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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent-Petitioner

v.

Clarence E Aldret Petitioner-Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Georgetown County

E.C. Burnett, III, Circuit Court Judge

Opinion No. 24876

Heard November 5, 1998 Filed January 4, 1999

AFFIRMED IN PART; REVERSED IN PART.

Stephen P. Groves, Sr. and Stephen L. Brown, both

of Young, Clement, Rivers & Tisdale, Charleston,

and Reese I. Joye and John L. Drennan, both of Joye

Law Firm, North Charleston, for

petitioner/respondent.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Deputy

Assistant Attorney General Salley W. Elliott, all of

Columbia, and Solicitor Ralph J. Wilson, of Conway,

for respondent/petitioner.

p. 16

STATE v. ALDRET

WALLER, A.J.: We granted certiorari to review the Court of

Appeals' opinion in State v. Aldret, 327 S.C. 321, 489 S.E.2d 635 (Ct. App

. 1997). We affirm in part, reverse in part.

FACTS

Aldret was convicted of driving under the influence (DUI). Following the

jury's verdict, Aldret moved for a new trial, contending the jury had engaged in

premature deliberations. In support of this motion, he submitted the affidavit

of an alternate juror, Dr. Martin Laskey. The trial court refused to consider the

affidavit and denied the new trial motion. On appeal, the Court of Appeals

originally reversed and remanded for a new trial, finding the trial court erred

in refusing to consider the Laskey affidavit. On rehearing, the Court of Appeals

determined a remand was appropriate to determine whether the jury had

prematurely begun deliberations and whether Aldret had been prejudiced

thereby.

ISSUES

Did the Court of Appeals err in ruling the trial court should have

considered the affidavit?

2. Did the Court of Appeals err in remanding the matter, rather

than reversing outright for a new trial?

1. JUROR AFFIDAVIT

It has long been the rule in this state that a juror's testimony is not

admissible in order to prove either his own misconduct or that of fellow jurors.

State v. Thomas, 268 S.C. 343, 234 S.E.2d 16 (1977); Barsh v. Chrysler Corp.,

262 S.C. 129, 203 S.E.2d 107 (1974). Recently, however, this Court has moved

away from the traditional rule, holding juror testimony regarding internal jury

misconduct may be admissible if necessary to ensure fundamental fairness.

State v. Hunter, 320 S.C. 85, 463 S.E.2d 314 (1995)1. See also McDonald v.

1see also Rule 606(b), SCRE. It provides:

(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into

p. 17

STATE v. ALDRET

Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915)2. The question here is

whether the misconduct in this case, i.e., premature jury deliberations, involves

a matter of fundamental fairness. We hold that it does, and accordingly, we affirm

the Court of Appeals' holding on this issue.

We have routinely held instructions which invite jurors to engage in

premature deliberations constitute reversible error. See State v. Thomas, 307

S.C. 278, 414 S.E.2d 783 (1992); Gallman v. State, 307 S.C. 2732 414 S.E.2d 780

(1992) State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986); State v. Joyner, 289

S.C. 4362 346 S.E.2d 711 (1986); State v. McGuire, 272 S.C. 547, 253 S.E.2d 103

(1979); State v. Gill, 273 S.C. 190, 192, 255 S.E.2d 455, 457 (1979). The

rationale for prohibiting prematurejury deliberations was set forth in McGuire,

supra, in which we stated:

[A] jury should not begin discussing a case, nor deciding the issues,

until all of the evidence, the argument of counsel, and the charge

of the law is completed.... The reason for the rule is apparent. The

human mind is constituted such that when a juror declares himself,

touching any controversy, he is apt to stand by his utterances to the

other jurors in defiance of evidence. A fair trial is more likely if

each juror keeps his own counsel until the appropriate time for

deliberation.

the validity of a verdict or indictment, a juror may not testify as to any matter

or statement occurring during the course of the jury's deliberations or to the

effect of anything upon that or any other juror's mind or emotions as influencing

the juror to assent to or dissent from the verdict or indictment or concerning the

juror's mental processes in connection therewith, except that a juror may testify

on the question whether extraneous prejudicial information was improperly

brought to the jury's attention or whether any outside influence was improperly

brought to bear upon any juror. Nor may a juror's affidavit or evidence of any

statement by the juror concerning a matter about which the juror would be

precluded from testifying be received for these purposes.

2 Aldret's Motion for a New Trial is not contained in the Appendix. It

appears, however, that the motion was not based upon any extraneous

prejudicial information brought to thejury's attention by Juror Laskey, but was

based solely upon internal misconduct, i.e., the jury's allegedly premature

deliberations. Juror testimony or affidavits are generally admissible in the case

of an extraneous influence. Hunter, supra.

p. 18

STATE v. ALDRET

Similarly, other courts have recognized premature deliberations may affect the

fundamental fairness of a trial. See United States v. Resko, 3 F.3d 684 (3d Cir

. 1993), cert. denied, 510 U.S. 1205 (1994)(prohibition against premature

deliberations protects defendant's right to a fair trial as well as his or her due

process right to place burden on the government to prove its case). Accordingly,

we hold premature jury deliberations may affect "fundamental fairness" of a

trial such that the trial court may inquire into such allegations and may

consider affidavits in support of such allegations.

However, under the circumstances of this case, we find no error in the

trial court's refusal to conduct further inquiry. We have routinely held that a

party must object at the first opportunity to preserve an issue for review. State

v. Sullivan, 310 S.C. 311,426 S.E.2d 766 (1993); State v. Williams, 303 S.C. 410,

401 S.E.2d 168 (1991). A contemporaneous objection is required to preserve an

issue for appellate review. Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35

(1996). Here, prior to the jury's verdict, counsel for Aldret, in talking to Juror

Laskey, discovered the jury's allegedly premature deliberations. Although

Aldret's brief indicates this information was made known to the trial judge and

the state prior to the verdict, there is no indication on the record that the trial

judge was made aware of this fact, or that the trial court was asked, prior to the

verdict, to question thejurors regarding any premature deliberations. Had such

a request been timely made, the court could have voir dired the jury prior to its

verdict to determine if, in fact, there had been premature deliberations, and

whether Aldret had been prejudiced thereby. See United States v. Bertoli, 40

F.3d 1384, 1994, n.5 (3d Cir. 1994).

In light of Aldret's failure to call the alleged juror misconduct to the trial

court's attention at his first opportunity to do so, we hold he is procedurally

barred from raising the issue. Cf United States v. Nance, 502 F.2d 615 (8th Cir.

1974), cert. denied 420 U.S. 965 (1975)(where counsel discovered during jury's

deliberations that it had prematurely deliberated, but counsel waited until after

jury's verdict to raise issue of premature deliberations, court held he was barred

from raising issue on motion for new trial). Accordingly, although we affirm the

Court of Appeals' ruling that a trial judge may consider affidavits when

inquiring into allegations of premature jury deliberations, we reverse its holding

that the trial judge in this case committed error in failing to do so.

p. 19

STATE v. ALDRET

2. REMEDY3

At oral argument before this Court, the, state maintained that jury

misconduct in the form of premature deliberations did not warrant automatic

reversal, and that the burden was on the defendant to demonstrate that such

deliberations affected the jury's verdict. We agree.

We recently held the trial court has broad discretion in assessing

allegations of juror misconduct. State v. Kelly, 331 S.C. 132, 502 S.E.2d 99

(1998). In Kelly, we stated, "unless the misconduct affects the jury's

impartiality, it is not such misconduct as will affect the verdict." Kelly was a

death penalty case in which a religious pamphlet concerning God's view of the

death penalty was circulated in the jury room. This Court found Kelly had

failed to demonstrate prejudice from the presence of the pamphlet in the jury

room, and that the pamphlet had not affected the jury's verdict.4

Given that we have not found automatic reversal warranted even in cases

of external influences on a jury's verdict, we decline to do so in the cases of

internal misconduct consisting of premature deliberations. Accord, United

States v. Olano, 507 U.S. 725, 736-38, 113 S.Ct. 1770, 1779-80, 123 L.Ed. 2d 508

3 Since we hold Aldret is procedurally barred from raising the issue of

premature deliberations, we would ordinarily decline to address the remaining

question. However, in light of our holding that premature deliberations may

affect the fundamental fairness of a trial, such that affidavits may be considered

by the trial judge, we set forth, for the benefit of bench and bar, the proper

procedure for trial courts to follow in such cases.

4Notwithstanding cases of this Court holding an improper instruction

allowing the jury to prematurely deliberate inherently prejudicial, State v. Gill,

supra; State v. Thomas, supra, we find a distinction between instructions from

the trial court inviting premature deliberations, and a case in which a jury

prematurely deliberates without such invitation. See State v. Hoffman, 312

S.C. 386, 440 S.E.2d 869 (1994); State v. Barroso, 320 S.C. 1, 462 S.E.2d 862

(Ct. App. 1995) rev'd on other grounds, 328 S.C. 268, 493 S.E.2d 854 (1997)

(suggesting, in the absence of judicial encouragement of premature

deliberations, a curative instruction might suffice where a jury is suspected of

premature deliberations). Accord United States v. Nance, 502 F.2d 615 (8th

Cir. 1974), cert. denied 420 U.S. 965 (1975)(noting distinction in cases involving

improper instruction encouraging premature deliberations).

p. 20

STATE v. ALDRET

(1993)(U.S. Supreme Court generally analyzes outside intrusions upon jury for

prejudicial impact).

Our decision is consistent with the majority of jurisdictions which hold a

defendant must demonstrate prejudice from jury misconduct in order to be

entitled to a new trial5. See United States v. Bertoli, 40 F.3d 1384 (3d Cir.

. 1994) (trial judge should, through voir dire, decide impact of premature jury

deliberations and effectiveness of curative instructions); United States v. Resko,

3 F.3d 684 (3d Cir. 1993)(prejudice is touchstone of entitlement to a new trial

when improper intra-jury influences are at issue); United States v. Carmona,

858 F.2d 66, 69 (2d Cir. 1988); Unites States v. Klee, 494 F.2d 394 (9th Cir.)

cert. denied 419 U.S. 835, 95 S.Ct. 62) 42 L.Ed.2d 61 (1974)(not every instance

of misconduct warrants a new trial; test is whether misconduct has prejudiced

the defendant to the extent he did not receive a fair trial); Stockton v. Com. of

Va., 852 F.2d 740 (4th Cir. 1988) cert. denied 479 U.S. 1071 (unrealistic to think

jurors will never comment to each other on any matters related to trial); United

States v. Piccarreto, 718 F.Supp. 1088 (W.D. N.Y.. 1989)(given length and

nature of trial, it is not surprising a juror may make some comments as trial

progresses; new trial is not warranted absent evidence showing such

discussions shaped final deliberations or improperly influenced jurors or

prejudiced defendants); Gov't of V.I. v. Dowlin , 814 F.2d 134 (3d Cir.

1987)(trial court has discretion to assess postverdict inquiries); People v. Redd,

561 N.Y.S.2d 439 (1990); Hunt v. Methodist Hospital, 485 N.W.2d 737 (Neb.

1992)(party claiming juror misconduct has burden to prove prejudice by clear

and convincing evidence); State v. Hays, 883 P.2d 1093 (Kan. 1994); People v.

Renaud, 942 P.2d 1253 (Colo. Ct. App. 1996)(conviction will not be overturned

based on allegations of juror misconduct unless the defendant affirmatively

establishes misconduct occurred and that he/she was prejudiced thereby);

5Some courts disallow any inquiry into allegations of premature

deliberations since such allegations do not involve an extraneous influence over

the jury. See United States v. Camacho 865 F.Supp. 1527 (S.D. Fla.

1994)(premature discussions and expressions of opinions as to guilt or

innocence not grounds to interview jurors since activity lacks extrinsic

influence); Tejada v. Dugge, 941 F.2d 1551 (11th Cir. 1991) cert. denied 502

U.S. 1105 (1992) (court not required to conduct hearing where defendant

alleged premature deliberations as he failed to allege presence of any

extraneous information or outside influence); United States v. Caldwell, 83 F.3d

954 (8th Cir. 1996); United States v. Cuthel, 903 F.2d 1381 (11th Cir. 1990);

State v. Frazier, 683 S.W.2d 346 (Tenn. Crim. App. 1984).

p. 21

STATE v. ALDRET

Commonwealth v. Maltais, 438 N.E.2d 847 (Mass. 1982).

Accordingly, we hold the burden is on the party alleging premature

deliberations to establish prejudice. Further, to assist the trial courts of this

state, we set forth the following suggested procedure to follow in cases in which

an allegation of premature deliberations arises.

If such an allegation arises during trial,6 the trial court should conduct

a hearing to ascertain if, in fact, such premature deliberations occurred, and if

the deliberations were prejudicial. If requested by the moving party, the court

may voir dire the jurors and, if practicable, "tailor a cautionary instruction to

correct the ascertained damage." United States v. Resko, 3 F.3d at 695. If the

trial court determines the deliberations were prejudicial, such findings should

be set forth on the record, and a new trial ordered.

If, on the other hand, the fact of the premature deliberations does not

become apparent until after the jury's verdict, we hold the trial court may

consider affidavits as set forth in Issue 1. If the trial court finds the affidavits

credible, and indicative of premature deliberations, an evidentiary hearing

should be held to assess whether such deliberations in fact occurred, and

whether they affected the verdict. At such an evidentiary hearing, the trial

court may, upon request of the moving party, reassemble the jurors and conduct

voir dire to ascertain the nature and extent of the premature deliberations.7 If

the court determines the misconduct did not occur, or that it was not

prejudicial, adequate findings should be made so that the determination may

be reviewed. Hunt v. Methodist Hospital, 485 N.W.2d 737 (Neb. 1992). If the

court is convinced premature deliberations did, in fact, occur, but finds it

impossible to conduct an adequate posttrial inquiry due to the passage of time,

a new trial may be ordered. Accord United States v. Resko, supra.

CONCLUSION

6As noted in Issue 1, such allegations must be raised at the first

opportunity in order to be preserved for review. State v. Sullivan, supra; State

v. Williams, supra.

7 In the present case, we find no request in the record that the trial court

voir dire the jurors regarding premature deliberations.



p.22

STATE v. ALDRET

We affirm the Court ofAppeals'holding that premature jury deliberations

may affect the fundamental fairness of a trial such that a trial judge may

consider affidavits alleging such misconduct. We hold, further, that in such

cases, the burden is on the moving party to demonstrate prejudice from the

premature deliberations. In light of Aldret's delay in seeking relief in this case,

however, and his failure to specifically request the trial court to voir dire the

jurors concerning the premature deliberations, we affirm his conviction for DUI.

AFFIRMED IN PART, REVERSED IN PART.

FINNEY, C.J., TOAL, MOORE, JJ., and Acting Associate Justice

George T. Gregory, Jr., concur.





p.23