Alcalde v. State
| Decision Date | 22 August 2003 |
| Docket Number | No. 01-188.,01-188. |
| Citation | 2003 WY 99,74 P.3d 1253 |
| Parties | Diego ALCALDE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.
Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Nancy D. Conrad, Student Intern. Argument by Ms. Conrad.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
[¶ 1] Diego Olmos Alcalde (Alcalde) appeals his conviction for kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201(a)(iii), (b)(i) and (c). Alcalde claims error in the substitution of an alternate juror after deliberation had commenced and challenges the constitutionality of the kidnapping statute, § 6-2-201, alleging it is unconstitutionally vague, both facially and as applied in this case. We reject Alcalde's claims that § 6-2-201 is unconstitutional. However, we conclude that the substitution of the alternate juror after deliberations had begun constituted prejudicial error. Accordingly, we reverse Alcalde's conviction and remand for a new trial.
[¶ 2] Alcalde frames his two issues on appeal as follows:
The State sets forth the issues before us in the following language:
I. Did the district court commit reversible error when it substituted an alternate juror for a regular juror after deliberations had begun?
II. Is Wyo. Stat. § 6-2-201 constitutionally vague, either facially or as applied to [Alcalde's] conduct?
[¶ 3] Early on the morning of August 10, 2000, Alcalde followed a young woman to her apartment parking lot. After parking his car in such a way that she could not move her vehicle, Alcalde approached her under the guise of being lost. The woman remained sitting in her car but with her legs out the open driver's side door. While the woman was attempting to give Alcalde directions, he lunged and pinned her inside the car. Alcalde began choking her, which prevented her from crying out. The woman was, however, able to reach the car horn and sound it twice. Complaining that she "just had to do that," Alcalde forced the woman out of the car and dragged her about 15 to 20 feet to a privacy fence. After approximately a minute, Alcalde abruptly stopped the assault and returned to the apartment parking lot where he was confronted by the victim's brother and sister, who had come out of their apartment upon hearing the car horn. Meanwhile, the victim had come back around the fence whereupon she cried for help. The victim's father, who had just come out of the apartment, chased after Alcalde, who managed to get into his car and escape the scene. Alcalde was apprehended shortly thereafter by the police and identified as the assailant by the victim, her brother, and father.
[¶ 4] Alcalde was charged with one count of kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201(a)(iii), (b)(i) and (c) (LexisNexis 2003).1 The matter went before a jury for trial and after the parties had presented their closing arguments, the district court dismissed the alternate juror:
During deliberations, the jury sent a series of notes requesting clarification of the terms "vicinity" and "confined" as used in the kidnapping statute and whether or not a verdict had to be unanimous. After consulting with counsel for both parties, the court sent a stipulated reply to the jury:
The court excused the jury over defense's objection when a verdict had not been reached by the end of the first day of deliberations.
[¶ 5] The next morning, the court was notified that a juror sought to be excused from the panel for medical reasons. A conference was held in chambers with the court, counsel for both parties, and the juror. The juror's doctor appeared by phone. After the court and the parties' counsel questioned the juror and his doctor, the court dismissed the juror because of a serious medical condition. The court then indicated that the dismissed juror would be replaced with the alternate juror, who was called into the conference. Defense counsel objected to replacing the excused juror with the alternate but the court overruled him. The alternate was questioned as to whether or not he had discussed the case with anyone since his dismissal the day before. After satisfying itself that he had not discussed the case, the district court directed the alternate to join the jury, which would continue its deliberations. Approximately 50 minutes later, the jury delivered a guilty verdict.
[¶ 6] Initially, Alcalde contends that a district court lacks the authority to substitute an alternate juror for a regular juror once deliberations have commenced. Pursuant to W.R.Cr.P. 24(e), Alcalde argues that it is mandatory for the district court to discharge any alternate jurors when the jury retires to consider a verdict. In an alternative argument, Alcalde contends that even if an alternate juror can be substituted for a regular juror after deliberations have begun, the district court in this case failed to take adequate procedural safeguards to protect the deliberative process.
[¶ 7] We begin our analysis with the language from the relevant portion of W.R.Cr.P. 24(e) (emphasis added):
Alternate jurors.—The court may direct that not more than six jurors in addition to the regular jury be called and impanelled [sic] to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled, two peremptory challenges if three or four alternate jurors are to be impanelled, and three peremptory challenges if five or six alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror.
Alcalde cites the use of the mandatory word "shall" to support his contention that an alternate can only replace a regular juror prior to the time the jury retires to deliberate and that once the jury does retire, the alternate must be discharged.
[¶ 8] Prior to 1999 the corresponding federal rule was identical to Wyoming's. See Fed.R.Crim.P. 24(c) (1999). In those circumstances, we have generally looked to federal case law for guidance in the interpretation of the rules of criminal procedure. Brock v. State, 981 P.2d 465 (Wyo.1999). The federal courts adopted the view that the substitution of an alternate juror during mid-deliberations violated the plain language of the rule. United States v. Quiroz-Cortez, 960 F.2d 418, 420 (5th Cir.1992). However, the federal courts applied a harmless error standard and would reverse a conviction only if the defendant had suffered prejudice by the substitution. Id. The federal appellate courts evaluated prejudice to the defendant by examining, "among other things, the length of the jury's deliberations before and after substitution of the alternate and the district court's instructions to the jury upon substitution charging the jury to begin its deliberations anew." Id. (citing United States v. Phillips, 664 F.2d 971 at 995-96 (5th Cir.1981)). Consideration was also given to whether or not the trial court had ensured that the alternate juror had not discussed the case with anyone nor been exposed to extrinsic information about the case in the...
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