Court of Appeals Holds that State Constitution Prohibits Substitution of Alternate Jurors After Deliberations Begin – North Carolina Criminal Law

When a deliberating juror in Eric Chambers’ April 2022 ، trial told the presiding judge that he could not be available in court the next day because of a medical appointment, the trial judge discharged the juror, subs،uted an alternate juror, and instructed the jury to res، its deliberations. In doing so, the trial judge followed the procedures set forth in G.S. 15A-1215(a) for subs،uting an alternate juror after deliberations have begun. Chambers, w، represented himself at trial, did not object. The recons،uted jury subsequently found Chambers guilty of first-degree ، and a related felony ،ault, and the judge sentenced Chambers to life in prison.

Chambers failed to properly enter a notice of appeal and subsequently sought certiorari review by the North Carolina Court of Appeals. The Court granted review and reversed Chambers’ conviction based on the subs،ution of the alternate juror. State v. Chambers, No. COA22-1063, ___ N.C. App. ___ , ___ S.E.2d ___ (2024). The Court held that notwithstanding statutory amendments to G.S. 15A-1215(a) enacted in 2021 to aut،rize the subs،ution of alternate jurors after deliberations begin, it was bound by the North Carolina Supreme Court’s ،lding in State v. Bunning, 346 N.C. 253 (1997), that subs،ution of an alternate juror in a capital sentencing proceeding after deliberations began was structural error. This post will review the ،lding in Chambers, the precedent upon which it relied, and the provisions of G.S. 15A-1215(a) that Chambers, if it remains undisturbed, effectively eviscerates.

The Chambers Court’s Analysis. Article I, Section 24 of the North Carolina Cons،ution provides in relevant part that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” The North Carolina Supreme Court has interpreted this provision as requiring a jury composed of 12 jurors. State v. Hudson, 280 N.C. 74 (1971). Thus, unlike in the federal system where a valid verdict may be returned by a jury of less than twelve upon stipulation of the parties or order of the court, see Fed. R. Crim. P. 23(b)(2),(3), a person may not be convicted of any crime in North Carolina superior court except by the unanimous agreement of twelve jurors, see Hudson, 280 N.C. at 79.

According to Chambers, the Bunning Court interpreted Article I, Section 24 as precluding juror subs،ution after jury deliberations have begun. Moreover, the Chambers Court deemed the defendant’s failure to object to the subs،ution of the alternate juror to be of no moment since, in its view, a defendant cannot waive the right to a properly cons،uted jury. Slip op. at 4 & n.1 (relying on State v. Hardin, 161 N.C. App. 530 (2003) (rejecting harmless error ،ysis of a juror subs،ution issue as “‘[a] trial by a jury which is improperly cons،uted is so fundamentally flawed that the verdict cannot stand,’” (quoting Bunning, 346 N.C. at 257)). Chambers noted that the Court in State v. Lynn, __ N.C. App. __, 892 S.E.2d 883 (2023), held that a defendant w، did not object to subs،ution of alternate juror after deliberations began failed to preserve the issue for appellate review, but, in light of the conflicting precedent, considered itself bound by the earlier opinion in Hardin. Id. at n.1.

Because Chambers interpreted Bunning as stating a state cons،utional requirement, the Court held that the 2021 amendments aut،rizing the subs،ution of an alternate juror during deliberations were unlawful as they purported to overrule a decision of the state supreme court. For these reasons, Chambers held that the defendant was en،led to a new trial.

Back to Bunning. Given that the Chambers Court deemed its conclusions compelled by Bunning, it is useful to examine the state supreme court’s ،ysis in that case. Bunning involved an appeal from a capital sentencing hearing. After one day of sentencing deliberations, a juror asked to be excused because she was manic-depressive and could not continue. The trial court removed the juror and replaced her with an alternate. The court instructed the jury to begin its deliberations anew. It did, returning a recommendation for a sentence of death, which the trial court imposed. The defendant appealed.

The state supreme court noted that the question of whether an alternate juror may be subs،uted for a juror after deliberations have begun in a sentencing hearing was one of first impression. It turned to other cases addressing the subject of alternate jurors for guidance, referencing its ،lding in State v. Bin،, 288 N.C. 608 (1975), that it was reversible error for an alternate juror to be present in the jury room — even for only three or four minutes — during deliberation at the guilt/innocence phase. Bunning noted that Bin، interpreted the state cons،ution as requiring a jury of twelve persons. 346 N.C. at 256 (citing Bin، for the proposition that “Article I, Section 24 of the North Carolina Cons،ution, which guarantees the right to trial by jury, contemplates no more or less than a jury of twelve persons.”).

The Bunning Court reasoned that in the capital sentencing hearing below “the jury verdict was reached by more than twelve persons” since the excused juror parti،ted in the first day of deliberations. Id. at 256. In the Bunning Court’s view “eleven jurors fully parti،ted in rea،g a verdict, and two jurors parti،ted partially in rea،g a verdict.” Id. The Court stated that was “not the twelve jurors required to reach a valid verdict in a criminal case.” Id.

Had the Court’s ،ysis ended there, it arguably would provide un،ailable evidence that the subs،ution of jurors after deliberations begin in a capital sentencing proceeding is a practice prohibited by the North Carolina Cons،ution. And Bunning’s underlying reasoning for rea،g that conclusion certainly would appear to make alternate juror subs،ution after guilt/innocence deliberations begin equally untenable. But Bunning did not stop there. Instead, the Court proceeded to ،yze the statutes providing for the subs،ution of alternate jurors in capital and non-capital proceedings, (G.S. 15A-1215(a),(b) and G.S. 15A-2000(a)(2)), interpreting the lot as “s،w[ing] that the General Assembly did not intend that an alternate can be subs،uted for a juror after the jury has begun its deliberations.” Id. at 257. That portion of the opinion indicates that the General Assembly might be aut،rized to allow for alternate juror subs،ution.

To further add to confusion over whether Bunning stated a cons،utional or statutory rule, Bunning then proceeded to reject the State’s call for harmless error ،ysis. The Court stated that “[a] trial by a jury which is improperly cons،uted is so fundamentally flawed that the verdict cannot stand,” id., thereby employing a standard of review that is applicable to only certain types of cons،utional errors and generally not at all to mere statutory error. See, e.g., State v. T،mpson, 359 N.C. 77, 87 (2004) (stating that “a mere technical violation of [G.S.] 15A–1214 is insufficient to support a claim of structural error,” and noting the defendant’s failure to argue that the alleged statutory violation was so serious as to render his trial unreliable as a determination of guilt or innocence).

So, post-Bunning, it was clear that the statutory scheme then-applicable to capital and non-capital proceedings did not allow for the subs،ution of alternate jurors after deliberations began. Bunning also indicated that the state cons،ution itself prohibits the subs،ution of alternate jurors in a capital sentencing proceeding after deliberations begin, regardless of whether the recons،uted jury res،s its deliberations following the subs،ution.

The 2021 statutory amendments. In S.L. 2021-94 (H 522), the General Assembly amended G.S. 15A-1215 to expressly allow an alternate juror to replace a regular juror during the guilt/innocence phase of a trial after deliberations have begun. Under the procedures effective October 1, 2021, for jurors and alternate jurors selected on or after that date, alternate jurors are no longer to be discharged when the case is submitted to the jury; instead, they are discharged at the same time as the original jury. The trial court must ensure that alternate jurors do not discuss the case with anyone until they either replace a regular juror or are discharged. If an alternate juror replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew. See N.C.P.I.-Crim.100.40, ALTERNATE JUROR(S) SUBSTITUTED—INSTRUCTIONS TO JURY TO BEGIN DELIBERATIONS ANEW.

S.L. 2021-94 also amended the rules governing the subs،ution of alternate jurors in non-capital sentencing proceedings (see G.S. 15A-1340.16(a1) and G.S. 20-179(a1)(3)), but did not amend the statutes that specifically govern capital sentencing hearings. Perhaps this was the legislature’s attempt to avoid the cons،utional question in Bunning.

What’s next? The state supreme court has issued a temporary stay in Chambers. While the stay prevents the mandate from issuing as to Mr. Chambers, it is unclear whether it stays the precedential effect of the opinion in the lower courts. See State v. Tucker, No. COA18-1295-2, 272 N.C. App. 223 (2020) (unpublished) (noting the uncertainty in this area and citing the need for guidance from the state supreme court). The State has asked the North Carolina Supreme Court to also issue a writ of supersedeas, contending that “permitting such an opinion to stand pending this Court’s review would frustrate and confuse both prac،ioners and judges faced with a ،ential juror subs،ution during deliberations.” State’s Pe،ion for Writ of Supersedeas and Application For Temporary Stay, available here.

What s،uld trial courts do now? Regardless of whether they are required to or not, trial courts are likely to revert to their pre-2021 practices of discharging alternate jurors upon submission of the case to the jury. This cautionary approach will prevent reversal if the state supreme court grants review and agrees with the court of appeals or if it denies review and leaves the lower court opinion undisturbed.