State v. Jeremy S.

Citation243 W.Va. 523,847 S.E.2d 125
Decision Date08 June 2020
Docket NumberNo. 19-0006,19-0006
CourtSupreme Court of West Virginia
Parties STATE of West Virginia, Plaintiff Below, Respondent v. JEREMY S., Defendant Below, Petitioner

Jeremy B. Cooper, Esq., Blackwater Law PLLC, Kingwood, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Caleb A. Ellis, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent.

Armstead, Chief Justice:

Petitioner, Jeremy S.,1 was indicted for incest, sexual assault in the third degree, and sexual abuse by a parent, guardian, custodian or person in a position of trust to a child. He was tried twice in the Circuit Court of Calhoun County. The first trial resulted in a hung jury. The second trial resulted in a conviction on nine counts. Petitioner appeals, arguing (a) that the first trial actually resulted in his acquittal, (b) that the first trial was wrongly continued over his objection, (c) that both trials were tainted by irrelevant, non-probative, and prejudicial evidence, (d) that the second trial was tainted by a biased juror, and (e) that two or more of these errors accumulated to his prejudice.

Based on the record before us, the arguments of the parties, and the applicable law, we find no error; therefore, we affirm.


On August 13, 2013, Corporal J.B. Hunt of the West Virginia State Police received a Child Protective Services ("CPS ") referral about Petitioner's fourteen-year-old daughter. Cpl. Hunt and two CPS workers interviewed the daughter, who reported several instances of sexual abuse by Petitioner. The last instance had happened just two days before, and the daughter said that it happened on or under a sleeping bag and a blanket, both of which she described.2 Cpl. Hunt obtained a warrant that same day and searched Petitioner's house. He recovered a sleeping bag and a blanket and later delivered them to the West Virginia State Police Forensic Laboratory (the "State Police Lab ") for testing. Cpl. Hunt arrested Petitioner on September 2, 2013.

A Calhoun County grand jury indicted Petitioner on May 6, 2014. The indictment charged Petitioner with eight counts, each, of (a) incest, (b) sexual assault in the third degree, and (c) sexual abuse by a parent, guardian, custodian or person in a position of trust to a child for a total of twenty-four counts. Petitioner appeared for arraignment on May 19, 2014, and requested discovery.3 Petitioner (by counsel) advised that he wished to be tried in the same term, so a pretrial hearing was set for June 30, 2014. Trial was set for July 15, 2014.

On June 30, 2014, the State moved to continue the trial because the State had yet to receive the police report. Petitioner objected, and the circuit court denied the State's motion to continue, observing that "[t]he State [wa]s at risk of having cases dismissed[.]" Trial remained set for July 15, 2014.

Three days later, on July 3, 2014, the State provided its first discovery response. This response was supplemented on July 7, 2014, and again on July 9, 2014. The latter supplement included a report from the State Police Lab dated June 25, 2014, which the prosecutor seems to have received by fax on July 8, 2014. According to the report, the State Police Lab found semen and hairs on the blanket. No relevant material was found on the sleeping bag. The report advised that reference specimens should be collected from relevant persons if the State wished to conduct further testing.

The State moved to continue the trial a second time on July 10, 2014. According to the motion, neither Cpl. Hunt nor CPS Worker Loretta Smith, who had interviewed the victim, was available for trial on July 15, 2014. The trooper was scheduled to be on vacation then. The CPS worker had already left the state on her scheduled vacation and would not be home in time to appear.

On July 12, 2014, Petitioner moved to suppress the State's evidence and dismiss the case with prejudice. Petitioner argued that the State's discovery responses were untimely and that he was "substantially prejudiced" by them.

Instead of trying the case on July 15, 2014, the court heard the parties’ motions. The court denied Petitioner's motion to dismiss and granted the State's motion to continue, finding that the State had shown good cause. Trial was rescheduled for September 30, 2014.

On July 15, 2014, the State filed a petition to obtain a DNA sample from Petitioner. The circuit court heard argument on the State's petition two days later and granted the petition over Petitioner's objection. DNA samples were collected from both Petitioner and his daughter, and on September 17, 2014, the State produced a second report from the State Police Lab. This report advised that the blanket recovered from Petitioner's home contained sperm DNA from Petitioner and DNA from the daughter.

The September 30, 2014 trial was continued several times, and on July 29, 2016, Petitioner moved in limine to exclude the State's DNA evidence. Petitioner claimed that the State's DNA analysis was unreliable and could not establish when, where, or how the DNA came to be on the blanket. Accordingly, Petitioner asserted that the probative value of the State's DNA evidence was substantially outweighed by the danger of unfairly prejudicing Petitioner, confusing the issues, and misleading the jury.4

Petitioner's case was eventually set for trial on March 14, 2017, but the circuit court was unable to proceed for lack of jurors. Accordingly, the court heard testimony on Petitioner's motion in limine to exclude the State's DNA evidence.5 Petitioner called Cpl. Hunt to testify about the search for and seizure of the blanket. Petitioner then called his own expert to testify (a) that DNA analysis could not say when or how the DNA was deposited and (b) that the DNA on the blanket could have come from other objects in the laundry room. After hearing Petitioner's evidence, however, the circuit court did not rule on his motion.

The court withheld its ruling until November 28, 2017, on the morning of the first day of Petitioner's first trial.6 At that point, the circuit court denied the motion to exclude the State's DNA evidence, stating that "the jury can look at that and put whatever weight the jury deems appropriate on that evidence." As a result, the jury heard testimony regarding the blanket and the State's DNA analysis at both trials. Jurors also heard testimony from Petitioner's expert witness.

When the State rested during Petitioner's first trial, Petitioner moved for acquittal on all counts. The State agreed that there was no evidence on 15 of the 24 counts, so those counts were dismissed, and the case was submitted to the jury on the remaining nine counts.7 After several hours of deliberation, the jury advised by note that it could not reach a unanimous decision. In response, the court called the jury back to the courtroom and exhorted jurors to keep an open mind and to attempt to reach a unanimous verdict, if possible, without sacrificing their individual convictions.8 Then the court instructed the jury to try again for another half hour.

An hour later, the jury submitted a note requesting "a better explanation" of the instruction that they were to acquit if the evidence permitted opposing conclusions of both guilt and innocence. The court replied with a handwritten note—approved by both counsel—stating, "If the jury feels two conclusions (guilty and not guilty) are possible based on all the evidence, the jury should adopt the conclusion of innocence."

The jury resumed deliberations and minutes later reached a verdict of not guilty on all remaining counts. After the verdict was read, the following colloquy occurred:

So says each member of the jury, is that your verdict?
(Affirmative responses.)
THE COURT: Is there a request to poll the jury?
THE COURT: You heard the verdict which your foreman signed and which the clerk read. When your name is called, you will answer and signify whether the verdict was then and is now your own true verdict.
THE CLERK: Marisha Collins, is that your verdict?
JUROR: I guess it has to be by the law.
THE COURT: Go through the list.
[THE CLERK/THE COURT]: [Juror], is that your verdict?
THE CLERK: Ryan Slider, is that your verdict?
JUROR: By law, I guess.
THE COURT: Ms. Collins, you expressed some hesitation as to whether or not that was your verdict. There were several questions9 back to me to further explain the law. After you heard my—what I'm going to say are written explanations as to the law, was—is that your verdict?
JUROR: If it has to be.
THE COURT: It doesn't have to be.
JUROR: Then no.
THE COURT: Okay. Mr. Slider, if I were to ask you the same question I had just asked Ms. Collins, you—there were several questions made during the course of deliberations. I submitted handwritten answers. Is your verdict a verdict of not guilty on all charges?
JUROR: No, Sir.

(Footnote added.)

After hearing this, the court sent the jury out to determine whether there was any point in allowing more time to deliberate on their verdict. After a brief recess, the jury advised the court that their minds were made up; they were deadlocked. The court asked counsel, "Is there a motion? Or do you want the Court to make a finding on its own?" Petitioner's attorney moved for a mistrial, which was granted.

Petitioner's second trial began on August 14, 2018. He was tried on nine counts, in accordance with the evidence submitted at the first trial and the court's "judgment of acquittal on the other [15] counts." During voir dire, a juror indicated that she knew the victim and the two CPS workers and that she had a business or social relationship with the prosecutor. She maintained, however, that these relationships would not affect her ability to be fair.

Subsequently, the court conducted an individual voir dire of the same...

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6 cases
  • W.Va. State Police v. J.H., 19-0741
    • United States
    • Supreme Court of West Virginia
    • March 26, 2021
    ...or public reputation of the judicial proceedings. Syl. Pt. 7, [State v.] Miller, 194 W. Va. 3, 459 S.E.2d 114 [(1995)]." State v. Jeremy S., 243 W. Va. 523, —, 847 S.E.2d 125, 132 (2020). The order denying, in part, the motion to dismiss at issue makes absolutely no mention that the circuit......
  • W. Va. State Police v. J.H.
    • United States
    • Supreme Court of West Virginia
    • March 29, 2021
    ...of the judicial proceedings. Syl. Pt. 7, [ State v. ] Miller , 194 W. Va. 3, 459 S.E.2d 114 [(1995)]." State v. Jeremy S. , 243 W. Va. 523, 530, 847 S.E.2d 125, 132 (2020).The order denying, in part, the motion to dismiss at issue makes absolutely no mention that the circuit court considere......
  • Roof Serv. of Bridgeport, Inc. v. Trent
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    • Supreme Court of West Virginia
    • November 20, 2020
    ...and that seriously affects the fairness, integrity, or public reputation of the judicial proceedings." State v. Jeremy S. , 243 W. Va. 523, ––––, 847 S.E.2d 125, 132 (2020).In my view, the circuit court's failure to issue an interrogatory regarding Mr. Wilfong's alleged independent contract......
  • State ex rel. Smith v. Olejasz
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    • November 8, 2021
    ...caused any substantial prejudice to the petitioner." State v. McCartney, 228 W.Va. 315, 324, 719 S.E.2d 785, 794 (2011). Jeremy S., 243 W.Va. at 533, 847 S.E.2d at 135. These two critical elements - the State's lack of and the lack of substantial prejudice to the defendant - are met in this......
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