654 S.E.2d 605
This is a criminal appeal by William Mills, Jr. (hereinafter referred to as Mr. Mills) from an order of the Circuit Court of Kanawha County convicting and sentencing him for the crime of delivery of a controlled substance. (See footnote 1) In this appeal, Mr. Mills contends that the circuit court committed error in refusing to strike a prospective juror for cause. After careful consideration of the briefs, record and oral arguments, we affirm.
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.
Syl. pt. 4, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996). We have also pointed out 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. Syl. pt. 5, Miller, id.
Mr. Mills contends that the juror in question, Theodore Douglas, should have been struck for cause on the grounds that: (1) Mr. Douglas was employed as a medic for the Kanawha County Emergency Medical Services and, as such, regularly came in contact with police officers and (2) Mr. Douglas and a potential witness for the State, police officer D. Armstrong, both worked as volunteer firefighters with the Pinch Volunteer Fire Department. During jury voir dire, the following exchange occurred between Mr. Douglas, the trial judge and defense counsel:
The Court: Alright, this gentleman back there, you are?
Juror Douglas: Theodore Douglas. I know Van [sic] Armstrong.
The Court: And how do you know him?
Juror Douglas: I'm on the Fire Department of Pinch with him.
The Court: Is that going to have any impact on your ability to be fair and impartial?
Juror Douglas: No, sir.
The Court: Are you going to be able to judge his testimony the same as any other witness who testifies?
Juror Douglas: Yes sir.
A prospective juror's . . . social relationship with an employee of a law enforcement agency does not operate as a per se disqualification for cause in a criminal case unless the law enforcement official is actively involved in the prosecution of the case. After establishing that such a relationship exists, a party has a right to obtain individual voir dire of the challenged juror to determine possible prejudice or bias arising from the relationship.
172 W. Va. 817, 310 S.E.2d 883. The decision in Beckett establishes two ways in which a prospective juror may be struck for cause. First, if the juror has a social relationship with a law enforcement official involved with the case, disqualification may be automatic. (See footnote 7) Second, if the juror has a social relationship with a law enforcement official not involved in the case, a party may question the juror for prejudice or bias. See State v. McClure, 184 W. Va. 418, 423, 400 S.E.2d 853, 858 (1990) (prospective juror did not have to be disqualified for cause due to fact that her husband was police officer); State v. Bates, 181 W. Va. 36, 41, 380 S.E.2d 203, 208 (1989) (prospective juror did not have to be disqualified for cause due to fact that her son was police officer); State v. Perdue, 179 W. Va. 719, 721, 372 S.E.2d 636, 638 (1988) (prospective juror did not have to be disqualified for cause due to fact that he had relatives who were police officers); State v. Brown, 177 W. Va. 633, 639, 355 S.E.2d 614, 620 (1987) (finding no error in failing to strike for cause two prospective jurors related by marriage to law enforcement officers and a third juror who was related to a deputy sheriff and married to a former employee of the sheriff's office). Under both prongs of the Beckett test, a complaining party must show that a social relationship exists with a law enforcement official.
The record in this case shows that Mr. Mills failed to establish the social relationship requirement of Beckett. The evidence in this case only demonstrated that Mr. Douglas and Mr. Armstrong worked for the same volunteer fire department, and that when Mr. Douglas responded to EMS calls, law enforcement officials also routinely responded. The social relationship requirement of Beckett is not satisfied by this evidence alone. See State v. Campbell, 617 S.E.2d 1, 36 (N.C. 2005) (Mere acquaintance with a witness is not enough to require excusal for cause.). The mere fact that people work together does not mean that they like each other or socialize on or off the job. It is this type of evidence that is needed to help establish the social relationship requirement of Beckett.
The record in this case speaks for itself in showing that Mr. Mills failed to ask probing questions as to the nature of Mr. Douglas's relationship with Mr. Armstrong or other law enforcement officials. In fact, Mr. Mills did not ask any direct questions about Mr. Douglas's relationship with Mr. Armstrong. See State v. Worley, 179 W. Va. 403, 416, 369 S.E.2d 706, 719 (1988) (Beckett would preclude any claim of error since there were no particular facts developed to demonstrate any bias on the part of the juror.). As pointed out by an appellate court, [d]isclosure during the trial that a juror knows . . . a witness . . . is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Mayeux, 949 So. 2d 520, 533 (La. Ct. App. 2007). Moreover, [t]he inquiry is whether the conditions behind a juror's familiarity with a . . . witness are such that their connections would probably subconsciously affect their decision of the case adversely to the defendants. Ratliff v. Commonwealth, 194 S.W.3d 258, 266 (Ky. 2006) (internal quotation marks and citation omitted). Simply put, there is no presumption that people bond together socially, merely because they work together. See Holloway v. State, 629 S.E.2d 447, 454 (Ga. Ct. App. 2006) (juror not disqualified merely because she worked regularly with law enforcement officials); Turner v. Commonwealth, 153 S.W.3d 823, 832 (Ky. 2005) (juror not disqualified because she knew two state troopers who participated in the investigation of the crime); People v. DiNapoli, 813 N.Y.S.2d 280, 281 (N.Y.S.2d 2006) (juror not disqualified merely because juror knew and worked with an individual who was expected to testify as
an expert witness). Thus, based on the record in this case, we find that Mr. Mills failed to satisfy the requirements of Beckett.
Mr. Mills has also cited to our decision in State v. Schermerhorn, 211 W. Va. 376, 566 S.E.2d 263 (2002). In his brief, Mr. Mills has characterized Schermerhorn as standing for the proposition that a juror is disqualified merely because the juror's step-father was a police officer. The decision in Schermerhorn does not stand for such a proposition.
In Schermerhorn, the defendant was found guilty of third offense driving under the influence of alcohol. In the appeal, the defendant argued that the trial judge committed error in failing to strike a prospective juror for cause. We agreed with the defendant. In doing so, we relied upon the following facts:
In the instant case, appellant challenged a prospective juror whose stepfather was a West Virginia University police officer who had previously worked for the Monongalia County Sheriff's Department. Initially, the challenged juror stated that she could impartially consider the evidence. After additional questioning by the court, however, she qualified her answer. The challenged juror also revealed that she grew up with the assistant prosecuting attorney assigned to the case, was related by marriage to another assistant prosecutor, and was socially acquainted with still another assistant prosecutor. In response to rehabilitation-type questions, the challenged juror stated that her relationships with attorneys working for the prosecuting attorney's office would not influence her ability to be impartial.
Additionally, the same challenged prospective juror also knew three potential trial witnesses: an investigating officer, a hotel clerk, and the tow truck operator. When asked whether she would be inclined to give their testimony more or less weight than other witnesses, she responded that maybe one of them because I know him better than the others, so I would tend to think [he] wouldn't lie. You have to answer the question honestly, right?
When appellant's counsel asked the prospective juror whether her knowledge of the witnesses and assistant prosecutors would make it difficult for her to serve, she responded, There's a possibility. I would like to think that I'[m] not that kind of person, but I can't honestly say 'no.' Schermerhorn, 211 W. Va. at 380, 566 S.E.2d at 267.
The underlying facts of Schermerhorn are clearly distinguishable from the facts of Mr. Mills' case. The juror in Schermerhorn twice stated that she had reservations about being able to impartially decide the case. In the instant proceeding, Mr. Douglas was quite clear in stating that he would be impartial in deciding the merits of the case. (See footnote 8) Further, and contrary to assertions in Mr. Mills's brief, the trial court did not engage in any rehabilitation questioning of Mr. Douglas.
In sum, on the record presented to this Court we cannot say that the trial court abused its discretion in denying the motion to strike Mr. Douglas for cause.