Ketchum
CHARLESTON – The West Virginia Supreme Court of Appeals overturned a robbery conviction because a judge didn't exclude a juror who hired the prosecutor as his lawyer and told the judge he would hire him again.
In an unsigned opinion on March 13, the Justices awarded a new trial to Billie Dawn Hatley, who faced a 10-year sentence.
Her appeal didn't entirely succeed, however, for the Justices ignored her request to reduce the charge from first degree robbery to simple larceny.
They ruled that because they reversed her conviction on a jury selection error, they did not have to consider any other issues she raised.
Justice Menis Ketchum would have reduced the charge. In a concurring opinion he wrote that first degree robbery requires proof of "violence to the person."
He wrote that "had we chosen to decide this appeal on that issue, the evidence is likely insufficient for reasonable minds to find beyond a reasonable doubt that 'violence to the person' occurred."
The crime happened outside a Wal-Mart store in Weston. As Nancy Bailey walked to the store, Hatley stepped up and tugged at her purse.
Bailey briefly resisted but Hatley took the purse and jumped into a car that sped away.
Hatley removed $40 and discarded the purse, which police found.
Police arrested her. Lewis County grand jurors indicted her for first degree robbery.
As Circuit Judge Thomas Keadle presided over jury selection, prospective juror Boyd Conrad said he hired prosecuting attorney Joseph Wagoner to prepare deeds for him.
Conrad said he would use Wagoner's services again if the need arose.
Hatley objected to Conrad. Keadle overruled the objection.
Hatley exercised a peremptory strike to remove Conrad from the panel. If she hadn't struck him she could have saved the strike for another prospect.
At the close of trial, jurors in their deliberations asked for a dictionary so they could look up the definition of violence.
Keadle answered that they should rely on common sense.
Jurors convicted Hatley. Keadle imposed a 10-year sentence.
On appeal, the Justices held that an attorney-client relationship between a prosecutor and a prospective juror "merits the closest scrutiny by the trial court."
They wrote that "the more prudent course may be to excuse the juror."
An attorney-client relationship is one of trust and confidence, they wrote.
"Mr. Conrad's willingness to hire the prosecuting attorney to represent him in the future indicates that he had established a relationship of trust with the prosecuting attorney," they wrote.
Ketchum and Justice Margaret Workman reserved the right to file concurring opinions, and Ketchum quickly produced one.
"I am writing separately to express my concern that the defendant may have been overcharged," he wrote on March 17.
"In any retrial -– should the State choose again to go with robbery –- the jury should be instructed on the definition of 'use of violence' and the jury must be given an instruction for simple larceny should the defendant request that instruction," he wrote.
Thomas Prall and James Hawkins of Buckhannon represented Hatley. Wagoner and assistant prosecuting attorney Robert Morris represented the state.