State v. Vance
Citation | 535 S.E.2d 484,207 W.Va. 640 |
Decision Date | 14 July 2000 |
Docket Number | No. 27382.,27382. |
Court | Supreme Court of West Virginia |
Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Michael VANCE, Defendant Below, Appellant. |
Joan G. Hill, Esq., Crandall, Pyles, Haviland & Turner, Logan, West Virginia, Attorney for the Appellant.
Darrell V. McGraw, Jr., Esq., Attorney General, Leah Perry Macia, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Appellee. SCOTT, Justice:
The defendant, Michael Vance, was convicted of unlawful wounding by jury trial on November 18, 1998, in the Circuit Court of Mingo County, West Virginia. He contends the circuit court erred in failing to grant him a new trial based on grand juror disqualification and a familial relationship which exists between defense counsel at trial and the victim. We believe the circuit court committed no error.
The facts of this case are not in dispute. During the late evening hours of June 30, 1997, at Belle's grocery store in Lenore, West Virginia, the defendant attacked and beat James Deskins with a pool cue rendering him unconscious. The reason for the attack is not clear, but, the victim was seriously injured. He was transported by ambulance to Williamson Memorial Hospital in Williamson, West Virginia, where he was stabilized. The victim was then taken by helicopter to Cabell Huntington Hospital in Huntington, West Virginia, where he underwent brain surgery. At trial, Dr. Maurice Jerome Day, Jr., who performed the surgery, testified by video deposition that the victim "had an obvious skull fracture and a couple of cuts around the right facial area." Upon closer examination, Dr. Day determined a blood clot had formed between the victim's skull and brain and he suffered from severe fractures around his eye socket and cheekbone on the right side of his head. The surgery could not save the victim's vision. He is blind in the right eye.
The defendant was arrested on July 1, 1997. After encountering difficulties in impaneling a grand jury, the defendant was finally indicted in September 1998 for malicious wounding. Michael Magann was appointed as counsel to represent the defendant. Defense counsel argued pretrial that the charge against the defendant should be dismissed because of irregularities involving grand juror Cathy Vance. The court denied the motion.
The case proceeded to trial. On the morning jury selection was to begin, Mr. Magann learned, through information regarding a threat that was made on the defendant's life, that he shares a distant adoptive familial relationship with the victim. This relationship exists through Mr. Magann's adopted grandmother. He learned that his grandmother's cousin is the victim's grandfather. Mr. Magann states that he informed the defendant of the relationship; the defendant states that Mr. Magann did not disclose the relationship prior to trial. Nonetheless, Mr. Magann represented the defendant through trial and sentencing. On November 18, 1998, the defendant was convicted of unlawful wounding and on December 14, 1998, he was sentenced to a period of not less than one nor more than five years in the West Virginia Penitentiary.
On December 29, 1998, the defendant filed a pro se motion requesting new counsel. He supported the motion by alleging his trial counsel was closely related to the victim. The circuit court held a hearing on the motion on January 11, 1999. The court entered an order the following day appointing present counsel to represent the defendant in post-trial motions. A motion for a new trial was filed assigning as errors the qualifications of the grand jury and the relationship of trial counsel to the victim. By order entered on July 21, 1999, the circuit court denied the motion. It is from this order that the defendant appeals.
On appeal, the defendant contends the circuit court erred by denying his motion for a new trial for two reasons. First, he alleges the grand jury was improperly constituted and/or a member of the grand jury should have been disqualified. He also contends he was denied a fair trial because his defense counsel at trial is related to the victim.
The defendant in this case contends the indictment against him must be dismissed because one of the grand jurors stated that she knew the victim. This contention is based on the following dialogue which took place during grand jury proceedings between the prosecuting attorney and grand juror Cathy Vance:
A similar issue was addressed in State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995). The defendant in Garrett, was convicted of first degree murder without a recommendation of mercy. On appeal, he requested that the indictment be dismissed because a member of the grand jury was a witness at trial. Id. at 644, 466 S.E.2d at 495. This Court chose not to reach the issue of whether the grand juror was, in fact, disqualified by espousing the following reasoning:
This Court has previously stated that State v. Bailey, 159 W.Va. 167, 173, 220 S.E.2d 432, 436 (1975). Moreover, "[u]nder the provisions of W.Va.Code, 52-2-12, an indictment will not be quashed or abated on the ground that one member of the grand jury is disqualified." Syl. pt. 4, Bailey, supra.
Id. at 174, 220 S.E.2d at 436. (citations omitted). Accordingly, it is not necessary that we address whether Mrs. Nichols was, in fact, disqualified from serving on the grand jury which indicted the appellant, as such disqualification, if any, would not quash the indictment. Thus, it was not error for...
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