The opinion of the court was delivered by: Roberto A. Lange United States District Judge
OPINION AND ORDER DENYING MOTION FOR NEW TRIAL
Following a jury trial on July 7, 8, and 9, 2010, Defendant Shana Schmidt was found guilty of assault with a dangerous weapon and assault resulting in serious bodily injury. On July 27, 2010, Schmidt filed a Motion for New Trial (Doc. 84), claiming that her constitutional rights to due process and a fair and impartial jury trial were violated because of the involvement of juror C.W.*fn1 in deliberations. For the reasons explained below, Defendant's Motion for New Trial is denied.
I. Facts Pertinent to Motion for New Trial
A Grand Jury indicted Defendant Shana Schmidt for assault with a dangerous weapon and assault resulting in serious bodily injury arising out of the stabbing of Brittany Shaw on July 11, 2009. This Court impaneled a thirteen person jury*fn2 and held a jury trial on the charges on July 7, 8, and 9, 2010. After the presentation of all evidence, closing arguments, and instruction of the jury, this Court excused the alternate juror, instructed the alternate juror not to discuss the case with anyone pending notification from the Clerk of Court that a verdict had been entered, and instructed the remaining twelve jurors to retire and deliberate.
During deliberation, the jury sent a note stating:
Are we allowed to view the voluntary witness reports written directly after the incident? (Doc. 70). The jury note was signed by two jurors, including C.W., as foreperson. Counsel for both the Government and Defendant, after meeting with the Court in chambers, stipulated and agreed on how the Court could respond to the jury note. (Doc. 71). As counsel were about to leave court chambers after having agreed on the appropriate response to the jury note, counsel for the Government told Defendant's counsel that a court security officer had questioned whether a convicted felon could be a juror and thought that juror C.W. might have had a prior state court conviction.
Later in the afternoon, the Court learned that the jury had reached a verdict and notified counsel for both the Government and Defendant. Defendant and her counsel were present in the courtroom when the jury came in to return its verdict. Upon inquiry from the Court, C.W. identified himself as the foreperson and reported that the verdict was unanimous. The Court then received the verdict form and published the jury verdict by reading it aloud in open court. (T. 3-4). The jury had found Defendant guilty of each of the two counts in the Indictment. (T. 4). The Court then asked whether the Defendant wanted the jury to be polled.
At that point, Defendant's counsel requested a sidebar. (T. 4). At sidebar, Defendant's counsel presented to the Court a printout indicating that C.W. had felony convictions in 1992 in state court involving fraud and false statements. (T. 5). The Court then advised the jury that a unique issue had been raised, asked C.W. to come into chambers, and sent the eleven other jurors back to the jury room. (T. 8-9).
The Court discussed separately with counsel the option of calling the alternate juror back and instructing the jury to begin deliberations anew without C.W.. (T. 17). Defendant's counsel objected to that option. (T. 17-18).
With counsel for both the Government and Defendant present, the Court had the Clerk of Court swear in C.W. and questioned him on two separate occasions. (T.10, 13-26). During the first questioning session, C.W. acknowledged the existence of the convictions, but explained that he had approached a state court judge after learning that he was ineligible to vote, that he later became eligible to vote, and that he understood his civil rights to have been restored. (T. 13-15). Following these statements by C.W., the Court asked counsel for both the Government and Defendant if there were "any other questions that either counsel would like for me to ask of [C.W.]?" (T. 14). The Court allowed counsel for both sides to pose questions for C.W. to the Court, which the Court would in turn ask C.W.. (T. 14-17).
After this questioning period, the Court asked C.W. to wait while the Court attempted to either verify or disprove that C.W. had been restored of his civil rights. (T.17). The Court obtained a copy of a certificate of discharge from a state agency, reflecting that Mr. C.W. indeed had been restored of his civil rights. (Doc. 72, Exhibit C).
The Court then questioned C.W. a second time, with counsel for both the Government and Defendant present. C.W. recognized the document restoring him to his civil rights. (T. 25). The Court asked C.W. about his answer to the Juror Qualification Questionnaire, on which C.W. had answered "no" to the following question:
6. Have you ever been convicted, either by your guilty or nolo contendere plea or by a court or jury trial, of a state or federal crime for which punishment could have been more than one year in prison? (Doc. 72, at Exhibit A). C.W.'s answers were to the effect that his sentence was less than one year and that he read the question in a manner where he thought the correct answer for him was "no." (T. 25-26). C.W. also had answered "no" to the next question which stated, "7. (If "yes"), were your civil rights restored?" (Doc. 72 at Exhibit A). Having observed C.W. during the two questioning sessions, the Court made the finding that C.W. was credible and had answered the questions of the Court in an honest manner. (T. 27). The Court again raised with Defendant's counsel the option of excusing C.W., bringing back the alternate juror, and instructing the jury to begin deliberations anew. Defendant's counsel again objected to bringing the alternate juror back in place of C.W.. (T. 35).
The Court observed that Defendant's counsel had in hand information about C.W.'s conviction before the jury verdict was read. (T. 32). After all, Defendant's counsel was able to present the document reflecting Mr. C.W.'s felony convictions at sidebar immediately after the Court published the verdict form. (T. 4). Defendant's counsel argued that Defendant had not waived the issue by waiting to raise it until after the verdict had been read, and further argued that a mistrial should be granted. (T. 31, 34). The ...