               Filed 7/11/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                 2019 ND 194


State of North Dakota,                                     Plaintiff and Appellee

      v.

Ross Thomas,                                           Defendant and Appellant


                                No. 20180257


       Appeal from the District Court of Hettinger County, Southwest Judicial
District, the Honorable Dann E. Greenwood, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by VandeWalle, Chief Justice.

       Pat J. Merriman, Assistant State’s Attorney, Mott, ND, for plaintiff and
appellee.

      Scott O. Diamond, Fargo, ND, for defendant and appellant.
                                    State v. Thomas
                                     No. 20180257


         VandeWalle, Chief Justice.
[¶1]     Ross Thomas appealed from a criminal judgment entered after a jury found
him guilty of terrorizing, a class C felony. We conclude the district court erred in
denying Thomas a hearing on alleged juror communications with non-jurors, which
were discovered and brought to the court’s attention while the jury was deliberating
and were alleged to be related to matters on which the jury had deliberated and the
jury’s decisions. We reverse and remand for a new trial.


                                            I
[¶2]     In February 2017, the State charged Thomas with felonious restraint,
terrorizing, and reckless endangerment for an event alleged to have occurred on
February 7, 2017. In a separate criminal case, the State also charged Thomas with
aggravated assault alleged to have occurred out of the same incident. In July 2017,
the district court consolidated the cases for trial.
[¶3]     On March 28, 2018, the district court commenced a jury trial on the charges.
On March 29, both the State and defendant rested, and the case was submitted to the
jury. At the end of the day, the jury sent a note to the court stating they had reached
a decision on three counts, were hung on one count, and no further progress would be
made. The court admonished the jury and ordered them to return on the following
Monday, April 2, after a holiday weekend, to continue deliberations on the remaining
count.
[¶4]     On April 2, 2018, the jury reconvened to continue its deliberations. Before the
jury reconvened, however, Thomas’s counsel raised specific allegations to the district
court that Thomas had overheard non-jurors discussing the content of jury
deliberations and juror decisions in a public setting in town. The court did not
conduct a hearing on Thomas’s allegations at that time but stated it would “let

                                            1
[Thomas] challenge any verdict made in a subsequent motion after there’s notice and
opportunity for both parties to be prepared.”
[¶5]   After further deliberation, the jury subsequently returned not-guilty verdicts
on the aggravated assault and reckless endangerment charges and returned a guilty
verdict on the terrorizing charge. The jury could not reach a unanimous verdict on the
felonious restraint charge, and the court declared a mistrial on that charge. The
district court sentenced Thomas on the terrorizing charge, and a criminal judgment
was entered.


                                            II
[¶6]   On appeal, both Thomas and the State treat the district court’s refusal to
conduct a hearing to explore alleged juror misconduct, before the jury resumed
deliberating on the final day of trial, as the denial of a request for mistrial.
[¶7]   Granting a mistrial is an “extreme remedy” and should only be resorted to
when a fundamental defect or occurrence in the trial proceedings exists that “makes
it evident that further proceedings would be productive of manifest injustice.” State
v. Klose, 2003 ND 39, ¶ 14, 657 N.W.2d 276. “When a problem occurs during trial,
the affected party must bring the irregularity to the trial court’s attention and seek the
appropriate remedy.” State v. Kautzman, 2007 ND 133, ¶ 8, 738 N.W.2d 1 (citing
Klose, 2003 ND 39, ¶ 15, 657 N.W.2d 276). “A mistrial must be declared before the
trial is over and before the jury has been discharged.” Kautzman, at ¶ 8; see also
N.D.R.Crim.P. 31(d) (mistrial may be declared before the jury is discharged);
N.D.R.Crim.P. 33, Explanatory Note (“[Rule 33, providing for a motion for new trial]
does not affect the power of the court to declare a mistrial and order a new trial prior
to the verdict or finding of guilty.”). The district court has broad discretion in
deciding whether to grant a mistrial. State v. Doll, 2012 ND 32, ¶ 18, 812 N.W.2d
381. We will not reverse a court’s mistrial decision unless there is a clear abuse of
discretion or a manifest injustice would result. Id.



                                            2
[¶8]   In this case, before the jury reconvened to continue its deliberations after a
weekend holiday break, the district court and Thomas’s counsel had the following
colloquy:
               THE COURT: All right. We’re going to go back on the record.
       We had been adjourned waiting for one of the jurors to arrive. I
       understand, perhaps, that one has arrived, but nevertheless, Mr. Murtha
       has indicated he wanted to go back on the record.
               Mr. Murtha?
               MR. MURTHA: Thank you, Your Honor. I’ve had a chance to
       talk to Mr. Thomas. I think that he had some grave concerns about
       some things that he overheard in New England, when he went out to
       eat, discussion amongst people that were talking about what the jurors
       had deliberated on and what their decision was. This is pretty serious
       stuff. He’s really, really worried. I don’t think he wants to necessarily
       fire me. I think he’s just confused and really scared. I think that he
       should share with the Court and the State’s Attorney what he
       overheard, and I think it’s a—I think it’s a basis for a mistrial at this
       point, and how would the judge like to proceed? And he has other
       witnesses besides himself.
               THE COURT: Ms. Pikovsky, any thoughts?
               MS. PIKOVSKY: Your Honor, I guess at this point, I don’t
       know anything other than what Mr. Murtha has just told the Court. I
       have no idea if there’s any basis to what he’s saying or not.
               THE COURT: Well, I know that there is a body of law because
       I helped prepare it myself in one of my own cases approximately 30
       years ago. The general rule is that the Court is not going to be allowed
       to look into the process by which the jury arrived at its decision and
       there are, of course, methods to attack a verdict afterwards that go
       beyond what occurs in the courtroom—excuse me—in the jury room.
               So insofar as the issues have to do with the latter, the Court’s not
       inclined to take any steps. With regard to the former, and that is things
       that might occur outside of the courtroom, I’m not satisfied that this is
       the appropriate time or venue to address that. It may be more
       appropriate that it can be addressed in a subsequent procedure and
       when there’s a full opportunity for both parties to be prepared and to
       respond.
               But, Mr. Murtha, I’ll let you make what record you wish.
               MR. MURTHA: Thank you, Your Honor.
               I mean, I wasn’t there, so I’d be basically calling Mr. Thomas to
       explain to the Court what he overheard and other witnesses that
       overheard this information.


                                            3
               THE COURT: Well, like I say, at this stage I don’t intend to
       have a mini trial with only one side offering evidence. So I would be
       more inclined to continue and let you challenge any verdict made in a
       subsequent motion after there’s notice and opportunity for both parties
       to be prepared.
               (Discussion between Mr. Murtha and the defendant off the
       record.)
               MR. MURTHA: I understand, Your Honor.
               THE COURT: All right. Then I guess one thing occurs to me in
       view of the fact that at the last—before we adjourned for a moment,
       Mr. Thomas had effectively fired you. I need to ask Mr. Thomas, Mr.
       Thomas, is Mr. Murtha now representing you again?
               THE DEFENDANT: I’m sorry, Your Honor. I was confused.
       At this time I would like Mr. Murtha to represent me.
               THE COURT: All right. Thank you. Then my intention then
       is to ask the bailiff to return the jury to its jury box, and I’ll proceed as
       I indicated that I would before we took our break.
[¶9]   “One of the touchstones for an effective appeal on any proper issue is that the
matter was appropriately raised in the trial court so it could intelligently rule on it.”
Lemer v. Campbell, 1999 ND 223, ¶ 16, 602 N.W.2d 686 (quoting State v. Osier,
1999 ND 28, ¶ 14, 590 N.W.2d 205). We assume, as do the parties, that the district
court’s colloquy with Thomas’s counsel is properly construed as a motion for mistrial.
His request also specifically sought to present evidence to the court from Thomas and
other witnesses about allegedly overhearing non-jurors discussing the content of juror
deliberations and the jurors’ decisions in a public setting. We conclude his request
was broad enough for the district court to interpret it as seeking an evidentiary hearing
regarding potential juror misconduct.


                                            III
[¶10] Thomas argues the district court erred in denying him a hearing on the alleged
extra-jury communications and in failing to conduct its own inquiry into the extra-jury
communications. He contends the court should have granted him a hearing on
alleged jury misconduct and he was prejudiced as a result of the court’s denial.
[¶11] Our law is clear that “[w]hen a problem arises during a trial, the party affected
must bring the irregularity to the court’s attention and seek appropriate remedial
                                            4
action.” State v. Myers, 2009 ND 141, ¶ 10, 770 N.W.2d 713 (quoting State v.
Wilson, 1999 ND 34, ¶ 14, 590 N.W.2d 202); see also Kautzman, 2007 ND 133, ¶ 8,
738 N.W.2d 1; Klose, 2003 ND 39, ¶ 15, 657 N.W.2d 276; State v. Breding, 526
N.W.2d 465, 472 (N.D. 1995). Similarly, we have also said that when a party
discovers evidence of juror misconduct, investigation should cease and the matter
should immediately be presented to the trial court. See State v. Kovalevich, 2015 ND
11, ¶ 21, 858 N.W.2d 625; State v. Hidanovic, 2008 ND 66, ¶ 15, 747 N.W.2d 463;
Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 57 n.2, 626 N.W.2d 239; Andrews v.
O’Hearn, 387 N.W.2d 716, 734 n.26 (N.D. 1986); Kerzmann v. Rohweder, 321
N.W.2d 84, 88 n.4 (N.D. 1984). “If juror misconduct is noticed and the criminal
defendant does not object or request a mistrial, reversal requires obvious error.”
Myers, at ¶ 10.
[¶12] In this case, however, Thomas raised the issue about possible juror misconduct
to the district court and sought to present evidence before the jury began its
deliberations on the final day. While it would have been preferable if Thomas’s
counsel had made a further record and offer of proof as to what the testimony from
Thomas and other witnesses would have been, it is clear from the court’s comments
that no hearing or “mini trial” would be held on the allegations before the jury
continued its deliberations. We nevertheless conclude on this record that Thomas
preserved the issue for appeal.
[¶13] In Hidanovic, this Court explained that “[i]f evidence of possible extraneous
prejudicial information or outside influence is discovered, the proper procedure is to
cease investigation to reduce the possibility of juror taint from extrajudicial pressures
and to notify the district court so it can conduct appropriate questioning.” 2008 ND
66, ¶ 15, 747 N.W.2d 463 (citing Praus, 2001 ND 80, ¶ 57 n.2, 626 N.W.2d 239; and
Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960)
(outlining similar procedure for hearing on juror misconduct)) (emphasis added); see
also Kerzmann, 321 N.W.2d at 88 n.4 (discussing a “Schwartz” hearing when jury
misconduct matters are brought to a trial court’s attention). If the facts so require, the

                                            5
district court may then question the juror or jurors about alleged juror misconduct on
the record under proper safeguards and in the presence of counsel. See Praus, at ¶ 57
n.2; Andrews, 387 N.W.2d at 734 n.26; Kerzmann, 321 N.W.2d at 88.
[¶14] Thomas contends that he followed the procedure outlined in the Hidanovic
case by bringing alleged jury misconduct to the district court’s attention and
requesting that he and his witnesses be allowed to testify to develop a record, but the
district court refused his request to investigate the alleged misconduct. Thomas
further asserts that N.D.R.Ev. 606(b), to the extent it may apply, would not prohibit
inquiry into the jury misconduct. Thomas argues that he was prejudiced as a result
of the court’s failure to conduct a hearing on the jury misconduct. He requests a new
trial only on the charge of terrorizing.
[¶15] The State argues the district court did not abuse its discretion in not granting
a mistrial. The State acknowledges that no record was made of the contents of the
alleged communications between jurors and a third party or parties, but argues that,
whatever the content of the alleged discussions, the jury’s decision and the outcome
of the trial did not change while deliberations were adjourned over the three-day
holiday weekend. The State asserts any alleged juror misconduct was harmless
because it did not improperly influence the jurors and no manifest injustice occurred
since the jurors’ positions were not affected by any alleged juror misconduct.
[¶16] On this record, we conclude the district court erred in failing to conduct a
hearing to develop a record and examine the extent of the alleged jury misconduct and
potential prejudice. In refusing to conduct any inquiry into Thomas’s claims of extra-
jury communications at the time it was raised, the court’s ruling undermines our prior
precedent requiring a party, upon discovering evidence of jury misconduct, to cease
investigation and immediately present the matter to the trial court. Under these facts
and circumstances, we conclude the district court’s refusal to conduct a hearing on
Thomas’s claimed jury misconduct constitutes prejudicial error requiring reversal.




                                           6
[¶17] Therefore, the district court abused its discretion in denying Thomas’s request
for a hearing on the alleged extra-jury communications. We reverse and remand for
a new trial.


                                         IV
[¶18] The judgment is reversed, and the case is remanded for a new trial.
[¶19] Gerald W. VandeWalle, C.J.
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen




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