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State v. Thompson7/24/1996
Appeal from the District Court for Ramsey County, Northeast Judicial District,
The Honorable Bruce E. Bohlman, Judge.
AFFIRMED.
Opinion of the Court by Meschke, Justice.
Scott R. Thompson appeals from a jury conviction of driving under the influence or with a blood-alcohol concentration of 0.1016 or greater. We affirm.
At 1:24 a.m. on January 27, 1995, Ramsey County Deputy Sheriff Craig Dix stopped Thompson for driving eighty-four miles per hour in a zone limited to a speed of fifty-five miles per hour. According to Dix, fog was reducing visibility to between 200 and 400 yards when he stopped Thompson on Highway 20 in rural Ramsey County. While talking with Thompson, Dix detected a "moderate odor of alcohol." After further investigation, Dix arrested Thompson for violating NDCC 39-08-01 by driving impaired. Thompson was taken to the Devils Lake Law Enforcement Center, where an Intoxilyzer test measured his blood-alcohol concentration at 0.16%.
After a trial, a jury found Thompson guilty of driving under the influence or with a blood-alcohol concentration of 0.10!k or greater. Thompson appeals.
Thompson argues the trial court abused its discretion by denying his motion to excuse for cause a juror who apparently had been a client of Thompson's law firm. Thompson concedes there is no evidence in the record showing the challenged juror was actually biased against him. However, Thompson asserts an attorney-client relationship evidences "implied bias" under NDCC 29-17-36(2), and that a trial court must excuse a juror when such a relationship is shown. We disagree the trial court abused its discretion by refusing to excuse this juror for cause.
A defendant cannot obtain review of a denial of a challenge for cause unless he used all of his peremptory challenges. City of Bismarck v. Holden, 522 N.W.2d 471, 473 (N.D. 1994) ; see also NDRCrimP 24 (b) (1) (listing number of available peremptory challenges). The defendant must also show that the sitting jury was not impartial. Ross v. Oklahoma, 487 U.S. 81, 88 (1988) ("So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated."); State v. Tranby, 437 N.W.2d 817, 824-25 (N.D.), cert. denied, 493 U.S. 841 (1989). Here, Thompson used all of his peremptory challenges, and he also questioned the partiality of one of the sitting jurors.
A trial Judge must excuse a juror if the Judge "is of the opinion that grounds for challenge for cause are present." NDRCrimP 24(b) (2). A "for cause" challenge can be based on either actual or implied bias. NDCC 29-17-35; see State v. McLain, 301 N.W.2d 616, 622 (N.D. 1981). "Actual bias" is the "existence of a state of mind on the part of the juror, with reference to the case or to either party. . . . that he cannot try the issue impartially without prejudice to the substantial rights of the party challenging." NDCC 29-17-35 (2) If the trial court does not believe a juror is actually biased, the court may still excuse the juror for an 'implied bias' if one of the exclusive "causes" in NDCC 29-17-36 exists.
We review a trial court's decision not to excuse a challenged juror for cause under an abuse-of-discretion standard. Holden, 522 N.W.2d at 473. As we explained in State v. Sievers, 543 N.W.2d 491, 494 (N.D. 1996), a trial court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner.
An attorney-client relationship is one of the exclusive "causes" of an implied bias that warrants dismissal of a juror. NDCC 29-17-36 (2); see also NDCC 28-14-06 (3). T
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