State v. Wilson

• Decision Date: 23 July 1974
• Docket Number: No. 13240,13240
• Citation: 157 W.Va. 1036,207 S.E.2d 174
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Chester WILSON.

Page 174

207 S.E.2d 174

157 W.Va. 1036

STATE of West Virginia v. Chester WILSON.

No. 13240.

Supreme Court of Appeals of West Virginia.

July 23, 1974.

Dissenting Opinion Aug. 1, 1974.

Syllabus by the Court

1. The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court.

2. The trial court, in the exercise of its sound discretion, may properly limit the extent of the voir dire examination of jurors to inquiries related to their qualifications as provided by Code, 56--6--12.

3. It is not prejudicial error for the trial court to refuse to ask the jurors on voir dire whether they would give more credence to the testimony of a police officer than to any other witness.

4. The question as to which witnesses may be exempt from a sequestration of witnesses ordered by the court lies within the discretion of the trial court, and unless the trial court acts arbitrarily to the prejudice of the rights of the defendant the exercise of such discretion will not be disturbed on appeal.

5. 'It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses.' Point 5, syllabus, State v. Hoke, 76 W.Va. 36 (84 S.E. 1054).

6. The rule with regard to excluding police officers from a sequestration of witnesses is that it is not error to do so if the testimony of such police officers is not crucial to the state's case and not prejudicial to the defendant.

7. Where a sequestered witness does not withdraw when ordered, or afterwards returns into the courtroom and is present during the examination of other witnesses, it is discretionary with the judge whether or not he will allow this witness to be examined.

8. The question of the competency of a witness to testify is left largely to the discretion of the trial court and its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error.

Kenneth H. Fisher, Huntington, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Justice:

This is an appeal by Chester Wilson, the defendant below and hereinafter referred to as defendant, from a final judgment of the Circuit Court of Wayne County entered February 17, 1972 wherein the court refused to set aside the jury verdict of guilty of voluntary manslaughter. The defendant was sentenced to one to five years in the West Virginia State Penitentiary but was granted a stay of execution pending the outcome of this appeal. The defendant contended that numerous prejudicial errors occurred at his trial and on September 11, 1972 this Court granted defendant's appeal and after two continuances, the case was submitted for decision on May 7, 1974 upon the arguments and briefs on behalf of the respective parties.

The defendant was indicted by the Grand Jury of Wayne County at the July, 1971 term of court for the murder of Arnold Terry Thompson. It appears from the record that the defendant and his brother were involved in an altercation with Thompson's brother approximately a month prior to Thompson's death. Thereafter, Thompson informed several people, including the defendant's wife, that he intended to fight the defendant after which the defendant would require hospitalization. Thompson was physically larger than the defendant and was usually successful whenever he was involved in a fight. As a result of the altercation and subsequent threats from Thompson, the defendant's brother informed the defendant that he had placed a .22 caliber pistol in a truck owned by defendant's brother.

On Saturday, July 3, 1971, the day Thompson was killed, it appears Thompson had been drinking extensively before his death because a blood sample taken from his body by the state police after his death revealed that his blood alcohol content was .19 of one percent. At approximately 5 o'clock that afternoon Thompson rode his motorcycle past the defendant's house and shortly thereafter came back past the house again. Although the defendant saw Thompson ride by on both occasions, no words were exchanged.

At approximately 5:30 p.m. the defendant borrowed his brother's truck since his car was not in operating condition and drove his wife and two children to the home of his father-in-law, which was located at the end of a narrow, rough dirt road. As the defendant proceeded towards his father-in-law's home he drove past the residence of one Jay Workman. Thompson, who had been dating Patricia Robinson, who was Jay Workman's granddaughter, was talking with Patricia in front of Workman's home when the defendant and his family came by. As the defendant drove by, it appears that Thompson yelled to him to stop and cursed him as the defendant continued down the road to the home of his father-in-law.

After the defendant arrived at his father-in-law's home, he took the pistol from under the seat of the truck and went into the house. The defendant testified that his brother wanted his truck returned so he soon thereafter got back into the truck and proceeded by himself down the road towards the Workman home with the pistol on the seat between his legs. The defendant's wife testified that she begged him not to go back down the road where they had seen Thompson.

In the meantime, the defendant's wife's sister and her husband, Jerry Chafin, and their children, had stopped in the road in front of the Workman home to talk to Thompson as they were proceeding in their car to the home of the defendant's father-in-law. Thompson told Jerry Chafin that he had just had a run in with the defendant and said that he had cursed him but the defendant would not stop. Thompson also stated that he was going to give the defendant an opportunity to use a lead pipe on him as the defendant did on his brother, obviously referring to the altercation the defendant and defendant's brother had with Thompson's brother about a month prior thereto. Shortly thereafter, the defendant's truck came in sight and Thompson told Jerry Chafin to leave his car in the road and not to move it because the road was too narrow for the defendant to pass by Chafin's car. Chafin stated that he did not want to get involved and attempted to start his car to move it but the car would not start. The defendant stopped his truck approximately two and one-half car lengths from Chafin's car. Thompson started walking briskly toward the defendant's truck and as he approached the truck, the defendant pointed the pistol out of the window of the truck and warned him to stay away or he would shoot. Despite this warning, Thompson continued to approach the truck and the defendant shot once and killed him after he came within three or four feet of the defendant and reached his left arm toward the truck.

The errors assigned by the defendant are as follows: (1) the court erred in refusing to ask the jurors on voir dire examination certain questions requested by the defendant's counsel; (2) the court erred by excluding police officers from the sequestering of the witnesses; (3) the court erred in allowing a ten year old witness for the state to testify before being properly qualified; (4) the court erred in refusing to direct a verdict for the defendant; (5) the court erred in refusing to give to the jury instructions numbered 17 and 47 offered by the defendant.

It is contended by the defendant in support of his first assignment of error that the court should have asked the jury upon request (1) if the jurors had any knowledge of the facts and circumstances involved in the case, from what source this information was obtained, (2) whether the jurors were related to any of the witnesses subpoenaed by the state, (3) whether the jurors thought it more probable than not the defendant was guilty because of the indictment returned against him, (4) whether the jurors would give more credibility to the testimony of police officers than to that of any other witness.

After asking certain questions with regard to the qualifications of the jurors on the panel, the court asked the following question of the entire panel:

Do you know anything about the facts and circumstances of this case, either residing in the community where it occurred; having been talked to by any of the parties or anyone who might be a witness in this case; having seen it or heard it on television; having heard about it on the radio; having read about it in the newspaper, whereby you have formed, made up your mind or expressed an opinion concerning the guilt or innocence of the defendant, Chester Wilson?

After this question was asked the panel, four jurors were subsequently excused because of their knowledge of the case and by virtue of such knowledge it would have been difficult to arrive at a fair and impartial verdict.

After calling four more jurors the court repeated the question asked the panel quoted above and then made the following statement to the jury panel:

Now, these questions will be addressed to the entire panel. The defendant in this case is Chester Wilson who is sitting here by his counsel Mr. Kenneth Fisher and Mr. Albert W. Jordan, Jr. Do any of you ladies and gentlemen know yourselves to be related by the ties of blood or marriage to Chester Wilson?

The deceased was Arnold Terry Thompson. Do any of you ladies and gentlemen know yourselves to be related by the ties of blood or marriage to Arnold Terry Thompson in his lifetime?

Do any of you ladies and gentlemen know any reason why you could not fairly listen to the evidence in this case; listen to the instructions of the Court; listen to the arguments both on behalf of the...