| Rocky D. Holmes, Esq.
Teresa C. Monk, Esq.
Public Defender Corporation
Spencer, West Virginia
Attorneys for Appellant
| Darrell V. McGraw, Jr., Esq.
Robert D. Goldberg, Esq.
Assistant Attorney General
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
[T]here is no automatic requirement that mandates the reversal of a conviction whenever a witness for the State comes into contact with the jury. Instead, what is required is a factual analysis that focuses on the length and degree of contact between the jury and the witness, as well as an inquiry into whether the witness provided testimony that was crucial to the conviction, or merely formal in nature. (Citation omitted.).
Consistent with this approach, this Court has held:
A motion for a new trial on the ground of the misconduct of a jury is
addressed to the sound discretion of the court, which as a rule will not be
disturbed on appeal where it appears that defendant was not injured by the
misconduct or influence complained of.
Syllabus Point 7, in part, State v. Johnson, 111 W. Va. 653, 164 S.E. 31 (1932). In the recent case of State v. Holland, 178 W. Va. 744, 364 S.E.2d 535 (1987), this Court considered the same issue as is present in the instant case.
In Holland, the defendant was convicted of driving under the influence of
alcohol, second offense. At trial, the investigating officer, Trooper McDonald, testified that
upon encountering the defendant at the scene of an automobile accident, it was obvious that
the defendant was under the influence of alcohol. On appeal to this Court, the defendant
contended that the circuit court erred in denying his motion for acquittal or for a mistrial
based on the fact that Trooper McDonald conversed with several jurors out of the presence
of the parties. Specifically,
The record indicates that the conversation lasted approximately five minutes and occurred while the parties were engaged in in camera proceedings in the judge's chambers. Trooper McDonald testified that the subjects of the conversation included Calhoun County football games, deer hunting, and helicopter searches for marijuana. He testified that the defendant's case was not discussed nor was reference made to the subject of drinking or driving under the influence of alcohol. Trooper McDonald also had coffee with one of the jurors on the morning of the trial, but he testified that it was before he knew who the jurors were and the case was not discussed.
Holland, 178 W. Va. at 748, 364 S.E.2d at 539. Upon applying our holding in Johnson, this Court concluded:
We do not think that the trial court in this case abused its discretion in
failing to find that the defendant was injured by the fact that the trooper carried
on a short conversation with several members of the jury, when the
conversation did not in any manner relate to the defendant's case. Although
this type of communication is neither condoned nor approved, see, W. Va.
Code, 62-3-6 , the trial judge heard evidence relating to the conversation
and found that no prejudice resulted therefrom. It was within the judge's
discretion to make this decision and there is nothing to show that there was an
abuse of that discretion.
We believe that our decision in Holland is inapplicable to the case before us because there are several significant facts that distinguish the instant case from Holland. First, Trooper Starcher sat at the prosecutor's table throughout the trial. As a result, Trooper Starcher was more than a key witness for the State but was, in fact, identified with the State. Also significant is the fact that the conversation in Holland lasted for only about five minutes whereas the conversation in the instant case lasted from fifteen to twenty minutes. As this Court stated in State v. Waugh, supra, in determining whether to reverse a conviction when a State's witness comes into contact with the jury, we consider the length and degree of contact and whether the witness's testimony was crucial to the conviction or merely formal. The contact in the instant case involved a lengthy conversation between a person strongly identified with the State as well as one who provided crucial testimony concerning statements made by the appellant during an interview. (See footnote 3) Therefore, we find that the circuit court abused its discretion in denying the appellant's motions for a mistrial and for a new trial.