IN THE SUPREME COURT OF A PPEALS OF WEST VIRGINIA
January 2018 Term

No. 16-0775

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v. FRANK GENE THOMPSON,

Defendant Below, Petitioner 

### FILED April 5, 2018

released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Appeal from the Circuit Court of Boone County

The Honorable William S. Thompson, Judge Civil Action No. 15-F-95
REVERSED AND REMANDED
Submitted: February 7, 2018 Filed: April 5, 2018
Dana F. Eddy, Esq. Patrick Morrisey, Esq. Public Defender Services Attorney General Charleston, West Virginia Gordon L. Mowen, II, Esq. Counsel for Petitioner Assistant Attorney General Charleston, West Virginia Counsel for Respondent

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.SYLLABUS BY THE COURT

1. “In reviewing challenges to find ings and rulings made by a circuit court, we apply a two-pronged deferential sta ndard 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, a nd we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 3, State v. Vance , 207 W.Va. 640, 535 S.E.2d 484 (2000).

2. “‘“The right to a trial by an impa rtial, objective jury in a criminal case is a fundamental right guaranteed by th e Sixth and Fourteenth Amendments of the United States Constitution and Ar ticle III, Section 14 of the West Virginia Constitution.” Syllabus point 4, [in part,] State v. Peacher , 167 W.Va. 540, 280 S.E.2d 559 (1981).’ Syllabus point 4, in part, State v. Derr , 192 W.Va. 165, 451 S.E.2d 731 (1994).” Syl. Pt. 2, State v. Varner , 212 W.Va. 532, 5 75 S.E.2d 142 (2002).

3. “The trial judge in a criminal tria l must consistently be aware that he occupies a unique position in the minds of the jurors and is cap able, because of his position, of unduly in fluencing jurors in the discharge of their duty as triers of the facts. This Court has consistently required trial judg es not to intimate an opinion on any fact in issue in any manner. In criminal cases, we have frequently held that conduct of the trial judge which indicates his opinion on any ma terial matter will result in a guilty verdict

ibeing set aside and a new trial awarded.” Syl. Pt. 4, State v. Wotring , 167 W.Va. 104, 279 S.E.2d 182 (1981).

4. “In the trial of a criminal offe nse, the presumption of innocence existing in favor of a defendant continues th rough every stage of the trial until a finding of guilty by the jury.” Syl. Pt. 11, State v. Pietranton , 140 W.Va. 444, 84 S.E.2d 774 (1954).

5. “A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or ci rcumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can fi nd guilt beyond a reasona ble doubt. Credibility determinations are for a jury an d not an appellate court. Fina lly, a jury verd ict should be set aside only when the record contains no evidence, regard less of how it is weighed, from which the jury could find guilt beyond a reasonable doubt . To the extent that our prior cases are inconsistent, they ar e expressly overruled.” Syl. Pt. 3, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995).

iiWORKMAN, Chief Justice:
A jury found Petitioner Fra nk Thompson guilty of fo ur felony counts of driving under the influence (“DUI”) causing d eath, two felony counts of child neglect resulting in death, and three misdemeanors. On appeal, Petitioner asse rts the trial court’s comments deprived him of his constitutional right to a fair trial by an impartial jury. He also challenges the sufficiency of the evidence on the felony convictions.

After review, we find that the trial c ourt’s comments at the beginning of the jury selection process tainted Petitioner’s pr esumption of innocence and deprived him of a fair trial. We therefore reverse Petitione r’s convictions. Because the evidence of Petitioner’s guilt was otherwise sufficient, we reverse and remand for a new trial.

I. BACKGROUND In the early morning hours of Septem ber 19, 2014, Petitioner was driving a vehicle on US 119 in Boone County, West Virginia. F our passengers were with Petitioner: his girlfriend, Betty Holstein, th eir one-year-old-son, Nathaniel Thompson, Ms. Holstein’s five-year-old -daughter, Alyssa Bowman, a nd Ms. Holstein’s friend, Rebecca Bias. Petitioner drove the vehicle off th e side of the road and it crashed against an embankment about 600 feet away, landed on the passenger si de, and caught fire. All of the passengers were killed.

1Following an investigation, Pe titioner—who tested positive for methamphetamine following the accident—was arrested and indicted on multiple charges. The case proceeded to trial in Ma rch 2016. The jury fo und Petitioner guilty of six felonies (four counts of DUI causing deat h and two counts of child neglect resulting in death) and three misdemeanors (reckless driving, driving on a suspended license, second offense, and failure to maintain lane of travel).

The State instituted recidivist proceedings. 1 Thereafter, the trial court sentenced Petitione r in July 2016. 2

We detail the relevant facts more sp ecifically below as they relate to Petitioner’s two assignments of error.

1 See W.Va. Code § 61-11-18(c) (2014) (“When it is determined, as provided in section nineteen of this article, that such pe rson shall have been twice before convicted in the United States of a crime punishable by co nfinement in a penitentiary, the person shall be sentenced to be confined in the state correctional fac ility for life.”). A jury found Petitioner had twice before been convicted of felony offenses (breaking and entering, and intent to distribute a controlled substance).

2 Due to his recidivist status, Petitioner was sentenced to life with mercy for his conviction of DUI causing death, an indeterm inate term of not less than two nor more than ten years’ incarceration upon his convic tion for the three additional counts of DUI causing death, and a period of not less than three nor mo re than fifteen years’ incarceration on each of two coun ts of child neglect resulting in death. He was ordered to pay the minimum fines for his convictions of driving on a suspended license and reckless driving, and failure to maintain lane of tr avel. The trial court also ordered Petitioner to serve a period of fifty years of extended supe rvised release and register as a convicted child abuser.
2II. STANDARD OF REVIEW The alleged errors raised by Petitioner are subject to particular standards of review, which we set forth in connection with our discussion of them. Generally, however, [i]n 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 co nclusion as to the existence of reversible error under an a buse 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. Syl. Pt. 3, State v. Vance , 207 W.Va. 640, 535 S.E.2d 484 (2000).

III. DISCUSSION
A. Trial Court’s Comments Irreparably Tainted the Jury Pool On the morning trial was scheduled to begin Petitioner indicated that he wished to plead guilty pursuant to a plea agreement offered by the State. As a result, the trial court released the jury pool for the day, telling them, in relevant part: Ladies and gentlemen of the jury, you all were called here today on the case of Stat e of West Virginia vs. Frank Thompson. Case number 15-F-95. It was a case involving four counts of DUI causing deat h, two counts of child abuse causing death. About five minutes ago th e defendant reached an agreement with the State and is going to enter a plea here later this morning.

3I want to say that even though you all didn’t really do anything, you really did a lot. The fact that he knew there was 56 people out here wa iting to make a decision on his guilt or innocence I’m sure weighe d heavily on his mind and ultimately caused him to decide to accept the plea agreement that the State had offered. I can’t really tell you much more about the case but he probably did everyone a favor by doing the plea. It was a pretty tragic case.

. . . . I thank you for your service. Don’t think you didn’t do anything. There was not a plea agreement this morning at 9:00 a.m. The fact that he kn ew that there was 56 people out here waiting to decide his fate I think is what caused him to change his mind and decide to accept the agreement. Like I said, I think he did—I think he did the jury pool a favor, because like I said it wa s a pretty tragic case with some children involved. Good luck. Thank y ou all very much.
Thereafter, the parties informed the tria l court that Petitioner had decided to withdraw his guilty plea and go to trial. The trial court then placed the following on the record: “I did release the jury, I gave them the name of the defendant and to ld them what the charges were. I did not say anything else. I don’t know if I did anything to prejudice the jury, but I would have said that anyway at the start of trial.”

The following day, the trial court conv ened the same jury pool. Petitioner moved for a mistrial and stated the trial cour t’s comments irreparabl y tainted that panel.

4The trial court denied the motion. Instead, in hopes of minimizing the obvious problem, the trial court informed the ju ry pool what occurred and ga ve a curative instruction: The matter was set for trial yesterday, and the jury panel was summonsed to be here. At the start of the trial the parties announced to the Cour t they had reached a plea agreement. Pursuant to this an nouncement, the Court released the jury panel. The plea agre ement ultimately did not take place, which brings us back here today. The fact that there were plea negotiations, a tentative plea agreement that did not take place, and anything this Court might have stated upon re leasing the jury shall not be considered at any time by this jury panel, nor jury as evidence, and shall not be view ed in reaching any decisions on this matter.
The parties agree that none of the jurors eventually seated gave any indication that he or she was biased or prejudiced against Petitioner. Nevertheless, Petitioner asserts the trial court’s comments to the jury pool irrevocably tainted the group and constituted a denial of his constitutional rights to fair trial by an impartial jury wh en the petit jury was selected from the biased jury pool. We agree.

A criminal defendant’s right to be tr ied by an impartial judge and jury is sacrosanct, regardless of the evidence against him or her. See Tumey v. Ohio , 273 U.S. 510, 535 (1927). So basic to our jurisprudence is the right to a fair trial that it has been

5called “the most fundame ntal of all freedoms.” Estes v. Texas , 381 U.S. 532, 540 (1965). 3
“A fair trial in a fair tribuna l is a basic requirement of due process. . . . This is true, regardless of the heinousness of the crime char ged, the apparent guilt of the offender or the station in life which he occupies.” Turner v. Louisiana, 379 U.S. 466, 472 (1965) (quotation marks and citations omitted).

As this Court held in syllabus point two of State v. Varner , 212 W.Va. 532, 575 S.E.2d 142 (2002), “‘“[t]he right to a trial by an impartial, objective jury in a criminal case is a funda mental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Sectio n 14 of the West Virginia Constitution.” Syllabus poi nt 4, [in part,] State v. Peacher , 167 W.Va. 540, 280 S.E.2d 559 (1981).’ Syllabus point 4, in part, State v. Derr , 192 W.Va. 165, 451 S.E.2d 731 (1994).”
“And the question of whether a jury is impartial is dependent upon whether the jurors are free from bias or prejudice either for or against the accused.” State v. McClure , 184 W.Va. 418, 421, 400 S.E. 2d 853, 856 (1990) (citing State v. Pratt , 161 W.Va. 530, 244 S.E.2d 227 (1978), and State v. Hatfield , 48 W.Va. 561, 37 S.E. 626 (1900)).

Consistent with this bedrock rule of law, trial courts must jealously guard the fairness and integrity of the entire criminal tr ial process. This Court has cautioned that

3 “It is a right essential to the preser vation and enjoyment of all other rights, providing a necessary means of safeguarding personal lib erties against government oppression.” Neb. Ass’n v. Stuart , 427 U.S. 539, 586 (1976).
6[t]he trial judge in a criminal trial must consistently be aware that he occupies a uniqu e position in the minds of the jurors and is capable, because of his position, of unduly influencing jurors in the discharg e of their duty as triers of the facts. This Court has consisten tly required trial judges not to intimate an opinion on any fact in issue in any manner. In criminal cases, we have frequen tly held that conduct of the trial judge which indicates his opinion on any material matter will result in a guilty verdict be ing set aside and a new trial awarded.
Syl. Pt. 4, State v. Wotring , 167 W.Va. 104, 279 S.E.2d 182 (1981). 4

In this case, the trial court informed the jury pool that Petitioner decided to plead guilty and that he “proba bly did everyone a favor by doi ng the plea. It was a pretty tragic case.” It repeated this sentiment moments later when it stated: “I think he did the jury pool a favor, because lik e I said it was a pretty tragic case with some children involved.” Consequently, it is beyond serious debate that the trial court expressed its opinion on a material matter at trial. Essentially, th e trial court made clear its opinion on the material fact at trial—Petitioner’s guilt. The statements suggested that in view of the guilty plea, the trial court believed that Pe titioner committed the crimes charged and the

4 See, e.g., State v. Keaton , 215 W.Va. 376, 382, 5 99 S.E.2d 799, 805 (2004) (reversing conviction because trial court’s remarks amounted to it telling jury that because defendant was “‘pressing’ his constituti onal right to a twelve-person jury,” they would be inconvenienced); see also United States v. Bray , 546 F.2d 851, 859 (10 th Cir. 1976) (holding trial court committed plain e rror by setting defendant’s bail within jury’s presence and “admonishing the ma rshals to ‘lock him up’ if bail was not met, [because] the court effectively vitiated th e presumption of innocence.”); State v. Sidbury , 306 S.E.2d 844, 845 (N.C.Ct.App. 19 83) (declaring trial judges must be careful in what they say and do because jury looks to court for gu idance and picks up slightest intimation of opinion).
7plea agreement avoided an unnecessary trial. Obviously, when the trial court made these remarks it had no idea that Petitioner woul d ultimately reject th e plea offer and its remarks to the jury in this circumstance were not improper.

Petitioner relies on Blue v. State , 41 S.W.3d 129 (Tex.Crim.App. 2000), a case with disturbingly similar facts. In Blue , a trial judge disclosed to the venire that, to the judge’s chagrin, the defendant turned down a plea bargain. Id . at 130. The trial proceeded and the defendant was convicted. On appeal, the court reversed and properly reasoned that a juror who knows at the outset that the defe ndant “seriously considered entering into a plea agreement no longer begins with a presumption that the defendant is innocent.” Id . at 132. Further, a juror who hears the judge say that he would have preferred that the defendant plead guilty might assume that the judge knows something about the guilt of the defendant that the juror does not. Surely, no trial judge would want an innocent man to plead guilty, no matter how much delay and expense he might be causing.

Id . Accordingly, the court concluded that the comments of the trial judge, which imparted information to the veni re that vitiated the defendant’s presumption of in nocence, were a fundamental error of constitutional dimension and required reversal of his conviction. Id

.
The same cogent reasoning applies in the instant case. The trial court’s comments here effectively removed the pres umption of innocence prior to Petitioner’s trial. We note that at the time the trial c ourt made these comments, it was simply thanking 8members of the jury pool for their time and explaining why they were being released for the day. In this context, the remarks were completely appropriate. However, once Petitioner decided to reject the plea deal a nd proceed to trial, this jury pool was irrevocably tainted with the knowledge that Petitioner was willing to plead guilty in a case involving multiple casualties.

We therefore reject the State’s po sition that the pe rfunctory curative instruction cured the taint. To accept the State’s argument, we would essentially turn a critical constitutional right to a fair trial with an impartial jury into nothing but a hollow formality. Moreover, th e opportunity to explore juror bias during voir dire was not sufficient to overcome the insurmountable obs tacle that members of the jury pool knew Petitioner’s guilty plea had not materialized. 5 For a court to rule th at a prospective juror was qualified to serve simply because he cl aimed he could be fair ignores the common

sense reality of this situation. See generally State v. Jonas , 904 N.W.2d 566, 571 (Iowa 2017) (recognizing “once the genie of prejudice or bias is out of the bottle, it is a fool’s errand to put it back in through persistent coaxing.”). And courts have cautioned that judicial rehabilitation should not become a “stark little exercise.” State v. Saunders , 992 P.2d 951, 962 (Utah 1999). We are cognizant th at “[o]ne of the myths” of jury selection is that an answer to a “mag ic question” posed by the cour t results in juror rehabilitation

5 We note that this evidence would be inad missible at trial. Rule 410 of the West Virginia Rules of Evidence provides, in relevant part, that: “In a civil or criminal case, evidence of the following is not admissible ag ainst the defendant who made the plea or participated in the plea discussions: (1) a gu ilty plea that was later withdrawn[.]”
9sufficient to eliminate bias. Montgomery v. Commonwealth , 819 S.W.2d 713, 717 (Ky. 1991). 6

In so holding, we in no way denigrat e the importance of voir dire. Properly employed, it serves the essential purposes of en abling the court to select an impartial jury and assisting counsel in exercising perempto ry challenges. As the United States Supreme Court stressed in Dennis v. United States , 339 U.S. 162, 168 (1950) : “[T]he trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor.” But, it is nevertheless clear based on the facts before us that the trial court abused its discretion in this case considering its immediate recognition of the likelihood of a tain ted prospective juror pool.

The presumption of innocence is an elem entary tenet of our criminal justice system and enforcement of th is principle—its application to each and every criminal defendant—“lies at the found ation of the administrati on of our criminal law.” Coffin v.

6 United States District Court Judge Mark W. Bennett has observed: “As a [federal] district court judge for over fifteen years, I cannot help but notice that jurors are all too likely to give me the answers that th ey think I want, and they almost uniformly answer that they can ‘be fair.’” Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selecti on: The Problems of Judge-Dom inated Voir Dire, the Failed Promise of Batson, an d Proposed Solutions , 4 Harv. L. & Pol’y Rev. 149, 160 (2010).

10U.S. , 156 U.S. 432, 453 (1895). 7 The Supreme Court of the United States has observed that the “presumption of inno cence, although not articulat ed in the [United States] Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams , 425 U.S. 501, 503 (1976).

This Court has emphasized that “ under our law the presumption of innocence is an integral part of criminal due process and . . . such presumption is itself a constitutional guarantee embodied in Article III, Section 10 of the West Virginia Constitution.” State v. Boyd , 160 W.Va. 234, 240, 233 S.E.2d 710, 716 (1977); see Pinkerton v. Farr , 159 W.Va. 223, 229, 220 S.E.2d 682, 687 (1 975) (“The right to a presumption of innocence is so firmly embedded in our law, . . . that a violation of that right would result in such unfairness as to c onstitute a deprivation of one’s right to due process of law.”). We have also made clear th at “[i]n the trial of a criminal offense, the presumption of innocence exis ting in favor of a defendant continues through every stage of the trial until a finding of gui lty by the jury.” Syl. Pt. 11, State v. Pietranton , 140 W.Va. 444, 84 S.E.2d 774 (1954); accord Pullin v. State , 216 W.Va. 231, 235, 605 S.E.2d 803, 807 (2004).

7 “The Coffin Court traced the venerable hi story of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States.” Taylor v. Kentucky , 436 U.S. 478, 483 (1978).
11Consistent with this precedent, we find that the trial court’s comments resulted in a violation of Pe titioner’s right to a fair trial by an impartial jury. Consequently, the State cannot establish that the error was rendered harmless beyond a reasonable doubt by the curativ e instruction or voir dire. 8 For this reason, Petitioner’s convictions must be reversed.

Although we have granted Petitioner relie f on his first assignment of error, we also address his sufficiency-of-the-evidenc e claim in order to resolve the issue of whether the State may retry him. The general ru le is that the State may retry a defendant when reversal of the criminal conviction resu lts from trial error rath er than evidentiary insufficiency. 9

8 See Syl. Pt. 5, Boyd , 160 W.Va. at 234, 233 S.E.2d at 713 (“‘F ailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.’ Syllabus point 5, State ex rel. Grob v. Blair , [158] W.Va. [647], 214 S.E. 2d 330 (1975).”).

9 Nancy v. State , 553 S.E.2d 794, 795 (Ga. 2001); see also Greene v. Massey , 437 U.S. 19 (1978) (holding Doub le Jeopardy Clause prevents State from retrying defendant after conviction has been reversed by appellate court on ground that evidence introduced at prior trial was insufficient, as matter of law, to sustain jury’s verdict); Syl. Pt. 4, State v. Frazier , 162 W.Va. 602, 252 S.E.2d 39 (1979) (“The Double Jeopardy Clause of the Federal and this State’s Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”).
12B. Evidence was Sufficien t to Support Convictions Petitioner also contends there was insu fficient evidence to sustain his convictions for the felony o ffenses of DUI causing death and child neglect resulting in death. Petitioner concedes that he consumed methamphetamine prior to the accident. However, with regard to the DUI causing deat h convictions, he maintains the State failed to prove beyond a reasonable doubt that su ch consumption caused him to be under the influence of methamphetamine and that such influence was a contributing cause to the deaths. Likewise, with regard to the child neglect causing death convictions in the DUI context, he maintains the State failed to prove beyond a reasonable doubt that he neglected Nathaniel and Aly ssa by driving them while under the influence of methamphetamine and that such neglect caused their deaths. Petitioner reasons that drug use does not necessarily equate to impairment.

When considering sufficiency-of-evidence claims, this Court’s review is highly deferential to th e jury’s verdict. In syllabus point three of State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995), this Court held:
A criminal defendant challe nging the sufficiency of the evidence to support a convicti on takes on a heavy burden. An appellate court must review a ll the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit a ll inferences and credibility assessments that the jury migh t have drawn in favor of the prosecution. The evidence need no t be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Cred ibility determinations are for a jury and not an appellate c ourt. Finally, a jury verdict 13should be set asid e only when the re cord contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a re asonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.

Accord Syl. Pt. 13, State v. Blevins , 231 W.Va. 135, 7 44 S.E.2d 245 (2013).

Based upon our review, the eviden ce offered against Petitioner—when viewed in the light most favorable to the St ate, and when all inferences and credibility determinations are also viewed in the light most favorable to the State—was sufficient to sustain his respective convictions in this ca se beyond a reasonable doubt. Consequently, although there was extensive evidence suppor ting the convictions, the determination that the jury may have been biased by the tr ial court’s comments requires the remand for a new trial.

IV. CONCLUSION We hold that the trial court’s comme nts at the beginning of the jury selection process tainted Petitioner’s presump tion of innocence and c onstituted reversible error. Because the evidence at trial was sufficient to sustain the verdicts, we reverse the convictions and remand for a new trial.

Reversed and remanded.

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