State v. Tommy Y., Jr.

Decision Date27 October 2006
Docket NumberNo. 33055.,33055.
Citation637 S.E.2d 628
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. TOMMY Y., Jr., Defendant Below, Appellant.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The West Virginia Rules of Criminal Procedure, to the extent that they are not inconsistent with juvenile delinquency statutes, are applicable to juvenile proceedings.

2. For the purposes of Rule 12(b)(2) and Rule 12(f) of the West Virginia Rules of Criminal Procedure, if a defect in a charging instrument does not involve jurisdiction or result in a failure to charge an offense, a defendant must raise the issue prior to trial or the defect will be deemed waived absent a showing of good cause for failing to timely raise the issue.

3. For the purposes of Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure, venue is not jurisdictional; therefore, a defect in a charging instrument involving venue is subject to waiver if not asserted prior to trial.

4. For the purposes of Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure, venue is not an essential element of an offense; therefore, a defect in a charging instrument involving venue is subject to waiver if not asserted prior to trial. This does not, however, relieve the State of its burden of proving venue at trial in every case by a preponderance of the evidence.

5. When a defendant has knowledge of grounds or reason for a challenge for cause, but fails to challenge a prospective juror for cause or fails to timely assert such a challenge prior to the jury being sworn, the defendant may not raise the issue of a trial court's failure to strike the juror for cause on direct appeal.

Arthur Wayne King, Clay, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, for Appellee.

DAVIS, Chief Justice:

Tommy Y., Jr., appellant/defendant below (hereinafter "Tommy"),1 appeals an order of the Circuit Court of Clay County adjudicating him a juvenile delinquent for assaulting a school employee and brandishing a deadly weapon.2 Tommy was placed in a secure juvenile facility for six months on the assault charge and for one year on the brandishing charge, with said placement to run consecutively.3 Here, Tommy has assigned the following as errors: (1) the failure of the trial court to dismiss the juvenile petition as defective; (2) the failure of the trial court to exclude two jurors for cause; and (3) the failure of the trial court to grant a mistrial because Tommy was brought to the courthouse dressed in institutional clothing and shackled. After a careful review of the record and briefs, and having listened to the arguments of the parties, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In the summer of 2004, Tommy's father informed him that the Clay County School Board intended to continue his placement at an Alternative Learning Center for an additional semester.4 Tommy believed that the board's decision was based, in part, upon information obtained from James Haynie, the Assistant Principal of Clay County High School.5

On June 21, 2004, Mr. Haynie was driving home with his son when he noticed that he was being followed by someone in a truck. When Mr. Haynie pulled into his driveway, the truck followed him and stopped. Mr. Haynie got out of his vehicle and approached the truck. As Mr. Haynie approached the truck, he recognized the driver as Tommy. When Mr. Haynie reached the truck, he noticed Tommy cocking and uncocking a pistol. Mr. Haynie asked Tommy why he had the gun, and Tommy responded: "I's [sic] just thinking of wicked and evil things I was gonna do when, when I came out here[.]"6

Mr. Haynie talked with Tommy and tried to assure him that he was not responsible for his continued placement at the Alternative Learning Center. Eventually, Mr. Haynie stated to Tommy, "I'm going to the house, I have work to do, . . . if you're gonna shoot me, shoot me, but, I'm going." Thereafter, Mr. Haynie proceeded to his home and reported the matter to the police.

On June 23, 2004, a delinquency petition was filed against Tommy. The petition charged Tommy with four acts of delinquency: (1) assault on a school employee, (2) brandishing a deadly weapon, (3) assault, and (4) reckless driving.7 Tommy elected to have a jury trial. On September 23, 2004, the jury adjudicated Tommy delinquent for assaulting a school employee and brandishing a deadly weapon.8 As a result of the initial sentencing order being in error and the withdrawal of appellate counsel on two occasions, the appeal in this matter was delayed. The circuit court entered a corrected sentencing order on May 21, 2005. Subsequently, Tommy filed this appeal.

II. STANDARD OF REVIEW

This Court previously has held that "[a]n adjudication of delinquency is subject to the same standards of review on appeal as is an adult criminal conviction." Syl. pt. 1, State v. Allah Jamaal W., 209 W.Va. 1, 543 S.E.2d 282 (2000). See State v. William T., 175 W.Va. 736, 738, 338 S.E.2d 215, 218 (1985). The issues presented in this appeal involve the sufficiency of the delinquency petition, striking jurors for cause and a claim for mistrial. This Court has held that "[g]enerally, the sufficiency of an indictment is reviewed de novo." Syl. pt. 2, in part, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). Further, "[w]e review the trial court's decision on [striking a juror] under an abuse of discretion standard." State v. Wade, 200 W.Va. 637, 654, 490 S.E.2d 724, 741 (1997). Finally, "[w]e review the circuit court's refusal to grant a mistrial . . . under an abuse of discretion standard." State v. Stephens, 206 W.Va. 420, 421, 525 S.E.2d 301, 302 (1999).

III. DISCUSSION
A. Defective Delinquency Petition

The parties agree that the delinquency petition failed to set out venue for the conduct involving the charge of assault on a school employee and brandishing a deadly weapon.9 The petition stated simply that the conduct occurred at Mr. Haynie's residence, but failed to indicate the county of the residence. Tommy contends that because the petition failed to set out venue, the trial court should have granted his motion to dismiss, which was made at the conclusion of the State's case-in-chief. The circuit court found, and the State contends here, that this issue was waived because it was not raised prior to trial. We agree.10

The issue of venue for a juvenile delinquency proceeding is addressed in part by statute. West Virginia Code § 49-5-7(a)(1) (2006) (Supp.2006) states that a juvenile delinquency "petition shall be . . . filed in the circuit court in the county where the alleged . . . act of delinquency occurred." See also W. Va. Const., art. 3, § 14 ("Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . in the county where the alleged offence was committed[.]"); W. Va. R.Crim. P. 18 ("Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a county in which the offense was committed.") W. Va.Code § 49-5-7(a)(1) also states that "[t]he petition shall contain specific allegations of the . . . place of the alleged conduct." See also Syl. pt. 2, State v. Ellison, 49 W.Va. 70, 38 S.E. 574 (1901) ("But when the indictment fails to lay the venue of the [crime], the indictment is bad on demurrer for uncertainty."); Syl. pt. 3, State v. Hobbs, 37 W.Va. 812, 17 S.E. 380 (1893) ("That the alleged crime was committed within the jurisdiction of the court must be shown in the indictment, and proved as charged."). Although W. Va.Code § 49-5-7(a)(1) requires that venue be alleged in a juvenile petition, the statute fails to indicate what should occur if a petition does not establish venue. Consequently, we must look to the West Virginia Rules of Criminal Procedure to resolve this issue.

This Court has recognized that the "[r]ules of [criminal] procedural rights applicable in adult criminal proceedings are applicable with equal force in juvenile adjudicatory proceedings." State v. Allah Jamaal W., 209 W.Va. 1, 3, 543 S.E.2d 282, 284 (2000) (citations omitted). Accord State v. William T., 175 W.Va. 736, 738, 338 S.E.2d 215, 218 (1985). Further, it is provided by statute that, "[a]t all adjudicatory hearings . . ., all procedural rights afforded to adults in criminal proceedings shall be afforded the juvenile unless specifically provided otherwise in this chapter." W. Va.Code § 49-5-2(j) (2001) (Repl.Vol.2004). Thus, the West Virginia Rules of Criminal Procedure, to the extent that they are not inconsistent with juvenile delinquency statutes, are applicable to juvenile proceedings.11 See W. Va. R.Crim. P 54(b)(3) ("Except as expressly provided within these rules, they do not apply to proceedings under Chapter 49, Article 5, Section 1, et seq. . . . so far as they are inconsistent with that statute."); Syl. pt. 1, State v. Gary F., 189 W.Va. 523, 432 S.E.2d 793 (1993) ("The continuing disclosure requirement imposed by Rule 16 of the West Virginia Rules of Criminal Procedure applies to juvenile transfer proceedings in the same manner as it applies to criminal proceedings.").

This Court has noted in passing that an "indictment is defective for failing to allege the venue of the crime[.]" State v. Pridemore, 93 W.Va. 417, 418, 116 S.E. 756, 756 (1923). Regarding a defect in a charging instrument,12 Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure states, in relevant part,

The following must be raised prior to trial:

. . . .

(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings).

(Emphasis added).13 See also W. Va. R.Crim. P. 34 (stating, in part, that "[t]he court on motion of a defendant shall arrest judgment if...

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