from the District Court of Hettinger County, Southwest
Judicial District, the Honorable Dann E. Greenwood, Judge.
Merriman, Assistant State's Attorney, Mott, ND, for
plaintiff and appellee.
O. Diamond, Fargo, ND, for defendant and appellant.
VANDEWALLE, CHIEF JUSTICE.
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.
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.
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.
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."
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.
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.
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.
In this case, before the jury reconvened to continue its
deliberations after a weekend holiday break, the district
court and ...