STATE of Louisiana
v.
Wilfred A. SMITH.
No. 66731.
Supreme Court of Louisiana.
September 3, 1980.William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
Edna Sakir Morgan, New Orleans, for defendant-appellant.
PER CURIAM.
In this appeal defendant's principal contention is that he was unable to obtain a fair trial before a jury that was exhausted and frustrated after 12 hours of sequestration between jury selection and commencement of trial.
The record established that the jury was selected at 10:00 a. m., was sequestered while other cases were being tried until defendant's trial began at approximately 10:00 p. m., heard evidence until 12:30 a. m. the following morning, deliberated without reaching a verdict from 12:41 a. m. until 2:46 a. m., was sequestered until deliberations resumed at 10:00 a. m., and then at *802 11:35 a. m. returned a 10 to 2 verdict of guilty of second degree murder. On this record, however, we cannot reach defendant's contention because, although defendant's present counsel asserts that an objection to proceeding under these circumstances was made by defendant's former counsel, the record does not disclose such an objection. The record also does not contain any evidence of complaints and expressions of dissatisfaction allegedly made to the trial judge by individual jurors. The question of whether the trial court's refusal of defendant's request to recess the trial or to declare a mistrial under these circumstances constitutes reversible error cannot be adjudicated until it is determined that such a request was made and refused.
Accordingly, the matter is remanded to the trial court (1) for an evidentiary hearing on whether defendant's attorney objected to proceeding under the circumstances shown in the record, (2) for other relevant evidence bearing on the issue of the fairness of the trial under the overall circumstances, and (3) for reconsideration of the application for new trial in the light of this evidence.
REMANDED FOR EVIDENTIARY HEARING.
BLANCHE and MARCUS, JJ., dissent.
BLANCHE, Justice (dissenting).
I respectfully dissent. No objection was made for reasons best known to trial counsel, and cannot be raised for the first time on appeal.