Davis, C.J., dissenting:
Thomas E. Griffin, appellant/defendant below (hereinafter referred to as Mr. Griffin), argued that his conviction and sentence for attempted breaking and entering should be reversed because of the trial court's refusal to strike a juror for cause. The majority agreed with Mr. Griffin and reversed the judgment. For the reasons set out below, I dissent from the majority decision.
. . . .
THE COURT: Let me ask you this: The Court will instruct you later on in this case that an indictment is not to be considered by you as any part of evidence of a person's guilt, and just because someone is charged, they still stand there with the presumption of the innocent that the statements overcome?
JUROR YOUNG: Right.
THE COURT: Can you apply that statement of the law in this case?
JUROR YOUNG: Yes, I can.
Subsequent to the above questioning by the trial court, Mr. Griffin moved to strike Ms. Young for cause. The trial court denied the motion as follows:
I'm going to deny the motion based on the responses of Ms. Young. She indicated she could follow the instructions of the Court, specifically this instruction of the indictment. There is no evidence to prove against the defendant. The defendant is still presumed innocent until the State can overcome its burden.
Mr. Griffin contended, and the majority agreed, that under this Court's decision in State v. Bennett, 181 W. Va. 269, 382 S.E.2d 322 (1989), and State v. Nett, 207 W. Va. 410, 533 S.E.2d 43 (2000) (per curiam), that the trial court was required to strike Ms. Young for cause. I disagree.
To begin, the decision in Bennett
is distinguishable from this case. In Bennett, a prospective juror stated
that he was reluctant to be a juror. The juror also stated that he would have
difficulty setting aside his prejudices against the defendant. In Bennett,
the trial judge attempted to rehabilitate the juror. However, on appeal
we found that the juror should have been struck for cause. Consequently, we
held in syllabus point 1 of Bennett as follows:
When individual voir dire reveals that a prospective juror feels prejudice against the defendant which the juror admits would make it difficult for him to be fair, and when the juror also expresses reluctance to serve on the jury, the defendant's motion to strike the juror from the panel for cause should ordinarily be granted.
In the instant case, Ms. Young did not express a reluctance to sit on the jury. More importantly, she did not express any prejudice toward Mr. Griffin. Thus, Bennett cannot be used for setting aside the judgment against Mr. Griffin.
The decision in Nett
is also distinguishable. Nett involved the prosecution of the defendant
for third offense DUI. During jury voir dire, a prospective juror stated that
there was a possibility that he could not fairly and impartially decide the
case. The prospective juror had two friends who were killed in drunk driving
(See footnote 1) In spite of this disclosure, the trial court refused to strike the juror for cause.
We determined that the trial court committed error. This Court found that
syllabus point 4 of State v. Johnson, 49 W. Va. 684, 39 S.E. 665
(1901), controlled the disposition of the case:
When a juror on his voir dire admits that he has formed and expressed an opinion of the guilt or innocence of the accused, and expresses any degree of doubt as to whether such previously formed opinion would affect his judgment in arriving at a just and proper verdict in the case, it is error to admit him on the panel.
Here, the record reveals that Ms. Young neither stated nor implied that she had formed an opinion as to Mr. Griffin's guilt or innocence. Consequently, Nett is not controlling authority in this case.
The majority opinion also
relied upon syllabus point 5 of O'Dell v. Miller, ___ W. Va. ___, ___
S.E.2d ___ (No. 29776 May 24, 2002), wherein we held 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.
The sound reasoning in O'Dell
has no application in this case. Here, the trial court did not attempt to
rehabilitate Ms. Young. In fact, the trial court did nothing more than ask Ms. Young questions regarding the impact of her work on her ability
to fairly and impartially decide Mr. Griffin's innocence or guilt. Ms. Young
clearly, and without rehabilitative questioning, stated that she could fairly
and impartially decide the facts in the case. We indicated in State v.
Miller that [i]n determining whether a juror should be excused,
our concern is whether the juror holds a particular belief or opinion that
prevents or substantially impairs the performance of his or her duties as
a juror in accordance with the instructions of the trial court and the jurors'
oath. 197 W. Va. 588, 605, 476 S.E.2d 535, 552 (1996) (citation omitted).
Ms. Young never expressed any belief or opinion that could logically lead
to the conclusion that she would be unable to follow the instructions of the
The majority opinion also
focused upon Ms. Young's response to the judge's questioning indicating that
she probably believed that when somebody has been
indicted, they are more likely to be guilty than not. This statement,
taken out of context in the majority opinion, was not an indication of prejudice
against Mr. Griffin. I believe Ms. Young's response was an honest response
of the type one would expect from the average person. That is, I do not believe
that the average person in the state of West Virginia believes that the majority
of people who are indicted are innocent. Our criminal justice system would
indeed be flawed if most people who are indicted are innocent.
Moreover, this specific issue
is not new to this Court. We have previously addressed the issue in State
v. Williams, 206 W. Va. 300, 524 S.E.2d 655 (1999) (per curiam). In Williams,
the defendant argued that the trial court committed error in refusing to strike
a juror who indicated that he believed when a person is indicted that
person is guilty of the offense. Williams, 206 W. Va. at 303, 524
S.E.2d at 658. This Court rejected the defendant's argument after concluding
that, based upon the full questioning by the trial court, the juror truly
understood that an indictment was nothing more than an accusatory instrument
and not evidence of guilt. Williams, 206 W. Va. at 304, 524 S.E.2d
in the Miller case discussed above, the defendant was convicted of
first degree murder. 197 W. Va. 588, 476 S.E.2d 535. One of the issues argued
on appeal was that a juror, who actually served on the jury that convicted
the defendant, should have been struck for cause on the ground that the juror
indicated she 'believed a person could not be charged without being
guilty.' Id., 197 W. Va. at 604, 476 S.E.2d at 551. In writing
for the Court, Justice Cleckley summarily rejected the argument. The opinion
concluded that the prospective juror expressed the opinion that if she
believed someone was not guilty she would have no problem returning a not
guilty verdict. Id.
In the final analysis, there
was simply no showing that Ms. Young was biased against Mr. Griffin. Therefore,
the trial court was correct in not striking her for cause.
In view of the foregoing, I dissent. I am authorized to state that Justice Maynard joins me in this dissenting opinion.