme Court of North Dakota.

May 20, 1998.

Allen M. Koppy, State's Attorney, Mandan, for plaintiff and appellee.

Thomas M. Tuntland, Mandan, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Richard B. Baer appealed from the Judgment of Conviction of the Morton County District Court issued following a jury verdict of guilty for Driving Under the Influence of Alcohol. We reverse and remand this case for a new trial because the district court erred in excusing a prospective juror during jury selection in the absence of the accused and his counsel.

I

¶2 Richard Baer was arrested and charged with driving under the influence of alcohol. He challenged his administrative license suspension claiming the officer did not have probable cause to arrest him. Baer v. Director, 1997 ND 222, 571 N.W.2d 829. The district court reversed the suspension. Id. at p 1. The Director of the North Dakota Department of Transportation appealed. Id. We reversed the district court judgment because we concluded the officer had probable cause to arrest Baer. Id. In this appeal, Baer challenges his conviction for driving under the influence of alcohol on the basis of the proceedings at trial.

¶3 During jury selection for Baer's DUI charge, the court asked several questions of the venire. In an apparent attempt to ascertain whether any of the prospective jurors were convicted felons, the district court asked, "[h]ave any of you lost the right to vote for any reason?" One of the prospective jurors raised his hand. The court continued:

THE COURT: You've lost your right to vote?

JUROR: I don't know if that is still the case.

THE COURT: All right. Mr. Tuntland, [defense counsel,] are there other questions you want me to ask regarding cause at this time?

MR. TUNTLAND: Not of the panel as a whole, Your Honor.

THE COURT: Mr. Koppy[, Morton County State's Attorney]?

MR. KOPPY: Your Honor, I think one of the grounds, if it is still in effect, has anyone been convicted of a felony.

THE COURT: Okay. That question is a question that I'm going to reserve for outside of the presence of the rest of the panel. So we'll deal with that. If you have been convicted of a felony, I would ask you to approach me when we have a recess. Any other questions you would like to ask?

MR. KOPPY: No.

MR. TUNTLAND: No, I don't.

¶4 After a brief recess, the court informed the attorneys he had dismissed one of the prospective jurors. Defense Counsel Tom Tuntland asked for a brief in camera hearing on the record. The record continued in chambers:

MR. TUNTLAND: At this time, Your Honor, the court noted that [one of the prospective jurors] had been excused. That must have been during the recess.

THE COURT: Yes. When Mr. Koppy mentioned the conviction of a felony, [the prospective juror] approached me at the recess and I excused him. When I reviewed it I didn't see it, that's why I asked the question about right to vote. When he mentioned that, I did look and the statute no longer required that a person that had been convicted of a felony had to be excused from the panel, you know, but I had excused him, he took off. I wanted to include him again, but he left. So I would have wanted to get him back on the panel and leave him on the panel, but by that time he had gone, at least he was no longer in the jury room. So if you wish to put your objection on the record to his excusal, that is fine. Go ahead.

MR. TUNTLAND: I do object to his being excused, Your Honor.

THE COURT: That is on record and we'll proceed.

¶5 After voir dire was complete, each side exhausted their peremptory challenges. Once the jury was empaneled, sworn, and excused for a recess, the court asked: "Mr. Tuntland, you have made one objection on the record. Aside from that objection, are you satisfied with the jury selection process?"

¶6 Mr. Tuntland replied, "Yes, I am, Your Honor." ¹

¶7 Trial was held, and the jury found Baer guilty of driving under the influence of alcohol.

II

¶8 On appeal, Baer argues the district court erred when it excused a prospective juror outside the presence of the accused and his counsel. The presence requirement has its roots in the Confrontation Clause of the Sixth Amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, reh'g denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970). The Sixth Amendment provides that: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. This constitutional guarantee was made obligatory on the states through the Fourteenth Amendment. Allen, 397 U.S. at 338, 90 S.Ct. at 1058 (citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). We have a similar guarantee in our State Constitution: "In criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person...." N.D. Const. art. I, § 12.

¶9 North Dakota has long recognized the constitutional right of a defendant to be personally present during the whole of a trial. State v. Schasker, 60 N.D. 462, 235 N.W. 345 (N.D.1931) (calling in jury after retirement and allowing court stenographer to read evidence from notes in absence of defendant in a felony prosecution was a plain violation of defendant's constitutional rights under the North Dakota Constitution Article I, section 12 (previously, N.D. Const.Art. I, § 13)). The right is not absolute, ² and may be affirmatively waived by the defendant. See, e.g., Rule 43(c)(2), N.D. R.Crim. P. (permitting absence with the written consent of the defendant for pleas of guilty for misdemeanor offenses). Cf. State v. Ash, 526 N.W.2d 473, 481 (N.D.1995) (concluding trial court erred in responding to jury communications without the defendant being present, but the error was harmless considering, in part, defense counsel's repeated waiver of defendant's right of presence). The right, too, may be lost by a defendant's unruly and disruptive behavior. Allen, 397 U.S. 337, 90 S.Ct. 1057.

¶10 When the constitutional right of presence is violated, it is subject to the harmless error standard for constitutional errors--"harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, reh'g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967) (holding a reviewing court must declare error harmless beyond a reasonable doubt before a federal constitutional error can be held harmless). See also Ash, 526 N.W.2d at 481; State v. Hatch, 346 N.W.2d 268, 278 (N.D.1984) (stating error is harmless "where it can be determined beyond a reasonable doubt that [the] substantial rights of the defendant are not affected....").

¶11 In addition to the constitutional guarantee, Rule 43(a) of the North Dakota Rules of Criminal Procedure requires the presence of the defendant "at every stage of the trial including the impaneling of the jury...." Our North Dakota Rule is fashioned after the similarly-worded Federal Rule 43. Compare F.R.Crim. P. 43, with N.D. R.Crim. P. 43. The presence requirement embodied in Federal Rule 43 has been interpreted as being broader than the constitutional right. United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir.1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981) (reasoning Federal Rule 43 is broader than the constitutional right because it "embodies the right to be present derived from the Sixth Amendment Confrontation Clause, the Due Process Clause of the Fifth and Fourteenth Amendments, and the common law privilege of presence"). Despite the purported breadth of Rule 43, it, too, is subject to express limitation. See, e.g., F.R.Crim. P. 43(b), (c); N.D. R.Crim. P. 43(b), (c) (noting certain instances where the defendant's presence is not required).

¶12 Although Rule 43 is contained in our procedural rules, our past decisions view its violation in light of the constitutional requirements. See, e.g., Ash, 526 N.W.2d at 481 (concluding error of communicating with jury outside of defendant's presence was harmless beyond a reasonable doubt); State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988) (noting presence requirement of Rule 43, N.D. R.Crim. P., but concluding defendant's right was violated under the North Dakota Constitution and violation was harmless beyond a reasonable doubt); Hatch, 346 N.W.2d at 278 (noting recent adoption of Rule 43, N.D. R.Crim. P., and concluding trial court violated Rule 43 by communicating with jury outside presence of defendant and counsel but violation was disregarded under constitutional standard for harmless error).

III

¶13 We reverse in this case because the district court violated the defendant's constitutional right to be present when a prospective juror was removed from the venire and the State has not persuaded us that the violation was harmless beyond a reasonable doubt.

¶14 From our review of the transcript, it is clear the district court incorrectly thought a North Dakota statute disqualified convicted felons from serving on a jury. Our State law formerly specified "conviction for a felony" as a general reason for challenging a prospective juror for cause. See N.D.C.C. § 29-17-34(1) (1991). In 1993, the North Dakota Legislature amended section 29-17-34, N.D.C.C., eliminating "conviction for a felony" as a specifically enumerated challenge for cause. 1993 N.D. Laws Ch. 333, § 1. See N.D.C.C. § 29-17-34 (Supp.1997).

¶15 The change was offered as a "clean up" bill to make section 29-17-34, N.D.C.C., consistent with the Uniform Jury Selection and Service Act, N.D.C.C. § 27-09.1-01 to 22. Hearing on S.B. 2355 Before Senate Judiciary Committee, 53rd N.D. Leg. Sess., (Feb. 2, 1993) (oral testimony of Greg Wallace, Assistant State Court Administrator for Trial Courts). The Uniform Jury...