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