A BILL TO BE ENTITLED
AN ACT to provide that an alternate juror may replace a juror who is unable to perform the juror's duties, is disqualified from performing the juror's duties, or is discharged for misconduct or other extraordinary cause during deliberation by the jury on the issues.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 9‑18(a) reads as rewritten:
"(a)	Civil Cases. Whenever the presiding judge deems it appropriate, one or more alternate jurors may be selected in the same manner as the regular trial panel of jurors in the case. Each party shall be entitled to two peremptory challenges as to each such alternate juror, in addition to any unexpended challenges the party may have after the selection of the regular trial panel. Alternate jurors shall be sworn and seated near the jury with equal opportunity to see and hear the proceedings and shall attend the trial at all times with the jury and shall obey all orders and admonitions of the court to the jury. When the jurors are ordered kept together in any case, the alternate jurors shall be kept with them. An alternate juror shall receive the same compensation as other jurors. If, before final submission of the case to the jury, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. If, during deliberations, any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations, an alternate juror may become a part of the jury and serve in all respects as those selected on the regular trial panel; however, if an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. If more than one alternate juror has been selected, they shall be available to become a part of the jury in the order in which they were selected."
SECTION 2.  G.S. 15A‑1215 reads as rewritten:
"§ 15A‑1215.  Alternate jurors.
(a)	The judge may permit the seating of one or more alternate jurors. Alternate jurors must be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge. When the jurors are ordered kept together, the alternate jurors must be kept with them. If any juror dies, becomes incapacitated or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. Alternate jurors receive the same compensation as other jurors. The court may retain alternate jurors after the jury retires to deliberate. The court shall ensure that a retained alternate juror does not discuss the case with anyone until that alternate juror replaces a juror or is discharged. If any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations once the jury has begun its deliberations, an alternate juror may become part of the jury and serve in all respects as those selected on the regular trial panel. If an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.
(b)	In all criminal actions in which one or more defendants is to be tried for a capital offense, or enter a plea of guilty to a capital offense, the presiding judge shall provide for the selection of at least two alternate jurors, or more as he deems appropriate. The alternate jurors shall be retained during the deliberations of the jury on the issue of guilt or innocence under such restrictions, regulations and instructions as the presiding judge shall direct. In case of sequestration of a jury during deliberations in a capital case, alternates shall be sequestered in the same manner as is the trial jury, but such alternates shall also be sequestered from the trial jury. If any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations once the jury has begun its deliberations, an alternate juror may become part of the jury and serve in all respects as those selected on the regular trial panel. If an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. In no event shall more than 12 jurors participate in the jury's deliberations."
SECTION 2.1.  G.S. 15A‑1221(a)(10) reads as rewritten:
"(10)	The jury must retire to deliberate, and alternate jurors who have not been seated may be excused as provided in G.S. 15A‑1215."
SECTION 3.  G.S. 15A‑1340.16(a1) reads as rewritten:
"(a1)	Jury to Determine Aggravating Factors; Jury Procedure if Trial Bifurcated. – The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this subsection. Admissions of the existence of an aggravating factor must be consistent with the provisions of G.S. 15A‑1022.1. If the defendant does not so admit, only a jury may determine if an aggravating factor is present in an offense. The jury impaneled for the trial of the felony may, in the same trial, also determine if one or more aggravating factors is present, unless the court determines that the interests of justice require that a separate sentencing proceeding be used to make that determination. If the court determines that a separate proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. If prior to the time that the trial jury begins its deliberations on the issue of whether one or more aggravating factors exist, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. If any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations once the jury has begun its deliberation on the issue of whether one or more aggravating factors exist, an alternate juror may become a part of the jury and serve in all respects as those selected on the regular trial panel; however, if an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. An alternate juror shall become a part of the jury in the order in which the juror was selected. If the trial jury is unable to reconvene for a hearing on the issue of whether one or more aggravating factors exist after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue. A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases."
SECTION 4.  G.S. 15A‑2000(a) reads as rewritten:
"(a)	Separate Proceedings on Issue of Penalty. – 
(1)	Except as provided in G.S. 15A‑2004, upon conviction or adjudication of guilt of a defendant of a capital felony in which the State has given notice of its intent to seek the death penalty, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. A capital felony is one which may be punishable by death.
(2)	The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. If prior to the time that the trial jury begins its deliberations on the issue of penalty, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. If any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations once the jury has begun its deliberation on the issue of penalty, an alternate juror may become a part of the jury and serve in all respects as those selected on the regular trial panel; however, if an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. An alternate juror shall become a part of the jury in the order in which he was selected. If the trial jury is unable to reconvene for a hearing on the issue of penalty after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue of the punishment. If the defendant pleads guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. A jury selected for the purpose of determining punishment in a capital case shall be selected in the same manner as juries are selected for the trial of capital cases.
(3)	In the proceeding there shall not be any requirement to resubmit evidence presented during the guilt determination phase of the case, unless a new jury is impaneled, but all such evidence is competent for the jury's consideration in passing on punishment. Evidence may be presented as to any matter that the court deems relevant to sentence, and may include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (e) and (f) of this section. Any evidence which the court deems to have probative value may be received.
(4)	The State and the defendant or his counsel shall be permitted to present argument for or against sentence of death. The defendant or defendant's counsel shall have the right to the last argument."
SECTION 5.  G.S. 20‑179(a1) reads as rewritten:
"(a1)	Jury Trial in Superior Court; Jury Procedure if Trial Bifurcated. –
(1)	Notice. – If the defendant appeals to superior court, and the State intends to use one or more aggravating factors under subsections (c) or (d) of this section, the State must provide the defendant with notice of its intent. The notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of this section. The notice must list all the aggravating factors that the State seeks to establish.
(2)	Aggravating factors. – The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this section. If the defendant does not so admit, only a jury may determine if an aggravating factor is present. The jury impaneled for the trial may, in the same trial, also determine if one or more aggravating factors is present, unless the court determines that the interests of justice require that a separate sentencing proceeding be used to make that determination. If the court determines that a separate proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
(3)	Convening the jury. – If prior to the time that the trial jury begins its deliberations on the issue of whether one or more aggravating factors exist, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. If any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations once the jury has begun its deliberation on the issue of whether one or more aggravating factors exist, an alternate juror may become a part of the jury and serve in all respects as those selected on the regular trial panel; however, if an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. An alternate juror shall become a part of the jury in the order in which the juror was selected. If the trial jury is unable to reconvene for a hearing on the issue of whether one or more aggravating factors exist after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue.
(4)	Jury selection. – A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases."
SECTION 6.  G.S. 15A‑2005 is amended by adding a new subsection to read:
"(f1)	The Court may retain alternate jurors after the jury retires to deliberate the issue of mental retardation. The Court shall ensure that any retained alternate juror does not discuss the case with anyone until that alternate replaces a juror or is discharged. If, before final submission of the issue of mental retardation to the jury or during deliberations on that issue, any juror dies, becomes incapacitated or disqualified, or is discharged for misconduct or other extraordinary cause not substantially related to the substance of the jury's deliberations, an alternate juror may become a part of the jury and serve in all respects as those selected on the regular trial panel. If an alternate juror replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew."
SECTION 7.  This act becomes effective December 1, 2007, and applies to trials starting on or after that date.