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State v. Thomas

Supreme Court of North Dakota

July 11, 2019

State of North Dakota, Plaintiff and Appellee
v.
Ross Thomas, Defendant and Appellant

          Appeal from the District Court of Hettinger County, Southwest Judicial District, the Honorable Dann E. Greenwood, Judge.

          Pat J. Merriman, Assistant State's Attorney, Mott, ND, for plaintiff and appellee.

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

          OPINION

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] Ross Thomas appealed from a criminal judgment entered after a jury found him guilty of terrorizing, a class C felony. We conclude the district court erred in denying Thomas a hearing on alleged juror communications with non-jurors, which were discovered and brought to the court's attention while the jury was deliberating and were alleged to be related to matters on which the jury had deliberated and the jury's decisions. We reverse and remand for a new trial.

         I

         [¶2] In February 2017, the State charged Thomas with felonious restraint, terrorizing, and reckless endangerment for an event alleged to have occurred on February 7, 2017. In a separate criminal case, the State also charged Thomas with aggravated assault alleged to have occurred out of the same incident. In July 2017, the district court consolidated the cases for trial.

         [¶3] On March 28, 2018, the district court commenced a jury trial on the charges. On March 29, both the State and defendant rested, and the case was submitted to the jury. At the end of the day, the jury sent a note to the court stating they had reached a decision on three counts, were hung on one count, and no further progress would be made. The court admonished the jury and ordered them to return on the following Monday, April 2, after a holiday weekend, to continue deliberations on the remaining count.

         [¶4] On April 2, 2018, the jury reconvened to continue its deliberations. Before the jury reconvened, however, Thomas's counsel raised specific allegations to the district court that Thomas had overheard non-jurors discussing the content of jury deliberations and juror decisions in a public setting in town. The court did not conduct a hearing on Thomas's allegations at that time but stated it would "let [Thomas] challenge any verdict made in a subsequent motion after there's notice and opportunity for both parties to be prepared."

         [¶5] After further deliberation, the jury subsequently returned not-guilty verdicts on the aggravated assault and reckless endangerment charges and returned a guilty verdict on the terrorizing charge. The jury could not reach a unanimous verdict on the felonious restraint charge, and the court declared a mistrial on that charge. The district court sentenced Thomas on the terrorizing charge, and a criminal judgment was entered.

         II

         [¶6] On appeal, both Thomas and the State treat the district court's refusal to conduct a hearing to explore alleged juror misconduct, before the jury resumed deliberating on the final day of trial, as the denial of a request for mistrial.

         [¶7] Granting a mistrial is an "extreme remedy" and should only be resorted to when a fundamental defect or occurrence in the trial proceedings exists that "makes it evident that further proceedings would be productive of manifest injustice." State v. Klose, 2003 ND 39, ¶ 14, 657 N.W.2d 276. "When a problem occurs during trial, the affected party must bring the irregularity to the trial court's attention and seek the appropriate remedy." State v. Kautzman, 2007 ND 133, ¶ 8, 738 N.W.2d 1 (citing Klose, 2003 ND 39, ¶ 15, 657 N.W.2d 276). "A mistrial must be declared before the trial is over and before the jury has been discharged." Kautzman, at ¶ 8; see also N.D.R.Crim.P. 31(d) (mistrial may be declared before the jury is discharged); N.D.R.Crim.P. 33, Explanatory Note ("[Rule 33, providing for a motion for new trial] does not affect the power of the court to declare a mistrial and order a new trial prior to the verdict or finding of guilty."). The district court has broad discretion in deciding whether to grant a mistrial. State v. Doll, 2012 ND 32, ¶ 18, 812 N.W.2d 381. We will not reverse a court's mistrial decision unless there is a clear abuse of discretion or a manifest injustice would result. Id.

         [¶8] In this case, before the jury reconvened to continue its deliberations after a weekend holiday break, the district court and ...


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