No new trial despite snoozing juror, says Indiana Court of Appeals

By Correy Stephenson The Daily Record Newswire A defendant was not deprived of his right to a fair and impartial jury even though one of the jurors at his robbery trial fell asleep on two consecutive days, the Indiana Court of Appeals has ruled. On the second day of defendant's trial, defense counsel requested a sidebar and said one of the jurors was asleep. When the prosecutor responded that it was the "same one that slept through everything yesterday," the trial judge said they should send "a cup of coffee or a glass of water without embarrassing" the juror too much. Trial continued and the juror remained. The defendant was found guilty. He appealed, arguing that he was denied his right to a fair trial based on juror misconduct in the form of inattentiveness - i.e., sleeping. But the court disagreed. "[The defendant] was aware of both the juror's alleged inattentiveness and the trial court's proposed remedy before the trial concluded, yet he did not object to the trial court's proposed remedy. "In other words, if he was dissatisfied ... he could have requested that the juror be removed and replaced or requested permission to voir dire the juror to determine whether he was merely resting his eyes or was actually asleep and, if he was asleep, what was the extent of the testimony that he missed. He did neither," the court said. Further, the defendant "failed to demonstrate that the juror was in fact asleep and if so, for how long," as well as to how the duration of the alleged nap related to the evidence that the juror may have missed as a result, the court said. Indiana Court of Appeals. Hardin v. State, No. 49A02-1101-CR-37. Oct. 25, 2011. Lawyers USA No. 993-3311. Published: Mon, Nov 7, 2011