IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-1051
Filed 2 September 2026
Dare County, No. 22CR322960-270
STATE OF NORTH CAROLINA
v.
ADRIAN ANDRE HUMPHREY
Appeal by Defendant from judgment entered on 13 March 2025 by Judge Jerry
R. Tillett in Dare County Superior Court. Heard in the Court of Appeals 13 August
2026.
Attorney General Jeff Jackson, by Special Deputy Attorney General Zachary K.
Dunn, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
VandenBerg, for the defendant.
WOOD, Judge.
Adrian Humphrey (“Defendant”) appeals from a judgment entered following a
jury verdict finding him guilty of death by distribution of a controlled substance. On
appeal, Defendant contends the trial court erred by: (1) allowing thirteen jurors to sit
together to deliberate Defendant’s case, and (2) assigning prior record level points
that were unproven by the prosecution. After careful review of the record, we
conclude the trial court erred by allowing thirteen jurors to sit together to deliberate
Defendant’s case. Accordingly, we reverse and remand for a new trial.
STATE V. HUMPHREY
Opinion of the Court
I. Factual and Procedural Background
On 10 March 2022, Defendant allegedly sold fentanyl and cocaine to David
Saunders (“Saunders”) and Chuck Seymour (“Seymour”). According to Saunders,
Dallas Twyne (“Dallas”) and his wife Caitlyn Twyne (“Caitlyn”) reached out to him
on the evening of March 10th and asked if he was interested in acquiring drugs with
them. Saunders agreed, and the three of them drove to Seymour’s house because “he
knew where [they] were going” to get the drugs. The four friends drove into downtown
Elizabeth City. Dallas and Caitlyn provided the money while Saunders and Seymour
conducted the transaction with Defendant, buying both fentanyl and cocaine.
After acquiring the drugs, the group dropped off Seymour at his house before
the other three returned to Dare County. As Saunders drove Dallas’s truck back to
Dare County, he, Dallas, and Caitlyn each did a “line” of the recently purchased
drugs. Saunders then parked the truck in a church parking lot near his home and
made sure the couple was awake before walking home. Approximately forty-five
minutes later, Catilyn called Saunders and told him Dallas was not breathing.
Saunders returned to the parking lot, called 911, and proceeded to give Dallas CPR
until law enforcement arrived.
Dallas was revived by first responders but died at the hospital in the early
morning hours of 11 March 2022. The medical examiner testified Dallas’ cause of
death was a fentanyl overdose.
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Opinion of the Court
On 24 October 2022, Defendant was indicted on a charge of death by
distribution of controlled substances. The case came on for trial during the 10 March
2025 criminal trial session of Dare County Superior Court.
After the close of all evidence and closing arguments by the parties, the trial
court instructed the jury. This included the instruction, “I’ll instruct you that a
verdict is not a verdict until all 12 jurors who go back to the room to deliberate agree
unanimously as to what your verdict will be.” The trial court eventually released the
jury saying, “So go now at this time and proceed first about the business of selection
of a foreperson until you are further instructed.” The twelve jurors and one alternate
juror were escorted to the jury room at 4:05 p.m.
The trial court then asked the attorneys, “are there requests for additional [ ]
clarification, anything else necessary and appropriate to give this jury a full, a fair,
and an accurate charge, from the State?” After both attorneys stated they had no
requests, the trial court instructed the bailiff,
THE COURT: Mr. Bailiff, I’m going to ask that you knock
on the door of the jury room, open the door and place this
blank and clean tablet, together with the envelope
containing the verdict sheet and the pen, in the center of
the table and instruct our jurors only this, to begin
deliberations.
Once you have completed that duty, please return and
report. Parties -- well wait just a second. Duty performed?
THE BAILIFF: Yes, sir. And they have selected a
foreperson.
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Opinion of the Court
THE COURT: I’m sorry?
THE BAILIFF: They have selected a foreperson.
THE COURT: Okay. Parties may be at ease until return of
the jury.
The transcript notes that jury deliberations began at 4:07 p.m.
Nineteen minutes later, at 4:26 p.m. the trial court held an off-the-record
discussion with the attorneys. The trial court then stated, “[b]ring him in and then
bring all of our jurors in.” The jury was returned to the courtroom at 4:28 p.m. The
trial court then questioned the alternate juror.
THE COURT: Mr. Beasley, you were not foreperson, were
you?
ALTERNATE JUROR: Excuse me?
THE COURT: You were not the foreperson, were you?
ALTERNATE JUROR: No.
THE COURT: All right. You are excused, sir.
The alternate juror was excused at 4:29 p.m. The trial court then went on to instruct
the jury:
THE COURT: Ladies and gentlemen, I’m going to ask that
you restart, completely anew, your deliberations. I had
intended for only 12 jurors to be back, there were 13. So
you start brand new all over again. If you are able to
understand and follow those instructions, please raise your
hand. Thank you. If you are unable to understand or
follow those instructions, please raise your hand. Thank
you. The record should reflect, as to the Court’s first
inquiry, each and every juror raised his or her hand. As to
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Opinion of the Court
the Court’s subsequent inquiry, no juror raised his or her
hand. At this time you -- bring that to me. Go to the jury
room and await further instructions, which may be
continue your deliberations or begin deliberations.
The jury returned to the jury room at 4:29 p.m. The trial court then asked if either
attorney had any concerns, to which both responded they did not. The trial court
then requested the bailiff instruct the jury to begin deliberations.
At 4:36 p.m. the trial court received a request from the jury for a written copy
of the law and a definition of proximate cause. In response, the trial court returned
the jury to the courtroom at 4:39 p.m. and re-read the instruction on the offense of
death by distribution of certain controlled substances. The jury returned to the jury
room for deliberations at 4:44 p.m. At 4:54 p.m. the jury announced it had reached
its verdict finding Defendant guilty. The trial court sentenced Defendant to a
minimum of 110 and maximum of 144 months of imprisonment. Defendant gave oral
notice of appeal in open court.
II. Analysis
On appeal, Defendant contends the trial court erred by: (1) allowing thirteen
jurors to sit together and deliberate Defendant’s case, and (2) assigning prior record
level points that were unproven by the prosecution.
A. Jury Composition
Defendant argues on appeal that the presence of the alternate juror in the jury
room during deliberations violated his N.C. Const. art. I, § 24 right to a jury. We
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Opinion of the Court
agree.
Our Supreme Court has repeatedly held “issues related to the structure of the
jury that found defendant guilty were preserved notwithstanding defendant’s failure
to object at trial.” State v. Chambers, 387 N.C. 521, 524, 915 S.E.2d 96, 99 (2025); see
also State v. Bindyke, 288 N.C. 608, 627, 220 S.E.2d 521, 531 (1975), State v. Bunning,
346 N.C. 253, 257, 485 S.E.2d 290, 292 (1997). This is because, “the jury is perhaps
the hallmark of the American criminal justice system.” Chambers, 387 N.C. at 524,
915 S.E.2d at 99. Therefore, notwithstanding Defendant’s failure to raise the issue
in the trial court, we consider it now on appeal.
“This Court reviews de novo a claim of constitutional error by the trial court.
Under de novo review, this court considers the matter anew and freely substitutes its
own judgment for that of the lower tribunal.” State v. Grant, 293 N.C. App. 457, 458,
900 S.E.2d 408, 410 (2024) (cleaned up).
Structural error is a rare form of constitutional error
resulting from structural defects in the constitution of the
trial mechanism which are so serious that a criminal trial
cannot reliably serve its function as a vehicle for
determination of guilt or innocence. North Carolina courts
apply a form of structural error known as error per se.
Error per se is automatically deemed prejudicial and thus
reversible without a showing of prejudice.
State v. Wilson, 301 N.C. App. 546, 548, 923 S.E.2d 864, 866 (2025) (cleaned up).
Our Supreme Court’s controlling precedent comes from State v. Bindyke in
which the Court ruled that “the presence of an alternate juror in the jury room after
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Opinion of the Court
a criminal case has been submitted to the regular panel of twelve is always error.”
Bindyke, 288 N.C. at 623, 220 S.E.2d at 531. The Court opined that a trial court could
recall the jury and ask them a singularly limited question of whether there had been
any discussion of the case, if the answer was yes then the trial court is required to
declare a mistrial. “No inquiry into the extent or nature of the deliberations is
permissible.” Id. at 629, 220 S.E.2d at 534. Based on Bindyke and its progeny the
alternate juror’s presence during jury deliberations is a violation of N.C. Const. art.
I, § 24 and constitutes reversible error per se. Id. at 627, 220 S.E.2d at 534; see also
State v. Rowe, 30 N.C. App. 115, 117, 226 S.E.2d 231, 232 (1976) (“We hold that at
any time an alternate is in the jury room during deliberations he participates by his
presence and, whether he says little or nothing, his presence will void the trial.”);
State v. Godwin, 95 N.C. App. 565, 569, 383 S.E.2d 234, 236 (1989) (citation and
quotation omitted) (“The rule in this State is that at anytime an alternate is in the
jury room during deliberations he participates by his presence and, whether he says
little or nothing, his presence will void the trial.”); State v. Jernigan, 118 N.C. App.
240, 246, 455 S.E.2d 163, 167 (1995) (“It is well settled that the presence of an
alternate juror in the jury room during deliberations constitutes reversible error per
se.”).
The State contends our Supreme Court’s recent holding in State v. Chambers,
which held N.C. Gen. Stat. § 15A-1215(a) allowing for the substitution of a juror after
deliberations have begun was constitutional, overruled the relevant portions of
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Opinion of the Court
Bindyke that would impact the present case. Chambers, 387 N.C. at 527, 915 S.E.2d
at 100. The State misconstrues our Supreme Court’s holding in Chambers.
Not only does our Supreme Court’s opinion in Chambers not explicitly overrule
Bindyke, it states:
we conclude that [N.C. Gen. Stat. § 15A-1215(a)]’s
unconstitutionality has not been shown beyond a
reasonable doubt. Indeed, although it contemplates the
substitution of alternative jurors, it provides two critical
safeguards that ensure that the twelve-juror threshold
remains sacrosanct. Not only does subsection 15A-1215(a)
provide that “in no event shall more than twelve jurors
participate in the jury’s deliberations”; it also requires trial
courts to instruct juries to “begin deliberations anew” if an
alternative juror is substituted after jury deliberations
have begun. This requirement preserves the statute’s
constitutionality.
Id. at 526, 915 S.E.2d at 100 (quoting N.C. Gen. Stat. § 15A-1215(a) (2023) (emphasis
added)). One of the two critical safeguards explicitly mentioned by the Supreme
Court in Chambers was the fact that within the amended subsection 15A-1215(a) it
states, “in no event shall more than twelve jurors participate in the jury’s
deliberations.” Id. This explicit safeguard is consistent with Bindyke and its progeny
which held that when an alternate juror is present with the full twelve panel of jurors
during deliberations, creating a thirteen juror panel, it is structural error and the
trial is void per se. Bindyke, 288 N.C. at 627, 220 S.E.2d at 534; see also State v. Rowe,
30 N.C. App. 115, 117, 226 S.E.2d 231, 232 (1976), Godwin, 95 N.C. App. at 569, 383
S.E.2d at 236, Jernigan, 118 N.C. App. at 246, 455 S.E.2d at 167.
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Opinion of the Court
The State contends that because the trial court gave the instruction to
“restart, completely anew, your deliberations,” the alternate was not elected
foreperson, and the time the alternate was present was “relatively short,” any
possible prejudice was cured. This argument is misplaced.
Although the Supreme Court held that beginning deliberations anew allows
the ultimate verdict to be “rendered by the constitutionally requisite jury of twelve,”
it also recognized the statutory requirement that “in no event shall more than twelve
jurors participate in the jury’s deliberations” is a “critical safeguard.” Chambers, 387
N.C. at 527, 915 S.E.2d at 100. Whether the alternate juror was elected foreperson
or not, “anytime an alternate is in the jury room during deliberations he participates
by his presence and, whether he says little or nothing, his presence will void the trial.”
Godwin, 95 N.C. App. at 569, 383 S.E.2d at 236 (citation and quotation omitted). In
Chambers, the original juror was in the jury room for deliberations for approximately
twenty-two minutes before being excused. When deliberations resumed the following
day with the alternate juror, the jury restarted deliberations and continued for three
hours. This means the jury only deliberated without the alternate juror for
approximately ten percent of the time, but at no time deliberated with thirteen jurors.
Chambers, 387 N.C. at 522-23, 915 S.E.2d 97-98. In contrast, here, thirteen jurors
were present for the first nineteen minutes of deliberation. The alternate juror was
then released, and the jury resumed deliberations for an additional seventeen
minutes before it reached a verdict. Thus, the jury in the case sub judice sat with
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Opinion of the Court
thirteen jurors for the majority of the time they spent deliberating.
Finally, although the trial court did instruct the jury to “restart, completely
anew, your deliberations,” this instruction was followed by the direction, “[a]t this
time . . . [g]o to the jury room and await further instructions, which may be continue
your deliberations or begin deliberations.” This was not a clear and unequivocal
mandate to completely re-start deliberations and cannot be seen as an effective
“critical safeguard[] that ensure[s] that the twelve-juror threshold remains
sacrosanct.” Id. at 526, 915 S.E.2d at 100. This is clear error, both constitutional and
statutory. As this is both error per se and prejudicial error we must reverse and
remand for a new trial.
Defendant makes a second argument on appeal concerning record level points.
However, “[b]ecause we have ordered a new trial and as Defendant’s remaining
argument is directed to an issue which may not occur on retrial, we decline to address
it.” State v. Little, 296 N.C. App. 424, 434, 909 S.E.2d 363, 370 (2024).
III. Conclusion
Upon careful review, we conclude the trial court erred by allowing thirteen
jurors to deliberate Defendant’s case in violation of both N.C. Gen. Stat. § 15A-1215(a)
and N.C. Const. art. I, § 24. The trial court’s judgment is reversed, and this matter
is remanded for new trial. It is so ordered.
REVERSED AND REMANDED.
Judges ZACHARY and GORE concur.
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