Appeals from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
The opinion of the court was delivered by: Crothers, Justice.
Opinion of the Court by Crothers, Justice.
[¶1] Douglas Myers appeals the district court's judgment entered after a jury found him guilty of violating a domestic protection order. Myers also appeals the district court's order denying his application for post-conviction relief. We affirm the district court's judgment, concluding Myers' right to a fair trial was not violated. We also affirm the district court's order denying Myers' application for post- conviction relief because Myers was not denied effective assistance of counsel.
[¶2] On August 20, 2007, Myers was arrested for violating a domestic violence protection order. On April 16, 2008, a jury trial was held on the charge. Preston McKay, a police officer with the Bismarck Police Department, testified at trial that on August 20, 2007, he was off-duty at home watching television when he heard a vehicle making excessive noise pass by his apartment. Officer McKay said the second time he heard the vehicle pass by, he went outside and yelled at the driver, Myers, to pull over. Officer McKay said Myers pulled over and he asked Myers what he was doing. Officer McKay stated Myers said he was trying to get his sister's attention. While Officer McKay was talking to Myers, one of Officer McKay's neighbors came outside and said he had called the police to report Myers' reckless driving.
[¶3] Brandon Rask, a police officer with the Bismarck Police Department, responded to the call of reckless driving. Officer Rask testified that when he arrived at the scene, he spoke with Officer McKay first. Officer McKay informed Officer Rask that he had observed Myers driving at excessive speeds, squealing his tires and revving his engine. Officer Rask then approached Myers and asked him about his driving. Officer Rask stated Myers initially said he was in the area to visit his sister. However, later in their conversation Officer Rask testified that Myers said that he was driving recklessly because his ex-girlfriend was in the area and he wanted her to leave. Officer Rask issued Myers a citation for a loud stereo. After receiving the citation, Officer Rask testified Myers left the scene.
[¶4] Scott Meyers, a sergeant with the Bismarck Police Department, also responded to the call of reckless driving. Sergeant Meyers said before he got out of his patrol car, a woman approached his patrol car and told him that the individual Officer Rask pulled over was her ex-boyfriend and that she had a protection order against him. Sergeant Meyers testified he reviewed the protection order, noticing it prohibited Myers from coming within 100 yards of the victim. Sergeant Meyers said he measured the distance from where Myers' car was parked to the front door of the residence the victim was visiting to determine if Myers had violated the 100-yard restriction. Sergeant Meyers testified the distance from Myers' car to the front of the residence was a little over 135 feet. Because it appeared Myers was within 100 yards of the victim, Sergeant Meyers believed he had probable cause to arrest Myers for violating the domestic violence protection order. Sergeant Meyers testified since Myers had already left the scene, that he radioed Officer Rask informing him he had probable cause to arrest Myers and that Officer Rask stated he was on his way over to Myers' residence.
[¶5] Officer Rask testified that when he arrived at Myers' residence, Myers was standing outside of his vehicle. Officer Rask said he talked to Myers while he waited for Sergeant Meyers to arrive. Officer Rask testified he asked Myers "to elaborate on how he knew that [the victim] was in the area where we had stopped him." Officer Rask stated Myers said he knew the victim was in the area because her car was parked on the street. Sergeant Meyers then arrived, placed Myers under arrest for violating a domestic violence protection order and transported him to the police department and then to jail.
[¶6] At trial, Myers testified he was aware of the protection order. However, Myers denied telling Officer Rask that he was driving recklessly to get his ex-girlfriend's attention. Myers said he was driving recklessly to get his sister's attention because he wanted her to move her car. Myers testified he did not know the victim was in the neighborhood, but he did state that the victim drives a red Pontiac Vibe and that two red Vibes were parked on the street that night. Myers' sister testified she called Myers to come over to her house to sit with her until her boyfriend got off of work. Myers' sister said when she talked to Myers that evening, he did not indicate he knew the victim was in the neighborhood.
[¶7] The jury found Myers guilty, and Myers was sentenced to one year with all but 60 days suspended for a period of two years subject to the terms and conditions of supervised probation. On April 28, 2008, Myers filed a notice of appeal which was stayed, allowing him to pursue an application for post-conviction relief. On November 5, 2008, a hearing was held on Myers' application for post-conviction relief. The district court denied Myers' application for post-conviction relief on December 23, 2008. On January 5, 2009, Myers filed a notice of appeal from the district court's order denying his application for post-conviction relief. Myers' appeal from his guilty verdict was joined with his appeal from his application for post-conviction relief.
[¶8] Myers argues he is entitled to a new trial because his constitutional right to a fair trial was violated when a juror slept during Sergeant Meyers' testimony. A criminal defendant may move for a new trial on the basis of jury misconduct under Rule 33 of the North Dakota Rules of Criminal Procedure, but Myers did not move the court for a new trial. Rather, after the jury was dismissed for lunch, Myers' trial counsel told the court he was concerned that one juror was sleeping during Sergeant Meyers' testimony because her eyes were closed during most of the sergeant's testimony. Myers' trial counsel did not ask for a new trial, but brought the alleged sleeping juror to the court's attention because he "didn't know if the Court wanted to address that with [the juror]." Both the State and the district court said they had not noticed the juror sleeping. The district court stated it would keep a close eye on the jury and if it noticed similar behavior in the afternoon, it would mention it to the jury. [¶9] After both parties rested and while the parties were discussing jury instructions with the court, the State brought up the previous allegation of a sleeping juror. The State said it had kept a closer eye on the jury and did not notice anything in the afternoon. The court also stated it did not see anything in the afternoon and again reiterated it did not see a juror sleeping that morning either. Myers' trial counsel also said he believed the jury was better in the afternoon. Nothing more was said about the allegation of juror misconduct.
[¶10] We have stated that "[w]hen a problem arises during a trial, the party affected must bring the irregularity to the court's attention and seek appropriate remedial action." State v. Wilson, 1999 ND 34, ¶ 14, 590 N.W.2d 202. If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error. Id. at ¶ 15 (citation omitted). To establish obvious error, a defendant must demonstrate "(1) error, (2) that is plain, and (3) affects substantial rights." State v. Gibbs, 2009 ND 44, ¶ 12, 763 N.W.2d 430 (quoting State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658). "We exercise our power to notice obvious error cautiously, and only in exceptional ...