State of WV v. Walker
Annotate this CaseSeptember 1992 Term
______________
No. 21023
______________
STATE OF WEST VIRGINIA,
Appellee
v.
JACK EARL WALKER,
Appellant
____________________________________________________
Appeal from the Circuit Court of Tyler County
Honorable Steven D. Narick, Judge
Criminal Action No. 89-F-16
REVERSED AND REMANDED
____________________________________________________
Submitted: September 8, 1992
Filed: December 17, 1992
Stephen D. Herndon, Esquire
Wheeling, West Virginia
Attorney for the Appellant
Richard M. Gutmann, Esquire
Assistant Attorney General
Attorney for the Appellee
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "In a prosecution for first-degree murder, the State
must submit jury instructions which distinguish between the two
categories of first-degree murder-- willful, deliberate, and
premeditated murder and felony-murder-- if, under the facts of the
particular case, the jury can find the defendant guilty of either
category of first-degree murder. When the State also proceeds
against the defendant on the underlying felony, the verdict forms
provided to the jury should also reflect the foregoing distinction
so that, if a guilty verdict is returned, the theory of the case
upon which the jury relied will be apparent." Syl. pt. 9, State v.
Giles, 183 W.Va. 237, 395 S.E.2d 481 (1990).
2. The State need not elect whether it will proceed on
premeditated murder or felony murder until the close of all
evidence; however, a defendant may make a motion to force an
earlier election if he can make a strong, particularized showing
that he will be prejudiced by further delay in electing.
3. The granting of a motion to force the State to elect
rests within the discretion of the trial court, and such a decision
will not be reversed unless there is a clear abuse of discretion.
4. "If, on a trial for murder, the evidence is wholly
circumstantial, but as to time, place, motive, means and conduct,
it concurs in pointing to the accused as the perpetrator of the
crime, he may properly be convicted." Syl. pt. 3, State v. Gum,
172 W.Va. 534, 309 S.E.2d 32 (1983).
5. "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." Syl. pt. 5, State v. Smith, 156
W.Va. 385, 193 S.E.2d 550 (1972).
6. "Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that
he acted in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent
preparation, plan, knowledge, identity, or absence of mistake or
accident. W.Va.R.Evid. 404(b)." Syl. pt. 1 State v. Edward
Charles L., Sr., 183 W.Va. 641, 398 S.E.2d 123 (1990).
7. "Under the requirements of the Confrontation Clause
contained in the Sixth Amendment to the United States Constitution,
evidence offered under the residual hearsay exceptions contained in
Rule 803(24) and Rule 804(5) of the West Virginia Rules of Evidence
is presumptively unreliable because it does not fall within any
firmly rooted hearsay exception, and, therefore, such evidence is
not admissible. If, however, the State can make a specific showing
of particularized guarantees of trustworthiness, the statements may
be admissible. In this regard, corroborating evidence may not be
considered, and it must be found that the declarant's truthfulness
is so clear that cross-examination would be of marginal utility."
Syl. pt. 6, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843
(1990).
Neely, J.:
In this appeal the defendant was convicted of felony
murder and arson and was sentenced to life without mercy. Although
standing alone the errors defendant assigns might be harmless, the
cumulative effect of numerous errors hopelessly tainted the first
trial. Therefore, we reverse the conviction and remand the case
for a new trial.
I.
On 9 May 1989, a dark, rainy night, a fire broke out at
Mary Sherwood's residence on Elk Fork Road in Tyler County (about
a mile from the Wetzel County border). After firefighters battled
the blaze for several hours, rescuers were finally able to search
the house for survivors. The only body they found was that of Ms.
Sherwood, her remains burned beyond recognition. An autopsy
discovered a bullet fragment in Mrs. Sherwood's head. It is clear
that either the bullet wound or the fire would have caused Mrs.
Sherwood's death. As the coroner, Dr. Sopher, noted:
[T]he only other injury . . . to the body
other than that due to fire and heat was a
gunshot wound to the head. . . . [I]n time,
the gunshot wound would have resulted in death
without a question; however, the actual cause
of death, in the final analysis after the
examination, was not the injury to the head
but that she had died in the fire of smoke and
soot inhalation.
Transcript, 21 March 1990, at 127.
Fire marshals examined the house after the fire was
extinguished and concluded that the fire was likely caused by arson
because there were five disconnected circular "burn-through" spots
in the floor. No traces of accelerant were found, but the fire
marshal indicated that it was not unusual for all traces of
accelerant to be burned up in a fire of that intensity.
As the fire burned, a small crowd gathered to watch the
firefighters extinguish the blaze. Sheriff Adams of Wetzel County
along with Sheriff Keller and Deputy Kendle from Tyler County
arrived at the scene. Several witnesses indicated to the officers
that they had seen a two-toned blue car driving in the area earlier
that day, and the witnesses also mentioned that the car had one
headlight out and made a squealing noise. One witness, Mrs. Leek,
said she had seen a car come "flying out of Mary's lane." Mrs.
Leek described the car as being the same as the one she and her
husband had seen earlier in the day. After being shown the car
driven by Mr. Walker, Mrs. Leek identified it as the car she had
seen earlier. Sheriff Adams recognized the car as Mr. Walker's.
After this identification of the car, Sheriff Keller
interviewed Mr. Walker. The Sheriff read Mr. Walker the Miranda
warnings and informed Mr. Walker that he was considered a suspect.
The Sheriff then swabbed Mr. Walker's hands, searching for traces
of accelerant. Laboratory tests later revealed that there was no
accelerant on Mr. Walker's hands, no evidence of gunpowder residue,
and no indication that Mr. Walker's hands had been recently washed.
After asking Mr. Walker a few more questions, Sheriff Keller
allowed Mr. Walker to go home.
Mr. Walker (who was admittedly in the area on the day of
the fire) maintains that he had been in the neighborhood looking
for a lost coon dog. Mr. Walker was back that night, looking for
a fan belt or alternator belt that he thought he had lost that day.
That missing belt was the cause of the squealing emanating from his
car. Mr. Walker's car had one headlight out, as well. However,
one of the strongest elements of circumstantial evidence tending to
incriminate Mr. Walker was that he was five miles from his home and
present among the crowd when the fire was burning-- typical
behavior for an arsonist.
Mr. Walker was convicted of both felony murder and arson.
The State waived sentencing on the arson, but Mr. Walker was
sentenced to life without mercy on the murder charge. Mr. Walker
now asserts here that: (1) The court erred by instructing the jury
only on felony murder; (2) the court erred in failing to grant a
directed verdict or judgment notwithstanding the verdict due to the
vague, circumstantial nature of the evidence; (3) the court erred
in admitting evidence of unrelated weapons and unrelated conduct;
(4) the court erred in admitting into evidence damning hearsay
testimony and an inaccurate videotape; and (5) the court failed to
grant a motion to change venue, failed to allow individual voir
dire by counsel, and failed to grant a mistrial because a
prospective juror declared that he believed Mr. Walker was guilty
in front of the rest of the prospective jury panel.
II.
The prosecution began its case by asserting a theory of
premeditated murder. In his opening argument, the prosecutor made
it clear that the State was trying to convict Mr. Walker of
premeditated murder:
Now, the indictment in this case which is an
accusation charges that Jack Walker willfully
and maliciously killed, slain, [sic] and
murdered Mary Sherwood and committed first
degree arson by maliciously and willfully
setting fire to her house on May 9th of last
year.
Transcript, 19 March 1990, at 88. However when it came time for
the jury instructions, the State offered instructions only on
felony murder and arson, not premeditated murder. The jury
subsequently convicted Mr. Walker of both felony murder and the
underlying felony of arson. Although the State waived sentencing
on the arson conviction, the arson conviction was still entered
against Mr. Walker's record.
The conviction of Mr. Walker on both felony murder and
arson charges was impermissible:
"Double jeopardy prohibits an accused charged
with felony murder, as defined by W.Va. Code §
61-2-1 (1977 Replacement Vol.,) from being
separately tried or punished for both murder
and the underlying enumerated felony."
Syllabus point 8, State v. Williams, [172]
W.Va. [295], 305 S.E.2d 251 (1983).
Syl. pt. 8, State v. Giles, 183 W.Va. 237, 395 S.E.2d 481 (1990).
The State admits that the case should be remanded for the trial
court to correct the arson conviction. Mr. Walker, however,
contends something more fundamental is wrong with the way that the
charge was shifted from premeditated murder to felony murder.
First, Mr. Walker asserts that the shift caused evidence to be
introduced against him that was irrelevant. Second, the shift
prohibited him from having the jury instructed concerning the
lesser-included offenses under a premeditated murder indictment,
such as second-degree murder and manslaughter. Finally, the shift
precluded him from raising a possible defense.
In order to prevent double jeopardy problems when a
defendant is charged with felony murder, we held in Syl. pt. 9 of
Giles, supra, that:
In a prosecution for first-degree murder, the
State must submit jury instructions which
distinguish between the two categories of
first-degree murder-- willful, deliberate, and
premeditated murder and felony-murder-- if,
under the facts of the particular case, the
jury can find the defendant guilty of either
category of first-degree murder. When the
State also proceeds against the defendant on
the underlying felony, the verdict forms
provided to the jury should also reflect the
foregoing distinction so that, if a guilty
verdict is returned, the theory of the case
upon which the jury relied will be apparent.
However, the Giles decision contemplated a situation where the
State did not elect between premeditated murder and felony murder,
but offered a general jury instruction for first-degree murder that
encompassed both theories.
In this case, the State elected only to proceed on felony
murder, not on premeditated murder. Although we have no case law
in West Virginia on the time at which an election between
premeditated murder and felony murder must be made by the State,
several other jurisdictions have considered this issue. The best
reasoned view is that the State need not make an election before
the close of all evidence, if such an election is to be made at
all, so long as the accused is not harmed by the lack of notice.
As the Arizona Supreme Court wrote:
While it is, of course, possible that an
accused may be taken by surprise if an
information charges him under one subsection
of [the criminal code] and the proof offered
brings the offense under another subsection,
if the accused has received notice of such a
possibility he is not prejudiced thereby.
State v. Klem, 108 Ariz. 349, 350, 498 P.2d 216, 217 (1972).
However, our holding in Giles, supra, clearly indicates that in
appropriate circumstances, both theories may be presented to the
jury with proper instructions.
A defendant, however, has the right to ask for an
election and to ask for an earlier election than at the close of
all the evidence, but the court need order the election only if the
defendant can make a strong, particularized showing of how he will
be prejudiced if the prosecutor either does not elect at all or
waits until the end of the trial to decide what the exact charges
will be. It is within the discretion of the circuit court whether
to force the prosecutor to elect, and such a decision will not be
reviewed unless the court abuses his discretion.
In Mr. Walker's situation, we fail to see how he was
harmed by the State's election to charge him only with felony
murder. Mr. Walker was not precluded from presenting any defenses.
He defended both the arson charge and the premeditated murder
charge, with an alibi defense. Although Mr. Walker could have been
prejudiced had he chosen to make a self-defense claim (or some
other justifiable homicide defense where he would have had to admit
the killing), Mr. Walker was not deprived of the opportunity to
raise any defenses nor was he tricked into admitting something as
a defense. See State v. Neider, 170 W.Va. 662, 295 S.E.2d 902
(1982).
The only thing Mr. Walker was deprived of was a jury
instruction concerning the lesser offenses included within a
premeditated murder indictment. However, if the prosecutor can
make a valid felony murder case, then there is no error in the
court's giving only the felony murder charge to the jury.
III.
Mr. Walker assigns error to the court's denial of his
motion for a directed verdict and judgment notwithstanding the
verdict. Mr. Walker claims that the entirely circumstantial nature
of the evidence against him required the trial court to dismiss all
charges.
In order to survive a defendant's motion for a directed
verdict (or judgment notwithstanding the verdict), the State does
not need to present a large amount of incriminating evidence:
Upon motion to direct a verdict for the
defendant, the evidence is to be viewed in [a]
light most favorable to [the] prosecution. It
is not necessary in appraising its sufficiency
that the trial court or reviewing court be
convinced beyond a reasonable doubt of the
guilt of the defendant; the question is
whether there is substantial evidence upon
which a jury might justifiably find the
defendant guilty beyond a reasonable doubt.
Syl. pt. 1 State v. Gum, 172 W.Va. 534, 309 S.E.2d 32 (1983).
However, the State must pass a higher threshold when the
case against a defendant is based wholly on circumstantial
evidence:
Circumstantial evidence will not support a
guilty verdict, unless the fact of guilt is
proved to the exclusion of every reasonable
hypothesis of innocence; and circumstances
which create only a suspicion of guilty [sic]
but do not prove the actual commission of the
crime charged, are not sufficient to sustain a
conviction.
Syl. Pt. 2, State v. Gum, supra. This higher threshold, however,
does not foreclose the possibility of a murder conviction being
based wholly on circumstantial evidence:
If, on a trial for murder, the evidence is
wholly circumstantial, but as to time, place,
motive, means and conduct, it concurs in
pointing to the accused as the perpetrator of
the crime, he may properly be convicted.
Syl. pt. 3, State v. Gum, supra.
It is permissible for a jury to infer guilt from
circumstantial evidence, so long as the evidence properly points to
the defendant with regard to time, place, motive, means and
conduct. Given the requirement that we must look at all evidence
in the light most favorable to the State, we find that a plausible
reading of the evidence implicates Mr. Walker. Therefore the
failure to grant a directed verdict or judgment notwithstanding the
verdict was not error.
IV.
The major problem in this case is the large quantity of
improperly admitted evidence. Although admission of some of the
evidence of which Mr. Walker complains might have been harmless
standing alone, the cumulative effect of such a multitude of errors
taints the entire trial. As we held in State v. Smith:
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.
Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).
Here, significant pieces of evidence were improperly
admitted. When the circumstantial nature of the evidence requires
the jury to construct a chain of logical inferences in order to
find guilt, strict adherence to the rules of evidence becomes
crucially important. As we held in State v. Atkins, the definitive
case on harmless error in West Virginia, an error is less likely to
be harmless "[i]f the case contains a number of substantial key
factual conflicts or is basically a circumstantial evidence case."
163 W.Va. 502, 515, 261 S.E.2d 55, 63 (1979), cert. denied 445 U.S. 904, 100 S. Ct. 1081 (1980).
A.
The State introduced evidence about a .357 Magnum
revolver, brass cartridge cases, ammunition, and other firearm
accessories that were found in Mr. Walker's house at the time of
his arrest. Many West Virginians have guns and ammunition in their
houses, and Mr. Walker's possession of his weaponry was completely
lawful. Furthermore, the evidence clearly established that the
only small caliber ammunition in Mr. Walker's possession (of the
same caliber as the bullet found in Mrs. Sherwood) had a silver
wash, while the bullet found in Mrs. Sherwood's body had a copper
wash. Therefore, there was no probative value whatsoever in
admitting testimony concerning Mr. Walker's firearms. The only
purpose of such testimony was to create the impermissible inference
that Mr. Walker must be a dangerous person solely because he
possessed guns and ammunition, notwithstanding that the right to
keep and use arms is guaranteed to every citizen by W. Va. Const.,
Art. III, § 22. "Evidence which is not relevant is not
admissible." West Virginia Rules of Evidence Rule 402.
B.
Much inadmissible testimony was elicited from people in
the general area of the crime to the effect that Mr. Walker had
knocked on their doors, identified himself, and asked permission to
search for his lost coon dog on their property. Furthermore, these
neighbors implied that strange things happened within a couple of
weeks of Mr. Walker's visits: a stone jar mysteriously appeared;
a jar mysteriously disappeared (not the same jar); and a lock was
changed on a door. From this evidence, the prosecution attempted
to show that because Mr. Walker had been seen in the area around
the time of the fire it was logical to infer that he set the fire.See footnote 1
Generally, "[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. W.Va.R.Evid. 404(b)." Syl. pt. 1
State v. Edward Charles L., Sr., 183 W.Va. 643, 398 S.E.2d 123
(1990). Although the State now claims that the purpose of
admitting evidence of Mr. Walker's visits to area residents and
subsequent mysterious happenings was not to show Mr. Walker's bad
character and his conformity therewith, in his opening argument,
the prosecutor said, "We're going to show you that he had a habit
of lurking around the homes of the elderly in this county and
nearby Wetzel County." Transcript, 19 March 1990, at 91. If the
prosecutor had succeeded in showing a consistent pattern of
unlawful behavior on the part of Mr. Walker, then evidence of
visits to other houses would have been admissible because it showed
a plan. But here, there was no proof that the bad things that
happened when Mr. Walker showed up were actually caused by Mr.
Walker.See footnote 2
C.
The State introduced evidence from Tim Glasscock that
four or five months before the fire the defendant had made a
statement that if anyone "pissed him off, he would burn them down":
Q: Tim, did you engage in conversation with
Jack [Walker] from time to time?
A: Oh, yeah.
Q: Did you ever hear him talk about burning
any property?
A: One time.
Q: What did he say?
[Objection made by defense and overruled by the court]
A: He said that at one time, if anything
pissed him off, he would burn them down.
Generally, when dealing with the question of the
remoteness of a threat, we defer to the judgment of the circuit
court:
Whether evidence offered is too remote to be
admissible upon the trial of a case is for the
trial court to decide in the exercise of sound
discretion; and its action in excluding or
admitting the evidence will not be disturbed
by the appellate court unless it appears that
such action amounts to an abuse of discretion.
State v. Duell, 175 W.Va. 233, 241, 332 S.E.2d 246, 254 (1985)
(quoting Syl. pt. 5, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410
(1945)). However such discretion does not mean that we will permit
the admission of all such threats carte blanche. Normally, there
must be some clear link between the threat made and the ultimate
victim. For example, in Duell, supra (Accord, State v. McCarty,
184 W.Va. 524, 401 S.E.2d 457 (1990) (per curiam); State v. Berry,
176 W.Va. 291, 342 S.E.2d 259 (1986) (per curiam)), we held that
direct threats against specific persons were enough to overcome
concerns about remoteness. This type of evidence of threats is
usually used to prove premeditation.
In this case, the threat admitted at trial was made "in
the air," so to speak. It was not aimed at the victim or any other
specific person, but merely came up in casual conversation.
Furthermore, the statement was made at least four months before the
burning of Mrs. Sherwood's house, so it was clearly remote from the
time of the actual crime. Everyone says foolish things from time
to time; we need something more than just idle chatter to convict
a person of murder.
D.
The State introduced hearsay testimony from Marie Workman
that Mrs. Sherwood said she was visited by "A man named Miller from
Wick," as well as testimony from Betty Shreve that Mrs. Sherwood
had told her that a very nice man had been around her house earlier
that day looking for a big black dog. This latter statement was
particularly important because there was admissible evidence that
when Mr. Walker went snooping around other peoples' land he always
said he was looking for a lost dog.
Both of these statements were allegedly made during the
course of telephone conversations between the testifying witnesses
and Mrs. Sherwood. Rule 804(b)(5) of the West Virginia Rules of
Evidence permits a hearsay statement by an unavailable declarant to
be admitted only if the statement to be admitted has guarantees of
trustworthiness equal to the other, generally recognized hearsay
exceptions. Furthermore, the U. S. Constitution demands a showing
of reliability for hearsay evidence: "[E]ven though the
unavailability requirement has been met, the Confrontation Clause
mandates the exclusion of evidence that does not bear adequate
indicia of reliability." Syl. pt. 5, State v. James Edward S., 184
W.Va. 408, 400 S.E.2d 843 (1990).
The U.S. Supreme Court in Idaho v. Wright, 497 U.S. 805,
110 S. Ct. 3139, 3150 (1990) held that evidence offered under the
residual hearsay clauses (Rule 803(24) and Rule 804(b)(5)) is
presumptively unreliable because it does not fall within an
explicit hearsay exception. We adopted this holding in Syl. pt. 6,
State v. James Edward S., supra:
Under the requirements of the Confrontation
Clause contained in the Sixth Amendment to the
United States Constitution, evidence offered
under the residual hearsay exceptions
contained in Rule 803(24) and Rule 804(b)(5)
of the West Virginia Rules of Evidence is
presumptively unreliable because it does not
fall within any firmly rooted hearsay
exception, and, therefore, such evidence is
not admissible. If, however, the State can
make a specific showing of particularized
guarantees of trustworthiness, the statements
may be admissible. In this regard,
corroborating evidence may not be considered,
and it must be found that the declarant's
truthfulness is so clear that cross-examination would be of marginal utility.
The State has not made a particularized showing that the hearsay
statements purportedly made by Mrs. Sherwood are reliable based
upon particularized guarantees of trustworthiness within the
statement. Therefore the admission of these statements was error.
E.
Also admitted during the trial was a videotape of the
fire, as shot by Janet Higgenbotham, the wife of a firefighter.
Part way through the videotaping, Mrs. Higgenbotham pressed the
strobe button on her camera. This slowed down the speed of the
tape, thus decreasing the light necessary to record the scene.
However, this effect decreased the accuracy of the scene depicted
in the videotape by heightening the dramatic effects of the fire.
West Virginia Rules of Evidence Rule 1001(2) states that
videotapes are to be treated for evidentiary purposes like
photographs. One requirement for a photograph to be admitted is
that the picture must accurately depict what it is purported to
represent. Syl. pt. 2, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 247
(1978). There is nothing about the videotape that is particularly
disturbing. It merely shows a house-fire burning. The
stroboscopic effect is not very noticeable. A warning to the jury
about the strobing effect would be sufficient to overcome any
possible inaccuracies.
V.
It appears that there was a significant amount of
hostility towards Mr. Walker due to the reports in the Tyler Star
News. However, unless a clear showing can be made that the trial
court abused his discretion, we will not overturn his ruling on a
change of venue. "Widespread publicity, of itself, does not
require change of venue, and neither does proof that prejudice
exists against an accused, unless it appears that the prejudice
against him is so great that he cannot get a fair trial." Syl pt.
2 State v. Young, 173 W.Va. 1, 311 S.E.2d 118 (1983) (quoting Syl.
pt. 1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982)). In
order to receive a change of venue, a defendant must show that
there is "a present hostile sentiment against an accused, extending
throughout the entire county in which he is brought to trial."
State v. Young, 173 W.Va. at 9, 311 S.E.2d at 127 (quoting Syl. pt.
1, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981)).
In this case, Mr. Walker submitted numerous articles
(both factual and opinion articles) that depicted him as guilty.
Mr. Walker also submitted a threatening letter received by his wife
along with eighteen affidavits from people who believed that
hostile sentiment existed in Tyler County against Jack Walker. The
State, however, submitted fifty-one affidavits, forty-seven of
which contained statements that there was no reason why Jack Walker
could not be given a fair trial.See footnote 3 The circuit court denied the
motion for change of venue, stating:
[A]t the time of impanelling a jury, the Court
can readily make that determination as to
whether a jury, being an impartial jury, can
be impanelled for which to assure the
Defendant is to receive a fair trial.
Transcript, 21 September 1989, at 14.
When it came to impanelling the jury in Mr. Walker's
case, however, the court did not give the defense an opportunity to
conduct extensive voir dire. The circuit court did ask "Any member
of this panel know anything at all about this case from what you've
read, heard, discussed or otherwise?" Transcript, 19 March 1990,
at 25. Virtually every member of the venire panel had at least
heard about the crime or read about it in the paper. At that
point, the circuit court asked the perfunctory "Did you form any
opinion as to Mr. Walker's guilt or innocence?" question, rather
than specifically inquiring about what had been read and heard by
the prospective jurors. Furthermore the court did not allow the
defendant's lawyer to question prospective jurors separately,
notwithstanding a strong prima facie showing of hostile sentiment
and bias.
The voir dire in the first trial was inadequate. At the
new trial, the current extent of hostile sentiment in Tyler County
must be measured. If sentiment is so hostile that fair jurors
cannot be found, the trial must be moved. In any event, the
circuit court should ask questions that elicit responses that will
help determine the extent of bias, and that means going beyond
asking if a prospective juror can set aside his knowledge.See footnote 4
VI.
For the foregoing reasons, the judgment of the Circuit
Court of Tyler County is reversed, and this case is remanded for a
new trial.
Reversed and remanded.
Footnote: 1The only alleged collateral act that related specifically to the burning of buildings was the statement of Paul Workman that he had seen Mr. Walker around his house the day before his house mysteriously burned. Mr. Workman's house burned on the morning of the same day that Mrs. Sherwood was killed. However, other than the defendant's having been in the area the day before that fire, there is absolutely no evidence that ties Mr. Walker to the Workman fire. Admission of this evidence was not probative although it was highly prejudicial. Footnote: 2Because the testimony concluding these collateral acts is not admissible, the assignment of error concerning the witnesses' identifications of Jack Walker in photographs is rendered moot. Footnote: 3Nearly half of those respondents were at least familiar with Mr. Walker and the crimes with which he was charged. Footnote: 4Reversal on other grounds renders moot whether failure to deny a mistrial was reversible error and all questions concerning ineffective assistance of counsel.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.