State v. Bass

Decision Date11 June 1993
Docket NumberNo. 21497,21497
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth S. BASS, Defendant Below, Appellant.

Syllabus by the Court

1. "It is violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried on criminal charges by a jury from which members of his race have been purposely excluded." Syllabus Point 1, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

2. "To establish a prima facie case for a violation of equal protection due to racial discrimination in the use of peremptory jury challenges by the State, 'the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.' [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90 L.Ed.2d 69 [at 87-88] (1986)." Syllabus Point 2, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

3. "The State may defeat a defendant's prima facie case of a violation of equal protection due to racial discrimination in selection of a jury by providing nonracial, credible reasons for using its peremptory challenges to strike members of the defendant's race from the jury." Syllabus Point 3, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).

4. "The Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. The U.S. Supreme Court has held, for example, that prosecutorial discretion cannot be exercised on the basis of race and that, where racial bias is likely to influence a jury, an inquiry must be made into such bias. The prohibition on discrimination in the selection of jurors makes race neutrality in jury selection a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution. The courts are under an affirmative duty to enforce the strong statutory and constitutional policies embodied in that prohibition." Syllabus Point 2, State v. Harris, 189 W.Va. 423, 432 S.E.2d 93 (1993). (Emphasis in original).

5. "Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant." Syllabus Point 4, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991).

6. " ' "Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." State v. Louk, 301 S.E.2d 596, 599 (1983).' Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)." Syllabus Point 4, State v. Farmer, 185 W.Va. 232, 406 S.E.2d 458 (1991).

Darrell V. McGraw, Jr., Atty. Gen., Stephen R. VanCamp, Asst. Atty. Gen., Charleston, for appellee.

Bernard L. Spaulding, Logan, for appellant.

PER CURIAM:

The defendant, Kenneth S. Bass, was convicted of unlawful wounding by jury in the Circuit Court of Logan County by order entered May 15, 1992. The defendant, who is black, appeals his conviction to this Court on the ground that the trial court committed reversible error when it denied his motion for a mistrial. The mistrial was sought based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as the defendant claimed that the prosecutor's removal of the only black juror was racially motivated. The defendant also contends that the trial court committed error when it allowed the victim in this case to exhibit to the jury the scar from his wound. Because we find no error below, the conviction of the defendant is affirmed.

The facts leading to the defendant's conviction are as follows. The defendant and the victim engaged in an altercation at the SuperAmerica gasoline station in Cora, Logan County, on December 8, 1990. Although the facts surrounding the altercation are in dispute, it is undisputed that at some point during the altercation, the victim received a knife wound requiring 187 stitches. The jury was permitted to view the victim's scar from the wound. The defendant was convicted of unlawful wounding and was sentenced to one to five years incarceration.

I.

During jury selection, only one member of the jury panel that was seated, a Mr. Hairston, was a black person. In response to voir dire questioning by the court, Mr. Hairston indicated that he recently met the defendant at two political rallies where the defendant sought his vote on his candidacy for county magistrate. He also stated that he had not met the defendant at any other time, and that he told the defendant at those rallies: "I know who you are and I see you. I'll vote for whoever I choose." Mr. Hairston further stated that he was not aware of the charge against the defendant or the underlying facts of this case until the voir dire. Mr. Hairston then stated that he could reach a fair and impartial verdict in the case. The State declined to make a motion to strike Mr. Hairston for cause at that time.

Shortly after the foregoing questioning, Mr. Hairston, on his own initiative and still during voir dire, informed the trial court that the prosecutor representing the State previously participated in a case where Mr. Hairston's son sought a warrant in magistrate court. Mr. Hairston told the trial court that he was satisfied with the outcome of the case in magistrate court. He reiterated that he felt capable of reaching a fair and impartial verdict in the underlying case. Again, the prosecutor declined to make a motion to strike Mr. Hairston for cause.

Thereafter, the State used one of its peremptory strikes to remove Mr. Hairston from the jury panel. Counsel for the defendant then moved for a mistrial based upon the State's peremptory strike of Mr. Hairston. The prosecutor offered to the trial court, as justification for the peremptory strike of Mr. Hairston, the following explanation:

"Well, there were several reasons. I believe he attended a political rally at which Mr. Bass was present. Mr. Bass is a candidate for an office here in Logan. Mr. Hairston's wife is an employee of N.E.W. for women. She, within the last few months, notarized an ethics complaint against me which was dismissed and they also, N.E.W. Employment for Woman, are a group which support candidates and very frankly I don't have any evidence that they support Mr. Bass for public office but I believe they are. That is why I struck Mr. Hairston. Mainly I don't think his wife likes me. She took a--notarized a complaint against me and Mr. Bass had a political rally."

The trial court responded that although it did not believe the State had grounds to challenge Mr. Hairston's jury membership for cause, it did believe the State had "legitimate reasons" to use a peremptory strike on Mr. Hairston. The defendant contends that the prosecutor's reasons for striking Mr. Hairston were insufficient and his removal violated the constitutional precepts of equal protection established by the Supreme Court in Batson: "The Equal Protection Clause guarantees the defendant that the state will not exclude members of his race from the jury venire on account of race ... or on the false assumption that members of his race as a group are not qualified to serve as jurors." 476 U.S. at 86, 106 S.Ct. at 1717, 90 L.Ed.2d at 80. (Citations omitted). 1

We adopted Batson 's principles in State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989), where we stated in Syllabus Point 1:

"It is violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried on criminal charges by a jury from which members of his race have been purposely excluded."

In Syllabus Point 2 of Marrs, we adopted Batson 's test which is used to determine whether a defendant has proved a prima facie case for a violation of the Equal Protection Clause of the Fourteenth Amendment when an allegation is made that the State has been racially discriminatory in its use of its peremptory challenges:

"To establish a prima facie case for a violation of equal protection due to racial discrimination in the use of peremptory jury challenges by the State, 'the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.' [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90 L.Ed.2d 69 [at 87-88] (1986)."

In this case, the defendant clearly met the first two prongs of the prima facie case test. As a black man, he is a member of a cognizable racial group, and the prosecutor exercised his peremptory challenge to remove the only black person from the venire. The defendant may rely on the undisputed fact that the ...

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