BUCKHANNON — The West Virginia Supreme Court of Appeals has upheld an Upshur County Circuit Court decision to deny a new trial to a man serving life in prison without parole.
Howard Clarence Jenner was found guilty of first-degree murder, attempted first-degree murder and malicious assault in April 2014 for the murder of his aunt, Beni Truax, and wounding of his uncle, Sherman Truax, in December 2012.
In August 2014, Jenner’s attorney, Harry Smith, moved for a new trial on the grounds of alleged juror misconduct. During the subsequent hearing, Jenner’s sister and mother testified that Sherman Truax and his son spoke with a woman they later learned was a juror, according to a copy of the opinion from the W.Va. Supreme Court of Appeals. Judge Kurt Hall denied a request to take testimony from the juror in question at the time.
Hall then found that Jenner had failed to present “clear and convincing evidence of any juror misconduct” and denied the motion for a new trial. Jenner was sentenced to life in prison without the possibility of parole for first-degree murder, three years to 15 years in prison for attempted murder and two to 10 years for malicious assault.
Smith then filed an appeal and the W.Va. Supreme Court of Appeals found that sufficient evidence existed to support Jenner’s conviction and found no merit to his claims of trial error, according to the opinion. However, the court conditionally affirmed Jenner’s conviction and remanded the case back to the circuit court level for an additional Remmer hearing. Remmer hearings are named after a U.S. Supreme Court decision in Remmer vs.
In April 2017, that Remmer hearing was held before Hall and the juror in question, Diane Crites, testified that she never spoke with Sherman Truax, his son or any other witness at the trial. The circuit court denied Jenner’s motion for a new trial but Jenner and his attorney appealed Hall’s decision.
In their decision, the Supreme Court of Appeals said that the only evidence presented at the Remmer hearing supported the circuit clerk’s earlier conclusion that Jenner failed to prove jury misconduct.
“Accordingly, we find no error in the circuit court’s denial of petitioner’s motion for a new trial,” the order stated.
Chief Justice Margaret L. Workman, Justice Robin Jean Davis, Justice Menis E. Ketchum and justice Elizabeth D. Walker concurred. The order states that Justice Allen H. Loughry is suspended and did not participate.
Smith did not return a phone call by press time.
Prosecuting attorney David Godwin did not comment.