Juror’s whose attention lapsed during a trial is not enough to have a criminal conviction overturned. Also, evidence that two alternate jurors did fall asleep was not enough to declare a mistrial.
The Appellant (Defendant) appealed his convictions to the Court of Appeals, Western District of Missouri. He was convicted of one count of kidnapping in the first degree, two counts of rape in the first degree, and one count of sodomy in the first degree following a jury trial.
Appellant argued two points on appeal, the first of which was that the trial court erred in overruling his motion for a mistrial based on alleged juror misconduct.
Appellant claimed that four jurors should have been discharged for falling asleep during trial. However, the record showed that two of those jurors did not participate in deliberations; therefore, the appellate court stated that the appellant could not have suffered prejudice.
And as to the two jurors who actually deliberated on the trial, the appellate court stated the trial court did not abuse its discretion by concluding, based on its own observations and testimony from the two jurors, that they either had not fallen asleep or had not failed to hear the evidence. Therefore, those facts did not violate constitutional and statutory guarantees to a jury trial, require removal of a juror, or declare for a mistrial.
Appellant argued the record showed that four jurors
slept through parts of the trial so that they were not able to accurately assess the voluminous evidence presented.
He claimed that by allowing jurors who slept during trial to stay on the jury, the trial court violated his right to a fair trial, an impartial jury, and due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States
Constitution, and by Article I, sections 10 and 18(a) of the Missouri Constitution, and that these constitutional errors were structural in nature.
But in order to prevail upon a claim of juror misconduct, the appellant must show the conduct was prejudicial to the defendant. However, Missouri case law in State v. Whitman has said that the reviewing court gives a lot of discretion to the trial court.
Appellate Court also stated that Appellant had not sustained his burden to establish that the trial court abused its discretion in refusing to discharge jurors. “Because it was not an abuse of discretion to refuse to discharge jurors at [Appellant’s] request, [Appellant’s] contention that the trial court would have been required to grant a mistrial after discharging four jurors is rendered moot.”
The Transcript Record
During a break in Victim’s testimony on the second day of trial, each of the two attorneys representing Appellant informed the trial court that two jurors seemed to be asleep.
Defense counsel No.1 stated: “I noticed they had their eyes closed. I did not think they were asleep, but we’ll have to. . .” Defense counsel no. 2 stated: “39 was definitely asleep. [Court reporter] is nodding her head. He was definitely asleep.”
The trial court at that time of discussion decided not to take action. Instead, it made another juror the second alternate when the jury retired for deliberation.
But the Defense counsel had also again raised concerns about jurors sleeping on the third day of trial and pointed out to the court and for the record the following:
“And Your Honor, I’m just wanting to make a record that Jurors Number 10 and 26, who are different jurors than yesterday, were both sleeping during different points of the testimony. Juror Number 26, [I] kept seeing her head again kind of fall down and towards her chest. . . . Juror 10, her head kept falling down. Juror 26, her head kept falling back and at one point I was watching her breathe and she was taking really deep, even breaths like she was asleep, and her eyes were closed at that time.”
The Trial Court stated: “Okay. I’ve been watching. I’m not specific on those two jurors. I’ve been watching them and I’ve counted, they all seem to be coming back before I can count to ten, so that’s kind of been my handle on it. So what’s your request going to be with the sleeping jurors?”
Defense counsel no. 1: “With the sleeping jurors, the fact that there’s four of them is troublesome, but I’m going to be asking to strike all of the ones that have been missing the evidence.”
Trial Court: “If you strike all of them, I’m declaring a mistrial.”
Defense counsel no. 1 said he understood that and later stated he was striking all four of them.
The Trial Court then asked the State its position, to which the prosecutor stated: “I have not witnessed jurors sleeping. The moments I’ve looked at the jury, they’ve all been awake and I’ve found to be attentive.”
Defense Attorney no. 2: “We had already decided that he would be an alternate, but during the video, a great portion of it, both Juror 29 and 10 slept through a great portion of it. And then after the video concluded and the State was going through all of the evidence on the back bench there, both Juror 26 and 10 continued to sleep. It wasn’t just for brief moments here and there, but for a huge portion of the video shown, they were sleeping.
The Trial Court then opened the jurors up for questioning.
Juror 10 admitted that she “probably nodded here and there,” but she said that “[couldn’t] promise that [she] fell asleep because [she felt] like [she] heard everything” and that, to her knowledge, she had not missed anything. Juror 26 stated that she had not fallen asleep and instead was merely listening with her eyes closed. Juror 39 indicated that, on a couple occasions, he may have “dozed off for just a second” before catching himself. Juror 39 did not believe that he had missed any testimony. Juror 51 stated that she had not fallen asleep and instead put her head down because it helped her hear better.”
Defense attorneys were given the chance to question the four jurors but chose not to do so. The Trial Court then denied the defendant’s request to discharge any of the jurors. The Appellant Court stated that “As a result, there was no need for the trial court to consider whether to declare a mistrial. This was not an abuse of discretion.”
Appellate Court Reasoning
The Appellate Court reasoned that at most, Juror 10 confessed to a lapse of attention, which is not grounds to remove a juror. The court cited the Whitman case: “A lapse of attention is not grounds to remove a juror for sleeping.”
It went on to say that Juror 26 said she was listening to the evidence with her eyes closed, and never dozed off. “It was well within the trial court’s sound discretion to conclude, based on its own observations of the jury and based on testimony from the jurors in question, that the behavior of Jurors 10 and 26 did not warrant disqualification from the jury and thus did not warrant declaring a mistrial.”
The decision was made by Appellate Judges Cynthia L. Martin, (Chief Judge, Presiding), Karen King Mitchell, and Anthony Rex Gabbert.