City of Mandan v. Baer5/20/1998
s. Once the jury was empaneled, sworn, and excused for a recess, the court asked: "Mr. Tuntland, you have made one objection on the record. Aside from that objection, are you satisfied with the jury selection process?"
[ ] Mr. Tuntland replied, "Yes, I am, Your Honor."
[ ] Trial was held, and the jury found Baer guilty of driving under the influence of alcohol.
II
[ ] On appeal, Baer argues the district court erred when it excused a prospective juror outside the presence of the accused and his counsel. The presence requirement has its roots in the Confrontation Clause of the Sixth Amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, reh'g denied, 398 U.S. 915, 90 S.Ct. 1684 (1970). The Sixth Amendment provides that: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI. This constitutional guarantee was made obligatory on the states through the Fourteenth Amendment. Allen, 397 U.S. at 338, 90 S.Ct. at 1058 (citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). We have a similar guarantee in our State Constitution: "In criminal prosecutions in any court whatever, the party accused shall have the right . . . to appear and defend in person . . . ." N.D. Const. art. I, Section 12.
[ ] North Dakota has long recognized the constitutional right of a defendant to be personally present during the whole of a trial. State v. Schasker, 60 N.D. 462, 235 N.W. 345 (N.D. 1931) (calling in jury after retirement and allowing court stenographer to read evidence from notes in absence of defendant in a felony prosecution was a plain violation of defendant's constitutional rights under the North Dakota Constitution Article I, section 12 (previously, N.D. Const. Art. I, Section 13)). The right is not absolute, and may be affirmatively waived by the defendant. See, e.g., Rule 43(c)(2), N.D. R. Crim. P. (permitting absence with the written consent of the defendant for pleas of guilty for misdemeanor offenses). Cf. State v. Ash, 526 N.W.2d 473, 481 (N.D. 1995) (concluding trial court erred in responding to jury communications without the defendant being present, but the error was harmless considering, in part, defense counsel's repeated waiver of defendant's right of presence). The right, too, may be lost by a defendant's unruly and disruptive behavior. Allen, 397 U.S. 337, 90 S.Ct. 1057.
[ ] When the constitutional right of presence is violated, it is subject to the harmless error standard for constitutional errors -- "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, reh'g denied, 386 U.S. 987, 87 S.Ct. 1283 (1967) (holding a reviewing court must declare error harmless beyond a reasonable doubt before a federal constitutional error can be held harmless). See also Ash, 526 N.W.2d at 481; State v. Hatch, 346 N.W.2d 268, 278 (N.D. 1984) (stating error is harmless "where it can be determined beyond a reasonable doubt that substantial rights of the defendant are not affected . . . .").
[ ] In addition to the constitutional guarantee, Rule 43(a) of the North Dakota Rules of Criminal Procedure requires the presence of the defendant "at every stage of the trial including the impaneling of the jury . . . ." Our North Dakota Rule is fashioned after the similarly-worded Federal Rule 43. Compare F. R. Crim. P. 43, with N.D. R. Crim. P. 43. The presence requirement embodied in Federal Rule 43 has been interpreted as being broader than the constitutional right. United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir. 1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031 (1981) (reasoni
Page 1 2 3 4 5 North Dakota DUI Attorneys
DUI Lawyers
|