IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
BILLIE DAWN HATLEY,
Defendant Below, Appellant
Appeal from the Circuit Court of Lewis County
Honorable Thomas H. Keadle, Judge
Criminal Action No. 06-F-1
REVERSED AND REMANDED
Submitted: January 14, 2009
Filed: March 13, 2009
Joseph W. Wagoner, Esq.
Thomas J. Prall, Esq.
Lewis County Prosecuting Attorney Buckhannon, West Virginia
Robert M. Morris, Esq.
Assistant Prosecuting Attorney
James E. Hawkins, Esq.
Weston, West Virginia
Buckhannon, West Virginia
Attorneys for the Appellee
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. The true test as to whether a juror is qualified to serve on the panel is
whether without bias or prejudice he can render a verdict solely on the evidence under the
instructions of the court. Syllabus Point 1, State v. Wilson, 157 W. Va. 1036, 207 S.E.2d
2. Actual 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. Syllabus Point 5, State v. Miller, 197 W. Va. 588, 476
S.E.2d 535 (1996).
3. When considering whether to excuse a prospective juror for cause, a
trial court is required to consider the totality of the circumstances and grounds relating to a
potential request to excuse a prospective juror, to make a full inquiry to examine those
circumstances and to resolve any doubts in favor of excusing the juror. Syllabus Point 3, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (2002).
4. Where a prospective juror is one of a class of persons represented by
the prosecuting attorney at the time of trial, but there has been no actual contact between that
juror and the prosecutor, the existence of the attorney-client relationship alone is not prima
facie grounds for disqualification of that juror. Syllabus Point 3, State v. Audia, 171 W. Va.
568, 301 S.E.2d 199 (1983).
5. [I]f a defendant validly challenges a prospective juror for cause and the
trial court fails to remove the juror, reversible error results even if a defendant subsequently
uses his peremptory challenge to correct the trial court's error. Syllabus Point 8, in part, State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995).
Per Curiam: (See footnote 1)
Appellant Billie Dawn Hatley appeals her conviction for first degree robbery
under W. Va. Code § 61-2-12 (2000), and her sentence of a ten-year determinate term of
incarceration. Because we find that the circuit court abused its discretion in failing to strike
a juror for cause, we reverse the appellant's conviction and sentence, and we remand for
proceedings consistent with this opinion. (See footnote 2)
This case arises from a purse snatching. The evidence below indicates that
Nancy Ellen Bailey was walking into a Walmart store when Billie Dawn Hatley, the
appellant, came up to Ms. Bailey and tugged on her purse. There is evidence to indicate that
Ms. Bailey was not otherwise touched by the appellant. Ms. Bailey briefly resisted before
the appellant got Ms. Bailey's purse, jumped into a vehicle, and was driven away. The
appellant later admitted to a police officer that she took $40 out of the purse and then
discarded the purse and its contents, which the police subsequently found.
The appellant was indicted and tried for first degree robbery under W. Va.
Code § 61-2-12 (2000). (See footnote 3)
During voir dire,
Prospective Juror Boyd Conrad disclosed that he
had hired the prosecuting attorney, Joseph Wagoner, a couple of years earlier to prepare
deeds for him, and that he would again use the services of Mr. Wagoner if the need arose.
Mr. Conrad indicated, however, that he believed that he could be fair and impartial at trial.
The appellant objected to Mr. Conrad remaining on the jury panel but the trial court
overruled the objection. The appellant ultimately struck Mr. Conrad, and he did not serve
on the jury.
At the close of the evidence, the jury returned a verdict of first-degree robbery,
and the trial court sentenced the appellant to a determinate term of 10 years. The appellant
STANDARD OF REVIEW
We are called upon in this case to decide whether a prospective juror should
have been excused from the jury panel for cause. The determination of whether a
prospective juror should be excused to avoid bias or prejudice in the jury panel is a matter
within the sound discretion of the trial judge. O'Dell v. Miller,
211 W. Va. 285, 288, 565
S.E.2d 407, 410 (2002) (citations omitted). Thus, we review the trial court's ultimate
decision not to strike Prospective Juror Conrad for cause under an abuse of discretion
The sole issue that we address in this case is whether Prospective Juror Conrad
should have been disqualified from serving on the jury panel below because he had a prior
attorney-client relationship with the prosecutor in the case and he professed that he would
seek out the same relationship with the prosecutor in the future if the need arose.
A defendant in a criminal trial is entitled to an impartial jury. The object of
jury selection is to secure jurors who are not only free from improper prejudice and bias, but
who are also free from the suspicion of improper prejudice or bias. O'Dell,
211 W. Va. at
288, 565 S.E.2d at 410. This Court has explained that [t]he true test as to whether a juror
is qualified to serve on the panel is whether without bias or prejudice he can render a verdict
solely on the evidence under the instructions of the court. Syllabus Point 1, State v. Wilson,
157 W. Va. 1036, 207 S.E.2d 174 (1974). We have further indicated 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.
Syllabus Point 5, State v. Miller,
197 W. Va. 588, 476 S.E.2d 535 (1996). Moreover, as far
as is practicable in the selection of jurors, trial courts should endeavor to secure those jurors
who are not only free from but who are not even subject to any well-grounded suspicion of
any bias or prejudice. O'Dell,
211 W. Va. at 289, 565 S.E.2d at 411 (citations omitted).
Finally, we have held that,
When considering whether to excuse a prospective juror
for cause, a trial court is required to consider the totality of the
circumstances and grounds relating to a potential request to
excuse a prospective juror, to make a full inquiry to examine
those circumstances and to resolve any doubts in favor of
excusing the juror.
Syllabus Point 3, O'Dell, supra.
This Court has had occasion to consider whether a prospective juror's current
attorney-client relationship with the prosecuting attorney mandated the juror's
disqualification. In State v. Audia, 171 W. Va. 568, 301 S.E.2d 199 (1983), the prosecuting
attorney informed the court during voir dire that he represented prospective juror Hughes,
along with 30 to 40 members of Mr. Hughes' family, in a partition suit then pending in the
circuit court. While the prosecutor had dealt directly with Mr. Hughes' sister in the case, he
had never met Mr. Hughes, and Mr. Hughes was not even aware that the prosecutor was
involved. Defense counsel moved to excuse Mr. Hughes from the jury panel for cause
because he was a client of the prosecutor, but the court denied the motion.
In discussing whether the trial court acted properly, this Court explained in Audia:
We have not yet considered the situation presented here,
where the prospective juror is a client of the prosecuting
attorney at the time of trial. Such a relationship is not one of the
grounds for disqualification set forth in our statutes, [W. Va.
Code § 52-1-8 (2007)] and 56-6-12 , (See footnote 4) nor is it one of our
common law causes of prima facie grounds for disqualification
from jury service. See State v. Riley, 151 W. Va. 364, 151
S.E.2d 308, 320 (1966) [overruled on other grounds by
Proudfoot v. Dan's Marine Service, Inc., 210 W. Va. 498, 558
S.E.2d 298 (2001)]; State v. Dushman, 79 W. Va. 747, 91 S.E.
809 (1917). (See footnote 5) In addition, we find no other jurisdiction which
has held such a relationship to be prima facie grounds for
disqualification of a prospective juror. (See footnote 6) We find no prejudice, per se, in the attorney-client relationship between the prosecutor
and Hughes, particularly where, as here, the representation is of
a class of people and he has little, if any, contact with the
particular individual who is the juror.
171 W. Va. at 574, 301 S.E.2d at 205-206. The Court went on to note that,
Hughes' responses during voir dire revealed no bias or prejudice
on his part, and showed that he would be able to render a fair
and impartial verdict solely on the evidence presented to him.
We have already noted the limited contact, if any, between
Hughes and the prosecutor before this trial. Perhaps, the more
prudent course by the trial court would have been to excuse
Hughes. We hold, however, that its failure to do so in this case
was not an abuse of discretion and was not reversible error.
Audia, 171 W. Va. at 574, 301 S.E.2d at 206. Finally, in Syllabus Point 3 of Audia, we held:
Where a prospective juror is one of a class of persons
represented by the prosecuting attorney at the time of trial, but
there has been no actual contact between that juror and the
prosecutor, the existence of the attorney-client relationship alone
is not prima facie grounds for disqualification of that juror.
Another case in which this Court considered attorney-client relationships
between attorneys at trial and prospective jurors is O'Dell v. Miller, 211 W. Va. 285, 565
S.E.2d 407 (2002). In O'Dell, we determined that the trial court abused its discretion by not
striking a challenged juror for cause where the juror was a former patient of the defendant
doctor and was currently a client of the law firm that represented the defendant. We noted
While no West Virginia case squarely addresses the issue of
attorney-client relationships between attorneys and prospective
jurors, the Supreme Court of Virginia has reversed and
remanded a personal injury lawsuit for a new trial on the ground
that the trial court should have removed a prospective juror for
cause who was at the time of trial a client of the law firm
representing the plaintiff. Cantrell v. Crews, 259 Va. 47, 523
S.E.2d 502 (Va. 2000). In Cantrell v. Crews, the Virginia
Supreme Court commented that [p]ublic confidence in the
integrity of the process is at stake. It cannot be promoted when
a sitting juror is, at the time of trial, a client of the law firm
representing one of the parties[.] Id., 259 Va. at 51, 523 S.E.2d
* * *
In many West Virginia communities, prospective jurors
will often know the parties and their attorneys. Nevertheless,
this familiarity does not remove the trial court's obligation to
empanel a fair and impartial jury as required by West Virginia's Constitution,
Article 3, § 10. This obligation includes striking
prospective jurors who have a significant past or current
relationship with a party or a law firm.
211 W. Va. 290-291, 565 S.E.2d at 412-413 (footnote omitted). It is apparent from
our discussions in Audia
that while an attorney-client relationship between a
prospective juror and the prosecuting attorney does not per se
disqualify that juror, such a
relationship merits the closest scrutiny by the trial court, and the more prudent course may
be to excuse the juror.
In the instant case, we find that the trial court abused its discretion in failing
to strike Prospective Juror Conrad for cause. Significant to this finding is the fact that the
prosecuting attorney's representation of Mr. Conrad was fairly recent, only a couple of years
prior to the appellant's trial, and Mr. Conrad indicated that he would again hire the
prosecuting attorney in the future in the event he needed legal work done. This Court
previously has stated that the attorney-client relationship is one of trust and confidence. See
Delaware CWC Liquidation Corp. v. Martin,
213 W. Va. 617, 622, 584 S.E.2d 473, 478
(2003) ([a]n attorney's nondelegable duty of loyalty to his client and the level of trust a
client places in his attorney are also essential elements of the attorney-client relationship
(citations omitted)); Lawyer Disciplinary Bd. v. Ball,
219 W. Va. 296, 309, 633 S.E.2d 241,
254 (2006) (trust and honesty . . . are indispensable to the functioning of the attorney-client
relationship, quoting Matter of Discipline of Babilis,
951 P.2d 207, 217 (Utah 1997)). Mr.
Conrad's willingness to hire the prosecuting attorney to represent him in the future indicates
that he had established a relationship of trust with the prosecuting attorney.
Because of the attorney-client relationship between the prosecuting attorney
and Mr. Conrad, we believe that the trial court was obligated to strike Mr. Conrad for cause.
While this is a close case, we conclude that the fact that the prosecuting attorney had recently
represented Mr. Conrad and Mr. Conrad would hire the prosecuting attorney to do legal work
for him in the future raises a well-grounded suspicion of bias or prejudice. Moreover, we
believe that Mr. Conrad's assertion that the prosecuting attorney's previous representation
of him would not bias or prejudice him is insufficient to allay this suspicion. Mr. Conrad's
recent attorney-client relationship with the prosecuting attorney and potential future
relationship raised a legitimate doubt that absent more, should have in this case been resolved
in favor of excusing Mr. Conrad.
This Court has indicated that if a defendant validly challenges a prospective
juror for cause and the trial court fails to remove the juror, reversible error results even if a
defendant subsequently uses his peremptory challenge to correct the trial court's error.
Syllabus Point 8, in part, State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995).
Accordingly, we find that it was reversible error for the trial court to fail to strike Mr. Conrad
from the jury panel, and we remand for further proceedings consistent with this opinion. (See footnote 7)
For the reason set forth above, we reverse the judgment of the Circuit Court
of Lewis County and we remand for further proceedings consistent with this opinion.
Reversed and remanded.
W. Va. Code § 52-1-8 provides, in part:
(b) A prospective juror is disqualified to serve on a jury if the
(1) Is not a citizen of the United States, at least eighteen years
old and a resident of the county;
(2) Is unable to read, speak and understand the English
language. For the purposes of this section, the requirement of
speaking and understanding the English language is met by the
ability to communicate in American sign language or signed
(3) Is incapable, by reason of substantial physical or mental
disability, of rendering satisfactory jury service; but a person
claiming this disqualification may be required to submit a
physician's certificate as to the disability and the certifying
physician is subject to inquiry by the court at its discretion;
(4) Has, within the preceding two years, been summoned to
serve as a petit juror, grand juror or magistrate court juror, and
has actually attended sessions of the magistrate or circuit court
and been reimbursed for his or her expenses as a juror pursuant
to the provisions of section twenty-one [§ 52-1-21] of this
article, section thirteen [§ 52-2-13], article two of this chapter,
or pursuant to an applicable rule or regulation of the Supreme
Court of Appeals promulgated pursuant to the provisions of
section eight [§ 50-5-8], article five, chapter fifty of this code;
(5) Has lost the right to vote because of a criminal conviction;
(6) Has been convicted of perjury, false swearing or other
According to W. Va. Code § 56-6-12 ,
Either party in any action or suit may, and the court shall
on motion of such party, examine on oath any person who is
called as a juror therein, to know whether he is a qualified juror,
or is related to either party, or has any interest in the cause, or is
sensible of any bias or prejudice therein; and the party objecting
to the juror may introduce any other competent evidence in
support of the objection; and if it shall appear to the court that
such person is not a qualified juror or does not stand indifferent
in the cause, another shall be called and placed in his stead for
the trial of that cause. And in every case, unless it be otherwise
specially provided by law, the plaintiff and defendant may each
challenge four jurors peremptorily.
The State contends that the prosecutor's representation of Prospective Juror Conrad
occurred well in the past and involved only the drafting of a deed. Also, says the State,
Prospective Juror Conrad responded unhesitatingly that he had no bias that would prevent
him from acting impartially. Finally, the State asserts that the drafting of a deed does not
generally entail a great deal of work on the part of the attorney or much involvement between
the attorney and client. For the reasons expressed in the body of this opinion, we find no
merit to the State's arguments.