The Supreme Court of South Carolina
The State, Petitioner,
Gary Grovenstein, Respondent.
The opinion heretofore filed in this case, Opinion No. 24933, filed April
192 1999, is withdrawn and the attached opinion is substituted in its place.
Respondent's Petition for Rehearing is denied.
Columbia, South Carolina
June 1, 1999
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State Petitioner,
Gary Grovenstein Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Aiken County
Henry F. Floyd, Circuit Court Judge
Opinion No. 24933
Heard March 4, 1999 Refiled June 1, 1999
REVERSED AND REMANDED
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and
Assistant Attorney General G. Robert DeLoach, III,
all of Columbia, and Solicitor Barbara R. Morgan, of
Aiken, for petitioner.
J. Edward Bell, III , of Bell and Moore, of Sumter,
and Robert J. Harte, of Aiken, for respondent.
STATE v. GROVENSTEIN
WALLER, A.J.: We granted a writ of certiorari to review the Court of
Appeals' opinion in State v. Grovenstein, 328 S.C. 548, 493 S.E.2d 865 (Ct. App.
1997). We reverse.
Grovenstein was convicted of two counts of first degree criminal sexual
conduct (CSC) with a minor and one count of second degree CSC with a minor;
he was sentenced to a total of forty years imprisonment.
At the conclusion of Grovenstein's trial, the jury was sent to the jury room
to begin deliberations. Twenty to thirty minutes later, it was discovered that
the alternate juror, Sheila Coleman, had been sent to the jury room with the
remaining jurors.1 She was removed and questioned by the trial court. She
advised the judge that the jury had taken one "preliminary vote" as to where
everybody was going to stand, and in which she had participated. Coleman also
advised the court the jury had discussed the case in her presence, "a little bit...
The trial court called the remainder of the jury to the courtroom and
instructed them that the alternate should have been removed, and that it was
the remaining jurors' responsibility to reach a verdict without regard to
anything the alternate had said or done. The court then inquired as follows:
Is there any member of the jury panel who feels they can not follow
that instruction or have been influenced by any... in any manner by
Ms. Coleman while she was in the jury room for some twenty to
thirty minutes? Any member of the jury panel feel that they would
be influenced by her presence or any action in the jury room? If so,
I want you to tell me now because I need to know that. Anyone?
Any member of the jury panel has any difficulty in disregarding the
fact... any action, or word, or deed done during the ... while she was
in the jury room during that twenty to thirty minute period of time?
Any juror can not disregard that?
1S.C. Code Ann.§14-7-1340 (1976) requires that- "alternate jurors shall
... be discharged upon the final submission of the case to the jury."
STATE v. GROVENSTEIN
Any juror... and I'm assuming no response means you can do that.
Any member of the jury panel who can not follow the instruction
that you twelve must make a unanimous decision in this case? If
so, please indicate now.
Both the defense and the state declined the court's invitation for further inquiry
or instructions. The jury was returned to the jury room at 11:15 am and, four
and one-half hours later, returned with guilty verdicts at 3:45 PM.
The Court of Appeals reversed Grovenstein's convictions, finding the
presence of the alternate juror in the jury room during deliberations entitled
him to a presumption of prejudice which the State had failed to rebut.
1. Did the Court of Appeals properly adopt a "presumption of
2. Were the trial court's curative measures sufficient to remedy any
1. PRESUMPTION OF PREJUDICE
In State v. Bonneau, 276 S.C. 122) 276 S.E.2d 300 (1980), this Court held
it was "incumbent on the appellant to ... prove that he was denied a fair trial"
due to an alternate's presence in the jury room. The Court of Appeals found
Bonneau factually dissimilar such that it was not dispositive.
In Bonneau, the trial court instructed jurors not to begin deliberations
until it had sent in the indictments and exhibits. The jury, including the
alternate, was then sent out of the courtroom for approximately 10-15 minutes
while the court discussed its charge with the attorneys. The defendant
appealed, contending the presence of the alternate had deprived him of a fair
trial. This Court held the alternate's brief presence had not deprived Bonneau
of a fair trial, noting that the remaining members of the jury.iiad continued to
deliberate 45 minutes after the alternate was excused. Significantly, in
STATE v. GROVENSTEIN
Bonneau, we recognized, but rejected, authority in other jurisdictions holding
the presence of an alternate juror to be per se reversible error. Although the
Court of Appeals recognized Bonneau as "an implicit rejection of the reversible
error per se rule," 493 S.E.2d at 871, it nonetheless saw fit to apply a
presumption of prejudice to Grovenstein. This is simply in contravention of
Bonneau's specific holding that it is incumbent on the defendant to demonstrate
he was denied a fair trial by the presence of an alternate. We see no reason to
limit Bonneau's basic holding that a defendant must establish prejudice. We
have consistently required defendants to demonstrate prejudice due to improper
Moreover, subsequent to issuance of the Court of Appeals' opinion in this
case, this Court decided State v. Aldret, 333 S.C. 307,509 S.E.2d 811 (1999) and
State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998). Aldret involved jury
misconduct in the form of premature deliberations. We held such misconduct
did not warrant automatic reversal, and that the burden was on the defendant
to demonstrate prejudice. In Kelly, we addressed the impact of a religious
pamphlet circulated in the jury room during the penalty phase of a capital trial.
We stated, "unless the misconduct affects the jury's impartiality, it is not such
misconduct as will affect the verdict." In both Aldret and Kelly, the defendant
failed to meet his burden of demonstrating prejudice.
1 The Court of Appeals, citing State v. Wasson, 299 S.C. 508, 386 S.E.2d
255 (1989) and State v. Carrigan, 284 S.C. 610, 328 S.E.2d 119 (Ct.App.1985),
found a presumption of prejudice analysis consistent with other South Carolina
cases. We disagree. Wasson specifically held the burden was on the defendant
to show not only error, but resulting prejudice; Carrigan held the mere fact that
some conversation occurs between a juror and a witness for the State does not
necessarily prejudice a defendant. These cases merely stand for the proposition
that if some extraneous influence is brought to the trial court's attention during
trial, then it is incumbent on the trial judge to attempt to ascertain whether
such influence was prejudicial. The mere fact that the court is required to
examine an acknowledged error for prejudice is not, however, tantamount to a
presumption of prejudice. Further, in the case relied on by Wasson, State v.
Salters, 273 S.C. 501, 505, 257 S.E.2d 502, 504 (1979), this Court specifically
recognized that " [s]uch a protective measure is required only upon a reasonable
showing of the potential prejudicial effect of the publicity." Accordingly, we
disagree with the Court of Appeals' assertion that case law, has generally
applied a presumption of prejudice analysis to improper jury influences.
STATE v. GROVENSTEIN
We see no reason to distinguish between improper jury influences in the
form of alternate juror participation, and influences such as the premature
deliberations in Aldret, or the religious pamphlets in the jury room during the
sentencing phase of Kelly.3 Accordingly, we hold the burden was on
Grovenstein to demonstrate prejudice, and the Court of Appeals adoption of a
presumption of prejudice standard is reversed.4
2. CURATIVE INSTRUCTIONS
Finally, the Court of Appeals held the state had not met its burden of
rebutting the presumption of prejudice. Given our holding above, the burden
was not on the state and we therefore reverse the Court of Appeals' holding on
this issue. Moreover, we find the trial court's inquiry and instructions were
sufficient to remedy the error.
An instruction to disregard incompetent evidence is usually deemed to
have cured the error. State v. Reid, 324 S.C. 74, 476 S.E.2d 695 (1996).
Moreover, jurors are presumed to follow the law as instructed to them. State
v. Ard, 332 S.C. 370, 505 S.E.2d 328 (1998).
3 Notably, in United States v. Olano, 507 U.S., 725, 738, 736-38, 113 S.Ct.
17702 1780, 123 L.Ed. 2d 508 (1993), the United States Supreme Court
examined the presence of an alternate juror during deliberations as an external
influence on the jury, akin to which the Court had generally analyzed for
prejudicial impact. 507 U.S. at 738, 113 S.Ct. at 1780.
4 Our holding is consistent with those of numerous federal courts which
uphold convictions notwithstanding actual participation by an alternate juror.
See United States v. Hill, 91 F.3d 1064 (8th Cir. 1996)(allowing alternate juror
to deliberate during first two and one-half hours of deliberations did not entitle
defendant to new trial as court would not presume prejudice); United States v.
Bendek, 146 F.3d 1326 (11th Cir. 1998), cert. denied 1999 WL 25156 (Feb. 22,
1999)(permitting alternate to deliberate and return verdict with remaining
jurors did not warrant reversal as alternate's presence did not affect integrity
of proceedings); United States v. Acevedo, 141 F.3d 1421 (1 1th Cir. 1998), cert.
denied 1999 WL 79979 (Feb. 22, 1999)(where two alternates deliberated and
returned verdict with jury, trial courts instructions that regular jurors were to
begin deliberations anew removed any threat of prejudice,- notwithstanding
remaining jurors reached guilty verdict after "re-deliberating" for 5 more
STATE v. GROVENSTEIN
Here, when the trial court discovered the alternate's presence in the jury
room, she was immediately removed and questioned regarding her
participation. She advised the jury had taken one preliminary vote in which
she had participated, and had discussed the case "a little bit... not much." The
trial court then called the jury to the courtroom and instructed that it was the
jury's responsibility to reach a verdict without regard to anything the alternate
had said or done and then thoroughly inquired as to whether the jurors could
put aside anything Coleman had said or done. Receiving no response, and with
no further request for inquiry from counsel,5 the jury was permitted to return
to its deliberations; after deliberating for another 4&1/2 hours, the jury
returned a guilty verdict. Under these circumstances, we find the trial court's
inquiry and instructions to the jury were sufficient to cure any error. Accord
United States v. Acevedo, 141 F.3d 1421 (11th Cir. 1998)(dismissal of alternates
permitted to deliberate and render verdict with jury not prejudicial where trial
court instructed jury, minus the alternates, to begin deliberations anew).
For the, benefit of bench and bar, we advise trial courts of this state, upon
discovering an alternate has inadvertently been permitted into the jury room,
to undertake precautionary measures similar to those taken by the trial court
in this case. Initially, the trial judge should remove the alternate and inquire
as to the extent of that juror's participation. The court should then conduct
such voir dire as is necessary of the remaining jury panel, similar to that
recently set forth by this Court in Aldret, to ascertain prejudice and, if
practicable, tailor instructions requiring the jury to disregard the alternate's
input and, in essence, requiring the jury to begin deliberations anew. If the
trial court finds deliberations have proceeded too far, or that the alternate's
impact upon remaining jury members may not be remedied, a mistrial should
be had and a new trial ordered.
We hold the burden is on the defendant to demonstrate prejudice from the
presence of an alternate juror during jury deliberations, and the Court of
5 Grovenstein attempts to distinguish our affirmance in State v. Kelly
supra, on the grounds that, there, jurors were individually voir dired to
ascertain the impact of the religious pamphlet. However, Grovenstein declined
the trial court's invitation for further inquiry or instructions. Accordingly, he
may not now complain. Aldret, supra.
STATE v. GROVENSTEIN
Appeals erred in adopting a "presumption of prejudice" standard. Further, we
find Grovenstein failed to meet his burden of demonstrating prejudice.
Accordingly, the Court of Appeals' opinion is reversed and remanded.6
REVERSED AND REMANDED.
TOAL, A.C.J., MOORE, BURNETT, JJ., and Acting Associate
Justice James C. Williams, Jr., concur.
6 As the Court of Appeals reversed Grovenstein's convictions, it did not
address his remaining issues. Accordingly, we remand to the Court of Appeals
for consideration of the other issues raised by Grovenstein.