State v. Sampson

• Decision Date: 30 May 1997
• Docket Number: No. 23548,23548
• Citation: 200 W.Va. 53,488 S.E.2d 53
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Darrell Eustace SAMPSON, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 53

488 S.E.2d 53

200 W.Va. 53

STATE of West Virginia, Plaintiff Below, Appellee, v. Darrell Eustace SAMPSON, Defendant Below, Appellant.

No. 23548.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1997.

Decided May 30, 1997.

Syllabus by the Court

1. "In a criminal case it is reversible error for a trial court to overrule a challenge for cause of a juror who is an employee of a prosecutorial or enforcement agency of the State of West Virginia." Syl. Pt. 5, State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973).

2. "When objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syl Pt. 1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).

3. "A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not [misled] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion." Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

4. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

Kelly Elswick, Howley & Venezia, Grantsville, for Appellant.

PER CURIAM:

Darrell Eustace Sampson appeals from an October 27, 1995, final order of the Circuit Court of Calhoun County in which he was convicted on six counts relating to theft of tanks of nitrous oxide from Calhoun General Hospital. He assigns numerous errors, none of which has merit. Accordingly, we affirm.

In November, 1994, the Appellant, Darrell Sampson, was living with his ex-wife, Sherry Parsons, in a house rented by Sherry Parsons. The Appellant's adult son, Jeffrey Scott ("Scott") Sampson, often stayed in the spare room. On November 13, 1994, Sherry Parsons gave a statement to police implicating herself, the Appellant, and Scott Sampson in the theft of cylinders of nitrous oxide ("laughing gas") from a fenced enclosure outside Calhoun General Hospital on two occasions. A search of her house later that day produced two blue cylinders and at least two pairs of wire cutters. The Appellant was indicted on six counts: breaking and entering, petit larceny, and conspiracy to commit breaking and entering with respect to the first event described by Sherry Parsons; and entering without breaking, petit larceny, and conspiracy to commit entering without breaking with respect to the second episode. ¹

Conflicting evidence was presented at trial regarding the underlying events. Sherry Parsons testified that she, the Appellant, and Scott were sitting in her home one evening, when Scott suggested that they steal some gas cylinders and sell them. According to Ms. Parsons, the Appellant found some wire cutters and drove the three of them to Calhoun General Hospital. Parsons stated that she remained in the car while the Appellant and Scott disappeared for a few minutes and returned with three cylinders. They drove to the home of an acquaintance to try to sell him one of the cylinders. When the acquaintance wasn't home, they returned to Sherry Parsons' house. Sherry Parsons testified further that on a second occasion, she, the Appellant, Scott, and Scott's girlfriend, Wendy Fox, returned to the hospital and took two more tanks. During this episode, Ms. Parsons originally told police that she and Wendy Fox stayed in the car, but testified at trial that they stood near the hospital doors as lookouts, and could see the two men cross the roof of the hospital.

Scott Sampson testified to a completely different course of events. He said that he met two men named Tim and Bob while out walking one night. The men asked him if he knew of a place where they could drink beer without being bothered by police. Scott took them to the house where Sherry Parsons and the Appellant lived. After drinking some beer, one of the men went out to the car and brought in the cylinders of nitrous oxide. The three inhaled nitrous oxide, and Tim and Bob later left the house, leaving the cylinders behind. The Appellant testified that he first saw the cylinders in the house the next morning. He said he had been aware of Scott and some other people in the living room late the night before, and saw the cylinders in Scott's bedroom the next morning. Both the Appellant and Scott denied ever stealing cylinders from Calhoun General.

There was uncontradicted testimony that the tanks were kept in the spare bedroom at Sherry Parsons' house, where Scott Sampson slept. Scott also admitted using the nitrous oxide himself, but all witnesses agreed that the Appellant never used it. Several witnesses testified about a third evening when Scott invited some friends over and everyone tried the nitrous oxide. These witnesses stated that although the Appellant and Sherry Parsons were present during this evening, they did not inhale the gas. Three witnesses testified regarding Ms. Parsons' reputation for lack of truthfulness. After hearing this evidence, the jury returned a verdict of guilty on all six counts.

The Appellant assigns the following errors: (1) the trial court failed to strike two jurors for cause; (2) the chain-link enclosure where the cylinders were kept was not a "building" within the meaning of the statute defining breaking and entering; (3) the gas cylinders recovered from the home of Sherry Parsons were not properly authenticated and should not have been admitted into evidence; (4) a jury instruction regarding inferences to be drawn from the fact of exclusive possession was not warranted by the evidence; and (5) the sentence imposed by the court was disproportionate to the crime. We address these errors below. ²

The Appellant objects first to the trial court's failure to strike for cause prospective juror Fitzwater. Ms. Fitzwater had been working eight hours per week as a pharmacy technician, paid by the hour, at Calhoun General Hospital. Although her employment was not full-time, Ms. Fitzwater had worked for Calhoun General for twenty-one years. Appellant's counsel moved to strike her for cause based on her employment by the alleged victim. The court refused this request and counsel used a peremptory strike to eliminate this prospective juror.

The Appellant asserts that Ms. Fitzwater should have been disqualified for cause, because she was an employee of a the alleged victim. West Virginia Code section 62-3-3 (1992) requires a panel of twenty jurors "free from exception." See State v. West, 157 W.Va. 209, 217, 200 S.E.2d 859, 864 (1973). This Court has said that the 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. Phillips, 194 W.Va. 569, 588, 461 S.E.2d 75, 94 (1995). We have also said that each case must be evaluated on its own facts. West, 157 W.Va. at 219, 200 S.E.2d at 865.

The Appellant asserts that an employee of the alleged victim is prima facie disqualified under the decision of this Court in State v. Dushman, 79 W.Va. 747, 91 S.E. 809 (1917). In Dushman, this Court determined eighty years ago that railroad employees were prima facie disqualified from acting as jurors in a criminal trial involving a theft of railroad property. Id. at 750, 91 S.E. at 811. The Dushman Court reasoned that the employees of a victimized company would have an interest in the outcome of criminal trials relating to stolen company property, and should therefore be presumed to be biased.

In West, this Court addressed the issue of whether employees of State government should be disqualified from serving on juries in criminal trials, where their employer, the State of West Virginia, is a party. There, the Court said,

The proliferation of responsibilities undertaken by the State and local governments and the historical tendency for the proportion of governmental employees to increase in society, cause us to doubt that all employees of State government are prima facie disqualified to sit as jurors in a criminal case. Each case must be evaluated on its own facts; however, we do hold it reversible error to permit a challenged juror who is an employee of the Department of Public Safety, a law enforcement arm of the State, to be a member of a panel of twenty. Obviously, by virtue of the prospective juror's association with enforcement officials he is subject to potential prejudice and peremptory challenges should not be required to disqualify.

Id. at 219, 200 S.E.2d at 865. The State asserts that if not all employees of State government are subject to challenge for cause in cases in which the State is a party, then the employees of crime victims should similarly not be automatically excluded. ³

In the case before us, we cannot say that the trial court abused its discretion in denying the Appellant's motion to challenge prospective juror Fitzwater for cause. Dushman is distinguishable, because this case does not involve a full-time employee. ⁴ Furthermore, Dushman 's prima facie exclusion of employees may have outlived its value,...