State v. Tennant

• Decision Date: 12 July 1984
• Docket Number: No. 15978,15978
• Citation: 319 S.E.2d 395,173 W.Va. 627
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Timothy TENNANT.

Page 395

319 S.E.2d 395

173 W.Va. 627

STATE of West Virginia v. Timothy TENNANT.

No. 15978.

Supreme Court of Appeals of West Virginia.

July 12, 1984.

Syllabus by the Court

1. Rule 31 of the West Virginia Rules of Criminal Procedure, which is modeled after Rule 31 of the Federal Rules of Criminal Procedure, mandates that the verdict in a criminal case be unanimous and provides a procedure for ensuring that the verdict is unanimous, i.e., the jury poll.

2. Federal cases have held that the language of Rule 31(d) of the Federal Rules of Criminal Procedure requires that when a juror indicates in a poll that he either disagrees with the verdict or expresses reservations about it, the trial court must either direct the jury to retire for further deliberations or discharge the jury. Although the rule does not explicitly so state, courts have also recognized that appropriate neutral questions may be asked of the juror to clarify any apparent confusion, provided the questions are not coercive. We adopt this procedure for Rule 31(d) of the West Virginia Rules of Criminal Procedure.

3. W.Va.Code, 17C-4-1, must be read to require the State to prove that the driver charged with leaving the scene of an accident knew of the accident and the resulting injury or death or reasonably should have known of the injury or death from the nature of the accident.

4. "In order for photographs to come within our gruesome photograph rule established in State v. Rowe, , 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome." Syllabus Point 6, State v. Buck, W.Va., 294 S.E.2d 281 (1982).

Harry G. Deitzler, Prosecuting Atty. and Elizabeth A. Pyles, Asst. Prosecuting Atty., Parkersburg, for appellee.

Thomas P. Maroney, Charleston, for appellant.

MILLER, Justice:

Timothy Tennant appeals his conviction by a jury in the Circuit Court of Wood County, which found him guilty of leaving the scene of an accident, in violation of W.Va.Code, 17C-4-1. He was sentenced to one year in jail and fined $1,000. He assigns the following errors: (1) the verdict should not have been accepted after one juror, during the poll of the jury, said the evidence was insufficient; (2) no instruction was given requiring the State to prove that the defendant had knowledge of the accident and the resulting injury; (3) the defendant's motion for acquittal should have been granted; (4) a photograph entered into evidence was gruesome and unduly prejudiced the jury; and (5) the magistrate, who had tried the defendant prior to his appeal de novo to circuit court, should not have been allowed to testify. We conclude that the first assignment of error relating to the polling of the jury requires reversal.

On December 6, 1981, the defendant was driving his car on Route 68 in Wood County with two passengers, Brian Barnett and Randy Young. In a statement given by the defendant and introduced at trial, he claimed that he lost control of his vehicle when he was forced off the highway by an oncoming car. The defendant was thrown from his car which ultimately came to rest upside down in a field adjacent to the highway. The defendant stated that after the accident, the first thing he could remember was waking up on a gravel road that was near where the accident had occurred. After looking unsuccessfully for his car and his friends, the defendant yelled in an attempt to discover if anyone had been hurt. He testified that he heard someone call back, which he interpreted as meaning his friends were all right. He then ceased looking for his car and proceeded to Route 68.

The defendant was picked up by a passing motorist, who gave him a ride to the nearest lighted house, which belonged to a Mr. Young, who is no relation to Randy Young. At the defendant's request, Mr. Young telephoned the defendant's sister-in-law to inform her of the accident.

There were two main conflicts in the testimony of Mr. Young and the defendant at the trial. Mr. Young testified that it was the defendant who had arrived first at his house. The defendant claimed that one of his passengers, Randy Young, was already inside the house when he arrived. Mr. Young further claimed that the defendant told him not to call the police or an ambulance. The defendant stated that he had no recollection of this conversation.

The testimony does reveal that at some point after the accident, Randy Young joined the defendant in Mr. Young's house and that they did not notify the police of the accident. The defendant testified that during this time, Randy Young mentioned that he had seen Brian Barnett, the other passenger, get into a car and that he was probably already home. The defendant's mother stated at trial that she heard Randy Young make a similar statement in the car after she and her husband had picked up the defendant and Randy Young to take them home.

Before going home, the defendant's parents traveled in the direction of the accident, attempting to find the wrecked automobile. Mr. Young, who also helped in the search using his own car, found the defendant's car. Pinned underneath the wrecked vehicle was the other passenger, Brian Barnett, who was dead. The defendant did not return to the scene of the accident until after the police and emergency vehicles had arrived.

I.

The defendant urges this Court to reverse his conviction based on the actions taken by the trial court when the jury was polled. After the foreperson had announced the guilty verdict, defense counsel requested a poll of the jury, pursuant to Rule 31 of the West Virginia Rules of Criminal Procedure. The following colloquy ensued between the trial court and the third juror polled, Carleene Fawcett: ¹

"THE CLERK: Coristine Fawcit, is this your verdict?

"MR. FAWCIT: Guilty as what the evidence was presented.

"THE COURT: Is this your verdict?

"MR. FAWCIT: As of the evidence that was presented.

"THE COURT: Based upon the evidence, is this your verdict? Based upon the evidence as presented, is this your verdict?

"MR. FAWCIT: Well, I don't think we really did have enough evidence, but I will say yes.

"THE COURT: I read the verdict as signed by your Foreperson in open Court. I just read it. The question now: Is this your verdict?

"MR. FAWCIT: Yes, it is.

"THE COURT: All right."

Our Rule 31, which is modeled after Rule 31 of the Federal Rules of Criminal Procedure, mandates that the verdict in a criminal case be unanimous ² and provides a procedure for ensuring that the verdict is unanimous, i.e., the jury poll. Rule 31(d) provides: "Poll of Jury.--When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged."

We have not had occasion to consider this rule. ³ Federal cases have held that the language of Rule 31(d) of the Federal Rules of Criminal Procedure requires that when a juror indicates in a poll that he either disagrees with the verdict or expresses reservations about it, the trial court must either direct the jury to retire for further deliberations or discharge the jury. Although the rule does not explicitly so state, courts have also recognized that appropriate neutral questions may be asked of the juror to clarify any apparent confusion, provided the questions are not coercive. See, e.g., United States v. McCoy, 429 F.2d 739 (D.C.Cir.1970); Sincox v. United States, 571 F.2d 876 (5th Cir.1978); United States v. Duke, 527 F.2d 386 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976); United States v. Edwards, 469 F.2d 1362 (5th Cir.1972) ; Amos v. United States, 496 F.2d 1269 (8th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 140 (1974); United States v. Freedson, 608 F.2d 739 (9th Cir.1979); United States v. Lopez, 581 F.2d 1338 (9th Cir.1978); United States v. Morris, 612 F.2d 483 (10th Cir.1979); United States v. Smith, 562 F.2d 619 (10th Cir.1977); United States v. Spitz, 696 F.2d 916 (11th Cir.1983); United States v. Musto, 540 F.Supp. 318, 64 A.L.R.Fed. 832 (D.N.J.1982); 3 C. Wright, Federal Practice and Procedure § 517 (2d ed. 1982); Annot., 25 A.L.R.3d 1149 (1969). ⁴ We adopt this procedure for our Rule 31(d). ⁵

The federal case most factually similar is Sincox, in which a juror during the poll announced that his verdict was guilty with reasonable doubt. The Fifth Circuit held that under these facts, the trial court had only two options when the juror stated he had reasonable doubt: either direct the jury to retire for further deliberations or discharge the jury. Since the juror did not appear to be confused, the Fifth Circuit held that there was no third option, i.e., asking questions to eliminate any confusion suffered by the juror. See also United States v. Sexton, 456 F.2d 961 (5th Cir.1972).

The reason for allowing only a very limited inquiry on an individual poll of jurors in a criminal case is to prevent the possibility of coercing the juror to conform to the verdict. Courts have recognized that the chief purpose behind an individual poll of jurors is to enable a juror to express any reservation he may have about the verdict free from the pressure of his fellow jurors. ⁶

The ability to have a final forum to determine whether each juror assents to the verdict is particularly important in light of the general rule that forbids post-trial impeachment of a jury's verdict by affidavit or other testimony of individual jurors. See State v. Scotchel, W.Va., 285 S.E.2d 384 (1981).

In the present case, we note that the jury had begun deliberating on the afternoon of August 24, 1982. After deliberating for one and one-half hours, they were sent home for the evening. They reconvened the next day and that morning requested that the instructions be reread, which was done. Later that day, they announced that they could not arrive at a unanimous...