State of West Virginia v. Cornell G. ( 2021 )

FILED
July 19, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0172 (Jefferson County 18-F-124)
Cornell G.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Cornell G., by counsel Jeremy B. Cooper, appeals the January 28, 2020, order
of the Circuit Court of Jefferson County sentencing petitioner to an effective sentence of not less
than twenty-three nor more than sixty years of incarceration and fifty years of supervised released
for his convictions of one count of sexual abuse by parent, guardian, custodian, or other person in
a position of trust; one count of second-degree sexual assault; two counts of third-degree sexual
assault; and one count of first-degree sexual abuse. 1 Respondent the State of West Virginia, by
counsel Benjamin F. Yancey, III, filed a response in support of the circuit court’s order. Petitioner
filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
Petitioner was indicted on eight counts alleging he had felonious sexual contact with a
twelve-year-old child (“the victim”), in March of 2018: one count of sexual abuse by parent,
guardian, custodian, or other person in a position of trust; two counts of second-degree sexual
assault; two counts of third-degree sexual assault; and three counts of first-degree sexual abuse.
At the time of the alleged contact, petitioner was thirty-three years old. The victim is a relative of
petitioner’s long-time girlfriend, and the alleged contact occurred in the home petitioner shared
with his girlfriend and the couple’s three children.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved. See In re K.H., 235 W. Va. 254, 773
S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
1
In preparation for trial, respondent filed a notice of intent to introduce Rule 404(b)
evidence 2 through the testimony of another child: the victim’s older sister. The notice indicated
that the victim’s sister’s testimony was intended to show petitioner’s “motive, intent, plan, absence
of mistake, and most importantly, his lustful disposition toward children.” The court held a
McGinnis hearing 3 to determine the admissibility of the testimony, and the victim’s sister testified
that on multiple separate occasions, petitioner had touched her buttocks and breasts, digitally
penetrated her, and forced her to perform oral sex on him. At the conclusion of the hearing, the
trial court deferred ruling on the admissibility of the testimony to allow the parties the opportunity
to further brief the issue.
In his memorandum concerning the victim’s sister’s testimony, petitioner said that during
the McGinnis hearing, “[The victim’s sister] echoed much of what she had said in her forensic
interview; however[,] some of the events she recounted were different with regard to important
details.” Petitioner stated that the victim’s sister claimed in the forensic interview that the
inappropriate touching occurred when she was fifteen years old and that the most recent incident
of touching occurred in Fall of 2017. Petitioner asserted that these claims differed from the
testimony during the McGinnis hearing in that she testified the touching occurred several years
ago, even several years before the victim made her allegations against petitioner, when the victim’s
sister was living with petitioner and when the victim’s sister was in elementary school or middle
school. Petitioner also pointed out that the victim’s sister had voluntarily gone to petitioner’s home
numerous times after the alleged incidents occurred and that the victim’s sister had denied that
petitioner had touched her inappropriately when petitioner’s girlfriend initially asked her whether
she had been touched by petitioner. Petitioner argued that, given the inconsistencies between the
victim’s sister’s testimony during the McGinnis hearing and the statements she made during the
forensic interview, the evidence was insufficient “to find that these instances of inappropriate
touching occurred or that [petitioner] was the perpetrator.” Respondent filed a response, stating
that the victim’s sister’s testimony did not contain inconsistencies and asking that the trial court
2
Rule 404(b) of the West Virginia Rules of Evidence permits the introduction of evidence
of a defendant’s other crimes, wrongs, or acts where the evidence is introduced for the purpose of
“proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.”
3
See Syl. Pt. 2, in part, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994) (“Where
an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial
court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its
admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing
as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the
acts or conduct occurred and that the defendant committed the acts. If the trial court does not find
by a preponderance of the evidence that the acts or conduct was committed or that the defendant
was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been
made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402
of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the
West Virginia Rules of Evidence.”).
2
allow respondent to present the testimony at trial.
By order entered on August 15, 2019, the trial court granted the State’s request to present
the victim’s sister’s testimony at trial. Noting that it had reviewed the victim’s sister’s forensic
interview, the court found:
The State did proffer the following: The Defendant is charged with sexually
assaulting [the victim], a 12-year-old female child, several times over the course of
approximately a 12-hour period. The Defendant is alleged to have touched her
buttocks and breasts over her clothing, digitally penetrated her vagina, sucked on
her breasts and chest resulting in bruising, and forced her to perform oral sex on
him. The alleged assaults occurred when they were alone in several rooms
throughout a house in Jefferson County, including the kitchen, living room, master
bedroom, and bedroom of Defendant’s minor daughter where [the victim] was
staying. [The victim] also alleges that the Defendant told her not to say anything or
they would “put [her] away.”
. . . On July 11, 2019, the [c]ourt heard testimony from [the victim’s sister]
that the Defendant inappropriately touched her on multiple occasions beginning
when she was 13 or 14 years old. [The victim’s sister] testified the Defendant
touched her buttocks over her clothing and moved towards her front private area.
The Defendant would also try to unbuckle her pants, would kiss her neck and chest
and left hickeys on her chest on more than one occasion. [The victim’s sister] also
testified that the Defendant tried to make her perform oral sex on him. The
Defendant grabbed [the victim’s sister]’s breasts under her clothing, and also
digitally penetrated her. The abuse would occur throughout the home when the two
of them would be alone in a room. Some of the assaults also took place in the
Defendant’s minor daughter’s bedroom while the daughter was not around. The
[Defendant] told [the victim’s sister] that if she told anyone about the assaults she
would be the one to get in trouble.
The trial court further found, by a preponderance of the evidence, that the acts alleged by the
victim’s sister occurred and that petitioner committed those acts. The court found that the victim’s
sister’s testimony was relevant for the specific purpose of showing petitioner’s lustful disposition
and that the probative value of the testimony was not substantially outweighed by a danger of
unfair prejudice.
Petitioner’s jury trial began on August 27, 2019. The jury heard the testimony of the
victim’s mother, the victim, the forensic nurse examiner who examined the victim at the hospital,
the victim’s sister, the lead investigating police officer, two forensic scientists with the West
Virginia State Police laboratory, a forensic casework director with a private DNA testing
laboratory in Virginia, a crime analyst who conducted a forensic examination of the victim’s
mobile phone, petitioner’s girlfriend, and petitioner.
The victim testified that during various encounters on the evening of March 7, 2018, and
early morning of March 8, 2018, in various rooms in petitioner’s home, petitioner touched her
3
buttocks and breasts over her clothing, digitally penetrated her vagina, sucked on her breasts and
chest resulting in bruising, forced her to perform oral sex on him, and ejaculated on her face.
Testimony established that shortly after the last encounter, the victim texted a friend about
what had happened. The friend advised personnel at school about what the victim had told her,
and the school contacted law enforcement. Thereafter, the victim was examined by the forensic
nurse examiner who swabbed and photographed the victim. The testimony of the forensic scientists
with the West Virginia State Police laboratory established that petitioner’s saliva was found on the
swabs of the victim’s breasts and that petitioner’s semen was found on swabs of the victim’s face
and on her shirt and pants. Petitioner denied having sexual contact with either the victim or the
victim’s sister.
Following a mid-day break on the second day of the trial, the Court had the following
discussion with the parties concerning a particular juror:
THE COURT: The bailiff has brought to my attention that there is on the
back of one of the juror’s shirts is written the following, whatever, slogan. It says,
“Guns don’t kill people but fathers with daughters do.” Any issues?
MR. JONES [counsel for the State]: Not from the State, Judge.
MR. BATTEN [counsel for petitioner]: I think I do. I think I have an issue
with that juror, Your Honor. And I think we probably at least need to inquire with
him as to what the nature of that shirt is, what that means. I mean, he’s a juror in a
criminal case where allegations of sexual abuse are at issue.
MR. JONES: Well, the purpose is is [sic] we should exclude anybody that
thinks sex abuse is okay so how can the fact that sex abuse or interference with
one’s daughter that person holds a belief that that is not okay they should be
excluded from the jury? I think most fathers probably feel the same way so I don’t
think that that fact that somebody hurts your daughter and you get that violent type
of thing that that is a reason to excuse a daughter -- or excuse a juror.
THE COURT: Mr. Jones, I think when you choose to wear it on the second
day of a jury trial of this nature and we tell people not to form any opinions that
there is a presumption of innocence, and honestly, I think if you, Mr. Batten, are
making a motion for that juror to be excused and I’m not telling you which juror it
is that is wearing that shirt then that juror is going to be excused. I don’t think that
you can rehabilitate that. So I’m not going to let you know who it is. You’re either
making the motion based upon the fact that the shirt says what it says and that will
leave us with inserting the alternate juror or it does not.
MR. BATTEN: I’m going to make the motion, Your Honor, because I
believe, and I will say this on the record, you know, wearing a shirt on the second
day of a trial like this seems to at least implicitly advocate the extrajudicial killing
of somebody who may have committed a crime is the problem.
4
THE COURT: And I don’t know that I take it that far. I think the general
nature is if you date somebody’s --
MR. BATTEN: It can be inferred that way.
THE COURT: I know they mean multiple different things but in a case like
this at this stage of the game I don’t know that that is an appropriate shirt, message,
whatnot.
So if I can get one of the bailiffs to bring us [the juror] and I would propose
that we just bring him in separate from the rest of the jury and thank him for his
service but let him know that he is being excused. If he inquires as to why, I will
simply explain that the slogan on his shirt was deemed to be inappropriate for
purposes of courtroom attire.
The trial court then advised the juror that he was excused from the jury. He was replaced by the
alternate juror.
The jury returned its verdict on August 29, 2019. By order entered on August 30, 2019, the
trial court found that, pursuant to the jury’s verdict, petitioner was found guilty of one count of
sexual abuse by parent, guardian, custodian, or other person in a position of trust; one count of
second-degree sexual assault; two counts of third-degree sexual assault; and one count of first-
degree sexual abuse. The jury acquitted petitioner of one count of second-degree sexual assault
and two counts of first-degree sexual abuse. 4 Petitioner filed a motion for a new trial, arguing that
the 404(b) evidence was improperly admitted to prove petitioner’s lustful disposition and that the
evidence was insufficient to support his conviction. The trial court denied the motion by order
entered on September 24, 2019. By order entered on January 28, 2020, the trial court sentenced
petitioner on each of the crimes for which he was convicted, directing that the sentences run
consecutively. Petitioner received an effective sentence of not less than twenty-three nor more than
sixty years of incarceration and fifty years of supervised release.
Petitioner now appeals his conviction, asserting two assignments of error. In his first
assignment of error petitioner argues that the trial court erred by permitting the victim’s sister to
testify under Rule 404(b) for the purpose of showing petitioner’s lustful disposition. He claims
that the victim’s sister’s various accounts of sexual contact with petitioner were so inconsistent
4
The conviction order states that during the jury’s deliberations on August 28, 2019,
petitioner failed to appear in the courtroom, having removed his GPS ankle monitor and
absconded. The trial court issued a capias warrant for his arrest, directing that, upon his capture,
he be incarcerated without bail. Petitioner was apprehended in Maryland later that same day.
Petitioner was ultimately extradited back to West Virginia, but not before the jury returned its
verdict. During allocution, petitioner referenced his decision to flee and the dismissed juror,
stating, “The second day he was so bold to wear a shirt that basically made a passive/agressive
[sic] threat towards my life, so yes, I had an emotional breakdown and I was afraid for my life so
I left.”
5
that the trial court could not have found, by a preponderance of the evidence, that the alleged
contact did indeed occur. Specifically, he notes the same inconsistencies he raised below in his
memorandum concerning the victim’s sister’s testimony following the McGinnis hearing.
Petitioner also asserts that the victim’s sister’s accounts suspiciously mirror those of the victim,
which he contends calls the victim’s sister’s accounts into question; that the victim’s sister initially
denied the abuse when asked about it by petitioner’s girlfriend; and that lustful disposition toward
the victim’s sister, a fifteen-year-old child, is not meaningfully probative of a lustful disposition
toward the victim, a twelve-year-old child.
Respondent disagrees with each of petitioner’s points. Respondent asserts that any
inconsistencies between the victim’s sister’s statements during the forensic interview and her
testimony during the McGinnis hearing concerning her age when she was molested by petitioner
were properly weighed by the trial court. Likewise, respondent states that any differences between
the victim’s sister’s trial testimony and those she made during the McGinnis hearing and forensic
interview were properly weighed by the jury during petitioner’s trial. Respondent further states
that the victim’s sister’s initial denial of abuse was properly weighed by the trial court, and that
the victim’s sister testified that the reason she initially denied that any sexual contact occurred was
she did not think anybody would believe her. Respondent also asserts that the victim’s sister’s
testimony was relevant to show petitioner’s lustful disposition toward children and that the
probative value of her testimony outweighed any prejudicial effect. In response to petitioner’s
contention that lustful disposition toward a fifteen-year-old child is not meaningful probative of
lustful disposition toward a twelve-year-old child, respondent notes that both the victim and her
sister were young adolescents at the time of the abuse, and petitioner was at least twice their age.
We have held:
The standard of review for a trial court’s admission of evidence pursuant to
Rule 404(b) involves a three-step analysis. First, we review for clear error the trial
court’s factual determination that there is sufficient evidence to show the other acts
occurred. Second, we review de novo whether the trial court correctly found the
evidence was admissible for a legitimate purpose. Third, we review for an abuse of
discretion the trial court’s conclusion that the “other acts” evidence is more
probative than prejudicial under Rule 403. 5
State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996) (footnote added).
In the first step of our analysis, we determine that the trial court did not commit clear error
in making a factual determination that there was sufficient evidence to show that the abuse of the
victim’s sister by petitioner occurred. Although there were differences in the victim’s sister’s
testimony during the McGinnis hearing and her forensic interview, these differences were minor,
they were noted by petitioner below, and they were considered by the trial court. Indeed, we have
5
Rule 403 of the West Virginia Rules of Evidence provides, “The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”
6
recognized that “children often have greater difficulty than adults in establishing precise dates of
incidents of sexual abuse . . . because they obviously may not report acts of sexual abuse
promptly.” State v. Edward Charles L., 183 W. Va. 641, 650, 398 S.E.2d 123, 132 (1990).
Furthermore, although the victim’s sister admitted that she initially denied being abused by
petitioner, the appendix record reveals that the victim’s sister’s subsequent accounts of abuse were
consistent throughout the proceedings as to where the abuse occurred and the specific types of
abuse to which she was subjected by petitioner. Ultimately, the trial court made a credibility
determination, finding the victim’s sister’s testimony to be credible. We must give deference to
the trial court’s findings “because it had the opportunity to observe the witnesses and to hear
testimony on the issues.” Syl. Pt. 1, in part, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996).
According the trial court the proper deference, we do not find that the circuit court committed clear
error in finding that the acts alleged by the victim’s sister did in fact occur.
As for any differences between the victim’s sister’s pretrial statements concerning the
abuse inflicted upon her by petitioner and her testimony at trial, we find that this issue has no
bearing on petitioner’s argument that the trial court erred by permitting the victim’s sister to testify
at trial. Regardless, the jury was in the best position to judge her credibility. We have said, “It is a
well-established legal principle in this State that ‘[t]he jury is the trier of the facts and in performing
that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.’”
State v. Martin, 224 W. Va. 577, 582, 687 S.E.2d 360, 365 (2009) (quoting Syl. Pt. 2, State v.
Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967)). We find that, with regard to differences in the
victim’s sister’s pretrial statements and her trial testimony, the trial court committed no error.
The second step of our analysis requires us to examine whether the trial court correctly
found that the victim’s sister’s accounts of abuse by petitioner were admissible for a legitimate
purpose. In this instance, the trial court determined that the evidence was admissible to show
petitioner’s lustful disposition toward children. In Edward Charles L., we held:
Collateral acts or crimes may be introduced in cases involving child sexual
assault or sexual abuse victims to show the perpetrator had a lustful disposition
towards the victim, a lustful disposition towards children generally, or a lustful
disposition to specific other children provided such evidence relates to incidents
reasonably close in time to the incident(s) giving rise to the indictment.
183 W. Va. at 643, 398 S.E.2d at 125, Syl. Pt. 2, in part. The victim’s sister’s testimony describes
acts falling squarely within the type of collateral acts deemed admissible in Edward Charles L.
Therefore, upon our de novo review, we conclude that the trial court did not err in finding that the
victim’s sister’s testimony was admissible for a legitimate purpose.
Finally, we must determine whether the trial court abused its discretion in concluding that
the victim’s sister’s testimony was more probative than prejudicial. While petitioner argues that
evidence of lustful disposition toward a fifteen-year-old child is not meaningfully probative of a
lustful disposition toward a twelve-year-old child, under the facts of this case, we cannot agree.
Petitioner has not directed us to any evidence suggesting that when they were molested by
petitioner, the children were so different from each other that the abuse was rendered
incomparable. Rather, the record shows that both children were young adolescents at the time of
7
the abuse and that petitioner was at least twice their age when he molested them. Accordingly, we
conclude that the trial court did not abuse its discretion in finding that the victim’s sister’s
testimony was more probative than prejudicial, and the victim’s sister’s testimony was properly
admitted under Rule 404(b).
In petitioner’s second assignment of error, he argues that the trial court committed plain
error by failing to make the necessary record on the improper influence the dismissed juror’s shirt
had on the rest of the jury. He contends that the record shows that the dismissed juror, by means
of the slogan on his t-shirt, engaged in an effort to communicate, contact, or tamper with other
members of the jury. According to petitioner, pursuant to State v. Sutphin, 195 W. Va. 551, 466
S.E.2d 402 (1995), the trial court had an affirmative duty to hold a Remmer hearing 6 to evaluate
the impact of the dismissed juror’s shirt on the remaining jurors. Petitioner concedes that his trial
counsel did not request a Remmer hearing; however, he argues that the trial court committed plain
error by failing to hold such a hearing sua sponte. He also argues that the dismissed juror’s
misconduct should have resulted in a mistrial, despite trial counsel’s failure to request a mistrial.
Respondent disagrees with petitioner’s claim that the trial court committed plain error.
Respondent argues that the jury’s verdict—finding petitioner guilty of only five of the eight counts
in the indictment—indicates that it fairly judged petitioner’s claims rather than being improperly
influenced by the dismissed juror’s shirt. Respondent also argues that because petitioner’s counsel
did not make a motion for a mistrial on the basis of the dismissed juror’s shirt, petitioner cannot
now claim that the trial court erred by not declaring a mistrial sua sponte.
We held in State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989), that “[t]he decision to
declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the
sound discretion of the trial court.” Id. at Syl. Pt. 8. At no time in the proceedings below did
petitioner make a motion for mistrial on the ground of juror misconduct, nor did petitioner make a
motion for a new trial on the ground of juror misconduct. We have said that “a motion for mistrial
must be made before a verdict is returned.” State v. Corey, 233 W. Va. 297, 310, 758 S.E.2d 117,
130 (2014). “[A] defendant who ‘fails to make a timely motion for mistrial . . . waives the right to
assert on appeal that the court erred in not declaring a mistrial[.]’” Id. (quoting Syl. Pt. 10, in part,
State v. Kays, 838 N.W.2d 366, 370 (Neb. Ct. App. 2013)). This “raise or waive” rule “is premised
on the notion that calling an error to the trial court’s attention affords an opportunity to correct the
problem before irreparable harm occurs.” State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613,
635 (1996). The raise or waive rule “prevents a party from making a tactical decision to refrain
from objecting and, subsequently, should the case turn sour, assigning error (or even worse,
planting an error and nurturing the seed as a guarantee against a bad result).” Id.“[T]he raise or waive rule is not absolute.” Id. “The ‘plain error’ doctrine grants appellate
courts, in the interest of justice, the authority to notice error to which no objection has been made.”
State v. Miller, 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995). “To trigger application of the “plain
error” doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and
6
In Sutphin, we explained that a Remmer hearing is “[a] hearing (or hearings) conducted
[pursuant to Remmer v. United States, 347 U.S. 227 (1954)] to determine whether or not any
contact with a juror was prejudicial.” 195 W. Va. at 558, 466 S.E.3d at 409.
8
(4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. at
7, 459 S.E.2d at 118, Syl. Pt. 7. “If these criteria are met, this Court may, in its discretion, correct
the plain error if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” LaRock, 196 W. Va. at 316-17, 470 S.E.2d at 635-36 (1996) (quoting [United States
v. ]Olano, 507 U.S. [725, ]732, 113 S. Ct. [1770, ]1776[ (1993)]). “[W]hether to correct error
remains discretionary with the appellate court.” Id. at 317, 470 S.E.2d at 636.
Whether the trial court committed plain error by failing to declare a mistrial in this instance
depends on whether, as petitioner suggests, the trial court was legally required to hold a Remmer
hearing. An examination of our case law and the application of that law to the facts of this case
reveal that the trial court had no such obligation.
In State v. Daniel, 182 W. Va. 643, 391 S.E.2d 90 (1990), the Court said:
In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654(1954), the Court held that a trial judge, following an allegation of jury contact,
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.” Id. at 230, 74 S.Ct. at 451, 98 L.Ed. at 656.
We note that the Supreme Court in [Smith v.] Phillips[, 455 U.S. 209, 102
S. Ct. 940 (1982),] held that such determinations “may”, not “shall”, be made at a
Remmer-type hearing. Thus, we do not believe that a hearing is mandatory,
although we believe that the better rule is to hold such a hearing, with all parties
present and a record made, when there are allegations of jury tampering in order to
fully consider any evidence of influence or prejudice.
182 W. Va. at 648 n.4, 391 S.E.2d at 95 n.4 (emphasis added).
Later, in State v. Jenner, 236 W. Va. 406, 780 S.E.2d 762 (2015), the Court “emphasize[d]
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.” Id. at 419 n.11, 780 S.E.2d at 775 n.11.
We noted that cases generally
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.
Id. (quoting United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985)).
In this instance, the dismissed juror’s shirt said, “Guns don’t kill people but fathers with
daughters do.” The case did not involve gun violence, a father-daughter relationship, or an instance
9
of revenge. In that the shirt was irrelevant to the issues before the jury, there can be no question
that it had no impact on the jury’s verdict. Thus, under the specific facts of this case, the trial court
was under no obligation to hold a Remmer hearing or order a mistrial in this case. Consequently,
we conclude that the trial court did not commit plain error.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: July 19, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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