State v. Johnston

• Decision Date: 24 May 2002
• Docket Number: No. 30040.,30040.
• Citation: 211 W.Va. 293,565 S.E.2d 415
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Gary J. JOHNSTON, Defendant Below, Appellant.

565 S.E.2d 415

211 W.Va. 293

STATE of West Virginia, Plaintiff Below, Appellee, v. Gary J. JOHNSTON, Defendant Below, Appellant.

No. 30040.

Supreme Court of Appeals of West Virginia.

Submitted April 3, 2002.

Decided May 24, 2002.

Jerald E. Jones, West & Jones, Clarksburg, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Stephen Stockton, Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.

Gary J. Johnston (hereinafter referred to as "Mr. Johnston"), appellant/defendant below, filed this appeal following his trial in the Circuit Court of Harrison County on charges of fleeing from a police officer and driving a motor vehicle while his license was revoked.¹ Mr. Johnston was convicted of both offenses. In this appeal, Mr. Johnston contends that the trial court committed reversible error by refusing to strike a juror for cause during jury selection.² Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Harrison County.

I. FACTUAL AND PROCEDURAL HISTORY

On December 19, 1998, a police officer for the Town of Anmoore attempted to stop a speeding vehicle driven by Mr. Johnston.³ Mr. Johnston refused to stop until he was outside the town limits of Anmoore. Once Mr. Johnston stopped his vehicle, he was placed under arrest. He was charged with fleeing from a police officer, driving a motor vehicle while his license was revoked, and driving under the influence of alcohol.

In September, 1999, a Harrison County grand jury returned a three count indictment against Mr. Johnston, charging him with fleeing from a police officer while driving under the influence of alcohol, driving a motor vehicle while his license was revoked for driving under the influence of alcohol, and third offense driving under the influence of alcohol. The case went to trial on November 13, 2000. During jury selection, Mr. Johnston motioned the court to excuse, for cause, a juror who had articulated a prejudice against people who drink. The trial judge denied the motion. Consequently, Mr. Johnston used a peremptory strike to remove the juror.

The jury returned a verdict acquitting Mr. Johnston of driving under the influence of alcohol. However, it found him guilty of fleeing from a police officer and driving a motor vehicle while his license was revoked. The trial judge imposed concurrent sentences of twelve months in jail on the charge of fleeing from a police officer and six months in jail on the charge of driving a motor vehicle while his license was revoked. It is from these sentences that Mr. Johnston now appeals.

II. STANDARD OF REVIEW

"We review the trial court's decision on [striking a juror] under an abuse of discretion standard." State v. Wade, 200 W.Va. 637, 654, 490 S.E.2d 724, 741 (1997). See also State v. Hulbert, 209 W.Va. 217, 220, 544 S.E.2d 919, 922 (2001) ("We review the issue concerning the lower court's failure to strike for cause [a] juror ... under an abuse of discretion standard."); State v. Miller, 197 W.Va. 588, 605, 476 S.E.2d 535, 552 (1996) ("The trial court has broad discretion in determining whether to strike jurors for cause, and we will reverse only where actual prejudice is demonstrated."). This Court has also held that "the defendant bears the burden of showing that [a] prospective juror[] [was] actually biased or otherwise disqualified and that the trial court abused its discretion or committed manifest error when it failed to excuse [the juror] for cause." State v. Phillips, 194 W.Va. 569, 589-590, 461 S.E.2d 75, 95-96 (1995).

III. DISCUSSION

Mr. Johnston contends that the trial court should have struck a juror for cause, because of statements made by the juror regarding her bias toward people who drink alcohol. In syllabus point 1 of State v. Bennett, 181 W.Va. 269, 382 S.E.2d 322 (1989) we held, in part, that "[w]hen individual voir dire reveals that a prospective juror feels prejudice against the defendant which the juror admits would make it difficult for him to be fair ... the defendant's motion to strike the juror from the panel for cause should ordinarily be granted." We have also held that "[a]ny doubt the court might have regarding the impartiality of a juror must be resolved in favor of the party seeking to strike the potential juror." Davis v. Wang, 184 W.Va. 222, 226, 400 S.E.2d 230, 234 (1990). In the instant case, this Court has serious doubts about the juror's ability to be fair and impartial.

The juror in this case expressed her bias in response to a question by the prosecutor. The prosecutor asked the jury panel if any juror had any reason which would preclude them from fairly and impartially deciding the case. The following exchange occurred between the trial judge and the juror in response to the prosecutor's question:

THE COURT: You didn't have to, but you looked a little hesitant about whether to speak out or not. You are Ms. Robertson?

JUROR: Right. I just feel real strongly about not drinking and the other case that I was called for was, just to let you know I would have trouble making a judgement on someone who had been drinking and I just it is against my religion to drink and I am not sure I could pass a good judgement. The fact that I really don't know and I have never drank and I don't know how a drink affects you or anything like that.

THE COURT: Okay and certainly I understand that, but under these circumstances would you be able and I am not asking you to disavow I guess your beliefs, but would you be able to sit this aside for the purposes of this trial and could you base your decision solely on the evidence that you would hear and see and the instructions of the court and base your decision solely on that?

JUROR: I would do my best.

THE COURT: Sure and I understand. I mean if all the evidence indicated, if the State after presenting all of its evidence and that is all that you had failed to meet its burden beyond a reasonable doubt, if there just wasn't enough evidence to convict him under what I tell you the law is, would you be able to find Mr. Johnston not guilty.

JUROR: I think I could.

THE COURT: I mean is there any doubt in your mind? The fact that I mean alcohol was involved period whether you could do that or not? I mean I know these are tough questions, but —.

JUROR: Like I said I don't really know how alcohol affects you. I don't know whether I know if somebody that drinks that affects your judgment and things and I don't know what I am trying to say.

THE COURT: And you are doing — you have explained yourself well enough, I mean I guess I am just probing and making you think deep down again in your heart of hearts whether if the evidence was insufficient, you could find Mr. Johnston not guilty or whether the fact — could you do that?

JUROR: Like I could you ___ believe is my judgement?

THE COURT: What I would tell you the law is. What the legal standard is. It may not be the moral standard, you know, that you are used to applying, but if I share with you, if I instruct you on what the legal standard is, I mean could you follow that?

JUROR: Yes, I could do that.

THE COURT: And you may believe that it ought to be something else or you know, from a religious or moral standpoint that it would even be a higher standard. Let me ask you then, the fact, if you could apply the law to the facts as you determine those facts to be, again if the evidence was insufficient, can you find Mr. Johnston not guilty?

JUROR: Yes.

THE COURT: Okay, even conversely on the other side, if the evidence was such that you — the State has met its burden beyond a reasonable doubt, could you convict him as well?

JUROR: Yes, I could.

THE COURT: Let me ask you, the fact that alcohol would be involved in any shape or form, I mean does that automatically make Mr. Johnston guilty in your mind?

JUROR: In one sense, yeah, in some respects.

THE COURT: Okay, but in a legal sense, I mean let me break it down and certainly if you need to explain, you can, but in a legal sense if the instructions of the court indicated

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