Charles S. Trump IV
Berkeley Springs, West Virginia
Attorney for the Relator
Richard G. Gay
Leah R. Stotler
Stotler & Stotler
Berkeley Springs, West Virginia
Attorney for Respondent Dennis G.
The Opinion of the Court was delivered PER CURIAM.
"The State may seek a writ of prohibition in this Court
in a criminal case where the trial court has exceeded or acted
outside of its jurisdiction. Where the State claims that the trial
court abused its legitimate powers, the State must demonstrate that
the court's action was so flagrant that it was deprived of its
right to prosecute the case or deprived of a valid conviction. In
any event, the prohibition proceeding must offend neither the
Double Jeopardy Clause nor the defendant's right to a speedy trial.
Furthermore, the application for a writ of prohibition must be
promptly presented." Syllabus Point 5, State v. Lewis, ___ W. Va.
___, ___ S.E.2d ___ (No. 20930 7/6/92).
The relator, Charles S. Trump, IV, Prosecuting Attorney
for Morgan County, seeks a writ of prohibition to prevent the
Honorable Donald C. Hott, Special Judge of the Circuit Court of
Morgan County, from granting a new trial in the case of State v.
Berger, Case No. 90-F-12. For the reasons stated below, we deny
Dennis G. Berger was convicted of four counts of second-degree sexual assault on November 4, 1991. On January 23, 1992,
defense counsel filed a motion for new trial based upon an
affidavit of one of the jurors, which asserted that during the
second day of deliberations another juror told the entire panel
that she knew that the defendant had either been accused of or
convicted of wife beating and child molestation. The affidavit
further stated that after this statement was made, three or four
other jurors indicated that they had also heard that the defendant
had either been accused of or convicted of these same crimes.
In an opinion order dated February 3, 1992, the trial court scheduled a hearing in order to address the matters set forth in the affidavit. The order advised that the jurors would be called to testify at that hearing and outlined the procedure the court intended to follow. First, the juror who signed the affidavit would be examined by defense counsel and would be subject
to cross-examination by the prosecuting attorney. If this juror's
testimony was in accord with his affidavit, then the remaining
jurors would be individually examined. Each would be informed of
the nature of the statements alleged in the affidavit and asked if
these statements were made during deliberations. If the juror
answered "no," he would not be asked any further questions. If the
juror answered "yes," he would then be asked if he would have
reached the same verdict had the statements not been made in his
The hearing proceeded under this arrangement. The juror
who signed the affidavit essentially confirmed the statements made
therein and added that at the time the statements were made the
jury vote was eleven to one to convict. He further informed the
court that he was the hold-out juror and that the statements
influenced his decision to find the defendant guilty. On cross-examination, the juror explained that he changed his mind because
he thought that if these allegations were true, the defendant would
get mental health treatment. When asked why he had not disclosed
these statements when the jury was polled, he replied that he had
told his fellow jurors that he would vote to find the defendant
The other jurors were then individually questioned by the court and each was asked if they had heard the extraneous statements. Of the eleven jurors questioned, six could not recall
the statements being made. Five jurors did recall the statements
and, when asked if the statements had not been made would they have
changed their verdict, all answered "no."
Following the hearing, the respondent judge indicated
that he was inclined to set aside the verdict, but invited the
prosecutor to seek a writ of prohibition to preclude such a ruling.
Recently, in State v. Lewis, ___ W. Va. ___, ___ S.E.2d
___ (No. 20930 7/6/92), we discussed the State's right to seek a
writ of prohibition with regard to an adverse ruling in a criminal
matter. We concluded that under extraordinary circumstances, the
State could seek such a writ and held in Syllabus Point 5 of Lewis:
"The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented."
In analyzing the State's right to prohibition in a criminal matter, we must first look to the type of error asserted. Here, the State does not claim that the trial court exceeded or acted outside its jurisdiction. Rather, the State asserts that the trial court abused its legitimate powers by granting a new trial
based on one juror's disclosure of incriminating extrinsic evidence
against the defendant. The State recognizes our traditional rule
that the determination of a motion for new trial in a criminal case
rests in the sound discretion of the trial court. As we stated in
State v. King, 173 W. Va. 164, 165, 313 S.E.2d 440, 442 (1984):
"The question of whether a new trial should be granted depends on
the circumstances of the case and is largely in the discretion of
the trial court. State v. Nicholson, 170 W. Va. 701 , 296
S.E.2d 342, 344 (1982)." Thus, in these circumstances, under
Syllabus Point 5, in part, of State v. Lewis, supra, the "State
must demonstrate that the court's action was so flagrant that it
was deprived of its right to prosecute the case or deprived of a
In State v. Scotchel, 168 W. Va. 545, 285 S.E.2d 384
(1981), we discussed at some length the question of whether a jury
verdict should be set aside based on a juror's affidavit which
alleged that certain improprieties occurred during the jury's
deliberations. Initially, we distinguished between those matters
which are intrinsic and those that are extrinsic to the
deliberative process. We explained the nature of intrinsic matters
in Syllabus Point 1:
"A jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict."
On the other hand, extrinsic matters are those
"'occurring during the trial [which are] not essentially inhering
in the verdict[.]'" State v. Scotchel, 168 W. Va. at 549, 285
S.E.2d at 387, quoting 76 Am. Jur. 2d Trial § 1223 (1975). Unlike
intrinsic matters, "a jury verdict may be impeached for matters of
misconduct extrinsic to the jury's deliberative process." Syllabus
Point 2, in part, State v. Scotchel, supra. We pointed out in note
3 of Scotchel, 168 W. Va. at 549, 285 S.E.2d at 387, a category of
extrinsic conduct that can be used to impeach the verdict in a
"However, in criminal trials, a defendant has a constitutional right to confront the witnesses against him. Affidavits of jurors have been used to impeach the verdict of the jury where a third party has supplied the jury with facts that are not in evidence bearing on the defendant's guilt. E.g., Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966); Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965); Annot., 58 A.L.R.2d 556 (1958); 3 ABA Standards for Criminal Justice § 15-4.7(c)i (1980)."
The defendant in Scotchel identified two different improprieties that took place during deliberations. The first involved the defendant's conviction for assault and battery. In a post-trial affidavit, a juror claimed that she voted to convict the defendant because some of the other jurors assured her that the maximum penalty for assault and battery was only a fine. We held that a juror's misunderstanding of the law was intrinsic to the
deliberative process and refused to grant a new trial.See footnote 1 Another
impropriety identified in the juror's affidavit was that she was
"verbally abused" during the deliberations, and this caused her "to
vote against [her] convictions." 168 W. Va. at 552, 285 S.E.2d at
389. We concluded that this allegation did not warrant setting
aside the verdict.See footnote 2
We followed Scotchel's general principles in State v.
Banjoman, 178 W. Va. 311, 359 S.E.2d 331 (1987), which involved a
claim by the defendant that one of the jurors was biased against
the defendant and had failed to disclose her bias during voir dire.
We found there was insufficient evidence of bias, but recognized
that "an allegation that one or more jurors was initially biased or
prejudiced against a party may provide a basis for attacking the
verdict on appeal."See footnote 3 178 W. Va. at 317, 359 S.E.2d at 337.
Recently in State v. Strauss, ___ W. Va. ___, 415 S.E.2d 888 (1992), we addressed a situation where a juror talked with the State's key witness during a recess at trial. While the jury was deliberating, this same juror vouched for the credibility of the State's witness. Subsequently, another juror testified that her fellow juror's favorable opinion of the State's witness influenced her decision to find the defendant guilty. On appeal, we found there was sufficient evidence of improper influence on the jury to warrant a mistrial, but we did not analyze whether these statements were intrinsic or extrinsic to the deliberative process.
None of the foregoing cases dealt with the precise
situation presented here. Moreover, our research has not disclosed
any criminal case in this jurisdiction where the issue has been
Other jurisdictions agree that statements by a juror disclosing the defendant's prior wrongdoing, evidence of which was not admitted at trial, is an extrinsic matter and may be used to impeach the jury verdict in a criminal proceeding. See, e.g., United States ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S. Ct. 1373, 28 L. Ed. 2d 646 (1971); Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971); United
States v. Howard, 506 F.2d 865 (5th Cir. 1975); Dumas v. State, 491
So. 2d 1083 (Ala. Crim. App. 1986); State v. Johnson, 445 N.W.2d
337 (Iowa 1989); State v. Arnold, 466 So. 2d 520 (La. App.), writ
denied, 470 So. 2d 124 (1985); People v. Magnano, 175 A.D.2d 639,
572 N.Y.S.2d 828 (1991), appeal denied, 79 N.Y.2d 860, 580 N.Y.S.2d
732, 588 N.E.2d 767 (1992); Briggs v. State, 207 Tenn. 253, 338
S.W.2d 625 (1960); Chew v. State, 804 S.W.2d 633 (Tex. App. 1991);
State v. Cummings, 31 Wash. App. 427, 642 P.2d 415 (1982); State v.
Poh, 116 Wis. 2d 510, 343 N.W.2d 108 (1984). Cf. Parker v.
Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966)
(murder conviction set aside where bailiff said to the jury, "Oh
that wicked fellow, he is guilty."); Dickson v. Sullivan, 849 F.2d
403 (9th Cir. 1988) (deputy sheriff's comment to two jurors that
defendant had "done something like this before" warranted granting
defendant's writ of habeas corpus); United States v. Posner, 644 F.
Supp. 885 (S.D. Fla. 1986), aff'd sub nom. United States v.
Scharrer, 828 F.2d 773 (11th Cir. 1987), cert. denied, 485 U.S.
935, 108 S. Ct. 1110, 99 L. Ed. 2d 919 (1988) (during
deliberations, one juror informed the others of the co-defendant's
conviction for the same offense).
A typical analysis of this situation is found in United
States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984), which
involved one juror relaying to the other jurors extraneous
prejudicial information about the defendant:
"The sixth amendment guarantee of a trial by jury requires the jury verdict to be
based on the evidence produced at trial.
Turner v. State of Louisiana, 379 U.S. 466,
472, 85 S. Ct. 546, 549, 13 L. Ed. 2d 424
 (1965); Irvin v. Dowd, 366 U.S. 717,
722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751
 (1961). This requirement 'goes to the
fundamental integrity of all that is embraced
in the constitutional concept of trial by
jury.' Turner, 379 U.S. at 472, 85 S. Ct. at
549 [13 L. Ed. 2d at 429]. Extrinsic
evidence, evidence that has not been subject
to the procedural safeguards of a fair trial,
threatens such constitutional safeguards as
the defendant's right of confrontation, of
cross-examination, and of counsel. Id. at
473, 85 S. Ct. at 550 [13 L. Ed. 2d at 429].
In addition, since such evidence has not been
subject to the rules of evidence, it may
confuse the jurors, United States v. Howard,
506 F.2d 856, 868 (5th Cir. 1975); Farese v.
United States, 428 F.2d 178, 180 (5th Cir.
1970)."See footnote 4
Although extraneous prejudicial information may be used
to impeach a jury's verdict in a criminal case, the ultimate
question is whether the evidence was sufficiently prejudicial to
warrant setting aside the verdict. After analyzing other federal
cases, the court in Perkins adopted this standard:
"When jurors consider extrinsic evidence, a new trial is required if the evidence poses a reasonable possibility of prejudice to the defendant. . . . Prejudice from extrinsic evidence is assumed in the form of a rebuttable presumption and the government bears the burden of demonstrating that the consideration of the evidence was harmless." 748 F.2d at 1533. (Citations omitted).See footnote 5
See also United States v. Howard, supra; United States v. Weisman,
736 F.2d 421 (7th Cir.), cert. denied, 469 U.S. 983, 105 S. Ct.
390, 83 L. Ed. 2d 324 (1984); United States v. Navarro-Garcia, 926
F.2d 818 (9th Cir. 1991); United States v. Bagnaroil, 665 F.2d 877
(9th Cir. 1981), cert. denied, 456 U.S. 962, 102 S. Ct. 2040, 72 L.
Ed. 2d 487 (1982); United States v. Rowe, 906 F.2d 654 (11th Cir.
1990); United States v. Posner, supra.
This standard has been adopted by several state courts
when determining whether the extraneous evidence is sufficiently
prejudicial to set aside the verdict. E.g., Dumas v. State, supra;
Wiser v. People, 732 P.2d 1139 (Colo. 1987); State v. Cullen, 357
N.W.2d 24 (Iowa 1984); State v. Lott, 574 So. 2d 417 (La. App.),
writ denied, 580 So. 2d 666 (1991); Edwards v. State, 637 P.2d 886
(Okla. Crim. 1981); Briggs v. State, supra; State v. Hall, 40 Wash.
App. 162, 697 P.2d 597 (1985); State v. Poh, supra.
When considering the impact of the juror's prejudicial
statement, courts have used an objective test and have held that
the subjective impact of the information on individual jurors
cannot be inquired into because it intrudes on the deliberative
process. Downey v. Peyton, supra; United States v. Howard, supra;
Owen v. Duckworth, 727 F.2d 643 (7th Cir. 1984); United States v.
Maree, 934 F.2d 196 (9th Cir. 1991); United States v. Posner,
supra; In re Stankewitz, 40 Cal. 3d 391, 220 Cal. Rptr. 382, 708
P.2d 1260 (1986); State v. Cullen, supra.
Finally, courts recognize that even where extraneous information adverse to the defendant has been revealed during jury deliberations, reversible error may not exist if the evidence of the defendant's guilt is overwhelming. Moreover, the statements made against the defendant may be found sufficiently innocuous not to have prejudiced the defendant regardless of the evidence. See, e.g., United States v. Weiss, 752 F.2d 777 (2d Cir.), cert. denied, 484 U.S. 944, 106 S. Ct. 308, 88 L. Ed. 2d 285 (1985); Paz v. United States, 473 F.2d 662 (5th Cir.), cert. denied, 414 U.S. 820, 94 S. Ct. 47, 38 L. Ed. 2d 52 (1973); United States v. Bowling, 900 F.2d 926 (6th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 109, 112 L. Ed. 2d 79 (1990); United States v. Weisman, supra; United States v. Johnson, 647 F.2d 815 (8th Cir. 1981); United States v. Bagnaroil, supra; United States v. Jones, 707 F.2d 1169 (10th Cir.), cert. denied, 464 U.S. 859, 104 S. Ct. 184, 78 L. Ed. 2d 163 (1983); United States v. Rowe, supra; State v. Johnson, supra; State v. Beier, 263 N.W.2d 622 (Minn. 1978); State v. Brewer, 640 S.W.2d 33 (Tenn. Crim. App. 1982); State v. Hall, 40 Wash. App. 162, 697 P.2d 597 (1985); Garcia v. State, 777 P.2d 603 (Wyo. 1989).
In this case, we cannot say that the juror's statements regarding the defendant's prior misconduct were sufficiently innocuous not to be prejudicial to the defendant. Thus, the trial court was correct in making a further inquiry. However, it does not appear that the trial court addressed the State's argument that
the evidence against the defendant was so overwhelming that the
juror's remarks were harmless. We cannot address this argument
because we do not have the trial transcript.
For this reason, much as in Lewis, we are unable to issue
a writ of prohibition. We do, however, request that the trial
court review the motion for new trial in light of the principles
Footnote: 1In Syllabus Point 3 of Scotchel, we said: "Ordinarily, a juror's claim that he was confused over the law or evidence and therefore participated in the verdict on an incorrect premise is a matter that inheres in or is intrinsic to the deliberative process and cannot be used to impeach the verdict."
Footnote: 2Syllabus Point 4 of Scotchel states: "The general rule is that statements relative to intimidation or coercion by fellow jurors cannot ordinarily be received to impeach the verdict."
Footnote: 3Where it is alleged after trial that a juror failed to answer a question correctly, the trial court should conduct a post-trial hearing to evaluate the materiality of the undisclosed information and the truthfulness of the juror's voir dire answers. If the nondisclosure of material information was innocent or inadvertent, the decision to grant a new trial is within the trial court's discretion. If the juror deliberately concealed material information which prejudiced the defendant, a
new trial should be granted. See, e.g., Artisst v. United States, 554 A.2d 327 (D.C. App. 1989); State v. McGough, 536 So. 2d 1187 (Fla. App. 1989); Lopez v. State, 527 N.E.2d 1119 (Ind. 1988); State v. Potter, 711 S.W.2d 539 (Mo. App. 1986).
Footnote: 4The rule is codified in Rule 606(b) of the Federal Rules of Evidence:
" Inquiry into validity of verdict
or indictment. Upon an inquiry into the
validity of a verdict or indictment, a juror
may not testify as to any matter or statement
occurring during the course of the jury's
deliberations or to the effect of anything
upon that or any other juror's mind or
emotions as influencing the juror to assent
to [sic] or dissent from the verdict or
indictment or concerning the juror's mental
processes in connection therewith, except
that a juror may testify on the question
whether extraneous prejudicial information
was improperly brought to the jury's
attention or whether any outside influence
was improperly brought to bear upon any
juror. Nor may a juror's affidavit or
evidence of any statement by the juror
concerning a matter about which the juror
would be precluded from testifying be
received for these purposes."
See generally 3 J. Weinstein and M. Berger, Weinstein's Evidence 606-05 (1991 & Supp. 1992). We do not have a counterpart to Rule
606(b) in our Rules of Evidence. However, our method of handling intrinsic/extrinsic matters, discussed in Scotchel and Banjoman, parallels Rule 606(b), particularly the portion relating to what we term "extrinsic" evidence, i.e., "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention." Fed.R.Evid. 606(b).
Footnote: 5Courts have explained that the reasonable possibility test "is equivalent in severity to the harmless error rule applicable to constitutional errors under Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]." Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir.), cert. denied, 450 U.S. 1035, 101 S. Ct. 1749, 68 L. Ed. 2d 231 (1981). (Footnote omitted). Because the admission of extraneous prejudicial materials threatens the defendant's constitutional rights of confrontation, cross-examination, and counsel, we agree that the appropriate standard to apply is the harmless constitutional error test. We first adopted this test in Syllabus Point 5 of State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975): "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." See also Marano v. Holland, 179 W. Va. 156, 366 S.E.2d 117 (1988); State v. Sheppard, 172 W. Va. 656, 310 S.E.2d 173 (1983); Angel v. Mohn, 162 W. Va. 795, 253 S.E.2d 63 (1979); State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977).