State v. Mills
| Decision Date | 17 November 2005 |
| Docket Number | No. 32551.,32551. |
| Citation | 631 S.E.2d 586 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee v. Marvin Steve MILLS, Defendant Below, Appellant. |
Syllabus by the Court
1. Syl. Pt. 6, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
2. "When considering whether to excuse a prospective juror for cause, a trial court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror." Syl. Pt. 3, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
3. "If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required." Syl. Pt. 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
4. "Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair." Syl. Pt. 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
5. "Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters." Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
6. "A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
7. "A defendant who seeks a mistrial on the ground that the jury has been improperly influenced by prejudicial publicity disseminated during trial must make some showing to the trial court at the time the motion is tendered that the jurors have in fact been exposed to such publicity." Syl. Pt. 4, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
8. "If it is determined that publicity disseminated by the media during trial raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material." Syl. Pt. 5, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
9. " Syl. Pt. 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).
10. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).
Kristen L. Keller, Chief Deputy Prosecuting Attorney, Beckley, Attorney for the Appellee.
Gregory A. Ayers, Wendy A. Campbell, Public Defender Corporation, Charleston, Attorneys for the Appellant.
This is an appeal by Mr. Marvin Mills (hereinafter "Appellant") from a conviction in the Circuit Court of Berkeley County of first-degree murder without the recommendation of mercy. The Appellant contends that the lower court erred on several issues: by refusing to strike two jurors for cause; by denying a mistrial after media attended a jury view of the crime scene; by refusing to individually voir dire jurors regarding the impact of media attention; by allowing the State to introduce prejudicial testimony regarding the Appellant's character; and by denying a mistrial when the prosecutor made certain allegedly prejudicial comments during closing argument. Upon thorough review of the record, briefs, and applicable precedent, this Court affirms the Appellant's conviction.
The Appellant admits that he fatally shot Mrs. Pamela Cabe on September 8, 1999, at her employment location, Richmond Cleaners, in Beckley, West Virginia. The Appellant shot Mrs. Cabe with a .38-caliber pistol once in the back and once in the head, and Mrs. Cabe was deceased by the time paramedics arrived at the scene. The Appellant was ultimately charged with first degree murder, and evidence presented at the Appellant's first trial indicated that subsequent to the shooting, the Appellant had walked across the street to smoke a cigarette as emergency vehicles arrived.
The Appellant explained to police officers that he had gone to Richmond Cleaners to talk with Mrs. Cabe concerning a dispute between Mrs. Cabe's son and the Appellant's daughter regarding custody of that couple's child. According to the Appellant, he had intended only to scare Mrs. Cabe, and he had not gone to the location with the intent to fatally wound her.
During the Appellant's first trial, the defense attempted to show that the Appellant had acted without premeditation or deliberation. The State, however, presented evidence indicating that the Appellant had premeditated the murder. The Appellant had been informed of the results of a custody hearing involving the mutual grandchild of the Appellant and Mrs. Cabe earlier that day. After learning of the custody hearing results, the Appellant took his .38-caliber pistol, drove seven miles to Richmond Cleaners, walked into the business, took the gun out of a manilla envelope, and shot four bullets, hitting Mrs. Cabe twice.1
Subsequent to the Appellant's first trial, a jury found the Appellant guilty of first-degree murder without the recommendation of mercy. The Appellant appealed that conviction to this Court. On June 24, 2002, this Court reversed the Appellant's first conviction. See State v. Mills, 211 W.Va. 532, 566 S.E.2d 891 (2002). This Court found reversible error in the lower court's denial of a motion to strike a prospective juror for cause after that juror had stated that his acquaintance with an arresting officer would prevent him from acting impartially. Further, this Court scrutinized the direct examination testimony of a detective, indicating that the Appellant had expressed anger at the arraignment and at an in-camera hearing but had failed to express remorse or sorrow over killing Mrs. Cabe. This Court found that such testimony served as an improper reminder of the Appellant's failure to testify at trial. Additionally, this Court found reversible error in the prosecutor's comment during closing argument, indicating that there were other cases in which a murderer himself had apologized. The Court concluded that the prosecutor's statement was also an improper reference to the Appellant's decision not to testify at trial. Mills, 211 W.Va. at 534, 566 S.E.2d at 905.
Based upon the errors in the original trial, the Appellant was retried by the lower court, and on November 7, 2003, the Appellant was again convicted of first degree murder without the recommendation of mercy. Based upon the existence of specific standards of review applicable to each of the issues raised as assignments of error in this case, those specific standards of review will be discussed as each assignment of error is analyzed.
The Appellant contends that the lower court abused its discretion in declining to strike two jurors for cause and thereby required defense counsel to utilize two peremptory strikes to remove prospective jurors. The prospective jurors were informed that the sentence for first degree murder is life in prison. They were thereafter asked whether they would be able to consider a life sentence with the possibility of parole eligibility after fifteen years if they found the Appellant guilty of first degree murder. Two prospective jurors, Ms. Haga and Ms. George, had answered that question in the negative. When questioned further regarding that issue, Ms. Haga indicated that she did not personally know the legal consequences of a mercy recommendation and would follow the instructions of the judge in making her determinations. She specified that she would consider the options provided to her by the court, including eligibility for parole. In refusing to strike Ms. Haga for cause, the lower court explained that the prospective juror...
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