AZ Supreme Court Affirms Conviction Even Though Juror Switched Mid-Trial Posted on May 6, 2016 by Larry Bodine The Arizona Supreme Court ruled that switching a pro-defense juror in the middle of a sex-crime case did not prejudice the outcome. Knute Kolmann filed for post-conviction relief after a juror was dismissed during jury deliberations for personal reasons. Juror L.M. stated she was “not competent to judge anyone’s guilt or innocence.” The judge reaffirmed the juror’s concern and dismissed her without objection by either counsel. Kolmann was on trial for sexual exploitation of a minor and conspiracy to commit sexual exploitation of a minor. He was sentenced to 155 years and the appeals court affirmed his conviction. Kolmann had the burden of proving that the facts alleged would have changed his verdict. Juror L.M., in a 2010 affidavit obtained by Kolmann, stated she truthfully wanted to be excused because she did not want to cause a hung jury and that she disagreed with fellow jurors. On appeal, Kolmann argued ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and juror misconduct. Kolmann ultimately believed had the juror remained there was a strong possibility of a hung jury at the end of trial. Deficient Performance & Ineffective Assistance of Counsel To establish deficient performance, a defendant must show that his counsel’s assistance was not reasonable under professional standards, “considering all the circumstances.” For a favorable ruling, Kolmann had to overcome the presumption that counsel acted within a broad range of professional assistance; This required that counsel’s actions were a result of inexperience, lack of preparation, or other lack of professionalism. Kolmann argued counsel erred by waiving his right to be present when the juror was excused. The court stated the right to be present during each stage of a trial is not absolute. Defense counsel or defendants may waive the right to be present. The court found that Kolmann failed to show how the lawyer’s absence negatively impacted his case. This claim was dismissed for failure to state a colorable claim. Independent Questioning Not Required The defendant also believed counsel’s inexperience showed when he failed to independently question the juror. The defendant argued further that the attorney’s lack of experience with the situation caused a failure to independently question the juror. This claim was dismissed because Kolmann did not provide any supporting facts or legal authority suggesting his counsel was unreasonable. Deliberations Continued with Alternate Under Arizona Rule of Civil Procedure 18.5(h) the trial judge has broad discretion to excuse a deliberating juror for an inability to perform required duties, and to request an alternate. The same rule requires the trial court provide instructions to all jurors to start deliberations from the beginning to include the alternate juror. The trial judge provided similar instructions but this occurred before the replacement was brought in. Although the alternate did not have the benefit of hearing the full trial, existing jurors were to bring the alternate “up to speed.” Once the deliberations started again, the jury took only 70 minutes to reach a verdict. This alone did not constitute ineffective counsel, nor did the time frame of the jury deliberations. All of Kolmann’s claims were denied and the court affirmed the lower courts decision. This case is State or Arizona v. Knute Kolmann, Case No 15-0172-PR, Arizona Supreme Court.