State v. Williams, 13569

• Decision Date: 21 December 1976
• Docket Number: No. 13569,13569
• Citation: 230 S.E.2d 742,160 W.Va. 19
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Donald Shelton WILLIAMS.

Page 742

230 S.E.2d 742

160 W.Va. 19

STATE of West Virginia v. Donald Shelton WILLIAMS.

No. 13569.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1976.

Syllabus by the Court

1. 'It is improper for the jurors to read any newspaper articles discussing a case on trial. If the articles read are likely to mislead or improperly affect their minds, the impropriety may constitute reversible error.' Syllabus, State v. Barille, 111 W.Va. 567, 163 S.E. 49 (1932).

2. A trial court is vested with discretion in making the initial determination as to whether or not newspaper articles or other publicity brought to the attention of the jury in the trial of a case results in prejudice.

3. To establish that he was denied a fair and impartial trial, the defendant does not have to affirmatively show that there was actual prejudice resulting from the contents of the newspaper article or the jury's exposure to it, but rather that there was probable prejudice.

4. Prejudice may result to a defendant in criminal proceedings by virtue of the jury's exposure to news articles, even though such articles do not deal directly with him.

5. The trial court is charged with ascertaining in the first instance whether there is bias or prejudice on the part of a juror and, although the opinion of a juror is entitled to consideration, it should not be taken as conclusive.

6. A trial court must inquire beyond a simple and direct questioning of a juror as to whether he can decide a case fairly and impartially after having read news articles related to the trial of a case. Specific questions should be asked in order to determine whether a juror, even without his own knowledge, may be biased or prejudiced.

Anderson & Sines, F. Alfred Sines, Jr., Beckley, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Fredric J. George, Asst. Atty. Gen., Charleston, for defendant-in-error.

BERRY, Chief Justice:

The appellant, Donald Shelton Williams, was tried, found guilty and convicted in the Circuit Court of Raleigh County of the offense of transferring lysergic acid diethylamide (commonly referred to as LSD), in violation of the West Virginia Controlled Substances Act. The appellant now assails his conviction on the ground that it was tainted by newspaper publicity during the course of his trial.

The initial indictments against the appellant, returned during the September, 1972 term of the Circuit Court of Raleigh County, were dismissed on motion by the State. Thereafter, the defendant was reindicted and tried in the Circuit Court of Raleigh County on a charge of selling and transferring LSD. This trial resulted in a hung jury. At the end of a two-day trial in December, 1973, the jury was charged, and about five-thirty p.m., retired to deliberate its verdict. After about an hour, no verdict having been reached by the jury, the court was adjourned and the jury was released until the following morning. At the time, the court cautioned the jurors not to read any newspaper articles concerning the case.

At nine o'clock the following morning, the jury resumed its deliberations. At ten-twenty, the jury announced that it had reached a verdict. It was the decision of the jury that the defendant was guilty of the offense as charged in the indictment.

Immediately upon the announcement of the jury's verdict, counsel for the appellant drew the court's attention to an article which had appeared in the morning newspaper, the text of which is as follows:

'YOUTH HELD FOR LSD SALE'

'A 17-year-old Glen White youth was arrested at 5:30 p.m. Monday for possession and sale of LSD as he left the Raleigh County courthouse after attending the trial of a Crow man accused of the transfer of LSD.

'According to Patrolman Daniel Moore, who along with Patrolmen Martin Durham and Everett Fink made the arrest, the youth was named on a warrant issued by Magistrate Lorena Wallace. The warrant alleges that he sold a small quantity of the drug to an informant on the nights of Oct. 12 and 13 in the general area of the courthouse.

'The youth was attending the trial of Don Shelton Williams of Crow. He was subsequently lodged in the juvenile section of the jail.'

Counsel then moved the court to individually poll the jury to determine if any of the members had read the article and, if so, whether it had influenced the verdict. The trial court granted the motion and recalled the jury to inquire about the article. On questioning, it was determined that one member of the jury, the foreman, had read the article and had advised the other members of the jury of its contents. In addition, the foreman apparently advised all or most of the jurors that the person to whom the article referred was present in the courtroom during the trial. In response to direct questioning by the court, all jurors stated that the knowledge of the article had no bearing or influence on them in arriving at their verdict, although one juror responded, 'I don't think so' when initially asked the question. It developed on further inquiry that the jury was divided 7 to 5 (apparently for conviction) at the close of deliberations on the previous day. Concomitantly, seven jurors stated that they had made up their minds on the previous day. Included in this group was the foreman.

During the conduct of the jury inquiry, an exchange occurred between the court and counsel for the defendant, out of the presence of the jury, during which time counsel advised the court that the person referred to in the news story had been seated with the wife of the defendant during the trial. Counsel requested the court to ask the members of the jury if they had been made aware of the presence and location of the person. The court then asked the jury if, during the conversation the foreman had with the other members of the panel, the foreman had stated where the person arrested had sat in the courtroom. It was in response to this question that the jurors indicated that the foreman had advised that the person was seated in the courtroom. The court refused to specifically ask if any of the jurors knew that the person arrested was seated with the defendant's wife during the course of the trial.

As a result of the inquiry, the court concluded that there was no prejudice to the defendant and accepted the jury's verdict.

The basis of the challenge to the defendant's conviction, as it was articulated in the argument and brief in this appeal, relates solely to the alleged prejudicial effect of the jury's exposure to newspaper publicity during trial. It is asserted that the trial court erred in failing to sufficiently interrogate the jury about the article in order to properly ascertain the effect of the publicity and that the trial court erred in failing to grant a new trial based on the disclosures following the inquiry which was made.

We start with the fundamental proposition that the influence of pretrial publicity or publicity during trial may be of such a nature as to deprive a defendant in criminal proceedings of a fair trial. We said, in the syllabus point adjudicated in State v. Barille, 111 W.Va. 567, 163 S.E. 49 (1932) that:

'It is improper for the jurors to read any newspaper articles discussing the case on trial. If the articles read are likely to mislead or improperly affect their minds, the impropriety may constitute reversible error.'

This is a summary statement of the law in West Virginia governing such matters.

There are no hard and fast rules to be followed in making the determination of whether newspaper articles read by a jury or called to its attention constitute grounds for a new trial. It is well established that a trial court is vested with discretion in making the initial determination as to whether or not newspaper articles or other publicity brought to the attention of the jury in the trial of a case results in prejudice. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); U.S. v. Pomponio, 517 F.2d 460 (4th Cir. 1975); U.S. v. Armocida, 515 F.2d 29 (3rd Cir. 1975). It has been held that some newspaper articles or publicity to which jurors have been exposed are in and of themselves prejudicial. In other instances, where the contents of articles are not per se or inherently prejudicial, an inquiry is mandated in order to ascertain whether the publicity may have effectively prejudiced the jury in its deliberation. However, each case must turn on its individual circumstances, and the trial court or appellate court must weigh such factors as the content and context of the article, the manner in which publicity is brought to the attention of the jury, the strength...