State of WV v. Sampson
Annotate this CaseIN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
January 1997 Term
____________
No. 23548
____________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
DARRELL EUSTACE SAMPSON
Defendant Below, Appellant
_____________________________________________
Appeal from the Circuit Court of Calhoun County
Honorable Charles E. McCarty, Circuit Judge
Criminal Action No. 95-F-7
AFFIRMED
_____________________________________________
Submitted: January 28, 1997
Filed: May 30, 1997
Victor S. Woods, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Kelly Elswick, Esq.
Howley & Venezia
Grantsville, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file
a dissenting opinion.
SYLLABUS BY THE COURT
1. "In a criminal case it is reversible error for a trial
court to overrule a challenge for cause of a juror who is an
employee of a prosecutorial or enforcement agency of the State of
West Virginia." Syl. Pt. 5, State v. West, 157 W.Va.
209, 200 S.E.2d 859 (1973).
2. "When objections were not shown to have been made in
the trial court, and the matters concerned were not
jurisdictional in character, such objections will not be
considered on appeal." Syl Pt. 1, State Rd. Comm'n v.
Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).
3. "A trial court's instructions to the jury must be a
correct statement of the law and supported by the evidence. Jury
instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not [misled] by the law.
A jury instruction cannot be dissected on appeal; instead, the
entire instruction is looked at when determining its accuracy. A
trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court's discretion concerning
the specific wording of the instruction, and the precise extent
and character of any specific instruction will be reviewed only
for an abuse of discretion." Syl. Pt. 4, State v. Guthrie,
194 W.Va. 657, 461 S.E.2d 163 (1995).
4. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
Per Curiam:
Darrell Eustace Sampson appeals from an October 27, 1995,
final order of the Circuit Court of Calhoun County in which he
was convicted on six counts relating to theft of tanks of nitrous
oxide from Calhoun General Hospital. He assigns numerous errors,
none of which has merit. Accordingly, we affirm.
In November, 1994, the Appellant, Darrell Sampson, was living
with his ex-wife, Sherry Parsons, in a house rented by Sherry
Parsons. The Appellant's adult son, Jeffrey Scott
("Scott") Sampson, often stayed in the spare room. On
November 13, 1994, Sherry Parsons gave a statement to police
implicating herself, the Appellant, and Scott Sampson in the
theft of cylinders of nitrous oxide ("laughing gas")
from a fenced enclosure outside Calhoun General Hospital on two
occasions. A search of her house later that day produced two blue
cylinders and at least two pairs of wire cutters. The Appellant
was indicted on six counts: breaking and entering, petit larceny,
and conspiracy to commit breaking and entering with respect to
the first event described by Sherry Parsons; and entering without
breaking, petit larceny, and conspiracy to commit entering
without breaking with respect to the second episode.(1)
Conflicting evidence was presented at trial regarding the
underlying events. Sherry Parsons testified that she, the
Appellant, and Scott were sitting in her home one evening, when
Scott suggested that they steal some gas cylinders and sell them.
According to Ms. Parsons, the Appellant found some wire cutters
and drove the three of them to Calhoun General Hospital. Parsons
stated that she remained in the car while the Appellant and Scott
disappeared for a few minutes and returned with three cylinders.
They drove to the home of an acquaintance to try to sell him one
of the cylinders. When the acquaintance wasn't home, they
returned to Sherry Parsons' house. Sherry Parsons testified
further that on a second occasion, she, the Appellant, Scott, and
Scott's girlfriend, Wendy Fox, returned to the hospital and took
two more tanks. During this episode, Ms. Parsons originally told
police that she and Wendy Fox stayed in the car, but testified at
trial that they stood near the hospital doors as lookouts, and
could see the two men cross the roof of the hospital.
Scott Sampson testified to a completely different course of
events. He said that he met two men named Tim and Bob while out
walking one night. The men asked him if he knew of a place where
they could drink beer without being bothered by police. Scott
took them to the house where Sherry Parsons and the Appellant
lived. After drinking some beer, one of the men went out to the
car and brought in the cylinders of nitrous oxide. The three
inhaled nitrous oxide, and Tim and Bob later left the house,
leaving the cylinders behind. The Appellant testified that he
first saw the cylinders in the house the next morning. He said he
had been aware of Scott and some other people in the living room
late the night before, and saw the cylinders in Scott's bedroom
the next morning. Both the Appellant and Scott denied ever
stealing cylinders from Calhoun General.
There was uncontradicted testimony that the tanks were kept in
the spare bedroom at Sherry Parsons' house, where Scott Sampson
slept. Scott also admitted using the nitrous oxide himself, but
all witnesses agreed that the Appellant never used it. Several
witnesses testified about a third evening when Scott invited some
friends over and everyone tried the nitrous oxide. These
witnesses stated that although the Appellant and Sherry Parsons
were present during this evening, they did not inhale the gas.
Three witnesses testified regarding Ms. Parsons' reputation for
lack of truthfulness. After hearing this evidence, the jury
returned a verdict of guilty on all six counts.
The Appellant assigns the following errors: (1) the trial
court failed to strike two jurors for cause; (2) the chain-link
enclosure where the cylinders were kept was not a
"building"within the meaning of the statute defining
breaking and entering; (3) the gas cylinders recovered from the
home of Sherry Parsons were not properly authenticated and should
not have been admitted into evidence; (4) a jury instruction
regarding inferences to be drawn from the fact of exclusive
possession was not warranted by the evidence; and (5) the
sentence imposed by the court was disproportionate to the crime.
We address these errors below.(2)
The Appellant objects first to the trial court's failure to
strike for cause prospective juror Fitzwater. Ms. Fitzwater had
been working eight hours per week as a pharmacy technician, paid
by the hour, at Calhoun General Hospital. Although her employment
was not full-time, Ms. Fitzwater had worked for Calhoun General
for twenty-one years. Appellant's counsel moved to strike her for
cause based on her employment by the alleged victim. The court
refused this request and counsel used a peremptory strike to
eliminate this prospective juror.
The Appellant asserts that Ms. Fitzwater should have been
disqualified for cause, because she was an employee of a the
alleged victim. West Virginia Code section 62-3-3 (1992) requires
a panel of twenty jurors "free from exception." See
State v. West, 157 W.Va. 209, 217, 200 S.E.2d 859, 864
(1973). This Court has said that the true test of whether a juror
should be struck for cause is whether that juror can render a
verdict based solely on the evidence. The trial court is afforded
considerable discretion in this determination, and we will
reverse the trial court's decision only if there has been an
abuse of discretion. State v. Phillips, 194 W.Va. 569,
588, 461 S.E.2d 75, 94 (1995). We have also said that each case
must be evaluated on its own facts. West, 157 W.Va. at
219, 200 S.E.2d at 865.
The Appellant asserts that an employee of the alleged victim
is prima facie disqualified under the decision of this Court in State
v. Dushman, 79 W.Va. 747, 91 S.E. 809 (1917). In Dushman,
this Court determined eighty years ago that railroad employees
were prima facie disqualified from acting as jurors in a criminal
trial involving a theft of railroad property. Id. at 750,
91 S.E. at 811. The Dushman Court reasoned that the
employees of a victimized company would have an interest in the
outcome of criminal trials relating to stolen company property,
and should therefore be presumed to be biased.
In West, this Court addressed the issue of whether employees of State government should be disqualified from serving on juries in criminal trials, where their employer, the State of West Virginia, is a party. There, the Court said,
The proliferation of responsibilities undertaken by the State
and local governments and the historical tendency for the
proportion of governmental employees to increase in society,
cause us to doubt that all employees of State government are prima
facie disqualified to sit as jurors in a criminal case. Each
case must be evaluated on its own facts; however, we do hold it
reversible error to permit a challenged juror who is an employee
of the Department of Public Safety, a law enforcement arm of the
State, to be a member of a panel of twenty. Obviously, by virtue
of the prospective juror's association with enforcement officials
he is subject to potential prejudice and peremptory challenges
should not be required to disqualify.
Id. at ___, 200 S.E.2d at ______. The State asserts
that if not all employees of State government are subject to
challenge for cause in cases in which the State is a party, then
the employees of crime victims should similarly not be
automatically excluded.(3)
In the case before us, we cannot say that the trial court
abused its discretion in denying the Appellant's motion to
challenge prospective juror Fitzwater for cause. Dushman
is distinguishable, because this case does not involve a
full-time employee.(4)
Furthermore, Dushman's prima facie exclusion of employees
may have outlived its value, and the analysis in the West
case may be more the modern trend on this issue. However, because
the instant case is distinguishable from Dushman, we need
not directly address the continued viability of Dushman at
this time.
As an hourly employee, working only eight hours per week for a
large hospital, Ms. Fitzwater had no cognizable financial
interest in the outcome of the case. Ms. Fitzwater stated during
voir dire that she worked at the hospital, but didn't know
anything about the events in question. When defense counsel asked
her if her employment at the hospital would prejudice her in any
way, she replied that it would not. The trial court conducted an
appropriate inquiry and was satisfied that Ms. Fitzwater could
render a verdict based on the evidence. Under these
circumstances, we find no error in the trial court's decision not
to strike.
The Appellant raises a related assignment of error with respect to prospective juror McCroskey. Mr. McCroskey had worked as an officer of the Grantsville City Police at one time. At the time of trial, however, he had resigned from the police force and worked full-time as a water plant operator. He was still an auxiliary officer for the city police force, but had not been called in ten months. McCroskey was not involved in the investigation of this crime, which was conducted by the state police. When asked if he might be prejudiced in favor of the State, he responded, "I don't really think so, but I always try to be fair." The Appellant moved to strike for cause, and the court refused, noting that being a former police officer did not automatically require exclusion, that McCroskey had not been called up as an auxiliary officer in ten months, that he did not know the investigating officers well, that state and city police operate separately, and that the juror expressed a willingness to be fair.
This Court held in syllabus point five of West, that "[i]n a criminal case it is reversible error for a trial court to overrule a challenge for cause of a juror who is an employee of a prosecutorial or enforcement agency of the State of West Virginia." We subsequently held, in State v. White, 171 W.Va. 658, 661-62, 301 S.E.2d 615, 618 (1983), that the trial court did not err in refusing to strike for cause a former deputy sheriff, where the venireman testified that neither his former position nor his acquaintance with the investigating officer would affect his impartiality. Accord, State v. Deskins, 181 W.Va. 112, 380 S.E.2d 676 (1989) (no error in failing to strike for cause former member of military police and former police officer in another jurisdiction). Based on the latter authorities, we conclude that the trial court did not abuse its discretion by refusing to strike Mr. McCroskey for cause.
The Appellant next alleges that his conviction for breaking
and entering was improper because the chain link enclosure where
the cylinders were kept was not a "building." The
statute defining breaking and entering, or entering without
breaking, refers to "any office, shop, storehouse,
warehouse, banking house, or any house or building, other than a
dwelling house or outhouse adjoining thereto or occupied
therewith . . . ." W.Va. Code 61-3-12 (1992). The record
reflects that the nitrous oxide tanks were stored in an enclosure
that has a concrete floor, two brick walls (exterior hospital
walls), two walls of chain link fence including a locked door,
and a roof made of chain link fence. The enclosure was entered by
cutting a hole in the chain link roof.
The circuit court gave the following instruction: "The
Court instructs the jury that "building" means a
structure designed for habitation, shelter, storage, trade,
manufacture, religion, business, education, and the like; A
structure or edifice inclosing [sic] a space within its walls,
and usually, but not necessarily, covered with a roof." The
Appellant did not object to this instruction, and therefore
waived his right to raise this issue on appeal. "When
objections were not shown to have been made in the trial court,
and the matters concerned were not jurisdictional in character,
such objections will not be considered on appeal." Syl Pt.
1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).(5)
The Appellant next complains that exhibits 6 and 7, the
cylinders seized from Sherry Parsons' house, were not properly
authenticated, because none of the witnesses could testify that
these particular cylinders were the property of Calhoun General.
West Virginia Rule of Evidence 901(a) provides that the
requirement of authentication is satisfied by evidence sufficient
to support a finding that the item is what its proponent claims.
Sherry Parsons described the thefts and identified the tanks as
the ones taken from her home. The acting administrator of the
hospital testified that Calhoun General rented tanks of the same
size and color from Virginia Welding, and that there were five
cylinders missing. A second hospital employee testified that they
looked identical to the hospital's tanks. This testimony, taken
together with that of Ms. Parsons, is sufficient to support the
jury's finding that the tanks were those taken from Calhoun
General, and the trial court did not err in admitting the tanks
into evidence.(6)
The next assignment of error is the following instruction, given by the trial court over Appellant's objection:
Before the possession of stolen property creates even a presumption that the person in possession is a thief, the State must prove by the evidence beyond all reasonable doubt that the possession was personal, exclusive, recent, unexplained, and that it involved a distinct and conscious assertion of property by the defendant.
See State v. Craft, 165 W.Va. 741, 749, 272 S.E.2d 46, 51 (1980). The Appellant asserts that there was insufficient evidence of exclusive possession to warrant this instruction, and that it was confusing and misleading. The Appellant asks that we reverse the trial court based on State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163, (1995). In syllabus point four of Guthrie, this Court articulated the standard of review for jury instructions:
A trial court's instructions to the jury must be a correct
statement of the law and supported by the evidence. Jury
instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not [misled] by the law.
A jury instruction cannot be dissected on appeal; instead, the
entire instruction is looked at when determining its accuracy. A
trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court's discretion concerning
the specific wording of the instruction, and the precise extent
and character of any specific instruction will be reviewed only
for an abuse of discretion.
The Appellant does not complain that the instruction misstated
the law, but rather that it was not supported by the evidence and
was misleading to the jury. With respect to evidence that would
support the inclusion of this instruction, there was testimony by
several witnesses that nitrous oxide tanks were kept in the spare
bedroom of the house that the Appellant shared with Sherry
Parsons. The State points out that "exclusive possession of
recently stolen property may include joint possession by two or
more persons," quoting State v. Wilcox, 169 W.Va.
142, 148, 286 S.E.2d 257, 261 (1982). Based on the confessed
location of the tanks, we cannot find that it was an abuse of
discretion for the trial court to include an instruction on
exclusive possession. Moreover, the instruction given actually
operated to the benefit of the accused, by requiring the State to
prove beyond a reasonable doubt that the defendant consciously
asserted possession over the stolen property before the jury
could consider that possession as tending to prove his guilt.
Thus we do not find that it was misleading. Looking at the entire
instruction in the context of the evidence adduced at trial, we
find that including the instruction was not an abuse of
discretion by the trial court.
The final assignment of error is that the sentence imposed by the trial court was disproportionate to the crime of stealing cylinders of nitrous oxide. The Appellant was convicted and sentenced on six counts, as follows:
Count 1 Breaking and entering 1 - 10 years
Count 2 Entering without breaking 1 - 10 (concurrent with count 1)
Count 3 Petit larceny 45 days (consecutive)
Count 4 Petit larceny 1 year (concurrent)
Count 5 Conspiracy to commit count 1 1 - 5 years (consecutive)
Count 6 Conspiracy to commit count 2 1 - 5 years (consecutive)
This produced a minimum sentence of three years, forty-five
days, and a maximum sentence of twenty years, forty-five days.
The Appellant asserts that consecutive sentencing for these
related counts was an abuse of discretion. He complains that the
sentence imposed is disproportionate to the crime of stealing gas
cylinders worth only five hundred dollars, in a theft that the
victim did not even notice until Sherry Parsons reported it to
the police.
This Court held in syllabus point 4 of State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982), that "[s]entences
imposed by the trial court, if within statutory limits and if not
based on some [im]permissible factor, are not subject to
appellate review." This Court upheld consecutive sentences
in a similar situation in State v. Farr, 193 W.Va. 355,
456 S.E.2d 199 (1995), in which a defendant convicted on three
counts of breaking and entering was sentenced to three
consecutive one-to-ten year sentences. There the Court noted that
constitutional proportionality standards are generally only
applicable to sentences where there is either no fixed maximum
set by statute or where there is a life recidivist sentence. Id.
at 357, 456 S.E.2d at 201, quoting Syl. Pt. 4, Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981). We
therefore find no error in the sentence imposed by the trial
court.
Based on the above, we affirm the defendant's conviction.
Affirmed.
1. The second event was termed breaking without entering because there was already a hole cut in the wire enclosure.
2. The Appellant also asserts that the State failed to present a prima facie case, that there was insufficient evidence to support the verdict, and that the verdict was contrary to the weight of the evidence. We find that these errors are not supported by the record and therefore have no merit.
3. The State also refers the Court to Scott v. Commonwealth, 339 S.E.2d 899, 902 (Va. 1986), in which the Court of Appeals of Virginia held that a prospective juror was not per se disqualified by his employment by the grocery store that was the victim of the alleged crime. See also United States v. Brown, 644 F.2d 101, 102 (2d Cir. 1981) (prospective juror who was employed by another branch of victim bank in bank robbery prosecution not subject to automatic exclusion for cause). The courts in these cases concluded that employment alone, without further evidence of prejudice, did not require automatic exclusion.
4. We note that the circuit court in the case before us did excuse for cause a full-time employee of the hospital, who stated that she was a business manager and had heard the case discussed at work.
5. By so holding, we do not suggest that the instruction was an inaccurate statement of the law. We have concluded only that we will not address the issue because no objection was made at trial.
6. The Appellant also asserts that the tanks were not relevant, and that if relevant their prejudicial nature outweighed their probative value and they should have been excluded under West Virginia Rules of Evidence 402 and 403. We also find these contentions to be without merit.
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