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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2000 Term

FILED
July 14, 2000
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
__________ No. 27382 __________ STATE OF WEST VIRGINIA, Plaintiff Below, Appellee v. MICHAEL VANCE, Defendant Below, Appellant
July 14, 2000
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

__________________________________________________________________ Appeal from the Circuit Court of Mingo County Honorable Michael Thornsbury, Judge Civil Action No. S98-F-54 AFFIRMED __________________________________________________________________ Submitted: June 13, 2000 Filed: July 14, 2000 Joan G. Hill, Esq. Crandall, Pyles, Haviland & Turner Logan, West Virginia Attorney for the Appellant Darrell V. McGraw, Jr., Esq. Attorney General Leah Perry Macia, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for the Appellee

JUSTICE SCOTT delivered the Opinion of the Court. CHIEF JUSTICE MAYNARD, deeming himself disqualified, did not participate in the decision of the Court. SYLLABUS BY THE COURT

1.

"`Although the ruling of a trial court in granting or denying a motion for a new trial

is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.' Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976)." Syl. Pt. 1, Andrews v. Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). 2. "A trial judge's decision to award a new trial is not subject to appellate review

unless the trial judge abuses his or her discretion." Syl. Pt. 3, in part, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied sub nom. W.R.Grace & Co. v. West Virginia, 515 U.S. 1160 (1995). 3. 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. 4. "`Under the provisions of W.Va.Code, 52-2-12, an indictment will not be quashed

or abated on the ground that one member of the grand jury is disqualified.' Syl. pt. 4, State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975)." Syl. Pt. 10, State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995). 5. "The existence of a family relationship between a defense counsel and the crime

victim must be disclosed to the accused at the earliest opportunity, so that the accused can make an

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intelligent decision whether to waive his right to assistance of counsel free from potential conflict, or to demand or retain different counsel." Syl. Pt. 3, State v. Reedy, 177 W.Va. 406, 352 S.E.2d 158 (1986). 6. A familial relationship more distant than the third degree of relationship shared by

defense counsel and the victim of a crime is insufficient to present a conflict of interest so as to disqualify defense counsel from representing the accused.

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Scott, Justice:

The defendant, Michael Vance, was convicted of unlawful wounding by jury trial on November 18, 1998, in the Circuit Court of Mingo County, West Virginia. He contends the circuit court erred in failing to grant him a new trial based on grand juror disqualification and a familial relationship which exists between defense counsel at trial and the victim. We believe the circuit court committed no error.

I. FACTS

The facts of this case are not in dispute. During the late evening hours of June 30, 1997, at Belle's grocery store in Lenore, West Virginia, the defendant attacked and beat James Deskins with a pool cue rendering him unconscious. The reason for the attack is not clear, but, the victim was seriously injured. He was transported by ambulance to Williamson Memorial Hospital in Williamson, West Virginia, where he was stabilized. The victim was then taken by helicopter to Cabell Huntington Hospital in Huntington, West Virginia, where he underwent brain surgery. At trial, Dr.Maurice Jerome Day, Jr., who performed the surgery, testified by video deposition that the victim "had an obvious skull fracture and a couple of cuts around the right facial area." Upon closer examination, Dr. Day determined a blood clot had formed between the victim's skull and brain and he suffered from severe fractures around his eye socket and cheekbone on the right side of his head. The surgery could not save the victim's vision. He is blind in the right eye.
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The defendant was arrested on July 1, 1997. After encountering difficulties in impaneling a grand jury, the defendant was finally indicted in September 1998 for malicious wounding. Michael Magann was appointed as counsel to represent the defendant. Defense counsel argued pretrial that the charge against the defendant should be dismissed because of irregularities involving grand juror Cathy Vance. The court denied the motion.

The case proceeded to trial. On the morning jury selection was to begin, Mr. Magann learned, through information regarding a threat that was made on the defendant's life, that he shares a distant adoptive familial relationship with the victim. This relationship exists through Mr. Magann's adopted grandmother. He learned that his grandmother's cousin is the victim's grandfather. Mr. Magann states that he informed the defendant of the relationship; the defendant states that Mr. Magann did not disclose the relationship prior to trial. Nonetheless, Mr. Magann represented the defendant through trial and sentencing. On November 18, 1998, the defendant was convicted of unlawful wounding and on December 14, 1998, he was sentenced to a period of not less than one nor more than five years in the West Virginia Penitentiary.

On December 29, 1998, the defendant filed a pro se motion requesting new counsel. He supported the motion by alleging his trial counsel was closely related to the victim. The circuit court held a hearing on the motion on January 11, 1999. The court entered an order the following day appointing present counsel to represent the defendant in post-trial motions. A motion for a new trial was filed assigning as errors the qualifications of the grand jury and the relationship of trial counsel to the victim. By order
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entered on July 21, 1999, the circuit court denied the motion. It is from this order that the defendant appeals.

On appeal, the defendant contends the circuit court erred by denying his motion for a new trial for two reasons. First, he alleges the grand jury was improperly constituted and/or a member of the grand jury should have been disqualified. He also contends he was denied a fair trial because his defense counsel at trial is related to the victim.

II. STANDARD OF REVIEW

This Court previously held that: "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, Sanders v. GeorgiaPacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Syl. Pt. 1, Andrews v. Reynolds Memorial Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). We have also previously held in part of syllabus point three of In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied sub nom. W.R. Grace & Co. v. West Virginia, 515 U.S. 1160 (1995), that "[a] trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." We later clarified the holding from Asbestos Litigation in Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459
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S.E.2d 374 (1995), however, the clarifying language to the holding was never specifically adopted as a holding by this Court. Accordingly, we now hold that 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. Id. at 104, 459 S.E.2d at 381.

III. DISCUSSION

The defendant in this case contends the indictment against him must be dismissed because one of the grand jurors stated that she knew the victim. This contention is based on the following dialogue which took place during grand jury proceedings between the prosecuting attorney and grand juror Cathy Vance: MR. SMITH: Does anyone else know these folks? JUROR CATHY VANCE: I know James Deskins, but I wasn't there or anything like that but I do know him. MR. SMITH: Okay; What's your name, ma'am? JUROR CATHY VANCE: Cathy Vance.

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MR. SMITH: Ms. Vance, your knowledge of James Deskins, who is the victim in this presentation, would that make you biased one way for or against the State in it's [sic] presentation? JUROR CATHY VANCE: That, I don't know; Honestly, I may need to MR. SMITH: --Okay; Whatever you say GRAND JURY FOREMAN: You need to have 15 in here. MR. SMITH: The same thing happened the last time. JUROR CATHY VANCE: I know him, but, like I say, I wasn't there. MR. SMITH: Let's just clarify it for the record; Ms. Vance, you stated you feel a little uncomfortable. Could you give your reasoning? JUROR CATHY VANCE: I'm just uncomfortable. It's not that I would be against him or whatever--I'm not. I don't think I would do it just because I know him, but I'm just saying I do know him and that's all. MR. SMITH: Do you have any knowledge regarding this incident between him and Michael Vance? Have you heard anything about what happened? JUROR CATHY VANCE: Just hearsay or whatever--in the paper, whatever; MR. SMITH: Let's take a short recess. (Recess) MR. SMITH: All right. We're back on the record in State of West Virginia versus Michael Vance. Ms. Vance, could you state your full name? JUROR CATHY VANCE: Cathy Vance. MR. SMITH: I believe you made some disclosures on the record that you know the victim in this case, James Deskins, and you've heard some rumors about the allegations that took place here? JUROR CATHY VANCE: Yes. MR. SMITH: I thank you for those disclosures, and I need to ask you a question. Despite your knowledge of the victim and despite your knowledge of some rumors and circumstances that surrounded this incident, can you set that aside and make a decision here today--a fair and just decision--just solely on the evidence presented here in this presentation? JUROR CATHY VANCE: Yes. MR. SMITH: And you will make that decision without any prejudice or bias, solely on the evidence here today? JUROR CATHY VANCE: Yes.

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A similar issue was addressed in State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995). The defendant in Garrett was convicted of first degree murder without a recommendation of mercy. On appeal, he requested that the indictment be dismissed because a member of the grand jury was a witness at trial. Id. at 644, 466 S.E.2d at 495. This Court chose not to reach the issue of whether the grand juror was, in fact, disqualified by espousing the following reasoning: This Court has previously stated that "[t]he grand jury is an accusatory body, not a judicial body, and as such has the right and obligation to act on its own information, however acquired. W.Va.Code, 52-2-8. Its oath infers that it may be called upon to act in the case of enemies and friends. W.Va.Code, 52-2-5. 38 Am.Jur.2d Grand Jury,

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