State v. Mayle

• Citation: 357 S.E.2d 219,178 W.Va. 26
• Decision Date: 01 April 1987
• Docket Number: No. 17241,17241
• Parties: STATE of West Virginia v. Wilbert MAYLE
• Court: Supreme Court of West Virginia

Page 219

357 S.E.2d 219

178 W.Va. 26

STATE of West Virginia v. Wilbert MAYLE

No. 17241.

Supreme Court of Appeals of

West Virginia.

April 1, 1987.

Rehearing Denied June 3, 1987.

Syllabus by the Court

1. "A criminal case will not be reversed unless the record shows error committed, prejudicial to the prisoner." Syl. pt. 1, State v. Lane, 44 W.Va. 730, 29 S.E. 1020 (1898).

2. "In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944).

3. A court should not declare a mistrial because a juror was threatened, unless it is apparent that the juror's impartiality has been so affected that he can no longer fairly decide the facts.

4. The statement of a co-conspirator in furtherance of the conspiracy is a hearsay exception.

5. "[T]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt." State v. Williams, 172 W.Va. 295, 305 S.E.2d 251, 267 (1983).

Jerry Weiner, Columbus, Ohio, for appellant.

Charlie Brown, Atty. Gen., Mary Beth Kershner, Asst. Atty. Gen., Charleston, W.Va., for appellee.

BROTHERTON, Justice:

This is an appeal from a judgment of felony murder by the Circuit Court of Cabell County in December, 1982. The jury trial was held in Fayette County, West Virginia, due to a change of venue motion, before Judge Alfred E. Ferguson. We find no error in the proceedings and affirm.

On December 14, 1981, at 1:15 a.m. two men entered a McDonald's restaurant in Chesapeake, Ohio. One was a tall, white man, the other was a shorter, black man. They wore dark blue or black ski masks over their faces. The pair demanded that the employees give them the combination to the safe. The employees did not know the combination, so the robbers took the keys to one of the employee's cars, a 1972 Matador, and left in the stolen car. The car was later found in Huntington, West Virginia, with a tape deck and some tapes missing.

Approximately one-half hour after the Ohio robbery, Officer Byard of the Huntington Police Department observed a possible breaking and entering by two men at a gasoline station. He notified Officer Harman, a few blocks away. Harman indicated over the radio "I've got 'em over here." A few minutes later, Officer Byard heard a gunshot and started running to Harman's aid. He heard more gunshots, and saw two men running west down Jefferson Street in Huntington. Officer Harman had been fatally wounded by several hard blows to the head and five gunshot wounds from his service revolver. Officer Byard observed the men getting into a green Buick and leaving the scene.

One witness, Ted Norman, looked out the window of his home and saw Officer Harman on the ground with a man on top of him trying to take something from the officer. The man raised up and shot Harman several times. Mr. Norman turned on his porch light and clearly saw the man's face at a distance of between eight and ten feet. He later identified the man as Bobby Stacy. Other witnesses saw two men running from the area, one white and the other a shorter, fair-skinned black man.

A short time after the shooting, Officer Leroy Campbell of the Kenova Police Department passed a car driven by a black man travelling west. Officer Campbell turned around and followed the vehicle and then passed it. As he passed it, the driver turned his head toward Campbell. The driver was later identified by Campbell as Wilbert Mayle. At this time the officer learned of the shooting of Officer Harman over his radio. When he received a description of the vehicle and the suspects, he realized that it was the car he had just passed. The officer blocked the Kenova-Catlettsburg bridge on Route 60 leading into Kentucky. The car's occupants obviously saw the roadblock and turned left off Route 60 onto 23rd Street in Kenova. Officer Campbell followed, and found the vehicle abandoned on Sycamore Street, which is a dead-end street by the river.

Kathy Pearson, a resident of Columbus, Ohio, had been a friend of Bobby Stacy for several years and was acquainted with Wilbert Mayle. Pearson was told by Stacy at 6:00 p.m. on the night of the shooting that "he had to go meet Jackie and pick him up and go to the hills and take care of business." Jackie was Wilbert Mayle's nickname. It is undisputed that Stacy and Mayle were good friends and had been for a long time.

The automobile found on Sycamore Street was registered in the name of Bobby Stacy and contained a tape deck and tapes stolen from the Matador in Ohio, a black ski mask, and Officer Harman's gun. Wilbert Mayle's fingerprints were found on the steering wheel. An analysis of hair samples found in two ski masks (the one found in the car and another found near the car) revealed that one mask had hair consistent with Mayle's hair and the other had hair consistent with Bobby Stacy's and Mayle's.

At trial, Mayle's defense witnesses were thoroughly discredited. In particular, Mayle's wife and his brother-in-law both testified that Mayle's hair was short, and he was clean shaven at the time of the robbery. This testimony would have served to rebut the testimony of Officer Campbell, who had testified that the man he identified as Wilbert Mayle had a beard or goatee, a mustache, and "bushy" hair. However, the prosecution introduced a picture taken of Mayle on the day after the murder, cashing a check at Huntington National Bank in Columbus. The picture shows that he had "bushy" hair, a mustache, and a goatee.

At the end of the evidence, the jury found Wilbert Mayle guilty of first degree murder, with a recommendation of mercy. He appeals to this Court, citing numerous errors which we now address.

I.

Several points of error which were raised do not require lengthy discussion.

Mayle argues that a photograph showing the scene where the officer was killed was gruesome and prejudicial. The photograph did not contain any showing of the officer's body, but merely the spot where he had been found and some of his blood. Blood alone does not make a photograph gruesome. See State v. Buck, 170 W.Va. 428, 294 S.E.2d 281, 285 (1982). The photograph was properly admitted.

Another assignment of error is that the defense was limited in its cross-examination of Officer Byard. Byard had allegedly made some statements which were inconsistent with the testimony at Bobby Stacy's trial. The parties approached the bench and the prosecution insisted that a proper foundation should be laid for the impeachment, i.e., showing Byard the statement and allowing him to admit or deny that he made it. This was a problem because the transcript had not yet been typed, so there was no written statement. The judge, therefore, had the trial continue, but in the meantime ordered the court reporter to transcribe the relevant portions of Stacy's trial so that an impeachment could be accomplished. Byard was later recalled as a witness by the defense and was asked about the "inconsistent" testimony. He was allowed to do so with leading questions in a fashion similar to cross-examination. The trial court did not limit the examination. There was no error.

Mr. Mayle claims that his due process rights were violated because more than two years elapsed before his transcript was supplied to him so that he could complete this appeal. Nevertheless, we have allowed him his appeal, and he has shown no prejudice by the delay of two years. "A criminal case will not be reversed unless the record shows error committed, prejudicial to the prisoner." Syl. pt. 1, State v. Lane, 44 W.Va. 730, 29 S.E. 1020 (1898).

II.

Mayle objects to what he claims is an improper voir dire. The voir dire in this case consisted of the twenty prospective jurors being questioned at the same time. The appellant objected to this procedure as prejudicial and asked for permission to voir dire each juror individually. To require this in every case would create a significant burden on the courts and greatly add to the length of criminal trials. "In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944). An individual voir dire is only required when a juror has disclosed a possible area of prejudice. State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70, 72 (1982). No juror disclosed any possible prejudice on the record in this case. There was no abuse of the trial court's discretion in refusing individual voir dire. ¹

III.

Murder trials are often exciting for the jury. This one had more than the usual share of thrills. While the jury was visiting the scene of the murder, a van jumped the curb and apparently deliberately tried to run down several members of the jury. The van did not hit any jurors, but narrowly missed some. Because of this incident, the defense requested a mistrial. The judge later instructed the jury that the van incident had nothing to do with the trial and polled the jury as to whether they could fairly continue. Although at least one juror was reluctant at first, all later agreed that they could fairly continue on the case.

If we were to grant the appellant's request for a mistrial merely because the jury was threatened, it would open the season on juries. An unscrupulous defendant could arrange for a friend to shoot over the jury's head, or drive a car at them, or something similar, and a mistrial would result. Because of this, a court should not declare a mistrial because a juror was threatened, unless it is apparent...