         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                              September 2015 Term
                                                                  FILED

                                                              November 9, 2015

                                                                 released at 3:00 p.m.
                                  No. 14-0876                    RORY L. PERRY II, CLERK
                                                               SUPREME COURT OF APPEALS
                                                                   OF WEST VIRGINIA




                          STATE OF WEST VIRGINIA,

                           Plaintiff below, Respondent


                                        v.


                        HOWARD CLARENCE JENNER,

                          Defendant Below, Petitioner




                  Appeal from the Circuit Court of Upshur County

                       The Honorable Kurt W. Hall, Judge

                           Criminal Action No. 12-F-17


                   CONDITIONALLY AFFIRMED PENDING

                         HEARING ON REMAND




                           Submitted: October 7, 2015

                            Filed: November 9, 2015



Harry A. Smith, III, Esq.                          Patrick Morrisey, Esq.
McNeer, Highland, McMunn and Varner, L.C.          Attorney General
Elkins, West Virginia                              Benjamin F. Yancey, III, Esq.
Attorney for Petitioner                            Assistant Attorney General
                                                   Charleston, West Virginia
                                                   Attorneys for Respondent


JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              1.     “In reviewing challenges to findings and rulings made by a circuit court,

we apply a two-pronged deferential standard of review. We review the rulings of the circuit

court concerning a new trial and its conclusion as to the existence of reversible error under

an abuse of discretion standard, and we review the circuit court’s underlying factual findings

under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl.

Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).



              2.     “The function of an appellate court when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, is sufficient to convince a reasonable person

of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proved beyond a reasonable

doubt.” Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).



              3.     “A criminal defendant challenging the sufficiency of the evidence to

support a conviction takes on a heavy burden. An appellate court must review all the

evidence, whether direct or circumstantial, in the light most favorable to the prosecution and

must credit all inferences and credibility assessments that the jury might have drawn in favor


                                              i
of the prosecution. The evidence need not be inconsistent with every conclusion save that

of guilt so long as the jury can find guilt beyond a reasonable doubt.                Credibility

determinations are for a jury and not an appellate court. Finally, a jury verdict should be set

aside only when the record contains no evidence, regardless of how it is weighed, from which

the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are

inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461

S.E.2d 163 (1995).



              4.     “A trial court’s evidentiary rulings, as well as its application of the Rules

of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State

v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).



              5.     “The type of evidence that is admissible in the mercy phase of a

bifurcated first degree murder proceeding is much broader than the evidence admissible for

purposes of determining a defendant’s guilt or innocence. Admissible evidence necessarily

encompasses evidence of the defendant’s character, including evidence concerning the

defendant’s past, present and future, as well as evidence surrounding the nature of the crime

committed by the defendant that warranted a jury finding the defendant guilty of first degree

murder, so long as that evidence is found by the trial court to be relevant under Rule 401 of

the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the


                                               ii
West Virginia Rules of Evidence.” Syl. Pt. 7, State v. McLaughlin, 226 W.Va. 229, 700

S.E.2d 289 (2010).



              6.      “‘A motion for a new trial on the ground of the misconduct of a jury is

addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal

where it appears that defendant was not injured by the misconduct or influence complained

of. The question as to whether or not a juror has been subjected to improper influence

affecting the verdict, is a fact primarily to be determined by the trial judge from the

circumstances, which must be clear and convincing to require a new trial, proof of mere

opportunity to influence the jury being insufficient.’ Syllabus Point 7, State v. Johnson, 111

W.Va. 653, 164 S.E. 31 (1932).” Syl. Pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402

(1995).



              7.      “A jury verdict may not ordinarily be impeached based on matters that

occur during the jury’s deliberative process which matters relate to the manner or means the

jury uses to arrive at its verdict.” Syl. Pt. 1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d

384 (1981).



              8.      “In any case where there are allegations of any private communication,

contact, or tampering, directly or indirectly, with a juror during a trial about a matter pending


                                               iii
before the jury not made in pursuance of known rules of the court and the instructions and

directions of the court made during the trial with full knowledge of the parties; it is the duty

of the trial judge upon learning of the alleged communication, contact, or tampering, to

conduct a hearing as soon as is practicable, with all parties present; a record made in order

to fully consider any evidence of influence or prejudice; and thereafter to make findings and

conclusions as to whether such communication, contact, or tampering was prejudicial to the

defendant to the extent that he has not received a fair trial.” Syl. Pt. 2, State v. Sutphin, 195

W.Va. 551, 466 S.E.2d 402 (1995).



              9.      “In the absence of any evidence that an interested party induced juror

misconduct, no jury verdict will be reversed on the ground of juror misconduct unless the

defendant proves by clear and convincing evidence that the misconduct has prejudiced the

defendant to the extent that the defendant has not received a fair trial.” Syl. Pt. 3, State v.

Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995).




                                               iv
LOUGHRY, Justice:

                The petitioner, Howard Clarence Jenner, appeals his convictions for first

degree murder1 without a recommendation of mercy, attempted murder,2 and malicious

wounding.3 As support for his appeal, he argues that the State presented insufficient

evidence to support the convictions, that the circuit court admitted unfairly prejudicial

evidence during the “mercy phase” of his bifurcated trial, and that juror misconduct occurred

during trial.4 After a thorough review of the appendix record on appeal, the parties’

arguments, and the pertinent law, we find that the evidence at trial was sufficient to convict

the petitioner; that there was no evidentiary error during the mercy phase; and that the

petitioner failed to prove misconduct with regard to an alleged pre-deliberation conversation

among jurors. However, because the circuit court abused its discretion by restricting the

petitioner’s opportunity to attempt to prove that a juror communicated with the surviving

victim during trial recesses, we remand this case for an additional post-trial hearing on that

single issue.




       1
           W.Va. Code § 61-2-1 (2014).
       2
           W.Va. Code §§ 61-11-8, 61-2-1 (2014).
       3
           W.Va. Code § 61-2-9(a) (2014).
       4
        The petitioner also raises a fourth assignment of error, contending in a very general
fashion that the trial court erred by denying his post-trial motions. Because this assignment
of error merely duplicates the other assignments of error discussed herein, we will not
address it separately.

                                              1

                        I. Factual and Procedural Background

               At approximately 4:00 p.m. on December 22, 2011, Beni Truax was shot and

killed while in the yard of her Upshur County home. One bullet entered her lower back and

another bullet struck the right side of her head, traveling back to front. Her husband,

Sherman Truax, testified he was sleeping in a recliner inside of the home when the sound of

a gunshot awakened him. As he was standing up from his chair, he heard another shot. Mr.

Truax walked out of the house and saw his wife lying face-down and motionless on the

ground. He then saw a man step from behind a parked truck holding a rifle outfitted with a

large scope. Mr. Truax immediately recognized this man as his nephew, the petitioner

herein. Mr. Truax testified that the petitioner aimed the rifle at him, compelling Mr. Truax

to turn and run toward the door of his home. The assailant fired the rifle, striking Mr.

Truax’s right wrist and causing serious injury.



               Inside his home, Mr. Truax wrapped a towel around his badly bleeding wrist

and called 911. When police arrived, he identified the petitioner as the shooter. In addition

to the family relationship, Mr. Truax was familiar with the petitioner’s appearance because,

two years earlier, the petitioner had lived in the Truax home for several months. Mr. Truax

also pointed police in the direction that he believed the petitioner had fled on foot. The

police found evidence that a person had run through a muddy area, but they lost the

assailant’s trail.


                                             2

              At approximately 11:00 that night, the police encountered the petitioner, who

was wet and muddy, walking along a nearby roadway. He was arrested and taken to a police

station, where he gave a statement. Initially, the petitioner told the police that he had been

hunting in the woods, stopped to rest, and fell asleep. He volunteered to the police that he

had a rifle, but claimed that somebody stole it while he was sleeping. The petitioner denied

being near the Truaxes’ home, but then changed his story and said that he had been hunting

near their home. Later in the statement, he changed his story again to claim that Mr. Truax

had fired upon him and he had returned fire only in self-defense, accidentally shooting Mrs.

Truax. The petitioner also admitted to police that he was angry with the Truaxes because two

years earlier they had thrown him and his mother out of their home. He then led police to

where he had disposed of his rifle in a swampy area near the victims’ home.



              The evidence at trial showed that the petitioner traveled from Tennessee to

Upshur County, West Virginia, approximately one week before the crimes. Four days before

the shootings, on the early morning of December 18, 2011, the petitioner called a taxi that

transported him to the Number Five Mine Road off of Hacker’s Creek Road, where he

arrived at 4:48 a.m. This location is near the Truaxes’ home on Hacker’s Creek Road. Later

that morning, at around 10:00 a.m., the petitioner went to the Buckhannon Wal-Mart where

he purchased his rifle, a telescopic sight, and some ammunition. The rifle uses .243 caliber

Winchester shells, the same caliber as two empty shell casings found near Mrs. Truax’s body.


                                              3

On the evening of December 18, the petitioner took a taxi to a sporting goods store where he

had a salesperson demonstrate how to use his new rifle and scope. The petitioner practiced

shooting the rifle at the store’s indoor firing range.



              At the April 2014 trial, the jury found the petitioner guilty of the first degree

murder of Mrs. Truax and the attempted murder and malicious wounding of Mr. Truax. The

trial proceeded to a bifurcated “mercy phase,” during which the defense presented expert

testimony from psychologist Dr. Robert Jeffrey Rush and from the petitioner’s sister,

Elizabeth Grindstaff.    Dr. Rush provisionally diagnosed the petitioner with schizoid

personality disorder and explained that the petitioner is a “loner” with low-average

intelligence who, among other traits, has great difficulty perceiving the world the way other

people do, tends to ruminate, and loses himself in the fantasy world of video gaming. Ms.

Grindstaff offered that her brother is very loving, is both emotionally and financially

supportive of her and her children, and that she has never witnessed him displaying anger or

demonstrating a propensity toward violence.



              The State presented three witnesses during the mercy phase of the trial.

Sherman Truax and his son, Nicholas, each testified about the impact these crimes had upon

them. Also, a police officer authenticated a photograph and a video game, both of which

were admitted into evidence over the petitioner’s objection. The photograph showed that


                                               4

when arrested on the night of the shootings, the petitioner was wearing a t-shirt printed with

the following words: “May God have mercy on my enemies because I sure as hell won’t.”

The shirt also depicted two skulls and crossbones. A police officer testified that the video

game, “Assassin’s Creed Revelations,” was found in the backpack that the petitioner had

been carrying in the days leading up to the crimes. The officer read the description on the

back of the game:

              Two assassins, one destiny. I have always lived by the creed.
              My blades have dispensed death and justice in equal measure,
              yet I am no closer to discovering the truth behind our order, so
              I must walk the path of my ancestor, Apilia, in his footsteps I
              will find my true purpose.



              After hearing additional argument from counsel and engaging in further

deliberations, the jury did not recommend mercy. On May 30, 2014, the petitioner filed two

separate post-trial motions. One motion sought a judgment of acquittal or, in the alternative,

a new trial based on insufficiency of the evidence to support the convictions and trial error.

The other motion sought a new trial because of alleged juror misconduct. On June 11, 2014,

the petitioner filed a motion asking the circuit court to allow him to subpoena both the trial

jurors and alternate jurors to testify at the post-trial motions hearing. The court permitted the

petitioner to subpoena two jurors and one alternate juror whom the petitioner alleged

committed misconduct.




                                               5

               At the post-trial hearing held on August 4, 2014, the petitioner’s counsel

presented testimony from the petitioner’s sister, Ms. Grindstaff, and his mother, Mary

Branham. They asserted that during multiple recesses in the trial, they observed Sherman

Truax outside of the courthouse, smoking along side of, and talking with, a woman whom

they later learned was a juror for the petitioner’s case. Based on their descriptions, the

defense counsel identified the juror by name, Diana Crites. Ms. Grindstaff and Ms. Branham

testified they did not realize this person was a juror until they were allowed into the

courtroom to hear the verdict and saw her on the jury panel; before that, they had been

sequestered outside of the courtroom. Ms. Grindstaff also asserted that on the first day of

trial, Nicholas Truax was present during a smoking break with his father and this juror. In

their hearing testimony, Ms. Grindstaff and Ms. Branham described the female smoker’s

appearance and the specific places where they saw her and Mr. Truax standing. Both

admitted, however, that they had not overheard any conversations. Contending that these

interactions constituted an improper extrinsic influence on Juror Crites, the petitioner argued

that he was denied a fair trial.



               During this post-trial hearing, the State presented testimony from Laura Queen,

a victim advocate employed in the prosecutor’s office. Her job includes assisting and

escorting victims around the courthouse during trial. She testified that on the first day of trial

she saw Mr. Truax outdoors smoking and talking with friends, but she knew that these people


                                                6

were not jurors. This was the only such break Ms. Queen observed Mr. Truax take. She

never saw Mr. Truax talk to any juror and, other than the times he was present to testify, she

did not observe him at the courthouse at all. She explained that on the first day of trial,

shortly after they testified, Sherman and Nicholas Truax left the courthouse to fix a problem

with their car. Ms. Queen did not recall seeing Mr. Truax at the courthouse on the second

day of trial and, on the third day, he was not called to the courthouse until the afternoon.

Countering, the petitioner observed that Mr. Truax was present at the courthouse on the first,

second, and fourth days of trial because he testified on each of those days.



              In addition, Ms. Grindstaff reported that during a break in the trial, she

overheard a man and a woman talking in the courthouse hallway. She reported that the man

said he was tired and had not slept well, to which the woman suggested that he “call off”

work that night. According to Ms. Grindstaff’s testimony, the man then said, “[w]ell, it just

depends on how long we’re here” and the woman responded, “[w]ell, maybe we won’t be

here long unless–that is, unless you’re still undecided.” Ms. Grindstaff says that when she

later entered the courtroom, she saw the man sitting in the jury box. Based upon Ms.

Grindstaff’s descriptions, defense counsel identified the man as Juror Edward Zickefoose and

the woman as an alternate juror, Samantha Ryan, who was excused prior to deliberations.

The petitioner contends that the jurors must have been discussing the verdict prematurely.




                                              7

               The circuit court denied the petitioner’s request to take testimony from Jurors

Crites and Zickefoose and Alternate Juror Ryan, ruling that the petitioner had not proven

misconduct and the court was “not going to start bringing in jurors . . . after each and every

verdict” to inquire whether anybody said anything. The court explained, “that’s not going

to be a new review process of Court verdicts[.]”



               After considering the testimony given during the post-trial hearing, the court

concluded that the petitioner had not presented clear and convincing evidence of any juror

misconduct. With regard to the alleged contact during smoking breaks, the court found that

the only thing proven was “perhaps an opportunity for jurors to meet with Mr. Truax[.]”

However, the court doubted that the contacts had even occurred. The court questioned the

credibility and motivation of Ms. Grindstaff and Ms. Branham, both because of their close

familial relationship with the petitioner and because they claimed that these contacts occurred

during every break throughout the trial.5 The court said, “I find it incredible that each and

every time the Court recessed, that these witnesses observed Mr. Truax talking to the same

juror, I just don’t–the empirical odds . . . are against that . . . I find it suspect[.]”




       5
       The record reflects that breaks were routinely taken at mid-morning, lunch, and mid-
afternoon during the four-day trial.

                                                 8

              The court was also unconvinced that the petitioner proved any misconduct with

regard to the alleged discussion between jurors in the hallway. The court found that even if

this discussion took place, it was unclear when it occurred and there was no proof that the

conversation pertained to the verdict. The court reasoned that the jurors may have been

referencing the court’s practice of consulting them about when to take breaks and how late

the trial would run each day. Accordingly, the court concluded that there was not clear and

convincing evidence that the jurors had begun deliberating prematurely.



              After finding no merit to the petitioner’s remaining claims–insufficient

evidence and trial error–the circuit court denied the petitioner’s post-trial motions and

proceeded to sentencing. By written order entered on August 6, 2014, the petitioner was

sentenced to life in prison without the possibility of parole for first degree murder, plus a

consecutive three to fifteen years in prison for attempted murder. A sentence of two to ten

years in prison for malicious wounding was ordered to run concurrently with the attempted

murder sentence. This appeal followed.



                                 II. Standard of Review

              The petitioner’s case is before this Court on appeal from the circuit court’s

denial of his motions for a new trial and judgment of acquittal. We apply the following

standard when reviewing a circuit court’s decision denying a motion for new trial:


                                             9

                     In reviewing challenges to findings and rulings made by
              a circuit court, we apply a two-pronged deferential standard of
              review. We review the rulings of the circuit court concerning a
              new trial and its conclusion as to the existence of reversible
              error under an abuse of discretion standard, and we review the
              circuit court’s underlying factual findings under a clearly
              erroneous standard. Questions of law are subject to a de novo
              review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Furthermore, “[t]he Court

applies a de novo standard of review to the denial of a motion for judgment of acquittal based

upon the sufficiency of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562,

567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). With

these general standards in mind, we turn to the assignments of error.



                                      III. Discussion

                              A. Sufficiency of the Evidence

              The petitioner argues that the circuit court should have granted his motion for

judgment of acquittal because the evidence at trial was insufficient to support the jury’s

guilty verdicts. The State responds that the evidence was more than sufficient to convict the

petitioner of all three charges.



              In addition to the general standards of review set forth above, this Court

engages in the following analysis when reviewing sufficiency of the evidence claims:




                                             10

                      The function of an appellate court when reviewing the
              sufficiency of the evidence to support a criminal conviction is to
              examine the evidence admitted at trial to determine whether
              such evidence, if believed, is sufficient to convince a reasonable
              person of the defendant’s guilt beyond a reasonable doubt.
              Thus, the relevant inquiry is whether, after viewing the evidence
              in the light most favorable to the prosecution, any rational trier
              of fact could have found the essential elements of the crime
              proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover, a criminal

defendant takes on a difficult burden when seeking to prove such a claim:

                     A criminal defendant challenging the sufficiency of the
              evidence to support a conviction takes on a heavy burden. An
              appellate court must review all the evidence, whether direct or
              circumstantial, in the light most favorable to the prosecution and
              must credit all inferences and credibility assessments that the
              jury might have drawn in favor of the prosecution. The
              evidence need not be inconsistent with every conclusion save
              that of guilt so long as the jury can find guilt beyond a
              reasonable doubt. Credibility determinations are for a jury and
              not an appellate court. Finally, a jury verdict should be set aside
              only when the record contains no evidence, regardless of how it
              is weighed, from which the jury could find guilt beyond a
              reasonable doubt. To the extent that our prior cases are
              inconsistent, they are expressly overruled.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3. As discussed herein, our review of the appendix

record leads us to conclude there was sufficient evidence to support these convictions.



              Insinuating that Mr. Truax’s identification of him as the shooter was incorrect,

the petitioner cites to three portions of Mr. Truax’s report to police and 911. First, Mr. Truax

told police that the shooter wore blue jeans and a black hoodie, but the petitioner was

                                              11

arrested wearing insulated coveralls over a dark t-shirt. Because the petitioner was arrested

some seven hours after the crimes, leaving time for him to remove the hoodie and put on the

coveralls, this attempt to suggest an improper identification fails. Moreover, the petitioner

admitted to police that he was at the victims’ home and had fired his rifle, and Mr. Truax was

extremely familiar with the petitioner’s appearance based upon their family relationship and

the petitioner’s former residence in the Truax home.



               Second, the petitioner points out that Mr. Truax mistakenly reported to 911 that

both his wife and his son had been shot. His teenaged son, Nicholas, arrived safely home

from school a few minutes later, while Mr. Truax was still talking to the 911 operator. We

fail to see how this mistake assists the petitioner’s argument in any way. The inclusion of

Nicholas in the report is easily explained by the fact that Mr. Truax was anxious about his

family’s safety, and his son was due home momentarily.



               Third, the petitioner argues that Mr. Truax reported more than two shots being

fired, but only two empty shell cartridge casings were found in the victims’ yard. This

argument is unpersuasive because other evidence proves that at least three shots were fired.

Mrs. Truax had two separate wounds in her body, and Mr. Truax suffered a wound to the

wrist. Moreover, when the police recovered the petitioner’s rifle, there was a fired cartridge

casing still inside.


                                              12

              As additional grounds for challenging the sufficiency of the evidence to

support his conviction, the petitioner argues that there was no gunshot residue found on his

face and hands. However, the petitioner was walking outside in the rain and, as the State’s

expert forensic analyst explained, gunshot residue washes away. He also complains that the

State failed to provide any analyses of his laptop computer and cellular telephone, and failed

to take footprint impressions or photographs of footprints at the scene of the crimes. The

petitioner does not explain how these investigatory steps would have impacted the case.



              Next, the petitioner asserts that the State did not prove his rifle was the murder

weapon and made “no effort to determine whether the shell casings found near” Mrs. Truax’s

body were fired from his rifle. These contentions are belied by the record evidence. There

were multiple indications that the petitioner’s rifle was the weapon used in these crimes.

Fired cartridge casings found in the Truaxes’ yard are of the same caliber used by the

petitioner’s rifle, and the rifle’s appearance matches the description given by Mr. Truax. The

petitioner even led police to where he had dropped his rifle near the victims’ home.

Additionally, a State Police Lab firearms expert determined that a bullet taken from Mrs.

Truax’s body was in the .24 caliber family, which includes .243 Winchester, the type of

ammunition used by the petitioner’s rifle. Because exposure to moisture had caused rust to

develop inside the rifle’s chamber, the expert was unable to conclusively determine that the

bullet removed from Mrs. Truax’s body was fired from the rifle. However, the expert found


                                              13

several characteristics in common between the marks left on that bullet and on a bullet she

test-fired from the petitioner’s rifle. Finally, the petitioner admitted to police that he had

discharged his rifle at the Truaxes, although he claimed it was in self-defense.



              Lastly, the petitioner contends that the State did not explain a twenty-seven

minute gap in the audio recording of his statement to police. Two police officers testified

that, for unknown reasons, the digital recorder had simply stopped recording. This issue

pertains to the credibility of the petitioner’s statement. The jury was made aware of the

missing twenty-seven minutes and could attribute whatever weight it deemed appropriate to

the petitioner’s admissions.6



              The petitioner’s pre-dawn visit to the area four days before the shooting, the

purchase of the rifle, and his presence in the area of the Truax home while armed with a

loaded rifle, show premeditation and deliberation. His admitted anger with his aunt and

uncle suggests a motive. Furthermore, he was positively identified by Mr. Truax, he

admitted being in the yard and shooting his rifle at the Truaxes, and he led police to where

he disposed of the rifle. Accordingly, there was no error in the circuit court’s denial of the

motion for judgment of acquittal.



       6
       Although the petitioner moved the circuit court to suppress his entire statement, he
does not raise any assignment of error on appeal regarding its admissibility.

                                             14

                        B. T-Shirt Photograph and Video Game

              The petitioner asserts that the circuit court erred by admitting two items of

evidence during the bifurcated mercy phase of his trial: the photograph of the t-shirt he was

wearing on the night of the shootings, and his “Assassin’s Creed” video game. Arguing that

neither the message on the t-shirt or the video game had anything to do with the crimes, and

that both were extremely inflammatory to the jury, the petitioner contends their admission

violated Rule 403 of the West Virginia Rules of Evidence: “Although relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice[.]” W.Va. R. Evid. 403, in part.7 The State responds that this evidence was

probative of the petitioner’s character, which was at issue during the mercy phase, and that

the evidence was not unfairly prejudicial given the violent, premeditated nature of these

crimes. Moreover, because the evidence was only admitted during the bifurcated mercy

phase, the State explains that it could not have impacted the jury’s determination of guilt.



              “A trial court’s evidentiary rulings, as well as its application of the Rules of

Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v.

Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). With regard to evidence in the mercy

phase, we have held the following:



       7
       This opinion quotes the version of Rule 403 in effect at the time of trial. Stylistic
changes, immaterial to the issues on appeal, have since been made to the rule.

                                             15

                     The type of evidence that is admissible in the mercy
              phase of a bifurcated first degree murder proceeding is much
              broader than the evidence admissible for purposes of
              determining a defendant’s guilt or innocence. Admissible
              evidence necessarily encompasses evidence of the defendant’s
              character, including evidence concerning the defendant’s past,
              present and future, as well as evidence surrounding the nature of
              the crime committed by the defendant that warranted a jury
              finding the defendant guilty of first degree murder, so long as
              that evidence is found by the trial court to be relevant under
              Rule 401 of the West Virginia Rules of Evidence and not unduly
              prejudicial pursuant to Rule 403 of the West Virginia Rules of
              Evidence.

Syl. Pt. 7, State v. McLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (2010).



              Having reviewed the appendix record, we find no abuse of discretion in the

trial court’s admission of the t-shirt photograph and the video game during the mercy phase.

At this stage of the bifurcated trial, the jury was permitted to consider evidence of the

petitioner’s character. Id. Given the ruthless nature of these crimes, the message on the t-

shirt worn on the very night of these crimes was probative of the petitioner’s character. He

was angry at his aunt and uncle for throwing him and his mother out of their home, and he

showed no mercy when he shot his aunt in the back and later shot his fleeing uncle.

Furthermore, prior to the State’s admission of the video game, the petitioner’s expert witness

had already testified that the petitioner “loses himself in the fantasy world of . . . video

gaming[.]” Defense counsel was permitted to argue to the jury that these items bore no

connection to the shootings. We simply cannot conclude that this evidence was unduly


                                             16

prejudicial. Finally, even if we were to find error in the admission of this evidence, it would

be harmless. The other evidence presented to the jury, in both phases of the trial, is more

than sufficient to support the recommendation against mercy.



                                 C. Alleged Juror Misconduct

                 After trial, the petitioner raised two separate allegations of juror misconduct.

The petitioner’s sister testified that she overheard a conversation in the courthouse hallway

where, in reference to how long the jurors anticipated being in court that day, Alternate Juror

Ryan told Juror Zickefoose that they might not be there long “unless . . . you’re still

undecided.” In addition, the petitioner’s sister and mother asserted that they observed Juror

Crites interacting with Sherman Truax while smoking cigarettes during trial recesses. The

petitioner’s sister testified that Nicholas Truax was also present with his father and the juror

for at least one of these breaks. Although the petitioner’s sister and mother indicated their

belief that Mr. Truax and Juror Crites spoke to one another, they did not overhear any

conversation.8



                 The petitioner contends that the jurors’ conduct in these situations was in direct

violation of the circuit court’s instructions9 and, more importantly, denied him his

       8
           The allegations are set forth more fully in section I of this opinion.
       9
        The trial transcript reflects that the circuit court instructed the jury not to begin
deliberations until after they had heard all of the evidence, arguments of counsel, and

                                                 17

constitutional right to a trial by an impartial jury. The State argues that after holding a

hearing on these allegations, the circuit court correctly found the petitioner did not prove the

occurrence of any juror misconduct.



              Before examining the circuit court’s rulings on each of these claims, we note

that a party seeking a new trial based on juror misconduct must prove the allegation by clear

and convincing evidence:

                     “A motion for a new trial on the ground of the
              misconduct of a jury is addressed to the sound discretion of the
              court, which as a rule will not be disturbed on appeal where it
              appears that defendant was not injured by the misconduct or
              influence complained of. The question as to whether or not a
              juror has been subjected to improper influence affecting the
              verdict, is a fact primarily to be determined by the trial judge
              from the circumstances, which must be clear and convincing to
              require a new trial, proof of mere opportunity to influence the
              jury being insufficient.” Syllabus Point 7, State v. Johnson, 111
              W.Va. 653, 164 S.E. 31 (1932).

Syl. Pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995). As this same point of law

recognizes, this Court applies an abuse of discretion standard of review to the trial court’s

decision with regard to a motion for new trial asserting juror misconduct. Id.




instruction on the law and they were together as a jury. The court also instructed the jurors
that during recesses, they were not permitted to talk about the case with anybody.

                                              18

                   1. Alleged Conversation Among Jurors in Hallway

              The petitioner argues that the conversation Ms. Grindstaff reportedly overheard

between Alternate Juror Ryan and Juror Zickefoose proves that the jury was prematurely

deliberating on the case, in violation of the trial court’s instructions. After reviewing the

transcript of the post-trial hearing, we agree with the circuit court’s conclusion that the

petitioner has not proven any misconduct on this issue. As the circuit court found, even

assuming, arguendo, that the conversation took place, it is far from clear that the jurors were

discussing the case or the verdict. Ms. Grindstaff explained that the conversation concerned

Juror Zickefoose being tired and whether he should “call off” work that night, so the

reference to being “undecided” could have easily pertained to Juror Zickefoose’s indecision

about his work plans.



              To support his argument, the petitioner asserts that the jury’s deliberations in

both the guilt and mercy phases of the trial were short in duration. He contends that this

brevity is proof that juror misconduct must have occurred. We disagree. The length of jury

deliberations is necessarily indeterminate. The brief period of deliberations in this case could

signify that the jury found overwhelming evidence of guilt not justifying the possibility of

parole. Moreover, a challenge to the length of jury deliberations constitutes an intrinsic

challenge to a verdict that we will not entertain. “A jury verdict may not ordinarily be

impeached based on matters that occur during the jury’s deliberative process which matters


                                              19

relate to the manner or means the jury uses to arrive at its verdict.” Syl. Pt. 1, State v.

Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981). After reviewing the record in this case,

we conclude that the circuit court did not abuse its discretion when denying the motion for

new trial based on the alleged conversation in the hallway.



                          2. Alleged Interaction While Smoking

              Turning to the petitioner’s other assertion of jury misconduct, it is well-settled

that when a juror allegedly engages in a private communication with a third party about the

matter on trial, the trial court is required to hold a hearing and consider the claim:

                      In any case where there are allegations of any private
              communication, contact, or tampering, directly or indirectly,
              with a juror during a trial about a matter pending before the jury
              not made in pursuance of known rules of the court and the
              instructions and directions of the court made during the trial
              with full knowledge of the parties; it is the duty of the trial judge
              upon learning of the alleged communication, contact, or
              tampering, to conduct a hearing as soon as is practicable, with
              all parties present; a record made in order to fully consider any
              evidence of influence or prejudice; and thereafter to make
              findings and conclusions as to whether such communication,
              contact, or tampering was prejudicial to the defendant to the
              extent that he has not received a fair trial.

Sutphin, 195 W.Va. at 553-54, 466 S.E.2d at 404-05, syl. pt. 2. Similarly, the United States

Supreme Court held that when there has been alleged prohibited contact with a juror, the trial

court “should determine the circumstances, the impact thereof upon the juror, and whether

or not it was prejudicial, in a hearing with all interested parties permitted to participate.”


                                               20

Remmer v. United States, 347 U.S. 227, 230 (1954). “[T]he remedy for allegations of juror

partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith

v. Phillips, 455 U.S. 209, 215 (1982). This hearing, commonly referred to as a “Remmer

hearing,” was held by the circuit court herein when considering the petitioner’s post-trial

motions.



              During a Remmer hearing, the person seeking a new trial must prove, by clear

and convincing evidence, that improper influence on a juror occurred and affected the

verdict. See Sutphin, 195 W.Va. at 553, 466 S.E.2d at 404, syl. pt. 1 (quoted above). Proof

of the mere opportunity to influence the jury is insufficient to warrant a new trial. Id. We

recently emphasized that “the mere allegation of juror misconduct is insufficient to warrant

a new trial. . . . [There] must be proof that some improper event has occurred. Misconduct

on the part of the jury as grounds for a new trial is not presumed but must be fully proved by

the moving party.” State v. Trail, __ W.Va. __, __ S.E.2d __, 2015 WL 5928478, slip op.

*10 (W.Va. Oct. 7, 2015) (citation and internal quotation marks omitted). Furthermore,

              due process does not require a new trial every time a juror has
              been placed in a potentially compromising situation. Were that
              the rule, few trials would be constitutionally acceptable. The
              safeguards of juror impartiality, such as voir dire and protective
              instructions from the trial judge, are not infallible; it is virtually
              impossible to shield jurors from every contact or influence that
              might theoretically affect their vote. Due process means a jury
              capable and willing to decide the case solely on the evidence
              before it, and a trial judge ever watchful to prevent prejudicial
              occurrences and to determine the effect of such occurrences

                                               21

              when they happen. Such determinations may properly be made
              at a hearing like that ordered in Remmer[.]


Id., slip op. * 16 (quoting Smith, 455 U.S. at 217).



              If the moving party proves that some improper event involving a juror did

occur, the trial court must then determine whether that event affected the juror to the

prejudice of the moving party. In that regard, we have held that

                     [i]n the absence of any evidence that an interested party
              induced juror misconduct, no jury verdict will be reversed on the
              ground of juror misconduct unless the defendant proves by clear
              and convincing evidence that the misconduct has prejudiced the
              defendant to the extent that the defendant has not received a fair
              trial.

Sutphin, 195 W.Va. at 554, 466 S.E.2d at 405, syl. pt. 3. If, however, the juror misconduct

was induced or participated in by an interested party, prejudice will be presumed and must

be rebutted. Legg v. Jones, 126 W.Va. 757, 763, 30 S.E.2d 76, 80 (1944); State v. Daniel,

182 W.Va. 643, 647, 391 S.E.2d 90, 94 (1990); Sutphin, 195 W.Va. at 559-60, 466 S.E.2d

at 410-11; Bluestone Indust., Inc. v. Keneda, 232 W.Va. 139, 143, 751 S.E.2d 25, 29 (2013).

Ultimately, if the court concludes that there was prejudicial juror misconduct, a new trial is

warranted. Legg, 126 W.Va. at 757, 30 S.E.2d at 77, syl. pt. 3 (“Misconduct of a juror,

prejudicial to the complaining party, is sufficient reason . . . to set aside a verdict returned

by the jury of which he is a member.”).



                                              22

              In both Trail and Sutphin, there was no question that a juror had, in fact,

conversed with a non-juror about the trial. Those cases focused on the issue of prejudice,

including whether the juror was induced to commit misconduct by an interested party such

that prejudice is presumed. By contrast, following the Remmer hearing held in the case at

bar, the circuit court found that the petitioner failed to establish by clear and convincing

evidence that any misconduct had even occurred. The judge expressed doubt about the

credibility and motivation of Ms. Grindstaff and Ms. Branham. Not only are they close

family members of the petitioner, they asserted so many instances of misconduct that the

court found their claims to be suspect. The court concluded that, at most, the petitioner

established the mere opportunity to influence a juror which, under Johnson and Sutphin, is

insufficient to prove juror misconduct. Johnson, 111 W.Va. at 654, 164 S.E. at 32, syl. pt.

7; Sutphin, 195 W.Va. at 553, 466 S.E.2d at 404, syl. pt. 1.



              However, under the particular circumstances of this case, where two witnesses

provided sworn, detailed testimony claiming to have seen the victim and a juror socializing

with one another over the course of multiple days of trial, we are concerned that the circuit

court rejected the allegations without hearing from any of the people who allegedly engaged

in the conduct: Juror Crites, Sherman Truax, and, to a lesser extent, Nicholas Truax. Sutphin

requires a “full consider[ation]” of the evidence pertaining to alleged juror misconduct. 195

W.Va. at 553-54, 466 S.E.2d at 404-05, syl. pt. 2. While the circuit court may have been


                                             23

correct in finding that no misconduct occurred, we are unable to confirm this conclusion

from the record before us. Furthermore, Rule 606(b)10 of the West Virginia Rules of

Evidence expressly permits limited testimony from a juror on the issue of improper outside

influence or extraneous prejudicial information. Although the petitioner subpoenaed Juror

Crites to the post-trial hearing and asked to take her testimony, the circuit court refused to

allow it.



              United States v. Brantley, 733 F.2d 1429 (7th Cir. 1984), is instructive. In

Brantley, the co-defendants, who were convicted of drug-smuggling offenses, moved for a



       10
          Rule 606(b) of the West Virginia Rules of Evidence, as it was written at the time of
the petitioner’s post-trial hearing in August of 2014, provided as follows:

              (b) Inquiry into validity of verdict or indictment. – Upon an
              inquiry into the validity of a verdict or indictment, a juror may
              not testify as to any matter or statement occurring during the
              course of the jury’s deliberations or to the effect of anything
              upon that or any other juror’s mind or emotions as influencing
              the juror to assent to or dissent from the verdict or indictment or
              concerning the juror’s mental processes in connection therewith,
              except that a juror may testify on the question [of] whether
              extraneous prejudicial information was improperly brought to
              the jury’s attention or whether any outside influence was
              improperly brought to bear upon any juror. Nor may a juror’s
              affidavit or evidence of any statement by the juror concerning
              a matter upon which the juror would be precluded from
              testifying be received for these purposes.

Id. (emphasis added.) Effective September 2, 2014, this Court amended Rule 606 to improve
its organization and clarity, but those changes are immaterial to the issues in this appeal.

                                              24

new trial arguing that an improper extrinsic influence on the jury had denied them a fair trial.

Reportedly, one juror, Angela Blige, had told the other jurors that she personally knew Co-

Defendant James Murray’s daughter and thus knew that Murray had “been in this kind of

trouble before.” Id. at 1439. Although the trial judge held hearings on the claim of juror

misconduct, the judge conducted his own inquiry of Juror Blige, refusing to allow counsel

for the parties to question her, and did not allow testimony from other jurors who may have

been impacted by the statement. Id. Based on this review, the trial court concluded that the

co-defendants failed to prove their allegation of jury misconduct. Id. On appeal, the Seventh

Circuit Court of Appeals recognized that “[a] party claiming that an improperly influenced

jury returned a verdict against him must be given an opportunity to prove that claim.” Id.

(citation and internal quotation marks omitted). The appellate court ultimately concluded

that the trial court had abused its discretion by conducting an insufficient investigation into

the allegation. Id. at 1440. Finding no other error, the appellate court conditionally affirmed

Murray’s conviction but remanded the case back to the trial court for a more complete

hearing on the juror misconduct claim. Id. at 1441.



              We conclude that in the case at bar, the circuit court abused its discretion by

denying the petitioner’s motion for a new trial without permitting him to elicit testimony

from Juror Crites on the limited issue of any communication she may have had with the

Truaxes during trial. By refusing to allow this requested testimony, the circuit court unduly


                                              25

restricted the petitioner’s opportunity to prove his claim of juror misconduct. The serious

and detailed nature of these allegations warrant a Remmer hearing where the persons alleged

to have committed the misconduct are allowed to participate.11



              Accordingly, we remand this case to the circuit court for an additional post-trial

Remmer hearing. The circuit court is directed to permit the petitioner to subpoena and take

sworn testimony from Juror Crites regarding any communication she may have had with the

Truaxes during trial recesses. Moreover, either party shall also be permitted to subpoena and

take sworn testimony on this issue from Sherman and Nicholas Truax. If the evidence on

remand confirms the circuit court’s previous conclusion that no jury misconduct was proven,

then the circuit court should reaffirm its denial of the motion for new trial. However, if on



       11
         We must emphasize that not every allegation of juror misconduct requires that the
challenged juror be called to testify. The decision on whether to hear juror testimony
depends on the facts and the accusations, and how well the accusations are supported by the
moving party. The Eleventh Circuit Court of Appeals surveyed decisions from various
federal courts and determined that the cases

              fall along a continuum focusing on two factors. At one end of
              the spectrum the cases focus on the certainty that some
              impropriety has occurred.            The more speculative or
              unsubstantiated the allegation of [juror] misconduct, the less the
              burden to investigate. . . . At the other end of the continuum lies
              the seriousness of the accusation. The more serious the potential
              jury contamination, especially where alleged extrinsic influence
              is involved, the heavier the burden to investigate.

United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985) (citations omitted).

                                              26

remand the circuit court finds clear and convincing evidence that juror misconduct occurred,

the circuit court must then determine whether there was prejudice that warrants a new trial.



              In summary, we find that there was sufficient evidence to support the

petitioner’s convictions, and we find no merit to his claims of trial error. However, we

conditionally affirm the petitioner’s conviction based on our limited remand of this case to

the circuit court for an additional Remmer hearing, as discussed herein. See Brantley, 733

F.2d at 1441 (conditionally affirming criminal conviction subject to remand hearing to

review issue of juror misconduct); State v. Bibb, 626 So.2d 913 (La. Ct. App. 1993) (same);

cf. Syl. Pt. 1, Perrine v. E.I. Du Pont De Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815

(2010) (conditionally affirming civil case, in part, subject to outcome of hearing on remand

regarding statute of limitations).



                                      IV. Conclusion

              For the reasons set forth above, the petitioner’s conviction is conditionally

affirmed. The matter is remanded to the circuit court for an additional Remmer hearing

pursuant to the directions set forth herein.

                                          Conditionally affirmed; remanded for hearing.




                                               27

