The opinion
FILED
November 26, 2024
C. CASEY FORBES, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
v.) No. 22-0096 (Barbour County No. 19-F-55)
Randall Lewis Utt,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Randall Lewis Utt appeals the final sentencing order of the Circuit Court of
Barbour County entered on January 4, 2022, following his convictions for kidnapping, wanton
endangerment involving a firearm, and use or presentment of a firearm during the commission of
a felony.1 The petitioner claims he was denied an impartial jury based on public remarks of a
potential sworn juror who was struck for cause. Upon our review, finding no substantial question
of law and no prejudicial error, we determine that oral argument is unnecessary and that a
memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. App. P.
21(c).
The petitioner was accused of kidnapping, restraining with electrical tape, and sexually
assaulting a victim at gunpoint. He was indicted on one count of kidnapping, three counts of sexual
assault in the first degree, one count of wanton endangerment involving a firearm, and four counts
of use or presentment of a firearm during the commission of a felony. Relevant to this appeal, voir
dire for the jury began on September 15, 2020. During this process, juror E.W. was called by the
circuit court after another potential juror was excused. The following exchange then occurred:
THE COURT: . . . [E.W.], as you come up here, do you have any reason based on
the Court’s questions from before to feel that you would be biased one way or the
other in this case?
E.W.: Yeah, I do.
THE COURT: Why?
E.W.: Because I don’t believe in this. I believe if somebody is saying that they’re
convicted – I mean, saying that a sexual thing against them, I believe that they are
guilty.
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The petitioner is represented by counsel Gary A. Collias. The State is represented by
Attorney General Patrick Morrisey and Deputy Attorney General Andrea Nease Proper. We use
initials where necessary to protect the potential juror’s privacy. W. Va. R. App. Proc. 40(e).
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THE COURT: Regardless of what – I mean, just because somebody said that?
E.W.: No, I just heard it.
THE COURT: What do you mean you just heard it?
E.W.: I just heard people talking.
THE COURT: About this case?
E.W.: Yeah.
THE COURT: Who?
E.W.: Just people around town.
THE COURT: What people?
E.W.: I don’t know their names. I don’t.
THE COURT: Why wouldn’t you know their names? Why would this ever come
up?
E.W.: Because we was just – we was just talking.
THE COURT: Who?
E.W.: Because when I was little something almost happened to me.
THE COURT: Okay. How old are you [E.W.]?
E.W.: I’m 64 years old.
THE COURT: All right. But you don’t know who was saying something about this
case?
E.W. No. We was talking about it down in town. I was just telling somebody
something, we were just talking and when I was – like I said, when I was little it
almost happened to me.
THE COURT: [E.W.] won’t you come up here.
The circuit court then continued its discussion with E.W. at the bench, and she advised that
“[a]ll I know is people was talking around town, sorry. People was talking around town about him
and the guns and things and about sexually abusing everything else.” She could not recall any
specific details, including the names of people with whom she claimed to have a discussion. E.W.
stated she did not know if she could be impartial, and she was excused. The court found “that
[E.W.’s] testimony is incredible, that she is not believable, doesn’t want to set [sic] on the jury,
has made up a story to have that happen. She would not be appropriate to sit on the jury for those
reasons.” The petitioner’s counsel expressed concern that E.W.’s remarks tainted the jury. The
court construed that as an objection and overruled it, reiterating that her remarks were not
believable. At the end of jury selection, the court asked if there were any objections to qualifying
the jury panel, and the petitioner’s counsel noted his previous objection. The State responded that
the “short outburst” was not something that would taint the whole jury and was insufficient to
support not qualifying the jury. The court agreed and again noted that it “seemed to be obviously
[sic] from the get go that it probably patently wasn’t true.” The petitioner’s counsel noted that “a
curative instruction might do more harm than good,” and the court agreed. Following E.W.’s
dismissal, voir dire continued. The petitioner’s counsel asked multiple questions that probed the
potential jurors’ thoughts about the “me too” movement, the State’s burden of proof, and the
petitioner’s right to a presumption of innocence. After jury selection was complete, the court
instructed the empaneled jury to only consider the evidence presented at trial, that the petitioner
was presumed innocent, and that the burden of proof was on the State to prove guilt beyond a
reasonable doubt.
2
At the conclusion of the trial, the jury convicted the petitioner of one count of kidnapping,
one count of wanton endangerment involving a firearm, and one count of use or presentment of a
firearm during the commission of a felony. The jury acquitted the petitioner of the remaining
charges, including those related to the alleged sexual assault of the victim. The petitioner filed a
motion for judgment of acquittal or, in the alternative, for a new trial and argued, among other
things, that E.W.’s “outburst” in front of the prospective jurors denied his right to a fair trial by an
impartial jury. The petitioner described the “outburst” as emotional, involving screaming and
crying. The circuit court denied the motion, finding that the petitioner’s description of an
“outburst” was a mischaracterization, E.W. was not inflamed or shouting, and there was no
indication that the jurors were affected by E.W.’s remarks. The court further noted that the jury
acquitted the petitioner on several charges, including all the sexual offenses, which indicated that
they followed their oaths to be impartial, listened to the court’s instructions, and were not
compromised by E.W.’s statements.
The circuit court sentenced the petitioner to life imprisonment with mercy on his conviction
of one count of kidnapping. For his conviction of one count of wanton endangerment involving a
firearm, the court sentenced the petitioner to a term of five years of imprisonment, and for his
conviction of one count of use or presentment of a firearm during the commission of a felony, the
court sentenced him to a term of ten years of imprisonment, to run concurrently with each other
and consecutively to his sentence for kidnapping. The petitioner now appeals.
Before this Court, the petitioner argues that the circuit court erred when it overruled his
objection and denied his motion for a new trial because the jury heard disqualifying remarks from
a prospective juror that tainted the entire jury pool and resulted in a denial of his right to trial by a
fair and impartial jury.
In reviewing the qualifications of a jury to serve in a criminal case, we
follow a three-step process. Our review is plenary as to legal questions such as the
statutory qualifications for jurors; clearly erroneous as to whether the facts support
the grounds relied upon for disqualification; and an abuse of discretion as to the
reasonableness of the procedure employed and the ruling on disqualification by the
trial court.
Syl. Pt. 5, State v. Benny W., 242 W. Va. 618, 837 S.E.2d 679 (2019). In addition,
“[w]hen considering whether to excuse a prospective juror for cause, a trial
court is required to consider the totality of the circumstances and grounds relating
to a potential request to excuse a prospective juror, to make a full inquiry to examine
those circumstances and to resolve any doubts in favor of excusing the juror.”
Syllabus Point 3, O’Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (2002).
Syl. Pt. 5, State v. Newcomb, 223 W. Va. 843, 679 S.E.2d 675 (2009). The circuit court has “broad
discretion in determining whether to strike jurors for cause and we will reverse only where actual
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prejudice is demonstrated.” Benny W., 242 W. Va. at 628, 837 S.E.2d at 689 (quoting State v.
Miller, 197 W. Va. 588, 605, 476 S.E.2d 535, 552 (1996)).
Here, no one disputes that E.W. was properly excused by the circuit court and did not
participate in deliberations. Although the petitioner contends that E.W.’s remarks were prejudicial
because the rest of the jury pool heard that people around town were talking about his case and
everyone thought he was guilty and that tainted the entire jury pool, the petitioner did not request
individual voir dire about these comments, despite having the opportunity to do so.2 “[W]here a
defendant does not seek additional voir dire to demonstrate possible bias, prejudice, or
disqualification, there can be no error for the failure to strike prospective jurors for cause.” State
v. Miller, 197 W. Va. 588, 603, 476 S.E.2d 535, 550 (1996); see also Benny W., 242 W. Va. at
629, 837 S.E.2d at 690 (recognizing that “[a] party can not establish facts in a case by asserting
them in a brief. Those are nothing more than an attorney’s statements, which are not evidence.”
(quoting City of Helena v. Whittinghill, 219 P.3d 1244, 124 (Mont. 2009))). To the extent the
petitioner claims error or abuse of discretion based on a lack of individual voir dire related to
E.W.’s remarks, it was incumbent on him to request that voir dire or ask the questions himself. See
Miller, 197 W. Va. at 603, 476 S.E.2d at 550 (noting that it is “difficult to perceive” how the right
to adequate voir dire is denied when the defendant has the opportunity to ask or request additional
or supplementary voir dire questions and fails do so).
Here, the petitioner did ask related questions to the remainder of the jury pool about the
“me too” movement, which, he claimed, was premised on believing accusers and “effectively
requir[ing] the accused to prove their innocence.” No juror identified prejudice or bias on that
basis. In addition, the remaining voir dire gave many opportunities for individuals to identify
potential concerns for related bias or prejudice. When concerns were raised, the circuit court
conducted individual voir dire and, when warranted, excused other potential jurors. Although a
specific curative instruction was discussed, the petitioner stated that it “might do more harm than
good.” Regardless, the court’s instructions regarding the empaneled jurors’ oath of impartiality,
the State’s burden to prove its case beyond a reasonable doubt, and similar instructions also
indicate that the jury was adequately instructed to avoid prejudice in these circumstances. Finally,
the jury acquitted the petitioner of the charges related to sexual assault, the counts that E.W.’s
remarks arguably had the most potential to influence, and the petitioner admits that there was
sufficient evidence to support the jury’s verdict. Therefore, it does not appear that there was actual
prejudice to the petitioner. Accordingly, given the totality of these circumstances, we cannot
conclude that the circuit court abused its discretion in overruling the petitioner’s objection and
proceeding with the remaining jury pool after E.W.’s remarks. See generally Syl. Pt. 7, State v.
Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995) (“A trial court’s failure to remove a biased juror
from a jury panel does not violate a defendant’s right to a trial by an impartial jury as guaranteed
2
We have generally discussed similar types of issues in the context of a request for a
change of venue based on similar allegations of negative community sentiment. In those analogous
cases, we have explained that the relevant inquiry is not whether “the community remembered or
heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge
impartially the guilt or innocence of the defendant.” Syl. Pt. 3, in part, State v. Derr, 192 W. Va.
165, 451 S.E.2d 731 (1994).
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by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of
Article III of the West Virginia Constitution. In order to succeed in a claim that his or her
constitutional right to an impartial jury was violated, a defendant must affirmatively show
prejudice.”), overruled in part by Syl. Pt. 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448
(2013); State v. McKean, No. 14-0437, 2015 WL 1881021, at *3 (W. Va. Apr. 23, 2015)
(memorandum decision) (discussing Miller and other cases and finding no abuse of discretion in
the denial of a motion to dismiss the jury pool based on an improper comment); Nenigar v. Ballard,
No. 13-0385, 2013 WL 6153154 at *12-*13 (W. Va. Nov. 22, 2013) (memorandum decision)
(affirming and adopting the circuit court’s conclusion that a statement from one juror related to
knowing the petitioner “from a previous placement he was in” did not result in prejudice or bias
against him that required a mistrial and a new jury pool because no special attention was brought
to the statement, there was no elaboration on the meaning of “placement,” the juror did not sit on
the convicting jury, and further voir dire was conducted after that comment and no jurors stated
they were influenced by the statement).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 26, 2024
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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