State of West Virginia v. Howard Clarence Jenner , 236 W. Va. 406 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
November 9, 2015
released at 3:00 p.m.
No. 14-0876 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff below, Respondent
v.
HOWARD CLARENCE JENNER,
Defendant Below, Petitioner
Appeal from the Circuit Court of Upshur County
The Honorable Kurt W. Hall, Judge
Criminal Action No. 12-F-17
CONDITIONALLY AFFIRMED PENDING
HEARING ON REMAND
Submitted: October 7, 2015
Filed: November 9, 2015
Harry A. Smith, III, Esq. Patrick Morrisey, Esq.
McNeer, Highland, McMunn and Varner, L.C. Attorney General
Elkins, West Virginia Benjamin F. Yancey, III, Esq.
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In reviewing challenges to findings and rulings made by a circuit court,
we apply a two-pronged deferential standard of review. We review the rulings of the circuit
court concerning a new trial and its conclusion as to the existence of reversible error under
an abuse of discretion standard, and we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl.
Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. “The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, is sufficient to convince a reasonable person
of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proved beyond a reasonable
doubt.” Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
3. “A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the jury might have drawn in favor
i
of the prosecution. The evidence need not be inconsistent with every conclusion save that
of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury verdict should be set
aside only when the record contains no evidence, regardless of how it is weighed, from which
the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461
S.E.2d 163 (1995).
4. “A trial court’s evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State
v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
5. “The type of evidence that is admissible in the mercy phase of a
bifurcated first degree murder proceeding is much broader than the evidence admissible for
purposes of determining a defendant’s guilt or innocence. Admissible evidence necessarily
encompasses evidence of the defendant’s character, including evidence concerning the
defendant’s past, present and future, as well as evidence surrounding the nature of the crime
committed by the defendant that warranted a jury finding the defendant guilty of first degree
murder, so long as that evidence is found by the trial court to be relevant under Rule 401 of
the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the
ii
West Virginia Rules of Evidence.” Syl. Pt. 7, State v. McLaughlin, 226 W.Va. 229, 700
S.E.2d 289 (2010).
6. “‘A motion for a new trial on the ground of the misconduct of a jury is
addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal
where it appears that defendant was not injured by the misconduct or influence complained
of. The question as to whether or not a juror has been subjected to improper influence
affecting the verdict, is a fact primarily to be determined by the trial judge from the
circumstances, which must be clear and convincing to require a new trial, proof of mere
opportunity to influence the jury being insufficient.’ Syllabus Point 7, State v. Johnson, 111
W.Va. 653, 164 S.E. 31 (1932).” Syl. Pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402(1995).
7. “A jury verdict may not ordinarily be impeached based on matters that
occur during the jury’s deliberative process which matters relate to the manner or means the
jury uses to arrive at its verdict.” Syl. Pt. 1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d
384 (1981).
8. “In any case where there are allegations of any private communication,
contact, or tampering, directly or indirectly, with a juror during a trial about a matter pending
iii
before the jury not made in pursuance of known rules of the court and the instructions and
directions of the court made during the trial with full knowledge of the parties; it is the duty
of the trial judge upon learning of the alleged communication, contact, or tampering, to
conduct a hearing as soon as is practicable, with all parties present; a record made in order
to fully consider any evidence of influence or prejudice; and thereafter to make findings and
conclusions as to whether such communication, contact, or tampering was prejudicial to the
defendant to the extent that he has not received a fair trial.” Syl. Pt. 2, State v. Sutphin, 195
W.Va. 551, 466 S.E.2d 402 (1995).
9. “In the absence of any evidence that an interested party induced juror
misconduct, no jury verdict will be reversed on the ground of juror misconduct unless the
defendant proves by clear and convincing evidence that the misconduct has prejudiced the
defendant to the extent that the defendant has not received a fair trial.” Syl. Pt. 3, State v.
Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995).
iv
LOUGHRY, Justice:
The petitioner, Howard Clarence Jenner, appeals his convictions for first
degree murder1 without a recommendation of mercy, attempted murder,2 and malicious
wounding.3 As support for his appeal, he argues that the State presented insufficient
evidence to support the convictions, that the circuit court admitted unfairly prejudicial
evidence during the “mercy phase” of his bifurcated trial, and that juror misconduct occurred
during trial.4 After a thorough review of the appendix record on appeal, the parties’
arguments, and the pertinent law, we find that the evidence at trial was sufficient to convict
the petitioner; that there was no evidentiary error during the mercy phase; and that the
petitioner failed to prove misconduct with regard to an alleged pre-deliberation conversation
among jurors. However, because the circuit court abused its discretion by restricting the
petitioner’s opportunity to attempt to prove that a juror communicated with the surviving
victim during trial recesses, we remand this case for an additional post-trial hearing on that
single issue.
1
W.Va. Code § 61-2-1 (2014).
2
W.Va. Code §§ 61-11-8, 61-2-1 (2014).
3
W.Va. Code § 61-2-9(a) (2014).
4
The petitioner also raises a fourth assignment of error, contending in a very general
fashion that the trial court erred by denying his post-trial motions. Because this assignment
of error merely duplicates the other assignments of error discussed herein, we will not
address it separately.
1
I. Factual and Procedural Background
At approximately 4:00 p.m. on December 22, 2011, Beni Truax was shot and
killed while in the yard of her Upshur County home. One bullet entered her lower back and
another bullet struck the right side of her head, traveling back to front. Her husband,
Sherman Truax, testified he was sleeping in a recliner inside of the home when the sound of
a gunshot awakened him. As he was standing up from his chair, he heard another shot. Mr.
Truax walked out of the house and saw his wife lying face-down and motionless on the
ground. He then saw a man step from behind a parked truck holding a rifle outfitted with a
large scope. Mr. Truax immediately recognized this man as his nephew, the petitioner
herein. Mr. Truax testified that the petitioner aimed the rifle at him, compelling Mr. Truax
to turn and run toward the door of his home. The assailant fired the rifle, striking Mr.
Truax’s right wrist and causing serious injury.
Inside his home, Mr. Truax wrapped a towel around his badly bleeding wrist
and called 911. When police arrived, he identified the petitioner as the shooter. In addition
to the family relationship, Mr. Truax was familiar with the petitioner’s appearance because,
two years earlier, the petitioner had lived in the Truax home for several months. Mr. Truax
also pointed police in the direction that he believed the petitioner had fled on foot. The
police found evidence that a person had run through a muddy area, but they lost the
assailant’s trail.
2
At approximately 11:00 that night, the police encountered the petitioner, who
was wet and muddy, walking along a nearby roadway. He was arrested and taken to a police
station, where he gave a statement. Initially, the petitioner told the police that he had been
hunting in the woods, stopped to rest, and fell asleep. He volunteered to the police that he
had a rifle, but claimed that somebody stole it while he was sleeping. The petitioner denied
being near the Truaxes’ home, but then changed his story and said that he had been hunting
near their home. Later in the statement, he changed his story again to claim that Mr. Truax
had fired upon him and he had returned fire only in self-defense, accidentally shooting Mrs.
Truax. The petitioner also admitted to police that he was angry with the Truaxes because two
years earlier they had thrown him and his mother out of their home. He then led police to
where he had disposed of his rifle in a swampy area near the victims’ home.
The evidence at trial showed that the petitioner traveled from Tennessee to
Upshur County, West Virginia, approximately one week before the crimes. Four days before
the shootings, on the early morning of December 18, 2011, the petitioner called a taxi that
transported him to the Number Five Mine Road off of Hacker’s Creek Road, where he
arrived at 4:48 a.m. This location is near the Truaxes’ home on Hacker’s Creek Road. Later
that morning, at around 10:00 a.m., the petitioner went to the Buckhannon Wal-Mart where
he purchased his rifle, a telescopic sight, and some ammunition. The rifle uses .243 caliber
Winchester shells, the same caliber as two empty shell casings found near Mrs. Truax’s body.
3
On the evening of December 18, the petitioner took a taxi to a sporting goods store where he
had a salesperson demonstrate how to use his new rifle and scope. The petitioner practiced
shooting the rifle at the store’s indoor firing range.
At the April 2014 trial, the jury found the petitioner guilty of the first degree
murder of Mrs. Truax and the attempted murder and malicious wounding of Mr. Truax. The
trial proceeded to a bifurcated “mercy phase,” during which the defense presented expert
testimony from psychologist Dr. Robert Jeffrey Rush and from the petitioner’s sister,
Elizabeth Grindstaff. Dr. Rush provisionally diagnosed the petitioner with schizoid
personality disorder and explained that the petitioner is a “loner” with low-average
intelligence who, among other traits, has great difficulty perceiving the world the way other
people do, tends to ruminate, and loses himself in the fantasy world of video gaming. Ms.
Grindstaff offered that her brother is very loving, is both emotionally and financially
supportive of her and her children, and that she has never witnessed him displaying anger or
demonstrating a propensity toward violence.
The State presented three witnesses during the mercy phase of the trial.
Sherman Truax and his son, Nicholas, each testified about the impact these crimes had upon
them. Also, a police officer authenticated a photograph and a video game, both of which
were admitted into evidence over the petitioner’s objection. The photograph showed that
4
when arrested on the night of the shootings, the petitioner was wearing a t-shirt printed with
the following words: “May God have mercy on my enemies because I sure as hell won’t.”
The shirt also depicted two skulls and crossbones. A police officer testified that the video
game, “Assassin’s Creed Revelations,” was found in the backpack that the petitioner had
been carrying in the days leading up to the crimes. The officer read the description on the
back of the game:
Two assassins, one destiny. I have always lived by the creed.
My blades have dispensed death and justice in equal measure,
yet I am no closer to discovering the truth behind our order, so
I must walk the path of my ancestor, Apilia, in his footsteps I
will find my true purpose.
After hearing additional argument from counsel and engaging in further
deliberations, the jury did not recommend mercy. On May 30, 2014, the petitioner filed two
separate post-trial motions. One motion sought a judgment of acquittal or, in the alternative,
a new trial based on insufficiency of the evidence to support the convictions and trial error.
The other motion sought a new trial because of alleged juror misconduct. On June 11, 2014,
the petitioner filed a motion asking the circuit court to allow him to subpoena both the trial
jurors and alternate jurors to testify at the post-trial motions hearing. The court permitted the
petitioner to subpoena two jurors and one alternate juror whom the petitioner alleged
committed misconduct.
5
At the post-trial hearing held on August 4, 2014, the petitioner’s counsel
presented testimony from the petitioner’s sister, Ms. Grindstaff, and his mother, Mary
Branham. They asserted that during multiple recesses in the trial, they observed Sherman
Truax outside of the courthouse, smoking along side of, and talking with, a woman whom
they later learned was a juror for the petitioner’s case. Based on their descriptions, the
defense counsel identified the juror by name, Diana Crites. Ms. Grindstaff and Ms. Branham
testified they did not realize this person was a juror until they were allowed into the
courtroom to hear the verdict and saw her on the jury panel; before that, they had been
sequestered outside of the courtroom. Ms. Grindstaff also asserted that on the first day of
trial, Nicholas Truax was present during a smoking break with his father and this juror. In
their hearing testimony, Ms. Grindstaff and Ms. Branham described the female smoker’s
appearance and the specific places where they saw her and Mr. Truax standing. Both
admitted, however, that they had not overheard any conversations. Contending that these
interactions constituted an improper extrinsic influence on Juror Crites, the petitioner argued
that he was denied a fair trial.
During this post-trial hearing, the State presented testimony from Laura Queen,
a victim advocate employed in the prosecutor’s office. Her job includes assisting and
escorting victims around the courthouse during trial. She testified that on the first day of trial
she saw Mr. Truax outdoors smoking and talking with friends, but she knew that these people
6
were not jurors. This was the only such break Ms. Queen observed Mr. Truax take. She
never saw Mr. Truax talk to any juror and, other than the times he was present to testify, she
did not observe him at the courthouse at all. She explained that on the first day of trial,
shortly after they testified, Sherman and Nicholas Truax left the courthouse to fix a problem
with their car. Ms. Queen did not recall seeing Mr. Truax at the courthouse on the second
day of trial and, on the third day, he was not called to the courthouse until the afternoon.
Countering, the petitioner observed that Mr. Truax was present at the courthouse on the first,
second, and fourth days of trial because he testified on each of those days.
In addition, Ms. Grindstaff reported that during a break in the trial, she
overheard a man and a woman talking in the courthouse hallway. She reported that the man
said he was tired and had not slept well, to which the woman suggested that he “call off”
work that night. According to Ms. Grindstaff’s testimony, the man then said, “[w]ell, it just
depends on how long we’re here” and the woman responded, “[w]ell, maybe we won’t be
here long unless–that is, unless you’re still undecided.” Ms. Grindstaff says that when she
later entered the courtroom, she saw the man sitting in the jury box. Based upon Ms.
Grindstaff’s descriptions, defense counsel identified the man as Juror Edward Zickefoose and
the woman as an alternate juror, Samantha Ryan, who was excused prior to deliberations.
The petitioner contends that the jurors must have been discussing the verdict prematurely.
7
The circuit court denied the petitioner’s request to take testimony from Jurors
Crites and Zickefoose and Alternate Juror Ryan, ruling that the petitioner had not proven
misconduct and the court was “not going to start bringing in jurors . . . after each and every
verdict” to inquire whether anybody said anything. The court explained, “that’s not going
to be a new review process of Court verdicts[.]”
After considering the testimony given during the post-trial hearing, the court
concluded that the petitioner had not presented clear and convincing evidence of any juror
misconduct. With regard to the alleged contact during smoking breaks, the court found that
the only thing proven was “perhaps an opportunity for jurors to meet with Mr. Truax[.]”
However, the court doubted that the contacts had even occurred. The court questioned the
credibility and motivation of Ms. Grindstaff and Ms. Branham, both because of their close
familial relationship with the petitioner and because they claimed that these contacts occurred
during every break throughout the trial.5 The court said, “I find it incredible that each and
every time the Court recessed, that these witnesses observed Mr. Truax talking to the same
juror, I just don’t–the empirical odds . . . are against that . . . I find it suspect[.]”
5
The record reflects that breaks were routinely taken at mid-morning, lunch, and mid-
afternoon during the four-day trial.
8
The court was also unconvinced that the petitioner proved any misconduct with
regard to the alleged discussion between jurors in the hallway. The court found that even if
this discussion took place, it was unclear when it occurred and there was no proof that the
conversation pertained to the verdict. The court reasoned that the jurors may have been
referencing the court’s practice of consulting them about when to take breaks and how late
the trial would run each day. Accordingly, the court concluded that there was not clear and
convincing evidence that the jurors had begun deliberating prematurely.
After finding no merit to the petitioner’s remaining claims–insufficient
evidence and trial error–the circuit court denied the petitioner’s post-trial motions and
proceeded to sentencing. By written order entered on August 6, 2014, the petitioner was
sentenced to life in prison without the possibility of parole for first degree murder, plus a
consecutive three to fifteen years in prison for attempted murder. A sentence of two to ten
years in prison for malicious wounding was ordered to run concurrently with the attempted
murder sentence. This appeal followed.
II. Standard of Review
The petitioner’s case is before this Court on appeal from the circuit court’s
denial of his motions for a new trial and judgment of acquittal. We apply the following
standard when reviewing a circuit court’s decision denying a motion for new trial:
9
In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Furthermore, “[t]he Court
applies a de novo standard of review to the denial of a motion for judgment of acquittal based
upon the sufficiency of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562,
567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). With
these general standards in mind, we turn to the assignments of error.
III. Discussion
A. Sufficiency of the Evidence
The petitioner argues that the circuit court should have granted his motion for
judgment of acquittal because the evidence at trial was insufficient to support the jury’s
guilty verdicts. The State responds that the evidence was more than sufficient to convict the
petitioner of all three charges.
In addition to the general standards of review set forth above, this Court
engages in the following analysis when reviewing sufficiency of the evidence claims:
10
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a reasonable
person of the defendant’s guilt beyond a reasonable doubt.
Thus, the relevant inquiry is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proved beyond a reasonable doubt.
Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover, a criminal
defendant takes on a difficult burden when seeking to prove such a claim:
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the
jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set aside
only when the record contains no evidence, regardless of how it
is weighed, from which the jury could find guilt beyond a
reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Id. at 663, 461 S.E.2d at 169, syl. pt. 3. As discussed herein, our review of the appendix
record leads us to conclude there was sufficient evidence to support these convictions.
Insinuating that Mr. Truax’s identification of him as the shooter was incorrect,
the petitioner cites to three portions of Mr. Truax’s report to police and 911. First, Mr. Truax
told police that the shooter wore blue jeans and a black hoodie, but the petitioner was
11
arrested wearing insulated coveralls over a dark t-shirt. Because the petitioner was arrested
some seven hours after the crimes, leaving time for him to remove the hoodie and put on the
coveralls, this attempt to suggest an improper identification fails. Moreover, the petitioner
admitted to police that he was at the victims’ home and had fired his rifle, and Mr. Truax was
extremely familiar with the petitioner’s appearance based upon their family relationship and
the petitioner’s former residence in the Truax home.
Second, the petitioner points out that Mr. Truax mistakenly reported to 911 that
both his wife and his son had been shot. His teenaged son, Nicholas, arrived safely home
from school a few minutes later, while Mr. Truax was still talking to the 911 operator. We
fail to see how this mistake assists the petitioner’s argument in any way. The inclusion of
Nicholas in the report is easily explained by the fact that Mr. Truax was anxious about his
family’s safety, and his son was due home momentarily.
Third, the petitioner argues that Mr. Truax reported more than two shots being
fired, but only two empty shell cartridge casings were found in the victims’ yard. This
argument is unpersuasive because other evidence proves that at least three shots were fired.
Mrs. Truax had two separate wounds in her body, and Mr. Truax suffered a wound to the
wrist. Moreover, when the police recovered the petitioner’s rifle, there was a fired cartridge
casing still inside.
12
As additional grounds for challenging the sufficiency of the evidence to
support his conviction, the petitioner argues that there was no gunshot residue found on his
face and hands. However, the petitioner was walking outside in the rain and, as the State’s
expert forensic analyst explained, gunshot residue washes away. He also complains that the
State failed to provide any analyses of his laptop computer and cellular telephone, and failed
to take footprint impressions or photographs of footprints at the scene of the crimes. The
petitioner does not explain how these investigatory steps would have impacted the case.
Next, the petitioner asserts that the State did not prove his rifle was the murder
weapon and made “no effort to determine whether the shell casings found near” Mrs. Truax’s
body were fired from his rifle. These contentions are belied by the record evidence. There
were multiple indications that the petitioner’s rifle was the weapon used in these crimes.
Fired cartridge casings found in the Truaxes’ yard are of the same caliber used by the
petitioner’s rifle, and the rifle’s appearance matches the description given by Mr. Truax. The
petitioner even led police to where he had dropped his rifle near the victims’ home.
Additionally, a State Police Lab firearms expert determined that a bullet taken from Mrs.
Truax’s body was in the .24 caliber family, which includes .243 Winchester, the type of
ammunition used by the petitioner’s rifle. Because exposure to moisture had caused rust to
develop inside the rifle’s chamber, the expert was unable to conclusively determine that the
bullet removed from Mrs. Truax’s body was fired from the rifle. However, the expert found
13
several characteristics in common between the marks left on that bullet and on a bullet she
test-fired from the petitioner’s rifle. Finally, the petitioner admitted to police that he had
discharged his rifle at the Truaxes, although he claimed it was in self-defense.
Lastly, the petitioner contends that the State did not explain a twenty-seven
minute gap in the audio recording of his statement to police. Two police officers testified
that, for unknown reasons, the digital recorder had simply stopped recording. This issue
pertains to the credibility of the petitioner’s statement. The jury was made aware of the
missing twenty-seven minutes and could attribute whatever weight it deemed appropriate to
the petitioner’s admissions.6
The petitioner’s pre-dawn visit to the area four days before the shooting, the
purchase of the rifle, and his presence in the area of the Truax home while armed with a
loaded rifle, show premeditation and deliberation. His admitted anger with his aunt and
uncle suggests a motive. Furthermore, he was positively identified by Mr. Truax, he
admitted being in the yard and shooting his rifle at the Truaxes, and he led police to where
he disposed of the rifle. Accordingly, there was no error in the circuit court’s denial of the
motion for judgment of acquittal.
6
Although the petitioner moved the circuit court to suppress his entire statement, he
does not raise any assignment of error on appeal regarding its admissibility.
14
B. T-Shirt Photograph and Video Game
The petitioner asserts that the circuit court erred by admitting two items of
evidence during the bifurcated mercy phase of his trial: the photograph of the t-shirt he was
wearing on the night of the shootings, and his “Assassin’s Creed” video game. Arguing that
neither the message on the t-shirt or the video game had anything to do with the crimes, and
that both were extremely inflammatory to the jury, the petitioner contends their admission
violated Rule 403 of the West Virginia Rules of Evidence: “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice[.]” W.Va. R. Evid. 403, in part.7 The State responds that this evidence was
probative of the petitioner’s character, which was at issue during the mercy phase, and that
the evidence was not unfairly prejudicial given the violent, premeditated nature of these
crimes. Moreover, because the evidence was only admitted during the bifurcated mercy
phase, the State explains that it could not have impacted the jury’s determination of guilt.
“A trial court’s evidentiary rulings, as well as its application of the Rules of
Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v.
Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). With regard to evidence in the mercy
phase, we have held the following:
7
This opinion quotes the version of Rule 403 in effect at the time of trial. Stylistic
changes, immaterial to the issues on appeal, have since been made to the rule.
15
The type of evidence that is admissible in the mercy
phase of a bifurcated first degree murder proceeding is much
broader than the evidence admissible for purposes of
determining a defendant’s guilt or innocence. Admissible
evidence necessarily encompasses evidence of the defendant’s
character, including evidence concerning the defendant’s past,
present and future, as well as evidence surrounding the nature of
the crime committed by the defendant that warranted a jury
finding the defendant guilty of first degree murder, so long as
that evidence is found by the trial court to be relevant under
Rule 401 of the West Virginia Rules of Evidence and not unduly
prejudicial pursuant to Rule 403 of the West Virginia Rules of
Evidence.
Syl. Pt. 7, State v. McLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (2010).
Having reviewed the appendix record, we find no abuse of discretion in the
trial court’s admission of the t-shirt photograph and the video game during the mercy phase.
At this stage of the bifurcated trial, the jury was permitted to consider evidence of the
petitioner’s character. Id. Given the ruthless nature of these crimes, the message on the t-
shirt worn on the very night of these crimes was probative of the petitioner’s character. He
was angry at his aunt and uncle for throwing him and his mother out of their home, and he
showed no mercy when he shot his aunt in the back and later shot his fleeing uncle.
Furthermore, prior to the State’s admission of the video game, the petitioner’s expert witness
had already testified that the petitioner “loses himself in the fantasy world of . . . video
gaming[.]” Defense counsel was permitted to argue to the jury that these items bore no
connection to the shootings. We simply cannot conclude that this evidence was unduly
16
prejudicial. Finally, even if we were to find error in the admission of this evidence, it would
be harmless. The other evidence presented to the jury, in both phases of the trial, is more
than sufficient to support the recommendation against mercy.
C. Alleged Juror Misconduct
After trial, the petitioner raised two separate allegations of juror misconduct.
The petitioner’s sister testified that she overheard a conversation in the courthouse hallway
where, in reference to how long the jurors anticipated being in court that day, Alternate Juror
Ryan told Juror Zickefoose that they might not be there long “unless . . . you’re still
undecided.” In addition, the petitioner’s sister and mother asserted that they observed Juror
Crites interacting with Sherman Truax while smoking cigarettes during trial recesses. The
petitioner’s sister testified that Nicholas Truax was also present with his father and the juror
for at least one of these breaks. Although the petitioner’s sister and mother indicated their
belief that Mr. Truax and Juror Crites spoke to one another, they did not overhear any
conversation.8
The petitioner contends that the jurors’ conduct in these situations was in direct
violation of the circuit court’s instructions9 and, more importantly, denied him his
8
The allegations are set forth more fully in section I of this opinion.
9
The trial transcript reflects that the circuit court instructed the jury not to begin
deliberations until after they had heard all of the evidence, arguments of counsel, and
17
constitutional right to a trial by an impartial jury. The State argues that after holding a
hearing on these allegations, the circuit court correctly found the petitioner did not prove the
occurrence of any juror misconduct.
Before examining the circuit court’s rulings on each of these claims, we note
that a party seeking a new trial based on juror misconduct must prove the allegation by clear
and convincing evidence:
“A motion for a new trial on the ground of the
misconduct of a jury is addressed to the sound discretion of the
court, which as a rule will not be disturbed on appeal where it
appears that defendant was not injured by the misconduct or
influence complained of. The question as to whether or not a
juror has been subjected to improper influence affecting the
verdict, is a fact primarily to be determined by the trial judge
from the circumstances, which must be clear and convincing to
require a new trial, proof of mere opportunity to influence the
jury being insufficient.” Syllabus Point 7, State v. Johnson, 111
W.Va. 653, 164 S.E. 31 (1932).
Syl. Pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995). As this same point of law
recognizes, this Court applies an abuse of discretion standard of review to the trial court’s
decision with regard to a motion for new trial asserting juror misconduct. Id.instruction on the law and they were together as a jury. The court also instructed the jurors
that during recesses, they were not permitted to talk about the case with anybody.
18
1. Alleged Conversation Among Jurors in Hallway
The petitioner argues that the conversation Ms. Grindstaff reportedly overheard
between Alternate Juror Ryan and Juror Zickefoose proves that the jury was prematurely
deliberating on the case, in violation of the trial court’s instructions. After reviewing the
transcript of the post-trial hearing, we agree with the circuit court’s conclusion that the
petitioner has not proven any misconduct on this issue. As the circuit court found, even
assuming, arguendo, that the conversation took place, it is far from clear that the jurors were
discussing the case or the verdict. Ms. Grindstaff explained that the conversation concerned
Juror Zickefoose being tired and whether he should “call off” work that night, so the
reference to being “undecided” could have easily pertained to Juror Zickefoose’s indecision
about his work plans.
To support his argument, the petitioner asserts that the jury’s deliberations in
both the guilt and mercy phases of the trial were short in duration. He contends that this
brevity is proof that juror misconduct must have occurred. We disagree. The length of jury
deliberations is necessarily indeterminate. The brief period of deliberations in this case could
signify that the jury found overwhelming evidence of guilt not justifying the possibility of
parole. Moreover, a challenge to the length of jury deliberations constitutes an intrinsic
challenge to a verdict that we will not entertain. “A jury verdict may not ordinarily be
impeached based on matters that occur during the jury’s deliberative process which matters
19
relate to the manner or means the jury uses to arrive at its verdict.” Syl. Pt. 1, State v.
Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981). After reviewing the record in this case,
we conclude that the circuit court did not abuse its discretion when denying the motion for
new trial based on the alleged conversation in the hallway.
2. Alleged Interaction While Smoking
Turning to the petitioner’s other assertion of jury misconduct, it is well-settled
that when a juror allegedly engages in a private communication with a third party about the
matter on trial, the trial court is required to hold a hearing and consider the claim:
In any case where there are allegations of any private
communication, contact, or tampering, directly or indirectly,
with a juror during a trial about a matter pending before the jury
not made in pursuance of known rules of the court and the
instructions and directions of the court made during the trial
with full knowledge of the parties; it is the duty of the trial judge
upon learning of the alleged communication, contact, or
tampering, to conduct a hearing as soon as is practicable, with
all parties present; a record made in order to fully consider any
evidence of influence or prejudice; and thereafter to make
findings and conclusions as to whether such communication,
contact, or tampering was prejudicial to the defendant to the
extent that he has not received a fair trial.
Sutphin, 195 W.Va. at 553-54, 466 S.E.2d at 404-05, syl. pt. 2. Similarly, the United States
Supreme Court held that when there has been alleged prohibited contact with a juror, the trial
court “should determine the circumstances, the impact thereof upon the juror, and whether
or not it was prejudicial, in a hearing with all interested parties permitted to participate.”
20
Remmer v. United States, 347 U.S. 227, 230 (1954). “[T]he remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith
v. Phillips, 455 U.S. 209, 215 (1982). This hearing, commonly referred to as a “Remmer
hearing,” was held by the circuit court herein when considering the petitioner’s post-trial
motions.
During a Remmer hearing, the person seeking a new trial must prove, by clear
and convincing evidence, that improper influence on a juror occurred and affected the
verdict. See Sutphin, 195 W.Va. at 553, 466 S.E.2d at 404, syl. pt. 1 (quoted above). Proof
of the mere opportunity to influence the jury is insufficient to warrant a new trial. Id. We
recently emphasized that “the mere allegation of juror misconduct is insufficient to warrant
a new trial. . . . [There] must be proof that some improper event has occurred. Misconduct
on the part of the jury as grounds for a new trial is not presumed but must be fully proved by
the moving party.” State v. Trail, __ W.Va. __, __ S.E.2d __, 2015 WL 5928478, slip op.
*10 (W.Va. Oct. 7, 2015) (citation and internal quotation marks omitted). Furthermore,
due process does not require a new trial every time a juror has
been placed in a potentially compromising situation. Were that
the rule, few trials would be constitutionally acceptable. The
safeguards of juror impartiality, such as voir dire and protective
instructions from the trial judge, are not infallible; it is virtually
impossible to shield jurors from every contact or influence that
might theoretically affect their vote. Due process means a jury
capable and willing to decide the case solely on the evidence
before it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences
21
when they happen. Such determinations may properly be made
at a hearing like that ordered in Remmer[.]
Id., slip op. * 16 (quoting Smith, 455 U.S. at 217).
If the moving party proves that some improper event involving a juror did
occur, the trial court must then determine whether that event affected the juror to the
prejudice of the moving party. In that regard, we have held that
[i]n the absence of any evidence that an interested party
induced juror misconduct, no jury verdict will be reversed on the
ground of juror misconduct unless the defendant proves by clear
and convincing evidence that the misconduct has prejudiced the
defendant to the extent that the defendant has not received a fair
trial.
Sutphin, 195 W.Va. at 554, 466 S.E.2d at 405, syl. pt. 3. If, however, the juror misconduct
was induced or participated in by an interested party, prejudice will be presumed and must
be rebutted. Legg v. Jones, 126 W.Va. 757, 763, 30 S.E.2d 76, 80 (1944); State v. Daniel,
182 W.Va. 643, 647, 391 S.E.2d 90, 94 (1990); Sutphin, 195 W.Va. at 559-60, 466 S.E.2d
at 410-11; Bluestone Indust., Inc. v. Keneda, 232 W.Va. 139, 143, 751 S.E.2d 25, 29 (2013).
Ultimately, if the court concludes that there was prejudicial juror misconduct, a new trial is
warranted. Legg, 126 W.Va. at 757, 30 S.E.2d at 77, syl. pt. 3 (“Misconduct of a juror,
prejudicial to the complaining party, is sufficient reason . . . to set aside a verdict returned
by the jury of which he is a member.”).
22
In both Trail and Sutphin, there was no question that a juror had, in fact,
conversed with a non-juror about the trial. Those cases focused on the issue of prejudice,
including whether the juror was induced to commit misconduct by an interested party such
that prejudice is presumed. By contrast, following the Remmer hearing held in the case at
bar, the circuit court found that the petitioner failed to establish by clear and convincing
evidence that any misconduct had even occurred. The judge expressed doubt about the
credibility and motivation of Ms. Grindstaff and Ms. Branham. Not only are they close
family members of the petitioner, they asserted so many instances of misconduct that the
court found their claims to be suspect. The court concluded that, at most, the petitioner
established the mere opportunity to influence a juror which, under Johnson and Sutphin, is
insufficient to prove juror misconduct. Johnson, 111 W.Va. at 654, 164 S.E. at 32, syl. pt.
7; Sutphin, 195 W.Va. at 553, 466 S.E.2d at 404, syl. pt. 1.
However, under the particular circumstances of this case, where two witnesses
provided sworn, detailed testimony claiming to have seen the victim and a juror socializing
with one another over the course of multiple days of trial, we are concerned that the circuit
court rejected the allegations without hearing from any of the people who allegedly engaged
in the conduct: Juror Crites, Sherman Truax, and, to a lesser extent, Nicholas Truax. Sutphin
requires a “full consider[ation]” of the evidence pertaining to alleged juror misconduct. 195
W.Va. at 553-54, 466 S.E.2d at 404-05, syl. pt. 2. While the circuit court may have been
23
correct in finding that no misconduct occurred, we are unable to confirm this conclusion
from the record before us. Furthermore, Rule 606(b)10 of the West Virginia Rules of
Evidence expressly permits limited testimony from a juror on the issue of improper outside
influence or extraneous prejudicial information. Although the petitioner subpoenaed Juror
Crites to the post-trial hearing and asked to take her testimony, the circuit court refused to
allow it.
United States v. Brantley, 733 F.2d 1429 (7th Cir. 1984), is instructive. In
Brantley, the co-defendants, who were convicted of drug-smuggling offenses, moved for a
10
Rule 606(b) of the West Virginia Rules of Evidence, as it was written at the time of
the petitioner’s post-trial hearing in August of 2014, provided as follows:
(b) Inquiry into validity of verdict or indictment. – Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything
upon that or any other juror’s mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes in connection therewith,
except that a juror may testify on the question [of] whether
extraneous prejudicial information was improperly brought to
the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a juror’s
affidavit or evidence of any statement by the juror concerning
a matter upon which the juror would be precluded from
testifying be received for these purposes.
Id. (emphasis added.) Effective September 2, 2014, this Court amended Rule 606 to improve
its organization and clarity, but those changes are immaterial to the issues in this appeal.
24
new trial arguing that an improper extrinsic influence on the jury had denied them a fair trial.
Reportedly, one juror, Angela Blige, had told the other jurors that she personally knew Co-
Defendant James Murray’s daughter and thus knew that Murray had “been in this kind of
trouble before.” Id. at 1439. Although the trial judge held hearings on the claim of juror
misconduct, the judge conducted his own inquiry of Juror Blige, refusing to allow counsel
for the parties to question her, and did not allow testimony from other jurors who may have
been impacted by the statement. Id. Based on this review, the trial court concluded that the
co-defendants failed to prove their allegation of jury misconduct. Id. On appeal, the Seventh
Circuit Court of Appeals recognized that “[a] party claiming that an improperly influenced
jury returned a verdict against him must be given an opportunity to prove that claim.” Id.
(citation and internal quotation marks omitted). The appellate court ultimately concluded
that the trial court had abused its discretion by conducting an insufficient investigation into
the allegation. Id. at 1440. Finding no other error, the appellate court conditionally affirmed
Murray’s conviction but remanded the case back to the trial court for a more complete
hearing on the juror misconduct claim. Id. at 1441.
We conclude that in the case at bar, the circuit court abused its discretion by
denying the petitioner’s motion for a new trial without permitting him to elicit testimony
from Juror Crites on the limited issue of any communication she may have had with the
Truaxes during trial. By refusing to allow this requested testimony, the circuit court unduly
25
restricted the petitioner’s opportunity to prove his claim of juror misconduct. The serious
and detailed nature of these allegations warrant a Remmer hearing where the persons alleged
to have committed the misconduct are allowed to participate.11
Accordingly, we remand this case to the circuit court for an additional post-trial
Remmer hearing. The circuit court is directed to permit the petitioner to subpoena and take
sworn testimony from Juror Crites regarding any communication she may have had with the
Truaxes during trial recesses. Moreover, either party shall also be permitted to subpoena and
take sworn testimony on this issue from Sherman and Nicholas Truax. If the evidence on
remand confirms the circuit court’s previous conclusion that no jury misconduct was proven,
then the circuit court should reaffirm its denial of the motion for new trial. However, if on
11
We must emphasize that not every allegation of juror misconduct requires that the
challenged juror be called to testify. The decision on whether to hear juror testimony
depends on the facts and the accusations, and how well the accusations are supported by the
moving party. The Eleventh Circuit Court of Appeals surveyed decisions from various
federal courts and determined that the cases
fall along a continuum focusing on two factors. At one end of
the spectrum the cases focus on the certainty that some
impropriety has occurred. The more speculative or
unsubstantiated the allegation of [juror] misconduct, the less the
burden to investigate. . . . At the other end of the continuum lies
the seriousness of the accusation. The more serious the potential
jury contamination, especially where alleged extrinsic influence
is involved, the heavier the burden to investigate.
United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985) (citations omitted).
26
remand the circuit court finds clear and convincing evidence that juror misconduct occurred,
the circuit court must then determine whether there was prejudice that warrants a new trial.
In summary, we find that there was sufficient evidence to support the
petitioner’s convictions, and we find no merit to his claims of trial error. However, we
conditionally affirm the petitioner’s conviction based on our limited remand of this case to
the circuit court for an additional Remmer hearing, as discussed herein. See Brantley, 733
F.2d at 1441 (conditionally affirming criminal conviction subject to remand hearing to
review issue of juror misconduct); State v. Bibb, 626 So.2d 913 (La. Ct. App. 1993) (same);
cf. Syl. Pt. 1, Perrine v. E.I. Du Pont De Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815(2010) (conditionally affirming civil case, in part, subject to outcome of hearing on remand
regarding statute of limitations).
IV. Conclusion
For the reasons set forth above, the petitioner’s conviction is conditionally
affirmed. The matter is remanded to the circuit court for an additional Remmer hearing
pursuant to the directions set forth herein.
Conditionally affirmed; remanded for hearing.
27