State ex rel. Parker v. Keadle

• Decision Date: 10 June 2015
• Docket Number: No. 14–0970.,14–0970.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, ex rel. Michael W. PARKER, Prosecuting Attorney for Randolph County, West Virginia, Petitioner. v. The Honorable Thomas H. KEADLE, Judge Sitting by Special Assignment for the Circuit Court of Randolph County, West Virginia, and Derek S., Respondents.

235 W.Va. 631

776 S.E.2d 133

STATE of West Virginia, ex rel. Michael W. PARKER, Prosecuting Attorney for Randolph County, West Virginia, Petitioner.

v.The Honorable Thomas H. KEADLE, Judge Sitting by Special Assignment for the Circuit Court of Randolph County, West Virginia, and Derek S., Respondents.

No. 14–0970.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 25, 2015.

Decided June 10, 2015.

Michael W. Parker, Esq., Prosecuting Attorney, for Randolph County, Christina W. Harper, Assistant Prosecuting Attorney, Elkins, WV, for Petitioner.

Jeremy B. Cooper, Esq., John W. Cooper, Esq., Cooper and Preston, PLLC, Parsons, WV, for Respondent Derek S.

Opinion

BENJAMIN, Justice:

The relator, Michael W. Parker, Prosecuting Attorney for Randolph County, seeks a writ of prohibition to prevent the Circuit Court of Randolph County from holding a new trial in the case of Derek S.¹ , who was tried and convicted by a jury on eighty-one counts of several sexual offenses involving a minor female child.² Derek S. filed post-trial motions seeking a new trial, judgment of acquittal notwithstanding the jury verdict and arrest of judgment. By order entered September 14, 2014, the circuit court granted a new trial based upon the court's failure to strike a juror for cause. For the reasons stated herein, we determine that the circuit court abused its legitimate powers by granting the motion for a new trial, and we grant the writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

Derek S. was indicted by the Randolph County grand jury on one hundred fifty counts of several sexual offenses involving a female relative whose age was less than twelve years. He was charged with fifty counts of first degree sexual assault, in violation of W. Va.Code §§ 61–8B–3(a)(2) (2006) and 61–8B–3(c) ; fifty counts of sexual abuse by a parent, guardian or custodian, in violation of W. Va.Code § 61–8B–5(a) ; and fifty counts of incest, in violation of W. Va.Code § 61–8–12(b). These offenses were alleged to have taken place over a one-year period between September of 2011 and August of 2012 and were based upon at least four sexual encounters between Derek S. and the child from September of 2011 through August of 2012. The State also alleged that there were two encounters in September of 2012, after which the child was removed from Derek S.'s home. The State moved to dismiss sixty-nine counts of the indictment shortly before the January 2014 trial for lack of evidence. The court granted that by order entered January 14, 2014.³

This case proceeded to trial before Judge Jaymie Godwin Wilfong in September of 2013. After approximately eleven hours of jury selection, a jury was empaneled. Once the trial began, two members of the jury were stricken for cause, resulting in the court declaring a mistrial upon the joint motion of the State and Derek S.'s counsel.

As an aid to selecting the jury for the second trial, and to accommodate counsel who was hearing impaired, the parties agreed to use a jury questionnaire. This questionnaire consisted of thirteen pages with sixty-nine questions. Each potential juror was requested to complete the questionnaire and verify, under the penalties for perjury, that the answers given were true and accurate. A majority of the panel completed this questionnaire prior to trial; the remaining members of the panel filled out their questionnaires on the first day of jury selection.

The jury questionnaires included, among other things, questions regarding whether each potential juror had pre-formulated an opinion as to the guilt or innocence of Derek S. and whether hearing testimony and evidence about sexual conduct would be troubling.

Jury selection commenced on February 18, 2014. Prior to any voir dire, the circuit court allowed the parties to challenge for cause potential jurors based upon the answers provided in the jury questionnaire. Derek S.'s counsel moved to strike a prospective juror, Shannon Bennett Campbell (“Juror Campbell”), for cause, based upon her answers to questions numbered 18, 58, and 59. Those questions and Juror Campbell's answers are:

Question 18: Would the fact that [Derek S.] has been charged by police officers and indicted by a grand jury for sexual offenses against his daughter lead you to believe that he might be guilty or not guilty of those charges?

Yes: x No____

[Juror Campbell's handwritten comment:] It would lead me to believe there is a suspicion.

Question 58: Have you personally formed an opinion about the Defendant [Derek S.]'s guilt or innocence as a result of anything you have heard, read or seen?

Yes: x No____

[Juror Campbell's handwritten comment:] I try to presume innocence until found guilty, but when I read there were up to 50 counts, I know my thinking was that this person must have done something.

Question 59: “Do you have any strong feelings toward the Defendant [Derek S.] as a result of what you have heard, read or seen in the news media about the Defendant?”

[Juror Campbell's handwritten comment with an arrow pointing toward Question 58:] Number 58 Answer explains my initial observation of case.

The following discussion ensued between the State, Derek S.'s counsel and the court regarding the motion to strike:

THE COURT: Number five, Shannon Bennett. She's married to a Campbell and her maiden name is Bennett. And, I believe, she goes by both.

COUNSEL: Judge, for 58 and 59, we would make a for cause strike. She also answered 18 and that would lead me to believe that there is a suspicion. So she actually took it a little further than the question itself indicated. But the major concern that we would have with this particular juror is that, if I can quote her, “I try to presume innocence until found guilty, but when I read that there were up to 50 counts I know and my thinking was that this person must have done something.” And then in 59, it basically referred to question 58.

THE COURT: Okay, Mr. Parker.

THE STATE: The State would object to a for cause strike on this one. She indicates in 18 that, I believe, the charge would lead her to believe there's a suspicion. Obviously, the charge would indicate that there is probable cause to believe that offense was committed after the grand jury has listened to the evidence. I think that this is one that potentially we could do some work on, as far as instructing and also further follow-up questions to see whether or not she truly has a bias that would preclude her from serving on the jury.

THE COURT: The motion, at this time, is denied. What we'll do is we will bring her back in for individual voir dire so that you can explore those issues and you can renew your motion if you want to.

The parties continued jury selection, including group and individual voir dire of prospective jurors. Notwithstanding the court's previous invitation, no additional questions were directed toward Juror Campbell. The parties exercised their peremptory strikes; Juror Campbell was not stricken by the State or Derek S. Juror Campbell was seated as an alternate juror, without objection being raised by Derek S. As the trial commenced, a previously empaneled regular juror was stricken and Campbell assumed that juror's position on the panel. No objection was made by Derek S. at the time Juror Campbell was placed on the jury as a regular member. The trial continued, resulting in a guilty verdict on a total of eighty-one counts of sexual offenses.

After his conviction, Derek S. filed motions for a new trial, judgment for acquittal notwithstanding the verdict, and arrest of judgment, which were heard by Judge Thomas H. Keadle on August 6, 2014. Among other grounds,⁴ Derek S. argued that Juror Campbell should have been stricken for cause because of her answers to questions 18, 58 and 59 in the jury questionnaire.⁵ Derek S. also argued that because Juror Campbell sent a post-trial thank you letter to the prosecuting attorney complimenting his performance, she should have been stricken for cause. The State refuted these allegations, arguing that the answers to the questionnaire were not proof of bias and that Derek S. had an opportunity to individually question Juror Campbell to explore whether she was biased and chose not to ask additional questions. Furthermore, the State argued that Derek S. did not object to the composition of the panel.

At a hearing held on August 2, 2014, Judge Keadle granted Derek S.'s motion for a new trial, finding that Juror Campbell's answers expressed bias against Derek S. and that she should have been stricken for cause. The court further found that Juror Campbell's bias against Derek S. was further reflected by the thank you note sent to the prosecuting attorney after the trial.

The State filed the instant petition for a writ of prohibition seeking to prevent the enforcement of the September 14, 2014, order of the circuit court granting Derek S. a new trial.

II. STANDARD OF REVIEW

In syllabus point 5 of State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), this Court concluded that under extraordinary circumstances, the State may seek a writ of prohibition to address an adverse ruling in a criminal matter. We held:

The State may seek a writ of prohibition in this Court in a criminal matter where the trial court has exceed 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.

Id.

The standard for granting a writ of prohibition is as follows:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will

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