[29ASR2d105]
v.
OPETAIA TAUAI, Defendant
CR No. 30-95
[1] The presence of an alternate juror in
the jury room is a per se violation of T.R.Cr.P. 24(c). Reversible error does not occur unless there
is persuasive evidence that the jury was "actually prejudiced." The burden of showing actual prejudice is
with the defendant.
[2] If an
alternate juror deliberates with the jury on the question of guilt a reasonable
possibility of prejudice exists, making reversal mandatory.
Before KRUSE, Chief Justice, TAUAN`U, Associate
Judge, and BETHAM, Associate Judge
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For
Defendant, Reginald E. Gates, Public Defender
MEMORANDUM OF DECISION ON
DEFENDANT'S MOTION FOR MISTRIAL
Following trial in this matter the jury returned a
guilty verdict against the defendant on the charge of assault in the 2d
degree. Subsequent to the discharge of
jury, it came to the attention of the presiding justice that the alternate
juror was inadvertently permitted into the jury room. Counsels [29ASR2d106] were alerted, and the
presiding justice placed the matter on the court's
The defendant consequently filed a motion seeking an
order declaring a mistrial; on the grounds that the jury was improperly
influenced in its deliberations by the alternate juror, who had participated in
the deliberations and further signed off on the verdict. At the same time, one of the jurors, who had
also voted guilty, did not sign the verdict form, because, as she had
explained, there was no place provided for to sign--after the alternate had
already done so, and there were only six signatory blocks on the verdict
form. The prosecution argued among other
things that jury as subsequently polled was nonetheless unanimous, and
accordingly no prejudice to the defendant.
We ordered briefing in the matter. Upon due consideration of the submissions of
counsel, and the record herein, we are prepared to make and announce our ruling
at this time in open court.
In this case the defendant essentially adopted the
Tenth Circuit's ruling in United States v. Beasley, 464 F.2d 468 (10th
Cir 1972), which held that the presence of an alternate juror in the jury room
violated the F.R.Cr.P. 24(c) requirement that alternate jurors be
"discharged after the jury retires to consider its verdict," and
therefore required a mistrial as a matter of law. Predictably, the prosecution adopted the
opposing position advanced by the Eleventh Circuit in United States v.
Watson, 669 F.2d 1374 (11th Cir. 1982), which held that the presence of an
alternate juror in the jury room was reversible error only when there was a
"reasonable possibility that the alternate in any manner affected the
verdict."
[1-2] The U.S. Supreme Court has
since resolved this split of authority in United States v. Olano, 123
L.Ed 2d 508, 521-524 (1993), citing Watson approvingly, and stating that
the presence of an alternate juror in the jury room is a per se violation of
F.R.Cr.P. 24(c), but holding that the error was not reversible unless there is
persuasive evidence that the jury was "actually prejudiced." The burden of showing actual prejudice is
with the defendant. In Olano,
although the alternate jurors were sworn and were indistinguishable from the
regular jurors, they were specifically instructed by the trial judge not to
participate in deliberations, and no evidence indicated that the alternates
violated this instruction. In the
present case, we find a reasonable possibility of prejudice, based on the fact
that the alternate participated in deliberations without restriction, and
ultimately signed the verdict to the exclusion of one of the regular
jurors. In Watson, the Eleventh
Circuit held that if an alternate deliberated with[29ASR2d107]
the jury on the question of guilt, then reversal would be mandatory. 669 F.2d at 1391. We agree and therefore order a mistrial in
the present case.