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Name: People v. Morris
Case #: B254910
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/10/2015

Defendant’s right to a fair trial was prejudicially abridged when the trial court allowed a juror who was dismissed during trial to be called as a prosecution witness. A jury convicted Morris of possession of cocaine base for sale. At trial, evidence was admitted that police officers conducted a search of an apartment and drugs and money were found. Morris’ wallet, containing his identification, was also found. A series of text messages discovered on his cell phone indicated he was involved in drug sales. A defense witness, Vinoya, testified the money found in the apartment was hers and that Morris did not live in the apartment. During Vinoya’s testimony a juror told the court he had overheard Morris talking on a phone to a person, who the juror believed was Vinoya, and Morris stated that he had left money for her in a shoebox and that she might have to testify. The juror was dismissed. Over defense objection, the prosecution was allowed to call the juror to impeach Vinoya. On appeal, Morris claimed the trial court erred in allowing the prosecution to call the dismissed juror as a witness. Held: Reversed. A sitting juror may not be called as a witness before the same jury in the trial (Evid. Code, § 704). By its plain language, section 704 does not apply to a juror who has been excused. However, the Sixth Amendment and due process guarantee a defendant a right to a fair trial by an impartial jury. “[A]llowing an excused juror to testify in a case in which he or she had once been a juror creates a constitutionally unacceptable probability that the other jurors who ultimately decide the case may look with favorable bias on the excused juror’s testimony due to their shared jury experience.” (Citing People v. Sanders (1988) 203 Cal.App.3d 1510). Here, the evidence of intent to sell was not overwhelming and the dismissed juror’s impeachment of Vinoya was not harmless beyond a reasonable doubt.