STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent October 17, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-1206 (Fayette County 13-F-69) OF WEST VIRGINIA 

David W. Pitts,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner David W. Pitts, by counsel Jason D. Parmer, appeals the “Sentencing and 

Commitment Order” entered by Circuit Court of Fayette County on October 13, 2013, following 

petitioner’s conviction of delivery of cocaine. Respondent State of West Virginia, by counsel 

Christopher S. Dodrill, filed a response. Petitioner filed a reply. Petitioner’s appeal centers on a 

mid-trial, ex parte, recorded, conversation between the judge and a juror, during which the juror 

informed the judge that her former boyfriend had mentioned the name of one of the witnesses 

and possibly the petitioner while they were dating. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Facts 

Following a jury trial in August of 2013, petitioner was found guilty of one count of 

delivery of cocaine, a Schedule II narcotic controlled substance. The circuit court sentenced 

petitioner to an indeterminate term of two to thirty years in prison pursuant to West Virginia 

Code § 60A-4-408. As part of its case against petitioner, the State relied on a twenty-fiveminute-long audiovisual recording that showed petitioner delivering cocaine to an informant, 

Michael Mayfield, in exchange for one hundred dollars. 

Petitioner’s appeal to this Court centers on a conversation that occurred between one of 

the jurors, Meredith Thomas, and the trial judge after the jury viewed the above-mentioned video 

during the morning of the trial. At some point in the video, informant Mayfield referred to a 

person as “Black Dave.”1 When the trial broke for lunch, Juror Thomas asked to speak privately 

1 Petitioner’s brief to this Court states that petitioner is African-American. 

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with the judge, but did not specify the reason. The judge informed the parties of Juror Thomas’s 

request and the following exchange occurred: 

THE COURT: Well, I don't know what's going on, but Juror Thomas, as 

she was exiting the jury box just now, stopped and inquired of the Court if she 

could talk to me in private about this case. I don’t know what that means. 

[To defense counsel] Mr. Adkins, she wants to talk to me about - certainly, 

whatever she tells me, I'll come back in and report it to the court. Or if you tell me 

not to talk to her, I’ll tell her to go on her way. 

MR. ADKINS: It comes up from time to time. I think - if she’s got 

something burning, I think everybody needs to hear it. We had this happen: I did 

not recognize that person during my jury selection, and it turns out the 

Defendant's sister and mother are acquaintances of mine, so ­

THE COURT: WellMR. PARSONS [prosecuting attorney]: Your Honor, I think that you have 

to talk to her. If nothing else, if there’s some sort of mortal threat here, at least we 

can get half of our day back. But I think, to protect you and the process here, it 

might be advisable to have the court reporter document what’s discussed. That’s 

just my thought. 

THE COURT: All right. Well, I’ll speak with her and when we reconvene 

at 1:15, I’ll advise - well, I don’t know what she’s going to say. Let’s go in the 

library. Bring Ms. Thomas in. Just everybody remain seated. We’ll be right back. 

The judge then met with Juror Thomas in his library with the court reporter present. The 

following is the entirety of their conversation: 

THE COURT: Identify your name for the record. 

JUROR THOMAS: Meredith Thomas. 

THE COURT: All right. And you indicated as you were going out of the 

jury box that you wanted to speak to me in private. So I’m speaking with you 

without the lawyers and everybody else present. Ma’am, what is it that you 

wanted to inform me of? 

JUROR THOMAS: Well, I didn’t realize it until we were watching the 

video that I dated a guy a couple years ago that worked with both Mike Mayfield 

and Dave, the Defendant. 

THE COURT: Okay. 

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JUROR THOMAS: And I didn’t realize - because he referred to him as 

Black Dave. 

THE COURT: Okay. 

JUROR THOMAS: And I didn't realize it until, you know, we were 

watching the video and I heard that name, and I was like - I wanted to let you 

know instead of just k [sic] to myself. 

THE COURT: I appreciate it. You did exactly the right thing. So as you 

were watching the video, you realized that you used to date a person that is 

acquainted with Mayfield and the Defendant? 

JUROR THOMAS: Yeah. His name’s Cody King.
 

THE COURT: All right. And did that person tell you anything about this
 

case or anything like that? 

JUROR THOMAS: Not about this case, no. 

THE COURT: Okay. All right. The fact that you now, I guess -I guess - I 

guess when he was referred to as “Black Dave” that triggered in your mind that ­

JUROR THOMAS: Yeah. 

THE COURT: -that you ­

JUROR THOMAS: I never met him, but he - Cody had referred to him 

several times. 

THE COURT: Okay. As Black Dave? 

JUROR THOMAS: Yeah. 

THE COURT: Okay. All right. I think I’ll discuss this with counsel. I 

don’t see anything in the fact that - maybe we ought to ask about nicknames of 

defendants before, but you did exactly the right thing. If there’s any question at all 

about what you should divulge or not, you always ought to err on the side of 

caution. 

JUROR THOMAS: Thank you, sir. 

The judge then returned to the courtroom and advised the parties of the content of his 

conversation with Juror Thomas. The following exchange occurred: 

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THE COURT: All right. We’re back on the record now. The Court has 

conferred with the juror, Meredith Thomas, and she wanted to divulge to the 

Court that during the during the [sic] playing of the video, she heard -- she heard a 

person referred to as “Black Dave.” 

That triggered in her mind a recollection that a. Fellow [sic] that she 

formerly dated, or had dated in the past evidently worked at the same place that 

Mayfield and the defendant worked at and had heard her boyfriend, or 

acquaintance, refer to a co-worker as “Black Dave.” So when she heard that, that 

triggered in her mind a recollection that she was somewhat acquainted with these 

folks. 

I inquired of her if this boyfriend had ever mentioned anything about this 

case or anything that in any way bias or prejudice [sic] her in this matter, and she 

indicated no. She just felt like she needed to bring that to the Court’s attention, 

that she had heard the nickname of the Defendant, “Black Dave,” if that’s what 

his nickname is, or alias or whatever; that she was acquainted with that phrase, 

and I told her that she did exactly the right thing. What does the State say? 

MR. PARSONS: If she has satisfied you that that potentially familiar -- if 

that doesn’t prejudice her for or against the State or for or against the defendant, I 

see no reason to call her qualification into question, Judge. It seems that we 

should just plow forward. 

THE COURT: Mr. Adkins? 

MR. ADKINS: Did she, in your discussion with her, discuss what her 

boyfriend’s name was? It may have been Mr. -­

THE COURT: I believe she did. Some fellow named King, I believe. As I 

say, she indicated he used to work with or was acquainted with these folks. I think 

she indicated that he used work around them or work with them, had some 

connection with them. But like I say, she wasn't familiar with the Mayfield name 

or the defendant’s name. But when she heard that name “Black Dave,” that 

evidently struck a chord with her and she felt like she had a burning desire to 

make the Court aware of. And all of this was reported by the court reporter. 

Petitioner’s counsel requested and was permitted to question Juror Thomas further with 

respect to the issues she raised with the judge. Petitioner’s counsel inquired of Juror Thomas 

about the identity of her boyfriend from whom she heard the workplace stories about petitioner 

and Mayfield. He also asked if she knew petitioner, and she stated that she did not. Petitioner’s 

counsel did not expressly ask Juror Thomas whether she could continue to be fair and impartial, 

stating on appeal to this Court, that the judge’s assurances that he asked those questions were 

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sufficient.2 Nevertheless, following the additional inquiry of Juror Thomas, petitioner moved for 

a mistrial, and the court denied the motion. 

Petitioner moved to set aside the verdict and for a new trial alleging several grounds, 

including that Juror Thomas was biased. The circuit court denied petitioner’s motion, rejected his 

request for probation, and sentenced petitioner to two to thirty years in prison. This appeal 

followed. 

Discussion 

Petitioner raises three assignments of error on appeal. First, he argues that the judge’s 

conversation with Juror Thomas constituted supplemental voir dire and violated his right to be 

present for all critical stages of the trial. “A critical stage in the criminal proceeding is one where 

the defendant’s right to a fair trial will be affected.” State v. Boyd, 160 W.Va. 234, 246, 233 

S.E.2d 710, 719 (1977). Voir dire is a critical stage of a trial because it is the “primary means by 

which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or 

political prejudice[.]” State v. Miller, 197 W.Va. 588, 601, 476 S.E.2d 535, 548 (1996). 

Petitioner contends that once the judge asked Juror Thomas about her knowledge of the 

witnesses, his conversation with her became voir dire as it had the potential to prejudice the 

defendant.3 

Upon our review of the record, we disagree with petitioner that the judge’s conversation 

with Juror Thomas constituted a critical stage of the trial. At the time Juror Thomas approached 

the bench, all the judge knew was that she wanted to speak with him privately; he did not know 

why. The judge advised both parties of her request to meet with him privately and neither party 

objected. Once the conversation concluded, the judge advised the parties of the content of the 

conversation and permitted defense counsel to inquire further. Based on our review of the 

transcript of the conversation, we do not believe that the judge’s conversation with Juror Thomas 

was voir dire in the traditional pre-trial sense that is the basis of the authority cited in petitioner’s 

brief. 

Moreover, even if we were to conclude that the meeting with Juror Thomas was a critical 

stage in the proceeding, any error resulting from petitioner’s absence was harmless beyond a 

reasonable doubt. The United States Supreme Court has held that the defense has no 

constitutional right to be present at every interaction between a judge and juror, nor is there a 

2 During the initial pre-trial voir dire, prospective jurors were asked a series of standard 

questions related to whether they had (1) any prejudice or bias against any party, (2) any 

preconceived opinions about the case, and (3) any reason that would prevent a fair and impartial 

verdict. No prospective juror answered any of these questions in the affirmative. 

3 Petitioner also contends that he did not knowingly waive his right to be present during 

the judge’s questioning of Juror Thomas. The State notes that petitioner failed to object to the 

judge questioning Thomas ex parte, but agrees with petitioner that he did not knowingly waive 

the right to be present. Rather, the State argues that the judge’s meeting with Thomas was not a 

“critical stage” in the proceeding. 

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right to have the conversation recorded. See Rushen v. Spain, 464 U.S. 114 (1983). Here, the 

conversation was recorded, and if petitioner had concerns about Juror Thomas’s impartiality, he 

had the opportunity to inquire further. 

We address petitioner’s remaining two assignments of error in reverse order. In his third 

assignment of error, petitioner argues that he was denied a fair trial because the judge falsely 

stated that he had ensured Juror Thomas’s continued impartiality. Petitioner contends that the 

judge misrepresented the content of their conversation, and therefore, “threatened the integrity of 

the judicial process,” warranting a new trial. See Syl. Pt. 4, State v. Clark, 232 W.Va. 480, 752 

S.E.2d 907 (2013) (“It is the inherent authority of the Supreme Court of Appeals to protect the 

integrity of the Court and the judicial process, and to regulate the type of evidence that is 

admitted into judicial proceedings when the integrity of the criminal justice system is threatened 

by the improper or unlawful acts of the State.”) 

Contrary to petitioner’s argument, we do not believe that the judge’s representation of his 

conversation with Juror Thomas warrants a new trial. The judge summarized the conversation 

and relayed that he asked Juror Thomas if her boyfriend ever mentioned this case, and she 

indicated that he had not. “In determining whether a juror should be excused, our concern is 

whether the juror holds a particular belief or opinion that prevents or substantially impairs the 

performance of his or her duties as a juror in accordance with the instructions of the trial court 

and the jurors’ oath.” State v. Miller, 197 W.Va. 588, 605, 476 S.E.2d 535, 552 (1996). Even if 

the judge was mistaken about whether he expressly asked Juror Thomas whether her boyfriend’s 

statements biased her, the conversation was recorded, and the transcript fails to demonstrate that 

she was biased or prejudiced against petitioner. 

Petitioner’s second assignment of error is that he was denied a fair trial by an impartial 

jury, likewise, as a result of the judge’s misrepresentation of the conversation with Juror 

Thomas, which petitioner argues, prevented the parties from fully inquiring into her possible 

bias. The right to an impartial jury requires that “[p]rivate communications, possibly prejudicial, 

between jurors and third persons, witnesses, or the officer in charge, are absolutely forbidden, 

and invalidate the verdict, at least unless their harmlessness is made to appear.” Mattox v. United 

States, 146 U.S. 140, 150 (1892). Petitioner asserts that, to this day, no one knows whether Juror 

Thomas was impartial. However, the Constitution “does not require a new trial every time a juror 

has been placed in a potentially compromising situation . . . [because] it is virtually impossible to 

shield jurors from every contact or influence that might theoretically affect their vote.” Smith v. 

Phillips, 455 U.S. 209, 217 (1982). As we have stated above, the transcript of the conversation 

with Juror Thomas fails to reveal a bias on her part that warrants a new trial. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: October 17, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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