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City of Mandan v. Baer5/20/1998
ng Federal Rule 43 is broader than the constitutional right because it "embodies the right to be present derived from the Sixth Amendment Confrontation Clause, the Due Process Clause of the Fifth and Fourteenth Amendments, and the common law privilege of presence"). Despite the purported breadth of Rule 43, it, too, is subject to express limitation. See, e.g., F. R. Crim. P. 43(b), (c); N.D. R. Crim. P. 43(b), (c) (noting certain instances where the defendant's presence is not required).
[ ] Although Rule 43 is contained in our procedural rules, our past decisions view its violation in light of the constitutional requirements. See, e.g., Ash, 526 N.W.2d at 481 (concluding error of communicating with jury outside of defendant's presence was harmless beyond a reasonable doubt); State v. Smuda, 419 N.W.2d 166, 168 (N.D. 1988) (noting presence requirement of Rule 43, N.D. R. Crim. P., but concluding defendant's right was violated under the North Dakota Constitution and violation was harmless beyond a reasonable doubt); Hatch, 346 N.W.2d at 278 (noting recent adoption of Rule 43, N.D. R. Crim. P., and concluding trial court violated Rule 43 by communicating with jury outside presence of defendant and counsel but violation was disregarded under constitutional standard for harmless error).
III.
[ ] We reverse in this case because the district court violated the defendant's constitutional right to be present when a prospective juror was removed from the venire and the State has not persuaded us that the violation was harmless beyond a reasonable doubt.
[ ] From our review of the transcript, it is clear the district court incorrectly thought a North Dakota statute disqualified convicted felons from serving on a jury. Our State law formerly specified "conviction for a felony" as a general reason for challenging a prospective juror for cause. See N.D.C.C. Section 29-17-34(1) (1991). In 1993, the North Dakota Legislature amended section 29-17-34, N.D.C.C., eliminating "conviction for a felony" as a specifically enumerated challenge for cause. 1993 N.D. Laws Ch. 333, Section 1. See N.D.C.C. Section 29-17-34 (Supp. 1997).
[ ] The change was offered as a "clean up" bill to make section 29-17-34, N.D.C.C., consistent with the Uniform Jury Selection and Service Act, N.D.C.C. Section 27-09.1-01 to 22. Hearing on S.B. 2355 Before Senate Judiciary Committee, 53rd N.D. Leg. Sess., (Feb. 2, 1993) (oral testimony of Greg Wallace, Assistant State Court Administrator for Trial Courts). The Uniform Jury Selection and Service Act is in some respects more stringent than the former provision because instead of providing a ground for challenge it completely disqualifies a prospective juror from service if they have "lost the right to vote because of imprisonment in the penitentiary (section 12.1-33-01) . . . ." N.D.C.C. Section 27-09.1-08(2)(e). The disqualification is in effect only during the period of actual incarceration. N.D.C.C. Section 12.1-33-03 (reinstating a convicted persons right to vote once released from incarceration). After release from incarceration, many of a convict's civil rights are automatically restored, including the right to serve on a jury. N.D.C.C. Section 12.1-33-03. Not all rights are restored upon release from incarceration or parol. See, e.g., N.D.C.C. Section 62.1-02-01 (prohibiting a convicted felon from owning or possessing a firearm for a specified period of time after actual incarceration).
[ ] In the present case, the district court excused a prospective juror because he was a convicted felon. As we have already noted, convicted felons are no longer subject to general challenge on the sole basis of a conviction. 1993 N.D. Laws Ch. 333,
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