Petition for Writ of Certiorari — Jeremy S., Petitioner v. West Virginia

Supreme Court briefFeb 1, 2021

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No.:________________

IN THE SUPREME COURT OF THE UNITED STATES

___________

Jeremy Todd Saunders, Petitioner,

State of West Virginia, Respondent.

___________

On Petition for a Writ of Certiorari to the Supreme Court of Appeals of West Virginia

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Jeremy B. Cooper

Counsel of Record

Blackwater Law PLLC

6 Loop St. #1

Aspinwall, PA 15215

(304) 376-0037

jeremy@blackwaterlawpllc.com

APPENDIX TABLE OF CONTENTS

Document

Page

Signed Opinion of Supreme Court of Appeals of West Virginia in

State v. Jeremy S., Docket No. 19-0006....................................................... 1

Order of September 3, 2020 Denying Petition for Rehearing................................. 28

Trial Transcript, day four, December 1, 2017.......................................................... 29

Excerpt of Petitioner's brief in State v. Jeremy S..................................................... 53

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_______________

No. 19-0006

_______________

FILED

June 8, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

JEREMY S.,

Defendant Below, Petitioner

____________________________________________________________

Appeal from the Circuit Court of Calhoun County

The Honorable R. Craig Tatterson, Judge

Case No. 14-F-29

AFFIRMED

____________________________________________________________

Submitted: March 24, 2020

Filed: June 8, 2020

Jeremy B. Cooper, Esq.

Blackwater Law PLLC

Kingwood, West Virginia

Counsel for Petitioner

Patrick Morrisey, Esq.

Attorney General

Lindsay S. See, Esq.

Solicitor General

Caleb A. Ellis, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for Respondent

CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.

APPENDIX 1

SYLLABUS BY THE COURT

When a circuit court polls a jury pursuant to Rule 31(d) of the West

Virginia Rules of Criminal Procedure, it is within the circuit court’s sound discretion to

evaluate the jurors’ responses and determine whether clarifying questions should be asked

of the jurors.

When a circuit court polls a jury pursuant to Rule 31(d) of the West

Virginia Rules of Criminal Procedure, and appropriate, neutral questions reveal that a juror

is confused about a matter, feels coerced to join the majority’s verdict, or is otherwise in

need of further instruction, the circuit court may respond in a very limited manner with

appropriate, non-coercive, neutral statements that address the concern.

APPENDIX 2

Armstead, Chief Justice:

Petitioner, Jeremy S.,1 was indicted for incest, sexual assault in the third

degree, and sexual abuse by a parent, guardian, custodian or person in a position of trust to

a child. He was tried twice in the Circuit Court of Calhoun County. The first trial resulted

in a hung jury. The second trial resulted in a conviction on nine counts. Petitioner appeals,

arguing (a) that the first trial actually resulted in his acquittal, (b) that the first trial was

wrongly continued over his objection, (c) that both trials were tainted by irrelevant, nonprobative, and prejudicial evidence, (d) that the second trial was tainted by a biased juror,

and (e) that two or more of these errors accumulated to his prejudice.

Based on the record before us, the arguments of the parties, and the

applicable law, we find no error; therefore, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 13, 2013, Corporal J.B. Hunt of the West Virginia State Police

received a Child Protective Services (“CPS”) referral about Petitioner’s fourteen-year-old

daughter. Cpl. Hunt and two CPS workers interviewed the daughter, who reported several

instances of sexual abuse by Petitioner. The last instance had happened just two days

before, and the daughter said that it happened on or under a sleeping bag and a blanket,

Due to the sensitive facts of this case, we protect the victim’s identity by

using an initial for her father’s last name. See W. Va. R. App. P. 40(e) (2010). See e.g., In

re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R., 230 W. Va. 731,

742 S.E.2d 419 (2013).

APPENDIX 3

both of which she described.2 Cpl. Hunt obtained a warrant that same day and searched

Petitioner’s house. He recovered a sleeping bag and a blanket and later delivered them to

the West Virginia State Police Forensic Laboratory (the “State Police Lab”) for testing.

Cpl. Hunt arrested Petitioner on September 2, 2013.

A Calhoun County grand jury indicted Petitioner on May 6, 2014. The

indictment charged Petitioner with eight counts, each, of (a) incest, (b) sexual assault in

the third degree, and (c) sexual abuse by a parent, guardian, custodian or person in a

position of trust to a child for a total of twenty-four counts. Petitioner appeared for

arraignment on May 19, 2014, and requested discovery.3 Petitioner (by counsel) advised

that he wished to be tried in the same term, so a pretrial hearing was set for June 30, 2014.

Trial was set for July 15, 2014.

On June 30, 2014, the State moved to continue the trial because the State had

yet to receive the police report. Petitioner objected, and the circuit court denied the State’s

motion to continue, observing that “[t]he State [wa]s at risk of having cases dismissed[.]”

Trial remained set for July 15, 2014.

Three days later, on July 3, 2014, the State provided its first discovery

response. This response was supplemented on July 7, 2014, and again on July 9, 2014.

The latter supplement included a report from the State Police Lab dated June 25, 2014,

We note that the daughter arguably described two different blankets.

Petitioner appeared before the Honorable David W. Nibert, who presided

over Petitioner’s case in the spring and summer of 2014.

APPENDIX 4

which the prosecutor seems to have received by fax on July 8, 2014. According to the

report, the State Police Lab found semen and hairs on the blanket. No relevant material

was found on the sleeping bag. The report advised that reference specimens should be

collected from relevant persons if the State wished to conduct further testing.

The State moved to continue the trial a second time on July 10, 2014.

According to the motion, neither Cpl. Hunt nor CPS Worker Loretta Smith, who had

interviewed the victim, was available for trial on July 15, 2014. The trooper was scheduled

to be on vacation then. The CPS worker had already left the state on her scheduled vacation

and would not be home in time to appear.

On July 12, 2014, Petitioner moved to suppress the State’s evidence and

dismiss the case with prejudice. Petitioner argued that the State’s discovery responses were

untimely and that he was “substantially prejudiced” by them.

Instead of trying the case on July 15, 2014, the court heard the parties’

motions. The court denied Petitioner’s motion to dismiss and granted the State’s motion

to continue, finding that the State had shown good cause. Trial was rescheduled for

September 30, 2014.

On July 15, 2014, the State filed a petition to obtain a DNA sample from

Petitioner. The circuit court heard argument on the State’s petition two days later and

granted the petition over Petitioner’s objection. DNA samples were collected from both

Petitioner and his daughter, and on September 17, 2014, the State produced a second report

APPENDIX 5

from the State Police Lab. This report advised that the blanket recovered from Petitioner’s

home contained sperm DNA from Petitioner and DNA from the daughter.

The September 30, 2014 trial was continued several times, and on July 29,

2016, Petitioner moved in limine to exclude the State’s DNA evidence. Petitioner claimed

that the State’s DNA analysis was unreliable and could not establish when, where, or how

the DNA came to be on the blanket. Accordingly, Petitioner asserted that the probative

value of the State’s DNA evidence was substantially outweighed by the danger of unfairly

prejudicing Petitioner, confusing the issues, and misleading the jury.4

Petitioner’s case was eventually set for trial on March 14, 2017, but the

circuit court was unable to proceed for lack of jurors. Accordingly, the court heard

testimony on Petitioner’s motion in limine to exclude the State’s DNA evidence.5

Petitioner called Cpl. Hunt to testify about the search for and seizure of the blanket.

Petitioner then called his own expert to testify (a) that DNA analysis could not say when

or how the DNA was deposited and (b) that the DNA on the blanket could have come from

other objects in the laundry room. After hearing Petitioner’s evidence, however, the circuit

court did not rule on his motion.

See W. Va. R. Evid. 403 (2014) (“The court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.”).

This hearing was before the Honorable R. Craig Tatterson, who presided

over the remainder of the case.

APPENDIX 6

The court withheld its ruling until November 28, 2017, on the morning of the

first day of Petitioner’s first trial.6 At that point, the circuit court denied the motion to

exclude the State’s DNA evidence, stating that “the jury can look at that and put whatever

weight the jury deems appropriate on that evidence.” As a result, the jury heard testimony

regarding the blanket and the State’s DNA analysis at both trials. Jurors also heard

testimony from Petitioner’s expert witness.

When the State rested during Petitioner’s first trial, Petitioner moved for

acquittal on all counts. The State agreed that there was no evidence on 15 of the 24 counts,

so those counts were dismissed, and the case was submitted to the jury on the remaining

nine counts.7 After several hours of deliberation, the jury advised by note that it could not

reach a unanimous decision. In response, the court called the jury back to the courtroom

and exhorted jurors to keep an open mind and to attempt to reach a unanimous verdict, if

possible, without sacrificing their individual convictions.8 Then the court instructed the

jury to try again for another half hour.

Petitioner’s case was continued numerous times between July 2014 and

November 2017. Petitioner only objects, however, to the first continuance in July 2014.

The remaining nine counts charged Petitioner with committing each of the

three crimes on three separate occasions.

The court referred to this instruction as an “Allen” instruction. See State v.

Waldron, 218 W. Va. 450, 459 n.11, 624 S.E.2d 887, 896 n.11 (2005) (“The Allen charge,

often called the ‘dynamite charge,’ is a supplemental instruction given to encourage

deadlocked juries to reach agreement.” Franklin D. Cleckley, Handbook on West Virginia

Criminal Procedure, Vol. II, page 257 (2nd Ed.1993). The name for this particular

APPENDIX 7

An hour later, the jury submitted a note requesting “a better explanation” of

the instruction that they were to acquit if the evidence permitted opposing conclusions of

both guilt and innocence. The court replied with a handwritten note—approved by both

counsel—stating, “If the jury feels two conclusions (guilty and not guilty) are possible

based on all the evidence, the jury should adopt the conclusion of innocence.”

The jury resumed deliberations and minutes later reached a verdict of not

guilty on all remaining counts. After the verdict was read, the following colloquy occurred:

THE COURT: . . . .

So says each member of the jury, is that your

verdict?

(Affirmative responses.)

THE COURT: Is there a request to poll the jury?

[THE PROSECUTOR]: Yes, Judge.

....

THE COURT: You heard the verdict which your

foreman signed and which the clerk read. When your name is

called, you will answer and signify whether the verdict was

then and is now your own true verdict.

THE CLERK: Marisha Collins, is that your verdict?

JUROR: I guess it has to be by the law.

THE COURT: Go through the list.

instruction originated from the case of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154,

41 L.Ed. 528 (1896).”); see also Syl. Pt., State v. Blessing, 175 W. Va. 132, 331 S.E.2d

863 (1985) (charge urging a verdict).

APPENDIX 8

....

[THE CLERK/THE COURT]: [Juror], is that your

verdict?

[TEN JURORS]: Yes

THE CLERK: Ryan Slider, is that your verdict?

JUROR: By law, I guess.

THE COURT: Ms. Collins, you expressed some

hesitation as to whether or not that was your verdict. There

were several questions9 back to me to further explain the law.

After you heard my—what I’m going to say are written

explanations as to the law, was—is that your verdict?

JUROR: If it has to be.

THE COURT: It doesn’t have to be.

JUROR: Then no.

THE COURT: Okay. Mr. Slider, if I were to ask you

the same question I had just asked Ms. Collins, you—there

were several questions made during the course of deliberations.

I submitted handwritten answers. Is your verdict a verdict of

not guilty on all charges?

JUROR: No, Sir.

(Footnote added.)

After hearing this, the court sent the jury out to determine whether there was

any point in allowing more time to deliberate on their verdict. After a brief recess, the jury

advised the court that their minds were made up; they were deadlocked. The court asked

From the record, there was only one question that asked the court to clarify

the law, which is the one noted above.

APPENDIX 9

counsel, “Is there a motion? Or do you want the Court to make a finding on its own?”

Petitioner’s attorney moved for a mistrial, which was granted.

Petitioner’s second trial began on August 14, 2018. He was tried on nine

counts, in accordance with the evidence submitted at the first trial and the court’s

“judgment of acquittal on the other [15] counts.” During voir dire, a juror indicated that

she knew the victim and the two CPS workers and that she had a business or social

relationship with the prosecutor. She maintained, however, that these relationships would

not affect her ability to be fair.

Subsequently, the court conducted an individual voir dire of the same juror.

At that time, the juror said that she knew the victim from Civil Air Patrol. The juror was

deputy commander for cadets, and the victim had been a cadet. The juror thought that she

had known the victim since 2014, but they “really [had not] had contact in the past couple

of years.” As for CPS Worker Smith, the juror said that she knew her “around town[,]”

but they did not spend time together.10 Finally, the juror knew the prosecutor because the

juror had taught developmental guidance at the prosecutor’s school when the prosecutor

was in fifth grade. The juror had also participated in 4-H activities (such as camp) with the

prosecutor and her parents. The juror guessed that she knew the prosecutor “pretty well,”

but she thought that she could fairly assess the evidence. Petitioner’s attorney moved to

No one asked the juror during individual voir dire about her connection to

the other CPS worker.

APPENDIX 10

strike the juror for cause, but the court refused to do so, citing the juror’s “body language

and how she answered.”

Petitioner did not use a peremptory strike to remove this juror, and she

remained a member of the panel of jurors that convicted Petitioner on all nine counts.

Petitioner subsequently moved for a new trial, and the circuit court denied Petitioner’s

motion, later imposing an aggregate sentence of sixteen to forty years. Petitioner appeals

from the circuit court’s November 30, 2018 amended sentencing order.

II. STANDARD OF REVIEW

Petitioner assigns five errors to the proceedings below. First, Petitioner

contends that he was acquitted at his first trial and that the circuit court manufactured a

hung jury—and thus a mistrial—by polling the jurors in an improper manner. Yet, as

Petitioner concedes, his counsel failed to object when the circuit court was polling the jury.

Counsel’s failure to object forecloses appellate review of this issue, unless the circuit

court’s alleged error was plain error.11 State v. Miller, 194 W. Va. 3, 17, 459 S.E.2d 114,

The State contends, without support, that Petitioner waived his right to

object when he moved for a mistrial. We disagree. It is true that “[w]hen a right is waived,

it is not reviewable even for plain error” and, further, that “[o]nly a forfeiture is reviewable

under plain error.” State v. Crabtree, 198 W. Va. 620, 631, 482 S.E.2d 605, 616 (1996).

Yet waiver requires an “intentional relinquishment or abandonment of a known right[,]”

and nothing in the record suggests that Petitioner intentionally relinquished or abandoned

his right to object to the circuit court’s allegedly improper remarks when it polled the jury.

Syl. Pt. 6, in part, Crabtree, 198 W. Va. at 623, 482 S.E.2d at 608. Indeed, Petitioner

advised the circuit court, before the second trial, that he “felt railroaded” by the court’s

failure to question the two jurors about “which way they voted.” He claimed that he

“wanted that contested at that time because it was on the record. But [he] was told

APPENDIX 11

128 (1995). Plain error is error that is plain, that affects substantial rights, and that seriously

affects the fairness, integrity, or public reputation of the judicial proceedings. Syl. Pt. 7,

Miller, 194 W. Va. 3, 459 S.E.2d 114.

Petitioner also contends (a) that his first trial was wrongly continued over his

objection, (b) that both trials were tainted by irrelevant, non-probative, and prejudicial

evidence, and (c) that his second trial was tainted by a biased juror. When we review circuit

court rulings on motions to continue, on evidentiary matters, or on whether to excuse jurors

for bias or prejudice, we review the circuit court’s rulings for abuse of discretion. Syl. Pt.

2, State v. Bush, 163 W. Va. 168, 255 S.E.2d 539 (1979) (motion to continue); Syl. Pt. 4,

State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (evidentiary rulings); and

O’Dell v. Miller, 211 W. Va. 285, 288, 565 S.E.2d 407, 410 (2002) (juror bias or prejudice).

Finally, Petitioner asserts that two or more errors accumulated to his

prejudice. When a petitioner alleges cumulative error, we inquire whether “the record . . .

shows that the cumulative effect of numerous errors committed during the trial prevented

the defendant from receiving a fair trial, . . . even though any one of such errors standing

alone would be harmless error.” Syl. Pt. 5, in part, State v. Smith, 156 W. Va. 385, 193

S.E.2d 550 (1972). However, we apply this doctrine “‘sparingly’ and only where the errors

are apparent from the record.” State v. Peterson, 239 W. Va. 21, 35, 799 S.E.2d 98, 112

(2017) (quoting Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 118, 459

[presumably by counsel], no, we couldn’t do that unless we lose and we appeal.” On these

facts, we find that Petitioner’s right to object was forfeit, not waived, which makes review

for plain error appropriate on appeal.

APPENDIX 12

S.E.2d 374, 395 (1995)). With these standards of review in mind, we will consider

Petitioner’s assignments of error.

III. ANALYSIS

As noted above, Petitioner raises five assignments of error. We will address

each one in turn.

A. First Trial—Acquittal

Petitioner argues that his conviction should be reversed because his first trial

resulted in an acquittal. According to Petitioner, the circuit court thwarted his acquittal by

polling the jury in an improper manner.

The West Virginia Rules of Criminal Procedure require a circuit court to poll

the jury whenever a party requests it or the court deems it appropriate. W. Va. R. Crim. P.

31(d) (1995). We have this rule to ensure that the verdict is unanimous, as required by the

Sixth Amendment to the United States Constitution and our Rules of Criminal Procedure.

Ramos v. Louisiana, ___ U.S. ___, ___, 140 S. Ct. 1390, 1397, ___ L. Ed. ___, ___ (2020);

W. Va. R. Crim. P. 31(a). As we have said, “the chief purpose behind an individual poll

of jurors is to enable a juror to express any reservation he may have about the verdict free

from the pressure of his fellow jurors.” State v. Tennant, 173 W. Va. 627, 630, 319 S.E.2d

395, 399 (1984).

During polling, however, it is not always clear whether a juror agrees (or

disagrees) with the verdict. Sometimes a juror’s candid response to, “Is that your verdict?”

creates ambiguity. Accordingly, we have held “that appropriate neutral questions may be

APPENDIX 13

asked of the juror to clarify any apparent confusion, provided the questions are not

coercive.” Syl. Pt. 2, in part, Tennant, 173 W. Va. 627, 319 S.E.2d 395. Such questions

are appropriate “when a juror indicates in a poll that he either disagrees with the verdict or

expresses reservations about it[.]” Id. Tennant authorizes, however, “only a very limited

inquiry” in order “to prevent the possibility of coercing the juror to conform to the verdict.”

Id. at 630, 319 S.E.2d at 399. If, after limited, neutral, and non-coercive questioning, the

juror continues to disagree with, or have reservations about, the verdict, “the trial court

must either direct the jury to retire for further deliberations or discharge the jury.” Id. at

628, 319 S.E.2d at 396, syl. pt. 2, in part.12

In Petitioner’s case, the State asked the circuit court to poll the jury, and ten

out of twelve jurors answered “Yes” to the finding of not guilty without qualification or

any apparent hesitation. Yet two jurors offered qualified responses—“I guess it has to be

by the law” and “By law, I guess”—that evidently suggested to the circuit court that these

jurors may have disagreed with the verdict or had reservations about it. Petitioner argues

that these responses were not sufficiently equivocal to prompt further inquiry, and he refers

us to a case in which the District of Columbia Court of Appeals held that a “juror’s response

See also State v. Cole, 180 W. Va. 412, 419, 376 S.E.2d 618, 625 (1988)

(“Juror No. 5 expressed some initial doubt as to the verdict. As permitted by Tennant, the

court questioned the juror in an attempt to clarify any possible confusion. The juror’s

answers to those questions did not dispel the existence of doubt. To the contrary, Juror No.

5 expressed reservations about the guilty verdict on three occasions. Once it became

apparent that the verdict was not unanimous, the court was duty bound to either direct the

jury to deliberate further or to declare a mistrial.”).

APPENDIX 14

[(“Guilty, I guess”)], in context, [did] not demonstrate uncertainty about appellant’s

guilt[.]” Johnson v. United States, 470 A.2d 756, 759 (D.C. App. 1983).

Yet Petitioner ignores Johnson’s reason for reaching this conclusion: “The

trial court is in a much better position to evaluate these factors than . . . an appellate

tribunal.” Id. at 760. As the Johnson court observed, “Guilty, I guess” can be understood

several different ways,13 and “[t]o determine which of these meanings should be ascribed

. . . , one must consider the juror’s demeanor and the tone and pattern of his speech.” Id.

Because of this, “the trial judge possesses ‘a measure of discretion’ in evaluating such

responses, and ‘the reasonable exercise of this discretion should be accorded proper

deference by a reviewing court.’” Id. (quoting United States v. Brooks, 420 F.2d 1350,

1353 (D.C. Cir. 1969)). In Johnson, the fact that the trial court allowed the jury poll to

continue, and the fact that defense counsel failed to object, showed that the juror’s response

of “Guilty, I guess” was unequivocal and that the trial court judge acted reasonably in

interpreting the response that way. Johnson, 470 A.2d at 760.

To return to Petitioner’s case, we were not present to hear or observe the

jurors’ responses, and Petitioner, himself, argues that their responses were susceptible to

While “‘Guilty, I guess’ could indicate that the juror was uncertain about

the defendant’s guilt, it also could mean that the juror was uncertain whether it was his turn

to speak, or unclear about the terminology that he should use.” Johnson, 470 A.2d at 760.

“I guess” can also function “as a meaningless addendum to an answer, without intending

to communicate uncertainty of any kind.” Id.

APPENDIX 15

more than one interpretation.14 Therefore, we are ill-equipped to second-guess the circuit

court’s determination that these responses warranted clarification. Furthermore, we agree

with the Johnson court and now hold that, when a circuit court polls a jury pursuant to Rule

31(d) of the West Virginia Rules of Criminal Procedure, it is within the circuit court’s

sound discretion to evaluate the jurors’ responses and determine whether clarifying

questions should be asked of the jurors.15

Petitioner also finds fault with the circuit court’s statement—“It doesn’t have

to be”—contending that it “amounted to abetting jury nullification” and was “wholly

improper[.]” We note that, in Tennant, we authorized a circuit court to ask “appropriate

neutral questions . . . to clarify any apparent confusion, provided the questions are not

coercive.” Syl. Pt. 2, in part, Tennant, 173 W. Va. 627, 319 S.E.2d 395 (emphasis added).

This language from Tennant might be taken to suggest that, in seeking to “clarify any

In one sentence in his brief, Petitioner suggests that “the words ‘I guess’

are essentially meaningless surplusage to the jurors’ implicit acknowledgment that they

had reached a not guilty verdict by applying the law.” In the next sentence, Petitioner

writes, “Another way of construing the jurors’ statements is that they were simply

unenthusiastic about the verdict the law required them to arrive upon.” (Emphasis added.)

Petitioner ignores a third possible interpretation—among, perhaps, many others—that the

two jurors were prepared to convict Petitioner but felt constrained to acquit him by some

aspect of the circuit court’s instructions that they were not certain they had understood.

We also believe that there is an important difference between (a) saying

that a juror’s response required a trial court to inquire further and (b) saying that a juror’s

response barred a trial court from inquiring further. Both sides in a criminal case have a

right to know that the jury’s verdict is unanimous, and—within reason—a trial court should

err on the side of certainty. Because of this, there are circumstances where a trial court has

discretion to inquire further even though it has no duty to do so.

APPENDIX 16

apparent confusion,” a circuit court must confine itself to asking questions. We reject that

understanding of Tennant.

As Tennant explains, “the chief purpose behind an individual poll of jurors

is to enable a juror to express any reservation he may have about the verdict free from the

pressure of his fellow jurors.” Id. at 630, 319 S.E.2d at 399. To advance this purpose, we

allow circuit courts to pose “appropriate neutral questions . . . to clarify any apparent

confusion[.]” Id. at 628, 319 S.E.2d at 396, syl. pt. 2, in part (emphasis added). If a circuit

court’s appropriate, neutral questions reveal, for example, that a juror is confused about a

matter or feels coerced to join the majority’s verdict, we fail to see how a circuit court can

correct the juror’s confusion, or assure the juror of his or her freedom to decide, without

making appropriate, neutral statements in response. We hold, therefore, that when a circuit

court polls a jury pursuant to Rule 31(d) of the West Virginia Rules of Criminal Procedure,

and appropriate, neutral questions reveal that a juror is confused about a matter, feels

coerced to join the majority’s verdict, or is otherwise in need of further instruction, the

circuit court may respond in a very limited manner with appropriate, non-coercive, neutral

statements that address the concern. Accord State v. Vandevender, 190 W. Va. 232, 235,

438 S.E.2d 24, 27 (1993) (per curiam) (“[T]he trial court did not err in polling the jury and

explaining to the jurors the necessity in arriving at a unanimous verdict. We find that the

comments and questions posed by the court to the jury were neutral and were not

coercive.”).

APPENDIX 17

In this case, the circuit court asked a juror if her verdict was to acquit

Petitioner. When she replied, “If it has to be[,]” the circuit court responded, “It doesn’t

have to be[,]” and the juror answered, “Then no.” This exchange, and the circuit court’s

statement in particular, is subject to interpretation. According to Petitioner, the circuit

court’s statement “explicitly invited [the jurors] to change their verdicts[.]” The State, by

contrast, argues that this statement assured the juror that she need not go along with the

majority. Either way, there was nothing coercive about the circuit court’s statement. On

the contrary, the circuit court’s statement seems to have freed the juror to express a verdict

that accorded with her views pursuant to the law as instructed by the circuit court.

Accordingly, the circuit court’s statement was neutral and appropriate.16

Therefore, we refuse to reverse his conviction based on the circuit court’s manner of polling

the jury.

In this case, Petitioner’s counsel did not object to the circuit court’s

statement. By failing to object, counsel deprived the circuit court (and this appellate court)

of whatever clarifications, if any, might have flowed from his objection. We need not

decide, however, whether the circuit court abused its discretion when it sought to clarify

the jurors’ responses or whether the circuit court acted inappropriately when it said that the

juror’s verdict did not “have to be” to acquit. Because Petitioner failed to preserve these

issues for appeal, it is enough for us to determine whether—if the circuit court did err in

these matters—the circuit court’s error was plain. Plain error is error that is “plain or

obvious[,]” State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996), and “may

be plain under existing law” or “become[] plain on appeal because the applicable law has

been clarified[,]” Syl. Pt. 6, in part, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).

Based on our review of the record, we find that the circuit court did not commit plain or

obvious error.

APPENDIX 18

B. First Trial—Continuance

Petitioner argues next that the circuit court erred when it continued his first

trial past the first term of court,17 over his objection. According to Petitioner, “the sole

basis for the continuance was to spare the State the rightful consequences of its dilatory

discovery and failure to prepare.”

Petitioner’s characterization captures the State’s

predicament in June and July 2014. The State had failed to provide discovery in a timely

manner,18 and it had failed to secure two of its witnesses (Cpl. Hunt and CPS Worker

Smith) for trial.

The West Virginia Code provides that, “[w]hen an indictment is found in any

county, against a person for a felony or misdemeanor, the accused . . . shall, unless good

cause be shown for a continuance, be tried at the same term.” W. Va. Code § 62-3-1 (1981).

The circuit court found that the State showed “good cause” to continue Petitioner’s trial

based on unavailable witnesses. On the facts of this case, we find that “good cause” did

exist for Petitioner’s case to be continued to the following term.

Petitioner was indicted on May 6, 2014, which was the first day of the May

term. W. Va. T. C. R. 2.05. The next term began on the first Tuesday in September. Id.

When the circuit court granted the State’s motion to continue, it continued Petitioner’s trial

to September 30, 2014.

See W. Va. T. C. R. 32.03 (“At every arraignment . . . [,] the defendant

shall notify the court and the attorney for the State . . . whether discovery by the defendant

is requested. If discovery is requested, within fourteen (14) days the attorney[s] . . . shall

confer in order to comply with W.Va. R. Crim. P. 16 [(disclosure of evidence)], and make

available to the opposing party the items in their custody or control or which by due

diligence may become known to them.”).

APPENDIX 19

As of June 30, 2014, when the State first moved to continue the trial, the

State had yet to receive the police report, and the State’s first expert report from the State

Police Lab had only just been issued on June 25, 2014.19 When this motion to continue

was denied, the State provided its first discovery response days later, and it supplemented

this response twice in the coming days. This Court has previously held that a continuance

is not improper where, “there is nothing to indicate that the State intentionally or

oppressively sought to delay the trial[,] nor is there a showing that the delay [of the trial]

caused any substantial prejudice to the petitioner.” State v. McCartney, 228 W. Va. 315,

324, 719 S.E.2d 785, 794 (2011). Likewise, we do not believe that the State acted

“intentionally or oppressively” in this case or that Petitioner was caused any substantial

prejudice as a result of the delay.

Moreover, because the State’s delay in providing the requested discovery

was not intentional or oppressive, the circuit court correctly determined that a continuance

was the proper remedy to address such delay. “Our cases and the West Virginia Rules of

Evidence have declared an implicit preference for a continuance when there has been a

discovery violation[,]” and we have held that Petitioner’s preferred remedy of “dismissal

should be used sparingly and only when the prosecution has been derelict in its effort to

comply with discovery orders.” State ex rel. Rusen v. Hill, 193 W. Va. 133, 141, 454

S.E.2d 427, 435 (1994). In this case, the State’s discovery response was late but not

As noted above, the record suggests that the prosecutor did not receive this

report until July 8, 2014. The prosecutor supplemented discovery the next day.

APPENDIX 20

“derelict.” Under the circumstances, continuing Petitioner’s case caused no “great . . .

disruption in the trial process” and, by affording Petitioner additional time to prepare for

trial, fully dissipated any arguable prejudice caused by the State’s untimely disclosure.20

Id. Accordingly, we find no error in the circuit court’s decision to continue Petitioner’s

trial, and we refuse to reverse his conviction based on the circuit court’s reasonable exercise

of discretion.

C. First and Second Trials—Improper Evidence

Petitioner also challenges the circuit court’s decision to admit the State’s

DNA evidence, which was extracted from a blanket found in Petitioner’s laundry room.

According to Petitioner, the State’s DNA evidence was “wholly irrelevant, non-probative,

and prejudicial” because “there was no way to distinguish between DNA that could have

had a nexus to the alleged crimes, and DNA that was wholly explainable as a natural result

of the Petitioner having contact with his own articles in his own home.” Petitioner alleges

that the circuit court made “no findings that the DNA evidence was relevant, nor that it was

substantially more probative than prejudicial under Rules 401 and 403 of the Rules of

Evidence.”

Rule 401 of the West Virginia Rules of Evidence provides that “[e]vidence

is relevant if . . . it has any tendency to make a fact more or less probable than it would be

We also note that the circuit court released Petitioner from pre-trial

incarceration on the intended date of trial.

APPENDIX 21

without the evidence[.]” W. Va. R. Evid. 401(a).21 The DNA evidence in question showed

that the blanket recovered from Petitioner’s home contained sperm DNA from Petitioner

and also contained DNA from his daughter. Petitioner cannot seriously contend that this

evidence did not tend to make the fact that Petitioner had sexual intercourse with his

daughter “more or less probable than it would [have] be[en] without the evidence[.]” W.

Va. R. Evid. 401(a) (emphasis added). “The relevant inquiry is whether a reasonable

person, with some experience in the everyday world, would believe that the evidence might

be helpful in determining the falsity or truth of any fact of consequence.” State v. Derr,

192 W. Va. 165, 178, 451 S.E.2d 731, 744 (1994) (emphasis added). Plainly, the State’s

DNA evidence met this minimal threshold of relevance under Rule 401.

Rule 403 authorizes a circuit court to “exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” W. Va. R. Evid. 403. Petitioner’s objections to the State’s DNA

evidence had nothing to do with “unfair prejudice, confusing the issues, misleading the

The circuit court made no express finding, but it did have this to say when

it granted the State’s motion to secure a DNA sample from Petitioner:

At this point, I am probably not in a real good position to

analyze the probative value of the evidence, either way it turns

out. Obviously, if it’s not Mr. [S.’s], it might be deemed to be

exculpatory evidence. It may not have a high degree of

probative value, I don’t know. But this is something the State

has the burden of going forward here, and if the State wants to

go this route, I think the State is entitled to secure samples and

swabs.

APPENDIX 22

jury,” or any other outcome of concern under Rule 403. “The mission of Rule 403 is to

eliminate the obvious instance in which a jury will convict because its passions are aroused

rather than motivated by the persuasive force of the probative evidence.” State v. Guthrie,

194 W. Va. 657, 682–83, 461 S.E.2d 163, 188–89 (1995).

Petitioner’s arguments

addressed the weight of the State’s DNA evidence, not its “pronounced tendency . . . to

lead the jury . . . to convict a defendant for reasons other than the defendant’s guilt.” Id. at

683, 461 S.E.2d at 189. Accordingly, and despite Petitioner’s insistence otherwise, Rule

403 had no bearing on whether the State’s DNA evidence was admissible, and the circuit

court’s express reason for denying Petitioner’s motion—that the weight of the State’s DNA

evidence was for the jury to decide22—was correct and went to the heart of the matter.

In the end, we agree with the State that the defect that Petitioner ascribes to

the State’s DNA evidence—that it did not necessarily exclude his innocence—is true of

many forms of circumstantial evidence. Yet for nearly twenty-five years, we have rejected

a rule that “circumstantial evidence will not support a guilty verdict unless the fact of guilt

is proved to the exclusion of every reasonable hypothesis of innocence[.]” Id. at 668, 461

S.E.2d at 174 (quoting and overruling State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826,

829–30 (1976)) (alteration removed). Instead, we have recognized that

[c]ircumstantial evidence . . . is intrinsically no different

from testimonial evidence.

Admittedly, circumstantial

evidence may in some case[s] point to a wholly incorrect result.

Yet this is equally true of testimonial evidence. In both

In denying Petitioner’s motion to exclude the State’s DNA evidence, the

circuit court stated, “That evidence—the jury can look at that and put whatever weight the

jury deems appropriate on that evidence.”

APPENDIX 23

instances, a jury is asked to weigh the chances that the evidence

correctly points to guilt against the possibility of inaccuracy or

ambiguous inference. In both, the jury must use its experience

with people and events in weighing the probabilities. If the

jury is convinced beyond a reasonable doubt, we can require

no more.

Guthrie, 194 W. Va. at 668, 461 S.E.2d at 174 (quoting Holland v. United States, 348 U.S.

121, 140, 75 S. Ct. 127, 137–38, 99 L. Ed. 150, 166 (1954)) (alteration to conform

quotation to original). For these reasons, we find no error in the circuit court’s decision to

allow the jury to hear the State’s DNA evidence, and we refuse to reverse Petitioner’s

conviction based on the circuit court’s reasonable exercise of discretion in this matter.

D. Second Trial—Biased Juror

Petitioner finds additional fault with the circuit court’s decision, at his second

trial, to seat a juror who admitted to knowing the victim and the prosecutor.23 According

to Petitioner, “it was an abuse of the Circuit Court’s discretion to leave on [the jury] a juror

who had so many indicia of connections to the case,” especially a juror who formerly held

a position of “heightened trust” with respect to the victim and the prosecutor.

Petitioner was entitled to a fair trial, and “[a] fair trial . . . requires a fair and

impartial jury.” State v. Peacher, 167 W. Va. 540, 552, 280 S.E.2d 559, 569 (1981). “[A]

trial court must grant a challenge for cause [and remove a juror] if [the] prospective juror’s

Petitioner’s brief focuses on the juror’s connections with the victim and

the prosecutor, but Petitioner also mentions the juror’s “relationship with” CPS Worker

Smith, whom the juror knew “around town.” We find this relationship even more

attenuated than the juror’s relationships with the prosecutor and the victim. To the extent,

if any, Petitioner contends that knowing the CPS worker “around town” was a predicate

for excluding the juror, we reject this contention.

APPENDIX 24

actual prejudice or bias is shown” during voir dire. State v. Miller, 197 W. Va. 588, 605,

476 S.E.2d 535, 552 (1996). “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.” Syl. Pt. 5, Miller, 197 W. Va. at 593, 476

S.E.2d at 540. “Once a prospective juror has made a clear statement during voir dire

reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective

juror is disqualified as a matter of law and cannot be rehabilitated by subsequent

questioning, later retractions, or promises to be fair.” Syl. Pt. 5, O’Dell v. Miller, 211 W.

Va. 285, 565 S.E.2d 407 (2002).

Yet, in Petitioner’s case, the juror neither confessed bias nor admitted to facts

that showed she was presumptively biased. The juror said that she knew the victim from

Civil Air Patrol, where the juror was deputy commander and the victim had been a cadet,

but the juror had not been in contact with the victim for a “couple of years.” The juror’s

connection to the prosecutor was even more remote. The juror knew the prosecutor

because the juror taught at the same school the prosecutor attended when the prosecutor

was in fifth grade and because the juror shared some social activities with the prosecutor

and her parents when the prosecutor was in 4-H. It is clear that these activities, and the

prosecutor’s fifth-grade year, happened many years ago. Admittedly, the juror thought that

she knew the prosecutor “pretty well,” but she also thought that she could fairly assess the

evidence, and the circuit court believed her, citing the juror’s “body language and how she

answered.”

APPENDIX 25

The circuit court’s credibility determination carries substantial weight with

us. Miller, 197 W. Va. at 606, 476 S.E.2d at 553. We have said that “the challenging party

bears the burden of persuading the trial court that the juror is partial and subject to being

excused for cause.” Id. Only “a clear and definite impression that a prospective juror

would have been unable faithfully and impartially to apply the law” will lead us to

intervene on appeal. Id. As we said in Miller, Petitioner has met “neither the burden of

production nor the burden of persuasion[,]” and we decline to intervene in this matter.24

Id. Accordingly, we find no error in the circuit court’s refusal to dismiss the challenged

juror, and we refuse to reverse Petitioner’s conviction based on the circuit court’s

reasonable exercise of discretion in this matter.

E. Cumulative Error

Finally, Petitioner contends that the circuit court’s several alleged errors

accumulated to his prejudice. We have held that, “[w]here the record of a criminal trial

shows that the cumulative effect of numerous errors committed during the trial prevented

the defendant from receiving a fair trial, his conviction should be set aside, even though

any one of such errors standing alone would be harmless error.” Syl. Pt. 5, State v. Smith,

We also reject Petitioner’s argument that—by way of analogy to the facts

in O’Dell, 211 W. Va. 285, 565 S.E.2d 407—the juror formerly occupied a position of trust

with respect to the victim and the prosecutor that made it inappropriate for the juror to hear

Petitioner’s case. Petitioner misunderstands the relevant dynamic. In O’Dell, the

defendant and the defendant’s attorney occupied the position of trust with respect to the

juror. Id. at 287, 565 S.E.2d at 409. In Petitioner’s case, the juror occupied the position

of trust, to the extent such trust may have existed, with respect to the victim and the

prosecutor.

APPENDIX 26

156 W. Va. 385, 193 S.E.2d 550 (1972). The threshold standard is “numerous errors

committed during” a single trial. Id. Petitioner had two trials and has yet to show that the

circuit court committed a single error in either trial, whether harmless or otherwise.

Accordingly, Petitioner has no basis for relief, and we refuse to reverse his conviction on

the alleged ground of cumulative error.

IV. CONCLUSION

For all of the foregoing reasons, we affirm Petitioner’s conviction and the

circuit court’s November 30, 2018 amended sentencing order.

Affirmed.

APPENDIX 27

APPENDIX 28

532

IN THE CIRCUIT COURT OF CALHOUN COUNTY, WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff,

ACTION NO. 14-F-29

Hon. R. Craig Tatterson

JEREMY SAUNDERS,

Defendant.

TRANSCRIPT OF PROCEEDINGS HELD before

Honorable R. Craig Tatterson of the TRIAL, VOLUME IV, in the

above-styled matter on Friday, the 1st day of December,

2017, at 9:32 a.m.

APPEARANCES:

On Behalf of the Plaintiff:

Shannon S. Johnson, Esq.

Calhoun County Prosecuting Attorney

363 Main Street, Suite 301

Grantsville, West Virginia 26147

On Behalf of the Defendant:

Daniel F. Minardi, Esq.

Andrew G. Vodden, Esq.

Fifth Circuit Public Defender Corporation

214 Main Street West

Ripley, West Virginia 25271-0797

Erin E. Kincaid, RPR

APPENDIX 29

533

I N D E X

TRIAL, VOLUME IV: DECEMBER 1, 2017

VERDICT

542

REPORTER'S CERTIFICATION

555

APPENDIX 30

534

(Proceedings outside the presence of the jury.)

THE COURT: We're on the record with Case No. 14-F-29, the

State of West Virginia versus Jeremy Saunders. Mr. Saunders

appears in person and with his lawyer, Andrew Vodden. Shannon

Johnson for the State of West Virginia.

Is Mr. Minardi close by? Or is there any need for

him at this point?

MR. VODDEN: I've tried calling him. I haven't gotten

through to his phone. I tried texting him. He hasn't

responded to me yet. I don't think at this point we need him

to go.

THE COURT: Do you know if all members of the jury are

here?

THE BAILIFF: They are, sir.

THE COURT: If you'll bring them in, please.

(Proceedings in the presence of the jury.)

THE COURT: Please be seated. Good morning.

MS. JOHNSON: Good morning, Judge.

THE COURT: The Court notes the appearance of all members

of the jury.

I'm glad to see all of you all. I had fog all the

way south of Gallipolis Ferry in Mason County, south of Point

Pleasant, to Grantsville. So I got behind three or four cars.

And I was pretty much glad I was behind them because I didn't

APPENDIX 31

535

want to be driving any faster than I was. So I'm kind of --

I'm pleasantly surprised that everybody is here on time and

ready to go.

So at this time, I'm going to send you back to the

jury room. And again this time with the instruction now's the

time you talk about the case. You will have the -- all of the

exhibits in the jury room. Again, if there's any questions,

please have the foreperson write them out and let the bailiff

know. And with that, get to work.

(Proceedings outside the presence of the jury.)

THE COURT: In recess.

(A break was taken from 9:36 a.m. to 11:32 a.m.)

(Proceedings in the presence of the jury.)

THE COURT: We're back on the record in 14-F-29.

I've seen the note. I'm going to excuse you all for

lunch. I had told the prosecutor I wasn't going to bring you

back in, and then decided I should. I told Mr. Vodden I wasn't

going to bring you back in, so he took his tie off. So that's

why he was putting his tie back on. So this is just a

procedural matter I couldn't progress to in the jury room.

Come back -- do you need an hour? How long do you need?

JUROR: Yeah. Just the normal lunch hour. That's it.

THE COURT: Okay. Be back at 12:30 outside the courtroom.

I'll bring you back in. And while you are not in the jury

APPENDIX 32

536

room, don't discuss it. Don't allow anybody to talk to you.

If anybody tries to, let the bailiff know or let me know.

Enjoy your lunch. I'll see you in an hour.

(Proceedings outside the presence of the jury.)

THE COURT: See you all in a little bit.

(A break was taken from 11:34 a.m. to 1:16 p.m.)

THE COURT: We're back on the record in 14-F-29, State of

West Virginia versus Jeremy Saunders. Mr. Saunders appears by

-- in person and with his lawyers. Prosecuting attorney also

appears.

I have a handwritten note from the jury foreman. On

State Exhibit 10, there are multiple notes that say - and then

in quotation marks - CMD's dictations - end quotation marks.

But none of us can find a doctor's statement and were wondering

if there was one that had never been presented or given to us.

Signed who I believe is the jury foreperson.

If you-all want to take a look at it, you may.

MS. JOHNSON: My response to that is that that is the

complete exhibit. You know, they've never been given that. So

if they can't find it within those papers that they have, that

it's not here.

THE COURT: Any objection to something similar to that?

MR. MINARDI: No, Your Honor.

THE COURT: I would just put -- I'll handwrite on the back

APPENDIX 33

537

of this response, The jury has all the exhibits that were

introduced in trial.

Is that sufficient?

MS. JOHNSON: Yeah.

THE COURT: The jury has all the exhibits in its

possession that were introduced at trial.

Now is that sufficient? I mean, that answers the

question without -- I think that's short enough.

MS. JOHNSON: I think so.

THE COURT: Everybody agree? Okay.

MR. VODDEN: I agree.

THE COURT: I'm going to sign it.

Sheila, if you'll show that to them. Then give it to

the bailiff.

Hearing no objections, it will go to the jury that

way.

MR. VODDEN: No objection.

THE COURT: In recess.

(A break was taken from 1:19 p.m. to 2:49 p.m.)

(Proceedings outside the presence of the jury.)

THE COURT: On the record in 14-F-29, outside the presence

of the jury. Court notes the appearance of Mr. Saunders in

person and with his lawyers. State of West Virginia by the

prosecuting attorney.

APPENDIX 34

538

Received a note. I have shared it with counsel for

the state and counsel for the defendant. Unfortunately cannot

come to a unanimous decision even after hours of back and forth

deliberation and debating in this case. It's signed by the

foreperson.

I have provided the blessing instruction or the Allen

instruction. Counsel is reviewing it now.

Are there any objections to that?

MR. MINARDI: Not on the part of the defense.

MS. JOHNSON: No, Judge.

THE COURT: Okay. Bring it back up, please.

Sheila, will you put the note in the file?

THE CLERK: I sure will.

THE COURT: All right. Will you bring the jury in,

please?

(Proceedings in the presence of the jury.)

THE COURT: Please be seated.

The Court notes that all members of the jury are

present and accounted for. The Court will place on the record

that the Court has received a note from the foreperson that it

appears the jury has been unable to make a decision. I am

going to give you further instructions at this time.

You've informed the Court of your inability to reach

a verdict. At the outset, the Court wishes you to know that

APPENDIX 35

539

although you have a duty to reach a verdict if that is

possible, the Court has neither the power nor the desire to

compel agreement upon a verdict.

The purpose of these remarks is to point out to you

the importance and the desirability of reaching a verdict in

this case, provided, however, that you as individual jurors can

do so without surrendering or sacrificing your conscious

scruples or personal convictions.

You'll -- you'll recall that upon assuming your

duties in this case each of you took an oath. That oath places

upon each of you as individuals the responsibility of arriving

at a true verdict upon the basis of your own opinion and not

merely upon acquiescence in the conclusions of your fellow

jurors. However, it by no means follows that opinions may not

be changed by conference in the jury room.

The very object of the jury system is to reach a

verdict by a comparison of proofs with your fellow jurors.

During your deliberations, you should be open minded and

consider the issues with proper deference to and respect for

the opinions of each other. And you should not hesitate to

re-examine your own views in the light of such suggestions.

You should consider also that this case must at some

time be terminated. That you are selected from the same source

from which any future jury must be selected. That there is no

APPENDIX 36

540

reason to suppose that the case will ever be submitted to 12

persons more intelligent, more impartial, or more competent to

decide it, or that more or clearer evidence will ever be

produced on one side or the other.

So with that, I'm going to send you all back to try

again. It is 3:30 right now. If at 4:00 you remain so

deadlocked, please furnish a note to the bailiff. Bring it to

my attention. But I want you to consider what I just read to

you, and go back and give it one more shot. So -- but at four

o'clock, if you guys have not made any progress, let us know.

Thank you.

(Proceedings outside the presence of the jury.)

THE COURT: Okay. Please be seated.

Anything to take up?

MR. MINARDI: Not at this time.

MS. JOHNSON: Do we have to stop at four?

THE COURT: I will see where they are at four. And we'll

just go from there. If they're making progress, we'll stay

here until they're done.

MS. JOHNSON: Okay.

THE COURT: If they're not making progress, then we'll

see.

MS. JOHNSON: Okay.

THE COURT: In recess .

APPENDIX 37

541

(A break was taken from 3:30 p.m. to 4:30 p.m.)

THE COURT: We are back on the record in Case No. 14-F-29,

the State of West Virginia versus Jeremy Saunders.

Mr. Saunders appears with his attorneys. The prosecuting

attorney is also here.

While we were in recess, we received a handwritten

note from the jury. May we get a better explanation of the

paragraph explaining reasonable doubt where it says that the

jury views evidence as permitting two conclusions of innocence

or guilt, that the jury should adopt a conclusion of innocence

on the third paragraph of page five? It is then signed by the

grand [sic] jury foreman. Provided the note to counsel for the

defendant, also prosecuting attorney.

I believe it's agreed upon that I'm going to

handwrite on the bottom of this, If the jury feel two -- feels

two conclusions - in parentheses - guilty and not guilty - end

parentheses - are possible based on all the evidence, the jury

should adopt the conclusion of innocence. Is that correct --

MS. JOHNSON: Yeah.

THE COURT: -- and agreed upon?

MR. MINARDI: Yes.

THE COURT: No objections?

MS. JOHNSON: No objection.

THE COURT: Okay. I will do my best to make it legible.

APPENDIX 38

542

Will you please show that to counsel? And if there

are still no objections, return it to the jury room.

MS. JOHNSON: No objection, Judge.

MR. MINARDI: No objection.

THE COURT: Okay. We're in recess.

(A break was taken from 4:33 p.m. to 4:41 p.m.)

THE COURT: We're back on the record in Case No. 14-F-29,

State of West Virginia versus Jeremy Saunders. Mr. Saunders

again appears in person and with his attorneys. The

prosecuting attorney is present representing the State of West

Virginia.

I've received an indication from the bailiff that the

jury has reached a verdict.

I'm going to ask the foreperson, has the jury reached

a verdict?

FOREPERSON: Yes, sir.

THE COURT: Will you please deliver the verdict form to

the bailiff?

I'm going to hand the verdict to the clerk and ask

that she read the verdict.

THE CLERK: Jury verdict count one. We the members of the

petit jury, as to count one of the indictment, we find the

defendant, Jeremy Todd Saunders, not guilty.

We the members of the petit jury, as to count five as

APPENDIX 39

543

to the issued joined as count five of the indictment find the

defendant, Jeremy Todd Saunders, not guilty.

We the members of the petit jury, as to the issues

joined as count eight of the indictment, find the defendant,

Jeremy Todd Saunders, not guilty.

We the members of the petit jury as to the issues

joined as count nine of the indictment, find the defendant,

Jeremy Todd Saunders, not guilty.

We the members of the petit jury, as to the issues

joined as count 13 of -- of the indictment, find the defendant,

Jeremy Todd Saunders, not guilty.

We the members of the petit jury, as to issues joined

as count 16 of the indictment, find the defendant, Jeremy Todd

Saunders, not guilty.

We the members of the petit jury, as to issues joined

as count 17 of the indictment, find the defendant, Jeremy Todd

Saunders, not guilty.

We the members of the petit jury, as to the issues

joined as count 21 of the indictment, find the defendant,

Jeremy Todd Saunders, not guilty.

We the members of the petit jury, as to the issues

joined as count 24 of the indictment, find the defendant,

Jeremy Todd Saunders, not guilty.

THE COURT: If you'll please deliver the jury verdict form

APPENDIX 40

544

to counsel so they can inspect the same.

So says each member of the jury, is that your

verdict?

(Affirmative responses.)

THE COURT: Is there a request to poll the jury?

MS. JOHNSON: Yes, Judge.

THE COURT: We'll have to go back and get a list of names.

We've been back and forth.

THE CLERK: I'm sorry.

MS. JOHNSON: Do you want -- I have --

THE CLERK: Do you have a list?

MS. JOHNSON: -- one in my office.

THE CLERK: The one that has the 13?

MS. JOHNSON: Uh-huh.

THE CLERK: Can I have that, please?

MS. JOHNSON: Yeah. It's right in the box on the table in

my office.

THE COURT: You heard the verdict which your foreman

signed and which the clerk read. When your name is called, you

will answer and signify whether that verdict was then and is

now your own true verdict.

THE CLERK: Marisha Collins, is that your verdict?

JUROR: I guess it has to be by the law.

THE COURT: Go through the list.

APPENDIX 41

545

THE CLERK: Amanda Frederick, is that your verdict?

JUROR: Yes.

THE COURT: Samuel McCartney, is that your verdict?

JUROR: Yes.

THE COURT: Lisa McCumbers, is that your verdict?

JUROR: Yes.

THE CLERK: Matthew Nicholson, is that your verdict?

JUROR: Yes.

THE CLERK: Michele Nicholas, is that --

JUROR: Yes.

THE CLERK: -- your verdict?

JUROR: Yes.

THE CLERK: Stephen Pope, is that your verdict?

JUROR: Yes.

THE COURT: Lisa Ramsey, is that your verdict?

JUROR: Yes.

THE CLERK: Gary Richards, is that your verdict?

JUROR: Yes.

THE COURT: Marty Roberts, is that your verdict?

JUROR: Yes.

THE CLERK: Robert Siers, is that your verdict?

JUROR: Yes.

THE CLERK: Ryan Slider, is that your verdict?

JUROR: By law, I guess.

APPENDIX 42

546

THE COURT: Ms. Collins, you expressed some hesitation as

to whether or not that was your verdict. There were several

questions back to me to further explain the law. After you

heard my -- what I'm going to say are written explanations as

to the law, was -- is that your verdict?

JUROR: If it has to be.

THE COURT: It doesn't have to be.

JUROR: Then no.

THE COURT: Okay. Mr. Slider, if I were to ask you the

same question I had just asked Ms. Collins, you -- there were

several questions made during the course of deliberations. I

submitted handwritten answers. Is your verdict a verdict of

not guilty on all charges?

JUROR: No, sir.

THE COURT: Okay. At this time, I am going to direct the

jury to go back to the jury room. What I'm going to instruct

you to do now is -- you're not deliberating on the verdict.

You are -- you are going to determine whether or not getting

dinner, coming back, and deliberating more may help. Or if

coming back -- coming back on Monday after having the weekend

off may help. I'm not doing this in any way to try to

influence a decision one way or the other. The only thing I

want a response back whenever you come back in here is more

time may help, more time will not help.

APPENDIX 43

547

So I can't let you do it here in the presence of

everybody else. So with that, I'm going to send you back to

the jury room with the instruction to make a determination as

to whether you are hopelessly deadlocked or whether or not you

need more -- you think more time may help.

So, Bailiff, if you will take them back to the jury

room.

(Proceedings outside the presence of the jury.)

THE COURT: Be seated, please. We're out of the presence

of the jury.

In 19 years, I've never seen that. I think it's

probably the reason why whenever you give that Allen or the

blessing instruction they say it should be given in utmost --

with utmost caution. We'll be in recess until the jury comes

back and let's us know. I don't anticipate this taking them

very long.

(A break was taken from 4:50 p.m. to 4:56 p.m.)

(Proceedings outside the presence of the jury.)

THE COURT: Back on the record in 14-F-29. The Court

notes the appearance of Mr. Saunders in person and with his

lawyers. Prosecuting attorney for the State.

I have received a letter from the foreperson.

Unfortunately, the members of the jury are at a deadlock and

have made their minds up and will not change their mind one way

APPENDIX 44

548

or another. And that is their/our final answer.

If you-all want to take a look at it, you may. If

you don't, that's fine too. That will be lodged in the court

file.

Is there a motion? Or do you want the Court to make

a finding on its own?

MR. MINARDI: Move for mistrial.

THE COURT: I think this jury has been -- it started

yesterday afternoon. I don't know if they put a lot of time

in. But they at least got started. Did some work yesterday

afternoon. Deliberated until 11:30 this morning. Started back

again there probably before 12:30. Took one break in the

afternoon and have been hard at it ever since.

There were -- appeared to be a lot of well-reasoned

questions from the jury. The jury returned with a verdict.

The initial answer, it seemed to indicate that it was

everyone's verdict. I don't know if everybody said yes or no.

But there was a lot of yeses it was their verdict. When they

were polled, there were two members of the jury that did not

now or did not at that time consent to the -- to the verdict

and said it is not their verdict.

I am going to -- unless I hear an objection from the

State, I'm going to order a mistrial.

I want to address the jury with everybody in here.

APPENDIX 45

549

So if you'll get the jury in.

(Proceedings in the presence of the jury.)

THE COURT: Please be seated.

Ladies and gentlemen of the jury, I want to express

my appreciation for the time and the service that you've given

in this case. It has been a difficult case. You've been

conscientious. You've been attentive throughout.

One thing that I have noticed since I've been on the

bench, which just started in January -- I don't know if you

just are getting better lawyers down there than I was. Because

it seemed like whenever I was down there trying cases, the

people were going to sleep in the jury box. I didn't see that

here at all today. And I really haven't seen it in any of the

five cases that I've presided over prior to this one.

I understand you've sacrificed time away from

families, jobs, other obligations. You performed your duties

well. Without citizens such as you willing to sit in judgment

and render justice between parties, the judicial branch of the

government could not function.

Don't feel bad that you couldn't come to a decision.

It's just a situation -- this was a tough case. I understood

it sitting here. My law clerk, who is not here today,

understood it. We've talked about it. It was a tough case.

Don't concern yourselves, anyone else with your all's

APPENDIX 46

550

inability to reach a unanimous verdict. You all are the only

ones that were present for every part of the trial. You

listened to me give instructions. You listened to the lawyers

give their opening. Heard the testimony. You listened to

about 40 minutes' worth of instructions again. You listened to

closing arguments.

But the difference between you and the rest of the

people in the courtroom is you were actually there in the

deliberations. And you all are the only ones that were there

for the entire part of the trial. You're the only ones that

knew what was going on at every step of the way.

Don't worry about what anybody else may say about

this case, about where you were in the jury room, where you

weren't in the jury room, the fact that you couldn't reach a

unanimous decision. Nobody has the right to ask you to explain

why you did what you did or didn't do.

The lawyers -- now you're allowed to talk about the

case if you want. I'm going to advise you not to. Now, I know

I've told you a bunch don't talk about it with anybody else.

At this point, I'm directing the lawyers, the police, the

defendant, his family -- I'm directing everybody not to talk to

you about this case. That's not to say that if you want to

talk about the case you -- you can't. But I'm directing them

not to. If they want to talk to you about the case, they're

APPENDIX 47

551

going to have to come back to me and get an order.

With that, again, I give you my sincere appreciation

for your time and your service here. And with this, you are

excused for today.

Bad news, Sheila?

THE CLERK: They have to call back Monday to see if

they're needed Tuesday.

THE COURT: But you won't get me, because that's out.

I'll be --

THE CLERK: It's a different judge.

THE COURT:

-- dealing with some smiling faces in Jackson

County that day. So go and enjoy the Christmas parade, and

have a good weekend. Thank you.

JUROR: So we've got to call back Monday, Judge?

THE CLERK: Yes.

THE COURT: You do.

JUROR: Any particular time, Sheila?

THE CLERK: You can call me after two. Maybe I'll have an

answer for you then.

JUROR: Okay.

JUROR: What about work excuses?

THE CLERK: I can do that right now for you.

JUROR: I need one too.

THE CLERK: Okay.

APPENDIX 48

552

THE COURT: Do you want her list?

THE CLERK: Yes, please.

THE COURT: Yeah.

THE CLERK: See you guys.

THE COURT: Have a good weekend.

THE CLERK: You guys too.

The keys are in here somewhere, I hope.

MS. NICOLE VILLERS: We have them right there.

THE CLERK: Yes, they are.

MS. JOHNSON: I thought I heard them rattling.

THE CLERK: I did too, yeah.

I need someone to collect the exhibits for me. Bring

them down if you don't care.

MS. JOHNSON: Okay. I'll have Jeff do it.

THE CLERK: Okay.

THE COURT: You all can be seated.

I can offer you a trial in -- what's our trial -- if

you so desire. It's up to the State whether the State is going

to retry the case.

MS. JOHNSON: At this point, absolutely, yes.

THE COURT: Okay. All my stuff is in the room too. Do

you remember the date?

COURT REPORTER: December 12th?

THE COURT: No. We are looking next term.

APPENDIX 49

553

COURT REPORTER: It's in April. Sorry. Give me just a

second.

THE COURT: I didn't tell you that.

MS. JOHNSON: Was it sometime in -- I don't know.

THE COURT: I think I -- I don't remember if it was in

March or April.

COURT REPORTER: It's in April. But I can't remember

which date.

MR. MINARDI: It was like April the 10th or something.

THE COURT: I can look it up.

MS. JOHNSON: Let me get my calendar -- get it out -- it's

in my purse.

COURT REPORTER: Calhoun trials on April 10th.

MS. JOHNSON: Will you get the evidence and take it down?

Well, no. Never mind.

COURT REPORTER: Do you want me to see if there's any

earlier date?

THE COURT: Yes. Yeah. Go get the evidence and take it

down.

COURT REPORTER: I'm seeing April 10th, Judge.

THE COURT: April 10? Or no?

COURT REPORTER: Yes, sir. April 10.

THE COURT: April the 10th.

MS. JOHNSON: Okay.

APPENDIX 50

554

THE COURT: At 9:30 a.m. If you detect pretrial issues,

get with my office and schedule a pretrial.

Mr. Saunders, I don't know how many times I'll have

to say this to you. You're ordered to reappear on April

the 10th at 9:30 a.m.

MR. TODD SAUNDERS: Yes, Your Honor. I'll be here.

THE COURT: You all have a good weekend.

(Court adjourned at 5:06 p.m.)

APPENDIX 51

555

STATE OF WEST VIRGINIA

COUNTY OF CALHOUN, to wit:

I, Erin E. Kincaid, RPR, Official Reporter of the

Fifth Judicial Circuit, West Virginia, do hereby certify that

the foregoing is a true and correct transcript of the TRIAL had

in State of West Virginia vs. Jeremy Todd Saunders, Case No.

14-F-29 on Tuesday, the 28th day of November, 2017; Wednesday,

the 29th day of November, 2017; and Thursday, the 30th day of

November, 2017; and Friday, the 1st day of December, 2017, as

reported by me in machine shorthand.

I hereby certify that the transcript within meets

the requirements of the Code of the State of West Virginia,

Section 51-7-4, and rules pertaining thereto as promulgated by

the Supreme Court of Appeals.

Given under my hand this 18th day of February,

2019.

________________________________

Erin E. Kincaid, RPR

Official Reporter, Fifth Judicial

Circuit, West Virginia

APPENDIX 52

affirmations of the verdict such that it was inappropriate and prejudicial for the Circuit Court

to inquire further. Because there was unanimous concurrence, as required by Rule 31(d), the

only appropriate action for the Circuit Court to take was to record the not guilty verdict, and

discharge the Petitioner from further prosecution. The Circuit Court's failure to do so

constitutes a due process violation, specifically by trying the Petitioner a second time for the

same offense following a valid acquittal. (See, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253

(1992); Article III, Section 5 of the West Virginia Constitution; Double Jeopardy Clause,

Fifth Amendment, United States Constitution, as incorporated by the Fourteenth

Amendment, United States Constitution.)

This Court has not directly examined the issue of what type of response constitutes an

affirmation sufficient to satisfy the "unanimous concurrence" requirement of Rule 31(d).

Other courts have. The most salient of these decisions from other jurisdictions is Johnson v.

United States, 470 A.2d 756 (D.C., 1983), in which the phrase "I guess" is specifically

analyzed. In Johnson, the jury returned a guilty verdict. Upon being polled, one juror said

"guilty, I guess," to which no objection was made by any party, and no further inquiry was

performed by the trial court. The District of Columbia Court of Appeals affirmed the

conviction, and held that the words "I guess," while "susceptible to different interpretations,"

did not require on their face further elaboration by the trial court. Id., at 759-60.

The Johnson Court, in footnote 2, observed that:

An example provided during oral argument serves to illustrate this

common use (or misuse) of the phrase "I guess." When two judges

pass in the hall shortly before they are both scheduled to attend an

appellate argument, one might well inquire of his colleague, "See

you in court?" The answer could reasonably be, "Sure, I guess." This

response would not, however, generally be understood to mean that

the responding judge is uncertain whether he will be attending the

argument.

In viewing the jurors' statements in the case below, in this light, the words "I guess"

APPENDIX 53

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.