State v. Newman

20060294 State of North Dakota, Plaintiff and Appellee
v.
Benjamin Newman, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Sonna M. Anderson
Nature of Action: Homicide
Counsel:
Appellant: Robert Wade Martin
Appellee: Richard James Riha , State's Attorney
Appellee: Cynthia Mae Feland , Asst. State's Attorney
Term: 06/2007   Argument: 06/04/2007  1:30pm
ND cite: 2007 ND 148
NW cite: 738 N.W.2d 887

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Whether the attempt of the trial court to excise the taint of the jury impaneled in the case below, caused by a juror's use of her cell phone and text messaging during the course of the trial, preserved the Appellant's constitutional right to a fair and impartial jury on his trial for homicide and related criminal charges?
Whether the exclusion of the Appellant and counsel from the examination of the rogue juror and the remaining panel while exploring the extent of the taint caused by said juror, violated the Appellant's constitutional due process rights to be present at each and every critical stage of the proceeding, and is thus an obvious error of the trial court and therefore reviewable on appeal?

Appellee's Statement of the Issues:
I. The trial court's dismissal of a juror due to the juror's use of her cell phone during trial preserved the defendant's Sixth Amendment right to a fair and impartial jury trial.
II. The trial court did not abuse its discretion in questioning the jury outside the presence of the defendant and counsel.

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Docket entries:
110/24/2006 NOTICE OF APPEAL: 10/19/2006
210/24/2006 ORDER FOR TRANSCRIPT: 10/19/2006
310/26/2006 Admission of Service of OTR & RETENTION OF RECORD ON APPEAL: 12/08/2006
411/24/2006 MASTER INDEX (SEPT. 18-25,2006) & TRANSCRIPTS (6 VOLUMES) DATED 9-18-06 (VOL. 1),9-19-06 (VOL. II)
511/24/2006 9-20-06 (VOL. III), 9-21-06 (VOL. IV), 9-22-06 (VOL. V), 9-25-06 (VOL. VI)
611/24/2006 DISK OF TRAS DATED 9-18-06, 9-19-06, 9-20-06, 9-21-06, 9-22-06, 9-25-06 & MASTER INDEX (E-MAILED)
712/18/2006 RECORD ON APPEAL w/Separates (Entry Nos. 30 & 88). Not Rec'd w/ROA were Entry Nos. 42,48,80,& 82.
812/18/2006 Second Notice of Appeal (filed in trial court on 12-13-06)
912/18/2006 Second Order for Transcript (filed in trial court on 12-13-06)
1012/20/2006 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
1112/28/2006 Notice of Appearance (Robert W. Martin for Appellant)
1212/28/2006 MOT. EXT/TIME APPELLANT BRIEF
1312/28/2006 ACTION BY CHIEF JUSTICE (Mot/Ext/Time/ATB). Granted: 03/14/2007
1403/14/2007 APPELLANT BRIEF (e-filed) (PDF)
1503/14/2007 E-FILED BRIEF (ATB) (PDF)
1603/14/2007 APPELLANT APPENDIX (e-filed)
1703/14/2007 E-FILED APPENDIX (ATA)
1803/16/2007 Received 7 copies of ATB from Central Duplicating
1903/16/2007 Received 6 copies of ATA from Central Duplicating
2003/20/2007 Efiling surcharge for Appellant's Brief
2104/11/2007 MOT. EXT/TIME APPELLEE BRIEF
2204/11/2007 ACTION BY CLERK. Granted: 05/01/2007
2304/16/2007 Transcript dated December 5, 2006
2404/16/2007 DISK of tra dtd 12-5-06
2504/23/2007 Affidavit of Service for TRA dated December 5, 2006
2605/01/2007 APPELLEE BRIEF
2705/01/2007 DISK - AEB (emailed)
2805/01/2007 Affidavit of Mailing of AEB
2905/23/2007 SITTING WITH THE COURT: Marquart, Steven L.
3005/30/2007 Request for Radio/TV Coverage (approved KXMB-TV & Prairie Public Radio)
3106/04/2007 APPEARANCES: Robert W. Martin; Cynthia M. Feland, Richard J. Riha
3206/04/2007 ARGUED: Martin; Feland
3306/04/2007 ORAL ARGUMENT WEBCAST
3409/05/2007 DISPOSITION: AFFIRMED
3509/05/2007 UNANIMOUS OPINION: Crothers, Daniel John
3609/05/2007 Judgment e-mailed to Parties
3709/26/2007 PETITION FOR REHEARING
3809/26/2007 ACTION BY ACTING CHIEF JUSTICE (PER). Denied
3909/27/2007 Order Denying Petition Mailed to Parties
4009/27/2007 MANDATE
4110/01/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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