State v. Jaster, 20030355.

• Court: North Dakota Supreme Court
• Writing for the Court: NEUMANN, Justice.
• Citation: State v. Jaster, 2004 ND 223, 690 N.W.2d 213 (N.D. 2004)
• Decision Date: 14 December 2004
• Docket Number: No. 20030355.,20030355.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Charles JASTER, Defendant and Appellant.

690 N.W.2d 213

2004 ND 223

STATE of North Dakota, Plaintiff and Appellee v. Charles JASTER, Defendant and Appellant.

No. 20030355.

Supreme Court of North Dakota.

December 14, 2004.

Michel W. Stefonowicz, State's Attorney, Crosby, N.D., for plaintiff and appellee.

Tom P. Slorby, Slorby Law Office, Minot, N.D., for defendant and appellant.

NEUMANN, Justice.

[¶ 1] Charles Jaster appealed from a criminal judgment entered on a jury verdict finding him guilty of reckless endangerment. We conclude that, although the district court abused its discretion in denying Jaster's motion to excuse two jurors for cause, the error is not reversible error. We further conclude the district court did not abuse its discretion in its challenged evidentiary rulings, and its instructions to the jury adequately informed the jury of the applicable law. We affirm.

I

[¶ 2] Charles and Erika Jaster, although divorced, were living together in Crosby during November 2002. At approximately 1:30 a.m. on November 24, 2002, Erika went to the police department to report that she and Jaster had been involved in a physical altercation at their home. The chief of police, Lauren Throntveit, saw that Erika was bruised and bleeding, and he called another police officer and the county sheriff for back-up. Throntveit telephoned Jaster at his residence and told him they needed to discuss the incident. Jaster eventually agreed to talk to the officers if they would come to his residence.

[¶ 3] When Throntveit and the other officers arrived at the residence, they went to the back door because the front door was weather-proofed shut. After Throntveit knocked on the door, Jaster answered and stood in the doorway. Throntveit explained the domestic violence laws to him and told Jaster he was under arrest. Jaster slammed the door shut and locked it. The officers broke open the door and discovered Jaster holding a handgun. Throntveit testified the handgun was pointed directly at him. After a struggle, the officers removed the handgun from Jaster and arrested him. The handgun was functional and loaded.

[¶ 4] Jaster was charged with class C felony reckless endangerment. During his jury trial, Jaster testified that the officers interrupted his attempt to commit suicide and that he never pointed the handgun at them. The two officers who accompanied Throntveit testified they did not see Jaster point the handgun at himself during the encounter. The jury found Jaster guilty.

II

[¶ 5] On appeal, Jaster argues the district court erred in refusing to grant his motion to excuse two jurors for cause, erred in admitting hearsay testimony into evidence, and erred in instructing the jury on reckless endangerment.

A

[¶ 6] Jaster argues the district court erred in failing to grant his motion to excuse two jurors for cause.

[¶ 7] During voir dire, two jurors stated that the prosecutor was presently performing legal work for them on estates that had not been closed. Jaster challenged the two jurors for cause. The State did not oppose the challenge for cause, but the district court denied the motion, reasoning "[t]here is an implied bias, but it is not one that is an automatic. I am not going to approve for cause, you can use your peremptories on those if you wish." Jaster used a peremptory challenge to exclude one of the jurors. The other juror served as an alternate juror, but was released from service before the jury began its deliberations.

[¶ 8] We review a district court's decision on whether to excuse a juror for cause under an abuse of discretion standard. State v. Schwab, 2003 ND 119, ¶ 16, 665 N.W.2d 52. A district court must excuse a juror if the court "is of the opinion that grounds for challenge for cause are present." N.D.R.Crim.P. 24(b)(2). Section 28-14-06(3), N.D.C.C., provides that "[c]hallenges for cause may be taken on one or more of the following grounds... [s]tanding in the relation of ... attorney and client... with either party." Section 29-17-36(2), N.D.C.C., similarly provides that "[a] challenge for implied bias of a juror may be taken for all or any of the following causes ... [t]he relationship of ... attorney and client." We have said "[a]n attorney-client relationship is one of the exclusive `causes' of an implied bias that warrants dismissal of a juror." State v. Thompson, 552 N.W.2d 386, 388 (N.D.1996). In State v. Smaage, 547 N.W.2d 916, 919-20 (N.D.1996), this Court held that a district court did not abuse its discretion by denying an implied bias challenge to a juror where the record failed to show a prosecutor's direct and current client relationship with the juror. However, the record in this case shows the prosecutor had a direct and current client relationship with the two challenged jurors. Contrary to the district court's reasoning, this Court has ruled a challenge for cause must be granted if an implied bias has been established under N.D.C.C. § 29-17-36. See State v. Rummel, 326 N.W.2d 64, 67 (N.D.1982). We conclude the district court abused its discretion in failing to grant Jaster's challenge for cause of these two jurors because of their current attorney-client relationship with the prosecutor.

[¶ 9] Although the district court erred, the error does not require reversal under the circumstances. First, it appears that Jaster exercised only five of his six peremptory challenges. See N.D.R.Crim.P. 24(b)(1) (providing each side is entitled to six peremptory challenges when a twelve-person jury is to be impaneled). A defendant must exhaust all peremptory challenges before objecting to the denial of a challenge for cause. See Thompson, 552 N.W.2d at 388; City of Bismarck v. Holden, 522 N.W.2d 471, 473 (N.D.1994). Second, in State v. Entzi, 2000 ND 148, ¶ 10, 615 N.W.2d 145, the defendant argued "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." We explained:

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.

Id.

[¶ 10] Because Jaster used a peremptory challenge to exclude one of the jurors and the other juror was released as an alternate juror before the jury began its deliberations, no biased jurors sat on his case and Jaster has not been deprived of any rights. We conclude the district court's error in failing to grant the challenge for cause is not reversible error.

B

[¶ 11] Jaster challenges the district court's allowance of certain prosecution testimony, mainly on hearsay grounds. The district court allowed Throntveit to testify that Jaster cursed at him and threatened him while being transported from Crosby to the Williams County Jail in Williston. The court also allowed Throntveit to testify that, before going to Jaster's residence, Erika told him "there had been a fight between Mr. Jaster and his wife." The court also allowed one of the other officers to testify that, before going to Jaster's residence, he put on a bulletproof vest because "I was advised that he had guns in the house, and that he would shoot a police officer."

[¶ 12] A district court has broad discretion in evidentiary matters, and we will not overturn a district court's decision to admit or exclude evidence unless the court abused its discretion. State v. Wiest, 2001 ND 150, ¶ 9, 632 N.W.2d 812. The abuse of discretion standard therefore applies when reviewing a district court's evidentiary rulings under the hearsay rule. State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586. While N.D.R.Ev. 403 gives a district court the power to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, we have said this power should be sparingly exercised. State v. Klose, 2003 ND 39, ¶ 28, 657 N.W.2d 276. Under N.D.R.Ev. 403, a district court is vested with wide discretion to control the introduction of evidence at trial, and our review is limited to determining whether that discretion was abused. State v. Beciraj, 2003 ND 173, ¶ 27, 671 N.W.2d 250. A district court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Stoppleworth, at ¶ 6.

[¶ 13] Generally, hearsay evidence is inadmissible. N.D.R.Ev. 802. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.D.R.Ev. 801(c). Under N.D.R.Ev. 803(3), a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)" is "not excluded by the hearsay rule, even though the declarant is available as a witness." Thus, a statement is not excluded as hearsay if it is offered to establish the declarant's state of mind. State v. Faul, 300 N.W.2d 827, 832-33 (N.D.1980).

[¶ 14] Throntveit's testimony about Jaster cursing at him and threatening him while Jaster was being transported to jail obviously was not offered to prove his character in violation of N.D.R.Ev. 404(b), but was offered to show Jaster's state of mind. We have recognized that evidence of threatening statements are...