Opinion
No. 00 CV 6841 (JWB)
February 27, 2002
MEMORANDUM, ORDER AND JUDGMENT
This petition raises a sleeping juror claim. For the reasons stated below it does not support habeas corpus relief.
Petitioner was convicted after trial of the crimes of robbery in the second degree and reckless endangerment in the first degree following a bank robbery in which a shot was fired by the robbers. Acquitted of a variety of crimes including robbery in the first degree, attempted murder and attempted aggravated assault on a police officer, he was sentenced to consecutive terms of five to ten years on the robbery count and two and one-third to seven years on the reckless endangerment count.
On appeal the conviction was affirmed, People v. Guinyard, 273 A.D.2d 251, 709 N.Y.S.2d 839 (N.Y.App.Div. 2d Dep't 2000), 714 N.Y.S.2d 4 (2000). Apparently no collateral state proceedings followed.
He now raises the same contentions rejected by the Appellate Division: (1) inadequate instruction on identification; (2) a sleeping juror; (3) inadequate basis for stop and frisk; (4) ineffective trial counsel; and (5) insufficient evidence to convict. The Appellate Division justifiably held that the frisk was incidental to a lawful arrest; the evidence sufficed; trial counsel was effective and the remaining contentions were unpreserved. A reading of the state record demonstrates adequate support for the conclusions of the Appellate Division.
The only intriguing point worth discussing is that involving an alleged sleeping juror. Even if, as the Appellate Division properly found, this issue was not specifically preserved for appeal because no objection was taken by trial counsel, the failure might be a basis for claiming inadequacy of trial counsel — an issue the appellate court implicitly found was properly raised.
The sleeping juror contention is based upon a comment made by the trial court during its lengthy charge. Apparently addressing the jury, the court declared:
Everybody awake here? Let me see. We have someone who is — wake up. All right.
Record at 1471. The court continued with the charge. This matter was not mentioned again.
There is no proof that a juror was asleep. The court's statement may have been designed to perk up a juror whose eyes appeared glazed over and who was on the edge of nodding or lapsing into sleep. We do not know. There is no way that question of fact can now be resolved. Judicial notice can, however, be taken of decisive consideration. See Federal Rules of Evidence § 201(a) (facts "generally known within the territorial jurisdiction of the trial court").
A person's closed eyes and relaxed body do not necessarily demonstrate sleep. Some people lower their lids to help concentration, although a perceptive judge can usually spot a snoozer.
A single member of the panel may exhibit attention-wander or even drift into daydreaming or, from time-to-time, a form of comatoseness that might be characterized as sleep. Yet, the remaining jurors in the box can pick up the reception slack. The combined memories of the jury tends to be remarkably comprehensive.
Many of our jurors hold jobs at night or have responsibilities at home that give them little rest. Were we to impose on each juror the impossible task of keeping fully alert at each moment of trial, we would be demanding the impossible.
Here the trial judge was himself vigilant and aware of the need to communicate to a jury that appeared to be listening. He took adequate steps to protect the defendant. That petitioner's lawyer did not pursue the matter further demonstrated good litigation sense rather than incompetence.
When necessary, trial counsel adequately protected petitioner's rights. See e.g., transcript 109 ff (Sandoval hearing); 338-39 (investigation by counsel); 370-377 (opening); 624-635 (cross); 1089-90 (contention on framing); 1283 (corporeal demonstration); 1315 (fruits of crime); 1325 (objection to charge); 1372-1406 (summation); but see 244-250, 251-257 (petitioner's request to replace counsel).
The petition is dismissed. A certificate of appeal is granted on the issue of adequacy of counsel in failing to assure an alert jury.
As part of the appeal it will be necessary to consider whether the sleeping juror issue was sufficiently included in the claim of counsel deficiency as to have been exhausted. See Desmond Jones v. D.A. Senkowski, slip op., Docket No. 00-2145 (2nd Cir. Amended Feb. 21, 2002). The respondent has stipulated that it is exhausted, but it is not clear that a stipulation suffices under Jones.