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City of Mandan v. Baer5/20/1998
Section 1. A convicted felon may be excused from the venire, but the removal must be based on grounds other than conviction of a felony. See, e.g., N.D.C.C. Section 29-17-35 (providing for the challenge of jurors for implied or actual bias); State v. Thompson, 552 N.W.2d 386, 388-89 (N.D. 1996) (holding trial court did not abuse its discretion by declining to dismiss a prospective juror because juror was former client of defendant's law firm). The North Dakota Constitution grants the defendant the right to be present when such challenges are made. N.D. Const. Art. I, Section 12. See N.D. R. Crim. P. 43(a).
[ ] We note, however, that beyond the defendant's right to be present at the arraignment and the time of the plea, Rule 43 is confined to "stages" in a trial. N.D. R. Crim. P. 43(a). "Where a Judge acts in his or her administrative capacity to ensure that a trial is fair, these events are not 'stages' of a trial." United States v. Olano, 62 F.3d 1180, 1191-92 (9th Cir. 1995), cert. denied, 117 S.Ct. 303 (1996) (holding ex parte meeting with security officer responsible for escorting defendant was proper administrative act). Thus, before a prospective juror reports for jury service, the district court may excuse the prospective juror outside the defendant's presence for illness, hardship, or other cause. N.D.C.C. Section 27-09.1-11(2) (providing prospective jurors may be excused upon a showing of "undue hardship, extreme inconvenience, or public necessity").
[ ] Once the selection process in a particular case begins, jury selection is a "stage" of the trial which requires the defendant's presence. N.D. Const. Art. I, Section 12; N.D. R. Crim. P. 43(a). The defendant has a substantial right to be brought face to face with and, indeed, to help select the jurors who will determine his fate. Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138 (1892). This right is not merely for the defendant's benefit. As this case illustrates, presence allows the defendant the opportunity to object to the discharge of prospective jurors and may allow the court to correct an erroneous ruling before it is too late.
[ ] Baer was denied his right of presence when the district court excused the prospective juror out of his presence. As we noted in part II of this opinion, a violation of the right of presence may be harmless error. Ash, 526 N.W.2d at 481. To dismiss a violation of the presence requirement as harmless, it must be "determined beyond a reasonable doubt that substantial rights of the defendant are not affected . . . ." Hatch, 346 N.W.2d at 278. In most cases, the substantial rights of the defendant are affected if the error is prejudicial. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778 (1993), opinion on remand, 62 F.3d 1180 (9th Cir. 1995). The error is prejudicial if it has "affected the outcome of the district court proceedings." Id.
[ ] Baer claims the potential for a different jury composition was reversible error because it affected his substantial rights. See Explanatory Note, N.D. R. Crim. P. 52 (explaining there are three types of error: harmless, reversible, and obvious). The State counters by claiming the error was harmless because the jury would have been basically the same once the erroneously-excused prospective juror was removed by a peremptory challenge. Both parties ask us to speculate or rationalize as to the level of prejudice resulting from the composition of the jury. We will not engage in that speculation or rationalization. The burden is on the State to persuade us that the error was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The State cannot meet that burden by mere speculation.
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