STATE OF LOUISIANA VERSUS JAYLON K. BROWN
NO. 2023 KA 0293
COURT OF APPEAL FIRST CIRCUIT STATE OF LOUISIANA
NOV 28 2023
Antonio “Tony” M. Clayton District Attorney Terri Russo Lacy Assistant District Attorney Port Allen, Louisiana
Attorneys for Appellee, State of Louisiana
Mary Constance Hanes Louisiana Appellate Project New Orleans, Louisiana
Attorney for Defendant-Appellant, Jaylon K. Brown
BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.
Holdridge J. agrees in part, dissents in part
WOLFE, J.
The defendant, Jaylon K. Brown, was charged by grand jury indictment with two counts of second degree murder, violations of
STATEMENT OF FACTS
On December 28, 2019, at approximately 9:36 p.m., officers responded to a 911 call from the victim, Dararius Evans, near the Louisiana State University Agricultural Center (“LSU Ag Center“) in St. Gabriel, Louisiana. Evans stated that he had been shot by “Sneaks.” Upon arriving at the scene, St. Gabriel Police Officer Sterling Redditt observed a vehicle in a ditch, that had crashed into a white tank. Officer Redditt discovered Evans slumped over in the front seat and bleeding from an unknown wound, and found Aleysia Maynor, the other victim, bleeding from her neck in the front passenger seat. Maynor was pronounced deceased at the scene, while Evans
Through the investigation, Detective James Andre Williams, Sr., with the St. Gabriel Police Department, learned that “Sneaks” was the defendant‘s nickname.1 The defendant was brought in for questioning and advised of his Miranda2 rights, after which he gave two statements denying any involvement in the shooting, but admitting to meeting with Evans and Maynor. In his third statement to police, the defendant confessed that, during an altercation, he shot Evans in self-defense and Maynor was accidentally shot. He then threw the gun in a storm drain in Baton Rouge. At that point, the defendant was arrested for the murder of Aleysia Maynor and the attempted murder of Dararius Evans. When Evans later passed away from his injuries, the defendant was arrested for his murder.
SUFFICIENCY OF THE EVIDENCE
In his first assignment of error, the defendant argues that the evidence is insufficient to support his convictions for the second degree murder of Evans and manslaughter of Maynor. Specifically, the defendant contends that the State failed to prove beyond a reasonable doubt that he did not kill Evans in self-defense, and failed to prove that he killed Maynor.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See
The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Gardner, 2016-0192 (La. App. 1st Cir. 9/19/16), 204 So.3d 265, 267. The weight given evidence
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”
Manslaughter is a homicide which would be either first degree murder or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.
Detective Williams was one of the lead detectives in the case. Detective Williams testified that, upon arriving at the scene, Evans stated that “Sneaks” shot him. Based on that information, Detective Williams looked through Evans‘s phone and saw a contact labeled “Sneaks.” Detective Williams sought and obtained search and seizure warrants for the phone records of Evans, Maynor, and the phone number listed under the contact “Sneaks,” which belonged to the defendant. The phone records indicated that on the day of the shooting, Evans texted the defendant and asked if the defendant could meet with him to loan him some money.3
In the course of his investigation, Detective Williams also retrieved and reviewed surveillance video footage from St. Gabriel Groceries, or “Wayne‘s Grocery,” which is only “[a]bout two minutes” from the LSU Ag Center where the crime occurred. The surveillance footage showed Evans‘s vehicle passing in front of Wayne‘s Grocery at 9:32 p.m.4 The investigation further showed that Evans‘s, Maynor‘s, and the defendant‘s phones were located inside Evans‘s vehicle as it passed by Wayne‘s Grocery. At 9:35 p.m., Evans called 911 to report that he had been shot.5
Timothy Piper, an expert in historical cell site location data, examined the phone records of Maynor, Evans, and the defendant. Piper testified that from approximately 8:43 p.m. until 9:32 p.m., the phone records of Maynor, Evans, and the defendant demonstrate that all three individuals were together. At approximately 8:43 p.m., Evans, Maynor, and the defendant began traveling together from St. Gabriel to Gonzales, Louisiana. Evans, Maynor, and the defendant then traveled back to St. Gabriel, where all of their phones pinged off the same cell tower near Wayne‘s Grocery at around 9:32 p.m. Piper concluded that, based on the locations of the phones, Evans, Maynor, and the defendant were together when Evans called 911 at 9:35 p.m. However, at 9:38 p.m., the defendant‘s phone began to travel away from St. Gabriel towards Baton Rouge. From 10:17 p.m. to 11:17 p.m., the defendant‘s phone pinged off a “small cell” tower6 in Baton Rouge. The murder weapon was found within the serving radius of the “small cell” tower. According to Piper, the phone records were consistent with Evans‘s car, carrying Evans, Maynor, and the defendant, passing in front of Wayne‘s Grocery at 9:32 p.m. and arriving at the crime scene where Evans called 911 at 9:35 p.m. Moreover, the defendant‘s phone was never in range of the cell tower servicing the defendant‘s girlfriend‘s
house and thus, the defendant‘s phone could not have been at the defendant‘s girlfriend‘s house as he initially claimed.
Danielle Downy, a crime scene analyst at the Louisiana State Police Crime Lab and an expert in the field of crime scene investigation, processed the crime scene
Chelsea Richardson, a firearms examiner at the Louisiana State Police Crime Lab and an expert in the field of firearms examination, conducted a ballistics analysis on the gun recovered from the storm drain and the shell casings collected from the crime scene. Richardson determined that all eight cartridge cases collected from the crime scene were fired from the firearm that the defendant hid in a storm drain. The bullet retrieved from Maynor‘s head was likewise fired from the same gun. Richardson testified that the gun was not automatic and that a shooter would have to pull the trigger each time for it to fire.
Dr. Michael Defatta, a forensic pathologist at the St. Tammany Parish Coroner‘s Office and expert in the field of forensic pathology, performed the autopsies on both Maynor and Evans. The gunshot wound to Evans‘s back had a back-to-front and slight upper trajectory. The two gunshot wounds to Evans‘s right leg had a higher entry and indicated more of a downward trajectory, which is consistent with a shooter seated in the middle of the backseat. Maynor had a close-range gunshot wound behind her left ear, along with “stippling” and soot surrounding the wound. Dr. Defatta noted that soot and stippling are present when the shooter is less than twelve inches away. Moreover, Dr. Defatta testified that the trajectory of Maynor‘s gunshot wound was certainly possible with the shooter sitting in the backseat.
The defendant did not testify at trial, nor did he present any witnesses or evidence. Through cross-examination, however, defense counsel attempted to show that the defendant shot Evans in self-defense. According to the defendant‘s third statement, which was played to the jury at trial, Evans pulled a gun from under the driver‘s seat and pointed the gun toward the defendant. The defendant pushed Evans‘s arm forward and the gun went off and hit Maynor. Evans then dropped the gun on the floor behind the passenger seat, and the defendant picked up the gun and shot Evans. When Evans reached toward the defendant again, the defendant shot Evans “until he stopped moving.” The defendant denied shooting Maynor. After the shooting, the defendant threw the gun in a storm drain in Baton Rouge.
On appeal, the defendant asserts there is no proof that he had any intent to kill or harm Evans because he spent an hour with Evans prior to the shooting. The defendant
Moreover, the defendant argues that the physical evidence established that he shot the gun erratically as he was trying to escape Evans‘s car. Alternatively, the defendant argues that the verdict of second degree murder should be modified to reflect a judgment of conviction for the lesser included offense of manslaughter. Finally, the defendant contends the State failed to prove he was responsible for Maynor‘s death.
In finding the defendant guilty of second degree murder, it is clear the jury rejected the defendant‘s claim of self-defense and concluded that the use of deadly force against Evans under the particular facts of this case was neither reasonable nor necessary. By arming himself with Evans‘s gun, the defendant escalated the conflict and took on the role of the aggressor. See
Moreover, the defendant‘s actions in failing to report the shooting and fleeing from the scene, as well as lying and making inconsistent statements, are not consistent with a theory of self-defense. The defendant initially admitted only to meeting with Evans and Maynor, denying any involvement in their deaths. However, in his third statement to police, he stated that after he got into Evans‘s car, Evans suddenly pulled a gun on him. Despite the defendant‘s attempt to suggest that the shooting occurred almost immediately after he met with Evans and Maynor, the defendant‘s phone records revealed that they were together for at least an hour prior to the shooting. All three individuals traveled together from St. Gabriel to Gonzales and then back to St. Gabriel. Cell site location data and surveillance footage confirmed that Evans‘s vehicle, carrying all three individuals, passed by Wayne‘s Grocery at 9:32 p.m. When Evans called 911 at 9:35 p.m., all three individuals were still together. The defendant‘s phone did not begin traveling away from Evans until 9:38 p.m. Thus, the defendant‘s assertion that he only met with the victims briefly before shooting them is inconsistent with the evidence and testimony presented at trial. Furthermore, the defendant never called 911 or the police, or sought help. Instead, he fled the scene and threw the murder weapon in a storm drain. Flight following an offense reasonably raises the inference of a “guilty mind.” State v. Taylor, 2014-0432 (La. 3/17/15), 166 So.3d 988, 995 (per curiam); State v. Labee, 2022-0995 (La. App. 1st Cir. 2/24/23), 361 So.3d 1072, 1078; Dunn, 340 So.3d at 87.
Regarding the theory of an accidental shooting with respect to Maynor, the defendant‘s own statement to police officers, the forensic evidence, and the ballistics analysis contradict an accidental shooting. In his own words during his interview
The jury can accept or reject the testimony of any witness. To resolve conflicting testimony relative to factual matters, the jury must make credibility determinations and weigh the evidence. State v. Eby, 2017-1456 (La. App. 1st Cir. 4/6/16), 248 So.3d 420, 426, writ denied, 2018-0762 (La. 2/11/19), 263 So.3d 1153. See Mire, 269 So.3d at 700-01. The Jackson standard of review does not permit a reviewing court to substitute its own appreciation of the evidence for the factfinder‘s, assess the credibility of witnesses, or reweigh evidence. See State v. McGhee, 2015-2140 (La. 6/29/17), 223 So.3d 1136, 1137 (per curiam); State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam). Thus, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness‘s testimony, if believed by the jury, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
Accordingly, in reviewing the evidence, we cannot say that the jury‘s determination that the defendant was guilty of the second degree murder of Evans and manslaughter of Maynor was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See Calloway, 1 So.3d at 418. To otherwise accept a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder‘s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See Mire, 269 So.3d at 703. Thus, the challenges to sufficiency of the evidence are without merit.
REMOVAL OF JUROR
In his second assignment of error, the defendant argues that his constitutional rights were violated when, over defense objection, the trial court removed a juror who appeared to be sleeping and replaced her with an alternate juror.
Once a jury has been selected and sworn, the accused has a right to have his fate decided by the particular jurors selected to try him. State v. Cass, 356 So.2d 396, 397 (La. 1977). The right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore,
A defendant charged with a felony shall be present “[a]t the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.”
Prior to playing the three-hour-long video statement of the defendant, the State expressed concern over a juror, Bernadine Poole, who appeared to have been sleeping during proceedings earlier that morning. The trial judge stated that she noticed Ms. Poole sleeping earlier, so she asked a bailiff to tap Ms. Poole on the shoulder. Ms. Poole “did awaken at that point” and mouthed, “I‘m listening, I‘m listening.” Later that afternoon, while the video continued to play for the jury, the judge and the attorneys held a bench discussion, and the following exchange took place regarding Ms. Poole:
THE COURT: It‘s 4:42. Ms. Poole is curling up under her blanket and dozing.
[THE STATE:] She‘s been sleeping
THE COURT: She says that every time we touch her she says I‘m honestly not sleeping. I don‘t think she can possibly be listening. Can we stop for today?
[THE STATE:] Yes, ma‘am.
After court adjourned for the day, the trial judge walked out at the same time as Ms. Poole and “took it upon [her]self to address [Ms. Poole] about her eyes being closed[.]” The judge told Ms. Poole that she was concerned about Ms. Poole not being able to stay awake. Ms. Poole told the judge that she was listening and that she hears better with her eyes closed.
On the next day of trial, the State continued playing the video for the jury. The trial judge could not see or hear Ms. Poole that morning because there was a TV blocking her view of the jury. However, others informed the trial judge that Ms. Poole was having “over-exerted respirations
At some point, the judge asked the jury to stand up and get their “wiggles” out, specifically trying to wake Ms. Poole up. The judge‘s staff reported to her that Ms. Poole took a while to rise, seemingly because Ms. Poole didn‘t hear the judge‘s instruction for everyone to stand up. The judge stated that someone again told her that Ms. Poole appeared to be sleeping.
Once the video ended, the court recessed, and the trial judge began a sidebar discussion with all counsel specifically to discuss Ms. Poole‘s alleged sleeping. The State expressed concern over Ms. Poole missing portions of testimony and stated that it had “no alternative especially since the Court is aware of it and has been.” The State then moved for Ms. Poole to be stricken from the jury.
Defense counsel objected to removing Ms. Poole, stating that he had not noticed Ms. Poole sleeping. Defense counsel pointed out that Ms. Poole stated it‘s not uncommon for her to close her eyes while she‘s listening to something. The trial judge then placed her observations on the record before determining that Ms. Poole was rendered unavailable because she was unable to stay awake. Ms. Poole was brought back into the courtroom outside the presence of the other jurors, and the judge excused Ms. Poole without stating the reason why.7 Defense counsel objected
to the trial court‘s ruling and noted that Ms. Poole was the only African American juror on the entire panel.
In Cass, 356 So.2d at 397, the trial judge noticed that one of the jurors appeared to be asleep as his head was nodding and his eyes were closed. After watching him for two to four minutes, the judge, believing that the juror was ill, summarily ordered the removal of the juror and replaced him with an alternate. Before exiting the courtroom, the juror stated twice that he had not been sleeping. Id. On review, the Louisiana Supreme Court found removal of the juror under those circumstances constituted reversible error. Id. at 398. In so ruling, the Court stated as follows:
[A]pplying [
La. Code Crim. P. art. 789 ,] we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had defendant and the state been afforded an opportunity to explore on the record the defendant‘s inability to perform on this account, we would be presented with a substantially different question for review.
Id.
Further, in State v. Johnson, 463 So.2d 620, 626 (La. App. 1st Cir. 1984), remanded on other grounds, 464 So.2d 1363 (La. 1985), the defendant argued that the trial court erred in refusing to excuse two jurors who appeared to be sleeping during the reading of the victim‘s prior testimony. The trial judge stated he noticed two jurors with their eyes closed but, after watching them closely, did not believe that either of the jurors were asleep. Id. As defense counsel did not request an opportunity to make, nor made, any showing that the jurors were actually asleep or unable to perform their duties, this court found no error in the trial court‘s refusal to remove the jurors. Id. at 627.
Likewise, in State v. Moore, 2017-1607 (La. App. 1st Cir. 2/6/19), 2019 WL 474712, *4 (unpublished), writ denied, 2019-0376 (La. 5/6/19), 270 So.3d 581, this court found no error in the trial court‘s decision to not replace a sleeping juror who was allegedly asleep during part of the defendant‘s closing argument and the reading of the jury instructions, where briefly “dozing off” is not per se proof that a juror is unable to perform their duties or that they should be disqualified. Id. Moreover, the trial court record was void of any evidence to support the defendant‘s claim that the particular juror was actually asleep, and the juror was provided an opportunity to have the jury instructions reread to him. Moore, 2019 WL 474712 at *4.
After a thorough review of the record, we find that the trial judge did not err by removing the juror in question, Ms. Poole. Unlike the jurors in Cass, Johnson, Shurley, and Moore, Ms. Poole‘s alleged sleeping was a substantial and chronic distraction to the trial court, not merely a “minor, isolated incident[.]” See Shurley, 2015 WL 3613186 at *5. Ms. Poole was repeatedly observed with her eyes closed on multiple days of the trial during live witness testimony, as well as during the presentation of the defendant‘s three-hour-long statement. Moreover, Ms. Poole was verbally warned to stay awake by the trial court several times and was tapped on her shoulder to wake up by a bailiff and another juror. She also exhibited “over-exerted respirations” through her mouth, which resembled snoring. Finally, defense counsel did not move for a hearing to question Ms. Poole on the record, and both at trial and on appeal, the defendant failed to object to the fact that Ms. Poole was disqualified outside the presence of the defendant. See State v. Sterling, 2013-287 (La. App. 5th Cir. 12/12/13), 131 So.3d 295, 306, writ denied, 2014-0065 (La. 8/25/14), 147 So.3d 698 (no error in trial court‘s refusal to remove sleeping juror where defendant did not request a hearing to determine whether juror was actually asleep, and the juror was not observed sleeping for an extended period of time or during the taking of evidence); State v. King, 2011-767 (La. App. 5th Cir. 2/28/12), 88 So.3d 1147, 1156, writ denied, 2012-0660 (La. 9/14/12), 99 So.3d 35. Accordingly, there was no abuse of discretion in the trial court removing Ms. Poole after she was shown to have been sleeping through a substantial part of the trial and was unable to stay awake despite warnings and efforts to arouse her. Therefore, this assignment of error
CONCLUSION
For the reasons stated above, we affirm the defendant‘s convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.
Holdridge, J., dissenting in part.
I respectfully dissent from the majority‘s ruling affirming the trial court‘s removal of juror Bernadine Poole. Once a jury has been selected and sworn, the accused has a right to have his fate decided by the particular jurors selected to try his case. State v. Cass, 356 So.2d 396, 397 (La. 1977). The right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore, inapplicable. Cass, 356 So.2d at 398. Moreover, once a juror is qualified as competent to serve and sworn in, the defendant must be present any time a sworn juror‘s competency to serve is challenged or questioned, or else the entire proceeding is “vitiat[ed.]”
In Cass, 356 So.2d at 397, the trial judge noticed that one of the jurors appeared to be asleep as his head was nodding and his eyes were closed. After watching him for two to four minutes, the judge, believing that the juror was ill, summarily ordered the removal of the juror and replaced him with an alternate. Cass, 356 So.2d at 397. Before exiting the courtroom, the juror stated twice that he had not been sleeping. Cass, 356 So.2d at 397. On review, the Louisiana Supreme Court found removal of the juror under those circumstances constituted reversible error. Cass, 356 So.2d at 398. In so ruling, the Court stated as follows:
[A]pplying [
La. C.Cr.P. art. 789 ,] we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had defendant and the state been afforded an opportunity to explore on the record the defendant‘s inability to perform on this account, we would be presented with a substantially different question for review.
In the instant case, the trial court ruled, during a bench discussion with counsel and outside the presence of the defendant, that Ms. Poole‘s alleged sleeping rendered her unavailable. While the State and the trial judge observed Ms. Poole to be sleeping, Ms. Poole stated several times that she was listening and that she listened better with her eyes closed. Ms. Poole never admitted that she was sleeping, much less on the record where the parties could question her. Even if Ms. Poole was dozing off, there is no evidence in the record to support the allegation that Ms. Poole was sleeping through a substantial part of the trial or that she was unable to stay awake despite efforts to arouse her. The trial judge stated that every time they tried to wake Ms. Poole, she immediately awoke and said she was listening. Furthermore, the trial judge only personally observed Ms. Poole sleeping on one occasion on the second day of trial. On the third day of trial when Ms. Poole was removed, the trial judge repeatedly said that it was “reported” to her that Ms. Poole was allegedly sleeping or appeared to be sleeping. Thus, the trial judge did not personally observe Ms. Poole sleeping through a substantial part of the trial.
Moreover, the trial court removed Ms. Poole outside the presence of the defendant and without conducting an evidentiary hearing. Challenging Ms. Poole‘s competency to serve and thereafter disqualifying
Finally, we have no record to review as to whether Ms. Poole was actually sleeping. Ms. Poole herself repeatedly denied that she was asleep, and the only allegations supporting disqualification are off-the-record observations that Ms. Poole appeared to be sleeping. By not having an evidentiary hearing, the trial court denied the parties the opportunity to question Ms. Poole on the record regarding her competency to serve and deprive this court of an opportunity to review the evidence. See State v. Burns, 35,267 (La. App. 2 Cir. 10/31/01), 800 So.2d 106, 108 (conviction reversed where alleged sleeping juror was summarily discharged during off-the-record discussion); cf. State v. Traylor, 51,901 (La. App. 2 Cir. 2/28/18), 246 So.3d 665, 671, writ denied, 2018-0493 (La. 2/11/19), 263 So.3d 893 (no abuse of discretion in removing sworn juror, where trial court held a hearing before removing juror); State v. Preston, 2015-306 (La. App. 5 Cir. 10/28/15), 178 So.3d 207, 217, 218, writ denied, 2015-2169 (La. 11/18/16), 210 So.3d 283 (no abuse of discretion in refusing to remove sworn jurors after the parties were allowed to explore on the record whether jurors were sleeping).
The majority argues that in this case, unlike in the Moore, Shurley, and Johnson cases, Ms. Poole‘s alleged sleeping was a substantial and chronic distraction to the trial court, rather than a minor, isolated incident. State v. Moore, 2017-1607 (La. App. 1 Cir. 2/6/19), 2019 WL 474712, *3-4 (unpublished), writ denied, 2019-0376 (La. 5/6/19), 270 So.3d 581; State v. Shurley, 2014-0850 (La. App. 1 Cir. 6/5/15), 2015 WL 3613186, *5-6 (unpublished), writ denied, 2015-1246 (La. 6/17/16), 192 So.3d 775; State v. Johnson, 463 So.2d 620, 626-27 (La. App. 1 Cir. 1984), remanded on other grounds, 464 So.2d 1363 (La. 1985). However, this comparison fails to account for the fundamental difference between these cases. In Moore, Shurley, and Johnson, the defendant argued that the trial court erred in overruling his objection by refusing to replace an allegedly sleeping juror. Moore, 2019 WL 474712 at *3; Shurley, 2015 WL 3613186 at *5; Johnson, 463 So.2d at 626. Here, the trial court removed Ms. Poole absent any objection from the defendant, and, concerningly, outside the presence of the defendant and without first conducting an evidentiary hearing. There is an essential difference between declining to remove a juror who the defendant has already accepted, and
The defendant had a right to have his fate decided by the particular jurors selected to try him, including Ms. Poole. Therefore, the trial court summarily removing Ms. Poole and stating that she was unfit to continue her service as a juror, absent sworn testimony and outside the presence of the defendant, constituted an abrogation of the defendant‘s fundamental right to a fair trial. For these reasons, I respectfully dissent from that part of the majority opinion finding no error in the juror‘s removal, and I agree with that part of the majority opinion finding the evidence sufficient to support the defendant‘s conviction.