S. Ct. Crim. No. 2014-0032

remanded for a new trial. The Superior Court, in the exercise of sound discretion, may remove a juror and replace her with an alternate whenever facts are presented which convince the court that the juror's ability to perform her duty as a juror is impaired. Under 4 V.I.C. § 473(a) the court violates a defendant's right to a fair trial and commits error by removing an empaneled juror without good cause. In this case, the factual basis for removing the juror and seating an alternate during deliberations was not objectively verifiable or readily apparent, and the court committed error in removing the juror without conducting a hearing to demonstrate cause with findings on the record. This error prejudicially affected the defendant's substantial rights, with a reasonable probability that the error affected the outcome of the trial. The potential for serious harm and the interest of the defendant-and the public-in fair, unbiased, and secret deliberations are so great that no evidentiary showing of actual prejudice is required, and here it cannot be said that the defendant invited or induced the Superior Court's actions. Therefore, the convictions are vacated. As to issues likely to recur on remand, first, defendant's motion three days before trial to exclude evidence of drinking or distributing alcohol to minors was not untimely. While defendant was not charged with distributing alcohol to minors, the People solicited alcohol-related testimony from multiple witnesses, which was unfairly prejudicial, as it served no purpose other than to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Secondly, given the expansive scope of the prohibition in Federal Rule of Evidence 412 on evidence offered to prove that a victim engaged in other sexual behavior, the Superior Court committed no error in prohibiting the defendant from presenting testimony that a victim was seen embracing another man. Nor did exclusion of this evidence deny his constitutional right to cross-examine the victim and otherwise put on a defense. The case is remanded for a new trial.