Criminal Practice – Alternate Juror – Jury Deliberations

The trial court did not err because the alternate juror did not intrude upon the jury’s deliberations at any point.

We discerned no error.

In 2023, a grand jury indicted Defendant on two counts of taking indecent liberties with a child. Following Defendant’s not-guilty pleas, this case came for a jury trial in 2024. After the presentation of evidence and jury instructions on each charge, the trial court explained to the jurors how to proceed before excusing them to the jury room. Upon excusing the jurors, the trial court instructed them, “Do not begin discussing the case until you have selected a foreperson.” The record does not indicate any other objections or inquiries until the jury gave its verdict, which found Defendant guilty of both counts of taking indecent liberties with a minor. The trial court consolidated the judgments and ordered consecutive sentences of imprisonment.

Defendant appealed the trial court’s judgment entered upon a jury verdict convicting him of two counts of taking indecent liberties with a child. Defendant argued that he is “entitled to a new trial because his constitutional right to trial by a jury of 12 was violated when an alternate juror was initially sent back with the jury for deliberations.”

The trial court instructed the jurors “not to begin discussing the case until [they] had selected a foreperson.” When defense counsel noticed an alternate juror exit with the other 12, the trial court promptly ordered that the alternate “come back” and directed the bailiff to retrieve her. The record does not suggest that the alternate entered the jury room, communicated with jurors, or participated in any discussion regarding the verdict. Rather, the transcript indicates that the jury did not begin deliberating until after the trial court retrieved the alternate juror.

We held that the presence of an alternate juror during the jury’s selection of a foreperson, where the trial court has instructed jurors not to begin deliberations, does not constitute error per se. The trial court instructed the jury to select a foreperson and not to deliberate until they did so. Absent any evidence to the contrary, this Court may properly assume that the jury followed its instructions. Thus, the trial court had no need to conduct a Bindyke inquiry to ask whether the jury had begun deliberations and did not err by conducting no such inquiry.

No error.

State of North Carolina v. Smith (Lawyers’ Weekly No. 011-299-25, 14 pp.) (Tom Murry, J.) Appealed from Pitt County Superior Court (Cy A. Grant, Sr., J.) Attorney General Jeff Jackson, by Special Deputy Attorney General Lisa Bradley, for the State. Attorney Jarvis John Edgerton IV, for Defendant–Appellant. North Carolina Court of Appeals