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James v. State3/26/2003
We affirm James' convic tion and sentence for first-degree murder and attempted robbery with a firearm. The principal issues on appeal arise out of the seating of a juror with a name similar to the juror actually selected.
Upon the completion of voir dire, the venire was excused from the courtroom and twelve jurors, including Robert Burns and two alternate jurors, were selected. The court deputy called out the names of those selected. Among those called to return to the courtroom was "Mr. Burns;" however, another juror, Frederick Burtz, responded. Those not selected were excused. Robert Burns excused himself as well. Before the jury was sworn, each member stated his or her last name. The transcript indicates that Mr. Burtz said the name "Burns." Defense counsel agreed, on the record, that the people who had been called accounted for the entire jury.
Following the verdict, discharge of the jury, and sentencing, the court was informed by jury administration that, although Robert Burns appeared in their records as being a juror, Frederick Burtz had actually served on the jury throughout the trial.
Defense counsel made an ore tenus motion for new trial, arguing that Frederick Burtz, as an unauthorized person, had contaminated the jury. He further argued that he would never have selected Burtz to serve on the jury. The court conducted a hearing on the motion.
Not much information was learned from either Burns or Burtz in voir dire. The transcript reflects that Burns was single, employed, had no children, had never been involved in a lawsuit, did not have friends or family in law enforcement, and had never been a juror. He had been arrested twenty years ago for driving under the influence . He believed the court system had treated him fairly after his arrest and that the experience would not affect his ability to be a fair juror.
Fred Burtz had never been arrested, worked at a supermarket, and was married with two adult children. He had never been involved in any lawsuits, did not know of any family members or friends in law enforcement, and had never been a juror. Burtz was briefly questioned as follows:
[STATE]: How about Mr. --is it Burtz?
[JUROR BURTZ]: Yes, sir.
[STATE]: Somebody had been arrested in your family?
[JUROR BURTZ]: No, sir.
[STATE]: Couldn't hear you all the way back over here. Could you be a fair juror in this case?
[JUROR BURTZ]: I will do my best.
[STATE]: Do you want to be a juror?
[JUROR BURTZ]: Not particularly, but I will try.
[STATE]: I don't think anybody really wants to be a juror. It's kind of a silly question, isn't it. If you had to be, you could make sure that you would return a verdict that is justice?
[JUROR BURTZ]: Yes.
During the hearing on James' motion for new trial, Frederick Burtz was questioned by the court as to how he had come to serve on the jury. Burtz explained that he thought he had heard his name called. Burtz denied having the intent to pass himself off as Robert Burns and, in fact, claimed he had not even been aware that there had been a "Burns." Burtz told the court that, prior to deliberating, he had advised one of the bailiffs that his name was "Burtz" because he believed it was being mispronounced in court. He also notified the bailiff that the spelling of his name on the seating chart was incorrect.
The bailiff testified that he checked the list where the jurors had written down their names and phone numbers and, believing the misspelling to be his error, changed the name from Robert Burns to Robert Burtz. He did not bring it to
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