holding that defendant failed to establish that the State’s evidence was actually false and, instead, simply demonstrated that “State’s witnesses were disreputable persons who had reasons to lie”
How later courts described this case
- holding that defendant failed to establish that the State’s evidence was actually false and, instead, simply demonstrated that “State’s witnesses were disreputable persons who had reasons to lie”
- explaining that an unwaived violation of the right to be present under West Virginia law is subject to harmless error review
- no abuse of discretion where the court replaced a juror with an alternate prior to jury deliberations after the juror telephoned to say that he would be late because of a flat tire; reasoning that "we do not believe that the trial court acted unreasonably in choosing to dismiss the tardy juror rather than wait on his arrival given the fact that the giving of jury instructions, closing arguments, and jury deliberations were expected to be lengthy, and alternate jurors were available”
- upholding replacement of juror under state counterpart to Rule 24(c) even though he telephoned the court to say he would be late because of a flat tire
Written by the judges who cited it.
The opinion
MCGRAW, Chief Justice,
dissenting.
(Filed July 25, 2001)
I would reverse Brown’s conviction for the same reasons expressed in my dissent to State v. Lightner, 205 W.Va. 657 , 520 S.E.2d 654 (1999), in that “any deviation from th[e] constitutional requirement [of twelve jurors] must be accomplished through a knowing and intelligent waiver.” Id. at 664 , 520 S.E.2d at 661 (McGraw, J., dissenting). Resort to plain error analysis is therefore misplaced in this context, and a violation of the constitutional right to a twelve-person jury must be presumed prejudicial absent an affirmative showing that the error was harmless beyond a reasonable doubt. See syl. pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647 , 214 S.E.2d 330 (1975) (“Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.”). Contrary to the position taken by the majority, the fact that the alternate did not actively participate in deliberations is far from dis-positive, as prejudice may arise “either because the alternates actually participated in the deliberations, verbally or through ‘body language’; or because the alternates’ presence exerted a ‘chilling’ effect on the regular jurors.” United States v. Olano, 507 U.S. 725, 739 , 113 S.Ct. 1770, 1780 , 123 L.Ed.2d 508 (1993) (citations omitted). Since I would reverse and remand for a new trial on this issue, I respectfully dissent.