State v. Daugherty

• Decision Date: 29 November 2006
• Docket Number: No. 33075.,33075.
• Citation: 650 S.E.2d 114
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Tony Franklin DAUGHERTY, Sr., Defendant Below, Appellant.

650 S.E.2d 114

STATE of West Virginia, Plaintiff Below, Appellee, v.Tony Franklin DAUGHERTY, Sr., Defendant Below, Appellant.

No. 33075.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 2006.

Decided November 29, 2006.

Syllabus by the Court

1."A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of.The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial, proof of mere opportunity to influence the jury being insufficient."Syllabus point 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402(1995).

2."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."Syllabus point 1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384(1981).

Barry L. Bruce, Thomas W. White, Barry L. Bruce & Associates, Lewisburg, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Colleen A. Ford, Assistant Attorney General, Charleston, for Appellee.

PER CURIAM:

Tony Franklin Daugherty, Sr.(hereinafter Mr. Daugherty) appeals an order of the Circuit Court of Summers County denying his motion for a new trial.Mr. Daugherty was convicted of four counts of sexual abuse by a parent and sentenced to a period of 10 to 20 years for each conviction.¹Subsequent to the convictions and sentences, Mr. Daugherty filed a motion for a new trial based upon the jury's consideration of alleged extrinsic evidence.²After conducting an evidentiary hearing, the circuit court denied the motion for a new trial.Here, Mr. Daugherty contends that the trial court committed error in denying his motion for a new trial.³After a careful review of the briefs and record in this case, we affirm the trial court's decision.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Daugherty and his wife, Rebecca Daugherty, gave birth to a son, T.J., on July 9, 1991.⁴As a result of domestic problems, sometime in July of 1998 Mrs. Daugherty left her home with T.J. and moved into a women's shelter.While at the shelter, she learned that Mr. Daugherty may have sexually abused T.J. before he was taken out of the home.The initial sexual abuse allegations apparently could not be substantiated.However, subsequent to the sexual abuse allegation, T.J. exhibited behavioral problems that required him to be hospitalized for psychiatric treatment on several occasions.During the last hospitalization in early 2000, T.J. disclosed that Mr. Daugherty raped him.In March of 2001 a grand jury returned an indictment against Mr. Daugherty alleging 16 counts of sexual offenses.⁵

The case was tried before a jury in September of 2004.During the trial, T.J. testified that on four occasions Mr. Daugherty "[p]ut his penis in my anus."The record does not disclose whether or not Mr. Daugherty testified during the trial.⁶The jury returned a verdict finding Mr. Daugherty guilty of four counts of sexual abuse by a parent.⁷On September 26, 2005, the circuit court entered an order sentencing Mr. Daugherty to four concurrent sentences of 10 to 20 years imprisonment.⁸

Subsequent to entry of the sentencing order, Mr. Daugherty learned of allegations that a juror, William McBride, stated during deliberations that he knew Mr. Daugherty and his family and that he was afraid that something could happen to his children if Mr. Daugherty was not convicted.These allegations were made by affidavits from four jurors: Harvey Bryant, Everette Cox, Sharon Crookshanks and Ricky Vandall.⁹As a result of this information, Mr. Daugherty filed a motion for a new trial.An evidentiary hearing was held on the motion.During the hearing, Mr. Daugherty and all twelve former jurors testified.¹⁰After the conclusion of the hearing the trial court entered an order denying Mr. Daugherty's motion for a new trial.From this order, Mr. Daugherty now appeals.

II.STANDARD OF REVIEW

We are asked to decide whether the trial court committed error in denying Mr. Daugherty's motion for a new trial.This Court has held that:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review.We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.Questions of law are subject to a de novo review.

Syl. pt. 3, State v. Vance,207 W.Va. 640, 535 S.E.2d 484(2000).SeeState v. Crouch,191 W.Va. 272, 275, 445 S.E.2d 213, 216(1994)("The question of whether a new trial should be granted is within the discretion of the trial court and is reviewable only in the case of abuse.").We have also held with respect to alleged juror misconduct that:

A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of.The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial, proof of mere opportunity to influence the jury being insufficient.

Syl. pt. 1, State v. Sutphin,195 W.Va. 551, 466 S.E.2d 402(1995)(quoting Syl. pt. 7, State v. Johnson,111 W.Va. 653, 164 S.E. 31(1932)).

III.DISCUSSION

Mr. Daugherty contends that Mr. McBride stated during jury deliberations that he knew Mr. Daugherty and his family and that he was afraid something could happen to his children if Mr. Daugherty was not convicted.Mr. Daugherty contends that these alleged statements constituted improper extrinsic evidence.Therefore, he is entitled to a new trial.

In the decision of State v. Scotchel,168 W.Va. 545, 285 S.E.2d 384(1981)this Court held that "[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."Syl. pt. 1, Scotchel.Subsequent to the decision in Scotchel, "a rule of evidence [was adopted] which specifically addresses the parameters of inquiring into a jury verdict."McDaniel v. Kleiss,198 W.Va. 282, 288, 480 S.E.2d 170, 176(1996).In 1994, this Court adopted Rule 606(b) of the West Virginia Rules of Evidence.Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Professor Cleckley has pointed out that:

Rule 606(b) bars juror testimony regarding four topics: (1) the method or arguments of the jury's deliberation; (2) the effect of any particular thing upon an outcome in the deliberation; (3) the mindset or emotions of the juror during deliberation; and (4) the testifying juror's own mental process during the deliberations.

Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers(Vol.1), § 6-6(B), pg. 6-55(2000).

Rule 606(b) provides a narrow exception that would allow jurors to testify to certain matters occurring during deliberations.Under that exception "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."Cleckley, Handbook on Evidence, § 6-6(B), at 6-55.SeeSyl. pt. 2, Scotchel("Courts recognize that a jury verdict may be impeached for matters of misconduct extrinsic to the jury's deliberative process.").In determining whether a jury's consideration of extrinsic evidence warrants a new trial, the following standard has been recognized by this Court:

When jurors consider extrinsic evidence, a new trial is required if the evidence poses a reasonable possibility of prejudice to the defendant....Prejudice from extrinsic evidence is assumed in the form of a rebuttable presumption and the government bears the burden of demonstrating that the consideration of the evidence was harmless.

State ex rel. Trump v. Hott,187 W.Va. 749, 753, 421 S.E.2d 500, 504(1992)(quotingUnited States v. Perkins,748 F.2d 1519, 1533(11th Cir.1984)).

Mr. Daugherty contends that the evidence at the post-trial hearing established the presumption of prejudice and that the State failed to rebut that presumption.We disagree.

To begin, Mr. Daugherty contends that under our decision in Trump, he is entitled to a new trial.In Trump,the defendant was convicted of four counts of second-degree sexual assault.Subsequent to the conviction, a juror came forward and alleged that during the deliberations another juror told the jury panel that the defendant had previously been accused or convicted of wife beating and child molestation.The...