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No. 21-0114, State of West Virginia v. Quenton A. Sheffield

ARMSTEAD, Justice, dissenting:

I dissent from the majority opinion because I believe that Mr. Sheffield was 

not prejudiced by the substitution of an alternate juror after the start of deliberations. 

Therefore, he received a fair trial in which a twelve-person jury heard the evidence and 

rendered its verdict. Accordingly, I believe his convictions should be affirmed. 

The majority holds that a presumption of prejudice arises when Rule 24(c) 

of the West Virginia Rule of Criminal Procedure is violated and for the State to overcome 

that prejudice, it establishes factors for trial courts to weigh. To reach those conclusions, 

the majority opinion relies heavily on a Pennsylvania case, Commonwealth v. Saunders, 

686 A.2d 25 (Pa. Super. Ct. 1996). In that case, the Pennsylvania Superior Court noted the 

divergent approaches taken by federal and state courts on which party carries the burden 

to demonstrate prejudice in cases of post-deliberation juror substitution. See Id. at 28. The 

majority opinion opted to establish a presumption of prejudice and place the burden upon 

the State to rebut such presumption. However, as noted in Saunders, most federal courts 

place the burden upon the defendant to demonstrate prejudice. Id. citing United States v. 

McFarland, 34 F.3d 1508 (9th Cir.1994), cert. denied, 515 U.S. 1107, 115 S.Ct. 2257, 132 

L.Ed.2d 264 (1995); United States v. Quiroz–Cortez, 960 F.2d 418 (5th Cir.1992); United 

States v. Helms, 897 F.2d 1293 (5th Cir.1990), cert. denied, 498 U.S. 900, 111 S.Ct. 257, 

FILED

June 14, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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112 L.Ed.2d 215 (1990); United States v. Ashby, 864 F.2d 690 (10th Cir.1988); United 

States v. Guevara, 823 F.2d 446 (11th Cir.1987); United States v. Foster, 711 F.2d 871 

(9th Cir.1983); [United States v. Hillard, 701 F.2d 1052, 1056 (2d Cir.1983), cert.

denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983)]; United States v. 

Kopituk, 690 F.2d 1289 (11th Cir.1982), cert. denied, 463 U.S. 1209, 103 S.Ct. 3542, 77 

L.Ed.2d 1391 (1983); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. 

denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Indeed, the issues raised 

by a post-deliberation substitution of an alternate juror were frequently addressed in the 

federal courts, resulting in the 1999 Amendments to Rule 24(c) of the Federal Rules of 

Criminal Procedure which created a mechanism for addressing juror substitution after 

deliberations have begun.

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 As noted in the majority opinion, our West Virginia Rule of 

Criminal Procedure 24(c) provides:

(c) Alternate Jurors. The court may direct that more jurors in 

addition to the regular jury be called and impaneled to sit as 

alternate jurors. Alternate jurors in the order in which they are 

 1 Federal Rule of Criminal Procedure 24(c)(3) now provides a mechanism 

for the federal courts to retain alternate jurors. “The court may retain alternate jurors after 

the jury retires to deliberate. The court must ensure that a retained alternate does not

discuss the case with anyone until that alternate replaces a juror or is discharged. If an 

alternate replaces a juror after deliberations have begun, the court must instruct the jury to 

begin deliberations anew.”

 In light of the majority opinion, I believe West Virginia’s Rule of Criminal 

Procedure 24(c) should also be amended to reflect the practice contained in the revised

federal rule. 
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called shall replace jurors who, prior to the time the jury retires 

to consider its verdict, become or are found to be unable or 

disqualified to perform their duties. Alternate jurors shall be 

drawn in the same manner, shall have the same qualifications, 

shall be subject to the same examination and challenges, shall 

take the same oath, and shall have the same functions, powers, 

facilities and privileges as the regular jurors. An alternate juror 

who does not replace a regular juror shall be discharged after 

the jury retires to consider its verdict. Each side is entitled to 

one peremptory challenge in addition to those otherwise 

allowed by law if one or two alternate jurors are to be 

impaneled, two peremptory challenges if three or four alternate 

jurors are to be impaneled, and three peremptory challenges if 

five or six alternate jurors are to be impaneled. The additional 

peremptory challenges may be used against an alternate juror 

only, and the other peremptory challenges allowed by these 

rules may not be used against an alternate juror.

 Prior to the 1999 Amendments to the Federal Rule, West Virginia’s Rule 

mirrored the Federal Rule. This Court has stated that “when codified procedural rules . . . 

of West Virginia are patterned after corresponding federal rules, federal decisions 

interpreting those rules are persuasive guides in the interpretation of our rules.” State v. 

Kaufman, 227 W. Va. 537, 553 n.33, 711 S.E.2d 607, 623 n.33 (2011) (citations omitted). 

Thus, an examination of pre-1999 federal cases provides a persuasive guide for us in 

determining whether the circuit court protected Petitioner’s right to a trial by jury while at 

the same time balancing the unique circumstances the circuit court faced in this case. The 

Seventh Circuit Court of Appeals dealt with very similar facts to those at bar:
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 The defendant was tried before a jury of twelve regular 

and two alternate members. At the conclusion of the jury 

instructions, the two alternate jurors were discharged, and the 

other jurors retired for deliberations. After two and one-half 

hours of deliberations, one of the jurors suffered a heart attack 

and was taken to the hospital. After stopping deliberations, the 

trial court recalled the two alternate jurors and counsel for the 

State and the defendant Henderson. The court questioned the 

alternate jurors about their activities since discharge. The first 

alternate juror admitted discussing the facts of the case with his 

wife, but added that she expressed no opinion. Both alternate 

jurors assured the court of having reached no conclusion about 

the defendant's guilt.

Henderson v. Lane, 613 F.2d 175, 176 (7th Cir. 1980) (footnote omitted). After conferring 

with counsel, the trial court substituted the first alternate juror and Mr. Henderson was 

convicted. Id. On these facts, the Seventh Circuit court held that “[t]he juror was reinstated 

in the presence of the petitioner's attorney only after reaffirming his ability to make a fair 

decision in the case. Because the essential feature of the jury was preserved, the defendant's 

Sixth Amendment challenge to the substitution procedure must fail.” Id., at 179.

 

 Similarly, the Eleventh Circuit Court of Appeals held: 

Our decision that substitution of the alternate juror after 

deliberations had begun does not constitute reversible error 

should not be misconstrued as a stamp of approval upon such 

a practice. As was true in Phillips, the trial court's decision to 

substitute the alternate was made in the context of a trial of 

truly epic proportions in terms of length, scope and expense to 

both sides. . . .
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It is not our intention, nor is it within our province, to 

authorize routine deviation from the terms of Rule 24(c). That

rule is ‘the rule’ and the substituted juror procedure upheld 

herein is a narrowly limited exception to the rule, applicable 

only in extraordinary situations and, even then, only when 

extraordinary precautions are taken, as was done below, to 

ensure that the defendants are not prejudiced.

United States v. Kopituk, 690 F.2d 1289, 1311 (11th Cir. 1982).

 In reviewing the record in the case before us, I do not believe that Mr. 

Sheffield was prejudiced by the substitution of the alternate juror. The circuit court 

empaneled twelve jurors and two alternate jurors. Immediately prior to deliberations, the 

circuit court excused the alternate jurors. After deliberations began, the circuit court 

learned that one of the seated jurors was seen speaking with a witness during the course of 

the trial. Upon learning of this, the circuit court halted deliberations, held voir dire of the 

entire panel, and ultimately excused the juror who had spoken with a witness. Mr. Sheffield

moved for a mistrial. The circuit court then directed that the Clerk contact the first alternate 

juror and have her report the next day. The alternate juror appeared and joined the 

remaining 11 jurors in deliberations, after Mr. Sheffield’s trial counsel and the circuit court 

conducted voir dire of the alternate juror. That following colloquy, including questions 

posed by Mr. Sheffield’s counsel, Ms. Givens, is the key to demonstrating that Mr. 

Sheffield was not prejudiced: 
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THE COURT: Welcome back.

JUROR: Thank you.

THE COURT: Have a seat.

Something came up yesterday over – which we learned that 

one of the jurors, we didn’t know which one, maybe had a 

conversation with a witness last Thursday afternoon at 

lunchtime.

We have now determined who that juror was. We excused 

that juror which is why we had to bring you back in as the 

alternate, okay?

Are you okay with serving as a juror on this case, right? 

Because we talked to your employer and they totally 

understood and they were fine with this.

JUROR: Yes, sir.

MS. GIVENS: Your honor, I am sorry to interrupt, but I 

would have just a couple of short questions for her.

THE COURT: Okay.

DIRECT EXAMINATION

BY MS. GIVENS:

Q. When you were excused from the jury yesterday, did you 

speak to anyone about the case after you left?

A. No, I did not.

Q. You didn’t go home and discuss it with your family or 

anyone?

A. No.

MS. GIVENS: Thank you.
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....

THE COURT: Anything else?

BY MS. GIVENS:

Q. Would there be any further hardship on you to deliberate 

this case however long it takes?

A. No.2

(footnote added).

Importantly, all parties and the Court had an opportunity to question the 

alternate juror before she was seated with the panel. Thereafter, the alternate juror was 

seated with the remaining eleven jurors, and the circuit court instructed the jury to begin 

deliberations anew:

Therefore, you must set aside and disregard all past 

deliberations and begin your deliberations all over again. Each 

of you must disregard the earlier deliberations and decide this 

case as if those earlier deliberations have not taken place.

We will exit and you can start your deliberations from 

the beginning.

2 As demonstrated by this colloquy, Petitioner’s counsel had the opportunity 

to question the alternate juror prior to the juror joining the remaining jurors and beginning 

deliberations in this matter. To the extent Petitioner objects to the fact that additional 

inquiry should have been undertaken, Petitioner had the opportunity to ask additional 

questions or request additional inquiry by the court and failed to do so. Accordingly, I 

believe Petitioner waived such objection. 
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The jury subsequently deliberated and rendered its verdict, finding Mr. Sheffield guilty on 

all counts.

The majority opinion gives inadequate weight to the process followed by the 

circuit court in its effort to protect Mr. Sheffield’s right to a trial by jury. The circuit court 

took significant steps to ensure that Mr. Sheffield was not prejudiced. The alternate juror 

was questioned and answered all questions satisfactorily. The jury was instructed to start 

its deliberations from the beginning. The circuit court took appropriate steps in light of the 

unique circumstances it faced – steps which provided adequate safeguards and did not 

violate Mr. Sheffield’s right to a fair jury trial by twelve persons. 

Under these facts, and based upon the federal precedents discussed above, I 

believe the majority incorrectly determined that there is a presumption of prejudice that the 

State must overcome. Certainly, if Mr. Sheffield could demonstrate prejudice due to the 

seating of the alternate juror, he would be entitled to a new trial. However, there should 

be no presumption that such prejudice exists and I disagree with the majority’s adoption of 

a rule presuming such prejudice. Instead, adoption of a rule requiring the Petitioner to 

show prejudice not only provides Petitioner with the opportunity to point to evidence of 

such prejudice but is also in harmony with our long-standing rule that we give great weight 
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to decisions from federal courts regarding the same or similar provisions of the Rules. See

Kaufman, 227 W. Va. at 553 n.33, 711 S.E.2d at 623 n.33.

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 In addition, even under the 

presumption of prejudice standard adopted by the majority, the evidence in this case, 

nonetheless, shows that the Petitioner was not prejudiced by the seating of the alternate 

juror. The circuit court took reasonable steps to ensure there was no such prejudice, 

including the questions asked of the alternate juror and the instructions given to the jury as 

a whole that it must begin its deliberations anew once the alternate juror joined the jury. 

Regardless of whether the State bears the burden to show the absence of prejudice, or the 

3 In addition, affirming the circuit court’s seating of the alternate juror, with 

the accompanying precautions undertaken by the circuit court to protect the Petitioner’s 

rights a fair trial, avoids the additional time and expense of a retrial. Indeed, the majority’s 

reversal of Petitioner’s conviction and the likelihood of a retrial, when Mr. Sheffield was 

not prejudiced, does not further the interests of justice in this case. As this Court has found:

Wholesale invalidation of convictions rendered years ago 

could well mean that convicted persons would be freed 

without retrial, for witnesses . . . no longer may be readily 

available, memories may have faded, records may be 

incomplete or missing, and physical evidence may have 

disappeared. Society must not be made to tolerate a result of 

that kind when there is no significant question concerning the 

accuracy of the process by which judgment was rendered or, in 

other words, when essential justice is not involved.

Bowman v. Leverette, 169 W. Va. 589, 612 n.17, 289 S.E.2d 435, 448 n.17 (1982) quoting 

Gosa v. Mayden, 413 U.S. 665, 685 (1973).
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Petitioner bears the burden to prove prejudice, there simply was no prejudice demonstrated 

here. Accordingly, I respectfully dissent and would affirm the Petitioner’s conviction.