State v. Keaton

• Decision Date: 17 June 2004
• Docket Number: No. 31575.,31575.
• Citation: 215 W.Va. 376,599 S.E.2d 799
• Parties: STATE of West Virginia Plaintiff Below, Appellee v. Housein B. KEATON, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

599 S.E.2d 799

215 W.Va. 376

STATE of West Virginia Plaintiff Below, Appellee v. Housein B. KEATON, Defendant Below, Appellant.

No. 31575.

Supreme Court of Appeals of West Virginia.

Submitted March 31, 2004.

Decided June 17, 2004.

Concurring Opinion of Justice Davis June 18, 2004.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, for Appellee.

Jay Craig, Public Defender Corporation, Charleston, for Appellant.

STARCHER, J.:

In April of 2003 the appellant, Housein B. Keaton, was convicted of malicious wounding in the Circuit Court of Kanawha County. He appeals his conviction, asserting that a comment made by the trial judge when speaking with a juror, just before the jury began its deliberations, created such a possibility of unfair prejudice against the appellant by one or more jurors that the appellant's conviction may not stand. We reverse the appellant's conviction and remand the case for a new trial.

I. Facts & Background

The appellant's trial began on a Monday. The trial judge, with the consent of the appellant and the prosecution, did not seat an alternate juror. At voir dire, one juror told the judge that the juror had a previously scheduled medical appointment for a surgical tooth extraction on the coming Wednesday at 12:00 noon.

The judge told the juror that the appellant's trial "should be through before then" and it appears that all parties agreed with this assessment. However, on Wednesday morning, it became clear that the presentation of evidence would not conclude until mid-morning, meaning that the jury instructions and closing arguments would go on beyond noon.

Anticipating such a possible problem, the appellant's counsel had told the trial judge on Tuesday that he, appellant's counsel, would probably agree to the case going to a jury of eleven jurors. On Wednesday morning, however, the appellant, after having been advised by the judge outside of the presence of the jury of his constitutional right to a twelve-person jury, told the judge that he wanted to exercise that right. This decision by the appellant left the trial court with two options. One option was to excuse the jury after the evidence was completed, and have the jury return on Friday — after the juror had sufficiently recovered from the surgery — for instructions, closing arguments, and to begin deliberating. The other option was to see whether the juror could reschedule the surgery.

At this juncture, the judge had a colloquy with the appellant and his counsel. Then the judge had a conversation with the juror at which neither the appellant or his counsel were present. The conversation with the juror took place, according to the transcript, "in the jury room." It is in this conversation with the juror that the judge made the remarks that the appellant assigns as error.¹ The entire exchange between the judge, the appellant's counsel, the appellant, and the juror went as follows:

THE COURT: Okay. Mr. Keaton, you understand you're entitled to a trial of twelve impartial jurors, and a verdict of guilt must be unanimous. And you have to have twelve people finding you guilty before you can be found guilty. And the proof, the degree of proof is, of course, beyond a reasonable doubt. You have the constitutional right to demand that. In the event, as we only have eleven jurors, you may waive that constitutional right and agree to have eleven jurors deliberate and arrive at a verdict. But the Court can't force you to do that. And your lawyer can't force you, and the State can't force you. That is in your hands.

And I would ask you, have you discussed this with your lawyer?

THE DEFENDANT: Yes.

THE COURT: And what, what can we do, if, for example, you do not agree, what we will do is continue the trial of this case for a day or two or three so that we can have the entire jury here, so they can hear the arguments.

MR. DICKINSON: That's what he'd rather do. Your Honor. That's what he rather do.

THE COURT: Pardon me?

MR. DICKINSON [defense counsel]: That's what he would rather do.

THE COURT: What's that?

MR. DICKINSON: Wait until Friday morning.

THE COURT: You talk to him. Let me ask you — all this, do you have any objection if I were to make an inquiry of that juror with the court reporter and bailiff present, as to what, whether or not she can postpone her surgery for a day or —

MR. DICKINSON: No, no, I don't have any objection.

THE COURT: Do you have any objection, Mr. Keaton?

MR. KEATON: I don't understand.

THE COURT: Pardon me.

WHEREUPON, counsel for the Defendant, Mr. Dickinson and the Defendant have an off-the-record conference.

MR. DICKINSON: No. We have no objection to doing that.

THE COURT: All right. Will the court reporter and the bailiff join me in the jury room?

WHEREUPON, The Court, court reporter and bailiff adjourned to the jury room, after which the following proceedings were had in the jury room:

THE COURT: Ms. * * *, we thought we would be through yesterday, we're not. And the Defendant is entitled to a 12-man jury. And we had anticipated that if something like this came up they would go along with eleven. But I think the Defendant is pressing, you know, he wants a 12-man jury. Now, we can do one of several things: I can continue the trial of this case until, say, Friday. Give you time to recover from any surgery you have and come on in Friday morning and have you hear my instructions and argument of counsel and you-all deliberate. Or you can — we can come in tomorrow if you think you're up to it tomorrow. Or you can check with your doctor and see if he can do the surgery tomorrow rather than today.

I don't know how painful that is.

JUROR: See, I don't know if they will be able to schedule because it was, like, — I mean, it's been a while. You know, what I'm saying?

THE COURT: Uh-huh. Well, first, let me ask you this, is the pain so unbearable that you cannot postpone?

JUROR: No, I can postpone it.

THE COURT: Would you, you can use this phone or go outside and talk to his secretary or whoever does his scheduling and tell her what the problem is and see if you can reschedule it.

JUROR: Okay. Let me see what they say.

THE COURT: Do you want privacy, here, on your phone call? Do you want us to leave?

JUROR: It doesn't matter. I can call. I have to give a call to the person who drove me down here because I'm unable to drive home after sedation. So I have to get a hold of them, also.

THE COURT: Okay.

JUROR: So, it will be all right.

WHEREUPON, this concludes the on-the-record conference held in the jury room.

(Emphasis added.)

The juror then called the juror's doctor and was able to postpone the appointment. Thereafter, the jury deliberated, and the appellant was convicted.

The appellant's counsel learned of the exact words of the conversation that the judge had with the juror two months after the trial ended, when the appellant's counsel was reviewing the trial transcript to prepare an appeal of the appellant's conviction. The appellant's counsel did not make any motions to the trial court after learning of the substance of the conversation — instead raising the issue of the conversation for the first time on appeal.

II. Standard of Review

There was no post-trial objection or motion made before the trial court regarding the judge's remarks, so our review is de novo, to determine if "plain error" occurred. Syllabus Point 4 of State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988), states, in pertinent part:

The plain error doctrine ... enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.

(Emphasis added.) As we discuss in Part III. infra, we also apply to the alleged error the standard of "harmless beyond a reasonable doubt."

III. Discussion

The appellant first argues that he did not personally agree to the trial judge speaking with the juror outside of the defendant's presence — and that therefore the judge's ex parte contact with the juror was in itself erroneous.

This Court has stated that "[w]aiver of a defendant's fundamental and constitutional right to be present at every stage of the proceeding may be accomplished[, but i]t must be achieved... by the defendant himself in the form of a knowing and intelligent waiver." State v. Hicks, 198 W.Va. 656, 663, 482 S.E.2d 641, 648 (1996) (emphasis added).

The record shows that the appellant's counsel, after speaking with the appellant about the judge's suggestion, immediately said to the judge, "We have no objection to doing that." (Emphasis added.) Was this a waiver "by the [appellant] himself"? Id. We conclude that it was.

It would have been better, perhaps, for the trial court to have asked for an "out-loud" statement by the appellant, instead of relying on the appellant's counsel's statement. But the context in which the appellant's counsel's statement to the judge occurred demonstrates to our satisfaction that the appellant consulted with his counsel, and then allowed his counsel to state that the appellant personally agreed to the trial judge speaking with the juror without the appellant being present.²

The appellant's argument that the judge's ex parte conversation with the juror was itself erroneous is therefore not persuasive.

The appellant next argues that the circuit court's remarks in the conversation were, categorically, either per se or presumptively unfairly prejudicial to the appellant — simply because they were comments about the appellant's exercise of a constitutional right. The appellant also argues that without applying any categorical presumption, the judge's remarks nevertheless created a real possibility of unfair prejudice by...