Michael J. Del Giudice
V. McGraw, Jr.
Diana Leigh Johnson Attorney General
Ciccarello, Del Giudice & LaFon Scott E. Johnson
Charleston, West Virginia Senior Assistant Attorney General
Attorneys for Appellant Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS and JUSTICE
MAYNARD dissent and reserve the right to file dissenting opinions.
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. Syllabus point 4, State v. Miller,
197 W. Va. 588, 476 S.E.2d 535 (1996).
2. Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair. Syllabus point 5, O'Dell v. Miller, ___ W. Va. ___, ___ S.E.2d ___ (No. 29776 May 24, 2002).
This appeal was filed by Thomas E. Griffin, appellant/defendant below (hereinafter referred to as Mr. Griffin), from an order of the Circuit Court of Kanawha County convicting and sentencing him for committing the crime of attempted burglary. (See footnote 1) Before this Court, Mr. Griffin contends that the circuit court committed error in refusing to excuse a prospective juror for cause. (See footnote 2) Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Kanawha County.
The officers did not arrest
Mr. Griffin and Ms. Daniels at the crime scene. After an investigation was
conducted, the officers learned that Mr. Griffin was not related to the homeowner
and that he did not have permission to be on the property. Consequently, Mr.
Griffin and Ms. Daniels were arrested subsequent to the investigation.
During the September 2000
term of the circuit court, a grand jury returned an indictment against Mr.
Griffin charging him with attempted burglary.
(See footnote 3) A two day jury trial was
held in March of 2001. During voir dire, it was discovered that a prospective
juror, Sharon Young, worked as a criminal grand jury coordinator for the United
States Attorney General's Office.
(See footnote 4) Mr. Griffin motioned the
trial court to strike Ms. Young for cause after the court questioned her. The trial court denied the motion
after concluding that Ms. Young would fairly and impartially decide the facts
in the case.
(See footnote 5) The jury found Mr. Griffin guilty of attempted
burglary. On August 29, 2001, the trial court sentenced Mr. Griffin to a term
of not less than two, nor more than three years in prison. From this sentence,
Mr. Griffin now appeals.
We held in syllabus point
4 of State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996) that:
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.
Miller also stated that the challenging party bears the burden of persuading the trial court that the juror is partial and subject to being excused for cause. Miller, 197 W. Va. at 606, 476 S.E.2d at 553.
Mr. Griffin has cited our
decision in State v. Bennett, 181 W. Va. 269, 382 S.E.2d 322 (1989),
as grounds for striking Ms. Young for cause. In Bennett, a prospective
juror was asked during voir dire, Do you think that there's a probability
or a greater chance that [the defendant] did it than didn't do it? 181
W. Va. at 271, 382 S.E.2d at 324. The prospective juror responded, Yeah.
Id. We concluded in Bennett that it was error for the trial
court not to strike the prospective juror for cause. We also set out the following
principle of law in syllabus point 1, in part, of Bennett:
When individual voir dire reveals that a prospective juror feels prejudice against the defendant . . . the defendant's motion to strike the juror from the panel for cause should ordinarily be granted.
Mr. Griffin has also pointed out that our decision in State v. Nett, 207 W. Va. 410, 533 S.E.2d 43 (2000) (per curiam) required Ms. Young to be stricken for cause. In Nett, a prospective juror made clear to the trial court that there was a possibility that he could not fairly and impartially decide the case, due to having two friends killed in drunk driving incidents, as well as knowledge of Mr. Nett's prior DUI offenses. Nett, 207 W. Va. at 414, 533 S.E.2d at 47. We found this admission by the prospective juror to be grounds for the trial court to strike the juror for cause.
The prior decisions of this
Court have made clear that [a] prospective juror who admits a prejudice
to an issue central to the outcome of the case cannot negate the prejudice
merely by stating [he or she] would follow the law as instructed by the court.
Syl. pt. 2, in part, Davis v. Wang, 184 W. Va. 222, 400 S.E.2d 230
(1990). We recently held in syllabus point 5 of O'Dell v. Miller, ___
W. Va. ___, ___ S.E.2d ___ (No. 29776 May 24, 2002), that [o]nce a prospective
juror has made a clear statement during voir dire reflecting
or indicating the presence of a disqualifying prejudice or bias, the prospective
juror is disqualified as a matter of law and cannot be rehabilitated by subsequent
questioning, later retractions, or promises to be fair.
In the instant case, the
trial court attempted to rehabilitate Ms. Young's bias toward indicted defendants.
However, we are not convinced that Ms. Young could have put aside her stated
prejudice. Moreover, as a result of our holding in O'Dell, the trial
court should not have attempted to rehabilitate Ms. Young. Consequently, we
find that it was error to deny Mr. Griffin's motion to strike Ms. Young for cause.
federal law enforcement agency. The State brought the matter to the attention of Mr. Griffin and the trial court was thereafter informed. The trial court stated on the record that it believed Ms. Young did not understand the earlier question by the court, regarding whether any member of the jury panel was employed by a law enforcement agency.