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State v. Jahner3/5/2003
h, 329 N.W.2d 367, 372 (N.D. 1983). However, to save time and avoid confusion, a trial court may request the jury to specify the testimony it desires to rehear. State v. Christensen, 1997 ND 57, 11, 561 N.W.2d 631.
[ ] In this case, the jury sent a note to the court requesting "Transcript of Joseph Jahner testimony." The court convened in the courtroom outside the presence of the jury. The court discussed N.D.C.C. § 29-22-05 and stated:
I'm open to suggestions but my intention would be to inform the jurors that if they have a specific question or disagreement about a portion of the testimony, that we can have that read back to them - or I don't know, Lisa, how you do it, if you play it for them or what you would do but in any event - and otherwise, the entire repeat of his whole testimony wouldn't - any problem with that [?]
Defense counsel responded his "preference would be perhaps to put a question to them. Do you have a specific disagreement?" and "maybe even ask with regard to what or something like that so we can get some feeling back from them." The court and the State agreed with defense counsel's approach and sent the following question to the jury: "Do you have a doubt or disagreement over a specific part of Mr. Jahner's testimony. If so, what doubt or disagreement do you have?" The jury responded " e are in disagreement about Mr. Jahner's memory and the period of time that the memory loss included." After some discussion, the court and counsel for both parties agreed the response to the jury would be: "You are to rely on your recollection of the testimony to resolve the disagreement." Defense counsel stated this response was "acceptable to the defense."
[ ] N.D.C.C. § 29-22-05 confers a statutory right upon a defendant to have the jury brought into the courtroom and to have the information requested by the jury given to it. See State v. Ash, 526 N.W.2d 473, 484 (N.D. 1995) (Neumann, J., concurring specially) (noting a defendant's right under N.D.C.C. § 29-22-05 to have all responses to jury questions be given to the jurors in the courtroom is a statutory right). Statutory rights may be waived by the party entitled to the benefit unless a waiver would be against public policy or the statute declares or implies there cannot be a waiver. Brunsoman v. Scarlett, 465 N.W.2d 162, 167 (N.D. 1991).
[ ] Litigants seeking "to take advantage of irregularities occurring during the course of a trial, either on the part of the court, the jury, the adverse parties, or anyone acting for or on their behalf, . . . must do so at the time the irregularities occur, in order that the court may take appropriate action, if possible, to remedy any prejudice." Leake v. Hagert, 175 N.W.2d 675, 690 (N.D. 1970). As a general rule, " ne who fails to raise an appropriate objection at the trial court level waives right and cannot raise the issue for the first time on appeal." State v. Palmer, 2002 ND 5, 8, 638 N.W.2d 18. " he doctrine of waiver is applicable to all rights and privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided such rights and privileges rest in the individual who has waived them and are intended for his benefit." Gajewski v. Bratcher, 221 N.W.2d 614, 628 (N.D. 1974).
[ ] Jahner's attorney had the opportunity but failed to object to the trial court's procedure in responding to the jury's request. While N.D.C.C. § 29-22-05 directs that the trial court should have provided Jahner's testimony to the jury at its request, Jahner's attorney did not object and approved the court's response to the jury's request. We conclude Jahner waived his right to claim er
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