State v. Newcomb, No. 34142.

• Court: Supreme Court of West Virginia
• Writing for the Court: Workman
• Citation: 679 S.E.2d 675
• Decision Date: 23 June 2009
• Docket Number: No. 34142.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Paul NEWCOMB, Defendant Below, Appellant.

679 S.E.2d 675 STATE of West Virginia, Plaintiff Below, Appellee
v.
Paul NEWCOMB, Defendant Below, Appellant. No. 34142. Supreme Court of Appeals of West Virginia. Submitted March 24, 2009. Decided June 23, 2009.

[679 S.E.2d 679]

Syllabus by the Court

1. "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." Syllabus Point 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

2. "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).

3. "`Actual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.' Syllabus Point 5, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996)." Syllabus Point 1, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

4. "`Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse.' Syllabus Point 3, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978)." Syllabus Point 2, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

5. "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." Syllabus Point 3, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

6. "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." Syllabus Point 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

[679 S.E.2d 680]

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

8. When a prospective juror makes a clear statement of bias during voir dire, the prospective juror is automatically disqualified and must be removed from the jury panel for cause. However, when a juror makes an inconclusive or vague statement that only indicates the possibility of bias or prejudice, the prospective juror must be questioned further by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an initial response by a prospective juror to a broad or general question during voir dire will not, in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a situation, further inquiry by the trial court is required. Nonetheless, the trial court should exercise caution that such further voir dire questions to a prospective juror should be couched in neutral language intended to elicit the prospective juror's true feelings, beliefs, and thoughts — and not in language that suggests a specific response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and where there is a probability of bias the prospective juror must be removed from the panel by the trial court for cause.

9. "`Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599, (1983)." Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

10. "The special safeguards outlined in Miranda are not required where a suspect is simply taken into custody, but rather only where a suspect in custody is subjected to interrogation. To the extent that language in State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989), and its progeny, may be read to hold differently, such language is expressly overruled." Syllabus Point 8, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).

11. "Under the inevitable discovery rule, unlawfully obtained evidence is not subject to the exclusionary rule if it is shown that the evidence would have been discovered pursuant to a properly executed search warrant." Syllabus Point 3, State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002).

12. "To prevail under the inevitable discovery exception to the exclusionary rule, Article III, Section 6 of the West Virginia Constitution requires the State to prove by a preponderance of the evidence: (1) that there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that the police were actively pursuing a lawful alternative line of investigation to seize the evidence prior to the time of the misconduct." Syllabus Point 4, State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002).

13. "`"`The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissable] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), as amended." Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984).' Syl. Pt. 8, State v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998)." Syllabus Point 6, State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006).

14. "`"Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule." Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).' Syllabus Point 8, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988)." Syllabus Point 2, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

15. "Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant

[679 S.E.2d 681]

to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in [Syllabus Point 3,] State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syllabus Point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

16. "When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction." Syllabus Point 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

Darrell V. McGraw, Jr., Esq., Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, for Appellee.

Dwayne J. Adkins, Esq., Logan County Public Defender, Logan, for Appellant.

WORKMAN, Justice:

This case is before this Court upon appeal of a final order of the Circuit Court of Logan County entered on August 3, 2007. In that order, Paul Newcomb (hereinafter "the appellant") was sentenced to life imprisonment without a recommendation of mercy for his conviction of first degree murder. In this appeal, the appellant asserts that the circuit court committed error in failing to strike two jurors for cause; that the murder weapon as well as certain statements made to an emergency medical technician (EMT) should have been excluded from the trial because of Miranda v. Arizona, ...