655 S.E.2d 517
JUSTICE MAYNARD dissents.
2. “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.” Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
3. “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).
4. “The credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but subject to certain limitations. The evidence may
refer only to character for truthfulness or untruthfulness. A fair reading of Rule 608(a) of
the West Virginia Rules of Evidence provides that a witness may be impeached by proof that
the witness is untruthful. Under this rule, no distinction is made between nonparty witnesses
and party witnesses. The rule applies with equal force to the defendant in a criminal case.
The form of proof may be either 'reputation' or 'opinion' evidence.” Syllabus Point 4, State
v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995).
5. “A babysitter may be a custodian under the provisions of W.Va.Code,
61-8D-5 [1998], and whether a babysitter [is] in fact a custodian under this statute is a
question for the jury.” Syllabus Point 1, State v. Stephens, 206 W.Va. 420, 525 S.E.2d 301
(1999).
6. “W.Va.Code, 61-8D-5(a) (1988), states, in part: 'In addition to any other
offenses set forth in this code, the Legislature hereby declares a separate and distinct offense
under this subsection[.]' Thus, the legislature has clearly and unequivocally declared its
intention that sexual abuse involving parents, custodians, or guardians, W.Va.Code, 61-8D-5,
is a separate and distinct crime from general sexual offenses, W.Va.Code, 61-8B-1, et seq.,
for purposes of punishment.” Syllabus Point 9, State v Gill, 187 W.Va. 136, 416 S.E.2d 253
(1992).
7. “In order to receive a new trial, a party challenging a verdict based on
the presence of a juror disqualified under W.Va.Code § 52-1-8(b)(6) must show that a timely
objection was made to the disqualification or that ordinary diligence was exercised to
ascertain the disqualification.” Syllabus Point 4, Proudfoot v. Dan's Marine Service, Inc.,
210 W.Va. 498, 558 S.E.2d 298 (2001).
8. “Courts recognize that a jury verdict may be impeached for matters of
misconduct extrinsic to the jury's deliberative process.” Syllabus Point 2, State v. Scotchel,
168 W.Va. 545, 285 S.E.2d 384 (1981).
9. “The jury in a criminal case is not the judge of the law . . . but must
follow the instructions of the court upon the law.” Syllabus Point 3, State v. Dickey, in part,
48 W.Va. 325, 37 S.E. 695 (1900).
10. “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.” Syllabus Point 1, State v. Scotchel, 168 W.Va. 545, 285
S.E.2d 384 (1981).
11. “Where the record of a criminal trial shows that the cumulative effect
of numerous errors committed during the trial prevented the defendant from receiving a fair
trial, his conviction should be set aside, even though any one of such errors standing alone
would be harmless error.” Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550
(1972).
Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court
of Putnam County entered on April 28, 2006. Pursuant to that order, the appellant and
defendant below, Danny Lee Cecil, was sentenced to a term of one to five years in the
penitentiary for his conviction of the felony offense of sexual abuse in the first degree; a
concurrent term of ten to twenty years for his conviction of sexual abuse by a custodian; and
a consecutive term of ten to twenty years for his second conviction of sexual abuse by a
custodian. In this appeal, the appellant presents several assignments of error. First, he
contends that the circuit court improperly limited the testimony of one of his witnesses.
Secondly, he asserts that the circuit court erred by not granting his motion for judgment of
acquittal. Third, the appellant contends that one of the jurors lacked the requisite statutory
qualifications to serve on the jury. Fourth, the appellant claims that there was misconduct
and bias on the part of certain jury members. Finally, the appellant argues that his sentence
is disproportionate in contravention of Article III, Section 5 of the West Virginia
Constitution.
This Court has before it the petition for appeal, the entire record, and the briefs
and argument of counsel. Because we find that there was misconduct on the part of certain
jury members, we vacate the appellant's convictions and remand this case for a new trial.
As the investigation began concerning K.J.'s allegations, S.D. came forward
and alleged that she had been a victim of the appellant in 2002. S.D. testified that in March
of 2002, when she was thirteen-years-old, she spent a night at the Cecil residence. S.D said
that she and her family knew the Cecils through church and that she was a friend of the
appellant's son. S.D. testified that a sleep over was arranged between her parents and the
Cecils and that she slept in a guest bedroom. According to S.D., during the night she was
awakened by the appellant who had his hand down her shirt touching her breasts. She
testified that the appellant moved his hands down to her pants and that she defended herself
from his advances by holding her legs together. The appellant then left the room. S.D.
testified that she told her sister and an uncle what happened but did not tell her parents
because she did not want to damage their relationship with the appellant or hurt the
appellant's children.
A jury was empaneled to hear the appellant's case on January 31, 2006, and
trial continued through February 3, 2006. The jury returned its verdicts on February 7, 2006. (See footnote 3) The appellant was found guilty of one count of the felony offense of sexual abuse in the first
degree of S.D. The appellant was further found guilty of two counts of the felony offense
of sexual abuse by a custodian as related to both S.D. and K.J. The appellant was found not
guilty of sexual assault in the second degree of K.J.
Thereafter, the appellant filed several post-trial motions and alleged that there
had been misconduct on the part of certain jury members. A hearing was held on March 23,
2006. Subsequently, the circuit court denied the appellant's motions and proceeded with
sentencing. This appeal followed.
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). With these standards
in mind, we now consider the issues presented in this case.
At the conclusion of the in-camera hearing, the circuit court ruled that Dr.
Cooper-Lehki could rebut the social worker's assessment if it was offered as evidence (See footnote 4) but
that she could not testify about incidents of false reporting or the reasons why the victims
might make up such accusations. In this appeal, the appellant contends that the circuit
court's limitation on Dr. Cooper-Lehki's testimony contravened Rule 702 of the West
Virginia Rules of Evidence. (See footnote 5) The appellant points out that Rule 702 favors expert testimony
if it will assist the trier-of-fact to understand the evidence and determine a fact in issue. The
appellant argues that in cases of “he said-she said” such as this one, the jury would quite
naturally wonder why someone would fabricate such an accusation. He maintains that Dr.
Cooper-Lehki's testimony would have addressed this question and thus should have been
admitted.
After carefully reviewing the record and pertinent authorities, we do not find
that the circuit court erred in limiting Dr. Cooper-Lehki's testimony. The circuit court was
clearly willing to allow Dr. Cooper-Lehki to give rebuttal testimony had the State presented
the social worker's assessment as evidence. Since the State did not present this evidence, Dr.
Cooper-Lehki's testimony in that regard was properly excluded. (See footnote 6) The circuit court also
properly excluded the statistical evidence that Dr. Cooper-Lehki was going to relate to the
jury. This evidence was clearly being offered by the appellant to attack the credibility of the
alleged victims. Such evidence is clearly not admissible pursuant to Rule 608 of the West
Virginia Rules of Evidence.
In Syllabus Point 4 of State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995), this
Court explained that,
The credibility of a witness may be attacked or supported
by evidence in the form of opinion or reputation, but subject to
certain limitations. The evidence may refer only to character for
truthfulness or untruthfulness. A fair reading of Rule 608(a) of
the West Virginia Rules of Evidence provides that a witness
may be impeached by proof that the witness is untruthful.
Under this rule, no distinction is made between nonparty
witnesses and party witnesses. The rule applies with equal force
to the defendant in a criminal case. The form of proof may be
either “reputation” or “opinion” evidence.
In this instance, the appellant was seeking to show that the alleged victims were lying using
statistical information that could not be specifically related to them or even the facts of this
case. Rule 608 clearly does not contemplate this type of evidence being used to attack the
credibility of a witness. Furthermore, if such evidence were admissible, no defendant could
ever be found guilty beyond a reasonable doubt when the only evidence presented by the
State is the testimony of the alleged victim. Thus, we are unable to find that the circuit court
erred in limiting Dr. Cooper-Lehki's testimony. (See footnote 7)
A babysitter may be a custodian under the provisions of W.Va.Code, 61-8D-5 [1998], and whether a babysitter [is] in
fact a custodian under this statute is a question for the jury.
He contends that he was plainly not a babysitter in the usual and customary sense.
Upon review of the record, we find that there was sufficient evidence presented
from which the jury could have reasonably concluded that the appellant was a custodian of
S.D. and K.J. at the time the alleged offenses occurred. K.J., her mother, and the appellant's
daughter each testified that K. J. and the appellant's daughter frequently spent nights at each
other's houses. They lived on the same street. In addition, S.D. testified that the decision
for her to stay at the appellant's house in 2002 was “discussed between her parents and the
Cecils.” Moreover, the appellant testified himself that, “I believe that when a child is in my
home that I am supposed to look after that child. I believe that if anything happens to that
child, I'm to immediately notify their parents.” Thus, we find no merit to the appellant's
argument that there was insufficient evidence that he was a custodian of the alleged victims.
The appellant next argues that he was entitled to a judgment of acquittal
because the elements necessary to convict a person under W.Va. Code § 61-8B-7 (1984) (See footnote 9) for
sexual abuse in the first degree and W.Va. Code § 61-8D-5 (1998) (See footnote 10) for sexual abuse by a
custodian are the same. The appellant maintains that the principles of double jeopardy
prevent him from being convicted of both offenses for a single act. Likewise, he argues that
the elements are the same under W.Va. Code § 61-8B-4 (1991) (See footnote 11) for sexual assault in the
second degree and W.Va. Code 61-8D-5 for sexual abuse by a custodian. The appellant
argues that because he was acquitted of sexual assault in the second degree of K.J., his
conviction for sexual abuse by a custodian of K.J. cannot stand since it was based on the
same act.
Again, we find no merit to the appellant's arguments. In Syllabus Point 9 of State v Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), this Court explained:
W.Va.Code, 61-8D-5(a) (1988), states, in part: “In
addition to any other offenses set forth in this code, the
Legislature hereby declares a separate and distinct offense under
this subsection[.]” Thus, the legislature has clearly and
unequivocally declared its intention that sexual abuse involving
parents, custodians, or guardians, W.Va.Code, 61-8D-5, is a
separate and distinct crime from general sexual offenses,
W.Va.Code, 61-8B-1, et seq., for purposes of punishment.
With respect to inconsistent verdicts, this Court has observed that generally, appellate review
is not available. State v. Hall, 174 W.Va. 599, 602, 328 S.E.2d 206, 210 (1985).
Furthermore, we cannot say that the jury's verdicts with regard to Counts 3 and 4 were
inconsistent. Sexual assault in the second degree requires proof of sexual intercourse or
sexual intrusion whereas sexual abuse by a custodian only requires sexual contact. The jury
could have found that only sexual contact occurred. (See footnote 12)
We do not take lightly our responsibility in reviewing a
verdict that is returned by a jury, one of whose members may
have either prematurely reached a decision based on information
not presented during the trial, or introduced into the jury room
extrinsic information upon which other jurors may have based
their decision. Any challenge to the lack of the impartiality of
a jury assaults the very heart of due process. Irvin v. Dowd, 366
U.S. 717, 721-722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755
(1961). “The inevitable result of misconduct on the part of a
juror is to cast suspicion on the impartiality of the verdict
rendered by a jury of which he is a member.” Legg v. Jones, 126
W.Va. 757, 763, 30 S.E.2d 76, 79 (1944).
This Court has held that, “Where the record of a criminal trial shows that the
cumulative effect of numerous errors committed during the trial prevented the defendant
from receiving a fair trial, his conviction should be set aside, even though any one of such
errors standing alone would be harmless error.” Syllabus Point 5, State v. Smith, 156 W.Va.
385, 193 S.E.2d 550 (1972). Having carefully reviewed the record, we conclude that the
cumulative effect of each of the instances of juror misconduct discussed above made it
impossible for the appellant to receive a fair trial. We are mindful that the independent
investigation conducted by two of the jurors did not bear fruit, which arguably lessens the
prejudicial effect, but notwithstanding that fact, the mere fact that members of a jury in a
serious felony case conducted any extrajudicial investigation on their own is gross juror
misconduct which simply cannot be permitted. Without meaningful censure, failure to
properly punish such behavior would encourage or allow its repetition. Given the
independent investigation by these jurors and the fact that another juror advised that the
alleged victims' testimony should be given more weight than that of the appellant contrary
to the judge's instructions and our law, we have no choice but to vacate the appellant's
convictions. (See footnote 18)