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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1999 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
Defendant Below, Appellant.
Appeal from the Circuit Court of Berkeley County
Honorable Thomas W. Steptoe, Jr., Judge
Criminal Case No. 98-F32
Submitted: November 3, 1999
Filed: November 19, 1999
Pamela Jean Games-Neely
Robert C. Stone, Jr.
Berkeley County Prosecutor
Kiser, Stone & Cordell
Christopher C. Quasebarth
Martinsburg, West Virginia
Martinsburg, West Virginia
Attorney for Appellant
Attorneys for Appellee
Barbara Evans Fleischauer
Morgantown, West Virginia
Attorney for Amicus Curiae, National Organization for Women,
West Virginia Chapter
The Opinion of the Court was delivered Per Curiam.
JUDGE JOHNSON, sitting by temporary assignment.
JUSTICE SCOTT did not participate.
SYLLABUS BY THE COURT
1. The relevant test for determining whether a juror is biased is whether
the juror had such a fixed opinion that he or she could not judge impartially the guilt of the
defendant. Even though a juror swears that he or she could set aside any opinion he or she
might hold and decide the case on the evidence, a juror's protestation of impartiality should
not be credited if the other facts in the record indicate to the contrary. Syllabus Point 4,
State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996).
2. A trial court's instructions to the jury must be a correct statement of the
law and supported by the evidence. Jury instructions are reviewed by determining whether
the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues
involved and were not mislead by the law. A jury instruction cannot be dissected on appeal;
instead, the entire instruction is looked at when determining its accuracy. A trial court,
therefore, has broad discretion in formulating its charge to the jury, so long as the charge
accurately reflects the law. Deference is given to a trial court's discretion concerning the
specific wording of the instruction, and the precise extent and character of any specific
instruction will be reviewed only for an abuse of discretion. Syllabus Point 4, State v.
Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
This appeal was brought by Dewitt Williams, appellant/defendant (hereinafter
referred to as Mr. Williams), from a judgment by the Circuit Court of Berkeley County
finding him guilty of first degree sexual abuse and sentencing him to one to five years in the
State Penitentiary. The defendant has made the following assignments of error: (1) the trial
court's failure to strike certain jurors for cause, and (2) the trial court's refusal to give
defense instruction No. 12. Having reviewed the parties' arguments on appeal, the record
designated for appellate review, and the pertinent authorities, we affirm the decision of the
Circuit Court of Berkeley County.
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 1994, Anna L.See footnote 1
traveled from Indiana with her mother and
brother to visit Mr. Williams and his wife in Berkeley County.See footnote 2
During the visit Mr. Williams
engaged in sexual conduct with Anna L. on several occasions. On the first occasion Mr.
Williams placed his tongue in the child's mouth. On another occasion Mr. Williams placed
his hands on the child's chest and inner thigh. During a third occasion Mr. Williams got into
bed with the child and placed his fingers inside of her.
Mr. Williams' conduct with Anna L. was unknown until three years later, when
Anna L. told her brother about the incidents. The matter was reported to West Virginia
authorities and an investigation was begun.See footnote 3
Mr. Williams was subsequently indicted on five
counts of sexual offenses. The case was tried on August 19, 1998. At the close of the
State's evidence the trial court granted judgment of acquittal on Count I of the indictment.
The jury acquitted Mr. Williams of Counts II, III and IV; but, found him guilty on Count V.
This is an appeal from the jury's verdict.See footnote 4
STANDARD OF REVIEW
Two issues are presented in this case. The first issue concerns the trial court's
refusal to strike certain jurors for cause. We have held that [a] trial court's ruling on a
challenge for cause is reviewed under an abuse of discretion standard. State v. Phillips, 194
W. Va. 569, 588, 461 S.E.2d 75, 94 (1995). A trial court's determination as to whether to
strike a juror for cause will be reverse[d] only where actual prejudice is demonstrated.
State v. Miller, 197 W. Va. 588, 605, 476 S.E.2d 535, 552 (1996) (citation omitted).
The second issue presented involves the trial court's refusal to give Mr.
Williams' proffered instruction No. 12. This Court stated in syllabus point 1, in part, of
State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996) that [a]s a general rule, the refusal
to give a requested jury instruction is reviewed for an abuse of discretion. Accordingly, the
issue we must decide, is not whether the jury charge was faultless in every particular but
whether the jury was mislead in any way and whether it had an understanding of the issues
and its duty to determine those issues. Hinkle, 200 W. Va. at 285, 489 S.E.2d at 262.
A. Refusal To Strike Certain Jurors For Cause
Mr. Williams first argues that the trial court committed error by refusing to
strike four prospective jurors for cause during voir dire. The prospective jurors in question
were Marion Beard, Sharon Adams, Ursula Ernest and Calvin Caldwell.See footnote 5
In syllabus point
4 of State v. Miller we defined the test for determining juror bias:
The relevant test for determining whether a juror is
biased is whether the juror had such a fixed opinion that he or
she could not judge impartially the guilt of the defendant. Even
though a juror swears that he or she could set aside any opinion
he or she might hold and decide the case on the evidence, a
juror's protestation of impartiality should not be credited if the
other facts in the record indicate to the contrary.
In syllabus point 5 of Miller we stated [a]ctual bias can be shown either by a juror's own
admission of bias or by proof of specific facts which show the juror has such prejudice or
connection with the parties at trial that bias is presumed. Finally, we noted in syllabus point
6 of Miller, in part, that [t]he challenging party bears the burden of persuading the trial
court that the juror is partial and subject to being excused for caused.
1. Challenge to Mr. Beard. During voir dire of Mr. Beard he indicated that
he believed when a person is indicted that person is guilty of the offense. The following
exchange between the trial court and Beard occurred regarding this matter:
Mr. Beard: May I ask a question?
The Court: Yes, sir. Mr. Beard?
Mr. Beard: Yeah. If it's all written down--and it's got guilty, I don't
understand--to me he would be guilty if it's all written down here, or the
police wouldn't have written it down.
The Court: Is it your perception, sir, that--that because the police officer
may think that the accused is guilty, that he would be guilty?
Mr. Beard: Well, usually anything that is written down--
The Court: You mean the Indictment?
Mr. Beard: Yes, sir. If that's what it's called.
The Court: Because--you understand that the Indictment is merely an
accusation and that it's founded--it's issued based upon a proceeding in which the accused had no opportunity to appear and it's based upon a lesser standard
of evidence and it's a very one-sided affair. It's merely an accusation.
Having explained that do you now, do you still perceive because he has
been accused that he's probably guilty?
Mr. Beard: Well, I was thinking it was written down, it was ultimately
The Court: No, sir. That's why we have trials.
Subsequent to the above exchange between the trial court and Mr. Beard, Mr.
Williams moved to strike Mr. Beard for cause. The trial court denied the motion and
explained its reasoning as follows: I was satisfied by his response to my follow-up.
Obviously the gentleman was unsophisticated in the ways of the criminal justice system, but
that doesn't disqualify him. When it was explained to him what a one-sided affair the Grand
Jury really is, I think the gentleman took it to heart. The State argues that we should defer
to the trial court's ability to observe Mr. Beard's demeanor in refusing to strike him for
cause. We agree.
In view of the colloquy engaged in between the trial court and Mr. Beard, we
do not believe the trial court abused its discretion in refusing to strike Mr. Beard for cause.
The decision to strike Mr. Beard for cause is a matter that is controlled by Mr. Beard's
demeanor or credibility when responding to the trial court's questions. However, the record
cannot accurately describe Mr. Beard's demeanor when the exchange occurred with the trial
judge. The trial court was convinced, based upon Mr. Beard's responses and his demeanor,
that Mr. Beard truly understood that an indictment was nothing more than an accusatory
instrument and not evidence of guilt. We have consistently ruled that, when an issue is
heavily influenced by demeanor or credibility, we must defer to the trial court. See Phillips,
194 W. Va. at 590, 461 S.E.2d at 96 (Giving deference to the trial court's determination,
because it was able to observe the prospective jurors' demeanor and assess their credibility,
it would be most difficult for us to state conclusively on this record that the trial court abused
its discretion). A reviewing court cannot assess witness credibility through a record.
Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). See Gum
v. Dudley, 202 W. Va. 477, ___, 505 S.E.2d 391, 398 (1997) (The trial court [is in the best
position to] observe the demeanor of the witnesses and other nuances of a trial that a record
simply cannot convey); State v. Butcher, 165 W. Va. 522, 527, 270 S.E.2d 156, 159 (1980)
(The trial court had the benefit of observing the demeanor of the witness as he testified, and
we are without such benefit); State v. Roberts, 136 W. Va. 391, 400, 68 S.E.2d 48, 53
(1951) (If there had been any conflict or inconsistency anywhere in the testimony, by which
the truth of the testimony ... was drawn in question, we would feel that we could not interfere
with the decision of the trial court, since that court heard the witnesses testify and had the
opportunity to observe their demeanor, respectively, and was thus in a better position than
we could be to deduce the truth). See also, Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct.
2885, 2892, 81 L.Ed.2d 847(1984) (As we have said on numerous occasions, the trial
court's resolution of [juror bias] questions is entitled, even on direct appeal, to 'special
deference'). As such, we conclude that the trial court did not err by refusing to strike Mr.
Beard from the jury panel for cause.
2. Challenge to Adams, Ernest and Caldwell. During voir dire Mr. Williams
also asked the panel of prospective jurors if any of them would be affected in their
deliberations if evidence of similar, but noncharged, acts were introduced into evidence. It
appears that ten jurors raised their hands to indicate they would be affected by evidence of
other noncharged acts. The trial court then asked the ten jurors whether they would follow
an instruction that limited how they could use the evidence of other noncharged acts. Seven
jurors indicated they would not follow a limiting instruction. The trial court struck all seven
jurors for cause. Three of the remaining jurors, Adams, Ernest and Caldwell, indicated they
would follow a limiting instruction. Mr. Williams, nevertheless, moved to strike the
remaining three jurors for cause. The trial court refused.
We indicated in Miller, 197 W. Va. at 606, 476 S.E.2d at 553 that [t]he trial
court is in the best position to judge the sincerity of a juror's pledge to abide by the court's
instructions; therefore, its assessment is entitled to great weight. Miller also stated that an
appellate court only should interfere with a trial court's discretionary ruling on a juror's
qualification to serve because of bias when it is left with a clear and definite impression that
a prospective juror would have been unable faithfully and impartially to apply the law. Id.
The record in this case does not leave this Court with a clear and definite impression that
jurors Adams, Ernest and Caldwell would not have followed a limiting instruction by the trial
court. Thus, we find no abuse of discretion in the trial court's refusal to strike for cause
jurors Adams, Ernest and Caldwell.
B. Defense Instruction No. 12
The final assignment of error by Mr. Williams relates to the trial court's refusal
to accept proffered jury instruction No. 12. We have previously held that an instruction
offered by the defense should be given if the proposed instruction: (1) is substantively
correct, (2) is not covered substantially in the charge actually delivered to the jury, and (3)
involves an important issue in the trial so the trial court's failure to give the instruction
seriously impairs the defendant's ability to effectively present a defense. Hinkle, 200 W. Va.
at 285, 489 S.E.2d at 262. In syllabus point 4 of State v. Guthrie, 194 W. Va. 657, 461
S.E.2d 163 (1995) we further stated that:
A trial court's instructions to the jury must be a correct
statement of the law and supported by the evidence. Jury
instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not mislead by the law.
A jury instruction cannot be dissected on appeal; instead, the
entire instruction is looked at when determining its accuracy. A
trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court's discretion concerning
the specific wording of the instruction, and the precise extent
and character of any specific instruction will be reviewed only
for an abuse of discretion.
Instruction No. 12 proffered by Mr. Williams read as follows: The Court
instructs the jury that if you believe from the evidence in this case that the testimony of [the
victim] is uncorroborated, then you should scrutinize said testimony with great care and
caution. The Court further instructs the jury that you are to determine [the victim's]
credibility; however, if you believe that her testimony is inherently incredible, then you
should disregard her testimony and find the Defendant not guilty.
Mr. Williams contends that instruction No. 12 is supported by our decision in
State v. Payne, 167 W. Va. 252, 280 S.E.2d 72 (1981). Mr. Williams has misinterpreted
Payne. One of the issues in Payne concerned identification of the defendant as the actual
person who raped the victim. The only person who provided evidence of the defendant's
identification was the victim. In response to that specific fact pattern this Court held in
syllabus point 5 of Payne:
Where the State's case is based upon the uncorroborated
and uncontradicted identification testimony of a prosecuting
witness, it is error not to instruct the jury upon request that, if
they believe from the evidence in the case that the crime
charged against the defendant rests alone on the testimony of the
prosecuting witness, then the jury should scrutinize such
testimony with care and caution.
A Payne instruction concerns identification of the defendant. A Payne
instruction does not concern the acts alleged to be perpetrated by the defendant.See footnote 6
find no abuse of discretion in the trial court's rejection of instruction No. 12.See footnote 7
The trial court correctly refused to strike certain jurors for cause. Additionally,
the trial court correctly refused to give defense instruction No. 12. Therefore, the trial
court's judgment finding the defendant guilty of first degree sexual abuse and sentencing him
to one to five years in the state penitentiary is affirmed.
1Anna L. was ten years old at the time. As is our customary practice with sensitive
matters, we use the initials of the last names of juveniles. See Benjamin R. v. Orkin
Exterminating Company, Inc., 182 W. Va. 615 n. 1, 390 S.E.2d 814 n. 1 (1990).
2The defendant is the great-grandfather of Anna L.
3Evidence of sexual conduct with other adolescent girls related to Mr. Williams was
4Additional facts are provided in connection with our discussion of the particular
issues to which they relate.
5The defendant utilized preemptory strikes to remove each of the jurors.
6An amicus brief was filed on behalf of the National Organization for Women urging
that this Court not permit a Payne instruction to be applied in this case and that we overrule
Payne in sexual assault cases. While we agree that a Payne instruction is not applicable to
the facts of this case, we decline to reach the issue of the continued viability of a Payne
instruction on the issue of identification of a perpetrator in a sexual assault prosecution.
The decision in Payne discussed the case of State v. Perry, 41 W.Va. 641, 24 S.E. 634
(1896) as a perpetrator identification case. However, to the extent that Perry may be viewed
as requiring such an instruction under the facts presented by the defendant in this case, this
Court has specifically rejected the use of a Perry instruction under such circumstances. See
State v. Wilson, 74 W.Va. 772, 83 S.E. 44 (1914); State v. Clark, 64 W. Va. 627, 63 S. E.
402 (1908); Ward v. Brown, 53 W. Va. 229, 44 S. E. 488 (1903); State v. Musgrave, 43 W.
Va. 672, 28 S. E. 813 (1897).
7The trial court's general charge adequately addressed the issue of credibility of
You shall carefully consider the testimony of each and every witness
and not disregard or overlook any testimony witness or evidence.
You're the sole judges of the credibility of the witnesses and the weight
of the evidence. As used in these instructions the credibility of a witness
means the truthfulness or lack of truthfulness of the witness.
The weight of the evidence means the extent to which you are or are not
convinced by the evidence.
The number of witnesses testifying on one side or the other of an issue
is not alone the test of credibility of the witnesses and the weight of the
If warranted by the evidence you may believe one witness against a
number of witnesses testifying differently.
The tests are; how truthful is the witness and how convincing is his or
her evidence in light of all the evidence and circumstances shown.
In determining the credit in weight you will give to the testimony of any
witness who has testified before you may consider it found by you from the
evidence the good memory or lack of memory of the witness, the interest or
lack of interest of the witness in the outcome of the trial, the demeanor and
manner of testifying of the witness, the opportunity and means or lack of
opportunity and means of having knowledge of the matters concerning which
the witness testified and the reasonableness or unreasonableness of such
From these considerations and all other conditions and circumstances
appearing from the evidence you may give to the testimony of the witness such
credit and weight as you believe it to entitled to receive.
If you believe that any witness in this case has knowingly testified
falsely as to any material fact you may, after considering and weighing the
testimony of such witness, disregard the whole of the testimony of such
witness or give it or any part thereof such weight and credit as you believe it
to be entitled to receive.