People v. Ames

Opinion

FRANSON, J.

The sole issue is whether appellant effectively waived her right to be tried by a jury of 12 people. The trial which had begun with 12 jurors was completed with 11 jurors because one juror was excused while the trial was in progress with no alternate available.

During defense counsel’s closing argument the judge noticed that one of the jurors had been sleeping. A recess was called and both counsel and appellant met in chambers whereupon the following took place:

“The Court: I have noticed and I have sat there watching for about the better part of an hour, Mrs. Spellman, Juror No. 7, who is alternately awake and asleep and I cannot allow that to continue ... I don’t know what her situation is or what her problem is, but in view of this particular circumstance, if the Defendant wants to move for a mistrial, I will grant it.

“Mr. Strauss [Defense Counsel]: May I have a moment to discuss this with my client, Your Honor?

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“The Court: You may do so. Do you want to go into the Municipal Court room?

“(Whereupon, recess was had, after which the following proceedings were had in chambers:)

“The Court: All right. Back on the record.

“Mr. Strauss: Your Honor, we would desire to go, proceed with the trial with eleven jurors, excusing the juror who is apparently unable to concentrate on the case.

“The Court: Mr. Hagan.

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“Mr. Hagan [Prosecutor]: We’d be willing to proceed with eleven.

“The Court: All right. Then, gentlemen, I will tell her that she’s excused right now and you stipulate, then, to excuse her and we’ll proceed with eleven jurors.

“(Whereupon, the following proceedings were had in open court in the presence and hearing of the Jury:)

“Mr. Strauss: We have decided we will proceed without the juror.