Brief Bank # 913 (Re: NCJIC 300.24.3 [Presumption Of Prejudice From Absence Of Judge].)
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IX
PREJUDICIAL ERROR OCCURRED WHERE THE TRIAL JUDGE WAS OBSERVED TO BE FALLING ASLEEP DURING PORTIONS OF THE TRIAL BECAUSE IT WAS THE FUNCTIONAL EQUIVALENT OF THE JUDGE BEING ABSENT DURING THE TRIAL
During petitioner’s trial, the judge was observed to be "nodding off" or sleeping during portions of the testimony. The fact that the trial judge fell asleep during the trial is also the functional equivalent of the judge being absent during the trial. By falling asleep the trial judge is not mentally present to maintain judicial control over the trial process. The trial judge has a duty to be present and control the trial process. Riley v. Deeds (1995) 56 F.3d 1117; citing Brown v. State (1989) 538 So.2d 833, and Glee v. State (1994) 639 So.2d 1092.) Furthermore, following conviction the trial judge sentenced petitioner to consecutive sentences following a trial where he was absent for portions of the proceedings. The trial judge’s presence and attention was required during all the trial proceedings in order for him to subsequently make a fair and informed decision during the sentencing phase of the case. In Riley v. Deeds (1995) 56 F.3d 1117, the trial judge was not present during the read back of a victim’s testimony to the jury. Finding this to be prejudicial error requiring reversal, the court stated:
"A conviction obtained after a proceeding in which no judge presided and no judicial discretion was exercised is ‘abhorrent to democratic conceptions of justice.’[Citation Omitted.]" (Id. 56 F.3d 1120.)
In the present case, the napping of the trial judge violated petitioner’s right to a fair trial and due process under the state and federal (6th and 14th Amendment) Constitutions.
The petition contains the declarations of five persons who observed the trial judge fall asleep during the trial proceedings. (See Exhibits 8-12.) The failure of the trial judge to stay awake for the entire trial was prejudicial error.
Also, due to the limitations placed on defendant by C.C.P. §206 and C.C.P. §237, as well as his own indigency and the lack of appointed counsel (see Exhibit 17), petitioner has been unable to fully investigate this claim and determine its merit.
Therefore, petitioner should be given an opportunity to investigate the claim as requested in paragraph XVII of the petition.