State v. Moss, No. 17063

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation376 S.E.2d 569,180 W.Va. 363
Docket NumberNo. 17063
Decision Date19 December 1988
PartiesSTATE of West Virginia v. John MOSS, Jr.

Page 569

376 S.E.2d 569
180 W.Va. 363
STATE of West Virginia
v.
John MOSS, Jr.
No. 17063.
Supreme Court of Appeals of
West Virginia.
Dec. 19, 1988.

Page 571

[180 W.Va. 365] Syllabus by the Court

1. "It is improper for a prosecutor in this State to '[a]ssert his personal opinion ... as to the guilt or innocence of the accused....' ABA Code DR7-106(C)(4) in part." Syl.Pt. 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

2. "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).

3. "The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law." Syl.Pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

4. A prisoner incarcerated in a jurisdiction that has adopted the Uniform Criminal Extradition Act is entitled to a hearing before being transferred to another jurisdiction pursuant to Article IV of the Interstate Agreement on Detainers.

5. "Once a fugitive has been brought within the jurisdiction of West Virginia as the demanding state, the propriety of the extradition proceedings which occurred in the asylum state may not be challenged. The extradition proceedings may be challenged only in the asylum state." Syl.Pt. 4, State v. Flint, 171 W.Va. 676, 301 S.E.2d 765 (1983).

6. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syl.Pt. 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

7. "A statement freely and voluntarily made by an accused while in custody or deprived of his freedom by the authorities and subjected to questioning is admissible in evidence against him if it clearly appears that such statement was freely and voluntarily made after the accused had been advised of his constitutional right to remain silent and that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney and if he can not afford an attorney one will be appointed for him, and that, after he has been so advised, he knowingly and intelligently waives such rights." Syl.Pt. 7, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971).

Page 572

[180 W.Va. 366] 8. "A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl.Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

9. "Under W.Va.Code, § 49-5-8(d), when a juvenile is taken into custody, he must immediately be taken before a referee, circuit judge, or magistrate. If there is a failure to do so, any confession obtained as a result of the delay will be invalid where it appears that the primary purpose of the delay was to obtain a confession from the juvenile." Syl.Pt. 3, State v. Ellsworth J.R., 175 W.Va. 54, 331 S.E.2d 503 (1985).

10. The exclusionary rule established in Syllabus Point 3 of State v. Ellsworth J.R., 175 W.Va. 64, 331 S.E.2d 503 (1985), is not to be applied retroactively to a confession which was obtained prior to the date of that decision where no prompt presentment objection was made at trial.

Frank W. Helvey, Jr., Public Legal Services, for appellant.

Silas B. Taylor, Deputy Atty. Gen., for appellee.

McGRAW, Justice:

The appellant, John Moss, Jr., was convicted by a jury in the Circuit Court of Kanawha County on April 30, 1984, of three counts of first degree murder, without recommendation of mercy, and was sentenced to three consecutive life without mercy sentences. The horrifying facts of this case are substantially set forth in In the Interest of John Moss, Jr., --- W.Va. ----, 295 S.E.2d 33 (1982), wherein the appellant challenged the circuit court's initial order transferring the appellant from the circuit court's juvenile jurisdiction to its adult jurisdiction. Due to error in the initial transfer proceeding, this Court reversed the circuit court's transfer order and remanded the matter for further proceedings.

After conducting a second transfer hearing, the circuit court entered another order on September 28, 1982, granting the prosecution's motion that the appellant be transferred from juvenile to adult jurisdiction. 1 The grand jury later returned an indictment charging the appellant with three counts of murder in the first degree, and he was tried, convicted, and sentenced as an adult. He now seeks reversal of his convictions based on numerous assignments of error. Those assignments are detailed below, where we conclude that the appellant is entitled to a new trial.

I.

The trial court erred when it refused the appellant's motion to poll each juror, out of the presence of the others, about each juror's exposure to prejudicial comments made by the prosecuting attorney, which were broadcast by a local radio station on a day that the trial was in recess. The trial court erred when it failed to intervene for the purpose of limiting and correcting fundamentally improper remarks made by the prosecuting attorney during closing, the cumulative effect of which was to deny the appellant his right to a fair trial. The trial court also erred when it allowed admission of evidence regarding the results of a polygraph test taken by a prior suspect to the murders, the husband of the deceased woman and father of the two deceased children. Each of these errors requires reversal of the appellant's convictions.

A. Prosecutor's Prejudicial Comments Disseminated During Trial

On April 16, 1984, several weeks into the appellant's lengthy trial, the appellant moved for a mistrial based on statements made by the prosecuting attorney during a radio interview broadcast on a day that the court was in recess. The prosecutor's statements included the remark: "No doubt in my mind that he in fact is the murderer of Vanessa Reggettz and her two children." Contemporaneously with his motion for a mistrial, the appellant moved

Page 573

[180 W.Va. 367] that the trial court poll the jurors about their exposure to the prosecutor's prejudicial remark. The judge denied both of the appellant's motions, stating that he had confidence that the jurors had complied with his admonition to avoid radio, newspaper, and television accounts of the case while the court was in recess.

We agree with the appellant that the trial judge committed reversible error when he refused to poll the jurors. In Syllabus Point 3 of State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981), this Court made it clear that "[i]t is improper for a prosecutor in this State to '[a]ssert his personal opinion ... as to the guilt or innocence of the accused....' ABA Code DR7-106(C)(4) in part." This rule is applicable in and out of the courtroom. Standard 8-1.1(a) of the American Bar Association Standards for Criminal Justidce (2d ed. 1980) limits extrajudicial statements by attorneys, specifically providing that: "A lawyer shall not release or authorize the release of information or opinion for dissemination by any means of public communication if such dissemination would pose a clear and present danger to the fairness of the trial." (emphasis added). Here, possible prejudice resulted from the prosecuting attorney's extrajudicial statement expressing his personal opinion as to the appellant's guilt.

By refusing to poll the jurors the trial court left unanswered the critical question of whether any or all of the jurors were exposed to this inherently prejudicial statement. In Syllabus Point 5 of State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983), this Court held that: "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." (emphasis added). See also Syl.Pt. 2, State v. Nixon, 178 W.Va. 338, 359 S.E.2d 566 (1987). Thus, where publicity has been disseminated which raises a serious question of possible prejudice and either party has made a motion to poll the jurors about their exposure to the publicity, a trial court's refusal to undertake such questioning constitutes reversible error.

In the case now before us, timely motions were made for a mistrial and to poll the jurors concerning their exposure to the prosecuting attorney's extrajudicial statement. Although corrective measures, such as giving a cautionary instruction, may have justified not declaring a mistrial even if it were determined that the jurors had been exposed to the radio interview, the trial court abused its discretion in refusing to poll the jurors to determine whether a "manifest necessity" existed to discharge the jury and to declare a mistrial. See W.Va.Code § 62-3-7 (1984 Replacement Vol.). 2

B. Prosecutor's Prejudicial Closing Argument

The trial court also committed reversible error when it failed to intervene for the purpose of limiting and correcting improper remarks made by the prosecuting attorney during closing. Although "[t]his Court recognizes that wide latitude must be given to all counsel in connection with final argument," State v. Myers, 159 W.Va. 353, 361, 222 S.E.2d 300, 306...

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31 practice notes
  • Morris v. Painter, No. 29758.
    • United States
    • Supreme Court of West Virginia
    • July 3, 2002
    ...376, 379 n. 2, 395 S.E.2d 799, 802 n. 2 (1990); State v. Stacy, 181 W.Va. 736, 739 n. 3 384 S.E.2d 347, 350 n. 3 (1989); State v. Moss, 180 W.Va. 363, 374 n. 16, 376 S.E.2d 569, 580 n. 16 (1988); State v. Flint, 171 W.Va. 676, 679 n. 1, 301 S.E.2d 765, 768 n. 1 (1983); State v. Fairchild, 1......
  • State v. Harvey
    • United States
    • New Jersey Supreme Court
    • July 30, 1997
    ...had failed two polygraphs submitted to explain police's failure to conduct a more complete investigation). But see State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988) (holding that admission of testimony that State had dismissed indictment against earlier suspect because he successfully pas......
  • State v. Middleton, No. 33048.
    • United States
    • Supreme Court of West Virginia
    • November 29, 2006
    ...not wish to be interrogated, the police may not question him. 384 U.S. at 444-45, 86 S.Ct. at 1612. Accord Syl. pt. 7, State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988). In the decision of Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), the United St......
  • State v. Miller, 26851
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...within the ethical standards of the profession and that legal proceedings appear fair to all who observe them."); State v. Moss, 180 W. Va. 363, 368, 376 S.E.2d 569, 574 (1988) ("[T]he trial court has a duty to independently protect the accused's right to a fair trial free from improper rem......
  • Request a trial to view additional results
31 cases
  • Morris v. Painter, No. 29758.
    • United States
    • Supreme Court of West Virginia
    • July 3, 2002
    ...376, 379 n. 2, 395 S.E.2d 799, 802 n. 2 (1990); State v. Stacy, 181 W.Va. 736, 739 n. 3 384 S.E.2d 347, 350 n. 3 (1989); State v. Moss, 180 W.Va. 363, 374 n. 16, 376 S.E.2d 569, 580 n. 16 (1988); State v. Flint, 171 W.Va. 676, 679 n. 1, 301 S.E.2d 765, 768 n. 1 (1983); State v. Fairchild, 1......
  • State v. Harvey
    • United States
    • New Jersey Supreme Court
    • July 30, 1997
    ...had failed two polygraphs submitted to explain police's failure to conduct a more complete investigation). But see State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988) (holding that admission of testimony that State had dismissed indictment against earlier suspect because he successfully pas......
  • State v. Middleton, No. 33048.
    • United States
    • Supreme Court of West Virginia
    • November 29, 2006
    ...not wish to be interrogated, the police may not question him. 384 U.S. at 444-45, 86 S.Ct. at 1612. Accord Syl. pt. 7, State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (1988). In the decision of Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), the United St......
  • State v. Miller, 26851
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...within the ethical standards of the profession and that legal proceedings appear fair to all who observe them."); State v. Moss, 180 W. Va. 363, 368, 376 S.E.2d 569, 574 (1988) ("[T]he trial court has a duty to independently protect the accused's right to a fair trial free from improper rem......
  • Request a trial to view additional results

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