United States v. Beasley
| Decision Date | 05 September 1972 |
| Docket Number | No. 71-1693 to 71-1697.,71-1693 to 71-1697. |
| Citation | 464 F.2d 468 |
| Parties | UNITED STATES of America, Appellee, v. Robert Fulton BEASLEY, Jr., et al., Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
W. R. Cathcart, Oklahoma City, Okl. (Don Manners and Dave Spradling, Oklahoma City, Okl., on the brief), for appellant, Robert Fulton Beasley, Jr.
George M. Ablah, Oklahoma City, Okl., for appellants, Ronald Gentry, Herman Mose Jones, Dave Green, and Ernest Eugene Bates.
Floy E. Dawson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the brief), for appellee.
Before PHILLIPS, SETH and McWILLIAMS, Circuit Judges.
This is a direct appeal from a conviction under 21 U.S.C. § 174.
The trial to a jury was concluded, the jury was instructed, and it retired to deliberate. As it retired an alternate juror went along with the twelve jurors to the jury room. She participated in the vote to select a foreman, and voted to go to lunch. She was with the jury about twenty minutes after it retired. The court then realized that the alternate had not been discharged. Court was reconvened and the attorneys were advised that the alternate had retired with the twelve. Motion was made for a mistrial. The court then held a brief hearing to determine the extent the alternate had participated. At the conclusion of this hearing the motion for mistrial was denied.
This appeal raises the issue as to the thirteenth juror, and several other issues relating to the arrests and searches.
The issue considered first relates to the presence of the alternate juror in the jury room. The authorities on this point present two alternatives: (1) The trial court should attempt to evaluate the testimony of the jurors or some of them at a hearing to decide whether the alternate juror's participation exceeded some defined standard or extent; or (2) the inclusion of the alternate in any proceeding commenced by the jury itself after it retires to deliberate is ground for a mistrial. We are of the opinion that the basic sanctity of the jury's own proceedings together with the complications and dangers which arise from a hearing as to the deliberations of the jury and the participation by the alternate dictate that the second of the above alternatives be followed.
When the case was submitted and the jury retired to deliberate, it then, with the selection of the foreman or with any other act to organize or plan the deliberation, began its own proceedings. Once these proceedings commenced, "the jury" consisted only of the prescribed number of jurors. The alternate then became as any other stranger to the proceedings regardless of whether she had been discharged. Thus the alternate juror was as any other outsider would be when she continued to sit with the jurors as they began their own proceedings. It is apparent that this alternate, up until the critical time, was just as qualified to sit in deliberation as was any other juror, but this qualification ceased whether or not she was discharged under Rule 24 of the Federal Rules of Criminal Procedure.
There is important authority which holds that if an alternate retires with the jury, the consequences of the error caused thereby will be examined to determine whether any prejudice to the defendant has been shown. Under this procedure a hearing is held and the jurors, or some of them, are questioned to see how far their deliberations had progressed and how the alternate juror had participated therein. This is to see if the defendant was "prejudiced." In these circumstances it is difficult to see how a test of "prejudice" can be applied. The alternate was fully qualified to participate as were the others, she had been instructed with the others, and her participation can hardly be considered "prejudicial." Perhaps an attempt could be made to show the juror attempted to influence others by expressing an opinion or conclusion, but again this is not related to "prejudice." The borrowing of a "prejudice" standard from other constitutional situations does not seem to provide an appropriate standard or test.
Once the prescribed number of jurors becomes "the jury," then, and immediately, any other persons are strangers to its proceedings. Their presence destroys the sanctity of the...
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State v. West, No. 16627.
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