A panel of Indiana Court of Appeals judges split on the issue of whether a defendant agreed to allow a five-member jury to decide her case after one juror fell ill, with the dissenting judge believing the defendant – not her counsel – must consent to the five-person jury.

Robbie Bex was charged with Class A misdemeanor operating while intoxicated endangering a person following a car accident as she attempted to leave her employer’s parking lot after work. Six jurors were seated for her trial without an alternative chosen. During trial, one juror had a medical emergency, and the case proceeded to verdict with only five members. Counsel previously had consented to this, but later moved for a mistrial. Bex was convicted and ordered to 360 days in jail with 350 days suspended to probation and 80 hours of public restitution work.

In Robbie J. Bex v. State of Indiana, No. 53A01-1008-CR-422, Bex claimed her constitutional right to a trial by jury was violated since only five jurors determined her guilt. The appellate court decided that under the Sixth Amendment, a defendant may waive his or her statutory right to a six-person jury trial and agree to be tried by a jury of five members. Bex had a statutory right to a six-person jury and was able to decline the service of a panel made up of less than six members, wrote Judge James Kirsch. She also knew that no alternative juror was selected so there could be a possibility that only five people would decide her case.

“We agree with the reasoning of the Florida Supreme Court that, based upon a defendant’s right to waive the presence of an entire jury, it would be inconsistent to hold that a defendant could not waive the presence of one juror,” wrote Judge Kirsch. “Therefore, we conclude that there is no federal constitutional bar to a defendant’s waiver of the presence and participation of one of the six jurors in a criminal trial.”

The majority found a defendant can consent to a trial by fewer jurors than assured to her by statute and that decision is one of trial procedure. A defendant who consents to representation by counsel consents to his or her counsel’s decision on trial strategy. Bex didn’t object to her attorney’s agreement to proceed without an alternative juror or with the five-member panel, so she is bound by those decisions, wrote the judge.

Senior Judge Patrick Sullivan dissented on this point, believing Bex herself had to waive her right, not her attorney. He said based on the record, it appeared Bex was present in the courtroom during the attorneys’ sidebar with the trial judge regarding the number of jurors, but she was not a party to it. There’s a possibility she wasn’t privy to her counsel’s stipulation of waiver of her right because she wasn’t present in the courtroom in order to have the opportunity to object, he wrote. Based on this, her conviction should be reversed.

The majority also concluded the trial court didn’t abuse its discretion by imposing a public defender fee as a condition of probation without first holding a hearing on Bex’s ability to pay because the fees were not due until after she completed the executed portion of her sentence. The majority also affirmed the order that she complete 80 hours of public restitution.