State v. Parisien

• Decision Date: 18 August 2005
• Docket Number: No. 20040348, No. 20040350., No. 20040349
• Citation: 2005 ND 152,703 N.W.2d 306
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Travis PARISIEN, Defendant and Appellant.
• Court: North Dakota Supreme Court

703 N.W.2d 306

2005 ND 152

STATE of North Dakota, Plaintiff and Appellee v.Travis PARISIEN, Defendant and Appellant.

Nos. 20040348, 20040349, 20040350.

Supreme Court of North Dakota.

August 18, 2005.

Mary Kathleen O'Donnell, State's Attorney, Rolla, N.D., for plaintiff and appellee.

Robin L. Olson, Olson Johnston Law Office, Grand Forks, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1]Travis Parisien appealed from criminal judgments entered on jury verdicts finding him guilty of class A felony gross sexual imposition, class C felony aggravated assault and class C felony felonious restraint.We conclude that, under the totality of the circumstances, Parisien was denied his constitutional rights to be present and to a fair trial.We reverse the criminal judgments and remand for a new trial.

I

[¶ 2] These criminal convictions stem from charges that Parisien physically and sexually assaulted his girlfriend during a two-hour period at her home in St. John on August 27, 2002.Parisien's jury trial began Tuesday morning, June 22, 2004, and continued through the week.On Friday, June 25, 2004, the trial resumed at 9:30 a.m.After the prosecution and the defense rested their cases, the court informed the jury that final instructions would be prepared and, after deliberations began the court would continue jury deliberations until verdicts were rendered.The jury left the courtroom at 3:40 p.m.The judge later received a note from the jury stating, "Roberta has to go home to care for her 91 yr old mother evenings.No one else available.Also Roberta doesn't drive at night.Several would like to call family members before 5:00."The judge responded at 4:40 p.m. in a note stating, "I'm sorry that I cannot excuse you but I hope you can make some other arrangements with your mother.If you need to make any phone calls, please let the bailiff know."The jury reconvened in the courtroom at 5:05 p.m. for presentation of closing arguments and the closing jury instructions.The jury retired for deliberations at 7:40 p.m.

[¶ 3] During its deliberations, the jury sent several questions to the court.The first jury question relevant to this appeal was sent to the judge at 11:25 p.m. and stated, "Hung jury on Sexual charge.Vote—10-2."After conferring with the prosecutor and defense attorney in chambers without Parisien being present and without the proceedings being recorded, the judge responded to the jury in a note stating, "Please try your best to see if you can arrive at a verdict if you can."At 12:15 a.m. on Saturday, June 26, 2004, the jury sent another note to the judge stating, "Sexual charge[.]Hung jury[.]"After conferring with counsel, again in Parisien's absence and without recordation of the proceedings, the judge responded in a note stating, "1.Have you reached a verdict on the other 2 charges?2.Would a recess until later today be of any assistance in reaching a verdict?"At 12:27 a.m., the jury responded "yes" to the judge's first question, and in response to the second question stated, "We are taking a break [and] then vote again."At 2:19 a.m., the jury returned verdicts finding Parisien guilty of all three charges.

[¶ 4] After the judgments were entered and the appeals were filed, Parisien, through different counsel, moved under N.D.R.App.P. 10(f) and (h) for modification or correction of the record to reflect what occurred during the in-chamber conferences when the jury questions were addressed.After obtaining the written recollections of the in-chambers conferences from the attorneys involved in those discussions, the trial court found:

1.The written questions and responses are the best evidence as to the decisions made after discussions between the Court and the attorneys.

2.The Court recalls that Mr. Slorby, who was representing Travis at the trial, did make an oral request for a mistrial after the jury could not reach a verdict.This was about five hours after the jury had begun deliberations.Miss O'Donnell resisted the request by stating that it was too early to consider a mistrial.The Court declined to grant the Motion because of the short period of time that the jury had deliberated.

3.The Court was informed by the jury that it had reached a verdict in two cases and could not agree on the third verdict.The Court does not recall that it was informed by the jury in writing that they stood ten to two.If Mr. Slorby had this information, he must have learned of it after the verdict.

4.All of the discussions relating to jury questions were held in the Judge's office.This is a small office that is close to the courtroom.The office door and the court room door were open.Because the office is small, the Court knows that Travis was not in the office, but may have been in the hall way between the office and the Court room.If Travis was in the court room, he could have easily heard the discussions.Mr. Slorby did not request that Travis be present, and the Court overlooked requiring Travis be present.The Court assumed that his attorney kept him informed as to the communications between the Court and jury.

II

[¶ 5] The dispositive issues in this case are whether the procedure the trial court used when it answered the jury's questions and the allegedly coercive effect the circumstances surrounding the jury's deliberations had on the guilty verdicts entitle Parisien to a new trial.

A

[¶ 6] Parisien argues the trial court erred in answering the jury's questions in his absence and without calling the jury into open court.

[¶ 7]A defendant has a right to be present in the courtroom at every stage of trial.State v. Klose,2003 ND 39, ¶ 32, 657 N.W.2d 276;N.D.R.Crim.P. 43(a).Section 29-22-05, N.D.C.C., sets forth the procedure to be followed when a jury has a question for the trial court after the jury has retired for deliberations:

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the cause, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody.Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state's attorney and the defendant or his counsel, or after they have been called.

[¶ 8] Although N.D.C.C. § 29-22-05 specifically refers only to jury questions on a "point of law" and jury requests to have testimony read, this Court has long construed the statute to require that all communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.SeeKlose,2003 ND 39, ¶¶ 32-34, 657 N.W.2d 276;Hill v. State,2000 ND 143, ¶¶ 16-18, 615 N.W.2d 135;State v. Ash,526 N.W.2d 473, 481(N.D.1995);State v. Zimmerman,524 N.W.2d 111, 117(N.D.1994);State v. Smuda,419 N.W.2d 166, 167(N.D.1988);State v. Hatch,346 N.W.2d 268, 277-78(N.D.1984).This Court stated in State v. Klein,200 N.W.2d 288, 292(N.D.1972):

After a case has been submitted to the jury, the only proper forum for communication between the jury and the judge is in open court, where a proper record may be made of any conversation had.Any such communication should be made in the presence of the entire jury panel, counsel for both sides, and, in a criminal prosecution, in the presence of the defendant.

Because of the constitutional underpinnings of the defendant's right to be present, a violation of the right "is subject to the harmless error standard for constitutional errors—`harmless beyond a reasonable doubt.'"City of Mandan v. Baer,1998 ND 101, ¶ 10, 578 N.W.2d 559(quotingChapman v. California,386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967)).The rights afforded a defendant under N.D.C.C. § 29-22-05 are not absolute, however, and may be waived by failing to object to the trial court's procedure in responding to the jury's request.SeeState v. Jahner,2003 ND 36, ¶ 10, 657 N.W.2d 266;see alsoBaer,at ¶ 9(noting constitutional right of the defendant to be present may be affirmatively waived by the defendant).

[¶ 9]We hold the trial court erred in responding to the jury's questions without the defendant being present and without calling the jury into open court where a proper record could be made of discussions concerning the jury questions.

B

[¶ 10] Parisien argues the jury was coerced into rendering the guilty verdicts by being kept "late into the night" to deliberate and by being instructed by the trial court to try to reach a verdict after the court knew the jury was deadlocked and knew of the jury's numerical division.

[¶ 11]A trial court has broad discretion over the conduct of a trial, including the time in which a jury may properly deliberate, but the court must exercise this discretion in a manner that best comports with substantial justice.SeeSelzler v. Selzler,2001 ND 138, ¶ 10, 631 N.W.2d 564;75B Am.Jur.2dTrial§ 1648(1992).It is often stated that the mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced:

[M]ere lateness of the hour or length of the jurors' day does not establish that the resulting verdict was coerced; in this regard, the late hour of deliberations does not, by itself, create an inference that one or more jurors might have surrendered their conscientious views to arrive at a verdict.However, while, as a rule, a conviction will not be reversed when the jury reports that it is unable to reach a verdict, is directed to deliberate further, and later returns a verdict, unless the trial court has abused its discretion in some way or the record indicates that the verdict may have been coerced, keeping the jury confined for a long period after they have reported an inability to agree may, together with other circumstances, amount to coercion.

75B Am.Jur.2dTrial§ 1648,...