No. 33193- State of West Virginia v. Brian Daniel Murray
FILED
July 25, 2007
Benjamin, Justice, concurring:
released at 10:00 a.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I must disagree with my dissenting colleagues. The majority opinion did not
take the prosecutor’s prejudicial comments regarding the defendant’s failure to testify out
of context. The record amply demonstrates that the prosecutor repeatedly commented to the
jury about Mr. Murray’s failure to take responsibility for his actions and emphasized to the
jury that the State was therefore unable to ask him to explain his actions. Those comments
crossed the line under the well-established precedent of this Court, as well-demonstrated by
the majority opinion. Unlike my dissenting colleagues, I refuse to speculate what the
prosecutor really meant by these comments.1 I likewise refuse to assume that a lay jury
would be unaffected by such inappropriate comments. Under our law, a prosecutor may not
comment upon a defendant’s failure to testify. This is a bedrock principle in our system of
jurisprudence. In view of the totality of the circumstances presented herein, including a
prosecution case built upon inference and speculation, I cannot agree that the prosecutor’s
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I am unpersuaded by the argument presented by one dissenter that the prosecutor’s
comments regarding accepting responsibility referred to a critical element of the offense
charged, failure to render aid at accident involving death, and not to the defendant’s failure
to testify. Such an argument is, once again, based upon an assumption about the evidence
and necessarily requires a State-biased inference of prosecutorial intent not apparent in the
trial record.
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repeated reference to Mr. Murray’s failure to testify constituted harmless error.
I write separate to also address the other significant issue presented in this
appeal, an issue not directly addressed by the majority nor mentioned by the dissenters. That
issue is the pressure placed upon the jury in this matter to reach a verdict. Beginning with
the voir dire process and continuing throughout the proceedings, the trial court made
comments to the jury regarding the possibility of working extended hours and another jury’s
willingness to work late into the night the previous Friday. Ultimately, the case was
submitted to the jury at 9:56 p.m. on a Friday evening under the threat of an impending snow
storm. After deliberating for approximately two and one-half hours, the jury informed the
judge that they were deadlocked on two charges (it then being 12:30 a.m. on Saturday
morning). At that time, the jury vote was 11-1 guilty on the charge of “failure to render aid
at accident involving death” and 10-2 guilty on the charge of “obstructing”.
Instead of sending the jury home to reconvene their deliberations the following
Monday morning, or even later during the weekend, the trial court read a Blessing instruction
and sent the jury back to the jury room to resume deliberations. Eleven minutes later, the
jury returned a split verdict on the two charges on which they were previously deadlocked,
finding the defendant guilty on the charge of “failure to render aid at accident involving
death” and not guilty of “obstruction.” Such a dramatic change in votes in such a short
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period clearly shows that the jury may have compromised this verdict in order to go home.
Under the circumstances, the jury may well have believed that they would not be permitted
to leave until a verdict was rendered. While we can not be sure that such a belief was formed
resulting in a compromised verdict, the real possibility that the same occurred is enough to
entitle the defendant to a new trial under the specific circumstances presented herein.2 While
I believe that trial courts are to be afforded significant discretion in conducting jury trials,
the circumstances presented in this appeal crossed the line, in my opinion, of acceptable
pressure upon a jury to reach a verdict. Accordingly, the defendant is entitled to a new trial.
2
In addition to requiring the jury to stay until 1:00 a.m. Saturday morning after having
started the work day on Friday morning, the judge received a note from one juror after the
verdict was rendered suggesting that the trial court not ask a jury to stay late again. It also
appears that two jurors may have been ill at the time of the verdict and another called the
circuit clerk’s office the following Monday morning to express disagreement with the verdict
rendered.
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