KIRSCH., J.
Bex contends that her constitutional right to a trial by jury was violated when a jury of only five members determined her guilt. The Sixth Amendment of the federal constitution provides for the right to trial by jury for criminal defendants. The United States Supreme Court, in Duncan v. Louisiana, 391 U.S. 145, 149 (1968), held that the Sixth Amendment right to trial by jury for criminal defendants applied to the states through the Fourteenth Amendment. Article I, section 13 of the Indiana Constitution also secures a criminal defendant’ right to trial by jury but, here, Bex challenges the alleged violation of her right only under the federal constitution.
. . . .
The trial court held a jury trial in this case on May 28, 2010. A jury of six members was seated without an alternate juror being selected. . . . .
. . . .
During the State’s presentation of its case-in-chief, juror number two suffered a medical emergency. After taking a recess, the trial judge went back on the record and stated that previously the court, the State, and the defense counsel, in a sidebar conference, had agreed that no alternate juror would be picked and that if something happened to one of the jurors, the five remaining jurors would decide the case. The sidebar referred to by the trial judge was an unrecorded sidebar; however, defense counsel acknowledged on the record the accuracy of the trial court’s statement of the agreed procedure. After the trial judge’s statement, the court recessed for lunch. Upon reconvening, defense counsel moved for a mistrial based upon his uncertainty that his agreement to a five-member jury was valid. The trial court denied the motion, and the trial continued. The five remaining jurors deliberated and returned a guilty verdict to the charge of operating a vehicle while intoxicated in a manner endangering a person, a Class A misdemeanor.
. . . .
It has long been held in this state that, under the Sixth Amendment, a defendant may waive the statutory right to a twelve-person jury and consent to a trial by an eleven-person jury. See Smith v. State, 176 Ind. App. 37, 39, 373 N.E.2d 1112, 1113 (1978) (although statute provided for jury of twelve members, such provision is primarily for protection of defendant and thus defendant may waive requirement of twelve-member jury and consent to be tried by jury of eleven members). We now take up the question of whether, under the Sixth Amendment, a defendant may waive his or her statutory right to a six-person jury and agree to be tried by a jury of five members.
Bex asserts that a defendant may not waive his or her right to a six-member jury. In support of her argument that her constitutional right to a jury trial was violated in this case, Bex relies on Ballew v. Georgia, 435 U.S. 223 (1978). In that case, the United States Supreme Court addressed the constitutionality of a Georgia statute providing for five-person juries in certain types of cases. The Court examined scholarly studies on jury size and raised several concerns about juries containing less than six members. Those concerns include: smaller juries are less likely to foster effective group deliberation; the risk of convicting an innocent person rises as the size of the jury diminishes; the verdicts of jury deliberation in criminal cases will vary as juries become smaller, to the detriment of the defense; the opportunity for meaningful and appropriate representation of a cross-section of the community decreases with the size of the panel; and there exist methodological problems that tend to mask differences in the operation of smaller and larger juries. Id. at 231-39. Based upon its application of the factors identified in the studies, the Court determined that Ballew’s criminal trial before a five-member jury deprived him of the right to trial by jury as guaranteed by the Sixth Amendment.
We disagree with Bex’s claim that the rationale set forth in Ballew should be applied here because Ballew is distinguishable from the present case. In Ballew, the five-member jury was mandated by a state statute. In contrast, in the instant litigation Bex was provided with the statutory right to a six-person jury. [Footnote omitted.] Her trial began with six jury members and, due to a medical emergency, one member was excused from service. A five-member panel was not legislatively imposed upon Bex, thereby affording her the opportunity to decline the service of a panel made up of less than six members. Moreover, in deciding proceed without an alternate, Bex knew the six jurors she was getting and elected to proceed in the event one could not serve; the defendant in Ballew did not know the jurors and made no such election. Thus, we see an important distinction between the situation in Ballew, where the law mandated a five-member jury, and the present situation, where the law provides for a six-member jury, but the defendant chooses to waive that right and accept less than the law provides.
. . . .
Moreover, six is not viewed as a magic number but merely the boundary at which courts across the country have drawn a line in defining the size of a jury that must be provided to a defendant in certain cases. See Ballew, 435 U.S. at 231-32; Blair, 698 So.2d at 1216. 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. Blair, 698 So.2d at 1217. 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.
. . . .
In sum, the case law reflects that under the Sixth Amendment, a defendant is entitled to a jury comprised of at least six members, as a five-member jury imposed on a defendant does not pass constitutional scrutiny. Williams, 399 U.S. at 91 n.28; Ballew, 435 U.S. at 239. However, a defendant can consent to a trial by fewer jurors than assured him by statute, and that decision is one of trial procedure. As such, a defendant who consents to representation by counsel consents to his counsel’s decisions on trial strategy. Unless, the defendant objects to his counsel’s decisions, he is bound by those decisions. Thus, counsel’s consent to or acceptance of a jury comprised of fewer members than provided for by statute, is a valid consent of the accused in the exercise of trial strategy. We find no error here.
MATHIAS, J., concurs,
SULLIVAN, Sr.J., concurs in part and dissents in part with separate opinion:
I concur in the first portion of the majority’s opinion as to Part I, Right to Jury Trial. I respectfully dissent, however, with regard to the majority’s holding that the waiver by counsel, rather than by the defendant herself, was effective and binding upon the defendant.
Further, I respectfully disagree with the decision reached by a panel of this Court in Judy v. State, 470 N.E.2d 380 (Ind. Ct. App. 1984). More particularly, I am unable to agree with the implication of that opinion, as adopted by the majority in the case before us, to the effect that consent not by the defendant but rather by counsel to a trial by a jury of fewer than six persons does “not involve a fundamental right [of the defendant]” and that it is “merely a matter of trial procedure.” Id. at 382.