Darrell V. McGraw, Jr.
Steven K. Mancini
Attorney General Assistant Public Defender
Barbara H. Allen Welch, West Virginia
Managing Deputy Attorney General Attorney for Appellant
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER concurs and reserves the right to file a concurring
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUDGE JOHNSON, sitting by temporary assignment.
JUSTICE SCOTT did not participate.
1. An appellate court only should interfere with a trial court's
discretionary ruling on a juror's qualification to serve because of bias only when it is left with
a clear and definite impression that a prospective juror would be unable faithfully and
impartially to apply the law. Syllabus point 6, in part, State v. Miller, 197 W. Va. 588, 476
S.E.2d 535 (1996).
2. The language of W. Va. Code § 62-3-3 (1949), grants a defendant the
specific right to reserve his or her peremptory challenges until an unbiased jury panel is
assembled. Consequently, if a defendant validly challenges a prospective juror for cause and
the trial court fails to remove the juror, reversible error results even if a defendant
subsequently uses his peremptory challenge to correct the trial court's error. Syllabus point
8, State v. Phillips, 194 W. Va. 569, 588, 461 S.E.2d 75, 94 (1995).
3. When a prospective juror is closely related by consanguinity to a
prosecuting witness or to a witness for the prosecution, who has taken an active part in the
prosecution or is particularly interested in the result, he should be excluded upon the motion
of the adverse party. Syllabus point 2, State v. Kilpatrick, 158 W. Va. 289, 210 S.E.2d 480
Lawrence E. Christian, III, appellant/defendant (hereinafter referred to as Mr.
Christian), appeals from a judgment by the Circuit Court of McDowell County sentencing
him to twelve years imprisonment after his conviction for voluntary manslaughter. Mr.
Christian asserts one assignment of error. Mr. Christian claims the trial court committed
error in denying his motion to strike a prospective juror for cause. Based upon the parties'
arguments on appeal, the record designated for appellate review, and the pertinent
authorities, we reverse and remand this case for a new trial.
When Mr. Christian and his two companions arrived at Mr. Walls' vehicle, two other individuals, Mr. William Cleary and Mr. Billy Reed, were present at the roadside. The evidence was conflicting as to some of the events that occurred when Mr. Christian and his two companions arrived. Mr. Christian testified that Mr. Cleary approached their car
wielding a baseball bat.See footnote 1
It was undisputed, however, that Mr. Christian fired a bullet from
a .38 revolver while in the car. The bullet fired by Mr. Christian struck Mr. Cleary in the
chest and killed him.See footnote 2
Mr. Christian was a juvenile at the time of the shooting. However, he was
prosecuted as an adult for first degree murder. The trial began on June 3, 1996. On June 7,
1996, the jury returned a guilty verdict against Mr. Christian for voluntary manslaughter.
Mr. Christian was sentenced to twelve years imprisonment on August 8, 1996. On January
8, 1999, Mr. Christian was resentenced.See footnote 3
This appeal resulted from the resentencing order.
cause is reviewed under an abuse of discretion standard. State v. Phillips, 194 W. Va. 569,
588, 461 S.E.2d 75, 94 (1995) This Court has indicated that 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). We have also ruled that [a]n appellate court only should interfere with a trial
court's discretionary ruling on a juror's qualification to serve because of bias only when it is
left with a clear and definite impression that a prospective juror would be unable faithfully
and impartially to apply the law. Syl. Pt. 6, in part, State v. Miller.
Christian utilized a peremptory strike to remove Ms. Cecil from the jury panel.
We have previously ruled that [t]he language of W. Va. Code § 62-3-3
(1949), grants a defendant the specific right to reserve his or her peremptory challenges until
an unbiased jury panel is assembled. Consequently, if a defendant validly challenges a
prospective juror for cause and the trial court fails to remove the juror, reversible error results
even if a defendant subsequently uses his peremptory challenge to correct the trial court's
error. Syl. Pt. 8, State v. Phillips. This Court has long held that '[t]he true test to be
applied with regard to qualifications of a juror is whether a juror can, without bias or
prejudice, return a verdict based on the evidence and the court's instructions and disregard
any prior opinions he may have had.' State v. Charlot, 157 W. Va. 994, 1000, 206 S.E.2d
908, 912 (1974). Syl. Pt. 1, State v. Harshbarger, 170 W. Va. 401, 294 S.E.2d 254 (1982).
We have recognized that [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.
Ms. Cecil responded to questions during voir dire that raised doubt about her possible bias or prejudice. The trial court conducted individual voir dire of Ms. Cecil and afforded to counsel for Mr. Christian and counsel for the State the opportunity to question her. Thus, we find that the trial court followed the proper procedure for determining a juror's qualifications. See Syl. Pt. 1, State v. Finley, 177 W. Va. 554, 355 S.E.2d 47 (1987) (When
a trial court determines that prospective jurors have been exposed to information which may
be prejudicial, the trial court, upon its own motion or motion of counsel, shall question or
permit the questioning of the prospective jurors individually, out of the presence of the other
prospective jurors, to ascertain whether the prospective jurors remain free of bias or
prejudice). Having determined that the trial court followed the proper procedure, we now
consider whether it abused its discretion in refusing to strike Ms. Cecil for cause.
In syllabus point 2 of State v. Kilpatrick, 158 W. Va. 289, 210 S.E.2d 480
(1974) this Court held that [w]hen a prospective juror is closely related by consanguinity
to a prosecuting witness or to a witness for the prosecution, who has taken an active part in
the prosecution or is particularly interested in the result, he should be excluded upon the
motion of the adverse party. Mr. Christian cites to Kilpatrick as standing for the proposition
that [a] prospective juror who is a relative to a party, important witness, or victim is not
permitted to serve as a juror. Mr. Christian has misread Kilpatrick.
Kilpatrick does not establish a per se removal for cause of a prospective juror
who is related to a witness. Kilpatrick qualified its ruling by indicating the witness must
have (1) taken an active part in the prosecution or (2) be particularly interested in the result.
While we believe Mr. Christian misread Kilpatrick as establishing a per se removal for cause,
we nevertheless find that the decision in Kilpatrick warrants reversal in this case.
In Kilpatrick, we noted that [i]n judging possible prejudice on the part of a
juror related to the witness other than the prosecuting witness, each case must be decided on
its own facts. Kilpatrick, 158 W. Va. at 295, 210 S.E.2d at 484 (citation omitted). The
record in the instant case is unmistakably clear in showing that Ms. Cecil had a particular
interest in this case. That interest focused around two facts: (1) Mr. Eric Walls was present
when the crime occurred, (2) and Mr. Eric Walls is Ms. Cecil's nephew. It is quite obvious
to this Court that the possibility existed that Ms. Cecil would be susceptible to voting to
convict Mr. Christian, so as to preclude any later attempts to bring charges against her
nephew, Mr. Eric Walls. Our reasoning on this matter is bolstered by this Court's discussion
in State v. Harris, 69 W. Va. 244, 71 S.E. 609 (1911):
. . . Blood is thicker than water; and it is utterly impossible for any person to determine how far the judgment or action of a person affected by it may be swayed or controlled. It operates upon the mind and heart of the individual secretly and silently. Its operation is not disclosed by any outward manifestation other than the result. It is utterly impossible to look into a man's mind and see its operation. Its effect is not general, like many other disqualifications. It is purely personal, operating between the related parties and to the prejudice of all others.... [O]ne who has an interest in the subject-matter of the litigation or is related to one of the parties, is palpably and wholly unfit for service as a juror.
Harris, 69 W. Va. at 245-246, 71 S.E. at 609.
Moreover, Ms. Cecil admitted to having discussions with Mr. Eric Walls'
mother about the case. It would be unreasonable to assume that during those discussions
there was no expression of concern that authorities might seek to criminally prosecute Mr.
Eric Walls. Although Ms. Cecil indicated that she believed she could impartially weigh the
evidence in this case if allowed to sit on the jury, the possibility of Mr. Eric Walls being
prosecuted undoubtedly would have had some impact on her during deliberations. We have
previously ruled that [e]ven 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 other facts in the record indicate to the contrary. Miller, 197 W.
Va. at 605, 476 S.E.2d at 552. In the instant proceeding other facts compel this Court to
conclude that Ms. Cecil would not have been an impartial juror. We therefore find that the
trial court committed reversible error in failing to strike Ms. Cecil for cause.