dissent">HORTON, J.,

dissenting: This case is controlled by State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992). I do not believe Dushamecan be distinguished, and I would follow its holding on post-submission juror substitution.

The majority would distinguish Dushameby suggesting that the defendant, in the case before us, failed to object to the jury substitution procedure. It would find this distinction crucial and would reject the defendant’s claim that he was convicted of a jury of less than twelve in violation of the New Hampshire Constitution. It would find inapplicable the rules of State v. Hewitt, 128 N.H. 557, 561, 517 A.2d 820, 822-23 (1986), that no objection is necessary to preserve rights to challenge the absence of a constitutional jury and that the right to a jury of twelve may be waived only by an express personal waiver. It maintains that there were twelve jurors deciding the case, albeit one substituted post-submission. It suggests that the defendant had nothing to waive and did not surrender his right to a twelve-person jury.

And therein lies my problem. Under the ruling in Dushame, there were not twelve jurors deciding this case, only eleven. The structural jury problem in this case is precisely the same as existed in Dushame. The presence or absence of an objection, as dictated by Hewitt, does not control the propriety of such a structural challenge. Dushame*375specifically found a violation of a right provided by the New Hampshire Constitution, the independent and free-standing right to a jury of twelve. Dushamesays:

The New Hampshire Constitution mandates that a jury of twelve must unanimously reach a verdict of guilty before a defendant’s liberty may be compromised. See State v. Hewitt, 128 N.H. 557, 561, 517 A.2d 820, 822 (1986) (State constitution affords accused right to jury of twelve, and “twelve means twelve”). As stated, RSA 500-A:13 mandates that upon the submission of the case to the jury the alternates “shall be discharged”; in short, they are no longer members of the jury panel. Once discharged from the jury panel a juror cannot be recalled by the trial court. In this case, a jury of only eleven qualified jurors decided the defendant’s fate. This is in direct violation of our State constitutional mandate.

State v. Dushame, 136 N.H. at 315, 616 A.2d at 472.

Thus, when the case against Mr. Colbert was submitted to the jury, the alternates were discharged, the statute being essentially self-executing, and when the forewoman departed, although twelve seats were filled, only eleven were filled by “jurors.”

The majority opinion says that its holding regarding the State Constitution is consistent with Dushameand our opinion reviewing the post -Dushame proposed legislation amending RSA 500-A:13, Opinion of the Justices (Alternate Jurors), 137 N.H. 100, 623 A.2d 1334 (1993). The language quoted, and the issue in the later case, involved the due process aspects of late substitution, not the structural problem of a missing juror.

I respectfully dissent from the opinion of the majority and would reverse on the State constitutional twelve-man jury issue.

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