State v. Barth

Decision Date20 December 2001
Docket Number No. 20010109, No. 20010110.
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Dale William BARTH, Defendant and Appellant.
CourtNorth Dakota Supreme Court

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

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

VANDE WALLE, Chief Justice.

[¶ 1] Dale Barth appealed from judgments of conviction, entered upon a jury verdict finding him guilty of driving with a suspended license, preventing arrest, and disorderly conduct. We hold the trial court did not err in instructing the jury on the law, Barth's right to exercise peremptory challenges was not violated, and there is substantial evidence to support the jury verdict. We affirm.


[¶ 2] On July 18, 2000, Highway Patrol Officer Todd Ebens was on duty patrolling Highway 25 in Morton County. At about 10:20 p.m., he observed a pickup on the highway with one headlight burned out. Officer Ebens signaled the driver to stop. When the driver pulled to the side of the road Ebens, who was about one or two car lengths behind the pickup, observed the two occupants inside the pickup "switching seats." Ebens testified he walked to the passenger side of the pickup and knocked on the window. Dale Barth rolled down the window and the officer asked him for his license and registration. Ebens testified Barth told him "to go to hell." Ebens testified he had no doubt that the person sitting in the passenger seat had been driving the pickup. He again asked the passenger to produce his driver's license and was again told in a very loud voice to go to hell. Ebens then returned to his vehicle to radio for assistance. While making that request, the other occupant of the pickup, Otto Barth, Dale's father, walked back to Ebens' vehicle and identified himself and his son. Ebens was then informed by state radio that Dale Barth's driver's license was suspended.

[¶ 3] Two Morton County deputies soon arrived at the scene to assist Ebens. The three officers walked toward the passenger side of the pickup and informed Dale Barth that he was under arrest for driving with a suspended license. When Ebens asked Barth to step out of the vehicle so he could make the arrest, Barth again told the officer to go to hell. Barth also told his father to take off. For a few minutes the officers tried to get Barth to voluntarily exit the vehicle, but he refused to cooperate and "just kept getting louder and refusing to step out of the vehicle." Ebens testified that he then "reached inside the vehicle" and "grabbed for Dale's biceps" to see if he could pull him out of the vehicle. At that point, Barth pulled back, put up his arms, and clinched his fist. Deputy Sheriff Tadd Pritchett testified that Barth said "he was not going with us and he was not going to be arrested." He also testified that when Ebens grabbed Barth's arm Barth "reached his arm back... in a threatening manner, a resistant manner." Ebens testified he at that point felt that Barth was going to start hitting or kicking the officers and, rather than risk injury to themselves, the officers decided to use pepper spray to make the arrest.

[¶ 4] After one of the deputies sprayed pepper spray into Barth's face, the three officers together grabbed Barth and removed him from the pickup and forced him onto the ground. Barth submitted rather quickly after the pepper spray was used, but he did struggle some. Deputy Pritchett testified that Barth did not want to bring his arm back to allow the officers to handcuff him and he refused to follow the officers' commands that he straighten his legs and lie in a prone position. After the officers handcuffed Barth they placed him into a squad car and took him to the police station.

[¶ 5] Barth was charged with class B misdemeanor disorderly conduct in violation of N.D.C.C. § 12.1-31-01, class B misdemeanor driving with a suspended license in violation of N.D.C.C. § 39-06-42, and class A misdemeanor preventing arrest or discharge of other duties in violation of N.D.C.C. § 12.1-08-02. A jury found Barth guilty on all counts, judgments of conviction were entered, and Barth appealed.

II Peremptory Challenges

[¶ 6] Barth asserts reversible error was committed when the prosecutor revealed he had not exercised any peremptory challenges but the defendant had struck four potential jurors in the exercise of his peremptory challenges. Barth asserts this disclosure "was so embarrassing that it denied him the right to an impartial jury and the right to a fair trial."

[¶ 7] Under N.D.R.Crim.P. 24 each side is entitled to exercise peremptory challenges. Section 29-17-30, N.D.C.C., provides that "a peremptory challenge can be taken by either party and may be oral." A defendant's right to peremptory challenges is denied or impaired only if the defendant does not receive what state law provides. State v. Entzi, 2000 ND 148, ¶ 10, 615 N.W.2d 145. The trial court has broad discretion in selecting a method by which it impanels a jury, and it is enough if the chosen method permits the defendant to exercise peremptory challenges without embarrassment and does not intimidate him from exercising them. Id. at ¶ 12; United States v. Anderson, 39 F.3d 331, 344 (D.C.Cir.1994). See also Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894)

(any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of the right to make peremptory challenges must be condemned).

[¶ 8] We review the trial court's jury selection procedure using an abuse of discretion standard of review. State v. Entzi, 2000 ND 148, ¶ 12, 615 N.W.2d 145. If the defendant's ability to exercise peremptory challenges is denied or impaired, relief is justified without a showing of prejudice. City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 17, 575 N.W.2d 440. The defendant, however, must show prejudice when it is alleged that technical errors or irregularities have occurred which have not resulted in the impairment or denial of the defendant's peremptory challenges. Id.

[¶ 9] Barth acknowledges the trial court used the prevailing practice of having the parties alternately exercise peremptory challenges by passing a sheet of paper between them and anonymously exercising their challenges. After this process was completed and each side had been given the opportunity to exercise peremptory challenges, Barth's attorney started the following colloquy:

MR. PURDON: Can we approach, Your Honor. I have a question.
(Conference at the bench.)
MR. PURDON: Mr. Koppy has indicated that he passed and I want to be square on this: You are not going to exercise any peremptories of the jurors in the box? I'm done, but I've run into in the past where they try to come back and exercise peremptories.
THE COURT: Once you pass it is over with.
MR. PURDON: Okay. Thank you. (In Open Court.)
THE COURT: Mr. Koppy, have you exercised the desired peremptories on behalf of the State of North Dakota?
MR. KOPPY: Actually none of them, Your Honor.
THE COURT: Counsel, would you approach please.
(Conference at the bench.)
THE COURT: Did you understand my question?
MR. KOPPY: Yes. Did I exercise any—
THE COURT: Did you exercise the desired peremptory challenges?
THE COURT: Do you have other challenges you wish to exercise?
MR. KOPPY: No, I don't.
THE COURT: So you have.
THE COURT: Very well.
MR. PURDON: Your Honor, I would ask for a mistrial. He last indicated to the jury he hadn't struck anybody as a peremptory. I think it is prejudicial and improper and I move for a mistrial.

The trial judge denied defense counsel's motion for a declaration of a mistrial.

[¶ 10] Barth was allowed to exercise the peremptory challenges to which he was entitled by a discreet process in which the challenges were anonymous and exercised without embarrassment or intimidation. When the process was concluded, defense counsel expressed his concern that the prosecution, having passed on its peremptory challenges, might be allowed additional opportunity to exercise them. The trial judge attempted to elicit from the prosecutor that he was finished and would not seek additional opportunity for challenges. The prosecutor responded that he had not exercised any peremptory challenges, thereby revealing that the four jurors who were excused without cause had been challenged by the defendant. The incident was unfortunate. Counsel for each party must remain vigilant at all times not to comment on the other side's use of peremptory challenges, so as not to hamper the full and free exercise of that right. However, Barth has failed to demonstrate he was prejudiced by the prosecutor's comments. Barth had already been allowed to fully exercise his peremptory challenges without intimidation or embarrassment. There is no showing that the jurors who sat on this case were prejudiced against Barth or negatively impacted when they found out, after the challenge process was over, that the defense had struck potential jurors without cause.

[¶ 11] Although a process by which the remaining jurors would not know which party peremptorily challenged members of the jury panel would be beneficial to the administration of justice, such process is not required. 5 Wayne R. LaFave, Criminal Procedure § 22.3(d) (2d ed. 1999). A process under which a party's peremptory strikes are disclosed to the jury does not deny the defendant a fair trial and is not grounds for reversal. United States v. Severino, 800 F.2d 42, 47-48 (2nd Cir.1986); see also United States v. Ploof, 464 F.2d 116, 118 (2nd Cir.1972)

(the trial judge had discretion to require counsel to exercise challenges in the presence and hearing of veniremen rather than at side bar); United States v. Rowe, 435 F.2d 1298, 1299 (9th Cir.1970) (the court's ruling on peremptory challenge of a juror in front of the jury offended no statute or rule of procedure for exercising peremptory...

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