# State v. Brown

> West Virginia Supreme Court · July 25, 2001 · 210 W. Va. 14

URL: https://www.frixlaw.com/law-library/cases/9852264

## Case

- **Full name:** STATE of West Virginia, Plaintiff Below, Appellee, v. Michael E. BROWN, Defendant Below, Appellant
- **Court:** West Virginia Supreme Court
- **Decided:** July 25, 2001
- **Citations:** 210 W. Va. 14; 552 S.E.2d 390
- **Precedential status:** Published
- **Opinion:** Dissent by McGraw
- **Judges:** Starcher, McGraw, Albright, Hoke
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852264

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852264. Public record. Not legal advice.