Constitutional Law; Jury_trial by twelve person jury_seating of alternate juror
A defendant was entitled to a new trial where a juror was replaced by an alternate juror
after deliberations were begun, which resulted in a verdict by more than twelve people. N.C.
Const. art. I, § 24.
Attorney General Roy Cooper, by Assistant Attorney General
Michael D. Youth, for the State.
Michelle FormyDuval for defendant-appellant.
ELMORE, Judge.
Jeffrey W. Hardin (defendant) appeals from judgments entered
upon jury verdicts finding him guilty of conspiracy to commit
breaking, entering and larceny; felonious breaking and entering;
felonious larceny; and being a habitual felon. For the reasons
stated herein, we conclude that defendant is entitled to a new
trial.
The evidence presented at trial tended to show that in the
early morning hours of 24 May 1999 Officer John Simmons (Officer
Simmons), then a Robeson County sheriff's deputy, responded to a
call concerning a possible break-in at a mobile home. Officer
Simmons testified that when he arrived at the scene, two males,
later identified as Montray Howell and Harley Chavis, emerged fromthe mobile home and fled on foot. Officer Simmons then observed a
pickup truck parked in the mobile home's back yard with its lights
off, the tailgate down, and a refrigerator in its bed. A moving
dolly lay on the ground beside the truck. Defendant was standing
at the rear of the pickup, and Wanda Chavis was sitting in the
passenger seat. After placing defendant and Wanda Chavis under
arrest, Officer Simmons discovered the mobile home's sliding rear
glass door had been broken out and that the refrigerator appeared
to have been removed from inside.
Detective Sterile Little (Detective Little) of the Robeson
County Sheriff's Office testified that he interviewed defendant
following defendant's arrest. Defendant, who is blind, told
Detective Little that someone had come by defendant's house
offering to sell defendant a refrigerator for $100.00 worth of
crack cocaine. Defendant, believing he could turn around and sell
the refrigerator for $400.00, arranged for Wanda Chavis, Howell,
and Harley Chavis to assist him in picking up the refrigerator
later that night. Detective Little testified that the plan was for
Howell and Harley Chavis to go to the mobile home and remove the
refrigerator, while defendant and Wanda Chavis were to arrive
shortly thereafter with the truck.
Jacqueline Thompson (Thompson) testified that on 24 May 1999
she owned the mobile home in question, though it was unoccupied at
the time. She testified that she had not given anyone permission
to enter the mobile home or to remove the refrigerator, and that
she did not know defendant, Wanda Chavis, Harley Chavis, or Howell. After the trial court denied defendant's motion to dismiss and
instructed the jury, the jury began its deliberations. The
transcript reveals that the trial court, after stating “I don't
like to release alternates until I get a verdict,” failed to
release the lone alternate juror prior to submitting the case to
the jury. The jury failed to return a verdict before the evening
recess. The next morning, one of the jurors was dismissed after
disclosing that she had discussed the case with a friend the
previous evening. The trial court then stated as follows:
Good morning Ladies and Gentlemen of the jury. Due to
circumstances beyond our control, we have lost . . .
[juror] number 12. Which means [alternate juror], see
why I had you stick around. . . . You now become juror
number 12. And will join your fellow jurors in
deliberation in this case. . . .
The jury, with the alternate taking the dismissed juror's place,
resumed deliberations and thereafter returned verdicts convicting
defendant on all four charges. The trial court imposed sentences
of 125-159 months for each conviction, with the sentences to run
concurrently. Defendant appeals.
By his first assignment of error, defendant contends the trial
court committed reversible error by replacing a juror with the
alternate juror after deliberations had begun. We agree.
In the present case, we are bound by our Supreme Court's
decision in State v. Bunning, 346 N.C. 253, 485 S.E.2d 290 (1997).
In Bunning, the jury began its capital sentencing deliberations in
the afternoon and continued until the evening recess. The next
morning, one of the jurors said she could not continue with the
trial because she was a manic-depressive and asked to be excused.
The court removed this juror, replaced her with an alternate, andinstructed the jury to begin its deliberations anew. The jury then
recommended the death penalty. In holding that the defendant was
entitled to a new capital sentencing proceeding, our Supreme Court
stated as follows:
. . . Article I, Section 24 of the North Carolina
Constitution, which guarantees the right to trial by
jury, contemplates no more or less than a jury of twelve
persons.
In this case, the jury verdict was reached by more than
twelve persons. The juror who was excused participated
in the deliberations for half a day. We cannot say what
influence she had on the other jurors, but we have to
assume she made some contribution to the verdict. The
alternate juror did not have the benefit of the
discussion by the other jurors which occurred before he
was put on the jury. We cannot say he fully participated
in reaching a verdict. In this case, eleven jurors fully
participated in reaching a verdict, and two jurors
participated partially in reaching a verdict. This is
not the twelve jurors required to reach a valid verdict
in a criminal case. . . . If alternate jurors must be
discharged when the case is submitted to the jury, they
cannot be substituted for jurors who subsequently become
incapacitated.
Bunning, 346 N.C. at 256, 485 S.E.2d at 292; see also N.C. Gen.
Stat. § 15A-1215(a) (2001) (“Alternate jurors receive the same
compensation as other jurors and, unless they become jurors, must
be discharged upon the final submission of the case to the jury.”)
In the present case, as in Bunning, the trial court replaced
a regular juror with an alternate after deliberations had begun,
which resulted in a jury verdict reached by more than the
constitutionally-mandated twelve persons. Moreover, we cannot
employ a harmless error analysis here, and the fact that defendant
did not object to substitution of the alternate juror is of no
consequence, because “[a] trial by a jury which is improperlyconstituted is so fundamentally flawed that the verdict cannot
stand.” Bunning, 346 N.C. at 257, 485 S.E.2d at 292.
Because we hold that defendant is entitled to a new trial, we
need not address defendant's remaining assignments of error.
New trial.
Judges TIMMONS-GOODSON and HUDSON concur.
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