Metropolitan News-Enterprise


Friday, May 7, 2010


Page 3


Court Tosses Riverside Woman’s Conviction Over Juror’s Absence


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday threw out a Riverside County woman’s drug conviction because one member of the jury was at a job interview when the remaining 11 jurors returned their verdict.

Div. Two ruled that the denial of a 12-person jury rendering a unanimous verdict against Heidi Traugott was structural error requiring reversal.

Traugott was charged with possessing methamphetamine for sale and two related misdemeanor drug offenses in February 2008. After the close of the presentation of evidence, the jury began deliberating late on a Friday afternoon.

Deliberations continued the following Monday, when the jurors announced they had reached a verdict. Retired Kings Superior Court Judge John G. O’Rourke, who was sitting on assignment and had not been the trial judge, then called a conference among the attorneys.

Defendant Absent

During this conference, Traugott’s trial attorney, Gary Redinger, informed the court that his client was under the impression she was “on call” and not required to be present at the courthouse in Banning. Redinger said he had no objection to the court accepting the verdict in Traugott’s absence.

After some further discussion, a recess was taken, and when court resumed session, O’Rourke noted that one juror “escaped” because of a job interview but said he intended to take the jury’s verdict. Neither party objected, and the remaining 11 jurors were then brought into the courtroom.

O’Rourke asked the jury foreperson whether the verdicts returned were “your true and correct verdicts,” and confirmed that all 12 members had voted on them.

Deputy Public Defender Valerie Garcia then requested that the jurors be polled individually, and the 11 jurors present orally affirmed the verdict.

Writing for the appellate court, Justice Jeffrey King explained that a criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury. “This right requires that all 12 jurors deliberate and reach a unanimous verdict voted upon and, upon request by any party, declared orally by each of the 12 jurors,” he said.

He reasoned that the jury foreperson’s representation that all 12 jurors voted on the verdict did not satisfy the constitutional unanimity requirement since a defendant’s right to an oral affirmation of the verdict “is not a mere procedural formality.”

Oral Declaration

Even if each of the jurors voted to convict a defendant during deliberations, jurors sometimes equivocate or change their vote when polled in open court, King said. “[W]ithout the oral declaration of the missing juror, there is no way to know whether that juror actually voted for the verdicts or whether, if he or she did vote for the verdicts, he or she might have equivocated or changed his or her mind when asked to affirm the verdict in court.”

King also rejected the prosecution’s argument that Traugott impliedly waived her right to a 12-person jury by absenting herself from the proceedings, emphasizing that a waiver of a defendant’s right to a 12-person jury requires an express declaration by the defendant in open court.

 Were it possible for this right to be implicitly waived, King posited, this case did not present a situation where waiver could be found since Traugott’s absence did not have any connection to, or bearing upon, the fact that only 11 jurors were present.

Because Juror No. 4 would still have been absent even if Traugott had been in the courtroom, King concluded that Traugott would still have been deprived of the right to that juror’s oral declaration of the verdict and been denied her right to a unanimous verdict of 12 jurors.

Justice Douglas P. Miller joined King in his decision, and Justice Thomas E. Hollenhorst wrote a separate concurrence, opining that the presence of all 12 jurors was essential to the reliability of the verdict and without the presence of Juror No. 4, the verdict could not stand.

The case is People v. Traugott, E046884.


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