                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



DOUGLAS LIBERT,
                                                        FILED
Petitioner Below, Petitioner                                      September 18, 2014

                                                                       released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
vs.) No. 13-1111 (Wood County No. 13-P-46)                           SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA

JOSEPH KUHL, MAGISTRATE,
Respondent Below, Respondent


                              MEMORANDUM DECISION

               Petitioner, Douglas Libert (“Mr. Libert”), through counsel, Eric K. Powell,
appeals the final order of the Circuit Court of Wood County entered June 3, 2013. In its
order, the circuit court denied Mr. Libert’s petition for writ of prohibition wherein he sought
to prevent the magistrate court from proceeding with a new trial in his underlying criminal
matter. The State, through Patrick Morrisey and Scott E. Johnson from the Attorney
General’s office, filed a response in support of the magistrate court.

              Based upon the parties’ written briefs and oral arguments, the appendix record
designated for our consideration, and the pertinent authorities, we determine that the circuit
court committed no error, and its denial of the petition for a writ of prohibition is affirmed.
This case presents no new or significant questions of law; therefore, it will be disposed of
through a memorandum decision as contemplated under Rule 21 of the Revised Rules of
Appellate Procedure.

                The facts underlying this case began on September 30, 2012, when Mr. Libert
engaged in an argument with a neighbor and then allegedly spit in yet another neighbor’s
face (the “victim”). The police were called, Mr. Libert was charged with battery on the
victim, and a jury trial was scheduled. During the pre-trial hearing, the State moved to
exclude a video recording made by Mr. Libert during the altercations with his neighbors.
The magistrate court granted the motion to exclude based on its determination that the
videotape did not capture the time of the alleged incident with the victim. Thereafter, the
case went to trial on March 25, 2013. In opening statements, during the recitation of his
version of the facts, Mr. Libert’s counsel informed the jury of the existence of the videotape,
commenting that “Mr. Libert has a video camera in his hand to record the incident
with . . . the neighbor next door and he videotapes some of this. That video you will not be
seeing due to the court’s ruling.” The State timely objected and the magistrate instructed the
jury “to disregard the mention to [sic] the videotape.” After opening statements, the State
called its first witness, the alleged victim, who mentioned during his testimony that Mr.
Libert had his video camera on his shoulder. The statement by the alleged victim was
unsolicited and was not responsive to the question asked by the State. After a break for
lunch, the State moved for a mistrial1 based upon defense counsel’s remarks during opening
statements. The magistrate court granted the motion for a mistrial, excused the jury, and set
a new trial date for June 17, 2013. Thereafter, Mr. Libert petitioned the circuit court for a
writ of prohibition to prevent the magistrate court from proceeding with a new trial. On June
4, 2013, the circuit court entered an order denying Mr. Libert’s petition for writ of
prohibition and affirming the magistrate court’s scheduling of a new trial. The circuit court
stayed all proceedings in the magistrate court pending resolution of the instant appeal before
this Court.

                We have explained previously that matters regarding a mistrial are reviewed
under an abuse of discretion standard. “The decision to declare a mistrial, discharge the jury,
and order a new trial in a criminal case is a matter within the sound discretion of the trial
court.” Syl. pt. 8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989). “A trial court is
empowered to exercise this discretion only when there is a ‘manifest necessity’ for
discharging the jury before it has rendered its verdict.” State v. Williams, 172 W. Va. 295,
304, 305 S.E.2d 251, 260 (1983). The decision as to the existence of manifest necessity is
within the purview of the lower court. “The determination of whether ‘manifest necessity’
that will justify ordering a mistrial over a defendant’s objection exists is a matter within the
discretion of the trial court, to be exercised according to the particular circumstances of each
case.” Syl. pt. 3, Porter v. Ferguson, 174 W. Va. 253, 324 S.E.2d 397 (1984). Mindful of
these applicable principles, we now consider the substantive issue presented herein.

               On appeal to this Court, Mr. Libert argues that there was no manifest necessity
for granting a mistrial and ordering a new trial. Accordingly, Mr. Libert contends that the
circuit court erred when it denied his petition for a writ of prohibition and remanded his case
to the magistrate court for a new trial. The State, to the contrary, asserts that the magistrate
court was within its discretion to grant a mistrial. Specifically, the State explains that Mr.
Libert’s counsel improperly referred to inadmissible evidence during his opening statement
and compounded the problem by telling the jury that they would not see the videotape due
to the ruling by the magistrate court.




              1
               The appendix record contains audio recordings of the trial; however, the
magistrate failed to turn on the recording system upon return from the lunch break. There
is no record of the discussion relating to the motion for mistrial.

                                               2

               As previously stated, a trial court is empowered to grant a mistrial only when
there is a “manifest necessity” for discharging the jury before it has rendered its verdict.
W. Va. Code § 62-3-7 (1923) (Repl. Vol. 2010). “Manifest necessity” warranting a mistrial
arises from various circumstances, but must be forceful and appear prejudicial to the accused
or the State. State ex rel. Brooks v. Worrell, 156 W. Va. 8, 190 S.E.2d 474 (1972). Mr.
Libert urges this Court to find that the magistrate court erred in granting a mistrial as there
was no manifest necessity to discontinue the trial and that retrial for the same offense is
prohibited by double jeopardy.2 Significantly, “[t]his power of the trial court must be
exercised wisely; absent the existence of manifest necessity, a trial court’s discharge of the
jury without rendering a verdict has the effect of an acquittal of the accused and gives rise
to a plea of double jeopardy.” State v. Williams, 172 W. Va. 295, 304, 305 S.E.2d 251, 260
(1983) (internal citations omitted).

               In the analysis of this case, our first task is to determine whether the magistrate
court properly exercised its discretion in its conclusion that there was manifest necessity to
justify the granting of the motion for a mistrial. The State’s underlying motion for a mistrial
was based on the improper comments by defense counsel during opening statements.
Improper conduct of defense counsel may give rise to manifest necessity to order a mistrial
over the defendant’s objection when such conduct prejudices the State’s case. See Syl. pt.
4, Porter v. Ferguson, 174 W. Va. 253, 324 S.E.2d 397 (“Improper conduct of defense
counsel which prejudices the State’s case may give rise to manifest necessity to order a
mistrial over the defendant’s objection.”). Therefore, we turn to the question of whether the
State’s case was prejudiced by the defense counsel’s opening statements. In Syllabus point
5 of Keller v. Ferguson, 177 W. Va. 616, 355 S.E.2d 405 (1987), we held that

                       [w]here a prosecutor claims that the defense has by its
               actions prejudiced the jury, he is entitled to obtain a mistrial,
               without double jeopardy barring a retrial, if it can be shown: (1)
               that the conduct complained of was improper and prejudicial to
               the prosecution, and (2) that the record demonstrates the trial
               court did not act precipitously and gave consideration to
               alternative measures that might alleviate the prejudice and avoid
               the necessity of terminating the trial.


               2
                “The Double Jeopardy Clause in Article III, Section 5 of the West Virginia
Constitution, provides immunity from further prosecution where a court having jurisdiction
has acquitted the accused. It protects against a second prosecution for the same offense after
conviction. It also prohibits multiple punishments for the same offense.” Syl. pt. 1, Conner
v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977).

                                                3

               In Mr. Libert’s case, the inadmissibility of the videotape had been determined
at a previous pretrial hearing. Nevertheless, defense counsel said, during opening statements,
that “Mr. Libert has a video camera in his hand to record the incident with . . . the neighbor
next door and he videotapes some of this. That video you will not be seeing due to the
court’s ruling.” An examination of the opening statements, in light of the other facts
regarding the magistrate court’s previous ruling on the admissibility thereof, leads this Court
to the conclusion that the opening statements were improper and prejudicial to the State. The
inadmissible evidence was referenced intentionally, during opening statements, the most
impressionable time for a jury, creating an irreparable prejudicial scenario. See Simmons v.
State, 208 Md. App. 677, 57 A.3d 541 (2012) (holding that defense counsel’s improper
comment in opening statement rendered declaration of mistrial manifest necessity,
emphasizing “powerful setting” of opening statements and their impact on juries); see also
Jackson v. State, 855 So. 2d 178 (Fla. 2003) (stating that comments by defense in opening
statement regarding evidence that jury is not permitted to hear necessitates mistrial).

               When Mr. Libert’s counsel told the jury about the inadmissible evidence, the
State timely objected. After a discussion at the bench, the magistrate instructed the jury “to
disregard the mention to [sic] the videotape.” While alternative measures, such as a limiting
instruction, can be an auxiliary method to address improper statements instead of declaring
a mistrial, the facts of this case lead us to determine that there was no remedy to cure the
prejudice created by the defense counsel’s statements. Permitting the reference to
inadmissible evidence frustrates the public interest by tainting the jury and prejudicing the
State through the obvious implication that evidence was being withheld. The damage was
already complete and irreversible.

               The magistrate court was within its discretion to grant the State’s motion for
a mistrial and order a new trial because the State was prejudiced by the defense counsel’s
opening statement. The prejudice to the State as a result of defense counsel’s inappropriate
references to inadmissible evidence and the unavailability of any remedy to cure the
prejudice created a manifest necessity to grant the State’s motion for a mistrial, to discharge
the jury, and to schedule a retrial.

              For the foregoing reasons, we affirm the June 3, 2013, order by the Circuit
Court of Wood County. Mr. Libert’s petition for writ of prohibition was properly denied, and
the case was correctly remanded to the magistrate court for a new trial.

                                                                                    Affirmed.




                                              4

ISSUED: September 18, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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