State v. McClure

• Decision Date: 19 December 1990
• Docket Number: No. 19436,19436
• Citation: 400 S.E.2d 853,184 W.Va. 418
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. James McCLURE.

Page 853

400 S.E.2d 853

184 W.Va. 418

STATE of West Virginia v. James McCLURE.

No. 19436.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1990.

Syllabus by the Court

1. " 'The object of the law is, in all cases in which juries are impaneled to try the issue, to secure men for that responsible duty whose minds are wholly free from bias or prejudice either for or against the accused....' Syl. pt. 1, in part, State v. Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900)." Syllabus point 3, State v. Crouch, 178 W.Va. 221, 358 S.E.2d 782 (1987).

2. "A prospective juror's consanguineal, marital or social relationship with an employee of a law enforcement agency does not operate as a per se disqualification for cause in a criminal case unless the law enforcement official is actively involved in the prosecution of the case. After establishing that such a relationship exists, a party has a right to obtain individual voir dire of the challenged juror to determine possible prejudice or bias arising from the relationship." Syllabus point 6 of State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983).

3. "If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal." Syllabus point 1 of Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980).

4. " 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, W.Va. , 285 S.E.2d 432 (1981)." Syllabus point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

5. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syllabus point 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

Joseph A. Colosi, Welch, for James McClure.

Roger W. Tompkins, Atty. Gen., Thomas J. Gillooly, Sr. Deputy Atty. Gen., Charleston, for State.

PER CURIAM:

The defendant in this proceeding, James McClure, was convicted on three counts of first-degree sexual assault and sentenced to three concurrent terms of not less than fifteen nor more than twenty-five years in the State penitentiary. On appeal, he claims that the trial court improperly impaneled the jury and erred in failing to disqualify a prospective juror for cause. He also claims that the trial court erred in making evidentiary rulings, in refusing to give his proffered instruction on sexual misconduct, and in failing to declare a mistrial because of emotional displays of the prosecutrix before the jury. This Court has reviewed the defendant's assertions and can find no reversible error. The judgment of the circuit court is, therefore, affirmed.

The evidence adduced during the defendant's trial indicated that around Christmas, 1986, C.D., a ten-year-old friend of the defendant's daughter, Amy McClure, spent the night at the defendant's house. According to C.D., during that night the defendant encouraged her to engage in a sexual act with him. C.D. told no one about what had happened, and approximately two weeks later she revisited the defendant's house. During that visit, according to her story, the defendant engaged in sex with her in his truck. Some months later, according to C.D., the defendant again engaged in sexual activity with her while she was helping him and his young daughter clean his house.

During the October, 1987, term of the Circuit Court of McDowell County, a grand jury indicted the defendant on six counts of first-degree sexual assault for the acts enumerated, as well as for other acts which C.D. claimed the defendant had committed.

Trial was scheduled for July 21, 1988, and on that day the trial court allowed the parties to engage in voir dire examination of the Veniremen. The defendant, however, was not prepared for trial because of the absence of a material witness, and the trial was reset for August 17, 1988. The defendant was tried on that date and subsequently convicted.

The defendant's first assertion on appeal is that the trial court denied his right to due process of law by impaneling the jury which was to try him three weeks prior to trial. The defendant argues that due process requires trial by a fair and impartial jury, and he indicates that the purpose of voir dire is to select jurors who can render a fair and impartial verdict. He suggests that by impaneling the jury three weeks prior to trial, the trial court created an opportunity for bias and prejudice to invade the minds of the jurors.

This Court has recognized that the right to trial by an impartial jury is, in a criminal case, a fundamental right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, as well as guaranteed by the State Constitution. State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981). And the question of whether a jury is impartial is dependent upon whether the jurors are free from bias or prejudice either for or against the accused. See, e.g., State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978); State v. Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900). In conjunction with this, the Court stated in syllabus point 3 of State v. Crouch, 178 W.Va. 221, 358 S.E.2d 782 (1987), that:

"The object of the law is, in all cases in which juries are impaneled to try the issue, to secure men for that responsible duty whose minds are wholly free from bias or prejudice either for or against the accused...." Syl. pt. 1, in part, State v. Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900).

To insure that prospective jurors are free from bias or prejudice, the Court has recognized that parties have wide latitude in engaging in voir dire examination of such jurors. State v. Peacher, supra. However, the resolution of questions relating to the qualification of jurors is left to the discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion. State v. Crouch, supra. Further, in the absence of showing that a jury was not impartial, an appellate court should not disturb the discretion exercised by the trial court in determining the question of eligibility of the members of the jury to serve and should not reverse its finding that the jurors were free from bias, prejudice, and partiality and were competent to serve. State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).

In the present case, the trial court afforded the parties an opportunity to engage in wide-ranging voir dire examination of the prospective jurors on July 21, 1988. Further, when he continued the case, the trial judge carefully cautioned the veniremen not to engage in activities which would potentially affect their impartiality. ¹

While the defendant asserts that he was concerned about the impartiality of the venire at the time it was reconvened, his counsel made no proffer indicating that any of the jurors were actually biased or prejudiced at that time, and he in no way vouched the record on this point.

As indicated by the authorities cited, the real question raised by the defendant's assignment relating to due process is not whether there is a mere possibility that the jurors were biased or prejudiced, but whether actual bias or prejudice has been shown on the record.

While the delay between the impaneling of the jury and the time of trial might suggest the possibility of prejudice intruding, the defendant made no attempt to show the trial court, and has made no attempt to show this Court, that the delay caused actual bias or prejudice. He has identified no particular juror who was allegedly biased or prejudicial as a result of the delay; he has not shown how any juror was affected as a result of the delay; and he has not shown any contact by a juror during the delay which could have resulted in prejudice. Finally, the record fails to show that on August 17, 1988, prior to trial, he made an effort to elicit a showing of prejudice.

Under the circumstances, this Court cannot find that the trial court erred in proceeding to trial with the jury which had been previously and properly selected.

In conjunction with the selection of the jury, the defendant also claims that the trial court erred in failing to disqualify one of the prospective jurors, Betty Leslie, for cause. Mrs. Leslie was married to Hubert C. Leslie, who was the Chief of Police of Welch, West Virginia. At the time of the selection of the jury, Mr. Leslie was involved in a lawsuit involving the City of Welch for police brutality. Also, at the time of trial the defendant's attorney was representing Fanning Funeral Home of Welch in a civil suit against Mr. Leslie, and defense counsel was actively involved in the garnishment of Mr. Leslie's wages.

Because of these circumstances, the defendant moved that Mrs. Leslie be disqualified for cause. The trial court overruled that motion, and the defendant was required to exercise one of his peremptory challenges to remove Mrs. Leslie from the jury panel.

In syllabus point 6 of State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), this Court stated that:

A prospective juror's consanguineal, marital or social relationship with an employee of a law enforcement agency does not operate as a per se disqualification for cause in a criminal case unless the law enforcement official is actively involved in the prosecution of the case. After establishing that such a relationship exists, a party has a right to obtain individual voir dire of the...