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Defense says four jurors slept during trial; state and judge cite record finding of one juror excused
Summary
Defense appellate counsel argued multiple jurors slept during the murder trial and that missing video evidence and contemporaneous courtroom observations support relief; the State and the trial judge’s later finding that only one juror slept and was excused formed the State’s response
Mitch Rains, the public defender representing Jonathan Duncan, told the appeals panel that the trial judge stopped proceedings in November 2022 after observing juror fatigue and that four jurors were “full on asleep” during trial. Rains said the contemporaneous observation should carry weight and that a purported video recording of the trial—described in the motion-for-new-trial hearing—has not been filed in the record.
“At trial ... the judge stopped the proceedings, and called both counsel forward and said something to the effect of, I don't normally do this, but there were 4 jurors full on asleep,” Rains told the court. He said the record shows other signs of juror fatigue and that counsel and the bailiff noted yawning and had jurors stand to stretch before long video playback.
Rains said defense counsel did not make a tactical decision to accept the judge’s on-the-record handling; rather, he argued appellate review should consider the contemporaneous courtroom statements and an off-the-record colloquy. He also told the panel the trial court and attorneys reportedly viewed a lengthy trial video—described in the record as about 38½–39 hours—that was used at the motion-for-new-trial hearing but is not present in the official record. Rains said he spoke with the clerk’s office and was told the video is missing.
Will Lundy for the State urged the panel to accept the trial court’s factual finding. “The judge did find that only 1 juror was asleep. And that's the only finding of fact that we actually have,” Lundy told the court, adding that the judge excused that juror and that, under plain error review, the defendant must show prejudice to substantial rights.
Lundy and counsel for the defense both cited State v. Chestnut as a closely analogous decision that the parties relied on in framing the factual-record dispute. Lundy said that if the record is inadequate to adjudicate the claim on plain error review, the defendant’s challenge fails.
Rains asked the appellate court to vacate and dismiss the charges or, alternatively, remand for a new trial, citing juror fatigue and the missing contemporaneous video evidence. The appeals panel took the matter under advisement.
