Even though a Fremont County judge noticed a juror closing his eyes for “four to five minutes a couple of times” during the questioning of a key prosecution witness, Colorado’s second-highest court found no violation of the defendant’s right to a fair trial.

The state Supreme Court has previously interpreted Colorado’s constitution to guarantee a 12-person jury in felony criminal cases. Following his conviction, Matthew Jeremiah Smith claimed on appeal that he effectively did not have a jury of 12 during the periods when the unidentified juror was inattentive.

But a three-judge panel for the Court of Appeals was unconvinced any inattentiveness amounted to a constitutional violation.

“Smith does not cite to any Colorado cases in which a court has concluded that an alleged sleeping juror violates a defendant’s right to a twelve-person jury,” wrote Judge Sueanna P. Johnson in the Aug. 4 opinion.

Smith stood trial in August 2018 for shooting a man twice following a drug-fueled house party in Cañon City. A jury convicted him of attempted murder, possession of a weapon by a prior offender, assault and menacing, and Smith received a sentence of 89 years in prison. 

On the third day of the trial and after the defense’s cross-examination of the primary victim in the case, District Court Judge Lynette M. Wenner raised the issue of a sleeping juror to the lawyers.

“One of the jurors,” she explained, “was dozing off periodically throughout the cross examination. My guesstimate is four to five minutes a couple of times. I wasn’t observing him the entire time but I noticed that. I noticed a juror reach over and nudge him to wake him up.”

Smith’s attorney asked the judge to replace the sleeping juror with an alternate, believing it was prejudicial to the defense that the juror was sleeping through the victim’s testimony. Wenner ended up taking no action.

The next day, she backtracked slightly on what she had seen.

“I could not hear anything from him as far as verification that he was, in fact, sleeping. It appeared he could be sleeping,” Wenner said. “That was for a couple of minutes here and there.”

She elaborated that she was uncomfortable removing the juror “in the absence of something more specific indicating that he missed substantial portions of the testimony.” Wenner promised to keep an eye on the juror to ensure he remained alert.

On appeal, Smith claimed the juror had fallen asleep during “the most critical part of the trial,” and that Wenner had a duty to address the problem.

“Consequently, during the times the juror was sleeping or dozing off and not paying attention to the cross-examination by defense counsel, Smith was afforded a jury of less than twelve,” wrote Deputy State Public Defender Dayna Vise.

The Colorado Attorney General’s Office disputed whether the juror had fallen asleep at all. Even if he did, the government argued, it amounted to “a few minutes” over a nearly two-week trial, and did not transform Smith’s jury into an unconstitutional 11-person panel.

“It would actually be surprising if no juror had trouble staying awake at some point in the course of such a long trial,” wrote Ryan A. Crane of the attorney general’s office.

The appellate panel found nothing to suggest the sleeping juror missed or misunderstood testimony, and Smith had not indicated the juror’s behavior compromised his right to a fair trial. Consequently, the judges rejected Smith’s challenge to his convictions.

Various court have reached different conclusions about the ramifications of a sleeping juror. A 2004 appellate decision in Florida ordered a review into whether a defendant’s lawyer was ineffective for failing to alert the trial judge that a juror was falling asleep during critical testimony. In 2009, the Massachusetts Appeals Court overturned a conviction after a trial judge admitted he saw a juror apparently asleep, but failed to inquire about it.

“We do not expect a trial judge to be omniscient, but when the judge is alerted to a significant problem of juror attentiveness, he is required to address the problem,” the appellate court explained.

Last year, an appellate panel in Colorado declined to consider a defendant’s challenge to his conviction based upon a juror who fell asleep multiple times during a jury trial in Denver. The Court of Appeals decided the defense had failed to ask the judge to do anything specific, and suggested the sleeping juror might have actually benefitted the defendant.

The Colorado Supreme Court has since granted a review of the appeals court’s decision in the Denver case.

The case is People v. Smith.