from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
Spahr, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
O. Diamond, Fargo, ND, for defendant and appellant.
1] Noah Glick appeals a criminal judgment entered after a
jury found him guilty of aggravated assault. Glick argues the
district court erred in denying his motion for mistrial
because of a juror's misconduct during voir dire. We
affirm the criminal judgment.
2] Glick was charged with aggravated assault and proceeded to
trial by jury. After voir dire concluded, the parties
exercised their peremptory challenges and the jury was
selected and sworn, and the remaining prospective jurors were
excused. A former prospective juror then approached the
bailiff indicating he wished to bring something to the
attention of the court. The former prospective juror informed
the judge, Glick and the State that during voir dire a juror
sitting next to him, juror D.G., leaned over and told him
"she had been a victim of an assault by her boyfriend
but she said she had gotten over it." The former
prospective juror was a lawyer and felt, as an officer of the
court, he had to disclose the statement because D.G. did not
raise her hand when the State asked if anyone had been in a
fight, and she did not answer when Glick asked if anyone had
been the victim of an assault.
3] During voir dire the district court stated:
"As I mentioned to you, the subject matter of the case
is aggravated assault. That's--I've just given you
the statement of it. One of the witnesses--or one of the
individuals, [J.U.], had indicated he had a personal contact
with that kind of a case. My question is: Does anyone else
have that view of this case that it makes you so
uncomfortable that you just don't know if you can really
be fair in this case? [J.U.] gave us that example where he
felt it was--was--it was very difficult for him from a
personal perspective. Anybody else in that situation?"
D.G. did not respond. During Glick's questioning, the
prospective jurors were asked: "Is there anybody here
who's been the victim or had a close family member or
friend who's been the victim of an assault?" D.G.
did not respond. The State asked the prospective jurors:
"Have any of you ever been in a physical fight, a fist
fight?" D.G. did not respond.
4] Following the information provided by the former
prospective juror, Glick indicated he was "comfortable
with the jury as sat." The State indicated it would
"challenge for cause" to remove D.G., based on not
providing full disclosure and a concern that she did not
answer honestly during voir dire. The district court decided
to question D.G. in chambers, asking her additional questions
while Glick and the State were present:
"THE COURT: I wanted to know if there was any
information, there was kind of general questions asked about
the background of the case and whether there was any issues
that you felt you wanted to bring to the attention of the
Court that you felt everyone should know, and I think you
have responded no and the questioning went on and I think Ms.
Shively posed questions individually to you and I think Ms.
Spahr did as well. And, I guess, my question was as you
reflect on the questioning, was there anything else that you
wanted to bring to our attention that you thought--you think
might be something that should be known that might impact
your ability to be fair in this case or have you revealed
everything that you felt was appropriate?
JUROR [D.G]: No. I don't.
THE COURT: You felt candid about what you ...