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State v. Glick

Supreme Court of North Dakota

July 12, 2017

State of North Dakota, Plaintiff and Appellee
v.
Noah Zvi Glick, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge. AFFIRMED.

          Marina Spahr, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Scott O. Diamond, Fargo, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶ 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.

         I

         [¶ 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 ...

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