David W. Frame, Esq.
Avrum Levicoff, Esq.
Clarksburg, West Virginia Brown & Levicoff
Attorney for Plaintiff Below, Appellee Pittsburgh, Pennsylvania Attorney for Defendant Below, Appellant
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER and JUSTICE ALBRIGHT concur and reserve the right to file concurring opinions.
1. A felony is an 'infamous crime' as it is punishable by imprisonment in the State penitentiary. Syllabus Point 6, State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989).
2. W.Va. Code § 52-1-8(b)(6) disqualifies convicted felons from serving on juries.
3. A new trial is required when it is discovered after trial that a juror who voted on the verdict is statutorily disqualified under W.Va. Code § 52-1-8(b)(6) because the juror has been convicted of a felony; the juror concealed the felony conviction during voir dire in response to the specific inquiry whether any of the prospective jurors were convicted felons; and the disqualification was undiscoverable by the exercise of ordinary diligence. The complaining party is not required to show that it suffered wrong or injustice as a result of the convicted felon's presence on the jury. To the extent that Flesher v. Hale, 22 W.Va. 44 (1883), and its progeny are inconsistent, they are expressly overruled.
4. In order to receive a new trial, a party challenging a verdict based on the presence of a juror disqualified under W.Va. Code § 52-1-8(b)(6) must show that a timely objection was made to the disqualification or that ordinary diligence was exercised to ascertain the disqualification.
Dan's Marine Service, Inc.,
the appellant and defendant below, appeals the July 27, 2000 order of the
Circuit Court of Taylor County in which the circuit court denied the appellant's
motion for a new trial. After reviewing the issue raised by the appellant,
we reverse and remand.
On August 16, 1996,
Laurel Proudfoot, the plaintiff below and appellee, was injured when she fell
through the floating dock at the marina at Tygart Lake in Taylor County, West
Virginia. The marina was operated by Dan's Marine Service, Inc., the defendant
below and appellant.
Ms. Proudfoot subsequently
filed a personal injury action against Dan's Marine Service. Liability was
admitted, and a two-day trial was held on February 16 and 17, 2000, on the
issues of causation and damages. After hearing the evidence, the jury returned
a verdict for Ms. Proudfoot in the amount of $140,956.45. In its March 6,
2000 order, the circuit court entered judgment for Ms. Proudfoot in the amount
of $143,387.39 which included pre-judgment and post-judgment interest.
Dan's Marine Service filed a motion for a new trial in which it alleged, inter alia, that one of the jurors, Olive Crow, had been convicted of a felony and was, therefore, disqualified from sitting on a jury pursuant to W.Va. Code § 52-1-8(b)(6). Subsequent hearings on the motion revealed that several years earlier Ms. Crow had pled guilty to one count of embezzlement. On the juror qualification form filled out by potential jurors prior to trial, Ms. Crow had answered No to the question Have you ever been convicted of perjury, false swearing, or other infamous crime? Further, Ms. Crow failed to reveal her felony conviction during voir dire when the circuit court inquired of the jury panel whether any of them had been convicted of a felony. (See footnote 1) Dan's Marine Service asserted that Ms. Crow's statutory disqualification from serving as a juror automatically mandated the granting of a new trial.
In its July 27, 2000 order denying Dan's Marine Service's motion for a new trial, the Circuit Court of Taylor County made the following findings of fact and conclusions of law:
First, the Court finds and concludes that Olive Crow, one of the jurors who was sworn and subscribed to the verdict in this matter, is and was at the time of jury selection . . . and at the time of trial . . . a convicted felon having been convicted by the Circuit Court of Randolph County for the felony offense of embezzlement.
Second, the Court finds that no agents, servants or employees of the defendant, Dan's Marine Service, Inc., including Dan Williams, appeared at jury selection, but that only counsel for the defendant appeared at jury selection.
Third, the Court finds that the juror, Olive Crow, on the initial juror qualification form marked that she had not ever been convicted of perjury, false swearing or any other infamous offense. The Court finds that such response on the juror qualification form was false.
Fourth, at the time of the general swearing of the jury, the Court went through each question on the juror qualification form, and specifically explained that the term infamous offense meant a felony. The Court inquired of the jury panel whether any of them had been so convicted. At that time, the juror Olive Crow either failed to answer or did not admit that she had been convicted of a felony. Therefore, the Court finds that she answered the Court's questions falsely.
Fifth, the Court finds and concludes that at the time of trial, Olive Crow was, in fact, disqualified from sitting on the jury in this case, or on any other jury in a civil case in West Virginia, in light of the statutory disqualification provided under West Virginia Code 52- 1-8(d)(6) [sic].
Sixth, the Court finds based upon the testimony of witnesses who have appeared at the post verdict hearings in this matter, specifically the testimony of Dan Williams, that the defendant did not have knowledge of Olive Crow's felony conviction and consequent disqualification until the day after the trial in this matter.
Seventh . . . the Court is of the opinion that such disqualification and false concealment by the juror is not in and of itself a sufficient basis to set aside the verdict and grant a new trial. Instead, the Court is of the opinion that under the current law the defendant must separately demonstrate actual prejudice. . . .
Eighth, the Court finds and concludes that . . . the defendant has not otherwise shown substantial prejudice.
Dan's Marine Service now appeals this order.
This Court has held:
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.
Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
Recently, we noted that in reviewing an order denying a new trial, we review the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo. Gum v. Dudley, 202 W.Va. 477, 482, 505 S.E.2d 391, 396 (1997) quoting Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). With these standards in mind, we now turn to the issue before us.
The appellee is correct
in asserting that traditionally this Court has required a showing of prejudice
or harm to the complainant prior to setting aside a verdict due to alleged
juror disqualification. This rule was stated early on in Syllabus Point 1
of Flesher v. Hale, 22 W.Va. 44 (1883):
It is the settled law of this State, in both criminal and civil trials, that the verdict of a jury will not be set aside for objections to jurors, on grounds which existed before they were sworn, unless it appears that by reason of the existence of such grounds the party objecting has suffered wrong or injustice; and the ignorance of the parties of the existence of such grounds until after verdict is immaterial.
See also, Syllabus Point 17, Sweeney v. Baker, 13 W.Va. 158 (1878), overruled in part on other grounds by Bailey v. Charleston Mail Ass'n, 126 W.Va. 292, 27 S.E.2d 837 (1943), (A new trial will not be granted, because a juror is alleged to have made up his mind on the merits of the case, before he was called on the jury; unless it appears from the whole case, that the party seeking the new trial suffered injustice from the fact, that such juror served); Malone v. Monongahela Valley Traction Co., 105 W.Va. 60, 141 S.E. 440 (1928) (affirming denial of a new trial where two jurors were alleged to be incompetent, one because of bias and partiality and the other because of a relationship with the plaintiff); Watkins v. Baltimore & O.R. Co., 130 W.Va. 268, 43 S.E.2d 219 (1947) (reversed trial court's grant of new trial
where complainant's affidavit, alleging that a juror was an employee of
the defendant, was found to be deficient because it did not show prejudice
to the plaintiff); Syllabus Point 13, State v. Riley, 151 W.Va. 364,
151 S.E.2d 308 (1966) (holding that [e]ven if a petit juror served on
the jury which convicted a defendant and also had served on the grand jury
which had indicted him, the verdict of the jury will not be set aside on motion
of the defendant after the verdict if it appears that the defendant had a
fair and impartial trial); Beck v. Thomson, 31 W.Va. 459, 7 S.E.
447 (1888), overruled in part on other grounds by Mayer v. Frobe, 40
W.Va. 246, 22 S.E. 58 (1895), ( affirming the denial of a new trial where
a juror was disqualified under W.Va. Code § 56-6-14 because he had a
case pending in the same court scheduled for trial during the same term);
and Garrett v. Patton, 81 W.Va. 771, 95 S.E. 437 (1918) (reversing
the trial court's grant of a new trial where defendant was a member of the
petit jury in attendance at the term of the court during which his case was
tried, and had served as a juror with some, if not all, of the jurors who
tried his case).
(See footnote 3)
In State v. Bongalis,
supra, the defendant challenged his second-degree murder conviction after
discovering several months after his trial that one of the jurors had been
convicted of a felony and was, therefore, statutorily disqualified from serving.
On appeal, the defendant argued that the verdict should be set aside and a
new trial awarded because of the disqualified juror. This Court based its
decision to affirm the conviction on the rule stated in Syllabus Point 9 of
State v. Hayes, 136 W.Va. 199, 67 S.E.2d 9 (1951) which provides:
The general rule, inhibiting allowance of a new trial for matter constituting a principal cause of challenge to a juror, existing before the juror was elected and sworn, unknown to the complaining party until after verdict, not disclosed on a thorough voir dire examination, and undiscoverable by the exercise of ordinary diligence, unless it appears from the whole case that the complainant suffered injustice by reason of the disqualification; applies in criminal cases. (Citation omitted.)
The Court, however, did not hinge its decision on whether the defendant suffered injustice. Instead, the Court found that the defendant was foreclosed from attacking the verdict because he had not inquired of the jury panel as to whether any member had been convicted of a felony.
In the instant case, in
contrast, the circuit court asked whether any member of the jury panel had
been convicted of a felony, and Ms. Crow concealed her conviction. Therefore,
we are now faced squarely with the issue of whether the traditional rule that
mandates a showing of harm as a result of juror disqualification should be
applied where there is both a statutory disqualification due to a felony conviction
and concealment of the conviction during voir dire. We believe
that the traditional rule requiring a showing of wrong or injustice should
W.Va. Code § 52-1-8(b)(6)
(1993) clearly provides that [a] prospective juror is disqualified to
serve on a jury if the prospective juror . . . [h]as been convicted of perjury,
false swearing or other infamous offense.
(See footnote 4) We stated in Syllabus Point
6 of State v. Bongalis that [a] felony is an 'infamous crime'
as it is punishable by imprisonment in the State penitentiary. Therefore,
it is plain that W.Va. Code § 52-1-8(b)(6) disqualifies convicted felons
from serving on juries. The obvious purpose of W.Va. Code § 52-1-8(b)(6)
is to ensure that juries consist of law abiding citizens of approved integrity,
good character, and sound judgment who are most likely to perform their jury
service with the proper respect for the law, to fairly try the facts, and
to render impartial verdicts. We believe that the traditional rule fails to
give adequate effect to the significant intent and purpose of W.Va. Code §
Accordingly, we hold that
a new trial is required when it is discovered after trial that a juror who
voted on the verdict is statutorily disqualified under W.Va. Code § 52-
1-8(b)(6) because the juror has been convicted of a felony; the juror concealed
the felony conviction during voir dire in response to the specific
inquiry whether any of the prospective jurors were convicted felons; and the
disqualification was undiscoverable by the exercise of ordinary diligence.
The complaining party is not required to show that it suffered wrong or injustice
as a result of the convicted felon's presence on the jury. To the extent that
Flesher v. Hale, 22 W.Va. 44 (1883), and its progeny are inconsistent,
they are expressly overruled.
We emphasize that in order to receive a new trial, a party challenging a verdict based on the presence of a juror disqualified under W.Va. Code § 52-1-8(b)(6) must show that a timely objection was made to the disqualification or that ordinary diligence was exercised to ascertain the disqualification. This Court's oft-repeated raise it or waive it rule is applicable.
Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights. Recently, we stated in State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996): The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace.
State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996). This is consistent with W.Va. Code § 56-6-16 (1923) which says that [n]o irregularity in . . . the drawing, summoning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless objection specifically pointing out such irregularity was made before the swearing of the jury[.] Further, W.Va. Code § 56-6-15 (1923) provides that [n]o exception shall be allowed against a juror, after he is sworn upon the jury, on account of his age or other legal disability, unless by leave of court. Finally, we have recognized that where there is a recognized statutory or common law basis for disqualification of a juror, a party must during voir dire avail himself of the opportunity to ask such disqualifying questions. Otherwise the party may be deemed not to have exercised reasonable diligence to ascertain the disqualification. State v. Bongalis, 180 W.Va. at 591, 378 S.E.2d at 456.
Further, under the ordinary
diligence standard, it is not enough to show that the circuit court failed
to ask the questions which likely would have revealed the disqualification.
A party must ensure that the trial court examines the jury panel concerning
a possible disqualification, or the party itself must ask the relevant questions.
According to W.Va. Code § 56-6-12 (1923):
Either party in any action or suit may, and the court shall on motion of such party, examine on oath any person who is called as a juror therein, to know whether he is a qualified juror, or is related to either party, or has any interest in the cause, or is sensible of any bias or prejudice therein[.]
This Court said in W.Va. Human Rights Commission v. Tenpin Lounge, Inc., 158 W.Va. 349, 355, 211 S.E.2d 349, 353 (1975), that [v]oir dire examination is designed to allow litigants to be informed of all relevant and material matters that might bear on possible disqualification of a juror and is essential to a fair and intelligent exercise of the right to challenge either for cause or peremptorily. Our law is clear that the parties to a trial are responsible for conducting a full and complete voir dire during which, if the prospective jurors are forthright, all relevant and meaningful information will be revealed which is necessary for the impaneling of a qualified jury. Therefore, a party cannot simply sit back and invite error because of a juror's disqualification.
Applying this rule to the
instant case, it is undisputed that Ms. Crow had been convicted of a felony
and that she concealed this fact on both the juror qualification questionnaire
and during voir dire when the circuit court specifically asked whether
any of the prospective jurors had been convicted of a felony. Also,
there is no reason to believe that the appellant knew of or failed to exercise
ordinary diligence to discover Ms. Crow's felony conviction. Lacking knowledge
to the contrary, it was reasonable for the appellant to rely upon Ms. Crow's
silence when the circuit court made its specific inquiry.
(See footnote 5) The relevant question was
asked by the circuit court, and nothing more could be done. Therefore, we
find that a new trial is warranted in this case.
In closing, we note that
this Court is not unsympathetic to the appellee. Through absolutely no fault
of her own, Ms. Proudfoot's verdict is set aside, and she must again bear
the significant burden, including the substantial expense, of a trial. However,
this Court is charged in this case with weighing the finality of the verdict
against the plain legislative intent that juries are served by jurors whose
moral status has never been judicially established as criminal. We find that
the scales tip in favor of the latter consideration.
For the reasons stated above, we reverse the July 27, 2000 order of the Circuit Court of Taylor County which denied the appellant's motion for a new trial, and we remand for proceedings consistent with this opinion.
Reversed and Remanded.
contain a plethora of rationales and often rely upon statutes or rules of procedure that may be unique to that particular state. Therefore, they are of limited assistance in deciding the issue in this case.