A detailed recitation of the evidence is unnecessary to the disposition of this case. The State’s evidenсe tended to show that on 19 May 1984 the defendant was living in a house in Winston-Salem with his eight-year-old daughter, Brenda, and his wife, Lillian Grеer. Brenda testified to the effect that on that date the defendant removed her panties, touched her vagina with his tongue, put some hair grease on her vagina, and placed his fingers on her vagina. She testified that he had dоne this “lots of times” before. She also testified that the defendant placed his penis “on” her vagina. The child also related that defendant said to her that if she told anyone about these actions, he would kill her. Her testimony was сorroborated by others to whom she had made statements concerning what her father had done to her.
The dеfendant testified on his own behalf and vehemently denied committing any sexual act with Brenda or any other child. 1 The defense also presented witnesses who testified as to the defendant’s good character and as to the faet that his mental capacity was below average. The defendant was found guilty of *655 the first-degree sexual offensе and the attempted rape of his daughter, Brenda.
The defendant brings forward several assignments of error by which he аrgues that he is entitled to have the charges against him dismissed or, in the alternative, that he should be granted a new trial. We conclude that the defendant is entitled to a new trial due to the fact that the wife of the assistant district attorney who prosecuted the case served as the bailiff in charge of the jury. We therefore deem it unnecessary to address the defendant’s remaining assignments of error.
The prosecuting attorney’s wife was a courtroom officer and was the bailiff in charge of the jury. During a break in the jury’s deliberations, one of the jurors spoke to the bailiff and sаid that she had seen her and the prosecuting attorney driving home together after work. Another juror mentioned that she had observed the bailiff and the prosecuting attorney driving to work together. There was also some conversation to the effect that the three of them lived in the same vicinity. As a result of these statements, the bailiff proceeded to engage in a few minutes of friendly conversation with these two jurors, including a statement to them, “Well, here we are, nearly neighbors and didn’t even know it.” However, she stated that at no time did she attempt to influence the jury’s decision.
The defendant’s attorney overheard the conversation between the prosecutor’s wife and the twо jurors, and following the return of the verdicts, he moved for a mistrial based on the bailiffs conversation with the jurors which defense counsel alleged emphasized her relationship with the prosecutor. The motion was denied. The defеndant subsequently filed a motion for appropriate relief based on the same grounds. This motion was also deniеd.
This Court has held that where the custodian or officer in charge of the jury in a criminal case is a witness for the State, prejudice to the defendant is conclusively presumed and he is entitled to a new trial.
State v. Mettrick,
*656
The State contends that this situation differs from that in
Mettrick,
because in
Mettrick
the close association between the law enforcement officers and the jurors gave them an opportunity to bolster their personal credibility
as witnesses
and thus directly influence the casе, whereas here the bailiff was not a witness in the case. This argument, however, overlooks the underlying rationale оf the
Mettrick
decision. There, we said the appearance of a fair trial before an impartial jury is as impоrtant as the fact that a defendant actually receives such a trial.
State v. Mettrick,
We hold that an immediate family member of еither a prosecutor trying the case, a defendant, a defendant’s counsel defending the case, or a сrucial witness for either the prosecution or the defense is prohibited from serving as custodian or officer in charge of the jury in a criminal case.
For the foregoing reasons, we conclude that the trial judge erred in denying dеfendant’s motions for mistrial and for appropriate relief. The defendant is entitled to a new trial. The judgment entеred against the defendant is vacated, and the case is remanded to the Superior Court, Forsyth County, for a new trial.
The defendant’s motion for appropriate relief filed with this Court on 9 September 1985 is denied.
New trial.
Notes
. The defendant was аlso charged with committing first-degree sexual offenses against seven-year-old Krishauna Hines and eleven-year-old Tammy Stuckey. The defendant was acquitted' of these charges.