Joan G. Hill, Esq.
Darrell V. McGraw, Jr., Esq.
Crandall, Pyles, Haviland & Turner Attorney General
Logan, West Virginia Leah Perry Macia, Esq.
Attorney for the Appellant Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE SCOTT delivered the Opinion of the Court.
CHIEF JUSTICE MAYNARD, deeming himself disqualified, did not participate in the decision of the Court.
The defendant, Michael Vance, was convicted of unlawful wounding by jury
trial on November 18, 1998, in the Circuit Court of Mingo County, West Virginia. He
contends the circuit court erred in failing to grant him a new trial based on grand juror
disqualification and a familial relationship which exists between defense counsel at trial and
the victim. We believe the circuit court committed no error.
The facts of this case are not in dispute. During the late evening hours of June
30, 1997, at Belle's grocery store in Lenore, West Virginia, the defendant attacked and beat
James Deskins with a pool cue rendering him unconscious. The reason for the attack is not
clear, but, the victim was seriously injured. He was transported by ambulance to Williamson
Memorial Hospital in Williamson, West Virginia, where he was stabilized. The victim was
then taken by helicopter to Cabell Huntington Hospital in Huntington, West Virginia, where
he underwent brain surgery. At trial, Dr.Maurice Jerome Day, Jr., who performed the
surgery, testified by video deposition that the victim had an obvious skull fracture and a
couple of cuts around the right facial area. Upon closer examination, Dr. Day determined
a blood clot had formed between the victim's skull and brain and he suffered from severe
fractures around his eye socket and cheekbone on the right side of his head. The surgery
could not save the victim's vision. He is blind in the right eye.
The defendant was arrested on July 1, 1997. After encountering difficulties in
impaneling a grand jury, the defendant was finally indicted in September 1998 for malicious
wounding. Michael Magann was appointed as counsel to represent the defendant. Defense
counsel argued pretrial that the charge against the defendant should be dismissed because of
irregularities involving grand juror Cathy Vance. The court denied the motion.
The case proceeded to trial. On the morning jury selection was to begin, Mr. Magann learned, through information regarding a threat that was made on the defendant's life, that he shares a distant adoptive familial relationship with the victim. This relationship exists through Mr. Magann's adopted grandmother. He learned that his grandmother's cousin is the victim's grandfather. Mr. Magann states that he informed the defendant of the relationship; the defendant states that Mr. Magann did not disclose the relationship prior to trial. Nonetheless, Mr. Magann represented the defendant through trial and sentencing. On November 18, 1998, the defendant was convicted of unlawful wounding and on December 14, 1998, he was sentenced to a period of not less than one nor more than five years in the West Virginia Penitentiary.
On December 29, 1998, the defendant filed a pro se motion requesting new counsel. He supported the motion by alleging his trial counsel was closely related to the victim. The circuit court held a hearing on the motion on January 11, 1999. The court entered an order the following day appointing present counsel to represent the defendant in post-trial motions. A motion for a new trial was filed assigning as errors the qualifications of the grand jury and the relationship of trial counsel to the victim. By order entered on July 21, 1999, the circuit court denied the motion. It is from this order that the defendant appeals.
On appeal, the defendant contends the circuit court erred by denying his motion
for a new trial for two reasons. First, he alleges the grand jury was improperly constituted
and/or a member of the grand jury should have been disqualified. He also contends he was
denied a fair trial because his defense counsel at trial is related to the victim.
This Court previously held that:
Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence. Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
Syl. Pt. 1, Andrews v. Reynolds Memorial Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). We have also previously held in part of syllabus point three of In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied sub nom. W.R. Grace & Co. v. West Virginia, 515 U.S. 1160 (1995), that [a] trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion. We later clarified the holding from Asbestos Litigation in Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), however, the clarifying language to the holding was never specifically adopted as a holding by this Court. Accordingly, we now hold that
in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Id. at 104, 459 S.E.2d at 381.
MR. SMITH: All right. We're back on the record in State of
West Virginia versus Michael Vance.
Ms. Vance, could you state your full name?
JUROR CATHY VANCE: Cathy Vance.
MR. SMITH: I believe you made some disclosures on the record that you know the victim in this case, James Deskins, and you've heard some rumors about the allegations that took place here?
JUROR CATHY VANCE: Yes.
MR. SMITH: I thank you for those disclosures, and I need to ask you a question. Despite your knowledge of the victim and despite your knowledge of some rumors and circumstances that surrounded this incident, can you set that aside and make a decision here today--a fair and just decision--just solely on the evidence presented here in this presentation?
JUROR CATHY VANCE: Yes.
MR. SMITH: And you will make that decision without any prejudice or bias, solely on the evidence here today?
JUROR CATHY VANCE: Yes.
A similar issue was addressed in State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995). The defendant in Garrett was convicted of first degree murder without a recommendation of mercy. On appeal, he requested that the indictment be dismissed because a member of the grand jury was a witness at trial. Id. at 644, 466 S.E.2d at 495. This Court chose not to reach the issue of whether the grand juror was, in fact, disqualified by espousing the following reasoning:
This Court has previously stated that [t]he grand jury is an
accusatory body, not a judicial body, and as such has the right and
obligation to act on its own information, however acquired.
W.Va.Code, 52-2-8. Its oath infers that it may be called upon to act in
the case of enemies and friends. W.Va.Code, 52-2-5. 38 Am.Jur.2d
Grand Jury, § 7, pp. 951-952. State v. Bailey, 159 W.Va. 167, 173,
220 S.E.2d 432, 436 (1975). Moreover, [u]nder the provisions of
W.Va.Code, 52-2-12, an indictment will not be quashed or abated on
the ground that one member of the grand jury is disqualified. Syl. pt.
4, Bailey, supra. The curative provisions of this statute are based on
reason and sound public policy. It would be detrimental to the public
interest, if a large number of indictments should be liable to be quashed
or abated because one grand juror was disqualified. Id. at 174, 220
S.E.2d at 436. (citations omitted). Accordingly, it is not necessary that
we address whether Mrs. Nichols was, in fact, disqualified from serving
on the grand jury which indicted the appellant, as such disqualification,
if any, would not quash the indictment. Thus, it was not error for the
trial court to deny appellant's motion to dismiss the indictment.
195 W.Va. at 644, 466 S.E.2d at 495 (footnote omitted). This reasoning applies in the case sub judice.See footnote 1 1
We also note that [m]embers of the grand jury are not necessarily biased ...
by personal acquaintance with the victim, defendant, or witnesses. . . . [However], [t]he
jurors may be asked to affirm that they can evaluate the case in an unbiased fashion and act
impartially. 38 Am. Jur. 2d Grand Jury § 5 (1999). That is exactly what occurred in the
case at bar. Upon being questioned, the grand juror, Ms. Vance stated that she knew the
victim, but that she could and would base her decision solely on the evidence that was
presented. The trial court, nonetheless, went a step further to ensure that Ms. Vance was
qualified. The court conducted an in camera interview and determined the grand juror was
properly qualified in that she exhibited no bias or prejudice and that no relationship existed
between Ms. Vance and the defendant or the victim. Based upon our review of the record,
we cannot say the circuit court clearly erred in reaching this decision. Even if Ms. Vance
should have been disqualified, the curative provisions of West Virginia Code § 52-2-12
(1994)See footnote 2
saves the indictment.
West Virginia Rule of Criminal Procedure 6(b)(2) supports this decision. The
rule reads as follows:
(2) Motion to dismiss.--A motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualifications of an individual juror, if not previously determined upon challenge. An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to subdivision (c) of this rule that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.
Id. In the instant case, fifteen grand jurors were impaneled and returned the indictment against the defendant. Even if one juror was disqualified, twelve or more jurors concurred in finding the indictment. It was, therefore, not error for the circuit court to deny the motion to quash the indictment or to deny the motion to grant a new trial on that ground.
The defendant also contends that the circuit court erred by denying the motion
for a new trial due to the familial relationship of trial counsel to the victim. He believes this
is an extremely rare case where this Court should find ineffective assistance of counsel on
direct appeal due to the conflict of interest held by trial counsel. See Syl. Pt. 10, in part,
State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992) (It is the extremely rare case when
this Court will find ineffective assistance of counsel when such a charge is raised as an
assignment of error on a direct appeal.)See footnote 3
He also contends the relationship was not
disclosed prior to trial. Mr. Magann states that he revealed the familial relationship to the
defendant immediately upon becoming aware of it.
The record reveals that the circuit court held a post-trial hearing on January 11,
1999. During that hearing, the defendant's father asked Mr. Magann if he was related to the
victim or any other party involved in the case. Mr. Magann testified that he did not even
know he was of relation to the victim until two days before trial. Mr. Magann then asked
permission to withdraw as counsel. The court agreed that new counsel should be appointed
to represent the defendant. In view of that finding, the court delayed discussing and ruling
on the issue until substitute counsel could be appointed. Present counsel was subsequently
appointed to represent the defendant in post-trial motions and on appeal.
In the amended affidavit he later submitted to the court, Mr. Magann explains
the situation as follows:
7. I informed Ermal Vance and Michael Vance, who was also present during this conversation, that, Mr. Marcum was the first cousin of my paternal grandmother, Eulalia Francisco Magann, who was born in 1915.
8. I also asked Ermal Vance if he knew how Virgil Marcum was related to James Deskins and Mr. Vance informed me that Mr. Marcum was the maternal grandfather of James Deskins.
9. Although I did advise Michael Vance and Ermal Vance of my relationship with Virgil Marcum, I did not advise Michael Vance that this may present a conflict of interest, because I did not believe that my representation of Michael Vance would be compromised by the relationship. I also did not advise Michael Vance that he would have the opportunity to request substitute counsel, if he felt that a conflict existed.
10. After I was informed by Ermal Vance of the threat made by
Virgil Marcum, I responded to both Ermal Vance and Michael Vance
that I would report this threat to Judge Thornsbury. On the morning of
the trial, which was the next opportunity that I had to inform Judge
Thornsbury of the threat in the presence of Assistant Prosecutor Greg
Smith, I informed the Judge of the threat and requested additional
security in the courtroom. Judge Thornsbury responded by providing
additional security, which included equipping Bailiff Kevin Wilson
with a metal detecting device.
The circuit court held a hearing on this issue on May 20, 1999, wherein Mr.
Magann testified at the defendant's request. He testified that while he was talking to Ermal
Vance on the morning the jury was impaneled, November 17, 1998, he indicated that [he]
was of a distant relationship to Virgil Marcum[.] He also testified he did not know that
James Deskins and Virgil Marcum were related until that morning.
On April 12, 1999, the court held a hearing on the defendant's motion for a
new trial. At that hearing, present defense counsel characterized the situation in the
I guess that makes [Mr. Magann and the victim] about sixth - somewhere along - distant cousins, but despite the fact of how many times removed, or whatever, there is an issue of this relationship, and this relationship did not come to Mr. Magann's attention, as he stated in this hearing on January 11th, until two days before trial, but it was before trial, Your Honor, and this matter was never discussed with Mr. Vance to any extent that would allow him to consent to the potential conflict and obvious relationship, however distant the court wants to characterize it. Mr. Magann did not advise his client of the relationship.
However, later in the hearing when asked by the prosecutor if Mr. Magann had told Ermal Vance about the relationship, counsel answered, According to Mr. Magann, they discussed it and it was kind of like they laughed it off.
After considering the evidence, the court found in its final order, inter alia: that
no blood relationship existed between Mr. Magann and Virgil Marcum, because Mr.
Magann's grandmother was adopted; that neither the defendant nor his father raised the issue
or expressed any concern about the issue until nearly two months after the jury trial
concluded; that there was no evidence a conflict of interest existed at the time of trial,
because Mr. Magann did not know the victim was a fifth or sixth cousin by adoption until
the alleged threat was revealed by the defendant and his father; and that no evidence was
presented to show that Mr. Magann ever knew the victim. The court also found that no
evidence was presented to show that Mr. Magann failed to fully and completely defend the
defendant or that the defendant was prejudiced in any way. The court finally concluded that:
Mr. Magann testified that he informed the Defendant of the relationship immediately upon receiving information pertaining to the same. Furthermore, notwithstanding the conflicting testimony concerning whether Mr. Magann informed the Defendant of the distant familial [relationship] to Virgil Marcum, the testimony offered by the Defendant tends to be consistent with Mr. Magann's testimony concerning the series of events leading to Mr. Magann's revelation about his relationship to Virgil Marcum and the Court finds such evidence to be credible.
6. Moreover, the Defendant failed to introduce any credible evidence of ineffective assistance of counsel. The record in this matter demonstrates that Mr. Magann was extremely diligent in his defense of the Defendant. He interviewed witnesses, investigated the facts, filed appropriate motions, made timely objections and otherwise zealously defended the Defendant within the bounds of the law.
We cannot say the circuit court erred. The defendant argues that under State
v. Reedy, 177 W.Va. 406, 352 S.E.2d 158 (1986), he is entitled to a new trial; however, the
facts of Reedy are distinguishable. Reedy involved two appeals. The defendant was
convicted first for daytime burglary. He was subsequently convicted as a recidivist and
sentenced to life in prison. In Reedy, the State did not deny that the defendant's appointed
trial counsel was both a friend and a relative of the burglary victim. The victim was the
prosecuting witness in the defendant's first trial. The relationship was not revealed prior to
trial. On appeal, the defendant contended he was denied effective assistance of counsel
because of the relationship and friendship of his trial counsel with the burglary victim. This
Court agreed with the appellant that the potential conflict of interest in the family
relationship, together with the lack of timely disclosure to the appellant, constituted a
violation of the appellant's right to effective assistance of counsel. Id. at 409, 352 S.E.2d
In so finding, the Court reasoned that [t]he significant inquiry in the instant
case is not whether actual conflict occurred because of the family relationship, but whether
the potential for conflict was revealed to the defendant in a timely manner. Id. at 411, 352
S.E.2d at 163. The Reedy facts which emphasized the possibility of conflict are simply not
the facts in the case at bar. Mr. Magann and the victim were not friends; in fact, prior to trial,
they did not know each other. Also, sufficient evidence was introduced upon which the trial
court could properly conclude that the relationship was disclosed at the earliest opportunity,
that being prior to trial. No objection was made. The Reedy court held:
The existence of a family relationship between a defense counsel and the crime victim must be disclosed to the accused at the earliest opportunity, so that the accused can make an intelligent decision whether to waive his right to assistance of counsel free from potential conflict, or to demand or retain different counsel.
Id. at 408, 352 S.E.2d at 160, Syl. Pt. 3. In accordance with this rule, we further hold that a familial relationship more distant than the third degree of relationship shared by defense counsel and the victim of a crime is insufficient to present a conflict of interest so as to disqualify defense counsel from representing the accused.See footnote 4 4 After thoroughly reviewing the record, we do not believe the circuit court erred in failing to grant a new trial on this issue.
Based on the foregoing, the judgment of the Circuit Court of Mingo County is affirmed.
At least twelve of the grand jurors must concur in finding or
making an indictment or presentment. They may make a presentment
or find an indictment upon the information of two or more of their own
body, and when a presentment or indictment is so made, or on the
testimony of witnesses called on by the grand jury, or sent to it by the
court, the names of the grand jurors giving the information, or of the
witnesses, shall be written at the foot of the presentment or indictment.
Id. (emphasis added).