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State v. Jenner

Supreme Court of West Virginia

June 11, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Howard Clarence Jenner, Defendant Below, Petitioner

          Upshur County 12-F-17

          MEMORANDUM DECISION

         Petitioner Howard Clarence Jenner, by counsel Harry A. Smith III, appeals the Circuit Court of Upshur County's April 28, 2017, order denying his motion for a new trial. Respondent State of West Virginia, by counsel Benjamin F. Yancey III, filed a response. On appeal, petitioner contends that the circuit court erred in denying his motion for a new trial where a juror purportedly had inappropriate contact with witnesses at his trial.

         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 affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In 2012, petitioner's aunt, Beni Truax, was shot and murdered in her front yard. Following the sound of a gunshot, Sherman Truax, Ms. Truax's husband and petitioner's uncle, stepped outside of his home and was shot in the wrist. Mr. Truax, who identified his nephew as the shooter, called 9-1-1. Petitioner was eventually apprehended and later indicted for one count of first-degree murder, one count of attempted first-degree murder, and one count of malicious assault. Petitioner's trial commenced on April 21, 2014, and the jury convicted him of all three charges. The jury also recommended a verdict of no mercy as to the murder conviction.

         On August 4, 2014, the parties appeared for a post-trial motions and sentencing hearing. Among other post-trial motions, petitioner moved for a new trial on the ground of alleged juror misconduct. Based upon this assertion, the circuit court conducted a Remmer hearing.[1] In support of petitioner's assertion of juror misconduct, petitioner's sister, Elizabeth Grindstaff, and mother, Mary Branham, testified that during recesses in the trial, they observed Mr. Truax and his son speaking with a woman they later learned was a juror at petitioner's trial.[2] Although Ms. Grindstaff and Ms. Branham admitted that they had not overheard any conversations, petitioner nonetheless argued that the interactions constituted improper extrinsic influence on the juror, who was identified as Diana Crites. The circuit court denied petitioner's request to take testimony from Juror Crites, however.

         The State presented testimony at this hearing from a victim advocate, Laura Queen, who was employed in the prosecutor's office. Ms. Queen's responsibilities include escorting victims around the courthouse during trial, and she testified that she never saw Mr. Truax speak with any juror.

         After considering this evidence, the circuit court found that petitioner had failed to present clear and convincing evidence of any juror misconduct. It denied petitioner's motion for a new trial and proceeded to sentence him to life imprisonment without the possibility of parole for his first-degree murder conviction, to three years to fifteen years of incarceration for his attempted murder conviction, and to two years to ten years of incarceration for his malicious assault conviction.

         Following sentencing, petitioner filed a direct appeal with this Court. See State v. Jenner, 236 W.Va. 406, 780 S.E.2d 762 (2015). Among other asserted errors, petitioner argued that the circuit court erred in denying his motion for a new trial on the ground of juror misconduct. We concluded that sufficient evidence existed to support petitioner's convictions and found no merit to his claims of trial error, but we conditionally affirmed his conviction and remanded the case to the circuit court for an additional Remmer hearing. Id. at 420, 780 S.E.2d at 776. We directed that the circuit court permit petitioner to subpoena Juror Crites and elicit testimony from her regarding any communications she may have had with Mr. Truax or his son. Id. at 419, 780 S.E.2d at 775.

         In accordance with Jenner, the circuit court conducted an additional Remmer hearing on April 13, 2017. Juror Crites testified at this hearing that she never spoke with Mr. Truax, Mr. Truax's son, or any other witness at petitioner's trial. Juror Crites stated that neither Mr. Truax nor his son were present when she took her smoke breaks and that she did not speak with anyone who was not a juror except for one woman who asked her for a cigarette lighter. Finally, Juror Crites testified that she fully complied with her juror oath. The circuit court denied petitioner's motion for a new trial finding that Juror Crites did not communicate with Mr. Truax, his son, or any other witness in petitioner's trial; that Juror Crites did not engage in any juror misconduct; and that Ms. Grindstaff and Ms. Branham's testimony, of which the circuit court took judicial notice, was not credible based upon their familial relationship with petitioner. These findings were memorialized in an order entered on April 28, 2017, and it is from this order that petitioner appeals.

         On appeal, petitioner argues that the circuit court erred in denying his motion for a new trial based upon juror misconduct. Petitioner argues that Juror Crites's contact with Mr. Truax "violates every principle of fairness available to a criminal defendant, notwithstanding the content of any conversations between the juror and Mr. Truax." Petitioner states that

[i]t is hard to imagine a scenario more prejudicial to a [d]efendant than to have one of his jurors socializing, during trial, with the victim of the alleged crimes of attempted murder and malicious assault, a victim who is also the grieving husband of a woman allegedly murdered by the [petitioner].

         Petitioner submits that prejudice and bias must be presumed following the contact between Juror Crites and Mr. Truax.

         Petitioner also takes issue with the fact that the circuit court found that Ms. Grindstaff and Ms. Branham testified truthfully during the first hearing, but retreated from that finding after Juror Crites testified. Petitioner contends that Juror Crites's testimony should have been viewed skeptically because she was "on the hot seat." Petitioner concludes that he is entitled to a new trial because any communications between Juror ...


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