State v. Brown

552 S.E.2d 390, 210 W. Va. 14
CourtWest Virginia Supreme Court
DecidedJuly 25, 2001
Docket28404
StatusPublished
Cited by26 cases

This text of 552 S.E.2d 390 (State v. Brown) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 552 S.E.2d 390, 210 W. Va. 14 (W. Va. 2001).

Opinions

PER CURIAM:

This appeal was brought by Michael E. Brown, defendant below, from the Circuit Court of Cabell County. The defendant appeals his conviction of two counts of fust degree murder with mercy, and his sentence of two consecutive life terms in the penitentiary. After considering the defendant’s numerous assignments of error, we affirm the defendant’s conviction but reverse his sentence and remand for a presentence report and a new sentencing hearing.

I.

FACTS

The defendant was convicted of the murders of Ronald Davis and Greg Black who were found dead of gunshot wounds in Greg Black’s house in Cabell County on August 17, 1997. Davis had been shot once in the face and was lying in the doorway to the house. Black was lying beside his bed. He had been shot seven times and died of wounds to his chest and back.

At the defendant’s trial, which occurred on six days in February and March, 1999, the State presented evidence that the defendant sold a bag of marijuana to Ronald Davis and Greg Black, and “pinched off the top” or “shorted” the marijuana so that Davis and Black did not receive what they paid for. After a subsequent discussion between the defendant and Davis concerning this matter, the defendant blamed the loss of his ear keys on Davis and Black, became angry, and vowed to get even.1 The defendant later [19]*19convinced Matthew Fortner to accompany him to Greg Black’s house for the purpose of robbing Davis and Black of anti-anxiety pills. In the early morning hours of August 15, 1997, the defendant and Fortner went to the victims’ house, and the defendant shot both victims.

The State’s evidence adduced at trial consisted essentially of the testimony of Shawn Sullivan, Bobby Pullen, Daniel Gosnay, Jason Pinkerton, Michael Mount, and Matthew Fortner, all of whom regularly drank alcoholic beverages and took drugs with the defendant.2 Bobby Pullen testified that the defendant told him that he was going to “get” Davis and Black for taking his keys. Michael Mount testified that, immediately after the murders, the defendant admitted to him that “me and Matt [Fortner] went out there and shot those two guys that took my keys.” Matthew Fortner testified that he accompanied the defendant to rob Davis and Black and witnessed the defendant shoot them. There was no physical evidence linking the defendant to the crimes, including no identifiable fingerprints or DNA evidence, and no gun residue was found in the defendant’s vehicle.3

The defendant’s evidence consisted of the testimony of an expert in gunshot residue who testified essentially that residue would have been found in the defendant’s vehicle if he had fired a gun at the time of the murders; the defendant’s father and sister who testified of the defendant’s normal behavior immediately after the murders; the defendant’s mother who testified that the defendant arrived home at 2:52 a.m. on the morning of August 15, 1997 which conflicts with the State’s witnesses’ testimony concerning when the murders occurred; and the defendant, who denied any involvement in the murders. The defendant also vigorously attacked the credibility of the State’s witnesses.

The jury found the defendant guilty of two counts of first degree murder. A bifurcated hearing was held several days later at which the jury granted mercy to the defendant. At the close of this hearing, the trial court sentenced the defendant to consecutive life terms.

II.

DISCUSSION

At the outset, the defendant argues that the trial court committed reversible error by allowing a thirteenth juror to attend the jury deliberations. He urges this Court to reconsider its recent holding in State v. Lightner, 205 W.Va. 657, 520 S.E.2d 654 (1999), and find that the presence of a thirteenth juror during jury deliberations constitutes reversible error. This we decline to do.

In Syllabus Point 2 of State v. Lightner, we held:

When a defendant fails to object to an alternate juror retiring to the jury room with the regular jurors, we will consider the circumstances under the plain error rule of West Virginia Rule of Criminal Procedure 52(b). We expressly overrule and no longer adhere to the rigid standard of State v. Hudkins, 35 W.Va. 247, 13 S.E. 367 (1891), which states that when thirteen jurors are impaneled and render a verdict, the judgment of the circuit court must be reversed and set aside.

Because the defendant did not object at trial to the presence of the thirteenth juror at the jury deliberations, we will consider the circumstances under the plain error rule.

“In criminal cases, plain error is error which is so conspicuous that the trial judge and prosecutor were derelict in counte[20]*20nancing it, even absent the defendant’s timely assistance in detecting the error.” State v. Marple, 197 W.Va. 47, 52, 475 S.E.2d 47, 52 (1996) (citation omitted). “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Under the first Miller factor, we must determine if there was error. Allowing an alternate juror to attend jury deliberations of the regular twelve member jury panel is obviously an error. Rule 24(c) of the West Virginia Rules of Criminal Procedure states that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” Under the second factor of the Miller test, we also find that the error is plain or, in other words, clear or obvious. It is uncontested that the alternate juror, rather than being discharged at the appropriate time, proceeded to the jury room with the regular twelve jurors.

The third factor requires us to determine whether the alternate juror’s presence during jury deliberations affected the substantial rights of the defendant. “[T]his requirement means that the error must result in prejudice to the defendant. The defendant bears the burden of persuasion on this issue.” State v. Lightner, 205 W.Va. at 662, 520 S.E.2d at 659 (citation omitted). In other words, we must ask whether the error affected the outcome of the proceedings in the trial court. See State v. Miller, 194 W.Va. at 18, 459 S.E.2d at 129. “Unless there is a reasonable possibility that the alternate’s participation caused the jury to convict rather than acquit, the convictions will stand.” State v. Lightner, id. In the instant case, we do not believe there is a reasonable possibility that the thirteenth juror’s mere presence during jury deliberations caused the jury to convict rather than acquit.

In Lightner, supra, this Court found that the defendant was not prejudiced where thirteen people actually deliberated and voted on the verdict which found the defendant guilty. We reasoned that “the alternate is chosen in the same way as a regular juror, is subjected to the same test of impartiality and is required to possess all the qualifications of a regular juror.” State v. Lightner, 205 W.Va.

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Bluebook (online)
552 S.E.2d 390, 210 W. Va. 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-wva-2001.