State of West Virginia v. Quenton A. Sheffield ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_____________________ June 14, 2022
released at 3:00 p.m.
No. 21-0114 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_____________________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
v.
QUENTON A. SHEFFIELD,
Defendant Below, Petitioner.
___________________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Christopher D. Chiles, Judge
Criminal Action No. 19-F-107
REVERSED AND REMANDED
_________________________________________________________
Submitted: May 3, 2022
Filed: June 14, 2022
Robert F. Evans, Esq. Patrick Morrisey, Esq.
Public Defender Services Attorney General
Charleston, West Virginia Scott E. Johnson, Esq.
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion.
JUSTICE WOOTON concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “The West Virginia Rules of Criminal Procedure are the paramount
authority controlling criminal proceedings before the circuit courts of this jurisdiction[.]”
Syl. Pt. 5, in part, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999).
2. “Court rules are interpreted using the same principles and canons of
construction that govern the interpretation of statutes.” Syl. Pt. 2, Casaccio v. Curtiss, 228
W. Va. 156, 718 S.E.2d 506 (2011).
3. “Where the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett
v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
4. There is a presumption of prejudice to a defendant’s right to a fair trial
when a discharged alternate juror is recalled and replaces a member of the jury panel who
becomes unable or disqualified to perform his or her duties after the jury retires to consider
its verdict.
5. The presumption of prejudice that results from the mid-deliberation
substitution of a regular juror with a discharged alternate juror can only be overcome when
the trial court takes extraordinary precautionary measures to ensure the defendant’s right
i
to a fair trial. Those measures may include, but are not limited to: (1) re-administering the
juror oath to the alternate juror; (2) questioning the alternate juror to confirm that he or she
has not been exposed to any improper outside influences; (3) questioning the remaining
members of the jury panel to make sure that they can set aside any opinions they formed
about the case during their prior deliberations; (4) re-reading the trial court’s charge or
instructions to the entire jury panel; and (5) instructing the entire jury panel that they must
begin their deliberations anew. Given the substantial potential for prejudice from the mid-
deliberation replacement of a juror, the length of deliberations before and after the
substitution is a factor to be considered when assessing whether the defendant has been
prejudiced. This Court will consider the totality of the circumstances in determining
whether the extraordinary precautions taken by the circuit court successfully rebut the
presumption of prejudice.
ii
HUTCHISON, Chief Justice:
The petitioner, Quentin A. Sheffield, appeals the January 5, 2021, order of
the Circuit Court of Cabell County sentencing him to life in prison without mercy for his
conviction of first-degree murder, two to ten years of imprisonment for his conviction of
malicious wounding, and five years of imprisonment for his conviction of possession of a
firearm by a person prohibited from possessing a firearm. 1 In this appeal, the petitioner
contends that the circuit court committed reversible error during his trial when it dismissed
a member of the jury after deliberations began and replaced that juror with an alternate who
had been discharged from the case. Upon consideration of the parties’ briefs and oral
arguments, the submitted appendix record, and the relevant authorities, we find merit to
the petitioner’s argument. Accordingly, for the reasons set forth below, we reverse the
petitioner’s conviction and sentencing orders and remand this case for a new trial.
I. Facts and Procedural Background
In April 2019, the petitioner was indicted by a Cabell County grand jury on
charges of murder, malicious wounding, and possessing a firearm while being a person
prohibited from possessing a firearm. The events giving rise to the charges are not relevant
to the issue on appeal. Instead, the facts that are important concern what occurred at trial
after the jury retired to begin its deliberations.
1
The circuit court ordered all sentences to be served consecutively.
1
The record reflects that the petitioner’s trial commenced on September 29,
2020, and it lasted a total of six days. On the fifth day of trial, the jury retired to begin its
deliberations, and the trial court discharged the alternate juror from the case. After the jury
had been deliberating for slightly more than an hour, the trial court called a recess because
it had been informed that one of the jurors might have had a conversation with a witness
while on a lunch break during the middle of the trial. After stopping the deliberations, the
trial court proceeded to question each juror individually, and every juror denied speaking
to a witness. At that point, the petitioner moved for a mistrial, arguing that because one of
the jurors was not being truthful, there was no other remedy. The State opposed the motion
and suggested that the trial court review the surveillance footage from the courthouse
cameras to determine which juror had talked to the witness. The trial court agreed to look
at the surveillance footage, so it ordered the jury to recess for the day. The trial court also
instructed the court clerk to contact the alternate juror and ask her to return the following
day. The petitioner objected to recalling the alternate juror.
The next day, through the review of the courthouse video surveillance
footage, the trial court determined that Juror B. 2 had in fact spoken with one of the trial
2
When referring to specific jurors, we use their last initials rather than their full
names. See State v. Wasanyi, 241 W. Va. 220, 230 n.12, 821 S.E.2d 1, 11 n.12 (2018) (“We
refer to juror number one by an initial rather than her full name because of the personal
information disclosed herein.”).
2
witnesses. 3 The court then questioned Juror B. again, and the following exchange
occurred:
THE COURT: My Baliff was able to get a copy of the
courthouse security video, and it shows you talking with [the
witness], the owner of Metro Cab, at lunch on Thursday, and
that was what I was asking about when you said you did not do
it.
I would like to play that for you at this point.
JUROR B.: Oh, okay.4
JUROR B.: Okay, I did, yeah, I didn’t know that-
THE COURT: You didn’t know what?
JUROR B.: That I wasn’t allowed to speak to him.
THE COURT: No, but I was asking you yesterday whether
you spoke with any witness who had testified and you said no.
JUROR B.: I am sorry. I did not understand that.
THE COURT: I think because of that I have no choice [sic] to
excuse you from this jury.
3
When initially questioned, Juror B. was asked by the trial court:
All right, Ms. [B.], it has recently come to our attention
that last Thursday at lunchtime during our lunch recess that one
of the jurors may have had a conversation with a witness who
had previously testified and maybe even asked that witness a
couple of questions on the courthouse lawn. Was that you by
chance?
Juror B. responded, “No.” The Court then asked, “You are sure?” Juror B. said, “I am
positive.”
4
The video was then viewed by all parties.
3
After Juror B. was excused, the trial court denied the petitioner’s motion for a mistrial and
asked the petitioner whether he would prefer to proceed with just eleven jurors or whether
he wanted the alternate juror to return to service. Emphasizing that he was not waiving his
request for a mistrial, the petitioner stated that he preferred to have twelve jurors.
Thereafter, the trial court informed Juror S., the alternate juror who had
returned as requested, that one of the jurors had to be excused due to the juror’s
conversation with a witness, and that this necessitated Juror S.’s return to service. Juror S.
was then asked by the trial court whether she was “okay serving as a juror in this case.”
She answered affirmatively. The petitioner’s counsel asked Juror S. whether she had
spoken to anyone about the case after she had been dismissed and left the courthouse the
previous day, and she said, “no.” The trial court then informed Juror S. that her written
notes about the case had been destroyed when she was discharged and asked whether she
was still able to be a fair and impartial juror and whether she was able to discuss the case
with the other jurors and deliberate without the benefit of her notes. She replied, “yes,”
and returned to the jury, but the juror’s oath was not re-administered to her.
The trial court told the other jurors that Juror B. had been excused because
of her conversation with a witness and that Juror S. would be returning for the deliberations.
The trial court asked each juror individually if he or she was still able to sit as a fair and
4
impartial juror in the case and render a decision in light of what had happened. Each juror
responded affirmatively. The jury was also instructed as follows:
THE COURT: Thank you, ladies and gentlemen. Again, I
thank you for being here today.
As you know, from what I have said to each of you on
the record in chambers, one of your fellow jurors has been
excused and an alternate juror is replacing that excused juror.
Do not consider this substitution for any purposes.
Under the law, the alternate juror must participate fully in the
deliberations that lead to any verdict.
The Prosecution and the Defendant has [sic] the right to
a verdict reached only after full participation of the jurors
whose votes determine that verdict. This right will only be
assured if you begin your deliberations again from the
beginning.
Therefore, you must set aside and disregard all past
deliberations and begin your deliberations all over again. Each
of you must disregard the earlier deliberations and decide this
case as if those earlier deliberations have not taken place.
The reconstituted jury then began its deliberations and reached a verdict in
less than an hour. During that time, deliberations were paused twice while the jury received
additional instructions from the trial court. On one occasion, the trial court informed the
jury that the court clerk would be bringing them the “[jury] charge, the instructions,
everything.” The second time, the jury asked the court who two phone numbers belonged
to, and the court informed the jury it could not answer that question as the parties and court
agreed they were uncertain as to whether the referenced numbers had been admitted as
evidence in the case.
5
As indicated above, the jury convicted the petitioner of all charges. The
mercy phase of the trial was bifurcated, so after reaching its verdict, the jury reconvened
to decide whether to afford the petitioner mercy on his first-degree murder conviction.
After the jury denied the petitioner a finding of mercy, he filed a post-trial motion asserting
error based on the trial court’s decision to impanel the discharged alternate juror and not
declare a mistrial. The motion was denied, and the petitioner was sentenced by an order
entered on January 5, 2021. This appeal followed.
II. Standard of Review
The petitioner argues that the trial court committed reversible error by not
granting a mistrial when it became necessary to dismiss a member of the jury after
deliberations had begun. “The decision to grant or deny a motion for mistrial is reviewed
under an abuse of discretion standard.” State v. Lowery, 222 W. Va. 284, 288, 664 S.E.2d
169, 173 (2008). In this case, our determination of whether the trial court committed
reversible error by not granting a mistrial requires us to interpret the West Virginia Rules
of Criminal Procedure. “[O]ur review is plenary on the issues before us pertaining to the
interpretation of state statutes and court rules.” State v. Davis, 236 W. Va. 550, 554, 782
S.E.2d 423, 427 (2015); see also Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138,
459 S.E.2d 415 (1995) (“Where the issue on an appeal from the trial court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.”). With these standards in mind, we consider the parties’ arguments.
6
III. Discussion
The sole issue in this appeal is whether the trial court committed reversible
error when it replaced a member of the jury during deliberations with the alternate juror
who had been discharged from service. The petitioner argues that the mid-deliberation
juror substitution was a violation of Rule 24(c) of the West Virginia Rules of Criminal
Procedure. The rule provides, in pertinent part:
Alternate jurors. - The court may direct that more jurors
in addition to the regular jury be called and impaneled 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.
W. Va. R. Crim. P. 24(c) (emphasis added). The petitioner contends that the clear and
unambiguous language of this rule does not allow the substitution of a member of the jury
with an alternate after the jury begins deliberations because the alternate jurors have been
discharged. We agree.
“The West Virginia Rules of Criminal Procedure are the paramount authority
controlling criminal proceedings before the trial courts of this jurisdiction[.]” Syl. Pt. 5, in
part, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999). With regard to trial jurors,
this Court has previously recognized that “Rule 24(c) states that the alternate shall be
7
discharged after the jury retires to consider its verdict.” State v. Lightner, 205 W. Va. 657,
662, 520 S.E.2d 654, 659 (1999). In Lightner, the trial judge failed to release the alternate
juror when the jury retired, and as a result, the alternate participated in the jury deliberations
and voted on the verdict finding the defendant guilty. On appeal, the defendant argued that
the trial court had violated Rule 24(c) and that the error required automatic reversal of his
conviction. Upon review, this Court promptly acknowledged that allowing an alternate
juror to deliberate with the jury panel was clear error under Rule 24(c). Lightner, 205 W.
Va. at 662, 520 S.E.2d at 659.
In the case at bar, the trial court discharged the alternate juror after the jury
retired to consider its verdict as required by Rule 24(c), but then recalled the alternate after
deliberations began to replace the jury member found to be disqualified from performing
her duties because of her conversation with a trial witness. Rule 24(c) provides that
“[a]lternate jurors . . . 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” and
that “[a]n alternate juror who does not replace a regular juror shall be discharged after the
jury retires to consider its verdict.” (Emphasis added). We have held that “[c]ourt rules
are interpreted using the same principles and canons of construction that govern the
interpretation of statutes.” Syl. Pt. 2, Casaccio v. Curtiss, 228 W. Va. 156, 718 S.E.2d 506(2011). Our canons of construction provide that “[w]here the language of a statute is free
from ambiguity, its plain meaning is to be accepted and applied without resort to
interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
8
Rule 24(c) plainly and unambiguously provides that any replacement of a regular juror by
an alternate juror must occur before the jury retires to begins its deliberations.
Like other jurisdictions with the same rule, we decline to infer that the
provision authorizing pre-submission substitution of jurors also allows for post-submission
substitution. See State v. Sanchez, 6 P.3d 486, 492 (N.M. 2000) (“Like federal courts, state
courts have generally refused to imply from [provisions allowing alternate jurors to take
the place of original jurors who become incapacitated] the authority to make
postsubmission substitution.” (quotations and citation omitted)). Under our canons of
construction, “[i]t is not for this Court arbitrarily to read into [the rule], that which it does
not say.” Banker v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996).
Given the absence of any language in Rule 24(c) allowing the substitution of a juror after
the jury has retired, we find no authority for a trial court to do so. Consequently, the trial
court’s replacement of the disqualified jury member after deliberations began with the
alternate juror who had been discharged from the case was a clear violation of Rule 24(c).
Having found that the trial court’s post-submission juror substitution violated
Rule 24(c), we must now determine the legal effect of that error upon the verdict. The
petitioner argues the trial court’s violation of Rule 24(c) requires the automatic reversal of
his conviction. Conversely, the State argues that the error was harmless, and the
petitioner’s convictions should be affirmed.
9
In Lightner, the defendant also urged this Court to adopt a reversible per se
rule for the violation of Rule 24(c) in that case. This Court rejected the defendant’s
argument in that case, explaining:
We are not convinced that the trial court’s failure to
promptly discharge an alternate juror is so serious that it
should, in every situation, require automatic reversal. Each
case must be decided on its own unique set of facts.
Id. at 660, 520 S.E.2d at 657. 5 We find the same to be true when a discharged alternate
juror is recalled and replaces a member of the jury who becomes disqualified during
deliberations.
Most jurisdictions that have considered a mid-deliberation substitution of a
juror with a discharged alternate have determined the legal effect of that error on the verdict
by utilizing either an expansive harmless error analysis or what has been termed the
“presumption of prejudice” doctrine. State v. Sanchez, 6 P3d. 486, 493 (N.M. 2000).
Simply stated, “[i]f a post-submission substitution has been found to be erroneous, the bulk
of courts next focus on the extent to which the error is prejudicial.” Commonwealth v.
Saunders, 686 A.2d 25, 28 (Pa. Super. Ct. 1996). Federal courts addressing the issue have
tended to use the harmless error analysis which places the burden of showing prejudice on
5
In Lighter, this Court proceeded to conduct a plain error analysis because the
defendant had not objected during the proceedings below to the alternate juror’s
participation in the deliberations. Id. at 661, 520 S.E.2d at 658.
10
the defendant. 6 Id. In contrast, state courts have generally applied the presumption of
prejudice doctrine which shifts the burden to the State. Id.In adopting the presumption of prejudice approach, the Supreme Court of
Colorado explained that “because a just verdict cannot be reached if there is an
inappropriate interference with or intrusion upon the deliberative process . . . the mid-
deliberation replacement of a regular juror with an alternate must be presumed to have
prejudiced the defendant.” People v. Burnette, 775 P.2d 583, 590 (Colo. 1989) (citation
omitted). Elaborating further, the Burnette court observed that
[t]he potential for prejudice occasioned by a deviation
from the mandatory requirements of [Rule] 24[] is great.
Where an alternate juror is inserted into a deliberative process
in which some jurors may have formed opinions regarding the
defendant’s guilt or innocence, there is a real danger that the
new juror will not have a realistic opportunity to express his
views and to persuade others. Moreover, the new juror will not
have been part of the dynamics of the prior deliberations,
including the interplay of influences among and between
jurors, that advanced the other jurors along their paths to a
decision.
Burnette, 775 P.2d at 588 (citations omitted). Indeed, “[t]he environment of the
reconstituted jury would be inherently coercive for the alternate juror because the other
jurors had already determined their views of the case.” People v. Roberts, 824 N.E.2d 250,
6
Prior to 1999, Rule 24(c) of the Federal Rules of Criminal Procedure also provided
that alternate jurors who had not replaced a regular juror were to be discharged when the
jury retired to deliberate. The language of the rule mirrored our Rule 24. In 1999, the
federal rule was amended, and now federal trial courts have discretion to retain alternate
jurors after the jury retires to deliberate and to replace a member of the jury panel with an
alternate during deliberations. See Fed. R. Crim. Proc. 24 (2002).
11
261 (Ill. 2005); see also U.S. v. Quiroz-Cortez, 960 F.2d 418, 420 (5th Cir. 1992)
(recognizing “a danger that the other jurors will have already formulated positions or
viewpoints or opinions in the absence of the alternate juror and then pressure the newcomer
into passively ratifying this predetermined verdict, thus denying the defendant the right to
consideration of the case by twelve jurors”).
Also employing the presumption of prejudice approach, the Superior Court
of Pennsylvania reasoned:
The Rules of Criminal Procedure “are intended to
provide for the just determination of every criminal
proceeding.” Pa.R.Crim.P. 2. Accordingly, when the trial
court proceeds in blatant violation of the Rules, without the
defendant’s consent, the trial court does so at its own risk.
Clearly, our Supreme Court adopted Rule 1108(a) 7 in order to
protect both the Commonwealth and the defendant against the
perils of post-submission substitution . . . we cannot turn a
blind eye to the genuine risk of a tainted verdict. Quite simply,
we must [e]nsure that the jury function remains protected.
Saunders, 686 A.2d at 28 (footnote added). Like these courts, we are persuaded that
“requiring prejudice to be presumed from a violation of [Rule 24(c)] . . . best accommodates
the fundamental concern of protecting the deliberative process of the jury.” Burnette, 775
P.2d at 590. Accordingly, we now hold that there is a presumption of prejudice to a
defendant’s right to a fair trial when a discharged alternate juror is recalled and replaces a
7
Rule 1108(a) of the Pennsylvania Rules of Criminal Procedure mirrors our Rule
24(c). See Saunders, 696 A.2d at 27.
12
member of the jury who becomes unable or disqualified to perform his or her duties after
the jury retires to consider its verdict.
Under the presumption of prejudice doctrine, there is a recognition that “the
factual circumstances in which an unauthorized substitution of an alternate juror during
deliberations may occur are manifold and that under certain circumstances the presumption
of prejudice that flows from a juror substitution during the course of jury deliberations may
be rebutted.” Burnette 775 P.2d at 591. As one court explained,
it is not always reversible error to recall an alternate
who has been discharged. Suppose the alternate in this case had
been recalled as she was leaving the courtroom 30 seconds
after having been discharged. It would violate Rule 24(c) to put
her back on the jury but there would be no prejudice to the
defendants that would warrant reversal of their convictions . . .
only prejudicial violations of the rule are reversible errors.
U.S. v. Josefik, 753 F.2d 585, 587 (7th Cir. 1985). Although state and federal courts have
taken different approaches to assess the effect of a mid-deliberation juror substitution, it is
generally agreed that prejudice “is not shown when the facts surrounding the replacement
of an alternate juror [indicate] . . . that the handling of the reconstituted jury was adequate
to ensure a fair and impartial jury.” Sanchez, 6 P.3d at 494. Regardless of the approach
used to evaluate the error though, “post-submission substitution is an exception to a rule of
criminal procedure, which protects constitutional rights.” Id. at 495. Therefore, “both
approaches require adequate procedural safeguards; absent such precautions at the trial
court level, the text of the rule supports reversal.” Id.
13
Evaluating whether the post-submission juror substitution was prejudicial
requires an examination of the record and a consideration of what precautionary measures
were used by the trial court to preserve the defendant’s right to a fair trial. Other state
courts have held that the presumption of prejudice can only be rebutted by “a showing that
the trial court took extraordinary precautions to ensure that the defendant would not be
prejudiced and that under the circumstances of the case, the precautions were adequate to
achieve that result.” Burnette, 775 P.2d at 590. In other words, the record must establish
that “sufficient protective measures were taken to [e]nsure the integrity of the jury
function.” Saunders, 686 A.2d at 28.
Federal courts have “evaluate[d] 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.” Quiroz-Cortez, 960 F.2d at 420. Also highly relevant
is the alternate juror’s possible exposure to outside influences during the time he or she
was absent from the courtroom. Id. These same factors have also been applied by state
courts to evaluate the presumed prejudice. For example, in Roberts, the Supreme Court of
Illinois indicated that
[i]n determining whether a defendant was prejudiced,
we will consider the totality of the circumstances, including:
(1) whether the alternate juror and the remaining original jurors
were exposed to outside prejudicial influences about the case;
(2) whether the original jurors had formed opinions about the
case in the absence of the alternate juror; (3) whether the
reconstituted jury was instructed to begin deliberations anew;
14
(4) whether there is any indication that the jury failed to follow
the court’s instructions; and (5) the length of deliberations both
before and after the substitution.
Id. at 260. Similarly, the Saunders court declared that the
solution begins with the trial court, prior to impaneling the
alternate juror, extensively questioning the alternate and
remaining jurors. The trial court must [e]nsure that alternate
has not been exposed to any improper outside influences and
that the remaining regular jurors are able to begin their
deliberations anew. These are fundamental consideration that
can not be ignored.
Id. at 29. That court, like all others, emphasized the importance of the instructions to the
recomposed jury, finding it critical to that they be directed to begin their deliberations
anew. See id.
Based on the above, we now hold that the presumption of prejudice that
results from the mid-deliberation substitution of a regular juror with a discharged alternate
juror can only be overcome when the trial court takes extraordinary precautionary measures
to ensure the defendant’s right to a fair trial. Those measures may include, but are not
limited to: (1) re-administering the juror oath to the alternate juror; (2) questioning the
alternate juror to confirm that he or she has not been exposed to any improper outside
influences; (3) questioning the remaining members of the jury panel to make sure that they
can set aside any opinions they formed about the case during their prior deliberations; (4)
re-reading the trial court’s charge or instructions to the entire jury panel; and (5) instructing
the entire jury panel that they must begin their deliberations anew. Given the substantial
potential for prejudice from the mid-deliberation replacement of a juror, the length of
15
deliberations before and after the substitution is a factor to be considered when assessing
whether the defendant has been prejudiced. This Court will consider the totality of the
circumstances in determining whether the extraordinary precautions taken by the circuit
court successfully rebut the presumption of prejudice.
Applying our holding to the facts of this case, we find that the presumption
of prejudice has not been successfully rebutted. While the trial court took significant steps
after Juror B. was excused, the totality of the circumstances does not indicate that
extraordinary precautions were taken to ensure that the petitioner received a fair trial. In
that regard, the record shows that Juror S. was recalled to service without the juror’s oath
being re-administered. The “juror’s oath places . . . the responsibility of arriving at a true
verdict upon the basis of [the juror’s] own opinion and not merely upon acquiescence in
the conclusions of [his or her] fellow jurors.” State v. Waldron, 218 W. Va. 450, 460, 624
S.E.2d 887, 897 (2005). As such, re-administering the juror oath under these circumstances
serves as an important reminder to the alternate juror that he or she must fully participate
in the deliberations rather than accepting the views the other jury members may have
formed during their prior deliberations.
The record also shows that the alternate juror was not thoroughly questioned
to determine whether she had been exposed to any outside influences after she was
discharged from the case. She was simply asked by defense counsel whether she had
spoken to anyone about the case, including her family, and she answered negatively. Given
16
that extensive media coverage often accompanies murder trials such as this one and that
the alternate juror was absent from the proceedings for almost a day, 8 we find that the
questioning of the alternate juror was insufficient to establish that she had not been
subjected to any impermissible influence. 9
We also find that the questioning of the remaining jurors regarding their
ability to start deliberations from the beginning fell short. Although the critical instruction
to begin deliberations anew was given to the reconstituted jury panel, the jurors were never
asked individually about their ability to set aside any opinions they had formed prior to the
dismissal of Juror B. The fact that the reconstituted jury panel reached a verdict in less
than hour—significantly less time than the original jury panel deliberated before the court
called for a recess—causes us to question whether the trial court’s instructions were
followed.
8
The record shows that when the alternate juror was discharged, she was merely
thanked for her service and was not given any further instruction.
9
We note that it is not the duty of defense counsel to question the alternate juror or
any remaining members of the jury panel to ensure that the defendant has not been
prejudiced by the substitution. Instead, it is the trial court that must take extraordinary
precautions to preserve the defendant’s right to a fair trial when it chooses to disregard the
mandates of Rule 24(c). As such, the fact that defense counsel in this case only asked the
alternate juror if she had spoken to anyone about the case cannot be construed as a waiver
of the petitioner’s right to assert error based on the violation of Rule 24(c). Furthermore,
defense counsel objected to the juror substitution as soon as the trial court announced its
intention to recall the discharged alternate juror and continued to renew that objection
throughout the proceedings that occurred until the reconstituted jury panel began its
deliberations.
17
Finally, we are troubled by the fact that the remaining members of the jury
panel were never asked what information, if any, was relayed to them by Juror B. about
her conversation with the trial witness. 10 The failure of the trial court to explore this
possible outside influence on the jury’s consideration of the case either through the
questioning of Juror B. or the other jury members cannot be overlooked. Having
thoroughly considered the totality of the circumstances, we find that the presumption of
prejudice has not been overcome and that the trial court abused its discretion when it denied
the petitioner’s motion for a mistrial. 11 Accordingly, we must reverse the petitioner’s
conviction and sentencing orders and remand this case for further proceedings.
IV. Conclusion
For the foregoing reasons, the petitioner’s conviction and sentencing orders are
reversed, and this case is remanded for a new trial.
Reversed and remanded.
10
The record does show that defense counsel asked one juror, out of the presence
of the others, whether he talked with Juror B. about her conversation with the witness and
he replied that he did not know about it. None of the other jurors, however, were asked
this question.
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We recognize that an amendment to Rule 24(c) is the best way to provide trial
courts with options when faced with the situation of a member of a jury panel becoming
unable or disqualified to continue his or her duties after the jury retires to deliberate.
However, such a change cannot be made in the context of a judicial opinion; rather, it must
occur through our normal rule-making process.
18