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

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[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.

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[¶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. 

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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

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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

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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 extrajury 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.

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[¶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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