State v. Kilpatrick

• Decision Date: 20 December 1974
• Docket Number: No. 13281,13281
• Citation: 158 W.Va. 289,210 S.E.2d 480
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Norman KILPATRICK.

Page 480

210 S.E.2d 480

158 W.Va. 289

STATE of West Virginia v. Norman KILPATRICK.

No. 13281.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1974.

Syllabus by the Court

1. 'The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court.' State v. Wilson, (207) W.Va. (174) (decided July 23, 1974).

2. When a prospective juror is closely related by consanguinity to a prosecuting witness or to a witness for the prosecution, who has taken an active part in the prosecution or is particularly interested in the result, he should be excluded upon the motion of the adverse party.

3. The removal of a juror upon a challenge for cause, made after the jury is sworn, but prior to taking evidence, rests in the sound discretion of the trial court under the provisions of Code, 1931, 56--6--15.

4. Refusal by a trial court to exclude a juror in a criminal case after challenge for cause is an abuse of discretion where the challenge is made after the jury is sworn but prior to the taking of any evidence, and where it clearly appears that the juror was the father of a prosecution witness whose testimony was crucial to the case and who, by reason of his employment, had an active interest in the outcome.

Timothy N. Barber, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for defendant in error.

SPROUSE, Justice:

In this proceeding upon a writ of error and supersedeas, the defendant, Norman Kilpatrick, seeks reversal of the judgment of the Circuit Court of Kanawha County, which upheld an order of the Intermediate Court of Kanawha County entered upon a jury verdict finding the defendant guilty of a misdemeanor.

The defendant was arrested and subsequently indicted for a violation of Code, 1931, 61--8--16, as amended, which prohibits the abusive use of a telephone. He was alleged to have made certain telephone calls to Robert Haynes in a manner which could 'reasonably be expected to annoy, abuse, torment, harass, embarrass a person, towit: Robert Haynes.' At the conclusion of a lengthy trial, the defendant was found guilty of the charges in the indictment and was assessed a fine of $250 plus costs.

The appellant assigns three errors: (1) That the trial court erred in denying the defendant's motion for a continuance of the trial; (2) that the trial court erred in denying defendant's motion to suppress evidence of telephone calls to the prosecuting witness which were not traceable to the defendant by either mechanical means or voice identification; and (3) that the trial court erred in refusing to exclude a juror for cause after the jury had been sworn but prior to the taking of the testimony.

We have reviewed the record concerning the first two assignments of error and find that the trial court ruled correctly in those instances. Those assignments of error, therefore, are without merit. The trial court erred, however, in refusing to exclude a juror who was the father of a key prosecution witness.

David Ellis, a security representative for the Chesapeake & Potomac Telephone Company, testified concerning the company's tracing system and security measures. His father, also named David Ellis, was a member of the jury. Ellis' testimony was based upon company records concerning the telephone calls made from the defendant's residence to Haynes' residence and concerning certain other telephone calls. He was a key witness for the prosecution. The basis of the defendant's principal assignment of error is that the father was disqualified due to his blood relationship to this key prosecution witness.

Upon voir dire, the panel was asked: '* * * if any members of the panel are officers, stockholders or employees of the Chesapeake and Potomac Telephone Company? Or any immediate members of your family, are they officers, employees, or stockholders of the C & P Telephone Company?' The juror, Ellis, replied thta his son worked for the telephone company, but he did not indicate that he would be a witness. He was questioned individually as follows by the court: 'Would that (employment) influence your thinking on this verdict, should any evidence be presented by the Telephone Company?' Juror Ellis replied: 'No.'

Certain of the jury panel was struck for cause and peremptory challenges were exercised. Juror Ellis was not challenged, and the jury was subsequently sworn.

During a ten-minute recess prior to the opening statements, the juror, David Ellis, for the first time indicated that his son might be a witness in the case. The following appears from the record 'MR. BARBER: Your Honor, Mr. Ellis stated his son might be a witness in this case, and his son has already testified in this case at the preliminary hearing. I would ask Mr. Ellis to come to the bench.

'Thereupon, juror Mr. David Leon Ellis came to the bench, out of the hearing of the other jurors, where the following transpired:

'MR. ELLIS: I do not know a thing about this, your Honor.

'MR. BARBER: You have never discussed this in any fashion whatsoever?

'MR. ELLIS: No, sir.

'MR. BARBER: You are confident you can stand absolutely impartial?

'MR. ELLIS: Yes, sir, I don't know a thing about it, it has not been discussed at all.

'MR. BARBER: All right, Mr. Ellis.

'(Mr. Ellis then returned to the jury box, after which, still out of the hearing of the jury, the following transpired:)

'MR. BARBER: We move that the juror be disqualified, * * * and although he states he can be fair and impartial, I believe the blood relationship of a crucial witness in this case would disqualify this juror, and we challenge for cause that has just been revealed to this Court, by the juror.

'MR. CASEY: The trouble is, we have already taken four strikes apiece.

'THE COURT: Mr. Prosecutor, on voir dire the juror stated he had a son that worked for the telephone company, he has been out here with the rest of the jury, his son's testimony would be taken impartially, he states, and he could adjudicate the matter without any partiality one way or the other.

'I will overrule that.

'(Exception).'

Following the direct examination of the witness, Ellis, counsel for the defendant moved for a mistrial due to the fact that the witness' father was on the jury.

There can be no doubt that the telephone company in the prosecution under review had more than the interest of an impartial bystander. By stipulation of counsel, quoted remarks of a telephone company spokesman were admitted into the record. In referring to prosecution for harassing or abusive telephone calls, the company spokesman said:

'A special office has been set up * * * to deal with the problem. Personnel has been trained in the area of tracing and working to gather evidence.

'We are looking for convictions * * * and we are recruiting the cooperation of victims. The culprit, in many cases, can be found.

'Complaints should be reported to the business office of the telephone company.'

In deciding whether the court erred in not excluding the juror, two factors must be resolved: First, was the witness, David Ellis, in such essential position in relation to the prosecution that his juror-father should have been excluded? Secondly, since objection to the juror, Ellis, was not made until after the jury was sworn--was such objection too late under the rule that a late objection to a juror will not be considered unless the defendant is shown to have suffered injustice by his presence on the jury?

The law is settled that, if a juror is within a prohibited degree of relationship to a prosecuting witness, he should be excluded on motion of the adverse party. See 50 C.J.S. Juries § 218, pp. 956--957, which states:

'* * * A juror is generally held to be incompetent in criminal cases if he is related to a prosecuting witness within the prohibited degree, although it has also been held that the relationship between the juror and the prosecuting witness must be such that it must be reasonably believed that it would influence the juror in reaching a verdict. It has been held that a juror is incompetent if he is related to a person who has voluntarily taken an active part in the prosecution, or is particularly interested in the result, * * *.'

See also 47 Am.Jur.2d, Jury, Section 315, pages 889--90; Annot., 18 A.L.R. 375; Crawley v. State, 151 Ga. 818, 108 S.E.2d 238; State v. Tart, 199 N.C. 699, 155 S.E. 609; State v. Robinson, 111 S.C. 467, 98 S.E. 329.

While it is true that witness Ellis was not technically the prosecuting witness, he was, in another sense even more than a prosecuting witness. His employer was vitally interested in obtaining convictions, and he was the agent of the company specifically employed to assist in that function. At the least, he was obviously 'a person who has voluntarily taken an active part in the prosecution, or is particularly interested in the result.' 50 C.J.S. Juries § 218, pp. 956--957. As socially desirable as such activities on the part of the telephone company may be, the company's attitude reflects its position as being in the nature of a private prosecutor.

In deciding the issue in this case, we must examine the rationale underlying disqualification of jurors who are related to parties or witnesses. Although the Court in State v. Harris, 69 W.Va. 244, 71 S.E. 609, for other reasons upheld the trial court's action in not excusing from the jury a relative of a prosecuting witness, the Court discussed in detail the reasons for such disqualification.

'Relationship is a common-law...