State v. Mills

631 S.E.2d 586, 219 W. Va. 28, 2005 W. Va. LEXIS 133
CourtWest Virginia Supreme Court
DecidedNovember 17, 2005
DocketNo. 32551
StatusPublished
Cited by8 cases

This text of 631 S.E.2d 586 (State v. Mills) 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. Mills, 631 S.E.2d 586, 219 W. Va. 28, 2005 W. Va. LEXIS 133 (W. Va. 2005).

Opinion

PER CURIAM:

This is an appeal by Mr. Mai-vin Mills (hereinafter “Appellant”) from a conviction in the Circuit Court of Berkeley County of first-degree murder without the recommendation of mercy. The Appellant contends that the lower court erred on several issues: by re[32]*32fusing to strike two jurors for cause; by denying a mistrial after media attended a jury view of the crime scene; by refusing to individually voir dire jurors regarding the impact of media attention; by allowing the State to introduce prejudicial testimony regarding the Appellant’s character; and by denying a mistrial when the prosecutor made certain allegedly prejudicial comments during closing argument. Upon thorough review of the record, briefs, and applicable precedent, this Court affirms the Appellant’s conviction.

I. Factual and Procedural History

The Appellant admits that he fatally shot Mrs. Pamela Cabe on September 8, 1999, at her employment location, Richmond Cleaners, in Beckley, West Virginia. The Appellant shot Mrs. Cabe with a .38-caliber pistol once in the back and once in the head, and Mrs. Cabe was deceased by the time paramedics arrived at the scene. The Appellant was ultimately charged with first degree murder, and evidence presented at the Appellant’s first trial indicated that subsequent to the shooting, the Appellant had walked across the street to smoke a cigarette as emergency vehicles arrived.

The Appellant explained to police officers that he had gone to Richmond Cleaners to talk with Mrs. Cabe concerning a dispute between Mrs. Cabe’s son and the Appellant’s daughter regarding custody of that couple’s child. According to the Appellant, he had intended only to scare Mrs. Cabe, and he had not gone to the location with the intent to fatally wound her.

During the Appellant’s first trial, the defense attempted to show that the Appellant had acted without premeditation or deliberation. The State, however, presented evidence indicating that the Appellant had premeditated the murder. The Appellant had been informed of the results of a custody hearing involving the mutual grandchild of the Appellant and Mrs. Cabe earlier that day. After learning of the custody hearing results, the Appellant took his .38-caliber pistol, drove seven miles to Richmond Cleaners, walked into the business, took the gun out of a manilla envelope, and shot four bullets, hitting Mrs. Cabe twice.1

Subsequent to the Appellant’s first trial, a jury found the Appellant guilty of first-degree murder without the recommendation of mercy. The Appellant appealed that conviction to this Court. On June 24, 2002, this Court reversed the Appellant’s first conviction. See State v. Mills, 211 W.Va. 532, 566 S.E.2d 891 (2002). This Court found reversible error in the lower court’s denial of a motion to strike a prospective juror for cause after that juror had stated that his acquaintance wdth an arresting officer would prevent him from acting impartially. Further, this Court scrutinized the direct examination testimony of a detective, indicating that the Appellant had expressed anger at the arraignment and at an in-camera hearing but had failed to express remorse or sorrow over killing Mrs. Cabe. This Court found that such testimony seived as an improper reminder of the Appellant’s failure to testify at trial. Additionally, this Court found reversible error in the prosecutor’s comment during closing argument, indicating that there were other cases in which a murderer himself had apologized. The Court concluded that the prosecutor’s statement was also an improper reference to the Appellant’s decision not to testify at trial. Mills, 211 W.Va. at 534, 566 S.E.2d at 905.

Based upon the errors in the original trial, the Appellant was retried by the lower court, and on November 7, 2003, the Appellant was again convicted of first degree murder without the recommendation of mercy. Based upon the existence of specific standards of review applicable to each of the issues raised as assignments of error in this case, those specific standards of review will be discussed as each assignment of error is analyzed.

II. Discussion

A. Failure to Strike Jurors for Cause

The Appellant contends that the lower court abused its discretion in declining to [33]*33strike two jurors for cause and thereby required defense counsel to utilize two peremptory strikes to remove prospective jurors. The prospective jurors were informed that the sentence for first degree murder is life in prison. They were thereafter asked whether they would be able to consider a life sentence with the possibility of parole eligibility after fifteen years if they found the Appellant guilty of first degree murder. Two prospective jurors, Ms. Haga and Ms. George, had answered that question in the negative. When questioned further regarding that issue, Ms. Haga indicated that she did not personally know the legal consequences of a mercy recommendation and would follow the instructions of the judge in making her determinations. She specified that she would consider the options provided to her by the court, including eligibility for parole. In refusing to strike Ms. Haga for cause, the lower court explained that the prospective juror had initially been confused by the questions but that she was “affirmative in her statement...” that she “would consider mercy[.]”

Further inquiry after prospective juror Ms. George revealed that she would consider mercy “if there were circumstances that gave that right.” She specified that she would consider parole eligibility if so instructed by the court and that she would listen to all the evidence prior to making any decision. The lower court refused to strike Ms. George for cause, reasoning that she indicated that she would consider mercy if given the instruction to consider it.

The standard of review to be employed by this Court in such matters was clearly articulated in syllabus point six of State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), as follows:

The challenging party bears the burden of persuading the trial court that the juror is partial and subject to being excused for caused [sic]. An appellate court only should interfere with a trial court’s discretionary ruling on a juror’s qualification to serve because of bias only when it is left with a clear and definite impression that a prospective juror would be unable faithfully and impartially to apply the law.

As this Court stated in Miller, “[t]he trial court is in the best position to judge the sincerity of a juror’s pledge to abide by the court’s instructions; therefore, its assessment is entitled to great weight.” 197 W.Va. at 606, 476 S.E.2d at 553 (citing State v. Phillips, 194 W.Va. 569, 590, 461 S.E.2d 75, 96) (“[g]iving deference to the trial court’s determination, because it was able to observe the prospective jurors’ demeanor and assess their credibility, it would be most difficult for us to state conclusively on this record that the trial court abused its discretion”).

On appeal, the State emphasizes that neither prospective juror was “unalterably opposed to making a recommendation of mercy in any circumstances in which a verdict of guilty is returned.” State v. Williams, 172 W.Va.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of West Virginia v. David Ray Thomas
West Virginia Supreme Court, 2023
Marvin S. Mills v. Donnie Ames, Superintendent
West Virginia Supreme Court, 2019
State of West Virginia v. Bryan Maggard
750 S.E.2d 271 (West Virginia Supreme Court, 2013)
State of West Virginia v. Jesse Aaron Blevins
West Virginia Supreme Court, 2013
State v. Newcomb
679 S.E.2d 675 (West Virginia Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
631 S.E.2d 586, 219 W. Va. 28, 2005 W. Va. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mills-wva-2005.