On appeal, Aldret claims the trial court erred (1) in failing to grant his motion for a new trial on the ground of jury misconduct because of premature deliberations by the jury, and (2) as a matter of law by failing to admonish the jury against premature deliberations in a proper and timely manner. We reverse and remand for a new trial.




I. Facts




At the commencement of the trial, a jury panel was selected and Dr. Martin Laskey was chosen as alternate juror. Following the jury selection, the court considered some unrelated matters during which time the jury was removed from the courtroom. Thereafter, there was an intervening lunch break.




The trial began after lunch with brief introductory remarks by the court and the swearing-in of the jury panel. The State presented a total of four witnesses. During direct examination


The next morning the court made the following statements to the jury:




  Before we begin, let me ask if during the recess
  anybody has talked to you or tried to talk to you
  about the case? (No response).



  Has anything at all happened which might affect your
  ability to be fair to the State and the Defense in
  this case? (No response).



Testimony of the second witness resumed. At the end of his testimony, the jury was excused to the jury room for a recess with the court simply instructing the jury to "step on back in your room." The jury returned and heard the testimony of the State's last two witnesses. The court then sent the jury to the jury room and heard defense motions.




After the court heard the defense motions and reassembled the jury, Aldret presented his case. The State offered no reply. The court then excused the jury for lunch with the following exhortation: "While you are at lunch, as I always do, don't talk about the case among yourselves, don't let anybody talk to you about the case. Be back in your room at 2:30 and we'll start back at that hour."




After lunch, the trial resumed with closing arguments and the jury charge. The alternate juror, Dr. Laskey, was excused from service. After the jury returned a guilty verdict, Aldret's counsel indicated he had a new trial motion, which he desired to argue at a later time.




The jury was reassembled the following Monday. At that time, Aldret's counsel argued his new trial motion and presented Dr. Laskey's affidavit which stated the jury engaged in discussions regarding the case prior to the time the case was


II. Law and Analysis




A. Admissibility of Laskey's Affidavit




Aldret argues the trial court erred in failing to consider Laskey's affidavit because Laskey was an alternate juror and he should not have been considered a juror for purposes of impeaching the jury verdict. He contends the jury improperly sought expert advice from Laskey on medical and scientific issues during preliminary discussions. Aldret also asserts the court failed to ask the jurors during the post trial hearing about premature deliberations, and, therefore, failed to determine whether Aldret was unduly prejudiced by premature discussions.




The State contends that the trial court correctly excluded Laskey's affidavit because it would have served to impeach the jury's verdict or show misconduct intrinsic to the jury's deliberative process. Alternatively, the State argues that even if the affidavit is considered, it fails to show that juror misconduct occurred. Additionally, the State asserts there is no reversible error because Aldret has not shown actual prejudice.


In State v. Hunter, 320 S.C. 85, 88, 463 S.E.2d 314, 316 (1995), our Supreme Court held that as a genera

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