State v. Bunning

• Decision Date: 06 June 1997
• Docket Number: No. 403A92-2,403A92-2
• Citation: 346 N.C. 253,485 S.E.2d 290
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Robert Earl BUNNING.

Page 290

485 S.E.2d 290

346 N.C. 253

STATE of North Carolina v. Robert Earl BUNNING.

No. 403A92-2.

Supreme Court of North Carolina.

June 6, 1997.

Michael F. Easley, Attorney General by Barry S. McNeill, Special Deputy Attorney General, for the State.

Walter L. Jones, Greensboro, for defendant-appellant.

WEBB, Justice.

The defendant has brought forward seven assignments of error. We shall discuss two of them. The defendant first assigns error to the court's substitution of an alternate juror for a juror who was excused after the jury had begun its sentencing deliberations. We believe this assignment of error has merit.

The jury began its deliberations shortly after lunch and continued until the evening recess. The next morning, one of the jurors asked to be excused because she said she was a manic-depressive and could not continue with the trial. The court removed this juror and replaced her with an alternate. The court instructed the jury to begin its deliberations anew. The defendant says this was error.

This case brings to the Court the question of whether an alternate juror may be substituted for a juror after deliberations have begun in a sentencing hearing. It is a question of first impression in this jurisdiction, but we have other cases dealing with the subject of alternate jurors which give us guidance. In State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975), we held that it was error for an alternate juror to be in the room with the jury when the members of the jury were deliberating, and such an error cannot be harmless. We said, relying on State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971); State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934); Whitehurst v. Davis, 3 N.C. 113 (1800) (per curiam); State v. Alston, 21 N.C.App. 544, 204 S.E.2d 860 (1974), that 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.

The statutes dealing with jurors in criminal cases do not deal specifically with the question of substituting an alternate for a juror, but we believe they show that it cannot be done after jury deliberation has begun at the sentencing hearing. N.C.G.S. § 15A-1215(a) provides in part: "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." N.C.G.S. § 15A-1215(a) (1988). If alternate jurors must be discharged when the case is submitted to the jury, they cannot be substituted for jurors who subsequently become incapacitated.

N.C.G.S. § 15A-1215(b) provides in part that in capital cases: "The alternate jurors shall be retained during the deliberations of the jury on the issue of guilt or innocence under such restrictions, regulations and instructions as the presiding judge shall direct." N.C.G.S. § 15A-1215(b). If the alternate jurors must be released when the penalty phase begins, as the statute implies must be done, they cannot sit as jurors at the penalty phase of the trial.

N.C.G.S. § 15A-2000(a)(2), which deals with capital trials, provides in part:

If prior to the time that the trial jury begins its deliberations on the issue of penalty, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel.

N.C.G.S. § 15A-2000(a)(2) (1988) (amended 1994). If an alternate juror can become a part of the jury only before the jury begins its deliberations on the penalty phase of the trial, the alternate cannot be substituted after the jury begins its deliberations.

These three sections clearly show that the General Assembly did not intend that an alternate can be substituted for a juror after the jury has begun its deliberations.

The State contends these three sections do not proscribe the substitution of an alternate juror during jury deliberations in a capital sentencing hearing. It says that they show that the General Assembly contemplated such a substitution. The State argues first that N.C.G.S. § 15A-1215(a), which provides that alternates "must be discharged" when the case is finally submitted to the jury, does not apply to capital cases. N.C.G.S. § 15A-1215(b) and N.C.G.S. § 15A-2000(a)(2), which deal with capital cases, do not have this provision, and the State contends this makes the legislative intent ambiguous. It says that the ambiguous sections can be construed to authorize the action which was taken in this case. We see no reason why N.C.G.S. § 15A-1215(a) should not apply to capital cases. The section does not so limit itself, and it is not inconsistent with the other two sections, which deal specifically with capital cases. Assuming N.C.G.S. § 15A-1215(a) does not apply to capital cases, the other two sections, for reasons we have set forth in this opinion, show that the legislative intent is that an alternate juror cannot be substituted...