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City of Mandan v. Baer5/20/1998
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Ronald E. Goodman, Judge.
REVERSED AND REMANDED.
[ ] Richard B. Baer appealed from the Judgment of Conviction of the Morton County District Court issued following a jury verdict of guilty for Driving Under the Influence of Alcohol. We reverse and remand this case for a new trial because the district court erred in excusing a prospective juror during jury selection in the absence of the accused and his counsel.
I.
[ ] Richard Baer was arrested and charged with driving under the influence of alcohol. He challenged his administrative license suspension claiming the officer did not have probable cause to arrest him. Baer v. Director, 1997 ND 222, 571 N.W.2d 829. The district court reversed the suspension. Id. at . The Director of the North Dakota Department of Transportation appealed.
Id. We reversed the district court judgment because we concluded the officer had probable cause to arrest Baer. Id. In this appeal, Baer challenges his conviction for driving under the influence of alcohol on the basis of the proceedings at trial.
[ ] During jury selection for Baer's DUI charge, the court asked several questions of the venire. In an apparent attempt to ascertain whether any of the prospective jurors were convicted felons, the district court asked, " ave any of you lost the right to vote for any reason?" One of the prospective jurors raised his hand. The court continued:
You've lost your right to vote?
JUROR: I don't know if that is still the case.
All right. Mr. Tuntland, [defense counsel,] are there other questions you want me to ask regarding cause at this time?
MR. TUNTLAND: Not of the panel as a whole, Your Honor.
Mr. Koppy[, Morton County State's Attorney]?
MR. KOPPY: Your Honor, I think one of the grounds, if it is still in effect, has anyone been convicted of a felony.
Okay. That question is a question that I'm going to reserve for outside of the presence of the rest of the panel. So we'll deal with that. If you have been convicted of a felony, I would ask you to approach me when we have a recess. Any other questions you would like to ask?
MR. KOPPY: No.
MR. TUNTLAND: No, I don't.
[ ] After a brief recess, the court informed the attorneys he had dismissed one of the prospective jurors. Defense Counsel Tom Tuntland asked for a brief in camera hearing on the record. The record continued in chambers:
MR. TUNTLAND: At this time, Your Honor, the court noted that [one of the prospective jurors] had been excused. That must have been during the recess.
THE COURT: Yes. When Mr. Koppy mentioned the conviction of a felony, [the prospective juror] approached me at the recess and I excused him. When I reviewed it I didn't see it, that's why I asked the question about right to vote. When he mentioned that, I did look and the statute no longer required that a person that had been convicted of a felony had to be excused from the panel, you know, but I had excused him, he took off. I wanted to include him again, but he left. So I would have wanted to get him back on the panel and leave him on the panel, but by that time he had gone, at least he was no longer in the jury room. So if you wish to put your objection on the record to his excusal, that is fine. Go ahead.
MR. TUNTLAND: I do object to his being excused, Your Honor.
That is on record and we'll proceed.
[ ] After voir dire was complete, each side exhausted their peremptory challenge
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