State v. Scotchel

• Decision Date: 15 December 1981
• Docket Number: No. 14726,14726
• Citation: 168 W.Va. 545,285 S.E.2d 384
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. David L. SCOTCHEL.

Page 384

285 S.E.2d 384

168 W.Va. 545

STATE of West Virginia v. David L. SCOTCHEL.

No. 14726.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1981.

Syllabus by the Court

1. A jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict.

2. Courts recognize that a jury verdict may be impeached for matters of misconduct extrinsic to the jury's deliberative process.

3. Ordinarily, a juror's claim that he was confused over the law or evidence and therefore participated in the verdict on an incorrect premise is a matter that inheres in or is intrinsic to the deliberative process and cannot be used to impeach the verdict.

4. The general rule is that statements relative to intimidation or coercion by fellow jurors cannot ordinarily be received to impeach the verdict.

5. Under our malicious wounding statute, W.Va.Code, 61-2-9, evidence of the extent of an injury is admissible since under the statute the State must show that the defendant inflicted the injury with an intent to produce a permanent disability or disfiguration.

6. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus Point 2, State v. Brewster, W.Va., 261 S.E.2d 77 (1979).

Daniel A. Oliver, Morgantown, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Richard S. Glaser, Jr., and Janet Frye Steele, Asst. Attys. Gen., Charleston, for defendant-in-error.

MILLER, Justice:

The defendant, David L. Scotchel, appeals his conviction of assault and battery primarily asserting that the trial court erred when it refused to overturn the verdict of the jury based on an affidavit of one of the jurors submitted by defense counsel during post-trial motions. The affidavit stated that the juror had voted for conviction because another juror represented that the maximum punishment for assault and battery was only a fine. The juror additionally represented that she had been verbally abused by her fellow jurors. Furthermore, the juror stated she felt pressured to vote for conviction because of concern for a fellow juror who appeared to her to be ill during the deliberations. We conclude the trial court was correct in refusing to impeach the jury verdict on these grounds.

The early English common law pronouncement that a jury verdict could never be impeached through testimony or affidavit by one of the jurors ¹ is not absolute in this country. Whether a jury verdict may be impeached by the affidavit of a juror is usually determined in light of the nature of the grounds urged for impeachment. Most courts recognized that a jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict. This principle is often cast in terms of prohibiting impeachment of a verdict on matters which inhere in the verdict and is summarized in 76 Am.Jur.2d Trial § 1219 (1975):

"While matters of impeachment extrinsic to the verdict may, according to the view of many courts, be shown by the testimony of jurors, it is a long-established and generally accepted doctrine, except where modified by statute, that testimony or affidavits of jurors impeaching a verdict rendered by them will not be received where the facts sought to be shown are such as inhere in the verdict." ² (Footnotes omitted)

See also, United States v. Wilson, 534 F.2d 375 (D.C.Cir.1976); Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3rd Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); Hill v. State, 53 Ala.App. 23, 27, 296 So.2d 921 (1974); Smith v. State, 330 So.2d 59 (Fla.App.1976); Ingram v. State, 204 Kan. 836, 465 P.2d 925 (1970); State v. Credeur, 328 So.2d 59 (La.1976); People v. Riemersma, 104 Mich.App. 773, 306 N.W.2d 340 (1981); State v. Hoskins, 292 Minn. 111, 193 N.W.2d 802 (1972); Munoz v. State, 524 S.W.2d 710 (Tex.Cr.App.1975); State v. Barrett, 132 Vt. 369, 320 A.2d 621 (1974); State v. Forsyth, 13 Wash.App. 133, 533 P.2d 847 (1975); Annot., 32 A.L.R.3d 1356 (1970).

The reason traditionally advanced to preclude impeachment of the jury verdict based on what occurred during the jury's deliberations is primarily grounded on public policy protecting the privacy of the jurors. This policy prevents both litigants and the public from being able to gain access to the jury's deliberative process. Inherent in this proposition is the recognition that ensuring the privacy of the jury's deliberations will promote a full, frank and free discussion of all the issues submitted to the jury. It is also recognized that the very nature of the deliberative process, which requires the jurors to arrive at a unanimous verdict, must of necessity require accommodation of individual views. This process of accommodation should not be utilized as a means to attack the general verdict. The rule against impeachment of the verdict also serves to prevent litigants from attempting to influence or tamper with individual jurors after the verdict has been rendered. There is also recognition that limiting impeachment promotes finality of jury verdicts. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Rogers v. Meeks, 385 F.Supp. 593 (W.D.Ark.1974); West v. State, 409 P.2d 847 (Alaska 1966); State v. Callender, 297 N.W.2d 744 (Minn.1980); People v. DeLucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967); Roberts v. Kettelle, 116 R.I. 283, 356 A.2d 207 (1976); State v. Barrett, 132 Vt. 369, 320 A.2d 621 (1974).

A majority of courts recognize that a jury verdict may be impeached for matters of misconduct extrinsic to the jury's deliberative process. This point is summarized in 76 Am.Jur.2d Trial § 1223 (1975): ³

"The rule that the testimony of jurors will not be received to impeach their verdict is subject in many, but apparently not all, jurisdictions to a recognized exception that affidavits of jurors may be received to show matters occurring during the trial not essentially inhering in the verdict, that is, not falling within or pertaining to the legitimate issues in the case." (Footnotes omitted)

Included in this exception is the impeachment of the verdict if one or more of the jurors who sat in the case was initially biased or prejudiced against a party. Ordinarily, before this type of impeachment is permitted, it must be shown that due diligence was exercised by the parties during voir dire examination to develop possible bias, prejudice or disqualification on the part of the jury panel. Kollert v. Cundiff, 50 Cal.2d 768, 329 P.2d 897 (1958); Grist v. Upjohn Company, 16 Mich.App. 452, 168 N.W.2d 389 (1969); Isbell v. State, 626 P.2d 1274 (Nev.1981); Little v. State, 625 P.2d 572 (Nev.1980); McNally v. Walkowski, 85 Nev. 696, 462 P.2d 1016 (1969); Smith v. Ernst Hardware Company, 61 Wash.2d 75, 377 P.2d 258 (1962); State v. Dean, 134 W.Va. 257, 58 S.E.2d 860 (1950); 76 Am.Jur.2d Trial § 1228 (1975); cf. Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Hutchinson v. Fort Des Moines Community Services, Incorporated, 252 Iowa 536, 107 N.W.2d 567 (1961); City of Seattle v. Jackson, 70 Wash.2d 733, 425 P.2d 385 (1967). Although some courts have declined to permit impeachment of a jury verdict on this basis, often this is done because the bias or prejudice was not clearly shown or was not thought to have had a significant impact on the jury verdict. See generally, Annot., 48 A.L.R.2d 971 (1956).

Our prior cases on the subject do not fit into a neat pattern. They do not distinguish between juror misconduct extrinsic to the jury's deliberative process and misconduct that arises during the deliberative process. For example, in Pickens v. Coal River Boom & Timber Co., 58 W.Va. 11, 50 S.E. 872 (1905), several jurors' affidavits alleged that during a trial recess some jurors were given liquor by the plaintiff. Counter affidavits were supplied from other jurors denying the allegation. The general rule that the jury verdict could not ordinarily be impeached was acknowledged:

"In West Virginia this rule has been often followed. Vanmeter v. Kitzmiller, 5 W.Va. 380; Reynolds v. Tompkins, 23 W.Va. 229; State v. Cobbs, 40 W.Va. 718, 22 S.E. 310; Chesapeake & O. R. Co. v. Patton, 9 W.Va. 648; Bartlett v. Patton, 33 W.Va. 71, 10 S.E. 21, 5 L. R. A. 523; Graham v. Citizens' Bank, 45 W.Va. 701, 32 S.E. 245. In Probst v. Braeunlich, 24 W.Va. 356, we find the rule, 'It is settled in this state, as a general rule, with but few exceptions, if any, that the testimony of jurors will not be received to impeach their verdict.' In State v. Cartright, 20 W.Va. 32, it is held that evidence of jurors should be received only to support a verdict." Id. at 20, 50 S.E. at 876.

The Court went on to state that: "Where eating and drinking are furnished by the prevailing party, it sets aside the verdict." 58 W.Va. at 20, 50 S.E. at 876. The verdict was not permitted to be impeached, however, on the basis that the defendant had failed to carry the burden of proof on the misconduct issue. Factually, it is apparent the misconduct in Pickens was extrinsic to the jury's deliberative process.

Another approach to the subject is illustrated by State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932), where the claim was made in a post-trial motion that a sequestered jury had received improper communications by way of having a radio in one of the hotel rooms that the jurors occupied. In Johnson, we did not address the issue in terms of an impeachment of the jury verdict but rather whether the misconduct prejudiced the defendant. ⁴ Again, it should be noted that Johnson involved misconduct extrinsic to the jury's deliberative process.

In Miller v. Blue Ridge Transp. Co., 123 W.Va. 428, ...