A case involving a juror who dozed off during a criminal defense lawyer's closing argument produced a sharply divided decision by the Hawai'i Supreme Court yesterday.

Kaleokalani Yamada was convicted of first-degree robbery and first-degree assault in 2003, but Circuit Judge Michael Town granted a defense request for a new trial after finding that a juror had slept for about 12 minutes or about 20 percent of the defense attorney's final argument.

In a 3-2 decision, the high court overturned Town's decision, reinstated the convictions and sent the case back to the lower court for sentencing.

Chief Justice Ronald Moon, who wrote the majority decision, said the juror breached his duty of paying attention and was guilty of juror misconduct, but not all misconduct by a juror should result in a mistrial.

The majority opinion said it agreed with the prosecution that the misconduct was "harmless beyond a reasonable doubt." The prosecution had contended the juror did not sleep during testimony and the judge's instructions on the law and what the juror missed was not significant.

"There is nothing in the record to suggest that he was unable to fully participate in jury deliberations," the majority said.

Moon was joined by associate justices Steven Levinson and Paula Nakayama.

Associate Justice Simeon Acoba dissented, saying, "A slumbering juror is not a competent one."

Acoba said the court should not establish a precedent that sleeping through 20 percent of a defendant's final address to the jurors is "legally sustainable."

Associate Justice James Duffy filed a separate dissent. He said the majority was essentially substituting its judgment for that of the trial judge who heard the entire case, questioned and evaluated the juror and concluded that the defendant was entitled to a new trial. Duffy said he would have affirmed Town's ruling.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.