Tony Franklin Daugherty, Sr. (hereinafter Mr. Daugherty) appeals an order of
the Circuit Court of Summers County denying his motion for a new trial. Mr. Daugherty was
convicted of four counts of sexual abuse by a parent and sentenced to a period of 10 to 20
years for each conviction. (See footnote 1) Subsequent to the convictions and sentences, Mr. Daugherty filed
a motion for a new trial based upon the jury's consideration of alleged extrinsic evidence. (See footnote 2) After conducting an evidentiary hearing, the circuit court denied the motion for a new trial.
Here, Mr. Daugherty contends that the trial court committed error in denying his motion for
a new trial. (See footnote 3) After a careful review of the briefs and record in this case, we affirm the trial
court's decision.
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). See State v. Crouch, 191
W. Va. 272, 275, 445 S.E.2d 213, 216 (1994) (“The question of whether a new trial should
be granted is within the discretion of the trial court and is reviewable only in the case of
abuse.”). We have also held with respect to alleged juror misconduct that:
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.
Syl. pt. 1, State v. Sutphin, 195 W. Va. 551, 466 S.E.2d 402 (1995) (quoting Syl. pt. 7, State
v. Johnson, 111 W. Va. 653, 164 S.E. 31 (1932)).
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 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 about which the juror would be precluded from testifying be received for these purposes.
Professor Cleckley has pointed out that:
Rule 606(b) bars juror testimony regarding four topics: (1) the method
or arguments of the jury's deliberation; (2) the effect of any particular thing
upon an outcome in the deliberation; (3) the mindset or emotions of the juror
during deliberation; and (4) the testifying juror's own mental process during
the deliberations.Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers (Vol.1), § 6-6(B),
pg. 6-55 (2000).
Rule 606(b) provides a narrow exception that would allow jurors to testify to
certain matters occuring during deliberations. Under that exception “a juror may testify on
the question 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.”
Cleckley, Handbook on Evidence, § 6-6(B), at 6-55. See Syl. pt. 2, Scotchel (“Courts
recognize that a jury verdict may be impeached for matters of misconduct extrinsic to the
jury's deliberative process.”). In determining whether a jury's consideration of extrinsic
evidence warrants a new trial, the following standard has been recognized by this Court:
When jurors consider extrinsic evidence, a new trial is required if the evidence poses a reasonable possibility of prejudice to the defendant. . . . Prejudice from extrinsic evidence is assumed in the form of a rebuttable presumption and the government bears the burden of demonstrating that the consideration of the evidence was harmless.
State ex rel. Trump v. Hott, 187 W. Va. 749, 753, 421 S.E.2d 500, 504 (1992) (quoting United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984)).
Mr. Daugherty contends that the evidence at the post-trial hearing established
the presumption of prejudice and that the State failed to rebut that presumption. We disagree.
To begin, Mr. Daugherty contends that under our decision in Trump, he is
entitled to a new trial. In Trump, the defendant was convicted of four counts of
second-degree sexual assault. Subsequent to the conviction, a juror came forward and
alleged that during the deliberations another juror told the jury panel that the defendant had
previously been accused or convicted of wife beating and child molestation. The circuit
court held a hearing and questioned the other jurors to determine if the statements were in
fact made during the deliberations. Five jurors questioned indicated that the statements were
made. Thereafter, the trial court indicated that it was inclined to grant a new trial. However,
the trial court invited the prosecutor to seek a writ of prohibition from this Court to preclude
such a ruling. This Court declined to issue a writ of prohibition. The opinion in Trump instructed the circuit court that before granting a new trial, it should consider whether the
evidence against the defendant was so overwhelming that the juror's remarks were harmless.
We do not believe that our decision in Trump supports granting Mr. Daugherty
a new trial. The extrinsic evidence in Trump involved other alleged past acts by the
defendant. The alleged extrinsic evidence in this case does not involve alleged past wrongs
committed by Mr. Daugherty. In this case, Mr. Daugherty contends that Mr. McBride
informed the jury that he knew Mr. Daugherty and his family and that he was afraid that
something could happen to his children if Mr. Daugherty was not convicted. Clearly Trump is distinguishable.
As previously indicated, the trial court took testimony from each of the jurors and Mr. Daugherty. In its order denying the motion for new trial, the court made the following relevant findings of fact:
[1] Juror Bryant testified that Juror McBride stated that he (McBride)
lived in the vicinity of the Defendant, that McBride knew the Defendant's
family, and that McBride had two children whom he feared for if the
Defendant were not found guilty.
[2] Juror Cox testified that McBride stated that he (McBride) knew the
Defendant and his family and if they (the jury) did not do something, McBride
feared for his own children.
[3] Juror Crookshanks testified that Juror McBride stated he was scared
for his family if the Defendant were not put in jail, and that he knew the
Defendant's family and the jury should be afraid.
[4] Juror Vandall testified that he signed a document (presumably the
affidavit) provided by an investigator for the Defendant, but he did not hear
any comments alleged by the Defendant.
[5] Juror McBride testified that he did not know the Defendant nor his
family, that he does not live in the vicinity of the Defendant, and that he did
not make any of the alleged comments during deliberation.
[6] The remaining eight jurors testified that they did not hear any
comments from Juror McBride.
[7] Defendant Daugherty testified that he did not know Juror McBride
or any other jury member. (See footnote 11)
Based on the above facts, the circuit court made specific legal conclusions as
to the issue of Mr. McBride stating (1) that he was afraid that something could happen to his
children if Mr. Daugherty was not convicted, and (2) that he knew Mr. Daugherty and his
family. We will review each legal conclusion separately.
(1) Fear for his children. As to the issue of Mr. McBride stating to the jury
that he was afraid that something could happen to his children if Mr. Daugherty was not
convicted, the trial court concluded that “although [Mr. McBride] may have commented upon
his mental process, or fear, of future harm by the accused, evidence of this to overturn a
verdict is violative of Rule 606(b) and must not be utilized to impeach the conviction.” We
agree with the circuit court's legal conclusion on this issue. As pointed out by Professor
Cleckley, “[t]he mental operations and emotional reactions of jurors in arriving at a given
result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and
invite tampering and harassment.” Cleckley, Handbook on Evidence, § 6-6(B), at 6-56.
Further, this Court made the following observations in Scotchel:
The reason traditionally advanced to preclude impeachment of the jury
verdict based on what occurred during the jury's deliberations is primarily
grounded on public policy protecting the privacy of the jurors. This policy
prevents both litigants and the public from being able to gain access to the
jury's deliberative process. Inherent in this proposition is the recognition that
ensuring the privacy of the jury's deliberations will promote a full, frank and
free discussion of all the issues submitted to the jury. It is also recognized that
the very nature of the deliberative process, which requires the jurors to arrive
at a unanimous verdict, must of necessity require accommodation of individual
views. This process of accommodation should not be utilized as a means to
attack the general verdict. The rule against impeachment of the verdict also
serves to prevent litigants from attempting to influence or tamper with
individual jurors after the verdict has been rendered. There is also recognition
that limiting impeachment promotes finality of jury verdicts.
Scotchel, 168 W. Va. at 548, 285 S.E.2d at 387. Thus, “the matters raised by [Mr. McBride]
related, intrinsically, to the jury's deliberative process and resulted in no grounds to set the
verdict aside.” Brooks v. Harris, 201 W. Va. 184, 188, 495 S.E.2d 555, 559 (1997).
(2) Prior knowledge of Mr. Daugherty and his family. As to the issue of
Mr. McBride stating that he knew Mr. Daugherty and his family, the circuit court's order
addressed this statement in the context of Mr. Daugherty's claim that Mr. McBride should
have been disqualified for cause. The issue of disqualification of Mr. McBride for cause,
was a separate assignment of error in Mr. Daugherty's petition for appeal to this Court. As
previously noted, this Court refused the appeal on that issue and several others.
Consequently, we will not disturb the basis for the trial court's ruling on this issue. Even
though the trial court did not address the disqualification for cause issue in the context of the
extrinsic evidence claim, we will do so because that is how the issue was presented in this
appeal and briefed by the parties.
Assuming, for the sake of argument, that Mr. McBride did inform the jury that
he knew Mr. Daugherty and his family, that statement does not warrant granting Mr.
Daugherty a new trial. The limited record presented in this appeal does not show that the
statement posed a reasonable possibility of prejudice to Mr. Daugherty. The jury was
presented with 12 of the 16 counts against Mr. Daugherty, but convicted him of only four
counts. The victim in this case, T.J., testified to being sexually abused and identified Mr.
Daugherty as the abuser. The State presented the testimony of a psychologist who reviewed
T.J.'s mental health records. When asked if the behavior outlined in T.J.'s mental health
records was consistent with a victim of child sexual abuse, the psychologist answered as
follows:
As I testified earlier, children who have been sexually abused do often exhibit certain behaviors at a higher frequency than normal children, behavior that I've described to you [regarding T.J.], sexually aggressiveness toward other children, trying to be sexual with other children, hunching things, masturbating, putting things in his anus, eating _ all those behaviors, I think, could be seen as symptoms or behaviors that was [sic] caused by the trauma of sexual abuse.
From what this Court is able to ascertain from the limited record presented on appeal, the
evidence to sustain the four convictions was sufficient beyond a reasonable doubt. See United States v. Saya, 247 F.3d 929, 939 (9th Cir. 2001) (“Also of consequence in
determining whether the introduction of extraneous information constituted prejudice is the
amount and strength of the government's evidence against the defendant.”). Therefore,
assuming the statement was made, we are convinced that it did not pose a reasonable
possibility of prejudice to Mr. Daugherty. (See footnote 12)