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Law School Case Brief

State v. Derr - 192 W. Va. 165, 451 S.E.2d 731 (1994)


A defendant cannot take advantage of new developments or facts on appeal that did not exist at the time the trial court originally denied a motion unless the defendant renews the objection after such information is disclosed to the trial court. If the objection is not renewed, the appellate court will consider only that information the trial court was aware of when it originally denied the motion. An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence.


Defendant was convicted of first degree murder, malicious assault, and two counts of first degree sexual assault in a highly publicized case. He appealed, asserting, inter alia, that the trial court erred 1) by denying his request for a change of venue, 2) by failing to individually voir dire jurors who showed potential bias and prejudice, 3) by permitting the prosecution to introduce two autopsy photographs of the deceased victim, and 4) by permitting Fred Zain to testify concerning DNA tests performed by another person.


Did the trial court abuse its discretion and conduct an inadequate voir dire?




The court held that individual voir dire was not necessary where defense counsel failed to renew his request to conduct individual voir dire after learning all the jurors were familiar with the case. The court added that where the party does not seek additional voir dire to demonstrate  possible bias or prejudice, there is no error in the court's refusal to strike such prospective jurors for cause.The trial court gave defense counsel an adequate opportunity to address his concern with regard to the media coverage, but counsel choose not to pursue it.

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