When an Excused Juror Transforms into a Prosecution Witness, Defendant Gets a New Trial.

People bond in the strangest circumstances. Here, the appellate court acknowledges that juror bias likely occurred when a dismissed juror was called as a prosecution witness in the same trial that he had been excused from. This denied the defendant a fair trial and the case was reversed.

In People v. Morris  (2015)__Cal.App.4th __, Case No. B254910, decided on June 10, 2015, a jury convicted Morris of possession of cocaine base for sale. At trial, evidence was admitted that police officers conducted a search of an apartment where drugs and money were found. Morris' wallet, containing his identification, was also found. A series of text messages discovered on his cell phone indicated Morris was involved in drug sales. A defense witness, Vinoya, testified the money found in the apartment was hers and that Morris did not live in the apartment.

During Vinoya's testimony, Juror No. 10 told the court that he had overheard Morris talking on a cell phone and he believed Morris was speaking to Vinoya. The juror overheard Morris saying that he had left money for her inside a pink shoe in the shoebox and that she might have to testify. The juror was dismissed. Over defense objection, the prosecution was allowed to call the dismissed juror to impeach Vinoya.

On appeal, Morris claimed the trial court erred in allowing the prosecution to call the dismissed juror as a witness. The court agreed. A sitting juror may not be called as a witness before the same jury in the trial (Evid. Code, § 704). The court acknowledged that by its plain language, section 704 does not apply to a juror who has been excused; however, the Sixth Amendment and due process guarantee a defendant a right to a fair trial by an impartial jury. "[A]llowing an excused juror to testify in a case in which he or she had once been a juror creates a constitutionally unacceptable probability that the other jurors who ultimately decide the case may look with favorable bias on the excused juror's testimony due to their shared jury experience." (see People v. Sanders (1988) 203 Cal.App.3d 1510). The court further explained that because the evidence of intent to sell was not overwhelming, the dismissed juror's impeachment of Vinoya was not harmless beyond a reasonable doubt.

Copyright © 2015 Christine Esser

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