SC Judicial Department

2011-UP-462 - Bartley v. Ford Motor Company

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Freddie Bartley, as Personal Representative of the Estate of Rachel Bartley, Appellant,

Ford Motor Company, Respondent.

Appeal From Edgefield County
William P. Keesley, Circuit Court Judge

Unpublished Opinion No. 2011-UP-462
Heard September 12, 2011 � Filed October 19, 2011

AFFIRMED

D. Mike Kelly, of Columbia and R. Graham Esdale, Jr. and J. Cole Portis, both of Montgomery, Alabama, for Appellant.

J. Kenneth Carter, Jr. and Carmelo V. Sammataro, both of Columbia and William J. Conroy, of Philadelphia, Pennsylvania, for Respondent.

PER CURIAM: On appeal, Freddie Bartley, as personal representative of the estate of Rachel Bartley, asserts the circuit court abused its discretion by excusing a juror the court observed sleeping and impaneling an alternate during closing arguments.�

1. We find no error in the circuit court's decision to replace the sleeping juror with an alternate.� Whether to replace a juror with an alternate is a matter within the sound discretion of the circuit court, and its decision will not be reversed on appeal absent an abuse of discretion.� State v. Carmack, 388 S.C. 190, 198, 694 S.E.2d 224, 228 (Ct. App. 2010); State v. Bell, 374 S.C. 136, 147, 646 S.E.2d 888, 894 (Ct. App. 2007).� Bartley's reliance on State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct. App. 1996), is misplaced.� In Hurd, counsel brought the sleeping juror to the attention of the court, and the circuit court implicitly acknowledged the juror was in fact asleep during some parts of the closing arguments and the jury charge, but the circuit court refused a request to question the juror or replace the juror.� Id. at 384, 480 S.E.2d at 97. �Here, the circuit court brought the sleeping juror to the attention of trial counsel, attempted to put several safeguards into place to prevent the dismissal of the sleeping juror, but ultimately had to replace the juror with a qualified, alternate juror.[1]� As this court held in Hurd, "the [circuit court] should have either determined whether the juror was in fact asleep, recharged the entire jury, or replaced the juror."� Id. at 384, 480 S.E.2d at 97 (emphasis added).� By replacing the sleeping juror with a qualified, alternate juror, the circuit court did not abuse its discretion in refusing Bartley's request to question the juror as to whether she heard all of the closing arguments.

2. Even if the circuit court abused its discretion, Bartley failed to prove he was prejudiced by the circuit court's decision to replace the sleeping juror with an alternate juror.� South Carolina law has consistently rejected a per se reversible error rule and has required the defendant to prove prejudice.� See State v. Grovenstein, 335 S.C. 347, 352, 517 S.E.2d 216, 218 (1999) (rejecting a presumption of prejudice and holding a defendant must establish he was denied a fair trial as a result of an alternate juror's momentary participation in jury deliberations); State v. Wasson, 299 S.C. 508, 510, 386 S.E.2d 255, 256 (1989) (stating the burden is on the defendant to show not only error but resulting prejudice from jurors' reading of trial-related newspaper article); State v. Bonneau, 276 S.C. 122, 125, 276 S.E.2d 300, 301 (1981) (holding that it is incumbent on a defendant to demonstrate the presence of an alternate juror denied him a fair trial).� The alternate juror had been approved by both sides at the inception of the trial, and there was no showing that Bartley withdrew that approval at the time of substitution. Accordingly, Bartley has failed to establish in what manner this procedure prejudiced him.

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur. ��

[1] The circuit court interrupted Ford's closing argument and excused the jury for a short recess to give the juror an "opportunity to have a shot of caffeine or something."� After a few moments, the circuit court took the extraordinary measure of interrupting Ford's closing argument again to admonish the jury and ensure that the jurors were being attentive.� In addition, the circuit court stated on the record that he "turned the air conditioner down" in an attempt to keep the juror awake.