State v. Lightner
In State v. Lightner, 205 W. Va. 657, 520 S.E.2d 654 (1999), the Court found that the defendant was not prejudiced where thirteen people actually deliberated and voted on the verdict which found the defendant guilty.
The Court reasoned that "the alternate is chosen in the same way as a regular juror, is subjected to the same test of impartiality and is required to possess all the qualifications of a regular juror." State v. Lightner, 205 W. Va. at 663, 520 S.E.2d at 660 .
The Court held that it was not reversible error for a circuit court to allow an alternate, thirteenth juror to participate and vote with the regular jury panel in a criminal case.
The Court specifically rejected a per se rule, one that would require automatic reversal, and adopted a discretionary rule for the following reason:
"Each case must be decided on its own unique set of facts." 205 W.Va. at 660, 520 S.E.2d at 657.