court the eleven member jury issue but we tore i start with that we did commit a twenty eight j letter regarding castro in blakely and if this court is not inclined to reverse on the jury one yes i don't really care if he was sleeping the whole time i mean this courthouse court has found it when the attorney is missing the whole time he's not incompetent what is happening here positive thing in general but it is a right if it's like in a debate when you when you're the positive sag you've got certain things when you're on the negatives that are you got to is just prove one of their things when when the jury found out that he was prejudiced towards indeterminate an imprecise answer this and a lot out of the to the judge this says he slept through a fair amount of the trial and the sides he's formed some judgment on the case cannot is the judge required to keep that judgment letters question which was what happens when we have when we have in the mind of the jury may have two different sets of motivation that we may have jurors who are purely upset over the question of him sleeping and other jurors who are thinking to themselves if we get rid of this guy to convict i think to convict mr burgess of being an experiment he admitted it and selling the guns to the undercover agent ok and he correct probably this year is that yeah they've done that but also i listened on day three when perry got court itself been more diligent might have a motive inquiry before deliberations had occurred that being at one instance i think there was an audible snort from the direction of the jury box but the court  of the jurors the sleeping in the court immediately took a break ins in order to allow the jury to stand stretch their legs and try and come back and be able to focus more that's a third event that identified by the trial court is as the juror jerseys have been instructed and have been released to go their deliberations i believe two to one identify jurors two jurors mentioned to the clerk of the courts that they were concerned that juror number six had been sleeping but at that point i don't think it was unreasonable for the court to take no action because you have no indication whatsoever about the extent you know personal and indication of the extent of that there is impairment at that particular point in time was only after the note came from the jury panel that have been sleeping but but the note from the jury is only objecting to one the one who has a quick verdict well i think the difference in hypotheticals if a man or stan crackly is at one point it was really subjective speculation as to why the jurors were bringing this florida and in your hypothetical as you stated that because this is the jur hypothetical that the tickle that you are constructing you are moving it further and further to the side where it would be most appropriate for the trial court to find that the motivation articulated by the jury is so clearly connected  fell on his way back to the deliberation chamber his head has total amnesia about what he heard and his only relying on the evidence that the jury's relaying turned second hand but it's still the lone holdout i don't know that the court would have then after the verdict as you turn so you know we have listed plea which i think most likely will happen in a case where you've got a sleeping juror and this may or may not have happened in this case it strikes me as realistically what's most likely going to be the case is that the jurors are not going to start kind of get rid of somebody who's been sleeping and hell for some reason that joran becomes a problem if the jury just kind of sits there and says yeah yeah ok i'm home with you and so on i suspect that in most instances we're not going to hear from the jury that we've got a sleeping juror are until well he's got a prejudice toward mr perry or of how what a rose from when the court interviewed the jurors is that it seems to me the frustration at least the initial juror and not juror number six but the first person who signed the note that was interviewed by the court it looks to me like for a period of time when they heard the first no jurors were doing what they do which is trying to analyze the evidence in terms of how they feel about it and then as they're getting that clear in their perspective heads that clarity is not all the time there's some other reason behind why jersey find reasons once deliberation starts to bring up issues like this then we would have a rule that that's not automatic mistrial the court finds that those things in fact is this but that's not what rule twenty three b jurors was sleeping but he said he did not know who it was and this also was not communicated to the parties and i think that's because it wasn't seen as significant at the time and the third thing is that the court three times that making its determination