State v. LightnerState v. Lightner
Lead Opinion
Thе Circuit Court of Wood County, West Virginia, failed to dismiss the alternate juror prior to sending the jury to the jury room to begin deliberations in this case. As a result, thirteen people deliberated and voted on the verdict which found the defendant guilty. We agree with the State that this does not constitute reversible error per se nor plain error which affects the substantial rights of the defendant. Therefore, we affirm the conviction.
The defendant, Eric Lightner, was accused of sexually abusing his stepchildren. He was indicted on thrеe counts of sexual assault in the first degree in violation of
During the first day of defendant’s trial, voir dire was conducted and a jury was chosen. In open court, without the jury present and prior to striking a jury, the following discourse took place:
THE COURT: Do you have an objectiоn to the 13 deliberating up to the time when they render their verdict, or not?
MS. BOYLEN: I don’t have an objection if the 13th person doesn’t say anything while they sit in there.
THE COURT: Well, that is a problem.
MS. BOYLEN: Because that way we have to convince one more person ,4
THE COURT: Yeah. I was just thinking how we could do it, just excuse them before they vote. It would be difficult to do so I guess I will just excuse him before they commence deliberation, and will have to take a chance.
WHEREUPON, counsel proceeded to strike and select a jury.
The case was presented. When closing arguments concluded, the jury retired to commence deliberations at 12:10 p.m. In releasing the jury, the judge stated:
Now, it is 10 after 12:00, into the normal lunch hour. If you wish to go to lunch and then come back and start your deliberations, that is fine. Just let us know when you are leaving and coming back. But before you leave, if you choose to do that, please organize yourselves first by selecting a foreman. Then it is the foreman’s duty to be sure that you are all present and accounted for, in the jury room, before you do commence or resume deliberations after being gone.
The jury retired to the jury room at 12:10 p.m. and recessed for lunch at 12:13. The judge failed to release the alternate juror. No objection waS made by either side at that time. The jury resumed deliberations at 1:30 p.m. until 2:45 p.m., at which time they returned a verdict. The defendant declined to have the jury polled and all jurors were excused.
Whereupon the following exchange took place between defense counsel and the court:
MR. McFARLAND: Your honor, we would move for a new trial, and we will assign grounds in writing; but one of the bases, that I don’t think that the Court excused the alternate. It appeared that the alternate took part in the deliberations.
THE COURT: Well, of course, that is something that the prosecutor complained about, and didn’t this time, so I don’t see any harm to the Defendant. It required the State, of course, to prove it beyond areasonable doubt to 13 jurors instead of 12, and they did. If anything, it increased the burden on the State to prove a guilty verdict.
Okay. On thаt ground, it is denied. You will have 10 days within which to file your motion with further grounds.
MR. McFARLAND: Yes, sir.
THE COURT: Furthermore, I might mention that the defense did not ask that that be done, or draw it to the attention of the Court, at the time.
MR. McFARLAND: Well, we did at the beginning of trial, Your Honor.
THE COURT: Yes, I understand, but I am talking about when the jury went to deliberate. There was no request that the alternate be excused.
MR. McFARLAND: They just reported back to the jury room without coming back to the courtroom, before they went to deliberations. I thought that the Court was going to instruct the juror, you know, that they were excused at the close of the evidence, what I thought the Court said that the Court was going to do, so I assumed that that was done, and when the jurors reported back to the jury room, without coming into court before the afternoon session.
THE COURT: Well, if it was a mistake, I say it was invited, and it didn’t do anything, but hurt the State, if it hurt anybody, because an additional person had to have been convinced, on the jury, of the Defendant’s guilt beyond a reasonable doubt.
The defendant made a motion for a new trial on the ground that the alternate juror participated in jury deliberations. In its order entered on April 13, 1998, the court denied the motion. It is from this' order the defendant appeals.
On appeal, the defendant originally assigned several errors. This Court granted the appeal solely on the issue of the thirteenth juror. The defendant contends he was denied his constitutionally and statutorily protected right to a fair trial because the alternate juror was allowed to deliberate and votе with the regular jury panel. He urges us to find this amounts to fundamental error which requires reversal per se. We decline to do so.
The Sixth Amendment to the United States Constitution states, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed!.]” The Fourteenth Amendment provides that a state may not “deprive any person of life, liberty, or property, without due process of law[.]” Article III, Section 14 of the West Virginia Constitution provides in part, “Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men[.]” West Virginia Rules of Criminal Procedure 23(a) and (b) provide that a defendant may waive his or her right to a jury trial and that the parties may stipulate, at any time prior to the verdict being rendered, to any number of jurors less than twelve.
In any case in which a trial by jury would be otherwise proper, the pаrties or their counsel, by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact shall be heard and determined, and judgment given by the court. Absent such waiver, in any civil trial a jury shall consist of six members and in any criminal trial a jury shall consist of twelve members.
West Virginia Rule of Criminal Procedure 24(c) allows alternate jurors to be impaneled and then provides, “An alternate juror who does not replace a regular juror shall be discharged аfter the jury retires to consider its verdict.”
The defendant urges us to find that the alternate juror’s participation in jury deliberations is so inherently prejudicial that it requires automatic reversal or reversal per se. 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. Consequently, we agree with the Court of Appeals of Minnesоta in that
The United States Supreme Court has said the plain error rule applies when alternate jurors accompany the regular jurors, without objection, to the jury room when deliberations begin. In U.S. v. Olano,
The defendant in the case at bar contends he objected to the alternate juror joining the regular jury panel during deliberations. After thoroughly reviewing the record, we find no such objection. The State objected when the court initially asked if anyone objected “tо the 13 deliberating up to the time they render their verdict[.]” We find no objection from the defendant at that time nor do we find an objection from the defendant when the jury retired to consider the verdict or when the jury returned to the courtroom with a verdict. This Court has said,
Plain error review creates a limited exception to the general forfeiture policy pronounced in Rule 103(a)(1) of the West Virginia Rules of Evidence, in that where a circuit court’s error seriously affects the fairness, integrity, and public reputation of the judicial process, an appellate court has the discretion to correct error despite the defendant’s failure to object. This salutary and protective device recognizes that in a criminal case, where a defendant’s liberty interest is at stake, the rule of forfeiture should bend slightly, if necessary, to prevent a grave injustice.
Syllabus Point 1, State v. Marple,
There must be an “error" that is “plain” аnd that “affect[s] substantial rights.” Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error “ ‘seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Young,470 U.S. 1 , 15,105 S.Ct. 1038 , 1046,84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson,297 U.S. 157 , 160,56 S.Ct. 391 , 392,80 L.Ed. 555 (1936.))
Olano,
Under the first principle of Miller, we must determine if there was error. “Deviation from a legal rule is ‘error’ unless the rule has been waived.” Olano,
Under the “plain error” doctrine, “waiver” of error must be distinguished from “forfeiturе” of a right. A deviation from a rale of law is error unless there is a waiver. When there' has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rale of law need not be determined. By contrast, mere forfeiture of a right— the failure to make timely assertion of the right — does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is “plain.” To be “plain,” the error must be “clear” or “obvious.”
Syllabus Point 8, Miller, supra. Allowing an alternate juror to deliberate with the jury panel is obviously an error. The West Virginia Constitution,
We move on to the second requirement. After determining error existed, we must determine if the circuit court’s error is plain, which simply means clear or obvious. Miller,
The third principle requires us to determine whether the alternate juror’s participation in deliberations affeсted the substantial rights of the defendant. “In most cases, as Olano makes clear, this requirement means that the error must result in prejudice to the defendant. The defendant bears the burden of persuasion on this issue.” Ottersburg at 139 (citation omitted). In other words, “[i]t must have affected the outcome of the proceedings in the circuit court.” Miller,
We also do not believe the alternate juror is a stranger to the proceedings; the alternate is chosen in the same way as a regular juror, is subjected to the same test of impartiality and is required to possess all the qualifications of a rеgular juror. See People v. Valles,
In Taylor v. State,
In Johnson v. Louisiana,406 U.S. 356 ,92 S.Ct. 1620 ,32 L.Ed.2d 152 (1972), the Supreme Court upheld the defendant’s conviction by a nine-member majority vote of the jury. The Court stated: “Of course, the State’s proof could be regarded as more certain if it had convinced all 12 jurors instead of only nine; it would have been even more compelling if it had been required to convince and had, in fact, convinced 24 or 36 jurors.” Id. at 362,92 S.Ct. at 1625 . In Ballew v. Georgia,435 U.S. 223 ,98 S.Ct. 1029 ,55 L.Ed.2d 234 (1978), the Court said, “Statistical studies suggest that the risk of convicting an innocent person ... rises as the size of the jury diminishes.” Id. at 234,98 S.Ct. at 1036 . In Brown v. Louisiana,447 U.S. 323 ,100 S.Ct. 2214 ,65 L.Ed.2d 159 (1980), the Court stated that “a decline in jury size leads to less accurate factfinding and a greater risk of convicting an innocent person.” Id. at 332,100 S.Ct. at 2222 .
State v. Ledger,
We are convinced there is no likelihood that a thirteen-member jury would convict under the facts of this case more readily than would a twelve-member jury. The prosecutor convinced thirteen people the defendant was guilty. Moreover, the defendant had three distinct opportunities to object and chose not to do so each time. He could have objected when the judge initially asked if anyone objected to thirtеen jurors deliberating. He said nothing. He could have objected at the close of trial when thirteen jurors filed out of the courtroom to the jury room to begin deliberating. Once again, he said nothing. He could have objected when thir
Based on the foregoing, we do not believe the presence of the thirteenth juror affectеd the outcome of the proceedings. We believe the jury would have found as they did with or without the presence of the alternate juror. The judgment of the Circuit Court of Wood County is affirmed.
Affirmed.
Notes
.
(a) A person is guilty of sexual assault in the first degree when:
(2) Such person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less.
.
(a) A person is guilty of sexual abuse in the first degree when:
(3) Such person, being fourteen years old or more, subjects another person to sexual contact who is eleven years old or less.
.
(a) In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection, as follows: If any parent, guardian or custodian of a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian or custodian shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than fifteen years, or fined not less than five hundred nor more than five thousand dollars and imprisoned in the penitentiary not less than five years nor more than fifteen years.
.The State has withdrawn its objection.
.
.
Dissenting Opinion
dissenting:
(Filed Sept. 24, 1999)
In clear contrast to the view of the majority of this Court, I view a defendant’s right to a jury of twelve as a fundamental constitutional privilege. Indeed, the express directive contained in Article III, § 14 of the West Virginia Constitution, which commands that all criminal trials “shall be by a jury of twelve,” leaves room for no other conclusion. Thus, any deviation from this constitutional requirement must be accomplished through a knowing and intelligеnt waiver.
This Court has consistently adhered to the view that “[cjertain constitutional rights are so inherently personal and so tied to fundamental concepts of justice that their surrender by anyone other than the accused acting voluntarily, knowingly, and intelligently would call into question the fairness of a criminal trial.” Syl. pt. 5, State v. Neuman,
The majority may be correсt in its abstract observation that increasing the size of the jury generally decreases the odds of a guilty verdict being returned. (Of course, it also logically follows that the likelihood of an acquittal is similarly. attenuated.) What is impossible to gauge in individual cases, however, is the impact that the addition of a single juror will have on the outcome of a trial. The Court’s conclusion that the insertion of a thirteenth juror invariably benefits the defense presumes that jurors do not exchange thoughts or opinions during their delibеrations. Such a premise is obviously flawed, as the cinematic portrayal of deliber
Adding a juror beyond the twelve mandated by the West Virginia Constitution is therefore likely to affect the dynamics of a jury just as much as eliminating a juror. In the latter context, Rule 23(b) of the West Virginia Rules of Criminal Procedure mandates that the parties stipulate in writing to a jury of less thаn twelve — effectively requiring evidence on the record of a defendant’s knowing and intelligent waiver of the right to a jury of twelve.
I do not necessarily dispute the contention that “the fact that the jury at common law was composed of 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significancе ‘except to mystics.’” Williams v. Florida,
. It bears emphasizing that under the unique facts of this case, the Court is dealing with the issue whether a jury composed of thirteen рersons constitutes plain error under
. Rule 23(b) is in accord with our holding in State v. Wyndham,