State of West Virginia v. Timothy Ray Sutherland

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term

FILED

_____________ June 5, 2013

released at 3:00 p.m.

RORY L. PERRY II, CLERK

No. 11-0799 SUPREME COURT OF APPEALS

_____________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

V.

TIMOTHY RAY SUTHERLAND,

Defendant Below, Petitioner

____________________________________________________________________

Appeal from the Circuit Court of Kanawha County

Honorable James C. Stucky, Judge

Criminal Action No. 10-F-328

AFFIRMED

____________________________________________________________________

Submitted: April 9, 2013

Filed: June 5, 2013

Jason D. Parmer Patrick Morrissey

Kanawha County Public Defender’s Office Attorney General

Charleston, West Virginia Laura Young, Assistant Attorney General

Attorney for Petitioner Charleston, West Virginia

Attorney for Respondent

JUSTICE DAVIS delivered the Opinion of the Court.

CHIEF JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the

right to file a separate opinion.

SYLLABUS BY THE COURT

1. “Actual bias can be shown either by a juror’s own admission of bias or

by proof of specific facts which show the juror has such prejudice or connection with the

parties at trial that bias is presumed.” Syllabus point 5, State v. Miller, 197 W. Va. 588, 476

S.E.2d 535 (1996).

2. “When a prospective juror makes a clear statement of bias during voir

dire, the prospective juror is automatically disqualified and must be removed from the jury

panel for cause. However, when a juror makes an inconclusive or vague statement that only

indicates the possibility of bias or prejudice, the prospective juror must be questioned further

by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an

initial response by a prospective juror to a broad or general question during voir dire will not,

in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a

situation, further inquiry by the trial court is required. Nonetheless, the trial court should

exercise caution that such further voir dire questions to a prospective juror should be couched

in neutral language intended to elicit the prospective juror’s true feelings, beliefs, and

thoughts—and not in language that suggests a specific response, or otherwise seeks to

rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and

where there is a probability of bias the prospective juror must be removed from the panel by

the trial court for cause.” Syllabus point 8, State v. Newcomb, 223 W. Va. 843, 679 S.E.2d

i

675 (2009).

3. A trial court’s failure to remove a biased juror from a jury panel, as

required by W. Va. Code § 62-3-3 (1949) (Repl. Vol. 2010), does not violate a criminal

defendant’s right to a trial by an impartial jury if the defendant removes the juror with a

peremptory strike. In order to obtain a new trial for having used a peremptory strike to

remove a biased juror from a jury panel, a criminal defendant must show prejudice. The

holding in Syllabus point 8 of State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995), is

expressly overruled.

Davis, Justice:

This is an appeal by Timothy Ray Sutherland (hereinafter “Mr. Sutherland”)

ii

from his conviction for first degree murder. Mr. Sutherland was sentenced by the Circuit

Court of Kanawha County to life in prison without the possibility of parole. In this appeal,

Mr. Sutherland argues that the circuit court committed error by failing to strike a prospective

juror for cause.1 After a careful review of the parties’ briefs, the record submitted on appeal,

and listening to the arguments of the parties, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2009, Mr. Sutherland was living temporarily at the home of his cousin,

Stacie Smith, in St. Albans, West Virginia. In the early morning hours of December 28,

2009, Mr. Sutherland got into an argument with Ms. Smith in her bedroom. The argument

involved a comment made by Mr. Sutherland that Ms. Smith’s boyfriend did not treat her

properly. During the argument, Ms. Smith called Mr. Sutherland a “junkie”. Mr. Sutherland

became outraged at being called a drug addict and left the bedroom. He then went into the

kitchen and smoked a cigarette. Within a few minutes, he returned to the bedroom carrying

a butcher knife. Mr. Sutherland fatally stabbed Ms. Smith on the right side of her neck as

1

Although Mr. Sutherland only briefed one assignment of error, his Notice of

Appeal listed three assignments of error. Insofar as Mr. Sutherland has briefed only one

issue in this appeal, the remaining two issues assigned in the Notice of Appeal are deemed

waived. See State v. Harris, 226 W. Va. 471, 472 n.1, 702 S.E.2d 603, 604 n.1 (2010)

(“Assignments of error that are not argued in the briefs on appeal may be deemed by this

Court to be waived.”) (internal quotations and citation omitted)).

1

she laid on the bed.2 Before fleeing the scene of the murder, Mr. Sutherland took Ms.

Smith’s cell phone, credit card, money, and car keys. He also wrote the words “Cheating

Whore” on a living room wall in the house.3

The police arrested Mr. Sutherland in an abandoned trailer on December 30,

2009. The police initially arrested Mr. Sutherland on an outstanding warrant for failing to

register as a sex offender.4 Subsequent to his arrest, Mr. Sutherland confessed to killing Ms.

Smith. In April 2010, a grand jury indicted Mr. Sutherland on charges of first degree murder

and first degree robbery. After a three-day trial in March 2011, a jury returned a verdict

convicting Mr. Sutherland of first degree murder, without a recommendation of mercy; the

jury acquitted Mr. Sutherland of first degree robbery.5

II.

STANDARD OF REVIEW

We are asked to review the trial court’s decision not to strike a potential juror

2

At the time of the stabbing, Ms. Smith’s infant son was in the home, but he

was in his bedroom. Ms. Smith also had a daughter who had spent the night at a friend’s

home. The record does not indicate the age of either child.

3

It was later determined that Mr. Sutherland wrote the words on the wall to

make the police suspect that Ms. Smith’s boyfriend had committed the crime.

4

At the time of the arrest, the police did not have sufficient evidence to charge

Mr. Sutherland with the murder of Ms. Smith. However, he was a “person of interest” in the

murder.

5

Other facts, as they relate to the assignment of error, will be addressed in

Section III, infra.

2

for cause. We have articulated the standard of review of this issue as follows:

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.

State v. Miller, 197 W. Va. 588, 600–01, 476 S.E.2d 535, 547–48 (1996). See Syl. pt. 2,

State v. Mayle, 178 W. Va. 26, 357 S.E.2d 219 (1987). In Syllabus point 4 of Miller, the

Court further held:

The relevant test for determining whether a juror is

biased is whether the juror had such a fixed opinion that he or

she could not judge impartially the guilt of the defendant. Even

though a juror swears that he or she could set aside any opinion

he or she might hold and decide the case on the evidence, a

juror’s protestation of impartiality should not be credited if the

other facts in the record indicate to the contrary.

197 W. Va. 588, 476 S.E.2d 535. With these standards in mind, we turn to the issue

presented as an assignment of error.

III.

DISCUSSION

This case presents two issues for resolution. First, we must determine whether

the trial court should have granted Mr. Sutherland’s motion to strike a prospective juror for

3

cause. Second, we take this opportunity to revisit our decision in State v. Phillips, 194

W. Va. 569, 461 S.E.2d 75 (1995), which permits a new trial whenever a criminal defendant

uses a peremptory strike to remove a prospective juror that should have been struck for

cause. We examine each issue separately.

A. Failing to Strike a Prospective Juror for Cause

Mr. Sutherland contends that a prospective juror was biased and that the trial

court should have granted his motion to strike the juror for cause. This Court has held:

The relevant test for determining whether a juror is

biased is whether the juror had such a fixed opinion that he or

she could not judge impartially the guilt of the defendant. Even

though a juror swears that he or she could set aside any opinion

he or she might hold and decide the case on the evidence, a

juror’s protestation of impartiality should not be credited if the

other facts in the record indicate to the contrary.

Syl. pt. 4, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996). We also have recognized

that “[a]ctual bias can be shown either by a juror’s own admission of bias or by proof of

specific facts which show the juror has such prejudice or connection with the parties at trial

that bias is presumed.” Syl. pt. 5, Miller, id.

In this proceeding, Mr. Sutherland argues that the trial judge should have struck

a prospective juror for cause based upon the following voir dire exchange:

[Defense Counsel:] Okay. Thank you. Part of the

evidence that all of you–some of you will see in this case is a

video of Mr. Sutherland confessing that he took Stacie Smith’s

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life. So, as jurors, you won’t really be deciding whether Mr.

Sutherland is guilty or innocent. Instead, what you’ll be

deciding on is exactly what crime Mr. Sutherland is guilty

of. . . . If you find him guilty of first degree murder, you also

have to decide whether or not to grant Mr. Sutherland mercy.

Granting Mr. Sutherland mercy means that 15 years from

now the Parole Board will take a look at his case; they’ll hear

from the victim’s friends and relatives, people who were

impacted by this crime; and then the Parole Board will decide

whether or not Mr. Sutherland ever gets to leave prison, and if

he leaves prison, he’ll be on supervised parole.

Granting mercy is not a guarantee that he’ll ever leave

prison provided that you find him guilty of first degree murder,

but mercy does mean that that option is available to him.

....

[Defense Counsel:] Thank you, judge. After telling you-

all that, my first question for you is: Does anyone think if you

intentionally murder someone, you should never leave prison?

(WHEREUPON, Potential Juror Number 178, Mr. Kevin

Wong raised his hand.)

[Defense Counsel:] Mr. Wong. Is there anyone else that

thinks if you intentionally murder someone, you should never

leave prison?

(WHEREUPON, there was no response by the potential

jurors.)

[Defense Counsel:] Mr. Wong, so, if you found Mr.

Sutherland guilty of first degree murder, you could not

recommend mercy?

[Mr. Wong:] No, I just feel if somebody takes a life, and

since you don’t have the death penalty here in West Virginia,

that’s where he ought to stay.

5

....

[Defense Counsel:] Is there anyone here who agrees with

the saying, “An eye for an eye and a tooth for a tooth?”

(WHEREUPON, Potential Juror Number 178, Mr. Kevin

Wong raised his hand.)

[Defense Counsel:] Mr. Wong. Is there anyone here

who’s heard of the saying, “An eye for an eye only makes the

whole world blind?”

(WHEREUPON, there was no response by the potential

jurors.)

Mr. Sutherland contends that the above exchange required the trial court to strike Mr. Wong

from the jury panel. In support of this contention, Mr. Sutherland relies primarily upon the

decision in State v. Greer, 22 W. Va. 800 (1883).

The defendant in Greer was charged with first degree murder, which, at that

time, was punishable by death.6 However, the jury convicted him of second degree murder,

and he was sentenced to prison for ten years. One of the issues the defendant raised on

appeal was that the trial court committed error in striking, for cause, a potential juror who

had “conscientious scruples” against imposing the death penalty. The opinion in Greer set

out the facts on the issue as follows:

The second bill of exceptions was to the ruling of the

court sustaining the challenge to W. S. Duff, who was sworn on

6

“In 1965, the death penalty in West Virginia was abolished by the legislature.”

Vance v. Holland, 177 W. Va. 607, 608, 355 S.E.2d 396, 397 (1987).

6

his voir dire, having been regularly drawn as a juror. The

question was propounded by the court “whether he had any

conscientious scruples against inflicting the death penalty in a

proper case?” To which, answer was made, that “he had

conscientious scruples against inflicting the death penalty; that

he would be governed by the law and evidence, but was opposed

to inflicting capital punishment.” . . . “Whereupon said

proposed juror was rejected by the court for that reason alone

and no other, against the objection of the prisoner.

22 W. Va. at 809. Ultimately, the Court in Greer found that the trial court did not abuse its

discretion in striking the potential juror for cause. The opinion set out its holding on the

issue in Syllabus points 5 and 6 as follows:

5. In empaneling a jury in a capital case a proposed juror

examined on his voir dire, who in answer to a question

propounded by the court says, he has conscientious scruples

against inflicting the death-penalty, is incompetent and is

properly rejected by the court, although he says he will be

governed by the law and the evidence.

6. Since our statute gives a jury a discretion, when they

find a prisoner guilty of murder in the first degree, to say he

shall be punished by imprisonment in the penitentiary, it is more

important to the State, that juries should have no conscientious

scruples against inflicting the death penalty.

Greer, 22 W. Va. 800.

Although we find Greer instructive, we do not find it controlling. In fact,

Greer has been implicitly modified by our evolving law on striking a potential juror for

cause, as illustrated in Syllabus point 8 of State v. Newcomb, 223 W. Va. 843, 679 S.E.2d

7

675 (2009):

When a prospective juror makes a clear statement of bias

during voir dire, the prospective juror is automatically

disqualified and must be removed from the jury panel for cause.

However, when a juror makes an inconclusive or vague

statement that only indicates the possibility of bias or prejudice,

the prospective juror must be questioned further by the trial

court and/or counsel to determine if actual bias or prejudice

exists. Likewise, an initial response by a prospective juror to a

broad or general question during voir dire will not, in and of

itself, be sufficient to determine whether a bias or prejudice

exists. In such a situation, further inquiry by the trial court is

required. Nonetheless, the trial court should exercise caution

that such further voir dire questions to a prospective juror should

be couched in neutral language intended to elicit the prospective

juror’s true feelings, beliefs, and thoughts—and not in language

that suggests a specific response, or otherwise seeks to

rehabilitate the juror. Thereafter, the totality of the

circumstances must be considered, and where there is a

probability of bias the prospective juror must be removed from

the panel by the trial court for cause.

Assuming, for the sake of argument, that West Virginia had retained the death penalty,

Greer’s automatic disqualification of a potential juror could occur only if the potential juror

has made a “clear statement of bias,” as required by Newcomb. In other words, Newcomb

does not require a potential juror be automatically disqualified for making a biased statement

if the statement is inconclusive or vague. See Syl. pt. 4, O’Dell v. Miller, 211 W. Va. 285,

565 S.E.2d 407 (2002). It is this exception in Newcomb that has modified any general

application of Greer on the issue of bias.

In the instant proceeding, Mr. Sutherland argues that Mr. Wong made a clear

8

statement of bias. Therefore, Mr. Sutherland contends, Mr. Wong should have been

disqualified. We disagree.

Mr. Wong responded in a general manner to the question of whether a person

should ever leave prison for committing intentional murder. Rather than following up with

further questions, as required under Newcomb, defense counsel stopped questioning Mr.

Wong on the issue of mercy. Under the decision in Newcomb, defense counsel had an

obligation to ask further questions in order to place into the record Mr. Wong’s response to

being able to follow the law on the issue of mercy as directed by the trial judge with regard

thereto. A case which illustrates this point is State v. Juntilla, 227 W. Va. 492, 711 S.E.2d

562 (2011).

In Juntilla, the defendant was convicted by a jury of first degree murder, sexual

assault in the first degree, and conspiracy to commit sexual assault. One of the issues raised

by the defendant on appeal was that the circuit court erred in denying his motion to strike a

prospective juror, David Smallwood, for cause. The opinion set out the argument as follows:

Specifically, the Appellant argues in his brief that the potential

juror was “predisposed to make a recommendation of no mercy

verdict.” The Appellant contends that the juror stated that it

would be “unlikely that I would feel any mercy but I would have

to, you know, I would have to hear the case through.” The juror

also said that he is a strong proponent of the death penalty and

believes that West Virginia should adopt it as a sentence.

Because the circuit court refused to grant the Appellant’s

motion, he was forced to use a peremptory strike to eliminate the

9

juror. In contrast, the Appellee maintains that Juror Smallwood

indicated that he favored a state law permitting the death

penalty, but he acknowledged that West Virginia does not have

the death penalty, that he could grant mercy and that he would

have to listen to the facts of the case before making a decision.

Juntilla, 227 W. Va. at 499, 711 S.E.2d at 569. Based upon the above facts, this Court found

that the trial judge did not abuse his discretion in denying the motion to strike the potential

juror for cause:

A review of the record reveals that Juror Smallwood told

the circuit court that it was his belief that West Virginia should

have a death penalty. When questioned further about West

Virginia not having the death penalty and whether, in light of

that, Juror Smallwood could recommend mercy, the juror

responded:

I have to, you know, hear the case. I don’t know if I

could stand here and give that decision at this very time but it

would probably be unlikely that I would feel any mercy but I

would have to, you know, I would have to hear the case through.

Based upon an examination of the entire voir dire of Juror

Smallwood, the Court finds that the circuit court did not err in

denying the Appellant’s motion to strike the juror for cause.

Juntilla, 227 W. Va. at 499-500, 711 S.E.2d at 569-70.

Juntilla is instructive in showing that, when a potential juror in a first degree

murder case makes a general statement of not being predisposed to granting mercy, further

questioning should occur to ascertain the juror’s willingness to impartially decide the issue

based upon the law and the facts of the case presented. Here, defense counsel failed to make

further inquiry of Mr. Wong as to whether he would follow the trial court’s instructions and

10

decide the issue of mercy based upon the facts of the case. See Syl. pt. 6, in part, Miller, 197

W. Va. 588, 476 S.E.2d 535. (“The challenging party bears the burden of persuading the trial

court that the juror is partial and subject to being excused for caused[.]”). Consequently, the

trial court did not abuse its discretion in denying Mr. Sutherland’s motion to strike Mr. Wong

for cause.

B. Using a Peremptory Strike to Remove a Juror

Who Should Have Been Removed for Cause

Assuming, for the sake of argument, that the trial court erred in not striking Mr.

Wong for cause, Mr. Sutherland further contends that he was automatically entitled to a new

trial under Syllabus point 8 of State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995),7

because he was required to remove Mr. Wong from the jury panel with a peremptory strike.

While we understand Mr. Sutherland’s reliance on Syllabus point 8 of Phillips, we believe

it is time to revisit the automatic new trial remedy recognized in that Syllabus point. As will

be explained below, the automatic new trial remedy allowed by Syllabus point 8 of Phillips

is not expressly authorized by the statute it relied upon, nor is it required by the state or

federal constitution.

The defendant in State v. Phillips was convicted of second degree murder for

killing his wife. On appeal, one of the issues raised by the defendant was that the trial court

7

Phillips was a 4-1 decision, with Justice Workman dissenting.

11

committed error in failing to strike two jurors for cause. Even though the defendant struck

both jurors with peremptory strikes, he argued that he was entitled to a new trial because he

was guaranteed a jury panel of unbiased prospective jurors, when he exercised his

peremptory strikes, under (1) the state and federal constitutions and (2) W. Va. Code §

62-3-3 (1949) (Repl. Vol. 2010). The constitutional and statutory issues addressed by

Phillips will be examined separately.

1. No right to an automatic new trial under the state or federal

constitutions without a showing of prejudice. The defendant in Phillips contended that he

was entitled to a new trial without a showing of prejudice because “the presence of the two

biased jurors on the jury panel denied his right to an impartial jury under the Sixth and

Fourteenth Amendments to the United States Constitution and Section 14 of Article III of the

West Virginia Constitution.” Phillips, 194 W. Va. at 586, 461 S.E.2d at 92. This Court

rejected the argument after determining that, in Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct.

2273, 101 L. Ed. 2d 80 (1988), the United States Supreme Court expressly held that “‘[s]o

long as the jury that sits is impartial, the fact that the defendant had to use a peremptory

challenge to achieve that result does not mean the Sixth Amendment was violated.’”

Phillips, 194 W. Va. at 586, 461 S.E.2d at 92 (quoting Ross, 487 U.S. at 88, 108 S. Ct. at

2278, 101 L.Ed.2d 80).8 As a consequence of the decision in Ross, we held in Syllabus point

8

Ross involved a state court prosecution in which the defendant invoked the

(continued...)

12

7 of Phillips:

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 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.

194 W. Va. 569, 461 S.E.2d 75.

Under Phillips, the mere presence of a biased juror on a jury panel does not

establish a violation of the state or federal constitutional right to an impartial jury. Phillips

requires a defendant to show prejudice from the juror’s presence on the jury panel. More

importantly, under Phillips prejudice cannot be established merely because a defendant

exercised a peremptory strike to remove the juror from the jury panel.

2. No right to an automatic new trial under W. Va. Code § 62-3-3 without

a showing of prejudice. The decision in Phillips followed Ross in holding that a defendant

must show prejudice when alleging a constitutional violation for having to use a peremptory

strike to remove a biased juror. However, Phillips reached a different conclusion under

W. Va. Code § 62-3-3. This statute provides, in relevant part:

In a case of felony, twenty jurors shall be drawn from

those in attendance for the trial of the accused. If a sufficient

8

(...continued)

federal constitution as a basis for reversal.

13

number of jurors for such panel cannot be procured in this way,

the court shall order others to be forthwith summoned and

selected, until a panel of twenty jurors, free from exception, be

completed, from which panel the accused may strike off six

jurors and the prosecuting attorney may strike off two jurors.9

W. Va. Code § 62-3-3 (emphasis and footnote added).

The defendant in Phillips argued that “because [he] was required to use two

of his peremptory challenges on the two allegedly disqualified jurors, he was denied his

statutory right to six peremptory challenges.” Phillips, 194 W. Va. at 586, 461 S.E.2d at 92.

In response to the issue raised, the Phillips court correctly found that the phrase “free from

exception” found in W. Va. Code § 62-3-3 required a jury panel be unbiased before a

defendant used his or her peremptory strikes. The court’s remedy for a violation of the

9

The statute reads in full as follows:

In a case of felony, twenty jurors shall be drawn from

those in attendance for the trial of the accused. If a sufficient

number of jurors for such panel cannot be procured in this way,

the court shall order others to be forthwith summoned and

selected, until a panel of twenty jurors, free from exception, be

completed, from which panel the accused may strike off six

jurors and the prosecuting attorney may strike off two jurors.

The prosecuting attorney shall first strike off two jurors, and

then the accused six. If the accused failed to strike from such

panel the number of jurors this section allows him to strike, the

number not stricken off by him shall be stricken off by the

prosecuting attorney, so as to reduce the panel to twelve, who

shall compose the jury for the trial of the case.

W. Va. Code § 62-3-3 (1949) ( ).

14

statute was set out in Syllabus point 8 of Phillips as follows:

The language of W. Va. Code, 62-3-3 (1949), grants a

defendant the specific right to reserve his or her peremptory

challenges until an unbiased jury panel is assembled.

Consequently, if a defendant validly challenges a prospective

juror for cause and the trial court fails to remove the juror,

reversible error results even if a defendant subsequently uses his

peremptory challenge to correct the trial court’s error.

Syl. pt. 8, Phillips, 194 W. Va. 569, 461 S.E.2d 75.

The holding in Syllabus point 8 of Phillips, that a violation of W. Va. Code

§ 62-3-3 requires automatic reversal, has no express or implicit support in the statute.10

Clearly, the statute is silent on a remedy for a violation of its requirements. We do not

believe that Phillips’ extreme remedy of an automatic new trial, without a showing of

prejudice, is warranted. Although we fully understand that the doctrine of stare decisis is a

guide for maintaining stability in the law, we will part ways with precedent that is not legally

sound. In syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169

(1974), we held that “[a]n appellate court should not overrule a previous decision . . . without

evidence of changing conditions or serious judicial error in interpretation sufficient to compel

deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty,

10

Although Phillips set out the remedy in Syllabus point 8, prior decisions of

this Court also recognized the remedy of automatic reversal without a showing of prejudice.

See State v. Wilcox, 169 W. Va. 142, 144, 286 S.E.2d 257, 259 (1982) (“[I]t is reversible

error to deny a valid challenge for cause even if the disqualified juror is later struck by a

[peremptory] challenge.”).

15

stability, and uniformity in the law.” Of course, “when it clearly is apparent that an error

has been made or that the application of an outmoded rule, due to changing conditions,

results in injustice, deviation from that policy is warranted.” Woodrum v. Johnson, 210 W.

Va. 762, 766 n.8, 559 S.E.2d 908, 912 n.8 (2001) (internal quotations and citations omitted).

We believe that the automatic reversal required under Syllabus point 8 of

Phillips is legally unsound and is not dictated by W. Va. Code § 62-3-3. The better and more

legally sound approach is to require a showing of prejudice, as is required by the

overwhelming majority of states.11 The prejudice approach is illustrated by the United States

11

A majority of courts require a defendant to establish prejudice when a

peremptory strike is used to remove a juror who should have been struck for cause. See Pace

v. State, 904 So. 2d 331, 341 (Ala. Crim. App. 2003); Minch v. State, 934 P.2d 764, 770

(Alaska Ct. App. 1997); State v. Kuhs, 224 P.3d 192, 198 (Ariz. 2010); Miles v. State, 85

S.W.3d 907, 911 (Ark. 2002); People v. Whalen, 294 P.3d 915, 951 (Cal. 2013); State v.

Ross, 849 A.2d 648, 669-70 (Conn. 2004); Holmes v. State, 422 A.2d 338, 341 (Del. 1980),

superseded by statute on other grounds as stated in Burke v. State, 484 A. 2d 490 (Del.

1984)); Johnson v. United States, 804 A.2d 297, 304 (D.C. Cir. 2002); Street v. State, 592

So. 2d 369, 370 (Fla. Dist. Ct. App. 1992); State v. Iuli, 65 P.3d 143, 152 (Haw. 2003);

Stoddard v. Nelson, 581 P.2d 339, 343 (Idaho 1978); People v. Bowens, 943 N.E.2d 1249,

1259 (Ill. App. Ct. 2011); Whiting v. State, 969 N.E.2d 24, 30 (Ind. 2012); State v. Wilkins,

693 N.W.2d 348, 351 (Iowa 2005); State v. Broyles, 36 P.3d 259, 272 (Kan. 2001); Ware v.

State, 759 A.2d 764, 771 (Md. 2000); Commonwealth v. Mendes, 806 N.E.2d 393, 408

(Mass. 2004); People v. Holliday, 376 N.W.2d 154, 162 (Mich. Ct. App. 1985); State v.

Prtine, 784 N.W.2d 303, 311 (Minn. 2010); Mettetal v. State, 615 So. 2d 600, 603 (Miss.

1993); State v. Jamison, 365 S.W.3d 623, 627 (Mo. Ct. App. 2012); State v. Daly, 775

N.W.2d 47, 70 (Neb. 2009); Jitnan v. Oliver, 254 P.3d 623, 630 (Nev. 2011); State v.

DiFrisco, 645 A.2d 734, 751 (N.J. 1994); State v. Isiah, 781 P.2d 293, 302 (N.M. 1989),

overruled on other grounds by, State v. Lucero, 863 P.2d 1071, 1074 (N.M. 1993); State v.

(continued...)

16

Supreme Court decision of United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774,

145 L.Ed.2d 792 (2000).

The decision in Martinez-Salazar called upon the Supreme Court to address

the issue of an automatic right to a new trial in federal court when a biased juror is removed

from a jury panel with a peremptory strike by a criminal defendant. The defendant in

Martinez-Salazar was prosecuted by the federal government on various drug trafficking and

weapons charges.12 During jury voir dire, a prospective juror indicated that he would favor

the prosecution. The defendant asked the trial court to strike the prospective juror for cause.

The trial judge denied the motion to strike for cause. The defendant used a peremptory strike

11

(...continued)

Clemmons, 639 S.E.2d 110, 112 (N.C. Ct. App. 2007); State v. Entzi, 615 N.W.2d 145, 149

(N.D. 2000); State v. Hale, 892 N.E.2d 864, 888 (Ohio 2008); Harmon v. State, 248 P.3d

918, 932 (Okla. Crim. App. 2011); State v. Berliner, 222 P.3d 744, 746 (Or. Ct. App. 2009);

Commonwealth v. Chambers, 685 A.2d 96, 107 (Pa. 1996); State v. Barnville, 445 A.2d 298,

301 (R.I. 1982); State v. Green, 392 S.E.2d 157, 160 (S.C. 1990); State v. Daniel, 606

N.W.2d 532, 535 (S.D. 2000); State v. Schmeiderer, 319 S.W.3d 607, 633 (Tenn. 2010);

Busby v. State, 253 S.W.3d 661, 670 (Tex. Crim. App. 2008); State v. Menzies, 889 P.2d 393,

400 (Utah 1994); Lattrell v. Swain, 239 A.2d 195, 198 (Vt. 1968); State v. Fire, 34 P.3d

1218, 1225 (Wash. 2001); State v. Lindell, 629 N.W.2d 223, 245-46 (Wis. 2001). But see

Ma v. People, 121 P.3d 205, 210 (Colo. 2005) (automatic reversal without showing

prejudice); Harris v. State, 339 S.E.2d 712, 714 (Ga. 1986) (same); Shane v. Commonwealth,

243 S.W.3d 336, 341 (Ky. 2007) (same); State v. Jacobs, 789 So. 2d 1280, 1284 (La. 2001);

State v. Good, 43 P.3d 948, 960 (Mont. 2002) (same); People v. Weber, 959 N.Y.S.2d 736,

737 (N.Y. App. Div. 2013) (same); Townsend v. Commonwealth, 619 S.E.2d 71, 73 (Va.

2005) (same); Patterson v. State, 691 P.2d 253, 256 (Wyo. 1984) (same). Two states appear

not to have squarely addressed the issue: Maine and New Hampshire.

12

The defendant and a co-defendant were tried together.

17

to remove the juror. The defendant ultimately was convicted of all charges by the jury. On

appeal to the Ninth Circuit Court of Appeals the defendant argued that he was entitled to a

new trial, without a showing of prejudice, because the trial court committed error in denying

his motion to strike the juror for cause. The Ninth Circuit agreed and granted the defendant

a new trial. The Ninth Circuit took the position that, under Rule 24(b) of the Federal Rules

of Criminal Procedure, the defendant had a right to exercise his peremptory strikes on a panel

of unbiased jurors. Consequently, the Ninth Circuit held that the defendant’s due process

right under the Fifth Amendment was violated because he had had to use one of his

peremptory strikes to cure an error by the trial court. The Supreme Court granted the

government’s appeal.

The Supreme Court’s opinion in Martinez-Salazar indicated initially that the

government conceded that the juror should have been struck for cause. However, the

government took the position that a defendant should be required “to use a peremptory

challenge to strike a juror who should have been removed for cause[.]” Martinez-Salazar,

528 U.S. at 314, 120 S. Ct. at 781, 145 L. Ed. 2d 792. The Supreme Court disagreed with

the government and held that a defendant does not have to use a peremptory strike to remove

a biased juror from the jury panel. However, the opinion also held that when a defendant

does use a peremptory strike to remove a biased juror, the defendant must show prejudice to

obtain a new trial. The opinion addressed the issues as follows:

We reject the Government’s contention that under federal

18

law, a defendant is obliged to use a peremptory challenge to

cure the judge’s error. We hold, however, that if the defendant

elects to cure such an error by exercising a peremptory

challenge, and is subsequently convicted by a jury on which no

biased juror sat, he has not been deprived of any rule-based or

constitutional right.

....

The Court of Appeals erred in concluding that the District

Court’s for-cause mistake compelled Martinez-Salazar to

challenge [the juror] peremptorily, thereby reducing his

allotment of peremptory challenges by one. A hard choice is not

the same as no choice. . . .

After objecting to the District Court’s denial of his

for-cause challenge, Martinez-Salazar had the option of letting

[the juror] sit on the petit jury and, upon conviction, pursuing a

Sixth Amendment challenge on appeal. Instead,

Martinez-Salazar elected to use a challenge to remove [the juror]

because he did not want [the juror] to sit on his jury. This was

Martinez-Salazar’s choice. The District Court did not demand–

and Rule 24(b) did not require--that Martinez-Salazar use a

peremptory challenge curatively.

In choosing to remove [the juror] rather than taking his

chances on appeal, Martinez-Salazar did not lose a peremptory

challenge. Rather, he used the challenge in line with a principal

reason for peremptories: to help secure the constitutional

guarantee of trial by an impartial jury. . . .

In conclusion, we note what this case does not involve.

It is not asserted that the trial court deliberately misapplied the

law in order to force the defendants to use a peremptory

challenge to correct the court’s error. Accordingly, no question

is presented here whether such an error would warrant reversal.

Nor did the District Court’s ruling result in the seating of any

juror who should have been dismissed for cause. As we have

recognized, that circumstance would require reversal.

We . . . hold that a defendant’s exercise of peremptory

19

challenges pursuant to Rule 24(b) is not denied or impaired

when the defendant chooses to use a peremptory challenge to

remove a juror who should have been excused for cause.

Martinez-Salazar and his codefendant were accorded 11

peremptory challenges, the exact number Rule 24(b) and (c)

allowed in this case. Martinez-Salazar received precisely what

federal law provided; he cannot tenably assert any violation of

his Fifth Amendment right to due process.

Martinez-Salazar, 528 U.S. at 307-16, 120 S.Ct. at 777-82, 145 L. Ed. 2d 792 (citations

omitted).

The decision in Martinez-Salazar followed Ross, which was a state

prosecution, in holding that the constitution is not violated when a defendant in a federal

prosecution uses a peremptory strike to remove a biased juror. More importantly,

Martinez-Salazar also made clear that merely because a defendant has a rule-based right to

exercise peremptory strikes on an unbiased jury panel does not mean that he or she is entitled

to a new trial for using a peremptory strike to remove a biased juror from the panel. The

latter holding by Martinez-Salazar supports this Court’s decision to overrule Syllabus point

8 of Phillips.

The defendants in both Phillips and Martinez-Salazar argued that they had a

right to exercise all of their peremptory strikes on a panel of unbiased jurors. The Courts in

both cases agreed with the defendants–Phillips found the right existed in a statute, and

Martinez-Salazar found the right existed in a rule. However, the Courts differed on the

20

remedy when a violation occurred–Phillips provided for automatic reversal while Martinez-

Salazar required a showing of prejudice. Clearly, Martinez-Salazar is the better approach

because it recognizes that when a defendant has been tried before an unbiased jury, he or she

has received exactly what the constitution guarantees. Consequently, a defendant should be

required to show prejudice resulting from the selection of an unbiased juror. To hold

otherwise results in an unjustifiable waste of judicial time and resources.

Thus, we now hold that a trial court’s failure to remove a biased juror from a

jury panel, as required by W. Va. Code § 62-3-3 (1949) (Repl. Vol. 2010), does not violate

a criminal defendant’s right to a trial by an impartial jury, if the defendant removes the juror

with a peremptory strike. In order to obtain a new trial for having used a peremptory strike

to remove a biased juror from a jury panel, a criminal defendant must show prejudice. The

holding in Syllabus point 8 of State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995), is

expressly overruled.

Our decision to revisit and overrule Phillips and join the vast majority of courts

in the country that require a showing of prejudice when a defendant uses a peremptory strike

to remove a biased juror is not without precedent. This Court previously has revisited and

overruled precedent that afforded a defendant relief without showing prejudice. For

example, this Court held in State v. Vance, 146 W. Va. 925, 124 S.E.2d 252 (1962), that a

violation of W. Va. Code § 62-3-2 (1923) (Repl. Vol. 2010), requiring a defendant be present

21

during a trial, required an automatic reversal. In Vance, the defendant’s conviction for

statutory rape and his sentence of life in the penitentiary were reversed as a result of the

defendant voluntarily being absent for four or five minutes during a discussion of jury

instructions. Vance was later disapproved by this Court in State ex rel. Grob v. Blair, 158

W. Va. 647, 214 S.E.2d 330 (1975). We held in Syllabus point 6 of Blair that,

[i]nsofar as the decisions of State v. Vance, 146 W. Va.

925, 124 S.E.2d 252 (1962)[,] and its progenitors held that

prejudice is not a necessary element for reversal of a felony

conviction where the defendant was absent during a trial

occurrence in which anything was done affecting him, such

cases are disapproved.

158 W. Va. 647, 214 S.E.2d 330.

Similarly, in State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988), this

Court held that it was reversible error for a trial court to fail to inform a defendant of his or

her constitutional right to testify. In State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842

(1998), this Court determined that an automatic reversal for a Neuman violation was not

legally sound. Consequently, we held the following in Syllabus point 15 of Salmons:

A violation of State v. Neuman, 179 W. Va. 580, 371

S.E.2d 77 (1988), is subject to a harmless error analysis. A

rebuttable presumption exists that a defendant represented by

legal counsel has been informed of the constitutional right to

testify. When a defendant is represented by legal counsel, a

Neuman violation is harmless error in the absence of evidence

that a defendant’s legal counsel failed to inform him/[her] of the

right to testify, or that the defendant was coerced or misled into

giving up the right to testify. When a defendant represents

him/[her]self at trial, a Neuman violation is harmless error where

it is shown that the defendant was in fact aware of his/her right

to testify and that the defendant was not coerced or misled into

22

giving up the right to testify.

203 W. Va. 561, 509 S.E.2d 842.

Finally, in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W. Va. 1980), and

Hundley v. Ashworth, 181 W. Va. 379, 382 S.E.2d 573 (1989), this Court found that a

preindictment delay of sufficient length was presumptively prejudicial to a defendant.

However, in State ex rel. Knotts v. Facemire, 223 W. Va. 594, 678 S.E.2d 847 (2009), we

revisited the presumptive prejudice of Hey and Hundley and found it to be legally unsound.

Consequently, this Court held the following in Syllabus point 2 of Facemire:

To maintain a claim that preindictment delay violates the

Due Process Clause of the Fifth Amendment to the U.S.

Constitution and Article III, Section 10 of the West Virginia

Constitution, the defendant must show actual prejudice. To the

extent our prior decisions in State ex rel. Leonard v. Hey, 269

S.E.2d 394 (W. Va. 1980), Hundley v. Ashworth, 181 W. Va.

379, 382 S.E.2d 573 (1989), and their progeny are inconsistent

with this holding, they are expressly overruled.

223 W. Va. 594, 678 S.E.2d 847.

In sum, we are on solid legal ground with our decision to revisit and overrule

Phillips. Thus, if we had been persuaded by Mr. Sutherland that he removed a biased juror

with a peremptory strike, this fact alone would not have resulted in a new trial.

IV.

CONCLUSION

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The order convicting Mr. Sutherland of first degree murder and sentencing him

to prison for life without mercy is affirmed.

Affirmed.

24