State v. Nixon, 17284

Citation359 S.E.2d 566,178 W.Va. 338
Decision Date15 July 1987
Docket NumberNo. 17284,17284
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. Geneive NIXON.

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." Syl. Pt. 6, State v. Gum, 172 W.Va. 534, 309 S.E.2d 32 (1983) (quoting Syl. Pt. 4, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199, cert. denied, 464 U.S. 934, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983)).

2. "If it is determined that publicity disseminated by the media during trial raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material." Syl. Pt. 5, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

3. In determining if the jury's exposure to publicity resulted in probable prejudice, the trial court must examine all the circumstances and exercise its discretion and not simply rely on the jurors' avowals of impartiality.

4. The trial court may conditionally admit a coconspirator's statement subject to the laying of a proper foundation.

5. A trial court should only allow a case to be reopened for good cause and upon proper showing, but a trial court also has a duty not to close the case until all the evidence offered in good faith and necessary to the ends of justice has been heard.

Gayle Fidler, Asst. Atty. Gen., Charleston, W.Va., for appellant.

Pat R. Hamilton, Kevin B. Burgess, Oak Hill, W.Va., for appellee.

McGRAW, Chief Justice:

This is an appeal by Geneive Nixon from a jury verdict in the Circuit Court of Fayette County finding her guilty of first degree murder and from the circuit court's denial of her motion to set aside the jury verdict and grant a new trial. The appellant makes numerous assignments of error, all of which we have carefully considered. Having found no reversible error, however, we affirm the appellant's conviction.

The appellant was indicted under West Virginia Code § 61-2-1 (1984 Replacement Vol.) for the murder of Kenneth Nixon, her husband. Indicted along with her were Barbara Meade, her stepdaughter, and George (Rusty) Clark, a friend of Meade's. Their cases were severed for trial. The appellant's first trial resulted in a hung jury. In the second trial, the jury returned a guilty verdict, but made a recommendation of mercy.

The prosecution's evidence showed that the Nixon marriage was at times stormy due at least in part to the husband's prolonged absences from home necessitated by his career as a merchant marine and to both the appellant's and her husband's problem drinking. Several witnesses testified that the appellant had repeatedly wished her husband dead and had sought their help in obtaining drugs to kill him with. On at least two of those occasions Meade had been present.

On May 7, 1982, the appellant, her husband, Meade, and Clark all had dinner together at the Nixon home. After dinner, the appellant stayed home to baby-sit while the other three went to a local bar. The trio stayed at the bar for about forty-five minutes and then left together with the victim being helped outside by Clark. A witness saw Clark drive away from the bar in the victim's pick-up truck, followed by someone driving Clark's car.

The victim's body was discovered the next day on Layland Mountain in Fayette County. He was seated on the passenger's side of his truck and had been killed by a shot to the head from a .410 gauge shotgun. There was no sign of a struggle and over a thousand dollars in cash was found on the body or in the truck. The autopsy revealed that the victim was not drunk, but had a high level of the drug doxepin in his system. Evidence at trial showed that Meade had received five prescriptions for doxepin in 1980 and 1981.

When they were questioned the appellant, Meade, and Clark gave the same story to the police: the victim went to the bar after the appellant or Meade told him he might find one of his granddaughters there; he got drunk at the bar and had to be helped to his truck; he refused to let Clark drive and insisted that he was going to go visit Michelle Hightower, another granddaughter; Meade and Clark returned to the appellant's home some time after 12:30 a.m.; around 1:30 a.m. the Hightowers arrived at the appellant's home, but none of the three defendants thought to tell them that the victim was planning on visiting them; the first they knew of the victim's death was when the police arrived the next afternoon.

After the close of evidence, in a scene reminiscent of Perry Mason, Clark's sister, who had already testified, came forward on her own accord with information regarding Clark's possession of a sawed-off shotgun like the one used in the murder. After extended in camera discussion, the circuit court allowed the prosecution to reopen its case to present testimony from Roy King, who said he had given a .410 sawed-off shotgun to Clark in Meade's presence a week or two before the murder.

I.

The first group of the appellant's assignments of error involves matters concerning the jury. She contends the circuit court erred in refusing to strike a juror for cause, in allowing the prosecution to inquire of the jurors whether they could return a verdict resulting in life imprisonment, and in refusing to grant a mistrial after some of the jurors were exposed to publicity about the trial.

During the voir dire, defense counsel recognized a member of the jury panel as the opposing party in an ongoing domestic relations case in which he was an attorney. When this matter was pointed out to the trial judge, he thoroughly questioned the potential juror in camera and refused to exclude the juror for cause. The appellant does not contend that there was any showing of bias or prejudice on the part of the potential juror. Instead, the appellant would have us rule that the juror should have been subject to per se disqualification.

The right of a criminal defendant to trial by an impartial, objective jury is fundamental and is protected by both the state and federal constitutions. Syl. Pt. 4, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981); see State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927). West Virginia Code §§ 42-1-2 (1981 Replacement Vol.) and 56-6-12 (1966) detail reasons why a juror shall be disqualified per se, none of which is applicable here. The common law grounds for per se disqualification were set out in State v. Riley, 151 W.Va. 364, 383, 151 S.E.2d 308, 320 (1966). No established common law ground is applicable in this case, and we decline the appellant's invitation to expand the common law grounds for disqualification.

The initial determination of whether there is bias or prejudice on the part of a juror rests with the trial court. Syl. Pt. 5, State v. Williams, 160 W.Va. 19, 230 S.E.2d 742 (1976) (Williams I ). "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." Syl. Pt. 6, State v. Gum, 172 W.Va. 534, 309 S.E.2d 32 (1983) (quoting Syl. Pt. 4, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199, cert. denied, 464 U.S. 934, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983)). There was no showing of disqualifying bias or prejudice on the part of the challenged juror, and the circuit court did not abuse its discretion by declining to exclude him for cause. See Audia, 171 W.Va. at 574, 301 S.E.2d at 206.

The appellant also alleges error in permitting the prosecution to question the jury panel regarding the potential sentence which would result from a conviction. Our consideration of this issue is guided by State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983) (Williams II ). While we warned in Williams II that counsel may not use the voir dire to suggest a verdict or elicit a commitment from the jury, there is no evidence of such impropriety in the prosecution's questioning in this case. In fact, the jury eventually returned a verdict recommending mercy, showing that the jury understood and exercised its discretion in this matter.

The appellant's final contention with respect to the jury is that the trial court erred in refusing to grant a mistrial after some of the jurors were exposed to publicity about the trial. Following the third day of trial, the circuit clerk was interviewed on a local television station. The clerk stated that this was the appellant's second trial, that the trial would be a long one, with some fifty defense witnesses subpoenaed, that the penalty on a finding of guilt would be a life sentence, and that the prosecution would try to prove the motive was a rather large insurance policy.

While it is true that the influence of publicity may be of such a nature as to require a mistrial, there are no hard and fast rules to be followed in making such a determination. Williams I, 160 W.Va. 19, 230 S.E.2d 742. Each case turns on its individual circumstances such as the content and context of the publicity and how the jury is exposed to the publicity. Id. "If it is determined that publicity disseminated by the media during trial raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material." Syl. Pt. 5, Williams II, 172 W.Va. 295, 305 S.E.2d 251. In determining if the jury's exposure to publicity resulted in probable prejudice, the trial court must examine all the circumstances and exercise its discretion and not simply rely on the jurors' avowals of impartiality. Williams I, 160 W.Va. at 26-27, 230 S.E.2d at 747.

In this case, the circuit court viewed the television interview, heard the arguments of counsel, and polled the jurors in detail. After...

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