State v. Wilcox, No. 14658

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 286 S.E.2d 257,169 W.Va. 142
• Parties: STATE of West Virginia v. Robb L. WILCOX.
• Decision Date: 19 January 1982
• Docket Number: No. 14658

Page 257

286 S.E.2d 257 169 W.Va. 142 STATE of West Virginia
v.
Robb L. WILCOX. No. 14658. Supreme Court of Appeals of West Virginia. Jan. 19, 1982.

Page 258

Syllabus by the Court

1. "In the trial of a criminal case, the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent and the right to have counsel present." Syl. pt. 2, State v. Rissler, W.Va., 270 S.E.2d 778 (1980).

2. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1979).

William E. Simonton, III, Pennsboro, for plaintiff in error.

[169 W.Va. 143] Chauncey H. Browning, Atty. Gen. and Ann V. Gordon, Asst. Atty. Gen., Charleston, for defendant in error.

PER CURIAM:

Robb L. Wilcox appeals from a breaking and entering conviction in the Circuit Court of Doddridge County. Wilcox consolidates his assignments of error into five arguments in support of reversal. He argues that the trial court erred in: (1) denying his motion to strike two prospective jurors for cause; (2) admitting into evidence photographs of the vehicle in which he was riding at the time of his arrest; (3) admitting testimonial evidence of incriminating statements he made while in custody; (4) denying his motion for a directed verdict of acquittal based on insufficient evidence; and (5) refusing to give an instruction permitting the jury to return a verdict of petit larceny. Concluding that no reversible error was committed and that Wilcox received a fair trial by an impartial jury, we affirm.

We address the defendant's contentions in the order presented and thus begin by considering whether the trial court committed reversible error by denying the defendant's motion to strike two prospective members of the jury panel for cause. Wilcox was charged with the breaking and entering of Michel's Pharmacy located in West Union, West Virginia. During the voir dire the trial court asked if any venireman were employed by the defendant or by Charles Michels, the owner of the victimized pharmacy. Two persons stated that they were employed by Donald Michels, the victim's brother, at the Champion Agate Company in Pennsboro, West Virginia. The defendant neither questioned these individuals nor made any attempt to show that either of them had any interest in the outcome of the proceedings. The trial judge conducted a thorough voir dire examination of the members of the panel asking them, among other things, whether there was any circumstance which would in any degree interfere with their ability to fairly and impartially[169 W.Va. 144] try the case on the law and the evidence. Three prospective jurors were struck for cause. At the conclusion of the voir dire, the defense moved to strike the two employees of Donald Michels based on the existence of the employer-employee relationship. The motion was denied.

It is not disputed that a criminal defendant in a felony trial is entitled to exercise six preemptory strikes against a panel of twenty jurors who are free from challenge for cause under common law.

Page 259

Under this rule, it is reversible error to deny a valid challenge for cause even if the disqualified juror is later struck by a preemptory challenge. W.Va. Code, 62-3-3; State v. Beck, 286 S.E.2d 234 (W.Va.1981); State v. West, 157 W.Va. 209, 217, 200 S.E.2d 859, 864-65 (1973); State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966); Syl. pt. 1, State v. Dushman, 79 W.Va. 747, 91 S.E. 809 (1917). The only question then is whether the two prospective jurors were disqualified to serve as jurors at common law. The prima facie grounds for disqualification at common law were reiterated in State v. Riley, supra 151 W.Va. at 383, 151 S.E.2d at 320:

"(1) Kinship to either party within the ninth degree; (2) was arbitrator on either side; (3) that he has an interest in the cause; (4) that there is an action pending between him and the party; (5) that he has taken money for his verdict; (6) that he was formerly a juror in the same case; (7) that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him; and causes of the same class or founded upon the same reason should be included."

It is clear that the prospective jurors were not disqualified under any of the principal causes for disqualification at common law. We are not cited to any authority supporting Wilcox's argument, and we have found no cases on this precise point in our research. The most similar West Virginia cases are distinguishable. In State v. Dushman, supra, and State v. Davis, 91 W.Va. 241, 112 S.E. 414 (1922), employees of companies which had been robbed were permitted to serve on juries trying persons for stealing and for buying and receiving property taken [169 W.Va. 145] from the companies. The Court reasoned in these cases that a...