WEST VIRGINIA RECORD

CHARLESTON – Former Braxton County deputy sheriff Christopher Dellinger has won a new trial on criminal fraud charges because juror Amber Hyre failed to disclose she counted him as a MySpace friend.

The West Virginia Supreme Court of Appeals reversed his conviction in June, finding Hyre also concealed connections to two witnesses.

"Juror Hyre's repeated lack of candor clearly undermined the purpose of voir dire and, as a result, deprived appellant of the ability to determine whether she harbored any prejudices or biases against him or in favor of the state," the Justices wrote.

They reversed Circuit Judge Richard Facemire, who held a hearing after trial and declared her fair and impartial.

Hyre told Facemire she disobeyed God.

"Maybe I should have at least said that, you know, that he was on MySpace, which isn't really that important, I didn't think," she said.

The Justices considered it so important that they recommended a National Law Journal article on, "Rules for Jurors: No Talking, Texting, Tweeting."

Dellinger secured grants from a commission against drunk driving. He allegedly billed for hours he didn't work and hours the grants shouldn't have covered.

Grand jurors indicted him on charges of falsifying the sheriff's accounts and obtaining money, goods, services or property by fraud.

A week before trial, in 2008, Hyer sent Dellinger a MySpace message. She had already received a summons for jury duty.

"Hey, I don't know you very well but I think you could use some advice," she wrote.

She told him God had a plan for him. "You might not understand why you are hurting right now but when you look back on it, it will make perfect sense," she wrote.

She wrote that God is perfect and she closed with, "Talk soon!"

They became MySpace friends, able to view each other's postings.

At voir dire, Facemire asked prospective jurors if they had a business or social relationship with Dellinger. Hyre stayed silent.

Dellinger might have objected if the Amber in court looked like the Amber in the photo on MySpace. He would testify later that they looked very different.

Facemire asked if jurors were related to witness Theresa Frame, a county commissioner. Hyre didn't tell him Frame's daughter married her brother.

Facemire asked if jurors knew Brenda Slaughter, from emergency medical services. Hyre didn't tell him her sister's husband worked for Slaughter.

She took a seat in the jury box. After a day of testimony she posted a message available to about 130 friends, including Dellinger.

"Amber just got home from court and getting ready to get James and head to church," she wrote. "Then back to court in the morning!" She described her mood as blah.

While jurors deliberated, Dellinger at last connected the Ambers. His lawyer, Barbara Harmon-Schamberger of Clay, relayed the discovery to Facemire.

He ordered an investigation but didn't disturb the deliberations.

Jurors convicted Dellinger on four counts. Facemire ordered two years on home confinement and five on probation after that.

Dellinger moved for a new trial. At a hearing, she said she knew him. "He's a cop in the county," she said. "Everybody knows all the cops."

She said she didn't respond at voir dire because she never talked to him.

Harmon-Schamberger asked if she would reply that she knew him if she could answer the question again.

Hyre said, "I believe that God was telling that I should have and disobeyed."

She said, "I figure I probably would have said something just to keep my heart in the right place."

She said she didn't know Frame. "I've never ever to this day spoke to her," she said.

She said her brother-in-law worked for Slaughter. "Other than that I do not know her," she said.

Facemire found her contact with Dellinger minimal and her connections to witnesses tenuous.

"In a rural area with a small population, it is not unusual to have jurors with varying connections with parties and witnesses," he wrote.

The Justices, however, held that "bias must be presumed."

They wrote, "Juror Hyre's reticence during voir dire foreclosed any challenge for cause or use of a peremptory challenge by appellant."

She knew Dellinger well enough to offer spiritual counsel, they wrote.

They wrote that a national committee has endorsed model instructions for federal courts to deter jurors from using technology improperly.

They wrote that the National Law Journal printed the instructions with an article in its Feb. 9 issue.

Robert Goldberg, of Attorney General Darrell McGraw's office, represented the state.