State v. Knight , 2023 ND 130 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 19, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 130State of North Dakota, Plaintiff and Appellee
v.
Jeremy Robert Knight, Defendant and Appellant
No. 20230020
Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Todd A. Schwarz, State’s Attorney, Stanton, ND, for plaintiff and appellee;
submitted on brief.
Alex S. Kelsch, Mandan, ND, for defendant and appellant; submitted on brief.
State v. Knight
No. 20230020
McEvers, Justice.
[¶1] Jeremy Knight appeals from the order denying his motion to vacate the
criminal judgment and for a new trial and a criminal judgment entered after a
jury found him guilty of gross sexual imposition. On appeal, Knight argues the
district court erred in instructing the jury to reach a verdict after learning of
the numerical division of the deadlocked jury. He also argues the court erred
in denying his motion to vacate judgment and for a new trial. We affirm.
I
[¶2] Jeremy Knight was charged with two counts of gross sexual imposition
in May 2021. A jury trial was held in August 2022. Jury deliberations began
on the second day of trial around 11:30 a.m. Less than an hour into jury
deliberations, the jury posed a number of questions to the district court. The
court answered the questions without objection. A short time later, the jury
had another question which the court answered without objection. At 1:34 p.m.,
the court received another note from the jury that made the court aware of a
deadlocked jury on both counts. The handwritten note used the phrase “verdict
form” and showed the numerical division of both counts being deadlocked at 8–
4 and 9–3. The court then stated to the jury:
I’m going to indicate to the jury that I’m going to send you back
into the jury room. You’ve got to continue to work to try and get to
unanimous verdict.
You might think it’s a long time but you had a day plus testimony
working and it hasn’t been that long. So I need you to go back, kind
of review the evidence again and try and come to unanimous
verdict and then we’ll move from there.
So that’s all I’m going to say. And then Donna’s going to take you
back into the jury room. So back to work is what I’m going to say.
Again, there was no objection to the court’s response to the jury’s
communication. The jury went back to deliberating after being encouraged to
do so by the court.
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[¶3] The district court received the next communication at 3:28 p.m., which
indicated the jury reached a unanimous verdict finding Knight guilty of the
gross sexual imposition charge in count 2 but failed to reach a verdict on the
charge in count 1. After the verdict was read, the jury was polled and all jurors
indicated the verdict was correct.
[¶4] Following trial, the attorneys spoke with the jurors. Juror No. 6 stated
it was her understanding that the district court’s comments to the jury meant
the jury had no choice but to reach a unanimous verdict, and, had she known
they could remain deadlocked on both counts, the jurors would have done so.
Based on this information, Knight filed a motion to vacate the judgment and
requested a new trial under N.D.R.Crim.P. 33.
[¶5] In November 2022, the district court denied Knight’s motion to vacate
judgment and for a new trial. In its order, the court stated it would not consider
the declaration of Juror No. 6 because N.D.R.Ev. 606(b)(1) does not allow the
court to consider affidavits or declarations from jurors pertaining to the jurors’
mental process during deliberations. Furthermore, the court found its
instruction to the jury regarding further deliberation to try to reach a verdict
was not erroneous or prejudicial. Knight appeals.
II
[¶6] We review a district court’s decision on a motion for new trial under
N.D.R.Crim.P. 33 under the abuse of discretion standard. State v. Kovalevich,
2015 ND 11, ¶ 10, 858 N.W.2d 625. A court abuses its discretion when it acts
in an arbitrary, unreasonable, or capricious manner, or it misinterprets or
misapplies the law. Id. A defendant is required to assert all alleged errors with
particularity in a motion for a new trial. Id.; N.D.R.Crim.P. 33(a). “[A]lthough
a motion for a new trial is not necessary to preserve issues for appellate review,
when a new trial is sought, a defendant is limited on appeal to the grounds
presented to the district court in the motion for a new trial.” Kovalevich, 2015
ND 11, ¶ 10 (quoting State v. Yarbro, 2014 ND 164, ¶ 9, 851 N.W.2d 146).
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III
[¶7] Knight argues the jury was coerced into rendering the guilty verdict
when the district court told the jury to continue working to try to come to a
unanimous verdict after the court knew the jury was deadlocked and knew of
the jury’s numerical division.
[¶8] A district court has broad discretion over the conduct of a trial, including
the time in which a jury may properly deliberate, but the court must exercise
this discretion in a manner that best comports with substantial justice. State
v. Parisien, 2005 ND 152, ¶ 11, 703 N.W.2d 306. One circumstance often
accompanying prolonged jury deliberations is a trial court giving a deadlocked
jury an instruction based on Allen v. United States, 164 U.S. 492, 17 S.Ct. 154,
41 L.Ed. 528 (1896). An Allen charge is generally a supplemental instruction
given to encourage deadlocked jurors to reach agreement. State v. Champagne,
198 N.W.2d 218, 237 (N.D. 1972). Importantly, modified Allen charges will not
constitute prejudicial error to the defendant when the court tells the jury to
deliberate further but reminds them to not surrender their honest convictions
solely for the purpose of returning a verdict. Id. at 239. An offsetting cautionary
instruction informing the jurors they need not give up their conscientiously
held views should accompany an Allen-type charge. Parisien, 2005 ND 152,
¶ 20. Courts often apply a “totality of the circumstances” test when deciding
the effect of an Allen charge. See Davis v. State, 832 So.2d 239, 240
(Fla.App.2002) (court found no improper coercion where after several hours of
deliberation jury sent judge note indicating jury was deadlocked and court told
jurors “I’m going to send you back to talk about it a little bit more”).
[¶9] Many factors are considered when assessing coerciveness:
Any claim that a jury was pressured into reaching a verdict
depends on the totality of the circumstances. A verdict is
considered coerced when, under the totality of the circumstances,
it appears that the trial court was virtually directing that a verdict
be reached, and, by implication, indicated it would hold the jury
until this happens. The factors considered are the content of the
communication, the length of deliberations after it, the total length
of deliberations, and any indicia in the record of coercion or
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pressure. Generally, a direction to continue deliberating or to
return to the jury room and continue working is not unduly
coercive. In the case of a jury deadlocked at the time of the
communication, the question is whether the communication may
have hastened the verdict, coerced the juror into making a decision
that he or she did not believe was correct, or otherwise interfered
with the deliberations in a manner prejudicing a party. The test
effectively turns on consideration of whether the court’s reply
imposed such confusion or pressure on the jury to reach a verdict
that the accuracy and integrity of the verdict returned becomes
uncertain. A judge may insure that no juror would be embarrassed
or pressured, by emphasizing that the deliberations should
continue without violence to individuals’ judgment or conscience,
or that the jury was free to return if it found the deliberation
process to be hopeless.
75B Am.Jur.2d Trial § 1280 (footnotes omitted). A verdict might be forced
where the deliberations of a jury are prolonged beyond a reasonable period,
since the verdict of such a jury may be the result of fatigue, exhaustion,
weariness, and the physical and mental inability of disagreeing minority jurors
to withstand the arguments and importunities of the majority, instead of the
result of free action and voluntary agreement of each individual juror. Parisien,
2005 ND 152, ¶ 12. A trial judge’s knowledge of the numerical division of a
deadlocked jury is also an important factor to consider in assessing improper
coercion, and a trial court may not ask a deadlocked jury the nature or extent
of its numerical division. Id. at ¶ 15.
[¶10] In Parisien, we held verdicts were improperly coerced due to the jury’s
17-hour workday, the lateness of the hour, the trial court’s knowledge of the
numerical division, the lack of a record of in-chamber conferences, the failure
of the court to follow proper procedure in addressing the jury’s questions, and
the encouragement to jurors to try to reach a verdict. 2005 ND 152, ¶ 21.
During Parisien’s trial, the district court instructed the jury to “try your best
to see if you can arrive at a verdict if you can” after finding out the jury was
hung 10–2. Id. at ¶ 20. The final day of trial proceedings commenced at 9:30
a.m. and verdicts were not returned until 2:19 a.m. the following morning. Id.
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at ¶¶ 2–3. We held the cumulative effect of all these circumstances lead to
improperly coerced verdicts. Id. at ¶ 21.
[¶11] The circumstances here are notably different than that of Parisien and
other jury coercion cases. First, the jury deliberations here were not nearly as
long as the 17-hour day in Parisien. The trial proceedings on the day of the
verdicts were only about six and a half hours from start to finish. The jury
came back to read the verdict around 3:33 p.m., which is a reasonable hour,
unlike the 2:19 a.m. jury return in Parisien. Moreover, the court instructed the
jury to “try” to come to a verdict. The court did not say the jury must come to a
verdict—just that they should continue to try since deliberations had not been
going on for very long. Furthermore, Knight did not point to any instances of
the court conducting in-chamber conferences off the record or failing to follow
proper procedure when answering any of the jury’s questions. The record does
not contain evidence of either.
[¶12] We also consider the district court’s lack of a cautionary instruction
accompanying the Allen charge it gave the jury as well as its knowledge of the
numerical division of the deadlock. Although it is best practice for the court to
qualify its Allen charge with cautionary instructions for the jurors not to
abandon their honest convictions, failure to do so under the circumstances here
does not show coercion. The district court noted in its order that, although not
reiterated when it answered the jury’s question, the original jury instructions
stated the jurors should only reach an agreement if they are able to do so
without giving up their individual judgment. We presume the jury followed the
court’s instructions. See State v. Patterson, 2014 ND 193, ¶ 15, 855 N.W.2d 113.
[¶13] As to the district court being aware of the numerical division of the jury,
that information came to the court unsolicited. A court may not ask a
deadlocked jury the nature or extent of its numerical division. Brasfield v.
United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1926). However,
the mere fact that the court became aware of the numerical division does not
create a bright line rule that its instruction is presumed coercive. See Rosales
v. State, 548 S.W.3d 796, 803 (Tx. Ct. App. 2018) (holding no abuse of discretion
denying a mistrial when the jury sent the court a note indicating it was
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deadlocked 9–3 after four hours and forty minutes of deliberation and the judge
instructed the jury to “please continue your deliberations.”); Com. v. Greer, 951
A.2d 346, 360 (Pa. Sup. Ct. 2008) (unpersuaded by the argument that the fact
the court knew the jury’s numerical division, as well as the identities of the
holdouts as volunteered by the jury forewoman, makes an otherwise non-
coercive instruction coercive). Here, despite being aware of the note’s content,
there was no objection or motion for mistrial made by Knight which would have
provided the court an opportunity to take corrective action or provide a
different admonishment if the parties thought it was necessary. Under the
totality of the circumstances, the record does not indicate a coerced verdict.
The district court did not abuse its discretion by denying the motion for new
trial based on the court’s instruction to continue deliberating.
IV
[¶14] Knight argues the district court should have considered the declaration
of Juror No. 6 when deciding whether to grant his motion to vacate the
judgment and for a new trial.
[¶15] We apply an abuse of discretion standard when reviewing a district
court’s decision on a motion for a new trial involving issues raised under
N.D.R.Ev. 606(b). Kovalevich, 2015 ND 11, ¶¶ 16–23. Rule 606(b)(1), N.D.R.Ev.,
discusses prohibited testimony of other evidence and states:
During an inquiry into the validity of a verdict or indictment, a
juror may not testify about any statement made or incident that
occurred during the jury’s deliberations; the effect of anything on
that juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment. The court may not receive a
juror’s declaration or evidence of a juror’s statement on these
matters.
[¶16] Rule 606(b)(2) provides four exceptions about which a juror may testify:
whether extraneous prejudicial information was improperly brought to the
jury’s attention; whether an outside influence was improperly brought to bear
on any juror; whether the verdict was arrived at by chance; or whether a
mistake was made in entering the verdict on the verdict form. It is improper
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for a court to consider juror affidavits for purposes of impeaching a verdict
relative to the mental processes or reasoning of the jurors in arriving at a
decision. Mauch v. Mfrs. Sales & Serv., Inc., 345 N.W.2d 338, 343 (N.D. 1984).
[¶17] Knight asserts the district court should have considered the declaration
of Juror No. 6 in which she claimed she would not have found Knight guilty on
count 2 if she knew the jury could remain hung on both counts and not just one
count. Knight is asking the court to consider an affidavit pertaining to the
mental process of Juror No. 6 during deliberations, which is expressly
prohibited by Rule 606(b)(1). “An attempt to use juror affidavits to demonstrate
how the jury arrived at its decision falls precisely within the confines of the
rule prohibiting impeachment of the jury verdict.” Andrews v. O’Hearn, 387
N.W.2d 716, 719 (N.D. 1986). Whether Juror No. 6 misunderstood the court’s
instruction, although objectively verified here, makes no difference. There are
strong policy reasons which demand a strict interpretation of the rule. Id. at
722. These considerations include the potential detriment to the jury system
because considering such affidavits would unsettle verdicts if a juror would be
permitted to say they did not understand the charge of the court. Id. at 719. To
allow such statements would result in continual embarrassment and
interminable controversy after trials—after a verdict had been duly
announced—and would subject jurors to constantly be called upon to discuss
occurrences in the jury room, which should be kept secret and privileged. Id.
[¶18] Moreover, Knight does not point to any of the four exceptions listed in
Rule 606(b)(2) that would apply to his situation, and the record does not
indicate any exception applies. There is no evidence suggesting any juror
received extraneous prejudicial information or outside influence or the verdict
came by chance or mistake.
[¶19] While this outcome may seem harsh given Juror No. 6’s declaration,
N.D.R.Ev. 606(b) protects the internal workings of juries. However, other
procedural rules allow a party to attack the verdict itself if it is not supported
by the evidence. Andrews, 387 N.W.2d at 722; N.D.R.Crim.P. 29. No such
challenge to the sufficiency of the evidence was made in the motion for new
trial or on appeal.
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[¶20] We conclude the court did not abuse its discretion by not considering the
declaration of Juror No. 6 and thereby denying Knight’s motion to vacate
judgment and for a new trial based on this issue.
V
[¶21] The order denying the motion to vacate the criminal judgment and for a
new trial and the criminal judgment are affirmed.
[¶22] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
James D. Hovey, D.J.
[¶23] The Honorable James D. Hovey, D.J., sitting in place of Crothers, J.,
disqualified.
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