See Annot., Presence of Alternate Juror in Jury Room as Ground for Reversal of State Criminal Conviction, supra. Some courts have chosen a presumption of prejudice approach, see,e.g., United States v. Watson, 669 F.2d 1374, 1392 (11th Cir. 1982); People v. Boulies, 690 P.2d 1253, 1255-56 (Colo. 1984); Johnson v. State, 220 S.E.2d 448, 454 (Ga. 1975); State v. Crandall, 452 N.W.2d 708, 711 (Minn. Ct. App. 1990); State v. Scrivner, 676 S.W.2d 12, 14 (Mo. Ct. App. 1984); State v. Coulter, 652 P.2d 1219, 1221 (N.M. Ct. App. 1982); Yancey v. State, 640 P.2d 970, 971 (Okla. Cr. 1982); Cuzick, 530 P.2d at 290; other courts have chosen an automatic reversal requirement, see, e.g., United States v. Beasley, 464 F.2d 468, 470 (10th Cir. 1972); Bouey v. State, 762 So.2d 537, 540 (Fla. Dist. Ct. App. 2000); Commonwealth v. Smith, 531 N.E.2d 556, 561 (Mass. 1988); State v. Bindyke, 220 S.E.2d 521, 533 (N.C. 1975); Brigman v. State, 350 P.2d 321, 322-23 (Okla. Cr. 1960); Commonwealth v. Krick, 67 A.2d 746, 749 (Pa. Super. 1949). At least two courts have required the defendant to establish prejudice.
¶ 1 The guarantees of our Bill of Rights regulating the composition of grand and petit juries are essentially directed to the deliberative character and function of those bodies in the exercise of their fact-finding powers. Thus, we have held that a body composed of thirteen qualified jurors which deliberates and returns a verdict in a criminal trial is not a "jury" guaranteed by Article II, § 19. Brigman v. State, 1960 OK CR 18, ¶ 4, 350 P.2d 321, 322-323. Neither is a body of eleven qualified jurors empowered to deliberate and render judgment, unless the defendant waives the constitutionally required composition.
The majority of cases that address this issue hold that the presence of the alternate in the jury room during deliberations amounts to fundamental error and requires reversal. United States v. Chatman, 584 F.2d 1358 (4th Cir. 1978); United States v. Beasley, 464 F.2d 468 (10th Cir. 1972); United States v. Virginia Erection Corporation, 335 F.2d 868 (4th Cir. 1964); Berry v. State, 298 So.2d 491 (Fla.Dist.Ct.App. 1974); People v. King, 216 N.Y.S.2d 638, 13 A.D.2d 264 (N.Y.S.Ct. 1961); Brigman v. State, 350 P.2d 321 (Okla.Cr.App. 1960); Commonwealth v. Krick, 67 A.2d 746, 164 Pa. Super. 516 (1949).
In Swift v. State, 510 P.2d 286 (Okla. Cr. 1973), this Court held it a violation of the State Constitution to allow an eleven-person jury to return a verdict over the defendant's objection. And in Brigman v. State, 350 P.2d 321 (Okla. Cr. 1960), this Court held it a violation of the State Constitution for thirteen jurors to deliberate a defendant's fate. Brigman is close to the present case.
The court said in United States v. Virginia Erection Corp.: "In any event, the presence of the alternate in the jury room violated the cardinal principle that the deliberations of the jury shall remain private and secret in every case." The Oklahoma court in Brigman v. State, 350 P.2d 321 (Okl.Cr.), also discusses the issue and terms the presence of an alternate juror with the jurors who have retired to deliberate as "fundamental error." The thirteenth juror there voted on one ballot for acquittal.
While the Supreme Court of Arkansas has not had an occasion to address the issue of the presence of a "thirteenth man" in the jury room, those jurisdictions that have considered the problem within the context of a criminal proceeding have uniformly held that the presence of a person in the jury room, other than the twelve persons deciding the case, violates the concept of trial by jury by invading the jury's expectation of privacy, thereby inhibiting a vigorous and candid discussion of the issues. People v. Knapp, 42 Mich. 267, 3 N.W. 927, 36 Am.R. 438 (1879); Acosta v. State, 126 Tex.Cr. 618, 72 S.W.2d 1074 (1934); United States v. Beasley, 464 F.2d 468 (10th Cir. 1972); Brigman v. State, 350 P.2d 321 (Okla.Cr. 1960). This rule has even been extended to the presence of alternate jurors not allowed to vote.
The 10th Circuit Court of Appeals in United States v. Beasley reasoned that any inquiry of the jury under a prejudice standard "is itself a dangerous intrusion into the proceedings of the jury" and that the purpose sought to be achieved at a prejudice hearing "is not of sufficient importance to warrant such an inquiry in comparison to the possible harm or appearance of interference." See, Stokes v. State , 379 Md. 618, 843 A.2d 64 (2004) (citing United States v. Beasley , 464 F.2d 468 (10th Cir. 1972) ); Com. v. Smith , 403 Mass. 489, 531 N.E.2d 556 (1988) ; State v. Bindyke , 288 N.C. 608, 220 S.E.2d 521 (1975) ; Brigman v. State , 350 P.2d 321 (Okla. Crim. App. 1960) ; Commonwealth v. Krick , 164 Pa. Super. 516, 67 A.2d 746 (1949). See, Smith, supra note 11; Bindyke, supra note 11 (citing Beasley, supra note 11; State v. Cuzick , 85 Wash. 2d 146, 530 P.2d 288 (1975) ; and Krick, supra note 11).
See Cantrell v. State, 265 Ark. 263, 266, 577 S.W.2d 605, 607 (1979); People v. Burnette, 115 P.2d 583, 586-87 (Colo. 1989); Claudio v. State, 585 A.2d 1278, 1284-85 (Del. 1991); Bulls v. United States, 490 A.2d 197, 200 (D.C. 1985); State v. Wideman, 69 Haw. 268, 269, 739 E2d 931, 932 (1987); James v. State, 14 Md. App. 689, 698-99, 288 A.2d 644, 650 (1972); People v. Dry Land Marina, 175 Mich. App. 322, 328, 437 N.W.2d 391, 393-94 (1989); State v. Button, 53 Ohio St. 36, 46, 559 N.E.2d 432, 444 (1990); Brigman v. State, 350 P.2d 321, 322-23 (Okla.Crim.App. 1960); State v. Bobo, 814 S.W.2d 353, 355 (Tenn. 1991); State v. Cuzick, 11 Wash. App. 539, 541, 524 P.2d 457, 458-59 (1974).
" Commonwealth v. Smith (1988), 403 Mass. 489, 494, 531 N.E.2d 556, 559. See Brigman v. State (Okla.Crim.App. 1960), 350 P.2d 321, 323. Still another court has stated that "any time an alternate juror is in the jury room during deliberations he participates by his presence, and whether he says little or nothing, his presence will void the trial." State v. Bindyke (1975), 288 N.C. 608, 627-628, 220 S.E.2d 521, 533. Finally, several courts have written of the difficulty and dangers of inquiring into the prejudicial effect of an alternate juror's presence in jury deliberations.
This fundamental right was found to be violated when an alternate juror was permitted to participate in a jury's deliberations. Brigman v. State, Okla. Cr. 350 P.2d 321 [1960]. In another case where the jury selection process was being challenged, we concluded that all the parties may demand a fair and impartial jury (a) composed of jurors possessing the requisite statutory qualifications, (b) selected and impaneled in the mode prescribed by law and (c) without illegal discrimination of any character.