State v. Swims

• Decision Date: 07 June 2002
• Docket Number: No. 30099.,30099.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Jessie Lee SWIMS, Defendant Below, Appellant.

569 S.E.2d 784

212 W.Va. 263

STATE of West Virginia, Plaintiff Below, Appellee, v. Jessie Lee SWIMS, Defendant Below, Appellant.

No. 30099.

Supreme Court of Appeals of West Virginia.

Submitted: April 23, 2002.

Decided June 7, 2002.

Dissenting Opinion of Justice Maynard July 3, 2002.

William S. Thompson, Cook & Cook, Madison, West Virginia, for appellant.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, West Virginia, for appellee. DAVIS, Chief Justice.

Jessie Lee Swims, appellant/defendant below (hereinafter referred to as "Mr. Swims"), appeals an order of the Circuit Court of Boone County that denied his motion for a new trial. Mr. Swims was convicted by a jury of conspiracy and aggravated robbery. The circuit court imposed a sentence of one to five years imprisonment for the conspiracy conviction, and 120 years imprisonment for the aggravated robbery conviction.¹ In challenging his conviction, Mr. Swims asserts that the trial court committed reversible error by: (1) striking a juror for cause after voir dire was completed; (2) allowing the use of a transcript of a videotape of the crime; (3) allowing testimony as to the age and sex of a murder victim in another jurisdiction; (4) failing to redact a portion of plea agreements involving co-defendants; and (5) imposing a disportionate sentence. After reviewing the briefs and record in this matter, we conclude that the circuit court, in fact, erred by failing to redact certain language contained in the plea agreements. Consequently, Mr. Swims' convictions and sentences are reversed and this case is remanded for a new trial.

I.

FACTUAL AND PROCEDURAL HISTORY

In the early morning hours of November 15, 1999, Mr. Swims and two accomplices, Adam Hamrick and Ronnie Young, robbed a convenience store in Boone County. Trial testimony indicated that it was Mr. Swims and Mr. Young who actually entered the store to commit the robbery, while Mr. Hamrick remained outside as the get-away driver. During the course of the robbery, Mr. Swims allegedly stuck a weapon in the face of the store clerk and demanded money and cigarettes.² As the store clerk complied with the demand, Mr. Young grabbed two cases of beer. Mr. Swims and Mr. Young then fled the store with approximately $300.00 in cash, several cartons of cigarettes, and beer. The entire robbery was videotaped on the store's security camera.³

The police were able to quickly make arrests in the case as a result of a routine traffic stop. The get-away vehicle, a pick-up truck owned by Mr. Hamrick, was stopped several hours after the robbery because it did not have an inspection sticker. At the time of the traffic stop, Mr. Young was riding in the truck. It was being driven by his neighbor, Shane Curtis. The police impounded the vehicle after learning that the license plate was stolen property.⁴

Shortly after impounding the vehicle, the police went to the home of Mr. Swims' parents, where Mr. Hamrick was residing.⁵ While at the home, the police recovered cartons of cigarettes, cans of beer, and the weapon used in the robbery.

On November 16, the day after the robbery, the police picked up Messrs. Swims, Hamrick, and Young for questioning. During the questioning, Mr. Hamrick and Mr. Young confessed to the robbery. Each man identified Mr. Swims as the person who carried the weapon during the robbery. A grand jury subsequently indicted all three men on charges of conspiracy and aggravated robbery. Both Mr. Hamrick and Mr. Young entered into plea agreements with the State in return for testifying against Mr. Swims.

During Mr. Swims' trial, Mr. Hamrick and Mr. Young testified that all three men originally planned to simply run into the store, grab some cigarettes and beer, and flee. According to Mr. Hamrick and Mr. Young, there was never any agreement to use a weapon. In fact, they claim they were surprised when Mr. Swims brandished the weapon during the robbery. Because of the poor quality of the videotape, and due to disguises worn by Mr. Young and Mr. Swims during the robbery, it was not possible to identify the person holding the weapon during the robbery. Mr. Swims was identified as the person holding the weapon based solely upon the testimony of Mr. Hamrick and Mr. Young.

Mr. Swims relied on an alibi defense at trial. He presented two witnesses, Colleen Spaulding and Ruby Swims.⁶ Each witness testified that Mr. Swims was at home when the robbery occurred. However, the State was able to impeach both witnesses.⁷ The jury rejected the alibi defense and returned a verdict of guilty on both the charges of conspiracy, and of aggravated robbery. The trial court subsequently imposed upon Mr. Swims a sentence of one to five years imprisonment for the conspiracy conviction, and 120 years imprisonment for the aggravated robbery conviction.⁸ Mr. Swims then filed a motion for a new trial, which the circuit court denied. It is from the circuit court's order denying a new trial that Mr. Swims now appeals.

II.

STANDARD OF REVIEW

Mr. Swims' appeal is from the circuit court's order denying his motion for a new trial. Our general standard for reviewing a case presented in this posture has been stated as follows:

As a general proposition, we review a circuit court's rulings on a motion for a new trial under an abuse of discretion standard. In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).... Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). This Court has also explained that

"`[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.' Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976)." Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

Syl. pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Having set forth the general guidelines for our consideration of this case, we note that the specific errors assigned by Mr. Swims to challenge his conviction and sentencing are largely unrelated, and may be subject to different standards of review. Accordingly, to preserve the continuity of our discussion, we set out additional, more specific, standards of review for each alleged error under the particular section of this opinion to which they apply.

III.

DISCUSSION

A. Striking a Juror for Cause

The first issue raised by Mr. Swims is that the trial court committed error by striking a panel juror for cause after the conclusion of voir dire. The juror was struck at the request of the State. Our cases have held that "[t]he decision to grant a motion to strike a juror for cause is within the sound discretion of the trial court." Wheeler v. Murphy, 192 W.Va. 325, 331, 452 S.E.2d 416, 422 (1994). The appropriate standard for our review of this issue was fully outlined in State v. Miller, 197 W.Va. 588, 600-01, 476 S.E.2d 535, 547-48 (1996), as follows:

In reviewing the qualifications of a jury to serve in a criminal case, we follow a three-step process. Our review is plenary as to legal questions such as the statutory qualifications for jurors; clearly erroneous as to whether the facts support the grounds relied upon for disqualification; and an abuse of discretion as to the reasonableness of the procedure employed and the ruling on disqualification by the trial court.

A trial court's determination as to whether to strike a juror for cause will be "reverse[d] only where actual prejudice is demonstrated." Miller, 197 W.Va. at 605, 476 S.E.2d at 552 (citation omitted).

After the completion of voir dire, but before the parties exercised their peremptory strikes, the State moved the trial judge to strike a juror for cause. It was disclosed to the trial judge that the juror in question, Anthony Hale, was the son of an attorney in defense counsel's law firm. There was no dispute regarding the relationship. Therefore, the trial judge struck the juror for cause. Our cases support the disqualification of Mr. Hale. This Court held in syllabus point 4 of State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), that "[a] potential juror closely related by blood or marriage to either the prosecuting or defense attorneys involved in the case or to any member of their respective staffs or firms should automatically be disqualified."

While there is no question that Mr. Hale was disqualified from sitting as a juror, Mr. Swims contends that it was impermissible for the trial judge to strike Mr. Hale for cause after the conclusion of voir dire. Mr. Swims argues that the State should have been required to use a peremptory strike to remove Mr. Hale. We disagree.

This Court has never held that a juror can be struck for cause only during voir dire. We held in West Virginia Human Rights Comm'n v. Tenpin Lounge, Inc., 158 W.Va. 349, 357, 211 S.E.2d 349, 354 (1975), that a party must be diligent in his or her efforts to ascertain juror disqualification. We have also made clear that a party must alert the trial court "to the disqualification [of a juror] as soon as it [is] first discovered or as soon thereafter as the course of the proceedings [will] permit; and if the party fails to do so, he or she will be held to have waived all objections to such juror disqualification[.]" McGlone...