State v. Hardway
| Decision Date | 16 June 1989 |
| Docket Number | No. 18131,18131 |
| Citation | 182 W.Va. 1,385 S.E.2d 62 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Mary M. HARDWAY. |
Theodore R. Dues, Jr., Charleston, for Hardway.
Edward L. Bullman, Asst. Atty. Gen., Charleston, for State.
1. "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." Syl. pt. 5, State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973).
2. "As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
3. "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, 172 W.Va. 817, 310 S.E.2d 883 (1983).
4. Syl. pt. 8, State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989).
5. "The obligation of police to warn a suspect of both his right to counsel and his right against self-incrimination applies only to custodial or other settings where there is a possibility of coercion." Syl. pt. 2, State v. Andriotto, 167 W.Va. 501, 280 S.E.2d 131 (1981).
6. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).
7. "It is ordinarily within the discretion of the trial court to permit or to refuse to permit experiments or demonstrations to be conducted before the jury, either in or out of the court room, and such discretion will not be interfered with unless it is apparent that it has been abused." Syl. pt. 5, State v. Taft, 144 W.Va. 704, 110 S.E.2d 727 (1959).
8. It is not error for a trial court, in a homicide case, to allow the State to conduct a demonstration in the presence of the jury which re-creates the scene of the homicide by arranging articles in substantially the same position as they were at the time of the homicide, if the demonstration allows the jury to more intelligently consider the State's theory of the case or to rebut the defendant's theory of the case and if the probative value of such demonstration is not substantially outweighed by the danger of unfair prejudice.
9. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl. pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
10. "One who charges on appeal that his trial counsel was ineffective and that such resulted in his conviction, must prove the allegation by a preponderance of the evidence." Syl. pt. 22, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
11. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syl. pt. 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).
This case is before the Court upon the appeal of Mary M. Hardway. The appellant was convicted of first degree murder in the Circuit Court of Clay County. We have reviewed the petition for appeal, all matters of record, and briefs of the parties. We are of the opinion that this case should be affirmed.
The appellant's husband, Robert Hardway, died of a gunshot wound in the upper portion of his back on April 27, 1985. A rifle maintained in the Hardway residence was the apparent weapon which caused the victim's death. At the time of the shooting, only the appellant and her husband were known to be in their residence.
The appellant contends that the rifle accidentally discharged after falling from where it rested, leaned against a dresser in the victim's bedroom, where the appellant claims to have seen it shortly before the victim went to bed. The appellant also contends that she was asleep when the victim was shot.
The State contends that during the early morning hours of April 27, 1985, the appellant waited for the victim to fall asleep, then went into the kitchen, put on a pair of latex gloves, took a rifle from the gun cabinet, went into the victim's bedroom, and shot the victim once, as he lay asleep. The State proved at trial that the rifle could not have discharged accidentally, based upon the position of where the appellant claims it rested and the position of the victim's body when the wound was incurred. The State also proved that prints matching the design of the latex gloves were found on the rifle.
The appellant was convicted of first degree murder with a recommendation of mercy in a trial by jury in the Circuit Court of Clay County.
The appellant focuses upon three primary areas of concern: the composition of the jury; the failure of the trial judge to suppress certain statements and information obtained therefrom; and a demonstration by the State on its theory of how the shooting occurred. In regard to the latter area, counsel for the appellant in this appeal states that trial counsel was ineffective because he did not adequately prepare to rebut the State's evidence by obtaining experts. The appellant also asserts that the trial judge erred by not giving instructions on lesser included offenses.
The appellant contends that the circuit court committed reversible error by not sustaining her challenge for cause of a potential juror who was previously employed by the Department of Public Safety with a specialty in latent fingerprints.
The potential juror was an employee of the Department of Public Safety seven years prior to the trial of this case and worked six years as a latent fingerprint examiner. During voir dire, this potential juror made a statement indicating that she would apply her own standards to the evidence to be introduced at trial. Moreover, the appellant maintains that this potential juror's association with a witness for the Department of Public Safety gave rise to removing her for cause.
On the following day, during voir dire, this potential juror was again questioned about her statements of the previous day. She clarified her remarks, stating that she would apply the same standard to the evidence presented, whether it would be presented by a member of the Department of Public Safety or not.
The appellant removed this potential juror from the jury panel by using a peremptory strike.
In syllabus point 5 of State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973), this Court held that "[i]n 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." We also held that "when 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." Id. 157 W.Va. at 219, 200 S.E.2d at 866. Furthermore, "where the trial court is in doubt, the doubt must be resolved in favor of the defendant's challenge[.]" Id. 157 W.-Va. at 219-200, 200 S.E.2d at 866.
Although the appellant assigns as error the inclusion of the former latent fingerprint examiner as a potential juror, it is clear that this assignment of error was not preserved at trial. The following exchange occurred:
THE COURT: And do you still challenge her for cause on the issue of not basing her verdict on the evidence and instead relying on her expertise?
MR. COOPER [defense counsel]: No, sir.
In syllabus point 17 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), this Court stated:
As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears...
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...is a possibility of coercion.’ Syl. pt. 2, State v. Andriotto , 167 W. Va. 501, 280 S.E.2d 131 (1981)." Syl. pt. 5, State v. Hardway , 182 W. Va. 1, 385 S.E.2d 62 (1989). See also State ex rel. DeChristopher v. Gaujot , 244 W. Va. 631, 640, 856 S.E.2d 223, 232 (2021) ("[A] police officer's ......
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