Criminal law practitioners may recall that in 2021 the General Assembly amended G.S. 15A-1215(a) to permit the substitution of an alternate juror after deliberations have begun in a criminal trial. S.L. 2021-94. When those changes became effective for jurors selected on or after October 1, 2021, North Carolina joined the federal courts and several other states that permit this practice.
The practice was, however, challenged within a few years of enactment. And the North Carolina Court of Appeals in State v. Chambers, 292 N.C. App. 459 (2024), held that notwithstanding G.S. 15A-1215(a), the state constitutional requirement for unanimous verdict of twelve jurors in a criminal case prohibited the substitution of an alternate juror after deliberations begin. Two weeks ago, the North Carolina Supreme Court reversed the Court of Appeals, upholding the statute as constitutional. This post will review the Supreme Court’s decision in State v. Chambers, No. 56PA24, ___ N.C. ___ (2025), and consider how trial courts must handle alternate jurors in future trials.
The facts. Chambers was charged with first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury after a man was killed and a woman injured in a shooting at a Raleigh motel. Chambers represented himself at trial and chose to be absent from the courtroom after the trial court cut off his closing argument for failing to follow the trial court’s instructions.
The jury began its deliberations at 4:44 p.m. A few minutes before 5 p.m., the jury sent a note to the court asking whether deliberations would end for the day at 5:15 p.m. The trial court told jurors they would be released at 5:15 p.m. unless they decided to stay later. At 5:11 p.m., Juror #5 asked to be excused from the jury because he had a medical appointment the next morning. The trial court released the jury, conducted a colloquy with Juror #5, and ultimately excused him. Chambers was voluntarily absent from these proceedings.
The next morning, the trial court substituted the first alternate juror and instructed the jury to restart its deliberations from the beginning. Chambers again chose not to attend these proceedings. The jury began its deliberations at 9:38 a.m. and informed the trial court at 12:27 p.m. that it had reached a verdict. The jury convicted Chambers of both charges. The trial court sentenced him to life without parole for the murder and 110 to 144 months for the assault.
Procedural history. Chambers filed a petition for writ of certiorari with the Court of Appeals, contending that the substitution of the alternate juror violated his state constitutional right to a twelve-person jury. The Court of Appeals granted the defendant’s petition and agreed with his argument. It held that Article I, Section 24 of the North Carolina Constitution, as interpreted in State v. Bunning, 346 N.C. 253 (1997), forbids the substitution of alternate jurors after deliberations begin because such substitution results in a jury of more than twelve persons determining a defendant’s guilt or innocence. The Court of Appeals thus vacated the defendant’s convictions and remanded the case for a new trial. The State petitioned the North Carolina Supreme Court for discretionary review of two issues: (1) whether the defendant waived his challenge to the constitutionality of G.S. 15A-1215(a) by failing to object to the substitution of the alternate juror at trial, and (2) whether G.S. 15A-1215(a) is constitutional. The Supreme Court granted the petition and reversed the Court of Appeals.
The Supreme Court’s analysis. The Supreme Court first determined that, given the fundamental nature of the right to a properly constituted jury, the defendant’s right to challenge the constitutionality of G.S. 15A-1215(a) was preserved notwithstanding his failure to object at trial. The Court then turned to an examination of the constitutionality of G.S. 15A-1215(a) as amended by S.L. 2021-94.
The amendment. S.L. 2021-94 enacted the following amendments to G.S. 15A-1215(a):
Standard of review. The Court began by noting that it must presume the constitutionality of a statute and may strike it down only if its unconstitutionality is demonstrated beyond a reasonable doubt. It then proceeded to consider the state constitutional requirement that a criminal conviction issue from a unanimous jury of twelve.
State constitutional requirements. Article I, Section 24 of the North Carolina Constitution provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” N.C. Const. Art. I, Section 24 (excepting from this requirement certain circumstances, not relevant here, in which a defendant may be adjudged guilty by the trial court). The common law requirement that the jury in a criminal case consist of twelve — and only twelve — people has long been considered engrafted into this constitutional rule.
Reasoning. The Court determined that substitution of an alternate juror pursuant to G.S. 15A-1215(a) does not compromise the constitutional requirement for a unanimous verdict by a jury of twelve because the statute provides “two critical safeguards.” Slip Op. at 8. First, it expressly states that no more than twelve jurors may participate in the jury’s deliberations. Second, it requires trial courts to instruct a jury to begin deliberations anew upon the substitution of an alternate juror. Thus, the court reasoned, when a jury follows the trial court’s instruction and restarts deliberations, there is no risk that the verdict will be rendered by more than twelve people. Because the trial court in Chambers so instructed the jury, and the jury is presumed to follow the trial court’s instructions, the Court determined that the defendant’s constitutional right to a jury of twelve was not violated.
Bunning distinguished. The Court further explained that Bunning, which held that the substitution of an alternate juror in a capital sentencing proceeding after deliberations had begun resulted in a jury verdict reached by more than twelve persons, did not dictate a different result. The Chambers Court stated that though Bunning cited Article I, Section 24, its conclusion was founded not upon constitutional requirements but instead upon its analysis of the controlling statutes, which did not permit the substitution of jurors after deliberations had begun.
Bunning considered three statutory provisions:
- G.S. 15A-1215(a) (1988) (providing for discharge of alternate jurors in guilt/innocence phase when case is submitted to jury),
- G.S. 15A-1215(b) (1988) (providing for release of alternate jurors in capital case when penalty phase begins), and
- G.S. 15A-2000(a)(2)(1988) (permitting substitution of alternate juror before deliberations begin in penalty phase of a capital trial).
After examining those provisions, the Bunning Court concluded that “[t]hese three sections clearly show that the General Assembly did not intend that an alternate can be substituted for a juror after the jury has begun its deliberations.” Bunning, 346 N.C. at 256-57. Bunning then proceeded to reject the State’s call for harmless error analysis, applying the standard of review applicable only to constitutional error — adding to the pre-Chambers confusion over whether the Court was stating a constitutional rule.
In addition to opining that Bunning rested its conclusions on a statutory analysis, the Chambers Court characterized the facts of its non-capital case as a “far cry” from Bunning, which, as previously mentioned, involved the substitution of an alternate juror during the sentencing phase of defendant’s capital trial. Slip Op. at 11.
For these reasons, the Supreme Court reversed the decision of the Court of Appeals and remanded the case for consideration of the remaining issues raised by the defendant below.
The dissent. Justice Riggs, joined by Justice Earls, concurred in part and dissented in part. Justice Riggs agreed with the majority’s holding that issues related to the structure of the jury are automatically preserved for appellate review, but would have held that allowing the substitution of an alternate juror during deliberations violates Article I, Section 24 of the North Carolina Constitution. Justice Riggs characterized G.S. 15A-1215(a) as “an innovation that departs from the mode of trial by a jury of twelve and endangers the impartiality and unanimity of the jury.” Slip Op. at 15 (Riggs, J., concurring in part and dissenting in part). She viewed the operative facts in Chambers as being the same “as those that led to constitutional error in Bunning,” id. at 20, and rejected the notion that a curative instruction from the trial court to begin deliberations anew could cure the defect resulting from the substitution of a new juror during deliberations.
The upshot. Trial courts may substitute an alternate juror pursuant to G.S. 15A-1215(a) so long as they properly instruct the alternate juror. This includes preliminarily instructing all of the alternate jurors not to discuss the case with anyone until the alternate juror replaces a juror or is discharged (see N.C.P.I.-Crim. 101.35) and, if an alternate juror replaces a juror after deliberations have begun, instructing the jury to begin its deliberations anew and to disregard entirely any deliberations taking place before the alternate was substituted (see N.C.P.I.-Crim.100.40).
Are trial courts required to retain alternate jurors until deliberations conclude? The last sentence of G.S. 15A-1215(a) states:
Alternate jurors receive the same compensation as other jurors and, unless they become jurors, must be discharged in the same manner and at the same time as the original jury.
The “unless” clause appears to have been inadvertently left over from the pre-2021 version of the statute, which stated that:
Alternate jurors receive the same compensation as other jurors and, unless they become jurors, must be discharged upon the final submission of the case to the jury.
Current G.S. 15A-1215(a) and Chambers make clear that there is no longer a requirement to discharge alternate jurors when the case is submitted to the jury. But is the trial court required to retain any alternates during jury deliberations?
The pattern instruction for concluding remarks to the jury allows for the possibility that trial courts retain discretion over whether to retain alternate jurors for potential substitution after the jury has begun deliberations. See N.C.P.I.-Crim. 101.35 (stating that “the court may choose to excuse the alternate juror(s)” or may retain them “for potential substitution after the jury has begun deliberations, pursuant to N.C. Gen. § 15A-1215(a)”). Yet G.S. 15A-1215(a) states that alternate jurors “must be discharged in the same manner and at the same time as the original jury.” (emphasis added). The statutory directive is not qualified with language stating, for example, that the discharge of an alternate must be no later than the time at which the original jury is discharged. The North Carolina drafters’ approach is different from the one taken in Rule 24(c) of the Federal Rules of Criminal Procedure, which expressly accords trial courts discretion, stating that “the court may retain alternate jurors after the jury retires to deliberate.” (emphasis added). See also Rule 6.411 of the Michigan Court Rules (providing that “[t]he court may retain the alternate jurors during deliberations.”); Rule 1:8-2 of the New Jersey Rules of Court (stating that “the court may in its discretion order that the alternate jurors not be discharged, in which event the alternate jurors shall be sequestered apart from the other jurors and shall be subject to the same orders and instructions of the court . . . as the other jurors.”). When I originally wrote about the 2021 legislation, I said that “[a]lternate 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.” I continue to think that reading most closely aligns with the statutory language.