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State v. Torgerson5/25/2000
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
[ ] Torgerson appeals from a judgment finding him guilty of driving under the influence of intoxicating liquor. Torgerson argues he is entitled to a new trial because the Burleigh County jury panel selection process is not random. We affirm.
[ ] On May 9, 1999, Steven Torgerson was charged in Burleigh County with driving under the influence of intoxicating liquor. A jury trial was held on November 1, 1999. Before trial, Torgerson orally moved to disqualify the jury panel alleging the selection process was not random. The trial court summoned the Clerk of the District Court to explain the jury panel selection process. Burleigh County jury panels are selected from a jury list composed of voters and licensed drivers. The clerk randomly divides the jury list and notifies the selected persons by mail. The notice instructs the selected persons to call the clerk's office between 1:00 p.m. and 3:00 p.m., on the day before trial. The first persons to call in form the jury panel. After the court dismissed Torgerson's motion, he again objected to the jury panel selection process and moved for a mistrial. The court denied the motion. Torgerson moved to certify the question to this Court. The court denied the motion. The jury found Torgerson guilty. Torgerson appeals.
[ ] Torgerson argues the trial court improperly denied his motion to disqualify the jury panel, his motion for a mistrial, and his motion to certify a question. Those appealed motions essentially present a singular issue: Whether the Burleigh County jury panel selection process is "random." That determination is a conclusion of law, or mixed question of law and fact, not a finding of fact. We fully review conclusions of law and mixed questions of law and fact under the de novo standard. State v. Left-hand, 523 N.W.2d 63, 67 (N.D. 1994); State v. Owens, 1997 ND 212, 13, 570 N.W.2d 217.
[ ] Generally, a jury panel challenge is governed by N.D.C.C. ch. 27- 09.1. Section 27-09.1-12, N.D.C.C., provides:
1. Within seven days after the moving party discovered or by the exercise of diligence could have discovered the grounds therefor, and in any event before the petit jury is sworn to try the case, a party may move to stay the proceedings, and in a criminal case to quash the indictment or information, or for other appropriate relief, on the ground of a substantial failure to comply with this chapter in selecting the grand or petit jury.
2. Upon motion filed under subsection 1 containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with this chapter, the moving party is entitled to present in support of the motion the testimony of the clerk, any relevant records and papers not public or otherwise available used by the clerk, and any other relevant evidence. If the court determines that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with this chapter, the court shall stay the proceedings pending the selection of the jury in conformity with this chapter, quash an indictment or information, or grant other appropriate relief.
3. The procedures prescribed by this section are the exclusive means by which a person accused of a crime, the state, or a party in a civil case may challenge a jury on the ground that the jury was not selected in conformity with [N.D.C.C., chapter 27-09.1, the Uniform Jury Selection and Service Act].
[ ] The State argues Torgerson cannot object to the
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