                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                     October 18, 2013
                                                                                  RORY L. PERRY II, CLERK
vs) No. 12-1122 (Raleigh County 10-F-30)                                        SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

Duane Hammock,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION
        Petitioner Duane Hammock, by counsel David S. Hart, appeals the Circuit Court of
Raleigh County’s resentencing order entered on September 10, 2012, following his conviction of
first-degree robbery.1 The State, by counsel Marland L. Turner, filed a summary response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On August 27, 2009, petitioner’s daughter, Holly Hansen, walked into C.J.’s Tobacco
Store in Raleigh County, West Virginia, and shoplifted a bottle of liquor.2 The store clerk
followed Ms. Hansen to a vehicle in the parking lot, and requested that she return the stolen item.
Petitioner, who was a passenger in the parked vehicle, exited the vehicle and pointed a gun at the
clerk.3 After the store clerk returned to the store, petitioner and Ms. Hansen left the premises. A
surveillance video captured the incident.

        Petitioner was indicted on a charge of first-degree robbery. The trial began on May 16,
2011. The store clerk’s testimony was consistent with the narrative in the criminal complaint and
the surveillance video. The State called Ms. Hansen as a hostile witness. She testified that
petitioner was an alcoholic, and on the day of the robbery he was going through withdrawal
symptoms. She previously told police that petitioner participated in the robbery when he
observed from outside the store and pointed to the bottle of liquor he wanted her to steal. During
trial, Ms. Hansen recanted her prior statement to the police. She testified at trial that petitioner

       1
           The trial court resentenced petitioner so that he could file this direct appeal.
       2
         Ms. Hansen was twenty-one years old at the time of the robbery. Detective Canaday
stated that the reason he did not charge Ms. Hansen is because he felt she was “duped” into this
robbery. Ms. Hansen admitted to having two prior shoplifting convictions.
       3
           The pistol was later identified as a BB gun.
                                                     1
was unaware that she had taken the liquor. The State played the police videotaped interview of
Ms. Hansen to the jury as impeachment evidence.

       Petitioner testified and denied any knowledge of a planned robbery. Petitioner admitted
that by the time they arrived at the store, he had consumed excessive amounts of prescription
medication, mixed with alcohol.

        Following the conclusion of the trial, the jury deliberated for approximately three hours
before announcing that it had reached a verdict. Upon presentation of the jury verdict form, the
trial court announced that petitioner had been found not guilty. Upon request of the prosecuting
attorney, the trial court polled the jury. When the trial court questioned the first juror as to
whether the announced verdict was a verdict that she agreed with, the first juror indicated that
she did not agree with the verdict. Following the first juror’s response, the trial court
discontinued the poll of the jury, and returned the jury to the jury room with instructions to
continue deliberations.

        Later that day, the jury announced that it was deadlocked and would not be able to
continue deliberations because members of the jury were scheduled for a vacation on the
following day. As discussed more fully below, the trial court gave additional instructions
regarding the need for further deliberations. Without objection from the parties, the jury resumed
deliberations. After a dinner break and a period of deliberation, the jury returned and found
petitioner guilty of first-degree robbery. A second poll of the jury indicated that each juror was in
agreement with the second verdict. The trial court entered an order adopting the jury’s second
verdict.

        The State filed an information against petitioner seeking enhancement of his sentence
under West Virginia Code § 61-11-18, because petitioner had been convicted of a prior felony.4
After petitioner entered a plea of guilty to the subsequent information, the trial court sentenced
petitioner to ten years in the penitentiary for his first-degree robbery conviction, with a
consecutive five-year enhancement based upon his previous felony conviction, for a total
determinate sentence of fifteen years.5

        As grounds for seeking a new trial, petitioner asserts that the trial court’s remarks to the
jury during deliberation constituted improper coercion, and that the trial court should have
declared a mistrial. Petitioner also contends that the trial court erred in admitting his daughter’s
prior statement to the investigating officer. Upon our review of these assignments of error in
conjunction with the record, we conclude that the challenges raised on appeal were not preserved
below. Accordingly, we affirm the order of the trial court.



       4
         In 2005, petitioner was convicted of fleeing while under the influence of alcohol, and
third offense DUI.
       5
        The trial court also found that the BB gun petitioner used in the commission of the
robbery was not a firearm for the purposes of parole eligibility.

                                                 2
        This Court has held that “[t]he decision to declare a mistrial, discharge the jury, and order
a new trial in a criminal case is a mater within the sound discretion of the trial court.” Syl. Pt. 8,
State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989). In the instant case, petitioner did not
request a mistrial. Accordingly, his argument that the trial court should have granted a mistrial
was not raised below, and we decline to consider it on appeal. See Hartwell v. Marquez, 201
W.Va. 433, 442, 498 S.E.2d 1, 10 (1997) (“It is a well established principle that this Court will
not decide nonjurisdictional questions which have not been raised in the court below.” (quoting
Stonebraker v. Zinn, 169 W.Va. 259, 266, 286 S.E.2d 911, 915 (1982)) (additional citations
omitted)).

        With regard to petitioner’s allegation that the verdict was coerced, we have stated that
“[w]hether a trial court’s instructions constitute improper coercion of a verdict necessarily
depends upon the facts and circumstances of the particular case and cannot be determined by any
general or definite rule.” Syl. Pt.1, State v. Pannell, 225 W.Va. 743, 696 S.E.2d 45 (2010)
(citation omitted).6

       6
           The charge was as follows:

               Ladies and gentlemen of the jury, you’ve informed the Court of your
       inability to reach a verdict. At the outset, the Court wishes you to know that
       although you have a duty to reach a verdict if that is possible, the Court has
       neither the power nor the desire to compel agreement upon a verdict.
               The purpose of these remarks is to point out to you the importance and the
       desirability of reaching a verdict in this case, provided, however, that you as
       individual jurors can do so without surrendering or sacrificing your conscientious
       scruples or personal convictions. You will recall that upon assuming your duties
       in this case each of you took an oath. That oath places upon each of you as
       individuals the responsibility of arriving at a true verdict upon the basis of your
       own opinion and not merely upon acquiescence in the conclusions of your fellow
       jurors. However, it is – by no means follows that opinions may not be changed by
       conference in the jury room.
               The very object of the jury system is to reach a verdict by comparison of
       proofs with your fellow jurors. During your deliberations, you should be open
       minded and consider the issues with proper deference to and respect for the
       opinions of each other. And you should not hesitate to reexamine your own views
       in the light of such discussions. You should also consider that this case must at
       some time be terminated. That you are selected from the same source from which
       any future jury must be selected, that there is no reason to suppose that this case
       will ever be submitted to 12 persons more intelligent, more impartial or more
       competent to decide it, or that more or clearer evidence will ever be produced on
       one side or the other.
               All right. Members of the jury, I’m going to send you back to the jury
       room and respectfully ask you to continue deliberating. If you wish to send out a
       note, let me know by following the same process we have followed earlier this
       afternoon. But otherwise, I am going to ask you to continue with your duty of
       deliberations.
                                                  3
        Petitioner maintains that the trial court improperly rushed the jury to reach its verdict. We
disagree. Our review of the record indicates that the trial court’s instructions “constituted a fair
and reasonable effort to stimulate continued deliberation.” State v. Hobbs, 168 W.Va. 13, 37, 282
S.E.2d 258, 272 (1981). The trial court proceeded cautiously throughout the deliberation process.
After discussing the deadlock with the foreperson, the trial court proposed reading the Allen7
charge and sending the jury back for further deliberation. Petitioner indicated that he had no
objection to the trial court’s recommendation. Based on the foregoing, we find that petitioner
affirmatively waived this ground for appeal.

       Petitioner also asserts that the trial court erroneously allowed the State to present
impeachment evidence as a pretext to present Ms. Hansen’s prior inconsistent statement to the
jury when the State knew such evidence would not be admissible otherwise.8 A trial court’s
evidentiary rulings, as well as its application of the West Virginia Rules of Evidence, are
reviewed for an abuse of discretion. See McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d
788 (1995). Even when a trial court has abused its discretion by admitting or excluding evidence,
the conviction must be affirmed unless petitioner can meet his burden of demonstrating that
substantial rights were affected by the error. See State v. LaRock, 196 W.Va. 294, 470 S.E.2d
613 (1996).

        Our review of the record reveals that at no point during the trial did petitioner object to
the admission of Ms. Hansen’s prior inconsistent statement for impeachment purposes. Petitioner
requested a limiting instruction, and the trial court granted this request. We therefore find that
petitioner affirmatively waived this issue for which he now asserts on appeal.

       For the foregoing reasons, we affirm.
                                                                                          Affirmed.

ISSUED: October 18, 2013

CONCURRED IN BY:

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



       7
           See Allen v. U.S., 164 U.S. 492 (1896).
       8
        Petitioner also maintains this error was compounded by improper comments made by the
State during closing argument that may have misled the jury regarding the manner in which this
impeachment evidence could be considered to support the verdict. We find this argument
unpersuasive because the trial court sustained petitioner’s objection during the State’s closing
argument, and granted his request for a limiting instruction.


                                                     4
