People v. Dyer

DUNIWAY, J. Dyer appeals from a judgment of conviction. The offense is selling heroin (Health & Saf. Code, § 11500). Through court-appointed counsel, he urges that he did not validly consent to the absence of a juror or to have his ease decided by a jury of 11 persons.

No claim is made that the evidence does not support the verdict. We have examined the transcript and find the evidence more than sufficient.

The question arises in this way: The presentation of evidence and the argument of counsel were substantially completed on Friday afternoon. The court remarked that he did not “want to impose upon the jury by instructing them at this late hour on Friday,” and that “intervening engagements [of one of counsel] preclude doing so on Monday,” [648]and suggested that the court reconvene at 9 a. m. on Tuesday. A juror said that he could attend on Monday, but it would be difficult on Tuesday, although he could do so “if it is going to inconvenience everybody else.” He was going on his vacation, leaving for Hawaii, on Tuesday. After a little further discussion, the court indicated that it would proceed on Tuesday, and concluded by saying, 1 ‘ The only other possible thing that can be done is that counsel could stipulate to excuse this gentleman, if you want to, but I don’t know if you want to do that.” The district attorney promptly stipulated; so did Dyer’s counsel and counsel for a codefendant, Coffey. Counsel for Coffey asked his client if he would stipulate, to which Coffey replied, “Yes, sir.” No one asked Dyer if he was willing and he said nothing. The court then excused the juror, and directed the other 11 jurors to return at 9 o’clock, Tuesday morning.

On Tuesday, with 11 jurors present, the matter was- continued until Wednesday at 2:30 because the defendant Coffey failed to appear. Dyer and his counsel were present, but neither said anything about the absence of the excused juror. On Wednesday, the court again asked counsel if the case was to proceed with 11 jurors, and all counsel agreed. The court then had counsel and the defendants ‘1 approach the Bar, ’ ’ and inquired of each counsel and of each defendant if he wished to proceed with 11 jurors “and accept the verdict of the jury of eleven as the true verdict.” Dyer replied “Yes, your honor.” The matter then proceeded.

It is argued that Dyer’s personal consent was not a “true” jury waiver. Counsel states that the purpose of the 1927 amendment to article I, section 7, of the Constitution1 was to allow a defendant who desired to waive a jury trial to do so, and at the same time guarantee the right of a defendant to a jury trial if he did not want to waive it. He urges that the waiver was not voluntary because the court’s comment, on Friday, in effect suggesting a waiver, put Dyer in an impossible position. The juror then knew that Dyer could excuse him, with the result that if Dyer refused and stood upon his rights, the other parties having waived, he would have provided himself with a hostile juror. Moreover, he says the subsequent proceedings, on Wednesday, were ineffective, because the juror had then been excused.