State v. Olson, Cr. N

Decision Date14 March 1980
Docket NumberCr. N
Citation290 N.W.2d 664
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Gary Dean OLSON, Defendant and Appellant. o. 684.
CourtNorth Dakota Supreme Court

Cynthia A. Rothe, State's Atty., Cass County, for plaintiff and appellee State of North Dakota.

John E. Rowell, of Dosland, Dosland & Nordhougen, Moorhead, Minn., for defendant and appellant.

VANDE WALLE, Justice.

On December 5, 1978, Gary Dean Olson was convicted by a jury of the murder of Pollie Johnson. Olson appeals from the final judgment of conviction and sentence of life imprisonment entered on March 14, 1979. We affirm.

Olson raises three issues on appeal:

1. Did the district court err in refusing to grant Olson's motion for mistrial because of the misconduct of potential jurors?

2. Did the district court err in denying Olson's motion to preclude the State from eliciting testimony from Steven Skar concerning alleged admissions made by Olson?

3. Was the evidence at trial sufficient to support a verdict of guilty of the crime charged?

I

Olson was charged with the murder of Pollie Johnson in Cass County. Olson had previously been convicted of the murder of his wife in that county. See State v. Olson, 274 N.W.2d 190 (N.D.1978). Olson filed a motion for change of venue from Cass County in the then First Judicial District to Ward County in the then Fifth Judicial District, alleging that there existed in the First Judicial District so great a prejudice against him that he could not obtain a fair and impartial trial in the First Judicial District. The trial court denied the motion for a change of venue to Ward County but ordered a change of venue from Cass County to Richland County. It reasoned that the relatively recent trial of Olson for the murder of his wife kept fresh the memory of the earlier death of Pollie Johnson and the active participation of the Fargo community in the Johnson murder investigation through the creation of a reward fund would complicate the jury-selection process in Cass County. Olson subsequently filed a new motion for change of venue from Richland County to Ward County. That motion was denied by the trial court and Olson petitioned this court in an original proceeding for an appropriate supervisory writ directing the trial court to grant his motion for a change of venue from Richland County to Ward County. This court agreed with the trial court's finding that a reasonable likelihood existed that Olson could not get a fair and impartial trial in Cass County, but, because the change of venue granted was from Fargo to Wahpeton, a distance of only 55 miles, and because affidavits were filed demonstrating that the same news sources that provided the pretrial publicity that tainted the possibility of Olson's receiving a fair trial in Cass County also provided news coverage to Richland County, we granted the petition and ordered the trial court to grant the motion for a change of venue to Minot. Olson v. North Dakota District Court, Etc., 271 N.W.2d 574 (N.D.1978).

This background becomes important in considering Olson's first issue on appeal, i. e., whether or not the district court erred in refusing to grant Olson's motion for mistrial because of the misconduct of potential jurors.

The voir dire was conducted over a period of several days. It is apparent from the instructions and arrangements, which counsel for Olson requested and which the trial judge granted, that it was the object of defense counsel to prevent any person who had any knowledge of Olson's previous conviction for the murder of his wife from sitting on the jury. The trial judge, as requested, consistently admonished the potential jurors that they were not to discuss the case among themselves or with others nor read newspaper accounts or listen to television or radio reports of the case. During the voir dire potential jurors were not permitted in the courtroom, but rather were called in for examination individually. It came to the attention of the trial court and counsel during the examination of a potential juror that, contrary to the trial court's instructions, certain other potential jurors awaiting examination were talking "about an ex-wife being killed, and they asked if it was the same person, and I said I didn't know. So they were just trying to see, put two and two together." Upon hearing that statement, Olson's counsel moved for a mistrial and challenged the entire jury panel. After considerable discussion as to the effect of a mistrial, including the attendant publicity which would be generated by the reasons for a mistrial and including a refusal by Olson to waive his right to a speedy trial, the trial court denied the motion for a mistrial and the challenge to the entire jury panel. In an attempt to purge from the jury anyone who had overheard the discussion in the jury room, the trial court excused all persons who were within possible earshot of the conversation. 1 An examination of the record in this instance reveals that the trial court was extremely careful to prevent any person from serving on the jury who had any knowledge of Olson's previous conviction of murder. Certain potential jurors who had such knowledge had already been excused for cause. Because the trial had been moved from Fargo to Wahpeton and then to Minot in order to obtain a fair and impartial jury, it was obviously the concern of Olson's counsel, the trial judge, and the prosecution that a jury be empaneled whose members were unaware of Olson's previous conviction.

A jury without any prior knowledge of the defendant or his previous activities is an ideal to strive for but it is not an absolute requirement for a fair and impartial jury. As we said in Olson v. North Dakota District Court, Etc., supra "Nor do we find that the extensive news coverage given either of the two murder cases would alone justify granting Olson a new trial as juror exposure to news account of a crime with which defendant is charged does not alone presumptively deprive the defendant of a fair and impartial trial." 271 N.W.2d at 581.

See also State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950); State v. Fujita, 20 N.D. 555, 129 N.W. 360 (1910); State v. Werner, 16 N.D. 83, 112 N.W. 60 (1907).

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the United States Supreme Court held that the United States Constitution entitles a criminal defendant not to a trial by a body of jurors ignorant of all facts surrounding the case, but to an impartial jury which will render a verdict based exclusively on the evidence presented in court:

"It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." 366 U.S. at 722-723, 81 S.Ct. at 1642-1643, 6 L.Ed.2d at 756.

Olson does not, however, allege that the jury finally empaneled was tainted by knowledge of his previous conviction. Rather, he urges that by the court's excusing the potential jurors who participated in or might have overheard the conversation in the jury room, he was denied his right to a trial by a jury of his peers. He argues that it was not his fault that conversations occurred in the jury room in violation of the trial court's order nor was it his fault that such conversation tainted prospective jurors, resulting in several of them, including three or four thought by his counsel to be favorable, being excused for cause.

Olson's position is not well taken. After the trial court had denied the motion for mistrial and the challenge to the entire jury panel, the State moved to excuse for cause the two potential jurors involved in the discussion speculating on Olson's previous conviction as well as two other potential jurors who might have overheard that conversation. Olson's counsel was asked directly by the trial court whether they objected to excusing these potential jurors and Mr. Nodland, speaking for the defense attorneys, replied:

"Well, we're put in a quandary in terms of ideas. The correct way for me to say this would be is we are being asked now to participate in the selection of a fair jury from what we see as being an unfair process, and that's an impossible quandary. All I'm doing, for the record, I want the record to show that these three jurors, assuming they're not tainted, were among our highest or three of those were among the highest that we had evaluated, and we made evaluations independently, and then put them together and that was true for all three of us."

The potential jurors excused for cause might have been left on the jury because their knowledge, as revealed by examination of the potential juror reporting the conversation, could be nothing more than the knowledge which had been obtained from "common gossip." Knowledge obtained by jurors from "common gossip" does not automatically disqualify a juror. State v. Fujita, supra. The conversation reported did not rise to the magnitude of publicity and knowledge by potential jurors which led to moving the trial from Fargo to Wahpeton and subsequently to Minot. It was only the assumption, fostered by counsel for the defense, that any potential juror with knowledge of Olson from any source was automatically disqualified that led to the attempt to obtain a panel of jurors who had no knowledge...

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