State v. Mills

• Decision Date: 24 June 2002
• Docket Number: No. 30031.,30031.
• Citation: 211 W.Va. 532,566 S.E.2d 891
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Marvin Steve MILLS, Defendant Below, Appellant

566 S.E.2d 891

211 W.Va. 532

STATE of West Virginia, Plaintiff Below, Appellee v. Marvin Steve MILLS, Defendant Below, Appellant

No. 30031.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 2002.

Decided June 24, 2002.

Kristen L. Keller, Esq., Chief Deputy Prosecuting Attorney, Beckley, for Appellee.

Gregory L. Ayers, Esq., Deputy Public Defender, Charleston, for Appellant.

PER CURIAM.

The defendant, Marvin Mills, appeals his conviction in the Circuit Court of Raleigh County of first degree murder with the use of a firearm. He was sentenced to life in the penitentiary without the possibility of parole. For the reasons that follow, we reverse the defendant's conviction and remand for a new trial.

I. FACTS

It is undisputed that the defendant, Marvin Mills, fatally shot Pamela Cabe. The evidence at trial revealed the following. On September 8, 1999, the defendant entered Richmond Cleaners in downtown Beckley, West Virginia, where Mrs. Cabe worked, and shot her with a .38-caliber pistol once in the back and once in the head. Mrs. Cabe was dead by the time paramedics arrived moments later.

After shooting Mrs. Cabe, the defendant walked across the street, sat on a wall, and watched emergency vehicles arrive while he smoked a cigarette. He was arrested without incident moments later after a police officer recognized him as the shooter from a description given by a witness. The defendant stated to the police that he had gone to Richmond Cleaners to talk with Mrs. Cabe concerning a dispute between Mrs. Cabe's son and the defendant's daughter over the custody of the couple's child. According to the defendant, he wanted merely to scare Mrs. Cabe, and he did not intend for the shooting to occur. He explained that something built up in him and he did not realize that he had shot Mrs. Cabe until she fell to the floor.

The State charged the defendant with first-degree murder. At trial, the defense attempted to show that there was no premeditation or deliberation. The State presented evidence that, upon learning the results of a custody hearing earlier that day involving Mrs. Cabe's son and the defendant's daughter, the defendant retrieved his.38-caliber pistol, drove seven miles, which took at least twelve minutes, to Richmond Cleaners, stepped inside of the Cleaners, pulled the gun from a manilla envelope, and shot four shots, hitting Mrs. Cabe twice.

The defendant did not testify but presented the testimony of his daughter and two neighbors which indicated that he spent a lot of time with and loved his granddaughter who was the subject of the custody dispute. After deliberating for thirty-two minutes, the jury found the appellant guilty of first-degree murder without mercy.

II. DISCUSSION

The defendant raises five assignments of error in his appeal to this Court. We find merit in two of the assigned errors and proceed to discuss those errors.

A. Prospective Juror Billings

First, the defendant claims the trial court erred in denying his challenge for cause of a prospective juror or venireman. During voir dire, Venireman Marvin Billings¹ indicated that he knew Corporal Thomas Bowers of the Beckley Police Department who was to be a State's witness in the trial. Specifically, Mr. Billings indicated the following:

THE COURT: How do you know Thomas Bowers?

PROSPECTIVE JUROR BILLINGS: I went to school with Thomas.

THE COURT: Do you see him or socialize with him any at all now?

PROSPECTIVE JUROR BILLINGS: Just occasionally I see him; seen him at the dealership a couple of weeks ago; we had an investigation over there, talked to him then.

THE COURT: Have you talked to him about this case at all?

PROSPECTIVE JUROR BILLINGS: No; no.

THE COURT: If he were to testify in this case, would your knowledge of him in any way prevent you from acting impartially in this matter?

PROSPECTIVE JUROR BILLINGS: Uh-huh; yeah, I believe it would.

THE COURT: You believe—

PROSPECTIVE JUROR BILLINGS: Yeah, I know Tom pretty good.

THE COURT: If he were to testify, would you have a tendency to give greater or lesser weight to something he might say?

PROSPECTIVE JUROR BILLINGS: Probably a little greater weight, because I've known him for a long time.

* * * * * *

[DEFENSE COUNSEL]: You did say you'd probably have to give their evidence... greater weight.

PROSPECTIVE JUROR BILLINGS: Thomas' word.

[DEFENSE COUNSEL]: Thomas' word?

PROSPECTIVE JUROR BILLINGS: Right.

[DEFENSE COUNSEL]: How about if that—if we didn't challenge his word, that shouldn't cause a problem, should it?

PROSPECTIVE JUROR BILLINGS: Correct.

[DEFENSE COUNSEL]: What I'm concerned about is not really so much with Mr. Bowers' word, but just with the favoritism with which you might come to listen to the State's evidence as opposed to ours. We try as best we can to keep things a little equal. Now, do you think that you'd—

PROSPECTIVE JUROR BILLINGS: I understand.

[DEFENSE COUNSEL]:—favor—have a tendency to favor the State's case?

PROSPECTIVE JUROR BILLINGS: Huh-uh; I wouldn't favor anybody. Like I said, you know, based on me knowing Thomas for 20 years, I would tend to listen to his word, but, I mean, you know, I wouldn't favor the State over the prosecution or whatever the case may be over.

* * * * * *

[THE COURT]: Any motions?

* * * * * *

[DEFENSE COUNSEL]: I'll just make a motion on the record about his knowledge of the law enforcement officers.

THE COURT: Well, is that an issue?

[DEFENSE COUNSEL]: Frankly, probably not, Judge. I mean, what—Bowers was the arresting officer, I mean, and we don't really challenge his word and that's—I'm being real frank with the Court.

THE COURT: And I guess the question is—I mean, because if there's an issue as to Bowers' word, then perhaps we need to investigate a little bit further. But if that's all Bowers is going to testify to and there's no challenge, he stated clearly that it was—Bowers was the one that he would give a little bit more weight to, but he would not favor the State over the defendant.

* * * * * *

[DEFENSE COUNSEL]:—principally our concern, but I'd like to preserve it.

THE COURT: Preserved and I'll deny it.

[DEFENSE COUNSEL]: Okay, thank you.

According to the defendant, Venireman Billings' friendship with Corporal Bowers and his indication that this friendship would cause him to give greater weight to Corporal Bowers' testimony automatically disqualified Venireman Billings from serving as a juror.

The State replies that defense counsel effectively withdrew his initial challenge to Venireman Billings by declining the circuit court's offer to investigate further whether Officer Bowers' testimony was going to be at issue. Also, the State argues that the defendant makes no showing that Venireman Billings was prejudiced because Corporal Bowers had minimal involvement in the case and his testimony was not inconsistent with the defendant's version of what occurred on the day of the killing. Finally, the State emphasizes that Venireman Billings indicated that he would not favor one party over the other.

We note at the outset that although Venireman Billings was not struck by the trial court for cause, the defendant exercised a peremptory challenge against him so that he was not on the jury that convicted the defendant. Nevertheless, W.Va.Code § 62-3-3 (1949) requires a panel of twenty jurors "free from exception." This Court has previously found "if proper objection is raised at the time of impaneling the jury, it is reversible error for the court to fail to discharge a juror who is obviously objectionable." State v. West, 157 W.Va. 209, 219, 200 S.E.2d 859, 866 (1973). Thus, we have held:

The language of W.Va.Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory challenges until an unbiased jury panel is assembled. Consequently, if a defendant validly challenges a prospective juror for cause and the trial court fails to remove the juror, reversible error results even if a defendant subsequently uses his peremptory challenge to correct the trial court's error.

Syllabus Point 8, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).

The issue before us is whether the trial court should have removed Venireman Billings for cause.

[T]he true test of whether a juror should be struck for cause is whether that juror can render a verdict based solely on the evidence. The trial court is afforded considerable discretion in this determination, and we will reverse the trial court's decision only if there has been an abuse of discretion.

State v. Sampson, 200 W.Va. 53, 57, 488 S.E.2d 53, 57 (1997), citing State v. Phillips, 194 W.Va. at 588, 461 S.E.2d at 94

. Further, "[w]hen a defendant seeks the disqualification of a juror, the defendant bears the burden of `rebut[ting] the presumption of a prospective juror's impartiality[.]'" State v. Phillips, 194 W.Va. at 588, 461 S.E.2d at 94,

quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751, 756 (1961). In determining whether there has been an abuse of discretion, we must evaluate each case on its own facts. Sampson, 200 W.Va. at 57,

488 S.E.2d at 57,

citing State v. West, 157 W.Va. at 219, 200 S.E.2d at 865.

First, we disagree with the defendant's argument that the mere fact that Venireman Billings attended school with Corporal Bowers, has known him for twenty years, and occasionally socializes with him required his disqualification for cause. In Syllabus Point 6 of State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), this Court held:

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.

We...