State ex rel. Hill v. Reed, 23810

• Decision Date: 18 December 1996
• Docket Number: No. 23810,23810
• Citation: 483 S.E.2d 89,199 W.Va. 89
• Parties: STATE ex rel. David A. HILL, Defendant Below, Petitioner, v. Honorable Jeffrey B. REED, Judge of the Circuit Court of Wood County, Respondent.
• Court: West Virginia Supreme Court

Page 89

483 S.E.2d 89

199 W.Va. 89

STATE ex rel. David A. HILL, Defendant Below, Petitioner, v. Honorable Jeffrey B. REED, Judge of the Circuit Court of Wood County, Respondent.

No. 23810.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 19, 1996.

Decided Dec. 18, 1996.

Syllabus by the Court

"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. 1, State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974).

George J. Cosenza, Cosenza & Underwood, Parkersburg, for Petitioner.

John M. Hedges, Byrne & Hedges, Morgantown, for Respondent.

Michelle Rusen, C. Scott Druig, Wood County Prosecutor's Office, for the State.

PER CURIAM:

David A. Hill (hereinafter "the Petitioner") seeks a writ of prohibition against the Honorable Jeffrey B. Reed, Judge of the Circuit Court of Wood County, West Virginia, to prohibit Judge Reed from requiring the Petitioner to disclose the defense witness list to the lower court on the first day of trial. We ¹ deny the requested writ of prohibition.

I.

The Petitioner was indicted by a Wood County Grand Jury in May 1996 and charged with sexual abuse, abuse by a custodian, and sexual assault. The Petitioner and his counsel decided not to seek disclosure of the State's evidence pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, thereby not obligating the defense to make a reciprocal disclosure as contemplated by Rule 16. ² On October 25, 1996, four days prior to the scheduled trial date, the State requested the lower court's guidance on the issue of accomplishing proper voir dire where the names of potential witnesses had not been disclosed and the jury could not, therefore, be asked about any acquaintance with those witnesses. The lower court responded by stating that both sides would provide the court with a copy of their witness lists. After further discussion and objection by the Petitioner's counsel, the lower court explained its obligation to ensure a fair and orderly trial and again stated its ruling that both sides were to present a list of witnesses to the court on the first day of trial.

On October 28, 1996, the Petitioner filed a petition for a writ of prohibition with this Court, stating that the lower court had ordered "the State and the Petitioner to exchange a list of witnesses prior to the commencement of voir dire." We granted the petition and subsequently received an order of the lower court dated November 21, 1996, ³ stating as follows:

[C]ounsel for the State and the defendant shall, on the first day of trial, provide to the Court a list of the names and addresses of the witnesses each side intends to call during the trial in this matter to enable the Court to read those witnesses names and addresses to the prospective jurors in this case. It is further ORDERED that failure to list a potential witness may cause such witness to be excluded from testifying.

The Petitioner contends that his tactical scheme was designed to prevent the very disclosure now ordered by the lower court and that the premise of Rule 16 permits the Petitioner to protect himself from the requirement of disclosure by not first requesting disclosure by the State. The Petitioner's argument portrays the lower court as trouncing upon its discovery rights and thwarting the very essence of Rule 16.

II.

The Petitioner attempts to frame this as a discovery, rather than a voir dire, issue. Rule 16 provides guidelines to be utilized during discovery, but it does not limit the trial judge's authority to order disclosure necessary for proper and comprehensive voir dire.

In People v. Cangiano, 131 Misc.2d 930, 502 N.Y.S.2d 349 (N.Y.Sup.Ct.1986), the defense challenged a court order requiring it to furnish a list of its prospective witnesses immediately prior to jury selection. The court held that disclosure was proper and that the appropriate sanction for refusal to comply was to hold defense counsel in contempt and to consider preclusion of the non-disclosed witness' testimony. Id. The court also held that disclosure of names of all prospective witnesses is required to determine whether any prospective juror is related to or knows one of the witnesses and that disclosure immediately prior to jury selection does not prejudice the defense. Id.

Although we have not been previously provided the opportunity to make specific conclusions such as those in Cangiano, we have addressed the necessity of ascertaining any relationship between a prospective juror and a witness and have acknowledged that names of witnesses need to be known in order to discover potential biases which could taint the trial. In State v. Satterfield, 193 W.Va. 503, 457 S.E.2d 440 (1995), the prospective juror was ultimately permitted to remain of the jury despite his friendship with four State witnesses after the trial judge repeatedly questioned juror about his impartiality and the juror repeatedly assured trial judge that he could remain impartial. 193 W.Va. at 514, 457 S.E.2d at 451. However, the issue of the relationships had to be revealed and addressed prior to the decision to allow him to remain. That could not have been accomplished without disclosure of the names of the potential witnesses.

Likewise, the issue of possible prejudice was raised in Dupuy v. Allara, 193 W.Va. 557, 457 S.E.2d 494 (1995), where the wife of a prospective juror in a medical malpractice action had been the patient of a physician who was an expert witness for the physician against whom the action was brought. Again, it was ultimately determined that the juror was free from bias, based upon his statements that he knew the physician by sight but not as friend, that he did not have personal relationship with him, and that his relationship with the physician would not create any bias in favor of the physician. 193 W.Va. at 562-63, 457 S.E.2d at 499-500.

In syllabus point one of State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974), we 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." See also State v. Storey, 182 W.Va. 328, 387 S.E.2d 563 (1989); Syl. pt. 7, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982); Syl. pt. 3, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). In syllabus point three of State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978), we stated: "Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely...