State v. Wallitsch, 937 N.W.2d 529

Defendant Jim Austin Wallitsch was charged with aggravated assault and tampering with physical evidence; convicted by a jury and appealed.
During voir dire a potential juror (a Homeland Security agent) said, “I’m fairly certain I’ve arrested your client before.”
The prospective juror was excused; the exchange was not discussed further and no curative instruction was given to the venire or jury.
Wallitsch did not object at trial to the lack of a curative instruction; on appeal he argued the omission was obvious error requiring reversal.
The district court entered an amended judgment; the North Dakota Supreme Court reviewed under the obvious-error standard and affirmed.

Issue	State's Argument	Wallitsch's Argument	Held
Whether the district court erred by failing to give a curative instruction about a prospective juror's statement during voir dire and whether that omission constituted obvious error affecting substantial rights	No obvious error: even if the court erred, Wallitsch cannot show plain error that affected substantial rights or the fairness/integrity of proceedings	The juror's statement (that he had arrested Wallitsch) removed the presumption of innocence and prejudiced the jury; failure to instruct was obvious error requiring reversal	Court affirmed: assuming any error, it was not "obvious error" under N.D. law and did not rise to an exceptional situation warranting reversal; no sua sponte curative instruction required

State v. Lang, 865 N.W.2d 401 (N.D. 2015) (declining to find obvious error where court did not give curative instruction for voir dire remark)
State v. Patterson, 855 N.W.2d 113 (N.D. 2014) (obvious-error review requires clear deviation from applicable legal rule)
State v. Olander, 575 N.W.2d 658 (N.D. 1998) (defining contours of obvious-error standard)
State v. Roe, 846 N.W.2d 707 (N.D. 2014) (noting appellate discretion to correct obvious error only when fairness/integrity/public reputation are seriously affected)
State v. Doll, 812 N.W.2d 381 (N.D. 2012) (elements required to show obvious error)