State v. Beckett, 15887

• Citation: 172 W.Va. 817,310 S.E.2d 883
• Decision Date: 16 December 1983
• Docket Number: No. 15887,15887
• Parties: STATE of West Virginia v. Donald Wayne BECKETT.
• Court: Supreme Court of West Virginia

Page 883

310 S.E.2d 883

172 W.Va. 817

STATE of West Virginia v. Donald Wayne BECKETT.

No. 15887.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1983.

Syllabus by the Court

1. Once a party by a timely objection demonstrates that a juror has either a statutory or common law ground for disqualification, such juror should be removed for cause.

2. "When a prospective juror is closely related by consanguinity to a prosecuting witness or to a witness for the prosecution, who has taken an active part in the prosecution or is particularly interested in the result, he should be excluded upon the motion of the adverse party." Syllabus Point 2, State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974).

3. "In a criminal case it is reversible error for a trial court to overrule a challenge for cause of a juror who is an employee of a prosecutorial or enforcement agency of the State of West Virginia." Syllabus Point 5, State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973).

4. A potential juror closely related by blood or marriage to either the prosecuting or defense attorneys involved in the case or to any member of their respective staffs or firms should automatically be disqualified.

5. "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 determine whether they entertain bias or prejudice for or against either party, requiring their excuse." Syllabus Point 3, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

6. A prospective juror's consanguineal, marital or social relationship with an employee of a law enforcement agency does not operate as a per se disqualification for cause in a criminal case unless the law enforcement official is actively involved in the prosecution of the case. After establishing that such a relationship exists, a party has a right to obtain individual voir dire of the challenged juror to determine possible prejudice or bias arising from the relationship.

7. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus Point 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

8. A motion for new trial based on after-discovered evidence will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.

Harry A. Smith, III, Elkins, for appellant.

Chauncey H. Browning, Atty. Gen. and Michael E. Froble, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

The defendant, Donald Wayne Beckett, appeals his aggravated robbery conviction, for which he was sentenced to serve ten years in the penitentiary. He assigns a number of errors: (1) the trial court's refusal to dismiss for cause two potential jurors; (2) the prosecutor's improper statements in closing argument and his improper impeachment of a defense witness; (3) the sufficiency of the indictment; (4) the trial court's refusal to grant a new trial based upon newly discovered evidence; (5) the sufficiency of the evidence; and (6) the giving of an instruction defining reasonable doubt. We conclude that the trial court committed no error and affirm the conviction.

The incident in question occurred on August 4, 1981. The victim, Thurman Channell, who knew the defendant and was formerly married to the defendant's half-sister, testified that on that evening, the defendant came into his house and struck him in the face with his fist. After the first blow, Mr. Channell was knocked out and could not remember how many other times he was struck by the defendant. When Mr. Channell recovered, he discovered that the money (approximately $144) he had placed in his shirt pocket was missing along with his gun. The telephone had been disconnected, so Mr. Channell had to go to a neighbor's house to call the police.

Another State's witness, Billy Ray Lloyd, testified that he accompanied the defendant to Mr. Channell's home and remained outside. He stated that while standing outside the house he saw the defendant strike Mr. Channell two or three times with his fists. Mr. Lloyd did not see the defendant take either the money or the gun. According to Mr. Lloyd's testimony, there had been no discussion of the proposed robbery prior to its occurrence.

The defendant testified that he went to Mr. Channell's house to question him about some accusations Mr. Channell had made to the police concerning the defendant. After knocking on the door and discussing the matter with Mr. Channell, the defendant claims that Mr. Channell swung at him for no apparent reason. In the ensuing scuffle, the defendant admitted striking Mr. Channell a couple of times, but denied taking either the money or the gun. The defendant testified that he left with Mr. Lloyd after observing that Mr. Channell was unconscious.

After the incident with Mr. Channell, the defendant and Mr. Lloyd returned to Mr Lloyd's house. Some time thereafter, the defendant and two women left the house to purchase a case of beer, paid for by the defendant. Approximately two hours after the crime had occurred, the defendant was arrested, accompanied by these two women. In the search conducted incident to the arrest, neither the money nor the gun were recovered.

I.

The defendant argues that two potential jurors--a sister of a Randolph County magistrate and a brother of a Randolph County jailer--should have been removed for cause based on their relationship with an employee in a law enforcement or prosecutorial agency. Because the issue is frequently before us, we take this opportunity to restate our standard.

Under our law, the eligibility and qualifications of jurors in both civil and criminal cases are controlled by several statutes ¹ and by our adoption of the common law grounds for disqualification set out in State v. Dushman, 79 W.Va. 747, 749, 91 S.E. 809, 810 (1917):

"(1) Kinship to either party within the ninth degree; (2) was arbitrator on either side; (3) that he has an interest in the cause; (4) that there is an action pending between him and the party; (5) that he has taken money for his verdict; (6) that he was formerly a juror in the same case; (7) that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him; and causes of the same class or founded upon the same reason should be included." ²

See also State v. Riley, 151 W.Va. 364, 383, 151 S.E.2d 308, 320 (1966).

We have traditionally held that once a party by a timely objection demonstrates that a juror has either a statutory or common law ground for disqualification, such juror should be removed for cause. We spoke to this point in Syllabus Point 2 of [172 W.Va. 821] Dushman: "An employee of a railway company prima facie is disqualified to sit as a juror in the trial of one indicted for stealing or buying and receiving property of the railway company alleged to have been stolen." See also State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974); State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973); State v. Davis, 91 W.Va. 241, 112 S.E. 414 (1922).

It should be noted that while the common law disqualifications are in the main rather explicit, they are not without some ambiguity, particularly as to what is an "interest in the cause." Moreover, as illustrated in State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974), the disqualification because of kinship to a party is extended in criminal cases to a prosecution witness. In Kilpatrick, we concluded that a father whose son was a prosecution witness on a charge under W.Va.Code, 61-8-16, relating to the abusive use of a telephone, should have been removed for cause upon defense counsel's motion, and stated in Syllabus Point 2:

"When a prospective juror is closely related by consanguinity to a prosecuting witness or to a witness for the prosecution, who has taken an active part in the prosecution or is particularly interested in the result, he should be excluded upon the motion of the adverse party."

Kilpatrick relied in part on this statement from State v. West, 157 W.Va. at 218-19, 200 S.E.2d at 865-66:

"Common law has generally been circumspect in permitting any juror to sit who is related to either party through kinship or interest.... Furthermore, as far as practicable the process of selecting jurors should endeavor to secure jurors who are not only free from prejudice, but who are also free from the suspicion of prejudice."

In Syllabus Point 5 of West, we held that a challenge for cause should have been granted, disqualifying a juror who was an employee of the West Virginia Department of Public Safety:

"In a criminal case it is reversible error for a trial court to overrule a challenge for cause of a juror who is an employee of a prosecutorial or enforcement agency of the State of West Virginia."

Kilpatrick indicated that a juror's disqualification for kinship extended to a prosecution witness who has taken an active part in the prosecution of the case. This is analogous to the common law disqualification by reason of kinship to parties since while the State is the formal party, the victim as the prosecuting witness, is a real party in interest. In West, the disqualification by reason of employment by a prosecutorial or enforcement agency of the State of West Virginia might be related to the master-servant common law disqualification, where the State is viewed as the master.

The narrow issue before us is whether a sister of a magistrate or a brother of a deputy sheriff who is a jailer at the county jail are per se disqualified from serving as jurors under West where neither the deputy sheriff nor the magistrate were shown to be actively involved in the prosecution of the case. We note that Syllabus Point 5 of West was limited to an "employee of a prosecutorial or enforcement...