A man who sought to appeal his burglary conviction and 12-year prison sentence on the grounds that a juror slept through part of his trial cannot do so, the Colorado Supreme Court ruled Monday.
The justices unanimously found that Elliott Forgette, 37, cannot pursue an appeal over the snoozing juror because his public defenders failed to object to the catnapper during the jury trial and therefore waived the issue, according to the court’s 20-page opinion.
“Merely calling an issue or fact to the court’s attention, without asking for any relief, is insufficient to preserve an issue for review,” Justice Richard Gabriel wrote for the court.
Forgette was arrested in 2014 and charged with second-degree burglary after a Denver couple returned home to find him leaving their just-burglarized home. During Forgette’s jury trial, one juror fell asleep during the presentation of evidence at least twice.
Court transcripts show that defense attorneys and prosecutors discussed the dozing juror in sidebars, but defense attorneys did not ask that the juror be replaced or seek any other remedy from the judge, aside from immediately waking the juror up. An alternate juror already had been dismissed due to a scheduling conflict.
“I’ve been trying to keep an eye on him, and I certainly have tapped the microphone, which usually works,” the judge told attorneys at the time.
Forgette argued to the state Supreme Court that the sleeping juror deprived him of his right to be tried by a jury of 12 — with the juror’s dozing essentially creating a jury of 11 — but the justices rejected that argument.
“Forgette was tried by a jury of twelve, and those twelve jurors, including Juror Number Seven, unanimously voted to convict him of the felony with which he was charged,” Gabriel wrote.
The issue of sleeping jurors has come up before in Colorado court cases. In 2014, jurors at the trial of sniper Bruce Nozolino were sent home early because one of them could not stay awake. That trial later continued and Nozolino was convicted.
The issue was also raised during the 2015 jury trial for the Aurora theater shooter, though the juror in question said she hadn’t been sleeping but instead closing her eyes to block blowing air from a vent.
Former Rocky Ford police officer James Ashby sought a new trial after his conviction for killing a man in a police shooting on the grounds a juror slept during the trial. He did not receive a new trial.
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