State v. Helmick

• Decision Date: 19 January 1982
• Docket Number: No. 14798,14798
• Citation: 286 S.E.2d 245,169 W.Va. 94
• Parties: STATE of West Virginia v. David HELMICK.
• Court: West Virginia Supreme Court

Page 245

286 S.E.2d 245

169 W.Va. 94

STATE of West Virginia v. David HELMICK.

No. 14798.

Supreme Court of Appeals of West Virginia.

Jan. 19, 1982.

Syllabus by the Court

1. "A trial court must inquire beyond a simple and direct questioning of a juror as to whether he can decide a case fairly and impartially after having read news articles related to the trial of a case. Specific questions should be asked in order to determine whether a juror, even without his own knowledge, may be biased or prejudiced." Syllabus Point 6, State v. Williams, W.Va., 230 S.E.2d 742 (1976).

2. "Unless there are compelling circumstances which dictate to the contrary, a criminal defendant, upon proper motion, is entitled, for the purpose of cross-examination, to have any written statements in the State's possession made by a prosecution witness who has testified against the defendant; furthermore, the defendant must be given reasonable opportunity to study the statements and prepare cross-examination." Syllabus Point 3, State v. Sette, W.Va., 242 S.E.2d 464 (1978).

3. Courts are required to provide for the reporting of all proceedings in the criminal trial; where the defendant can demonstrate that some error or prejudice has resulted and that this is directly related to the lack of a portion of the record, reversal will result.

4. "It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." Syllabus Point 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

Steptoe & Johnson, Irene M. Keeley and Herbert G. Underwood, Clarksburg, for appellant.

Chauncey H. Browning, Atty. Gen. and Ronald A. Shipley, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, David Helmick, appeals from the final order of the Circuit Court of Lewis County which adjudged him guilty, upon a jury verdict, of murder in the first degree with a recommendation of mercy. In accordance with W.Va.Code § 62-3-15 (1977 Replacement Vol.), the court sentenced the appellant to confinement in the penitentiary for life with the qualification that the appellant is eligible for parole after having served ten years. The appellant is confined at Moundsville.

The appellant's assignments of error are that the trial court erred: by restricting the appellant's voir dire of prospective jurors; by refusing to inquire regarding their exposure to prejudicial press coverage; by refusing to make available to defendant for review on cross-examination certain reports and written statements which had been used by a State witness to refresh his recollection prior to taking the stand; by giving of certain State instructions and in the refusal to give instructions offered by the defendant; by failing to record counsel's The appellant is alleged to have shot and killed the deceased while burglarizing her home. He and two companions were alleged to have been in the process of burglarizing the deceased's home when she arrived there unexpectedly. The appellant allegedly shot her at close range with a shotgun. The record contains no pre-trial procedural abnormalities, and this Court will therefore discuss the assignments of error outlined above.

closing arguments and in overruling certain objections to the prosecutor's remarks during these arguments; and, finally, the court erred by committing numerous errors the cumulative effect of which prevented the defendant from receiving a fair trial. We have carefully considered all of the errors alleged by the appellant, and we hold that for the reasons which will be stated in the following opinion the appellant's conviction was invalid and must be reversed.

I

The appellant's first assignment of error is that the trial court erred by restricting his voir dire and by sustaining the State's objections to specific questions proffered by the defense which were designed to determine whether a juror might be prejudiced or biased. Specifically, the appellant appears to be most concerned about the seating of one juror who indicated that she knew the prosecuting attorney because of a casual acquaintance with his mother and because she went to the same church as he did. This juror also stated that her acquaintance with the prosecutor would not influence her decision at the trial.

In its seminal decision in State v. Pendry, W.Va., 227 S.E.2d 210 (1976), this Court held that insufficient or improper voir dire constitutes grounds for granting a new trial. In Pendry, the defense unsuccessfully challenged four jurors for cause, then asked leave of the court to question each of them in chambers to explore certain matters disclosed on voir dire. Instead, the court addressed a general inquiry to the whole panel. This Court, on appeal, noted:

That procedure, although unobjectionable, may not have been as desirable as allowing a procedure which would have permitted possible matters of bias or prejudice to be more fully explored so that there could have been no question of lack of qualification on the part of any juror and so that peremptory challenges might have been more intelligently made. 227 S.E.2d at 217.

Accordingly, under the standard elucidated in Pendry, defense counsel is expected to engage in "meaningful" voir dire and, in order to give content to that standard, may ask specific questions designed to determine whether a juror, even without his knowledge, may be biased or prejudiced. Id.

Thereafter, in State v. Pratt, W.Va., 244 S.E.2d 227 (1978), this Court fully examined the principles underlying voir dire examination previously enunciated both in Pendry and its progenitor, W. Va. Human Rights Commission v. Tenpin Lounge, Inc., W.Va., 211 S.E.2d 349 (1975), and held that it is an abuse of discretion and reversible error for a trial court to refuse to question, individually, those jurors who disclose a relationship or close association with police officers. 244 S.E.2d at 232.

In the instant case, defense counsel moved the trial court for individual and separate voir dire in compliance with Pendry's and Pratt's dictates. The court granted the motion but apparently determined that it was not required to allow defense counsel the opportunity to develop evidence of prejudice as it became apparent during the selection process. As a result, the court sustained the State's objections to numerous of defense counsel's questions and, in particular, refused to allow defense counsel to delve into the extent of the acquaintance of one juror, Jacquline M. Thomas, with the prosecutor.

The case which comes closest to the action at hand is State v. Payne, W.Va., 280 S.E.2d 72, 76 (1981), where this Court held that a juror should have been excluded where it was "revealed that one juror was a close friend of the special prosecutor and his wife and that the juror's husband was the The appellant alleges that the trial court committed error in refusing to separately inquire of the jurors concerning their exposure to highly inflammatory extrajudicial newspaper and television coverage during the trial. In Syllabus Point 6 of State v. Williams, W.Va., 230 S.E.2d 742 (1976), this Court stated:

                Democratic nominee for Sheriff of Mercer County."   This decision was based in part on State v. West, 157 W.Va. 209, 219, 200 S.E.2d 859, 866 (1973), where this Court said "when the defendant can demonstrate even a tenuous relationship between a prospective juror and any prosecutorial ... arm of ... government, defendant's challenge for cause should be sustained by the court."   Should this situation arise again on retrial, the court below should learn from the teachings of these cases
                

A trial court must inquire beyond a simple and direct questioning of a juror as to whether he can decide a case fairly and impartially after having read news articles related to the trial of a case. Specific questions should be asked in order to determine whether a juror, even without his own knowledge, may be biased or prejudiced.

The newspaper stories in this case consisted of reports which listed some of the materials stolen from the decedent's home which were excluded from evidence. Local cable television news commentary concerning the trial was also objected to. While it is difficult to determine from a record which does not contain any of the news material which was objected to, and while decisions like this are within the discretion of the trial court, such discretion must be shaped by the holdings of this Court, and in this case do not appear to have been done so. Once again, where there is any possibility of prejudice, a hearing should be conducted.

II

The appellant's next assignment of error is that the trial court erred by refusing to allow the defendant to inspect, for the purposes of cross-examination, notes or written statements previously used by a witness to refresh his recollection.

In State v. Dudick, W.Va., 213 S.E.2d 458 (1975), this Court incorporated the Jencks rule ¹ of liberal discovery in criminal cases into the common law of West Virginia. Dudick's liberal policy was reiterated and extended even further in Syllabus Point 3 of State v. Sette, W.Va., 242 S.E.2d 464 (1978), where this Court held that:

Unless there are compelling circumstances which dictate to the contrary, a criminal defendant, upon proper motion, is entitled, for the purpose of cross-examination, to have any written statements in the State's possession made by a prosecution witness who has testified against the defendant; furthermore, the defendant must be given a reasonable opportunity to study the statements and prepare cross-examination.

In the instant case, the court refused to grant defense counsel's request to review notes or statements clearly within the Sette rule. The State's witness was the chief investigating officer of the murder for which the petitioner was tried and convicted. Although this witness admitted that for purposes of refreshing his recollection he had...