Court of Appeals Holds that State Constitution Prohibits Substitution of Alternate Jurors After Deliberations Begin

When a deliberating juror in Eric Chambers’ April 2022 murder 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, substituted an alternate juror, and instructed the jury to restart its deliberations. In doing so, the trial judge followed the procedures set forth in G.S. 15A-1215(a) for substituting an alternate juror after deliberations have begun. Chambers, who represented himself at trial, did not object. The reconstituted jury subsequently found Chambers guilty of first-degree murder and a related felony assault, 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 substitution 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 authorize the substitution of alternate jurors after deliberations begin, it was bound by the North Carolina Supreme Court’s holding in State v. Bunning, 346 N.C. 253 (1997), that substitution of an alternate juror in a capital sentencing proceeding after deliberations began was structural error. This post will review the holding 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 Constitution 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 substitution after jury deliberations have begun. Moreover, the Chambers Court deemed the defendant’s failure to object to the substitution of the alternate juror to be of no moment since, in its view, a defendant cannot waive the right to a properly constituted jury. Slip op. at 4 & n.1 (relying on State v. Hardin, 161 N.C. App. 530 (2003) (rejecting harmless error analysis of a juror substitution issue as “‘[a] trial by a jury which is improperly constituted 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 who did not object to substitution 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 constitutional requirement, the Court held that the 2021 amendments authorizing the substitution 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 entitled 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 analysis 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 substituted 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 holding in State v. Bindyke, 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 Bindyke interpreted the state constitution as requiring a jury of twelve persons. 346 N.C. at 256 (citing Bindyke for the proposition that “Article I, Section 24 of the North Carolina Constitution, 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 participated in the first day of deliberations. Id. at 256. In the Bunning Court’s view “eleven jurors fully participated in reaching a verdict, and two jurors participated partially in reaching 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 analysis ended there, it arguably would provide unassailable evidence that the substitution of jurors after deliberations begin in a capital sentencing proceeding is a practice prohibited by the North Carolina Constitution. And Bunning’s underlying reasoning for reaching that conclusion certainly would appear to make alternate juror substitution after guilt/innocence deliberations begin equally untenable. But Bunning did not stop there. Instead, the Court proceeded to analyze the statutes providing for the substitution 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 “show[ing] that the General Assembly did not intend that an alternate can be substituted 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 authorized to allow for alternate juror substitution.

To further add to confusion over whether Bunning stated a constitutional or statutory rule, Bunning then proceeded to reject the State’s call for harmless error analysis. The Court stated that “[a] trial by a jury which is improperly constituted is so fundamentally flawed that the verdict cannot stand,” id., thereby employing a standard of review that is applicable to only certain types of constitutional errors and generally not at all to mere statutory error. See, e.g., State v. Thompson, 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 substitution of alternate jurors after deliberations began. Bunning also indicated that the state constitution itself prohibits the substitution of alternate jurors in a capital sentencing proceeding after deliberations begin, regardless of whether the reconstituted jury restarts its deliberations following the substitution.

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 substitution 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 constitutional 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 practitioners and judges faced with a potential juror substitution during deliberations.” State’s Petition for Writ of Supersedeas and Application For Temporary Stay, available here.

What should 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.