State v. Torgerson
Decision Date | 25 May 2000 |
Docket Number | No. 990340.,990340. |
Citation | 2000 ND 105,611 N.W.2d 182 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Steven Arlen TORGERSON, Defendant and Appellant. |
Court | North Dakota Supreme Court |
Thomas K. Schoppert of Schoppert Law Firm, Minot, N.D., for defendant and appellant.
Bruce A. Romanick, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee; argued by Erin Sandine, third-year law student.
[¶ 1] Torgerson appeals from a judgment finding him guilty of driving under the influence of intoxicating liquor. Torgerson argues he is entitled to a new trial because the Burleigh County jury panel selection process is not random. We affirm. [¶ 2] On May 9, 1999, Steven Torgerson was charged in Burleigh County with driving under the influence of intoxicating liquor. A jury trial was held on November 1, 1999. Before trial, Torgerson orally moved to disqualify the jury panel alleging the selection process was not random. The trial court summoned the Clerk of the District Court to explain the jury panel selection process. Burleigh County jury panels are selected from a jury list composed of voters and licensed drivers. The clerk randomly divides the jury list and notifies the selected persons by mail. The notice instructs the selected persons to call the clerk's office between 1:00 p.m. and 3:00 p.m., on the day before trial. The first persons to call in form the jury panel. After the court dismissed Torgerson's motion, he again objected to the jury panel selection process and moved for a mistrial. The court denied the motion. Torgerson moved to certify the question to this Court. The court denied the motion. The jury found Torgerson guilty. Torgerson appeals.
[¶ 3] Torgerson argues the trial court improperly denied his motion to disqualify the jury panel, his motion for a mistrial, and his motion to certify a question. Those appealed motions essentially present a singular issue: Whether the Burleigh County jury panel selection process is "random." That determination is a conclusion of law, or mixed question of law and fact, not a finding of fact. We fully review conclusions of law and mixed questions of law and fact under the de novo standard. State v. Lefthand, 523 N.W.2d 63, 67 (N.D.1994); State v. Owens, 1997 ND 212, ¶ 13, 570 N.W.2d 217.
[¶ 4] Generally, a jury panel challenge is governed by N.D.C.C. ch. 27-09.1. Section 27-09.1-12, N.D.C.C., provides:
1. Within seven days after the moving party discovered or by the exercise of diligence could have discovered the grounds therefor, and in any event before the petit jury is sworn to try the case, a party may move to stay the proceedings, and in a criminal case to quash the indictment or information, or for other appropriate relief, on the ground of a substantial failure to comply with this chapter in selecting the grand or petit jury.
2. Upon motion filed under subsection 1 containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with this chapter, the moving party is entitled to present in support of the motion the testimony of the clerk, any relevant records and papers not public or otherwise available used by the clerk, and any other relevant evidence. If the court determines that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with this chapter, the court shall stay the proceedings pending the selection of the jury in conformity with this chapter, quash an indictment or information, or grant other appropriate relief.
3. The procedures prescribed by this section are the exclusive means by which a person accused of a crime, the state, or a party in a civil case may challenge a jury on the ground that the jury was not selected in conformity with [N.D.C.C., chapter 27-09.1, the Uniform Jury Selection and Service Act].
[¶ 5] The State argues Torgerson cannot object to the jury panel selection process because he failed to comply with N.D.C.C. § 27-09.1-12 by not filing the required motion. We disagree.
[¶ 6] Torgerson concedes he failed to comply with N.D.C.C. § 27-09.1-12. But, he asserts the State cannot demand a strict application of the statute because neither party raised the statute to the trial court. This Court does not consider arguments raised for the first time on appeal. State v. Goulet, 1999 ND 80, ¶ 11, 593 N.W.2d 345. Further, the trial court essentially followed the statutory procedure by allowing evidence explaining the jury panel selection process, including the clerk's testimony. The State's failure to raise the issue and the court's allowance of the relevant evidence precludes strict application of N.D.C.C. § 27-09.1-12. Cf. State v. Fredericks, 507 N.W.2d 61, 64 (N.D.1993)
( ); People v. Faulk, 251 A.D.2d 345, 673 N.Y.S.2d 715 (1998) ( ). Thus, although the issue was irregularly raised, we will not dismiss Torgerson's appeal for failure to file the motion.
[¶ 7] Torgerson argues he is entitled to a new trial because the Burleigh County jury panel selection process is not a "[r]andom selection procedure ... that provides each eligible and available person with an equal probability of selection." See North Dakota Jury Selection Plan, Standard 3, Standards Relating to Juror Selection Use and Management. We disagree.
[¶ 8] Rule 9(2) and (3), N.D.Admin.R, provide, "the [North Dakota Jury Selection Plan] shall detail the procedures to be followed in selecting and managing jurors in order to implement the policies set forth in N.D.C.C. ch. 27-09.1" and "[a]ll courts conducting jury trials shall obtain jury panels in the manner prescribed by the [North Dakota Jury Selection Plan]." Section 27-09.1-01 provides jurors must "be selected at random from a fair cross section of the population of the area served by the court."
[¶ 9] Jurisdictions have defined "random" or "randomness" differently. Random selection under the federal Jury Selection and Service Act is not defined as statistical randomness, but rather a system affording no room for impermissible discrimination against individuals or groups. United States v. Gregory, 730 F.2d 692, 699 (11th Cir.1984) (citing S.Rep. No. 891, 90th Cong., 1st Sess. 16, n. 9 (1967), U.S.Code Cong. & Admin.News 1968, p. 1792); see also Celotex Corp. v. Wilson, 607 A.2d 1223, 1228, n. 17 (Del. 1992)
(. ) But see United States v. Rioux, 97 F.3d 648 (2nd Cir.1996) ( ). "Randomness means that, at no time in the jury selection process will anyone involved in the action be able to know in advance, or manipulate, the list of names who will eventually compose the empaneled jury." Williams v. Commonwealth, 734 S.W.2d 810, 812-13 (Ky.Ct. App.1987).
Gattis v. State, 637 A.2d 808, 815-16 (Del. 1994).
[¶ 10] Torgerson asserts the Burleigh County process is not random because potential jury panel members may not have a telephone, or telephone access from 1:00 p.m to 3:00 p.m. We disagree.
[¶ 11] No case law directly examines the randomness of already summoned jurors calling in by telephone to form jury panels, but courts have concluded juror summoning by telephone is random. Summoning jurors by telephone does not discriminate "against those of the lower economic class, i.e., those who don't own a phone." State v. Chatman, 109 Ariz. 275, 508 P.2d 739, 742 (Ar...
To continue reading
Request your trial-
State v. Cain
...did not apply because no detainer was filed against Cain. [¶ 25] We review the district court's conclusions of law de novo. State v. Torgerson, 2000 ND 105, ¶ 3, 611 N.W.2d 182. While Cain was entitled to a speedy trial under the Sixth Amendment to the United States Constitution and N.D. Co......
-
State v. McAllister
...Whether a jury was impaneled according to statutory requirements is a mixed question of law and fact that we review de novo. State v. Torgerson , 2000 ND 105, ¶ 3, 611 N.W.2d 182. [¶10] Section 29-17-19, N.D.C.C., states:A challenge to a panel can be founded only on a material departure fro......
-
State v. Kelly
...statement under N.D.R.Ev. 405, relating to character evidence. We do not consider arguments raised for the first time on appeal. State v. Torgerson, 2000 ND 105, ¶ 6, 611 N.W.2d V [¶ 30] The trial court did not err in determining, as a matter of law, that the prison disciplinary proceedings......
-
In re Pederson Trust
...of law and fact under the de novo standard of review. Burlington N. R.R. Co. v. Fail, 2008 ND 114, ¶ 5, 751 N.W.2d 188 (quoting State v. Torgerson, 2000 ND 105, ¶ 3, 611 N.W.2d [¶18] The district court noted, while Kenneth Pederson argued the purpose of the trust was impossible, the evidenc......