Patrick N. Radcliff Darrell V. McGraw, Jr.
Vienna, West Virginia Attorney General
Attorney for the Appellant Heather D. Foster
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT, deeming himself disqualified, did not participate in the decision
of this case.
JUDGE JANES, sitting by temporary assignment.
1. Where a new trial is requested on account of alleged disqualification or
misconduct of a juror, it must appear that the party requesting the new trial called the
attention of the court to the disqualification or misconduct as soon as it was first discovered
or as soon thereafter as the course of the proceedings would permit; and if the party fails to
do so, he or she will be held to have waived all objections to such juror disqualification or
misconduct, unless it is a matter which could not have been remedied by calling attention to
it at the time it was first discovered. Flesher v. Hale, 22 W. Va. 44 (1883). Syllabus point
5, McGlone v. Superior Trucking, Inc., 178 W. Va. 659, 363 S.E.2d 736 (1987).
2. 'The right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution.' Syllabus point 4, [in part,] State v. Peacher, 167 W. Va. 540, 280 S.E.2d 559 (1981). Syllabus point 4, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
Paul Ray Varner, Jr. (hereinafter Mr. Varner) appeals his convictions for first
degree murder without a recommendation of mercy and burglary in the Circuit Court of
Wood County, West Virginia. Mr. Varner raises a number of issues. However, after
reviewing the briefs, examining pertinent authorities and hearing the arguments of counsel,
we find his claim that he was denied trial by a fair and impartial jury to be most persuasive.
Accordingly, we reverse Mr. Varner's conviction and remand this case for a new trial.
On December 19, trial counsel filed several motions, one of which was that he
had learned that one of the jurors who had convicted Mr. Varner had failed to disclose
pertinent information which reflected on the juror's ability to be impartial. As such, trial
counsel requested the voir dire be transcribed to examine the juror's voir dire answers.
Thereafter, on December 20, the trial court heard
arguments on the motions. Trial counsel identified the juror in question as
the foreperson. Additionally, trial counsel advised the circuit court that
he initially learned of the potentially disqualifying information from an
alternate juror. Trial counsel also informed the court that he had contacted
the Prosecuting Attorney to discuss the matter. During this proceeding, the
Prosecuting Attorney advised the court that she had been contacted by the
police detective who had investigated the foreperson, a nurse at Camden Clark
Hospital, for an offense relating to prescription medications. The detective
inquired if an agreement could be reached without formally indicting
and everything . . . ., given that the foreperson was a nurse and had
been reported to the appropriate professional licensing authority. The Prosecuting
Attorney never spoke directly to the foreperson, but did speak to the investigating
detective, the foreperson's lawyer and the personnel director for the foreperson's
employer, Camden Clark Hospital, all of whom sought to assist the foreperson.
Although charges were filed, an unwritten agreement provided additionally
that the foreperson would submit to random drug testing
(See footnote 2) and
that violation of such testing could result in prosecution. The charges against
the foreperson ultimately were dismissed in April, 2000, approximately six months
before Mr. Varner's trial.
(See footnote 3)
At the December 20 hearing, the Prosecuting Attorney argued further that Mr.
Varner's December 19 motion for a new trial and for transcription of voir dire were untimely
because trial counsel had known the identity of the foreperson since at least November, 2000.
Trial counsel first learned of the agreement from an alternate juror and sought confirmation
from the Prosecuting Attorney before filing the motions. In response, trial counsel admitted
that he probably did speak with the Prosecuting Attorney in November, that he had no excuse
for waiting until December 19 to file the motions and that he should have filed them sooner.
The trial court denied the motion for a new trial finding it to be untimely and,
alternatively, finding that Mr. Varner did not carry his burden of demonstrating the
foreperson was not fair and impartial. From these rulings, Mr. Varner now appeals.
This Court has also explained that
'[a]lthough 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). Syllabus point 1, Andrews v. Reynolds Memorial
Hospital, Inc., 201 W. Va. 624, 499 S.E.2d 846 (1997).
Syl. pt. 1, Lively v. Rufus, 207 W. Va. 436, 533 S.E.2d 662 (2000).
Where a new trial is requested
on account of alleged disqualification or misconduct of a juror, it must appear
that the party requesting the new trial called the attention of the court to
the disqualification or misconduct as soon as it was first discovered or as
soon thereafter as the course of the proceedings would permit; and if the party
fails to do so, he or she will be held to have waived all objections to such
juror disqualification or misconduct, unless it is a matter which could not
have been remedied by calling attention to it at the time it was first discovered.
Flesher v. Hale, 22 W. Va. 44 (1883).
(See footnote 5)
(Emphasis and footnote added).
Mr. Varner correctly directs our attention to the italicized portion of McGlone.
We have recognized that the basis of our timely objection rule is to afford the opportunity
to correct any alleged error. [A] timely objection or motion to strike 'gives both the court
and the party's opponent fair warning and a timely opportunity to acknowledge and correct
the errors so that cases can be decided squarely on the merits.' Yates v. University of West
Virginia Bd. of Trustees, 209 W. Va. 487, 493, 549 S.E.2d 681, 687 (W. Va. 2001) (quoting
1 Franklin D. Cleckley, Handbook On Evidence For West Virginia Lawyers § 1-7(B)(7)(a),
at 1-62 (4th ed. 2000)). By the time trial counsel ultimately learned of the foreperson's
questionable partiality, in November, the trial had been concluded for several weeks. Thus,
there was nothing more the trial court could have done in November -- when counsel first
learned of the foreperson's alleged partiality -- than it could have done in December when
trial counsel first brought the issue to the trial court's attention. Our rules of practice are not simply normative, but are crafted to achieve desirable ends. When applying
them would not effectuate their underlying goals, we eschew their application.
(See footnote 6) Under
the facts of this case, barring the motion on timeliness grounds failed to
effectuate the principle underlying the timely objection rule. Thus, we believe
the circuit court abused its discretion in that it acted under a misapprehension
of the law. Swims, ___ W. Va. ___, 569 S.E.2d at 788 (internal
quotations and citations omitted). See also State ex rel. Hoover
v. Berger, 199 W. Va. 12, 17, 483 S.E.2d 12, 17 (1996) ([A] circuit
court by definition abuses its discretion when it makes an error of law.).
Thus, we conclude that the circuit court erred by finding the motion was untimely. (See footnote 7)
In the alternative, the State asks us to remand this case for a hearing if we conclude the motion for a new trial was timely. The State contends, and we agree, that jurors are entitled to a presumption of impartiality. See, e.g., State v. Wade, 200 W. Va. 637, 656, 490 S.E.2d 724, 743 (1997). ([W]hen a defendant seeks the disqualification of a juror, the defendant bears the burden of 'rebut[ting] the presumption of a prospective juror's impartiality[.]' (internal quotations and citations omitted)) Moreover, the State asserts, and we agree, that there is no common law disqualification based on a pending criminal case against a juror. See generally Turnipseed v. Georgia, 54 Ga. App. 442, 188 S.E. 260 (1936) (noting that, under common law, disqualification as a juror occurred only when judgment of conviction was entered and observing further that simple conviction alone was insufficient to constitute disqualification). The State argues, therefore, that for us to by-pass remand and directly reverse this case for a new trial requires our creation of a new common law ground for disqualification. We disagree. Our review of this case convinces us that it fits well within the existing framework of our juror disqualification jurisprudence, both judicially and statutorily crafted. We can make independent factual determinations without resorting to remand where the record contains sufficient dispositive facts for decision. Syl. pt. 1, in part, Tomkies v. Tomkies, 158 W. Va. 872, 215 S.E.2d 652 (1975). See also Syl. pt. 3, in part, State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998) (When the record is adequately developed on the issue, this Court may, in its discretion, review the merits of the assignment of error.). Thus, we can reverse and remand for a new trial based upon existing law.
We have independently engaged in a thorough and searching review of the record--including the December 20 hearing wherein the Prosecuting Attorney explained the agreement she had with the foreperson, and the voir dire. Our review of the record gives us grave concern. We believe that Mr. Varner has rebutted the presumption of impartiality and that, given the contents of the record, it would be impossible to rehabilitate the foreperson.
Thus, to remand this case for a hearing to confirm the obvious would be a
futile act and '[t]he law does not require the doing of a futile act.'
State v. James Edward S., 184 W. Va. 408, 413, 400 S.E.2d 843, 848
(1990) (quoting Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531,
2543, 65 L. Ed. 2d 597, 613 (1980), opinion clarified on other grounds
by United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d
390 (1986)), modified on other grounds by State v. Kennedy, 205 W.
Va. 224, 517 S.E.2d 457 (1999). (See footnote 8)
'The right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution.' Syllabus point 4, [in part,] State v. Peacher, 167 W. Va. 540, 280 S.E.2d 559 (1981). Syllabus point 4, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). 'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.' State ex rel. Brown v. Dietrick, 191 W. Va. 169, 173, 444 S.E.2d 47, 51 (1994) (quoting State v. Louk, 159 W. Va. 482, 499, 223 S.E.2d 780, 791 (1976) (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 (1954))).
The object of jury selection is to secure jurors who are not only
free from improper prejudice and bias, but who are also free
from the suspicion of improper prejudice or bias. As far as is
practicable in the selection of jurors, trial courts should strive to
secure jurors who are not only free from prejudice or bias, but
also are not even subject to any well-grounded suspicion of any
prejudice or bias.
State v. Schermerhorn, 211 W. Va. 376, 380, 566 S.E.2d 263, 267 (2002) (per curiam) (citations omitted). Our Legislature has statutorily barred from service potential jurors who might be biased or prejudiced in a particular cause. W. Va. Code § 56-6-12 (1923) (Repl. Vol. 1997).
We have said of judges, and we think it applicable to jurors, that
[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law. Tumey v. Ohio, 273 U.S. 510, 524, 47 S. Ct. 437, 71 L. Ed. 749 [(1927)]. Point 2, syllabus, Williams v. Brannen, 116 W. Va. 1[, 178 S.E. 67 (1935)].
Syl. pt. 3, Keith v. Gerber, 156 W. Va. 787, 197 S.E.2d 310 (1973). We have also held that '[a]ny doubt the court might have regarding the impartiality of a juror must be resolved in favor of the party seeking to strike the potential juror.' Davis v. Wang, 184 W. Va. 222, 226, 400 S.E.2d 230, 234 (1990)[, overruled on other grounds by Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000)]. State v. Johnston, 211 W. Va. 293, 295, 565 S.E.2d 415, 417 (2002) (per curiam).
Here, even though the charges had been dismissed
against the foreperson, the Prosecuting Attorney still had what the State
terms an executory agreement with her for some drug related offense
when the jury convicted Mr. Varner. As long as the foreperson was under the
obligations of the informal executory agreement, there was a well-grounded
suspicion that she could attempt to curry favor with the State to her
benefit, and Mr. Varner's detriment, by voting to convict. Moreover, the foreperson
received a seemingly very unusual agreement which was not the
Prosecuting Attorney's normal practice. The agreement apparently did not subject
the foreperson--a nurse--to indictment for criminal charges relating to prescription
medications. As was earlier referenced, a police detective, as well as the
personnel director of the foreperson's employer, intervened on the foreperson's
behalf with the Prosecuting Attorney in order to assist the foreperson in
avoiding prosecution. These circumstances give rise to a well-grounded
suspicion that the foreperson would favor the State because of the favorable
treatment received from the Prosecuting Attorney's office.
(See footnote 9) In
short, [i]n the instant case, this Court has serious doubts
about the juror's ability to be fair and impartial. Johnston, 211 W. Va. at 295, 565 S.E.2d
at 417. Thus, consistent with our prior jurisprudence, we find it ineluctably necessary to
reverse the conviction and remand for a new trial.