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State of WV v. Hicks
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1996 Term ___________ No. 23257 ___________ STATE OF WEST VIRGINIA, Plaintiff Below, Appellee, v. MICHAEL D. HICKS, Defendant Below, Appellant _______________________________________________________ Appeal from the Circuit Court of Kanawha County Honorable Lyne Ranson, Judge Criminal Action No. 94-F-405 REVERSED AND REMANDED _______________________________________________________ Submitted: September 24, 1996 Filed: December 9, 1996 William C. Forbes Prosecuting Attorney Mary Beth Kershner Assistant Prosecuting Attorney Charleston, West Virginia Attorney for the Appellee John H. Boothroyd Assistant Public Defender Public Defender Office Charleston, West Virginia Attorney for the Appellant The Opinion of the Court was delivered PER CURIAM. JUDGE RECHT sitting by temporary assignment. CHIEF JUSTICE McHUGH and JUSTICE WORKMAN dissent and reserved the right to file dissenting opinions. SYLLABUS BY THE COURT "The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless." Syllabus point 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). Per Curiam:

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This is an appealSee footnote 1 by Michael D. Hicks from an order of the Circuit Court of Kanawha County sentencing him to life in the State penitentiary without a recommendation of mercy for first-degree murder with the use of a firearm. On appeal, he claims that the trial judge erred when she, as well as the court clerk, discussed certain matters ex parte, out of his presence, with members of the jury. He also claims that the court erred in admitting certain hearsay statements into evidence and in allowing the State to argue that he would not have it that bad in the penitentiary because of amenities provided to inmates. He argues that the testimony of the only two eyewitnesses to the crime charged was so contradictory on key points that the evidence was insufficient to support the conviction of murder in the first degree. Lastly, he claims that the trial court erred by summarily denying his request for return of money confiscated from him upon his arrest. After reviewing the issues raised and the evidence presented, this Court believes that the trial court erred in allowing or participating in ex parte discussions with the jury out of the defendant's presence, and this Court reverses on that ground. The Court also believes that certain of the other rulings by the trial court were erroneous. On September 11, 1994, a male body was found along the Coal River in St. Albans, West Virginia. An autopsy showed that the victim had been shot in the back of the head and had been strangled. The victim was subsequently identified as being Terrence Spencer, a drug dealer from Detroit, Michigan. He had last been seen alive with a female named Terri on September 9, 1994. Following the discovery of the body, the investigating officers received two phone calls. In one, an individual named Otilia Lynch stated that information from an unidentified source indicated to her that bloody clothing and bloody articles relating to the crime were located in a dumpster in the area of New Amandaville Court in Kanawha County. In another call, an anonymous person stated, "[t]he person you are looking for in the murder is Michael D. and his girlfriend Terri." In investigating the case, the police learned that one Christine Claytor, who would not identify her informant, had received a phone call about clothing being in a dumpster. Additionally, one of the investigating officers, Detective West, was told by a "guy on the street" that "[t]he Terri you are probably looking for is Glen Cain's niece. Glen Cain lives in the trailer up here at 31A Alice Street, and that's where we think these guys were shooting the gun at." At a dumpster in or near New Amandaville Court, the police found bloody bedspreads, towels, and clothes. They subsequently learned that these articles came from the trailer where Terri Bannister lived and where the defendant had stayed on and off. They then arrested Terri Bannister and the defendant. After being arrested, Terri Bannister gave a statement indicating that the defendant had killed Terrence Spencer and that she had helped the defendant clean up and dispose of the body. Terri Bannister also suggested that one Carli Campbell could support her version of the events. Terri Bannister later agreed to testify against the defendant in exchange for the State allowing her to plead guilty to a misdemeanor and the State's dropping several traffic violation charges against her. The defendant was tried in May, 1995, and during the trial Terri Bannister testified that the defendant, Michael Hicks, had lived with her on and off for at least a year before September, 1994. As background to her testimony regarding the murder, she testified that on the morning of September 9, 1994, she had given Terrence Spencer, the victim, with whom she was acquainted, $30.00 for cocaine. When he had failed to produce cocaine, she became very angry and upset with him, and a short time thereafter she complained to her friend, Carli Campbell, that she had been "beat for money." The defendant, Michael Hicks, happened by and overheard a part of what was being said, and wanted to know what was wrong. Ms. Bannister explained what had happened. Sometime later, Ms. Bannister and Carli Campbell located Terrence Spencer and persuaded him to go to Ms. Bannister's house. There, Terrence Spencer sat down at a table. While they were there, the defendant, Michael Hicks, approached Terrence Spencer from behind and shot him in the back of the head. As described by Terri Bannister, "[the defendant] came out of the bathroom, and he shot Terrence in the back of the head." Terri Bannister and Carli Campbell both jumped up at that point and, according to Ms. Bannister, the defendant began strangling Terrence Spencer with a belt. The belt broke, and the defendant asked Terri Bannister to get another belt. Later, the defendant placed a garbage bag over Terrence Spencer's head, apparently to suffocate him, because he was still alive and shaking. When Terri Bannister had produced another belt, the defendant proceeded to strangle Terrence Spencer further until he stopped shaking and stopped breathing.

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The testimony further suggests that after Terrence Spencer died, the parties used sheets and towels to wipe blood up off the floor. The defendant also wrapped the body up, placed it over his shoulder, and hid it in some bushes at the side of the house. He then mowed the lawn until Ms. Bannister arranged to borrow a car from a friend named Kelly Dorcas. At that time, the defendant and Ms. Bannister took the body to the Coal River site where it was later found. They dumped the bloody clothes and the towels and sheets that had been used to clean up the mess in the dumpster at New Amandaville Court, where they were later found. The State also called as a witness Carli Campbell, who verified that she was in the room at the time of the shooting. She also verified that the defendant shot Terrence Spencer. Her testimony as to the exact details of what subsequently happened differed in some details from that of Terri Bannister. In addition to adducing the testimony of Terri Bannister and Carli Campbell, the State introduced testimony relating to phone calls and reports which the police received in the course of the investigation. In bringing this evidence forth, the State took the position that it was not being introduced for the purpose of showing the truth of the matters asserted, but for the purpose of demonstrating why the State's investigation focused on the defendant and on Terri Bannister. In the course of the trial, it appears that spectators in the courtroom made remarks, overheard by members of the jury, relating to the legal effect of the phone calls and/or reports. This came to the attention of the trial judge, who promptly stated to the prosecuting attorney and defense counsel at a time when the defendant was apparently present: THE COURT: I think we may need to put something on the record about the juror. I need to put something on the record. Any time I get a contact from the jury, I want to let you all know this, and we'll take precautions to make sure that it doesn't happen. I understand that a couple of -- we're not exactly sure who -- a couple of the folks, the spectators, who were in the courtroom were making some comments in the presence of two -- perhaps four -- of the jurors about circumstantial evidence being of -- and I'm paraphrasing -- being of little value as well as the fact that anybody could call the police, that really didn't mean anything, saying this deliberately so that the jurors would hear. I'm going to ask Mr. Warner and Mr. Jones [the attorneys in the case] to instruct all people who are spectators basically here -- not at your request, but certainly spectators -- to ensure that they do not say anything in the presence of the jurors. I will speak to the two jurors in the morning who have reported this to the clerk and find out if it in any way influences what -- their decision or influences the case in any way. We want to make sure, too, that no one goes out until the jury has gone to the snack bar or to lunch or left for the day. So Larry, if you'll help me make sure that nobody leaves the courtroom until the jurors have made it to the elevator. Okay. MR. WARNER [attorney for the defendant]: Your Honor, just to clarify, did the jurors come forward with this information? THE COURT: Yes. MR. WARNER: Or did someone overhear it? THE COURT: No, the jurors came forward. Counsel for the defendant did not then object to what was transpiring. Although the judge indicated that she would speak to the jury the next morning, it appears that she did not do so. Instead, at a time which is unclear from the record, she, apparently without the knowledge of the attorneys or the defendant, sent the court's clerk to speak to the jury. This the clerk apparently did, out of the presence of the defendant, the attorneys, and the court, for on a later day the matter was raised again, again apparently in the presence of the defendant and the attorneys: MR. JONES [prosecutor]: Your Honor, the matter that you had discussed with us, I think, on Monday about jurors overhearing some information, did you happen to talk to those jurors?

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THE COURT: Yes, Jennifer [the clerk] did. Jennifer, you spoke with Mr. Douglas [a juror]? THE CLERK: Uh-huh. THE COURT: I thought I reported that. MR. WARNER: We discussed it. MR. JONES: Yeah, but you were going to talk to them individually. THE COURT: Oh, no, I didn't talk to them individually. Jennifer talked to Mr. Douglas. MR. JONES: Is the Court going to inquire? THE COURT: Let me see counsel at the bench and Mr. Hicks. *** THE COURT: What else did you want to say? MR. JONES [prosecutor]: Judge, I'd just like to have some more information about what the jurors were told, if it had any impact on -- has any influence been on this case about the statements that were made or overheard by them. I'd like to know who they are, who they identify as those people who were talking out loud in their presence. Because the State didn't have anybody, as I'm aware of, sitting on our side of the -- any witnesses from the State that day here. I would like to have them identify who was making those statements. THE COURT: It was Mr. Douglas, as far as I know. Was there anyone else? THE CLERK: I think there was a total of four. Two heard them but realized, "We shouldn't be listening to what they are saying" and totally blocked them out. The other two that were there didn't even have a clue, didn't even register, from what I was told. THE COURT: I'm going to wait until the end of the day. I'm pondering another idea as well, so we'll wait until the end of the day to talk -MR. WARNER [defense attorney]: Just for the record, I personally told one person to watch for that, don't let that happen. I know that Andrea [Andrea McCauley, defense attorney] as well talked to people -MS. McCAULEY [defense attorney]: I spoke to the defendant's family that they not do anything inappropriate or they would be ejected from the courtroom. I think they were very clear on that. I explained to them not to speak in front of anyone, not witnesses or jurors. I think that they were clear on that. I made myself quite clear. The record does not show that the defendant or defense counsel objected during this sequence of events. Among the assignments of error in this case is the claim that the trial court erred when its court clerk discussed ex parte with jurors about overheard spectator comments that the anonymous calls to the police could not be trusted. The defendant claims that this error was prejudicial and that because of it he should be granted a new trial. We agree. In syllabus point 6 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), this Court stated, "[t]he defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding . . . ." See also State ex rel. Redman v. Hedrick, 185 W.Va. 709, 408 S.E.2d 659 (1991). As explained in State ex rel. Redman v. Hedrick, this rule has foundation not only in the West Virginia Constitution, but also in W.Va. Code

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