THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent-Petitioner
Clarence E Aldret Petitioner-Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
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
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,
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.
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
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
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
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.
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.
STATE v. ALDRET
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).
STATE v. ALDRET
(1993)(U.S. Supreme Court generally analyzes outside intrusions upon jury for
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).
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.
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.
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.