State v. Lang

865 N.W.2d 401

STATE of North Dakota, Plaintiff and Appellee

v.Dallas Pius LANG, Defendant and Appellant.

No. 20140332.

Supreme Court of North Dakota.

July 1, 2015.

Rehearing Denied July 30, 2015.

Dawn M. Deitz, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee; submitted on brief.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

Opinion

SANDSTROM, Justice.

[¶ 1] Dallas Lang appeals after a jury found him guilty of felonious restraint. He argues that because a juror allegedly made inappropriate comments during jury selection, the district court should not have denied his motion, made later, for a mistrial. He also argues the district court should have given a curative instruction to the jury to disregard the statements made during jury selection. Because the district court neither abused its discretion in denying Lang's motion for mistrial nor committed obvious error by not giving a curative instruction to the jury, we affirm the district court judgment.

I

[¶ 2] In April 2014, Lang was charged with felonious restraint, a class C felony.

After a jury trial, he was found guilty of felonious restraint and was sentenced to thirty months' imprisonment, with twelve months suspended and three years' probation. Lang appealed.

[¶ 3] The central issue of this appeal stems from comments of a prospective juror made during jury selection and the alleged prejudicial effect of those comments. During the questioning of prospective jurors, the State asked one of the panel about his experience working with the state's attorney's offices in Burleigh and Grand Forks Counties and his experience with domestic violence cases. The text of this exchange, to which Lang objected, was as follows:

MS. DEITZ: Do you feel that you possess maybe some specific knowledge with regard to domestic cases?

[PROSPECTIVE JUROR]: Probably, yes, because I've had—in one particular case I had to argue—I wrote some briefs to try to introduce some expert testimony. I won't go into more detail than that, but I had to do some research involved with that.

MS. DEITZ: In all those cases that you worked on, do all the victims act the same?

[PROSPECTIVE JUROR]: No.

MS. DEITZ: Do they all stick to their story the entire time?

[PROSPECTIVE JUROR]: No.

MS. DEITZ: Why is that?

[PROSPECTIVE JUROR]: There's a lot of different reasons—

MR. BORGEN: Your Honor, I am going to object here. If we could approach?

THE COURT: You may.

(Sidebar.)

MR. BORGEN: She's turning this into testimony on domestic violence and getting him to poison the jury pool basically on how domestic violence victims are going to change their story, and this is inappropriate voir dire.

THE COURT: I agree.

MS. DEITZ: Okay.

THE COURT: I think you need to stop, and I might even reconsider for cause just because he's apparently done research in this area. And I think that that's—It may do us best to be—he indicated he can be fair and impartial with the witnesses and that, but I think if he's got background I may dismiss him for cause.

MR. BORGEN: And additionally he's a former employee of the State's Attorney Office, and based upon that I renew my motion [to strike] for cause.

MS. DEITZ: I still think he can be impartial and unbiased. A number of people know people involved from law enforcement and our office and they're able to remain impartial. Again, he isn't—he's working for child support which isn't directly related.

THE COURT: All right. I'm going to reverse myself and grant the challenge for cause based upon his former employment with the State's Attorney Office.

[¶ 4] After the conclusion of jury selection and the reading of opening jury instructions, Lang moved for mistrial, arguing the comments by the prospective juror poisoned the jury pool. In addition to his motion for mistrial, Lang also asked the district court to issue a curative instruction to the jury to clarify that the statements made were not evidence the jury should weigh in reaching their verdict. The district court denied Lang's motion for mistrial and said whether a curative instruction was needed would be addressed later.

[¶ 5] The record reflects the district court had provided the parties with the proposed jury instructions in writing the day before trial, and went over them with the parties before the trial began. Lang did not submit a proposed curative instruction after the jury was selected. After the State had rested its case, the court again went over the proposed jury instructions with the parties and specifically said, “We'll add that additional definition of serious bodily injury into the jury instructions. Were there any other concerns or requests for jury instruction changes?” To which Lang's lawyer responded, “No, your Honor.” The court then asked, “Anything further to put on the record at this time?” To which Lang's lawyer responded, “No, your Honor.”

[¶ 6] At the conclusion of the trial, and after the jury had delivered its verdict and been discharged, Lang renewed his motion for mistrial on the basis of the comments made during jury selection. Once again, the district court denied his motion.

[¶ 7] At the sentencing hearing in November 2014, Lang unsuccessfully renewed his motion for mistrial. In denying his motion, the district court stated:

My recollection was then after we moved on from that there wasn't—the issue wasn't really addressed any further. It wasn't brought up by the defense for the corrective instruction and I didn't recall providing it. I don't believe the State asked for it. I do recall the inquiry. And I agree it was inappropriate for the State to make those inquiries of Mr. Pieske in voir dire. But I think the action the Court took—by dismissing Mr. Pieske and ceasing the questioning and we moved on. I am going to find that it did not result in a constitutional violation and that it would not result in a mistrial. So I'm going to deny the motion.

Lang was sentenced on the charge of felonious restraint. This appeal followed.

[¶ 8] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Lang's appeal was timely under N.D.R.App.P. 4(d). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 9] On appeal, Lang argues that because a juror allegedly made inappropriate comments during jury selection, thus poisoning the jury pool, the district court erred in denying his motion for a mistrial. Lang specifically alleges the State elicited statements from a prospective juror who previously had worked with the Burleigh County and Grand Forks County state's attorney's offices, and then worked with the Bismarck Regional Child Support Unit, about his experience with domestic violence victims. Lang argues a constitutional error occurred during jury selection when a prospective juror made statements that possibly could have influenced the entire jury pool.

[¶ 10] Motions for mistrial fall within the broad discretion of the district court and will not be reversed on appeal absent a showing that the court clearly abused its discretion or that a manifest injustice would occur. State v. Doll, 2012 ND 32, ¶ 18, 812 N.W.2d 381; State v. Skarsgard, 2007 ND 160, ¶ 16, 739 N.W.2d 786; State v. Kaiser, 417 N.W.2d 376, 379 (N.D.1987). “A district court abuses its discretion when it acts in an arbitrary, unreasonable or capricious manner, or misinterprets or misapplies the law.” Doll, at ¶ 18. “Generally, granting a mistrial is ‘an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings of the trial which makes it evident that further proceedings would be productive of manifest injustice.’ ” Skarsgard, at ¶ 16 (quoting State v. Klose, 2003 ND 39, ¶ 14, 657 N.W.2d 276).

[¶ 11] Overall, Lang argues the comments made during jury selection constituted a “federal constitutional error.” He argues that because the district court did not dismiss the prospective juror immediately after the comments were made, there is a reasonable possibility that those comments contributed to his conviction.

[¶ 12] On the other hand, the State argues the district court did not err when it determined the statements were not so inflammatory as to prejudice the defendant and deprive him of a fair trial. In support of its argument, the State cites to cases from various jurisdictions supporting the proposition that a district court is granted broad discretion in determining the effects of allegedly inappropriate statements made by potential jurors. See State v. Weekley, 92 S.W.3d 327, 330 (Mo.Ct.App.2002). The State also cites to United States v. Small, 423 F.3d 1164, 1178–80 (10th Cir.2005), for the proposition that it is not an abuse of discretion for a court to neither dismiss nor question a jury panel after one member of the panel has made prejudicial remarks concerning his assumption of the defendant's guilt. In sum, the State argues that because Lang objected to the allegedly improper questioning of the prospective juror and the questioning immediately ceased, the impact of the statements on the jury panel was minimal and the statements did not give rise to the level of prejudice needed to declare a mistrial.

[¶ 13] While it is true that “North Dakota has not established rules indicating the circumstances under which a potential juror's comments would be so prejudicial that a judge must dismiss the pool in its entirety,” State v. Nikle, 2006 ND 25, ¶ 6, 708 N.W.2d 867, our existing case law supports the claim that the district court did not abuse its discretion in denying Lang's motion for mistrial. See id. at ¶ 10. For example, in previous cases regarding the effects of comments made during jury selection, we have stated “great faith is placed in a juror's ability to remain fair and impartial.” Id. at ¶ 6. In Nikle, a case in which a prospective juror commented on the defendant's history of purchasing a drug common in the production of methamphetamine, we held such comments did not prejudice the defendant, because the...