State v. Gilliam, 14380

Decision Date26 March 1982
Docket NumberNo. 14380,14380
Citation289 S.E.2d 471,169 W.Va. 746
PartiesSTATE of West Virginia, v. George GILLIAM.
CourtWest Virginia Supreme Court

Syllabus by the Court

"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." Syllabus Point 7, in part, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932).

Franklin D. Cleckley, Morgantown, for plaintiff-in-error.

Chauncey H. Browning, Atty. Gen., and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant-in-error.

PER CURIAM:

In this appeal, George Gilliam challenges a Circuit Court of Ohio County final judgment of conviction entered upon a November 1977 jury verdict finding him guilty of breaking and entering. Pursuant to our recidivist statute, W.Va.Code, 61-11-19, five years was added to the appellant's one-to-ten year sentence for the breaking and entering and he was sentenced to a total term of one to fifteen years in the penitentiary.

The facts may be briefly summarized. The defendant and his companion were arrested at approximately 2:00 a. m. inside a commercial building in Wheeling. The police officers had gone to the premises along with the owner because the burglar alarm had gone off. There had been a forcible entry in the rear of the building through a window and a crow bar was found inside. Both men were found hiding behind some cartons. The defendant admitted entering the building but denied that he intended to steal anything.

The defendant contends that the trial court committed reversible error when it overruled his motion for a new trial, the principal ground of which was that the judge erred in failing to disclose a conversation with a juror which took place out of the presence of the parties. During the voir dire examination of the prospective jurors, the judge inquired whether any of them had been the victim of a breaking and entering, and at the time no member of the panel responded in the affirmative. The jury was empaneled and a recess taken. During this recess one juror approached the judge and indicated that a breaking and entering had occurred at an apartment she rented to another person. The judge informed her that she had answered the question truthfully and she returned to serve on the jury which rendered the verdict. The judge did not inform either party of the conversation, and the defendant's counsel learned of the conversation following the verdict. The defendant contends the judge's failure to inform the parties of the conversation was reversible error.

Defendant's primary reliance is on Klesser v. Stone, 157 W.Va. 332, 201 S.E.2d 269 (1973), where in Syllabus Point 2 we stated:

"In the trial of a civil action, communication between a trial judge and the jury, out of the presence of the parties or their counsel, constitutes reversible error only upon a showing of a possible prejudice by the complaining party, but a finding of possible prejudice does not require proof of a specific and demonstrable injury, damage or injustice to the complaining party's case."

In Klesser, the jury had begun its deliberations...

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4 cases
  • State v. White
    • United States
    • West Virginia Supreme Court
    • June 7, 2013
    ...influence complained of.’ Syllabus Point 7, in part, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932).” Syllabus, State v. Gilliam, 169 W.Va. 746, 289 S.E.2d 471 (1982).William C. Forbes, Esq., W. Jesse Forbes, Esq., Forbes Law Offices, PLLC, Charleston, WV, for Petitioner.Patrick Morris......
  • State v. Holland
    • United States
    • West Virginia Supreme Court
    • July 15, 1987
    ...on appeal where it appears that defendant was not injured by the misconduct or influence complained of. See also, State v. Gilliam, 169 W.Va. 746, 289 S.E.2d 471 (1982). We do not think that the trial court in this case abused its discretion in failing to find that the defendant was injured......
  • Haight v. Goin
    • United States
    • West Virginia Supreme Court
    • July 11, 1986
    ...convincing to require a new trial; proof of mere opportunity to influence the jury being insufficient. See also syl., State v. Gilliam, 169 W.Va. 746, 289 S.E.2d 471 (1982). We find no error or abuse of discretion in the trial judge's refusal to declare a mistrial or grant a new trial. Acco......
  • State v. Goff, 14800
    • United States
    • West Virginia Supreme Court
    • March 26, 1982

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