"[T]he intention of § 29-22-02 is to ensure extraneous influences and communications do not taint jury deliberations." State v. Weisz , 2002 ND 207, ¶ 7, 654 N.W.2d 416 ; see also State v. Bergeron , 340 N.W.2d 51, 58 (N.D. 1983) ("[T]he State and the court, independently, have an interest and obligation to assure that the jury reaches a verdict free of extraneous pressures, strain, or discomfort."). [¶ 21] We are concerned by the district court’s decision to allow a clerk to present evidence to the jury during its deliberations.
Mauch v. Manufacturers Sales & Serv., Inc., 345 N.W.2d 338, 343 (N.D.1984).State v. Weisz, 2002 ND 207, ¶ 12, 654 N.W.2d 416 (quoting State v. Clark, 1997 ND 199, ¶ 8, 570 N.W.2d 195). [¶ 21] If a party discovers evidence that possible extraneous prejudicial information was brought to the jury's attention, the proper procedure is to cease investigation and notify the district court.
The law is well settled that it is improper for a juror to have any out-of-court communications with witnesses, the court, parties, or counsel concerning a case. However, a mere showing of improper communication is not sufficient, prejudice must also be shown. Skinner v. State, 2001 WY 102, ¶¶ 12-15, 33 P.3d 758, ¶¶ 12-15 (Wyo. 2001); also see State v. Weisz, 2002 ND 207, ¶ 11, 654 N.W.2d 416, ¶ 11, (N.D. 2002) (telephone call received by juror during supper break, in which juror was informed his wife had been in accident, while being an impermissible communication, did not constitute obvious error denying defendant fair trial). [¶ 19] W.R.E. 606(b) also plays a role in this case:
We exercise our authority to notice obvious error cautiously and only in exceptional circumstances when the defendant has suffered serious injustice. State v. Weisz, 2002 ND 207, ¶ 6, 654 N.W.2d 416. III