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Young v. Johnson9/20/2001
about the trial court's excusal of Juror #8 because he (1) agreed to allow the judge to meet with the juror alone and "make a determination about how best to deal with the situation," and (2) failed to object to the excusal at the time it occurred. Johnson does not dispute that he waived his right to object to the judge's discussion with Juror #8 about her desire to attend the funeral. He contends, however, that his waiver was limited to this topic and did not prevent him from later challenging the judge's decision to excuse the juror after she expressed her desire to forego the funeral and remain on the jury. He further argues that he did not waive the issue by failing to object at the time of the excusal, because he was not then on notice of the circumstances surrounding Juror #8's excusal.
It is evident from the record that the parties and the judge anticipated that Juror #8 would ask to forego continued jury service and attend the funeral once she was told that the judge would not recess the trial. Significantly, the parties did not discuss or agree upon how the judge should proceed if the juror elected to remain on the jury. In the absence of such an agreement, we decide that Johnson did not waive his right to challenge the excusal of Juror #8 by merely agreeing to the ex parte discussion. See United States v. United States Gypsum Co., 438 U.S. 422, 461 (1978) (although all counsel agreed to allow the judge to speak alone with the foreman about the status of deliberations, they did not agree that the judge could impart additional instructions, and the judge's comments were therefore unauthorized).
We also conclude that Johnson did not waive the issue by failing to object to the excusal when it occurred. First, Johnson was not present when the judge excused Juror #8 and obviously did not have the opportunity, therefore, to object at that time. Second, the judge did not inform counsel that he had excused Juror #8 after she had elected to remain on the jury. See Gypsum, 438 U.S. at 461 (parties' acquiescence to ex parte meeting between judge and juror did not waive "right to a full and accurate report of what transpired"). Instead, when the case reconvened in the courtroom, the judge told the jury and the parties that he had excused Juror #8 to allow her to attend the funeral and because he could not recess the trial. Nothing in the judge's comments reasonably alerted Johnson to the nature of the conversation between the judge and Juror #8, thereby imposing an obligation on Johnson to inquire further about the discussion, object to the excusal, or accept the decision. See SMP II Ltd. P'ship v. Ariz. Dep't of Rev., 188 Ariz. 320, 324, 935 P.2d 898, 902 (App. 1996) ("without knowledge of a right there can be no waiver" of objection); State v. Hilliard, 133 Ariz. 364, 365, 651 P.2d 892, 893 (App. 1982) (party had no opportunity to voice objection to judge's ex parte contact with jurors when record did not reveal counsel's knowledge of contact).
For these reasons, we hold that Johnson did not waive his right to challenge the judge's decision to excuse Juror #8 after she expressed her desire to forego the funeral and remain on the jury.
II. The Ex Parte Determination
Johnson contends that the judge erred by determining on an ex parte basis that Juror #8 should be excused, and a new trial is required for that reason alone. He relies primarily on Perkins v. Komarnyckyj, 172 Ariz. 115, 118, 834 P.2d 1260, 1263 (1992), which emphasized that "trial judges should not communicate with the jury regarding substantive legal issues or matters of substantial procedural importance without first notifying and giving counsel an opportunity to state their positions an
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