State v. Bennett

• Decision Date: 15 June 1989
• Docket Number: No. 18540,18540
• Citation: 382 S.E.2d 322,181 W.Va. 269
• Parties: STATE of West Virginia v. James D. BENNETT.
• Court: West Virginia Supreme Court

Page 322

382 S.E.2d 322

181 W.Va. 269

STATE of West Virginia v. James D. BENNETT.

No. 18540.

Supreme Court of Appeals of

West Virginia.

June 15, 1989.

Syllabus by the Court

1. When individual voir dire reveals that a prospective juror feels prejudice against the defendant which the juror admits would make it difficult for him to be fair, and when the juror also expresses reluctance to serve on the jury, the defendant's motion to strike the juror from the panel for cause should ordinarily be granted.

2. "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." Syl. pt. 4, State v. Beckett, --- W.Va. ----, 310 S.E.2d 883 (1983).

3. "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." Syl. pt. 6, State v. Beckett, --- W.Va. ----, 310 S.E.2d 883 (1983).

James T. Kratovil, Kratovil & Kratovil, Weston, for James D. Bennett.

C. Terry Owens, Sr. Asst. Atty. Gen., Charleston, for Appellee.

BROTHERTON, Chief Justice:

The appellant, James D. Bennett, was found guilty of seven counts of incest and seven counts of third degree sexual assault by a Gilmer County Circuit Court jury on July 23, 1987. Bennett subsequently received a sentence of not less than five nor more than ten years on each of the incest counts, and not less than one year nor more than five years on each of the third degree sexual assault charges, with two counts of incest and two counts of third degree sexual assault to be served consecutively, while all other counts were to be served concurrently. Bennett now appeals his conviction, alleging various errors in the proceedings below.

On March 3, 1987, a Gilmer County grand jury indicted Bennett on twenty-six criminal counts, including ten counts of incest, three counts of first-degree sexual assault, all felonies, as well as six misdemeanor counts of third-degree sexual abuse. Bennett's trial began on July 21, 1987, at which time a panel of twenty jurors was called and examined on voir dire. ¹ An individual voir dire was subsequently conducted at the defendant's request. At the conclusion of the individual voir dire, the defense challenged five prospective jurors for cause. However, the trial judge refused to dismiss any jurors for cause, and the defendant now argues that this was reversible error. We agree that the defendant was entitled to have two of the prospective jurors struck for cause, and thus we reverse Bennett's convictions for the reasons discussed below.

During his individual voir dire, Timothy Law, who was nineteen years of age, revealed that he knew the defendant's children, including the alleged victim, from school and that he had heard various rumors in the community about the defendant. When the defense attorney asked Law his opinion as to whether the sentiment in Gilmer County was "pretty much against Mr. Bennett," Law responded, "Yeah, I'd say." When asked "Do you think that there's a probability or a greater chance that he did it than didn't do it?", Law again said "Yeah." Law seemed uncertain about whether he could put his prejudices against the defendant aside if he were chosen to sit on the jury, but he clearly indicated that if given the choice, he would rather not be a juror in the case.

The decision as to whether to grant a defendant's motion to strike jurors for cause rests within the sound discretion of the trial court. State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774, 783 (1954). As this Court has often recognized, the purpose of jury selection is " 'to secure jurors who are not only free from prejudice, but who are also free from the suspicion of prejudice.' " State v. Matney, --- W.Va. ----, 346 S.E.2d 818, 822 (1986) (quoting State v. West, 157 W.Va. 209, 219, 200 S.E.2d 859, 865-66 (1973)). Should the trial court have any doubt about a juror, such doubt must be resolved in favor of the defendant's challenge to strike the juror. State v. West, 200 S.E.2d at 866. In syllabus point 2 of State v. Gargiliana, 138 W.Va. 376, 76 S.E.2d 265 (1953), we stated:

"In order that one who has formed or expressed an opinion as to the guilt or innocence of the accused may be accepted as a competent juror on such panel, his mind must be in condition to enable him to say on his voir dire unequivocally and without hesitation that such opinion will not affect his judgment in arriving at a just verdict from the evidence alone submitted to the jury on the trial of the case." Point 3, Syllabus, State v. Johnson, 49 W.Va. 684 .

Timothy Law's responses to questioning during voir dire should have at least caused the trial court to doubt whether Law could serve without prejudice as a juror. At one point during the lengthy questioning of Law, the trial judge said to him, "Even though you think he's probably more guilty than he is innocent, you've got to put that out of your mind. Can you do that?" Law's response was "Yeah." Again, at the conclusion of this questioning, the judge asked Law, "I know you don't want to serve on the jury, and I understand that, but someone's got to serve. If you have to serve will you be fair?", to which Law answered, "I'll do my best." The trial judge then asked "Can you be fair?", and Law said "Yeah."

Although Law eventually said he could be fair if selected as a juror, it was hardly "unequivocally and without hesitation." Moreover, we will not ignore the other statements Law made during voir dire which clearly demonstrate not only that he was reluctant to be a juror, but also that he believed he would have difficulty setting his prejudices against Bennett aside. We do not believe that the defendant's objection to Timothy Law was unreasonable under the circumstances. This Court is of the opinion that when individual voir dire reveals that a potential juror feels prejudice against the defendant which the juror admits would make it difficult for him to be fair, and when a juror also expresses a reluctance to serve on the jury, the defendant's motion to strike the juror from the panel for cause should ordinarily be granted. ²

We also find error in the trial court's refusal to strike Denzil Huff from the jury panel for cause. When the court conducted the general voir dire, Huff indicated that he had previously heard the Bennett case discussed somewhere. Later, during individual voir dire, Huff revealed that his sister-in-law was the secretary for the prosecuting attorney in the case and she had mentioned the case but had not discussed any specific details with him.

As he was ruling on the defendant's motion to strike Huff for cause, the trial judge admitted that Huff "gives me some problems." However, because Huff was individually questioned and claimed no prejudice or bias, the judge denied the defendant's motion. In syllabus point 4 of State v. Beckett, --- W.Va. ----, 310 S.E.2d 883 (1983), this Court stated that:

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.

Further, in syllabus point 6 of Beckett, we recognized that:

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.

In this case, prospective juror Huff was related by marriage to a member of the prosecuting attorney's staff, as his sister-in-law was the secretary for the man who was prosecuting the case. Individual voir dire was conducted in chambers, and Huff said that he did not think that the fact that he knew the prosecutor and that his sister-in-law worked for this prosecutor would affect him as a juror.

Although Huff claimed to have no bias or prejudice against Bennett, the defense was nonetheless compelled to move that he be struck from the jury panel for cause. As we have noted before, a prospective juror may have a demonstrable prejudice or bias in a particular case without either acknowledging or admitting it. ³ "The purpose of voir dire is to assure that the defendant's right to a jury free of interest, bias or prejudice is protected and effectuated." State v. Payne, 167 W.Va. 252, 280 S.E.2d 72, 76 (1981).

In State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973), we said:

... [W]hen the defendant can demonstrate even a tenuous relationship between a prospective juror and any prosecutorial or enforcement arm of State government, defendant's challenge for cause should be sustained by the court. A defendant is entitled to a panel of twenty jurors who are free from exception, and if proper objection is raised at the time of empaneling the jury, it is reversible error for the court to fail to discharge a juror who is obviously objectionable. In any case where the trial court is in doubt, the doubt must be resolved in favor of the defendant's challenge, as jurors who have no relation whatsoever to the State are readily available.

200 S.E.2d at 866. Huff had, at the very least, a tenuous relationship to the prosecutor's secretary. The defendant's objection to Huff's presence on the jury was not unreasonable in light of this fact,...