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Young v. Johnson9/20/2001
d make whatever record is appropriate." Young does not contest this principle but essentially argues that the judge did not violate it in this case, because he notified counsel of Juror #8's request, and they allowed the judge to handle it alone.
We agree with Johnson that the judge erred by excusing Juror #8 under the circumstances of this case without first consulting with the parties. As set forth previously, 14, supra, the parties authorized the judge to meet with Juror #8 for the limited purpose of informing her that he would not accommodate her request and then determining how she wished to proceed. Once Juror #8 expressed her desire to remain on the jury rather than attend the funeral, however, the judge should have ended the meeting and reported the conversation to the parties. If the judge had concerns about the juror's ability to continue as a juror, he could have conducted an appropriate inquiry of the juror in the presence of counsel. Counsel would then have had an opportunity to voice their positions for the benefit of the judge and the record. This procedure would have been particularly appropriate in this case in light of the pending, and contested, motion to dismiss this juror for bias, and the judge's prior comments that he was "concerned enough that [he would] deal with [the manner in which Juror #8 conducted herself] at some level," and that Juror #8's request provided an "easy out" to the problem.
For these reasons, we conclude that the judge erred by failing to terminate his ex parte contact with Juror #8 once she expressed her desire to remain on the jury rather than attend the funeral and by excusing her from continued jury service without first consulting with the parties. A new trial is only required, however, if the judge erred in excusing Juror #8, and the error prejudiced Johnson's right to a jury trial. Perkins, 172 Ariz. at 119-20, 834 P.2d 1259-60; Duran v. Safeway Stores, Inc., 151 Ariz. 233, 235, 726 P.2d 1102, 1104 (App. 1986). We now turn to that issue.
III. Excusal of Juror #8
Johnson argues that the trial court deprived him of his right to a jury trial guaranteed by the state and federal constitutions by "forcing" Juror #8 from the jury without a legally sufficient basis. See U.S. Const. amend. VII ("In Suits at common law, . . the right of trial by jury shall be preserved, . . ."); Ariz. Const. art. 6, § 17 ("The right of jury trial as provided by this Constitution shall remain inviolate, . . ."). We review the court's decision to excuse Juror #8 for an abuse of discretion. State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978).
We first address the trial court's authority to "excuse" a juror. Arizona Revised Statutes § 21-202(2) (1990) provides that the court must excuse persons from jury duty upon their timely application and if, in the court's judgment, their service would "impose an undue hardship." As Johnson points out, Juror #8 did not ask to be excused from continued service. Consequently, § 21-202 did not authorize the judge to excuse her from the jury. We conclude, however, that the court possesses inherent power to excuse a juror whose ability to perform her duties becomes impaired during the course of the trial, even if the juror does not request excusal. See Arnett, 119 Ariz. at 50, 579 P.2d at 554 (acknowledging court's ability to excuse a juror sua sponte); State v. Superior Court, 39 Ariz. 242, 247-48, 5 P.2d 192, 194 (1931) (citation omitted) (inherent powers of courts are powers necessary to ordinary and efficient exercise of jurisdiction); Territory v. Barth, 2 Ariz. 319, 321, 15 P. 673, 674 (1887) (" o one can doubt for a moment the power and duty of the court to excuse juror.").<
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