from the District Court of Mountrail County, North Central
Judicial District, the Honorable Richard L. Hagar, Judge.
J. Fiesel, Assistant State's Attorney, for plaintiff and
appellee; submitted on brief.
C. Ringsak, for defendant and appellant; submitted on brief.
1] Alfred Garnder appeals a criminal judgment entered after a
jury found him guilty of driving under the influence of
alcohol and driving with a suspended license. On appeal, he
argues the district court should not have denied his
challenges of the prospective jurors for cause. He also
claims that by using a peremptory challenge against one of
the jurors, the assistant state's attorney engaged in
racial discrimination during jury selection. Because the
district court properly denied Garnder's challenges, we
affirm the district court judgment.
2] Garnder was arrested for driving under the influence and
driving with a suspended license. His attorney challenged two
of the potential jurors for cause because of their previous
professional relationships with the state's attorney as
well as the assistant state's attorney who was
prosecuting the case. The district court denied the
attorney's challenges for cause, finding there was no
reason to believe the two jurors would be unable to be fair
and impartial. Garnder's attorney also challenged the use
of the State's peremptory challenge of one of the jurors,
because she was one of the few minorities on the jury panel.
The district court disagreed, finding the State had
significant and clear reasons for using its peremptory
challenge. After a trial, the jury found Garnder guilty of
driving under the influence and driving with a suspended
3] The district court had jurisdiction under N.D. Const. art.
VI, § 8, and N.D.C.C. § 27-05-06. Garnder timely
appealed under N.D.R.App.P. 4(b). This Court has jurisdiction
under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C.
4] On appeal, Garnder argues the district court should not
have denied his challenges of the prospective jurors for
5] "Persons accused of crimes have a right... to a trial
by an impartial jury." State v. Smaage, 547
N.W.2d 916, 919 (N.D. 1996). In State v. Fredericks,
507 N.W.2d 61, 64 - 65 (N.D. 1993), we explained:
A criminal defendant's right to an impartial jury trial
under the Sixth Amendment requires the selection of the jury
from a representative cross section of the community.
Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692
(1975). The Fourteenth Amendment makes the provisions of the
Sixth Amendment binding upon the states. Duncan v.
Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968). Although
the North Dakota Constitution's guarantee of the right to
a jury trial does not explicitly require an impartial jury,
see N.D. Const. art. I, § 13, we would read the
Sixth Amendment's impartiality and fair-cross-section
requirements into our state constitution.
determining whether a defendant was deprived of a fair and
impartial jury, the court will not readily discount the
assurances of a juror as to his impartiality." State
v. Olson, 274 N.W.2d 190, 193 (N.D. 1978). "It
remains open to the defendant to demonstrate the actual
existence of such an opinion in the mind of the juror to
overcome a presumption of impartiality and raise a
presumption of partiality." Id.
6] A trial judge must excuse a juror if the judge "finds
grounds for challenge for cause." N.D.R.Crim.P.
24(b)(1)(A). A juror can be excused on the basis of either
actual or implied bias. N.D.C.C. § 29-17-35. Implied
bias is based on "any of the enumerated causes found in
§ 29-17-36, N.D.C.C." State v. McLain, 301
N.W.2d 616, 622 (N.D. 1981). Actual bias is defined as
"[t]he existence of a state of mind on the part of the
juror, with reference to the case or to either party, which
satisfies the court, in the exercise of a sound discretion,
that the juror cannot try the issue impartially without
prejudice to the substantial rights of the party challenging,
and which is known in this title as actual bias."