State v. Entzi

• Decision Date: 24 July 2000
• Docket Number: No. 990329.,990329.
• Citation: 2000 ND 148,615 N.W.2d 145
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Bruce Lynn ENTZI, Defendant and Appellant.
• Court: North Dakota Supreme Court

615 N.W.2d 145

2000 ND 148

STATE of North Dakota, Plaintiff and Appellee, v. Bruce Lynn ENTZI, Defendant and Appellant.

No. 990329.

Supreme Court of North Dakota.

July 24, 2000.

Terry W. Elhard, State's Attorney, Ashley, for plaintiff and appellee.

Monte L. Rogneby, Vogel Law Firm, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Bruce Lynn Entzi appealed the final judgment entered upon jury verdicts finding him guilty of two counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(2)(a). We affirm the verdicts, but remand for resentencing in the county where the trial was held.

[¶ 2] After a jury trial in McIntosh County, Entzi was found guilty of two counts of gross sexual imposition for engaging in sexual contacts with two of his daughters, who were less than 15 years of age. After a sentencing hearing in Burleigh County, Entzi was sentenced to imprisonment and supervised probation. Entzi appealed, and has raised a number of issues on appeal.

I

[¶ 3] Entzi contends he is entitled to a new trial, because the trial court did not conduct voir dire on the record, making a transcript of the jury selection unavailable.

[¶ 4] In his statement of the record under N.D.R.App.P. 10, Entzi asserted, among other things, he did not request jury selection be conducted off the record, he did not waive his right to have jury selection conducted on the record, he believes his trial attorney requested jury selection be conducted on the record, and his trial attorney does not remember discussing whether jury selection was on the record and assumed jury selection was being recorded. The State objected, asserting, among other things:

The undersigned prosecutor is fairly certain that defense counsel did not request that the jury selection be recorded by the court reporter. He certainly made no objections to the jury selection not being recorded.

[¶ 5] In its statement and approval of the record under N.D.R.App. P. 10, the trial court stated "voir dire was conducted off the record," and said:

Immediately before trial, a conference was held in chambers. The conference was on the record. All parties and counsel were present. Whether jury selection would be recorded was not referred to or discussed in any way by either party or the court.

[¶ 6] Reliance on cases like State v. Hapip, 174 N.W.2d 717 (N.D.1969); State v. Decker, 181 N.W.2d 746 (N.D.1970); Ranes Motor Co. v. Thompson, 251 N.W.2d 741 (N.D.1977); State v. Spiekermeier, 256 N.W.2d 877 (N.D.1977); State v. Perry, 136 Wis.2d 92, 401 N.W.2d 748 (1987); and Hoagland v. State, 518 N.W.2d 531 (Minn.1994), dealing with the unavailability of a record of such things as guilty pleas, trial evidence of guilt or innocence, and restitution evidence, is misplaced. We have specifically addressed nonevidentiary proceedings, and have held one must request recording.¹ Fenske v. Fenske, 542 N.W.2d 98 (N.D.1996) (holding failure to record closing arguments was not reversible error when the complaining party did not request recording or object to the lack of recording); State v. Kunkel, 366 N.W.2d 799 (N.D.1985) (stating parties who want events recorded must request the court reporter to record them); State v. Rougemont, 340 N.W.2d 47 (N.D.1983) (holding failure to record voir dire and arguments of counsel is not per se reversible error).

[¶ 7] As the court in Hoagland v. State, 518 N.W.2d 531, 535 (Minn.1994), observed, "a transcript is important to, but not always essential for, a meaningful appeal."

Where the record includes a complete transcript of the evidentiary portion of the trial, the appellant's "constitutional right to a judicial review of all evidence" has not been compromised. State v. Thomas, 92-1428 (La.App. 4th Cir.5/26/94), 637 So.2d 1272, writ denied, 94-1725 (La.11/18/94), 646 So.2d 376, cert. denied, 514 U.S. 1054, 115 S.Ct. 1437, 131 L.Ed.2d 317 (1995). As to other untranscribed portions of the record, where there were no contemporaneous objections, the errors were not preserved for appeal. State v. Harrison, 627 So.2d 231, 233 (La.App. 4th Cir. 1993).

Louisiana v. Richards, 750 So.2d 330, 332-33 (La.Ct.App.1999).

[¶ 8] We conclude the trial court's failure to conduct voir dire on the record does not alone entitle Entzi to a new trial.

II

[¶ 9] Entzi contends the trial court conducted jury selection improperly, arguing his right to exercise peremptory challenges was violated because the court improperly refused to excuse two jurors for cause, the jury selection method used violated his right to exercise peremptory challenges, and the jury selected included jurors who should have been excused for cause.

A

[¶ 10] Under N.D.C.C. § 29-17-33 and N.D.R.Crim.P. 24, a juror may be excused for cause. Under N.D.R.Crim.P. 24, each side is entitled to exercise peremptory challenges. Entzi contends the court refused to excuse two jurors for cause, and he "was forced to use two of his peremptory challenges to bump these biased jurors," thereby prejudicing his right to exercise peremptory challenges. Entzi has not alleged he objected to the denial of challenges for cause to the jurors he used peremptory challenges to excuse. Thus, that issue has not been preserved for review. A defendant's right to peremptory challenges is denied or impaired only if the defendant does not receive what state law provides. City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 17, 575 N.W.2d 440. Entzi received the peremptory challenges our law provides. Furthermore, the United States Supreme Court has recently rejected an argument like Entzi's. In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 777, 145 L.Ed.2d 792 (2000), the Supreme Court recognized peremptory challenges are not of constitutional dimension, but "are one means to achieve the constitutionally required end of an impartial jury," and held "that if the defendant elects to cure" a trial court's erroneous refusal to excuse a potential juror for cause, "by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right." We hold a party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the trial court refused to excuse for cause, and no biased jurors sit. We, therefore, conclude Entzi's right to exercise peremptory challenges was not violated.

B

[¶ 11] The trial court used the following jury selection process:

THE COURT: ... My intention is to call twelve persons up and go through the selection process and then whoever is picked will stay and then however many more we need. I probably don't need to tell you guys this but some people have confusion about it, with regard to the exercise of peremptories themselves, if you pass a panel, then you're done with that panel. You can't go back and re-strike somebody, so if you pass, you pass.

Entzi contends this method unreasonably restricted his ability to exercise his peremptory challenges.

[¶ 12] Entzi asserts that, although his trial attorney did not object to the selection procedure, "this court should still review this issue as the trial court's method is plain error. N.D.R.Crim.P. 52(b)." "We cautiously exercise our power to notice obvious error only in exceptional situations in which a defendant has suffered serious injustice." State v. Freed, 1999 ND 185, ¶ 14, 599 N.W.2d 858. This is not such a case. "Generally, a 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 free from embarrassment and intimidation." City of Dickinson v. Lindstrom, 1998 ND 52, ¶ 11, 575 N.W.2d 440. Entzi has not shown the trial court abused its discretion in fixing the selection procedure.

C

[¶ 13] Entzi contends the trial court abused its discretion by failing to excuse four jurors for actual or implied bias.

[¶ 14] Persons accused of crimes have a right to trial by an impartial jury. State v. Smaage, 547 N.W.2d 916, 919 (N.D.1996). Under N.D.R.Crim.P. 24(b)(2), judges must excuse a juror if grounds exist for a challenge for cause, such as juror partiality. Id. To succeed in an appellate review of a trial court's denial of a challenge for cause, a defendant must "show that the sitting jury was not impartial." State v. Thompson, 552 N.W.2d 386, 388 (N.D.1996). "We review a trial court's decision not to excuse a challenged juror for cause under an abuse-of-discretion standard." Id. "[A] trial court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner." Id. "Because we presume that the trial court's decision to deny the motion [to excuse a juror for cause] was correct, [Entzi] has the burden `to show affirmatively by the record that the ruling was incorrect.'" Id. at 389, quoting State v. Raywalt, 436 N.W.2d 234, 239 (N.D.1989).

[¶ 15] Although Entzi has asserted the trial jury included jurors who should have been excused for cause, as in State v. Smaage, 547 N.W.2d 916, 919 (N.D.1996), Entzi "made no showing that these jurors were not impartial, and we can find no specific evidence of bias on the part of these jurors." We conclude the trial court did not abuse its discretion in declining to excuse these jurors.

III

[¶ 16] Entzi contends the trial court improperly denied his motion in limine to preclude the State from introducing as evidence a tape recording of a telephone conversation between Entzi and his wife about Entzi's alleged sexual misconduct with three daughters and a niece.

[¶ 17] The trial court denied Entzi's motion on July 6, 1999. On August 2, 1999, the trial court issued another order about the tape recording:

I have reconsidered [m]y Order regarding use of the audiotape recording of the telephone call between the defendant and LeeAnn Entzi. I believe the tape is admissible in a redacted form to

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