State ex rel. Trump v. Hott

• Decision Date: 20 July 1992
• Docket Number: No. 21093,21093
• Citation: 187 W.Va. 749,421 S.E.2d 500
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Charles S. TRUMP, IV, Prosecuting Attorney for Morgan County, Relator, v. Honorable Donald C. HOTT, Special Judge of the Circuit Court of Morgan County, and Dennis G. Berger, Respondents.

Page 500

421 S.E.2d 500

187 W.Va. 749

STATE of West Virginia ex rel. Charles S. TRUMP, IV, Prosecuting Attorney for Morgan County, Relator, v. Honorable Donald C. HOTT, Special Judge of the Circuit Court

of Morgan County, and Dennis G. Berger, Respondents.

No. 21093.

Supreme Court of Appeals of

West Virginia.

Submitted April 28, 1992.

Decided July 20, 1992.

Syllabus by the Court

"The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded 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." Syllabus Point 5, State v. Lewis, --- W.Va. ----, 422 S.E.2d 807 (1992).

Charles S. Trump, IV, Pros. Atty., Morgan County, Berkeley Springs, for relator.

Richard G. Gay and Leah R. Stotler, Stotler & Stotler, Berkeley Springs, for respondent Dennis G. Berger.

PER CURIAM:

The relator, Charles S. Trump, IV, Prosecuting Attorney for Morgan County, seeks a writ of prohibition to prevent the Honorable Donald C. Hott, Special Judge of the Circuit Court of Morgan County, from granting a new trial in the case of State v. Berger, Case No. 90-F-12. For the reasons stated below, we deny the writ.

Dennis G. Berger was convicted of four counts of second-degree sexual assault on November 4, 1991. On January 23, 1992, defense counsel filed a motion for new trial based upon an affidavit of one of the jurors, which asserted that during the second day of deliberations another juror told the entire panel that she knew that the defendant had either been accused of or convicted of wife beating and child molestation. The affidavit further stated that after this statement was made, three or four other jurors indicated that they had also heard that the defendant had either been accused of or convicted of these same crimes.

In an opinion order dated February 3, 1992, the trial court scheduled a hearing in order to address the matters set forth in the affidavit. The order advised that the jurors would be called to testify at that hearing and outlined the procedure the court intended to follow. First, the juror who signed the affidavit would be examined by defense counsel and would be subject to cross-examination by the prosecuting attorney. If this juror's testimony was in accord with his affidavit, then the remaining jurors would be individually examined. Each would be informed of the nature of the statements alleged in the affidavit and asked if these statements were made during deliberations. If the juror answered "no," he would not be asked any further questions. If the juror answered "yes," he would then be asked if he would have reached the same verdict had the statements not been made in his presence.

The hearing proceeded under this arrangement. The juror who signed the affidavit essentially confirmed the statements made therein and added that at the time the statements were made the jury vote was eleven to one to convict. He further informed the court that he was the hold-out juror and that the statements influenced his decision to find the defendant guilty. On cross-examination, the juror explained that he changed his mind because he thought that if these allegations were true, the defendant would get mental health treatment. When asked why he had not disclosed these statements when the jury was polled, he replied that he had told his fellow jurors that he would vote to find the defendant guilty.

The other jurors were then individually questioned by the court and each was asked if they had heard the extraneous statements. Of the eleven jurors questioned, six could not recall the statements being made. Five jurors did recall the statements and, when asked if the statements had not been made would they have changed their verdict, all answered "no."

Following the hearing, the respondent judge indicated that he was inclined to set aside the verdict, but invited the prosecutor to seek a writ of prohibition to preclude such a ruling.

Recently, in State v. Lewis, --- W.Va. ----, 422 S.E.2d 807 (1992), we discussed the State's right to seek a writ of prohibition with regard to an adverse ruling in a criminal matter. We concluded that under extraordinary circumstances, the State could seek such a writ and held in Syllabus Point 5 of Lewis:

"The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded 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."

In analyzing the State's right to prohibition in a criminal matter, we must first look to the type of error asserted. Here, the State does not claim that the trial court exceeded or acted outside its jurisdiction. Rather, the State asserts that the trial court abused its legitimate powers by granting a new trial based on one juror's disclosure of incriminating extrinsic evidence against the defendant. The State recognizes our traditional rule that the determination of a motion for new trial in a criminal case rests in the sound discretion of the trial court. As we stated in State v. King, 173 W.Va. 164, 165, 313 S.E.2d 440, 442 (1984): "The question of whether a new trial should be granted depends on the circumstances of the case and is largely in the discretion of the trial court. State v. Nicholson, 170 W.Va. 701 , 296 S.E.2d 342, 344 (1982)." Thus, in these circumstances, under Syllabus Point 5, in part, of State v. Lewis, supra, 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 State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981), we discussed at some length the question of whether a jury verdict should be set aside based on a juror's affidavit which alleged that certain improprieties occurred during the jury's deliberations. Initially, we distinguished between those matters which are intrinsic and those that are extrinsic to the deliberative process. We explained the nature of intrinsic matters in Syllabus Point 1:

"A jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict."

On the other hand, extrinsic matters are those " 'occurring during the trial [which are] not essentially inhering in the verdict[.]' " State v. Scotchel, 168 W.Va. at 549, 285 S.E.2d at 387, quoting 76 Am.Jur.2d Trial § 1223 (1975). Unlike intrinsic matters, "a jury verdict may be impeached for matters of misconduct extrinsic to the jury's deliberative process." Syllabus Point 2, in part, State v. Scotchel, supra. We pointed out in note 3 of Scotchel, 168 W.Va. at 549, 285 S.E.2d at 387, a category of extrinsic conduct that can be used to impeach the verdict in a criminal trial:

"However, in criminal trials, a defendant has a constitutional right to confront the witnesses against him. Affidavits of jurors have been used to impeach the verdict of the jury where a third party has supplied the jury with facts that are not in evidence bearing on the defendant's guilt. E.g., Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Annot., 58 A.L.R.2d 556 (1958); 3 ABA Standards for Criminal Justice § 15-4.7(c)i (1980)."

The defendant in Scotchel identified two different improprieties that took place during deliberations. The first involved the defendant's conviction for assault and battery. In a post-trial affidavit, a juror claimed that she voted to convict the defendant because some of the other jurors assured her that the maximum penalty for assault and battery was only a fine. We held that a juror's misunderstanding of the law was intrinsic to the deliberative process and refused to grant a new trial. ¹ Another impropriety identified in the juror's affidavit was that she was "verbally abused" during the deliberations, and this caused her "to vote against [her] convictions." 168 W.Va. at 552, 285 S.E.2d at 389. We concluded that this allegation did not warrant setting aside the verdict. ²

We followed Scotchel 's general principles in State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987), which involved a claim by the defendant that one of the jurors was biased against the defendant and had failed to disclose her bias during voir dire. We found there was insufficient evidence of bias, but recognized that "an allegation that one or more jurors was initially biased or prejudiced against a party may provide a basis for attacking the verdict on appeal." ³ 178 W.Va. at 317, 359 S.E.2d at 337.

Recently in State v. Strauss, 187 W.Va. 84, 415 S.E.2d 888 (1992), we addressed a situation where a juror talked with the State's key witness during a recess at trial. While the jury was deliberating, this same juror vouched for the credibility of the State's witness. Subsequently, another juror testified that her fellow juror's favorable opinion of the State's witness influenced her decision to find the defendant guilty. On appeal, we found there was sufficient evidence of improper influence on the jury to warrant a mistrial, but...