State of WV v. Bass
Annotate this CaseJanuary 1993 Term
___________
No. 21497
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
KENNETH S. BASS,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Logan County
The Honorable Elliott E. Maynard, Special Judge
Criminal Indictment No. 91-F-6
AFFIRMED
________________________________________________________
Submitted: May 5, 1993
Filed: June 11, 1993
Darrell V. McGraw, Jr.
Attorney General
Stephen R. VanCamp
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
Bernard L. Spaulding
Logan, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "It is violation of the Equal Protection Clause of
the Fourteenth Amendment to the U.S. Constitution for a member of
a cognizable racial group to be tried on criminal charges by a jury
from which members of his race have been purposely excluded."
Syllabus Point 1, State v. Marrs, 180 W. Va. 693, 379 S.E.2d 497
(1989).
2. "To establish a prima facie case for a violation of
equal protection due to racial discrimination in the use of
peremptory jury challenges by the State, 'the defendant first must
show that he is a member of a cognizable racial group, and that the
prosecutor has exercised peremptory challenges to remove from the
venire members of the defendant's race. Second, the defendant is
entitled to rely on the fact, as to which there can be no dispute,
that peremptory challenges constitute a jury selection practice
that permits "those to discriminate who are of a mind to
discriminate." Finally, the defendant must show that these facts
and any other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen from the
petit jury on account of their race.' [Citations omitted.] Batson
v. Kentucky, 476 U.S. 79 at 96, 106 S. Ct. 1712 at 1722, 90 L. Ed. 2d 69 [at 87-88] (1986)." Syllabus Point 2, State v. Marrs, 180 W.
Va. 693, 379 S.E.2d 497 (1989).
3. "The State may defeat a defendant's prima facie case
of a violation of equal protection due to racial discrimination in
selection of a jury by providing nonracial, credible reasons for
using its peremptory challenges to strike members of the
defendant's race from the jury." Syllabus Point 3, State v. Marrs,
180 W. Va. 693, 379 S.E.2d 497 (1989).
4. "The Fourteenth Amendment's mandate that race
discrimination be eliminated from all official acts and proceedings
of the State is most compelling in the judicial system. The U.S.
Supreme Court has held, for example, that prosecutorial discretion
cannot be exercised on the basis of race and that, where racial
bias is likely to influence a jury, an inquiry must be made into
such bias. The prohibition on discrimination in the selection of
jurors makes race neutrality in jury selection a visible, and
inevitable, measure of the judicial system's own commitment to the
commands of the Constitution. The courts are under an affirmative
duty to enforce the strong statutory and constitutional policies
embodied in that prohibition." Syllabus Point 2, State v. Harris,
___ W. Va. ___, ___ S.E.2d ___ (No. 21400 6/9/93). (Emphasis in
original).
5. "Rules 402 and 403 of the West Virginia Rules of
Evidence [1985] direct the trial judge to admit relevant evidence,
but to exclude evidence whose probative value is substantially
outweighed by the danger of unfair prejudice to the defendant."
Syllabus Point 4, Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991).
6. "'"Rulings on the admissibility of evidence are
largely within a trial court's sound discretion and should not be
disturbed unless there has been an abuse of discretion." State v.
Louk, [171 W. Va. 639, 643,] 301 S.E.2d 596, 599 (1983).' Syl. pt.
2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983)."
Syllabus Point 4, State v. Farmer, 185 W. Va. 232, 406 S.E.2d 458
(1991).
Per Curiam:
The defendant, Kenneth S. Bass, was convicted of unlawful
wounding by jury in the Circuit Court of Logan County by order
entered May 15, 1992. The defendant, who is black, appeals his
conviction to this Court on the ground that the trial court
committed reversible error when it denied his motion for a
mistrial. The mistrial was sought based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), as the defendant
claimed that the prosecutor's removal of the only black juror was
racially motivated. The defendant also contends that the trial
court committed error when it allowed the victim in this case to
exhibit to the jury the scar from his wound. Because we find no
error below, the conviction of the defendant is affirmed.
The facts leading to the defendant's conviction are as
follows. The defendant and the victim engaged in an altercation at
the SuperAmerica gasoline station in Cora, Logan County, on
December 8, 1990. Although the facts surrounding the altercation
are in dispute, it is undisputed that at some point during the
altercation, the victim received a knife wound requiring 187
stitches. The jury was permitted to view the victim's scar from
the wound. The defendant was convicted of unlawful wounding and
was sentenced to one to five years incarceration.
I.
During jury selection, only one member of the jury panel
that was seated, a Mr. Hairston, was a black person. In response
to voir dire questioning by the court, Mr. Hairston indicated that
he recently met the defendant at two political rallies where the
defendant sought his vote on his candidacy for county magistrate.
He also stated that he had not met the defendant at any other time,
and that he told the defendant at those rallies: "I know who you
are and I see you. I'll vote for whoever I choose." Mr. Hairston
further stated that he was not aware of the charge against the
defendant or the underlying facts of this case until the voir dire.
Mr. Hairston then stated that he could reach a fair and impartial
verdict in the case. The State declined to make a motion to strike
Mr. Hairston for cause at that time.
Shortly after the foregoing questioning, Mr. Hairston, on
his own initiative and still during voir dire, informed the trial
court that the prosecutor representing the State previously
participated in a case where Mr. Hairston's son sought a warrant in
magistrate court. Mr. Hairston told the trial court that he was
satisfied with the outcome of the case in magistrate court. He
reiterated that he felt capable of reaching a fair and impartial
verdict in the underlying case. Again, the prosecutor declined to
make a motion to strike Mr. Hairston for cause.
Thereafter, the State used one of its peremptory strikes
to remove Mr. Hairston from the jury panel. Counsel for the
defendant then moved for a mistrial based upon the State's
peremptory strike of Mr. Hairston. The prosecutor offered the
trial court, as justification for the peremptory strike of Mr.
Hairston, the following explanation:
"Well, there were several reasons.
I believe he attended a political rally at
which Mr. Bass was present. Mr. Bass is a
candidate for an office here in Logan. Mr.
Hairston's wife is an employee of N.E.W. for
women. She, within the last few months,
notarized an ethics complaint against me which
was dismissed and they also, N.E.W. Employment
for Woman, are a group which support
candidates and very frankly I don't have any
evidence that they support Mr. Bass for public
office but I believe they are. That is why I
struck Mr. Hairston. Mainly I don't think his
wife likes me. She took a -- notarized a
complaint against me and Mr. Bass had a
political rally."
The trial court responded that although it did not
believe the State had grounds to challenge Mr. Hairston's jury
membership for cause, it did believe the State had "legitimate
reasons" to use a peremptory strike on Mr. Hairston. The defendant
contends that the prosecutor's reasons for striking Mr. Hairston
were insufficient and his removal violated the constitutional
precepts of equal protection established by the Supreme Court in
Batson: "The Equal Protection Clause guarantees the defendant that
the state will not exclude members of his race from the jury venire
on account of race . . . or on the false assumption that members of
his race as a group are not qualified to serve as jurors." 476 U.S. at 86, 106 S. Ct. at 1717, 90 L. Ed. 2d at 80. (Citations
omitted).See footnote 1
We adopted Batson's principles in State v. Marrs, 180 W.
Va. 693, 379 S.E.2d 497 (1989), where we stated in Syllabus Point
1:
"It is violation of the Equal
Protection Clause of the Fourteenth Amendment
to the U.S. Constitution for a member of a
cognizable racial group to be tried on
criminal charges by a jury from which members
of his race have been purposely excluded."
In Syllabus Point 2 of Marrs, we adopted Batson's test which is
used to determine whether a defendant has proved a prima facie case
for a violation of the Equal Protection Clause of the Fourteenth
Amendment when an allegation is made that the State has been
racially discriminatory in its use of its peremptory challenges:
"To establish a prima facie case for
a violation of equal protection due to racial
discrimination in the use of peremptory jury
challenges by the State, 'the defendant first
must show that he is a member of a cognizable
racial group, and that the prosecutor has
exercised peremptory challenges to remove from
the venire members of the defendant's race.
Second, the defendant is entitled to rely on
the fact, as to which there can be no dispute,
that peremptory challenges constitute a jury
selection practice that permits "those to
discriminate who are of a mind to
discriminate." Finally, the defendant must
show that these facts and any other relevant
circumstances raise an inference that the
prosecutor used that practice to exclude the
veniremen from the petit jury on account of
their race.' [Citations omitted.] Batson v.
Kentucky, 476 U.S. 79 at 96, 106 S. Ct. 1712
at 1722, 90 L. Ed. 2d 69 [at 87-88] (1986)."
In this case, the defendant clearly met the first two
prongs of the prima facie case test. As a black man, he is a
member of a cognizable racial group, and the prosecutor exercised
his peremptory challenge to remove the only black person from the
venire. The defendant may rely on the undisputed fact that the
"peremptory challenge constitutes a jury selection practice that
permits 'those to discriminate who are of a mind to discriminate.'"
We believe that the foregoing facts are enough to meet the final
prong of the test because they raise an "inference" that the State
used its peremptory strike to exclude the black venireman from the
petit jury because he was black.
Once a defendant makes the foregoing showing and a prima
facie case is established, then under Batson the State has the
burden to establish an adequate explanation for the exclusion:
"Once the defendant makes the requisite
showing, the burden shifts to the State to
explain adequately the racial exclusion.
Alexander v. Louisiana, 405 U.S. [625,] 632,
31 L. Ed. 2d 536 [542], 92 S. Ct. 1221 [____
(1972)]. The State cannot meet this burden on
mere general assertions that its officials did
not discriminate or that they properly
performed their official duties. See
Alexander v. Louisiana, [405 U.S.] at 632, 31 L. Ed. 2d 536 [542-43], 92 S. Ct. 1221 [____];
Jones v. Georgia, 389 U.S. 24, 25, 19 L. Ed. 2d 25 [27], 88 S. Ct. 4 [5-6] (1967). Rather,
the State must demonstrate that 'permissible
racially neutral selection criteria and
procedures have produced the monochromatic
result.' Alexander v. Louisiana, [405 U.S.]
at 632, 31 L. Ed. 2d 536 [542], 92 S. Ct. 1221
[____]; see Washington v. Davis, [426 U.S. 229,] 241, 48 L. Ed. 2d 597 [608], 96 S. Ct. 2040 [2048 (1976)]." 476 U.S. at 94, 106 S. Ct. at 1721, 90 L. Ed. 2d at 86. (Footnote
omitted).
We adopted a similar test as to the State's burden in
Syllabus Point 3 of Marrs:
"The State may defeat a defendant's
prima facie case of a violation of equal
protection due to racial discrimination in
selection of a jury by providing nonracial,
credible reasons for using its peremptory
challenges to strike members of the
defendant's race from the jury."
The Supreme Court in Batson went on in note 20 to state that "the
prosecutor must give a 'clear and reasonably specific' explanation
of his 'legitimate reasons' for exercising the challenges." 476 U.S. at 98, 106 S. Ct. at 1724, 90 L. Ed. 2d at 88-89, citing Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981). In Batson, the
Supreme Court also remarked: "[W]e emphasize that the prosecutor's
explanation need not rise to the level justifying exercise of a
challenge for cause." 467 U.S. at 97, 106 S. Ct. at 1723, 90 L. Ed. 2d at 88. (Citations omitted).
In Hernandez v. New York, 500 U.S. ___, 111 S. Ct. 1859,
114 L. Ed. 2d 395 (1991), the Supreme Court addressed a Batson
question. This issue arose when the prosecutor indicated he would
exercise two of his peremptory challenges against two Hispanic
jurors. Because several witnesses only spoke Spanish, an
interpreter was authorized to be used. The prosecutor explained
that during voir dire he had questioned the two jurors as to
whether they could accept the interpreter's translation rather than
rely on their own. The jurors indicated some reluctance to do so.
The trial court accepted the foregoing explanation and
permitted the exercise of the two peremptory challenges. The trial
court's ruling was affirmed by the New York Court of Appeals.
Subsequently, the United States Supreme Court also affirmed and,
although unable to agree completely on all aspects of the decision,
apparently agreed on the following statement:
"In the typical peremptory challenge inquiry,
the decisive question will be whether
counsel's race-neutral explanation for a
peremptory challenge should be believed.
There will seldom be much evidence bearing on
that issue, and the best evidence often will
be the demeanor of the attorney who exercises
the challenge. As with the state of mind of a
juror, evaluation of the prosecutor's state of
mind based on demeanor and credibility lies
'peculiarly within a trial judge's province.'
Wainwright v. Witt, 469 U.S. 412, 428, 105 S. Ct. 844, 854, 83 L. Ed. 2d 841 [854] (1985),
citing Patton v. Yount, 467 U.S. 1025, 1038,
104 S. Ct. 2885, 2892, 81 L. Ed. 2d 847 [858]
(1984)." 500 U.S. at ___, 111 S. Ct. at 1869,
114 L. Ed. 2d at 409.
Just this term in State v. Harris, ___ W. Va. ___, ___
S.E.2d ___ (No. 21400 6/9/93), we dealt with a prosecutor's
peremptory challenge of black jurors. We reversed the defendant's
conviction because the trial court failed to require the prosecutor
to give nondiscretionary justifications for the challenges, and
stated in Syllabus Point 2:
"The Fourteenth Amendment's mandate
that race discrimination be eliminated from
all official acts and proceedings of the State
is most compelling in the judicial system.
The U.S. Supreme Court has held, for example,
that prosecutorial discretion cannot be
exercised on the basis of race and that, where
racial bias is likely to influence a jury, an
inquiry must be made into such bias. The
prohibition on discrimination in the selection
of jurors makes race neutrality in jury
selection a visible, and inevitable, measure
of the judicial system's own commitment to the
commands of the Constitution. The courts are
under an affirmative duty to enforce the
strong statutory and constitutional policies
embodied in that prohibition." (Emphasis in
original).
In this case, although the defendant proved a prima facie
case of a violation of the Equal Protection Clause, the State
offered nonracial reasons for using its peremptory strike on Mr.
Hairston, the lone black person on the jury venire. Mr. Hairston
attended two political rallies on behalf of the defendant. This
fact standing alone may not have been sufficient in view of Mr.
Hairston's statement that he did not promise to vote for the
defendant. The more credible reason was the fact that Mr.
Hairston's wife was an employee of an organization which filed an
ethics complaint against the prosecutor, and she notarized the
ethics complaint. The prosecutor might reasonably assume that Mr.
Hairston was aware of this fact and might have some hostility
towards him. The trial court, in reviewing the reasons proffered
by the State to exclude Mr. Hairston from the jury venire, found
those reasons to be "good reasonable grounds for a legitimate
exercise of prosecutorial discretion," and we agree.See footnote 2
We find this case to differ from Marrs, supra, where we
concluded that the reason offered by the prosecutor for striking
the single black juror was not credible. In Marrs, the prosecutor
claimed the strike was based on her belief that she saw the same
last name as the juror's on a bench warrant. She did not claim
that the warrant was issued against the juror nor was any attempt
made on voir dire to inquire about the matter. We find the instant
case to be similar to others where courts have found a credible
reason offered. See, e.g., United States v. Wilson, 867 F.2d 486
(8th Cir.), cert. denied, 493 U.S. 827, 110 S. Ct. 92, 107 L. Ed. 2d 57 (1989) (black venireman struck because he was employed as a
social worker within the criminal justice system and because he had
professional contact with defense counsel, but not with
prosecutors); United States v. Woods, 812 F.2d 1483 (4th Cir. 1987)
(black venireman struck because he may have attended the church
where the defendant practiced as an ordained minister and because
he may have read inflammatory articles about the case); Henderson
v. State, 257 Ga. 434, 360 S.E.2d 263 (1987) (black veniremen
struck because they either knew key witnesses or gave contradictory
or no responses to questioning).
II.
The defendant contends the trial court erred in allowing
the victim to display to the jury the scar from his wound. The
defendant argues that the scar from the victim's wound, which
required 187 stitches, was akin to a gruesome photograph and its
prejudicial impact far outweighed its probative value to the jury.
Rules 402 and 403 of the West Virginia Rules of Evidence govern the admissibility of relevant evidence at trial.See footnote 3 In
Syllabus Point 4 of Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991), we stated:
"Rules 402 and 403 of the West
Virginia Rules of Evidence [1985] direct the
trial judge to admit relevant evidence, but to
exclude evidence whose probative value is
substantially outweighed by the danger of
unfair prejudice to the defendant."
And we stated that a trial court's decision on the admissibility of
evidence will not be disturbed absent an abuse of discretion in
Syllabus Point 4 of State v. Farmer, 185 W. Va. 232, 406 S.E.2d 458
(1991):
"'"Rulings on the admissibility of
evidence are largely within a trial court's
sound discretion and should not be disturbed
unless there has been an abuse of discretion."
State v. Louk, [171 W. Va. 639, 643,] 301 S.E.2d 596, 599 (1983).' Syl. pt. 2, State v.
Peyatt, 173 W. Va. 317, 315 S.E.2d 574
(1983)."
See also Gable v. Kroger Co., 186 W. Va. at 65, 410 S.E.2d at 705.
Finally, from a substantive standpoint, we addressed an
identical issue in State v. Scotchel, 168 W. Va. 545, 554-55, 285 S.E.2d 384, 390 (1981), where we stated:
"Nor do we find merit in the claim
that the victim of the assault should not have
been permitted to show the jury the scar he
received. The defendant was indicted under
our malicious wounding statute, W. Va. Code,
61-2-9, which requires proof of a bodily
injury caused 'with intent to maim, disfigure,
disable or kill.' We have traditionally held
under this statute that evidence of the extent
of an injury is admissible since under the
statute the State must show that the defendant
inflicted the injury with an intent to produce
a permanent disability or disfiguration.
State v. Sacco, [165] W. Va. [91], 267 S.E.2d 193 (1980); State v. Stalnaker, 138 W. Va. 30,
76 S.E.2d 906 (1953); McComas v. Worth, 113 W.
Va. 163, 167 S.E. 96 (1932); State v. Taylor,
105 W. Va. 298, 142 S.E. 254 (1928). We do
not find any relevant analogy between the
display of a scar and the introduction of
gruesome photographs. Cf. State v. Rowe, 163
W. Va. 593, 259 S.E.2d 26 (1979). In the
first place, a scar is not necessarily
gruesome in appearance. A scar represents the
present actual condition which is relevant to
the issue of intent to cause permanent
disability or disfigurement, while a gruesome
photograph depicts the initial and temporary
extent of the wound. In the latter, the shock
effect often outweighs the probative value of
the evidence."
In this case, the trial court held a hearing on the
admissibility of showing the victim's scar to the jury. The trial
judge personally viewed the scar and found that the wound was
healed and no blood was present. The trial court agreed with the
State's argument that exhibition of the scar was admissible because
the scar was probative to the permanency of the victim's wound, and
the State had to prove that the victim suffered a permanent wound
as an element of the crime of unlawful wounding. The trial court
found that the probative value of an exhibition of the scar
outweighed the prejudicial nature of the wound because the wound
had healed and no blood was present. We do not find an abuse of
discretion under these facts; thus, the trial court did not err in
allowing the victim to exhibit to the jury the scar from the wound.
Because no error was committed by the trial court,See footnote 4 the
judgment of the Circuit Court of Logan County is affirmed.
Affirmed.
Footnote: 1The initial and perhaps preeminent decision in this
field is Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L. Ed. 2d 664 (1880). There, a statute barring blacks from
serving as jurors was found to violate the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution.
Footnote: 2The Supreme Court in note 21 of Batson stated that
deference should ordinarily be given to the trial court's
findings in regard to an evaluation of nonracial reasons
proffered by the State for excluding potential jurors through the
use of a peremptory strike: "Since the trial judge's findings in
the context under consideration here largely will turn on an
evaluation of credibility, a reviewing court ordinarily should
give those findings great deference." 476 U.S. at 98, 106 S. Ct.
at 1724, 90 L. Ed. 2d at 89, citing Anderson v. Bessemer City,
470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 528
(1985) ("'[A] finding of intentional discrimination [in a Title
VII sex discrimination case] is a finding of fact' entitled to
appropriate deference by a reviewing court.")
Footnote: 3Rules 402 and 403 of the Rules of Evidence state:
" Rule 402. Relevant Evidence
Generally Admissible; Irrelevant Evidence
Inadmissible. All relevant evidence is
admissible, except as otherwise provided by
the Constitution of the United States, the
Constitution of the State of West Virginia,
these rules, or other rules adopted by the
Supreme Court of Appeals. Evidence which is
not relevant is not admissible.
" Rule 403. Exclusion of Relevant
Evidence on Grounds of Prejudice, Confusion,
or Waste of Time. Although relevant,
evidence may be excluded if its probative
value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence."
Footnote: 4We note that the defendant also contends that the
trial court erred when it failed to allow evidence of the
victim's reputation as a violent person. However, as defense
counsel acknowledges, the record does not show that any such
evidence was offered to the trial court, let alone excluded by
it. Moreover, that assignment of error was not argued in the
defendant's brief on appeal, and we deem it waived. As we stated
in Syllabus Point 6 of Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981): "Assignments of error that are not argued in
the briefs on appeal may be deemed by this Court to be waived."
See also State v. Church, 168 W. Va. 408, 410 n.1, 284 S.E.2d 897, 899 n.1 (1981).
The defendant also asserts that the record shows that his trial counsel was ineffective when his assistance is compared with that of a reasonably qualified defense attorney. We do not agree that the record as developed in this case shows that defense trial counsel was ineffective. However, we note that in Syllabus Point 11 of State v. England, 180 W. Va. 342, 376 S.E.2d 548 (1988), we stated: "Where the record on appeal is inadequate to resolve the merits of a claim of ineffective assistance of counsel, we will decline to reach the claim so as to permit the defendant to develop an adequate record in habeas corpus." See also State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991); State v. Wickline, 184 W. Va. 12, 399 S.E.2d 42 (1990).
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.