Parks v. State, 5134
| Decision Date | 04 October 1979 |
| Docket Number | No. 5134,5134 |
| Citation | 600 P.2d 1053 |
| Parties | Danny PARKS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Richard G. Miller, Miller & Miller, Casper, and Robert L. Mullen, Casper, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Richard Scott Rideout, Asst. Atty. Gen., and Berry F. Laws, III, Legal Intern, Office of the Atty. Gen., Cheyenne, for appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Danny Parks was convicted by a jury of forgery under § 6-2-101, W.S. 1977. The only issue raised on appeal is whether the district court erred when it failed to declare a mistrial after discovering that one of the jurors had not been summoned for jury duty. We find that it was not error to replace the disqualified juror with the alternate juror before deliberation began, and will affirm.
The defendant's trial began November 13, 1978. On that day Dennis Ross was summoned for federal jury duty. Mr. Ross inadvertently appeared at the county courthouse rather than the United States courthouse. After the deputy clerk of the county court called the roll of the jurors and Mr. Ross' name was not called, he stood up and identified himself. His name was then placed on a ballot. Subsequently, Mr. Ross' name was selected by the usual process. He was examined on voir dire by both sides and was neither challenged for cause nor peremptorily challenged. He was then seated as a juror and took the oath. After the entire jury was seated an alternate juror was selected. The alternate juror was not challenged by either side.
That afternoon the deputy clerk discovered that Mr. Ross' name did not appear on the panel of jurors for the district court. She informed the trial judge of the error and he immediately recessed the trial until the next morning.
When the trial resumed the next day the trial judge replaced Mr. Ross with the alternate juror. Throughout the first day of trial the alternate juror was seated with the rest of the jury and heard all of the evidence that was presented until the recess.
Parks contends that the failure to declare a mistrial deprived him of due process of law and of a right to a trial by jury. We disagree.
Rule 25(c), W.R.Cr.P. provides:
* * * " (Emphasis added.)
Defendant argues that because Mr. Ross was never qualified as a juror he could not be properly replaced by an alternate juror as provided for by Rule 25(c). While we agree that the literal language of the rule states that a juror may be replaced if he "become(s) unable or disqualified," we find that the rule must be given a broader interpretation.
In United States v. Goldberg, D.C.E.D.Penn., 206 F.Supp. 394, 399 (1962), a case very similar to the case at bar, Lottie P. Robinson had been summoned as a member of the jury panel but had been excused because of illness. The clerk did not make a note of this, and upon that name being called in the course of impaneling a jury, Ida B. Robinson responded, was examined concerning her qualifications, and approved as a juror. The error was discovered after several days of trial whereupon defendant moved for mistrial. The motion was denied and the court substituted an alternate juror. Following conviction defendant filed motion attacking the denial of mistrial....
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...jurors, including those selected for a bifurcated, death penalty trial, are essential constituents of a trial jury. See Parks v. State, 600 P.2d 1053 (Wyo.1979). Pointing to W.R.Cr.P. 24(e) and W.R.Cr.P. 2, the State contends that any procedural conflict within the statute is governed by th......
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...Our standard for establishing prejudicial error when a challenge for cause is improperly denied was adopted in 1979. Parks v. State, 600 P.2d 1053, 1055 (Wyo. 1979) (citing Foster v. State, 240 Ga. 858, 242 S.E.2d 600, 602 (1978)). Recently, there has been a movement away from an automatic ......
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