State of West Virginia v. Timothy Ray Sutherland

Virginia, Plaintiff of West STATE

Below, Respondent SUTHERLAND,

Timothy Ray Defendant

Below, Petitioner. 11-0799.

No. Appeals of

Supreme Court of Virginia. April 2013.

Submitted

Decided June

4H Parmer, County Jason D. Kanawha Public Office, Charleston, WV, Defender’s for Peti- tioner. General, Morrissey, Attorney

Patrick Lau- General, Young, Attorney ra Assistant Charleston, WV, Respondent. police arrested Mr. Sutherland an DAVIS, Justice: 30, 2009. abandoned trailer on December Timothy Ray appeal by is an This initially police arrested Sutherland Sutherland”) (hereinafter “Mr. Sutherland failing reg- outstanding warrant for degree murder. for first conviction from his Subsequent to his ister as a sex offender.4 Circuit was sentenced Mr. Sutherland arrest, killing Mr. Sutherland confessed County prison life in of Kanawha Court 2010, grand jury April In a Ms. Smith. parole. In this possibility of without the charges of first indicted Mr. Sutherland on argues that the cir appeal, Mr. Sutherland robbery. degree degree murder and first by failing to error committed cuit court 2011, three-day a trial in March a After juror for cause.1 After a prospective strike convicting returned a verdict Mr. Sutherland briefs, the rec parties’ review of the careful murder, a recommen- of without first listening to the appeal, on ord submitted mercy; jury acquitted Mr. of the dation parties, we affirm. arguments of the degree robbery.5 of first Sutherland I. II. AND PROCEDURAL

FACTUAL

BACKGROUND STANDARD OF REVIEW 2009, living tempo-

In Mr. Sutherland cousin, Smith, rarily home of his Stacie at the to review the trial court’s We are asked Albans, early Virginia. In the St. potential juror for not to strike a decision 28, 2009, of morning hours December of cause. have articulated the standard We argument Ms. got into an with Sutherland of this issue as follows: review in- argument in her bedroom. Smith reviewing qualifications In the of Sutherland comment made Mr. volved a case, to serve in a criminal we follow boyfriend her did not treat that Ms. Smith’s three-step process. plenary Our review is During argument, Ms. Smith properly. statutory legal questions such as the as “junkie”. Mr. Suth- called Mr. Sutherland jurors; clearly qualifications for erroneous outraged being at called a erland became support the facts as to whether drug left the bedroom. He then addict and grounds upon disqualification; relied ciga- went into the kitchen smoked of discretion as to the rea- abuse minutes, a few he returned to rette. Within employed procedure of the sonableness carrying a butcher knife. Mr. the bedroom ruling disqualification by the and the fatally on the Sutherland stabbed Ms. Smith trial court. her neck as she laid on the bed.2 side of Miller, 600-01, murder, 588, v. 476 fleeing the scene of the Mr. State 197 W.Va. Before 535, (1996). 2, Syl. pt. See phone, cell cred- S.E.2d 547-48 Sutherland took Ms. Smith’s card, Mayle, 178 money, keys. and ear He also wrote State W.Va. it Miller, Syllabus point 4 “Cheating living of the words Whore” on a Court further held: room wall in the house.3 only night Although as- at a friend’s home. The record does 1. Mr. Sutherland briefed one error, age signment Appeal his Notice of listed not indicate the of either child. assignments Mr. Suth- three of error. Insofar as only appeal, briefed one issue in this It was later determined that Mr. Sutherland erland has police remaining assigned two issues in the Notice wrote the words on the wall to make the suspect boyfriend Appeal deemed waived. See State v. Har- Smith’s had commit- are that Ms. ris, 472 n. ted the crime. (2010) ("Assignments of error that are not n. arrest, appeal may police argued be deemed time of the did not in the briefs on 4. At the waived.”) (internal quotations charge Mr. Suther- Court to be have sufficient evidence to However, omitted). land with the murder of Ms. Smith. and citation "person in the murder. he was a of interest” stabbing, of the Ms. Smith's infant 2. At the time facts, home, assignment they relate to the 5. Other son was in the but he was his bedroom. III, error, daughter spent will be addressed Section had a who had Ms. Smith also infra. determining specific The relevant test for wheth- facts which show the has such er a is biased is whether the prejudice or connection parties with the opinion had a fixed that he or she presumed.” such trial that Syl. bias is pt. Mil- judge guilt ler, impartially could not of the id. though defendant. Even swears proceeding, In this argues Mr. Sutherland any opinion that he or she could set aside judge the trial should have struck a might he or she hold and decide the case prospective juror for upon cause based evidence, juror’s protestation following exchange: voir due impartiality should not be credited if the Okay. [Defense you. Counsel:] Thank other facts in the record indicate to Part of the evidence you that all of —some contrary. will see in this case is a video of Mr. S.E.2d 535. With these Sutherland confessing that he took Stacie mind, pre- we turn to the

standards issue So, jurors, Smith’s life. you won’t real- assignment sented as an of error. ly deciding be whether Mr. Sutherland is Instead, guilty you’ll or innocent. what be III. deciding exactly on is what crime Mr. guilty you Sutherland is of.... If find him DISCUSSION guilty murder, degree of first you also presents This ease for two issues resolu- grant have to decide whether or not to Mr. First, tion. we must determine whether the mercy. Sutherland granted trial court should have Mr. Suther- Granting mercy Mr. Sutherland means prospective juror land’s motion to strike a for year’s that 15 from now the Parole Board Second, opportunity cause. we take this ease; will take a they’ll look at his hear Phillips, revisit our decision in State v. relatives, from the victim’s friends and per- W.Va. which people crime; by who were impacted amits new trial whenever a criminal defen- and then the Parole Board will decide dant uses a strike to remove a whether or not Mr. gets Sutherland ever prospective juror that should have been prison, to leave if prison, he leaves struck for cause. We examine each issue supervised parole. he’ll be on separately. Granting mercy guarantee is not a Failing Prospective A. to Strike a prison provided you he’ll ever leave Juror for Cause murder, him guilty degree find of first but Mr. Sutherland pro contends that a mercy option does mean that that is avail- juror spective was biased and that the trial to him. able granted court should have his motion to juror strike the for cause. This Court has you, judge. [Defense Thank Counsel:] held: that, you-all telling my question After first determining relevant test for wheth- you anyone you for is: Does think if inten- juror er a biased is whether the someone, tionally you murder should never opinion had such a fixed that he or she prison? leave judge impartially guilt could not of the (WHEREUPON, Potential Juror Num- though defendant. Even swears hand.) ber Kevin raised Mr. any that he or she opinion could set aside Wong. [Defense Counsel:] Mr. Is there might he or she hold and decide the ease anyone you intentionally else that if thinks evidence, juror’s protestation someone, you murder should never leave impartiality should not be credited if the prison? other facts the record indicate to the

contrary. (WHEREUPON, response there was no by potential jurors.) Syl. Miller, pt. W.Va. recognized so, S.E.2d 535 Wong, you We also have [Defense Counsel:] Mr. if “[ajctual by bias can be shown either guilty found Mr. Sutherland of first

juror’s by murder, own proof admission of bias or mercy? could not recommend other, against and no No, that reason alone just somebody if for feel Wong:]

[Mr. objection prisoner.” of the life, you don’t have the and since takes a Virginia, that’s penalty here West death Ultimately, the Court at 809. stay. ought where he did not abuse that the trial court found Greer striking potential

its discretion holding its opinion set out for cause. The anyone here Is there Counsel:] [Defense as fol- Syllabus points 5 and 6 the issue eye saying, “An with the agrees who lows: tooth?” eye and a tooth for a capital in a empaneling (WHEREUPON, Juror Num- Potential on his voir proposed examined case a hand.) Wong raised his ber Mr. Kevin dire, pro- question to a who in answer Wong. Is there Counsel:] [Defense says, he has consci- pounded the court saying, of the anyone here who’s heard inflicting against scruples entious only eye makes the whole eye “An for an prop- incompetent and is death-penalty, is world blind?” court, although he erly rejected by the law and (WHEREUPON, says governed response was no will there the evidence. jurors.) potential gives a dis- 6. Since our statute that the above ex- Mr. Sutherland contends cretion, guilty of they prisoner find a when to strike Mr. change required the trial court say degree, to he shall murder in the first panel. support In jury from the peni- punished by imprisonment the be contention, pri- Sutherland relies State, tentiary, important to the it is more Greer, 22 v. marily upon the decision State juries should have no conscientious that (1883). W.Va. 800 penal- against inflicting the death scruples charged with defendant in was The Greer ty- time, murder, which, degree at that was first Greer, 22 W.Va. 800. However, by the punishable death.6 instructive, murder, Although find we Greer convicted him of second fact, years. controlling. In prison for ten find it Greer he was sentenced we do not by evolving implicitly defendant raised on modified our One of the issues the has been cause, striking potential juror the trial court committed for as appeal was that law on cause, juror v. striking, potential Syllabus point 8 of State error in for illustrated Newcomb, scruples” against im- 679 S.E.2d who had “conscientious (2009): opinion in posing penalty. the death The facts on the issue as fol- Greer set out the juror prospective makes a clear When a

lows: dire, the during voir statement of bias automatically disquali- juror is exceptions prospective was the The bill of second from the challenge and must be removed sustaining the fied ruling of the court However, Duff, juror panel for when on his voir cause. who was sworn W.S. vague statement dire, makes an inconclusive or having regularly drawn as a been possibility of bias or by only the juror. question propounded was indicates juror prospective must be any prejudice, conscien- the the “whether he had court by the trial court questioned further scruples against inflicting the death tious which, determine if actual bias an- counsel to penalty proper in a case?” To and/or Likewise, initial made, had or exists. swer was that “he conscientious juror to a broad response by prospective against inflicting penal- the death scruples during dire will by general question voir ty; governed be the law or that he would not, itself, to deter- evidence, inflicting in and of be sufficient opposed to but was prejudice exists. mine whether a bias or capital punishment.” “Whereupon ... said situation, inquiry by the further rejected by court In such a proposed was 607, 608, land, penalty Virginia 177 W.Va. "In the death West (1987). legislature.” was abolished Vance Hol- Nonetheless, required. appeal trial court is raised the defendant on was that trial court should exercise caution that the circuit court in denying erred his motion questions pro- further dire such voir to a prospective juror, to strike a David Small- spective juror be couched in neutral wood, should for cause. The opinion set out the language prospective intended to elicit the argument as follows: beliefs, juror’s feelings, true Specifically, Appellant argues in his thoughts language sug- —and potential juror brief that “predis- gests specific response, or otherwise posed make a recommendation of no juror. seeks to rehabilitate the Thereaf- mercy Appellant verdict.” The contends ter, totality of the circumstances must that the stated that it would be “un- considered, proba- and where be there is a likely any mercy that would feel but I bility prospective juror of bias the must be to, know, would have I would have to panel removed from the the trial court through.” hear the ease also for cause. said that he strong proponent is a of the Assuming, argument, for the sake of penalty death and believes that West Vir- Virginia penal- had retained the death ginia adopt should it as a sentence. Be- ty, disqualification po- automatic of a Greer’s cause the grant circuit court refused to only potential if tential could occur motion, Appellant’s he was forced to use a bias,” juror has made a “clear statement of peremptory strike to juror. eliminate the words, required by Newcomb. In other contrast, Appellee maintains that require potential juror Newcomb does not Juror Smallwood indicated that he favored automatically disqualified making a state law permitting penalty, the death if biased statement the statement is inconclu- acknowledged but he that West Syl. vague. pt. sive or See O’Dell v. does not penalty, have the death that he Miller, grant mercy could and that he would have exception It is this in Newcomb that has to listen to the facts of the case before any general application modified of Greer on making a decision. the issue of bias. Juntilla, 499, 227 W.Va. at 711 S.E.2d at 569. proceeding, In the instant Mr. Suth facts, upon Based the above this Court found argues Wong erland that Mr. made a clear judge that the tidal did not abuse his discre- Therefore, statement of bias. Mr. Suther denying tion in the motion to strike the contends, Wong land Mr. should have been potential for cause: disqualified. disagree. We A review of the record reveals that Ju- Wong responded general Mr. in a manner ror Smallwood told the circuit court that it question person to the of whether a should Virginia was belief that West should prison committing ever leave for intentional penalty. have a questioned death When following up murder. Rather than with fur- Virginia further about having not the Newcomb, questions, required ther as under whether, that, penalty light death and in of stopped questioning defense counsel Mr. mercy, Juror Smallwood could recommend Wong mercy. on the issue of Under the juror responded: the Newcomb, decision defense counsel had an to, know, you I obligation questions have hear the case. I to ask further in order don’t if I place give know could stand here and Wong’s response to into the record Mr. very being that decision at this time but it would to able to follow the law on the issue of probably unlikely I mercy any that would feel judge as directed the trial with to, know, mercy but I regard A would have thereto. case which illustrates this Juntilla, 492, through. would have to hear the case point is State v. 227 711 S.E.2d 562 upon Based an examination of the entire Juntilla, Smallwood, the defendant was convicted voir dire of Juror the Court murder, degree of first sexual finds that the circuit court did not err in degree, conspiracy denying Appellant’s assault the first and to motion to strike commit sexual assault. One of the issues for cause.

416 499-500, Juntilla, though 711 S.E.2d for cause. Even the defendant 227 W.Va. at at rors strikes, jurors peremptory both with struck 569-70. argued that he to a new he was entitled trial showing is Juntilla instructive guaranteed jury panel because he was of that, potential in a first when a prospective jurors, when he unbiased exer- general makes a statement of case murder (1) strikes, under cised his mercy, being predisposed granting to not (2) and federal constitutions and state W. questioning occur to ascertain should further (1949) (Repl.Vol.2010). § 62-3-3 Va.Code willingness impartially decide juror’s to statutory The constitutional and issues ad- upon the law and the facts of the issue based be examined Phillips sepa- dressed will Here, counsel presented. defense the case rately. Wong inquiry make further of Mr. failed to right to new 1. No an automatic trial he follow trial as to whether would under the state federal or constitutions the issue instructions and decide court’s prejudice. showing without The de- mercy upon the facts of the case. See based Phillips contended that he was fendant 588, 6, Miller, 476 Syl. pt. part, 197 W.Va. showing to a new entitled trial without (“The challenging party bears S.E.2d presence because “the the two persuading the trial court that the burden jurors jury panel biased denied his partial subject being to impartial jury under the Sixth caused[.]”). Consequently, the for excused Fourteenth to the Amendments United court did not abuse its discretion in trial 14 of States Constitution Section Article denying to strike Mr. Sutherland’s motion III of West Constitution.” Phil- cause. Mr. 586, lips, 194 W.Va. 461 S.E.2d at at 92. rejected argument Court This after de- Using Peremptory Strike to Re- B. that, Oklahoma, termining Ross 487 move a Juror Who Should Have 101 U.S. S.Ct. L.Ed.2d 80 Been for Cause Removed Supreme the United States Court ex- “ Assuming, argument, for the sake of pressly long held that ‘[s]o striking court erred in the trial impartial, that the sits the fact defendant cause, Mr. further con- Wong for Sutherland challenge to use a had achieve automatically tends that he was entitled result does Sixth not mean the Amend- ” Syllabus point trial under 8 of State v. Phillips, was ment violated.’ W.Va. at Phillips, Ross, (quoting S.E.2d at 487 U.S. (1995),7 80).8 because remove 108 S.Ct. 101 L.Ed.2d at jury panel per- Ross, from the with a consequence As a of the decision we Syllabus point strike. emptory Phillips: While we understand Mr. held in 7 of Syllabus point reliance on 8 of Sutherland’s A trial court’s to remove a failure biased believe it Phillips, we is time to revisit the a jury panel from does not violate a remedy recognized right by impartial automatic new trial an defendant’s to a trial point. guaranteed Syllabus explained jury by As will be the Sixth and Four- below, remedy teenth the United the automatic trial al- Amendments to States Constitution and Section of Article by Syllabus point Phillips is lowed 8 of not III of West Constitution. In expressly authorized the statute it relied to order succeed in a claim that or her required by upon, nor is it the state or impartial jury right constitutional to an constitution. federal violated, was a must defendant affirmative- Phillips defendant The was ly prejudice. show killing of second for convicted murder 461 S.E.2d 75. appeal, his wife. On one of the issues raised was presence the defendant the trial court Under the mere Phillips, of ju- panel in failing jury committed error to strike two a biased on a does not decision, Phillips prosecution 4-1 was a with Justice Work- 8. Ross involved court 7. a state which the the federal dissenting. defendant invoked constitu- man for tion as basis reversal. exception” a violation of the state or federal from establish found in § W. Va.Code 62- right impartial jury. to an constitutional required jury 3-3 panel be unbiased before Phillips requires preju- a defendant to show a defendant used peremptory his or her juror’s presence dice from the strikes. The remedy court’s for a violation of panel. importantly, Phillips More under the statute Syllabus point was set out in 8 of merely prejudice cannot be established be- Phillips as follows: peremptory cause a defendant exercised a language Va.Code, of W. 62-3-3 to remove the strike from the (1949), grants specific a defendant panel. right to reserve his or her 2. No automatic new trial challenges until an jury panel unbiased § under W. Va.Code 62-3-3 without Consequently, assembled. if a defendant showing prejudice. The decision Phil- validly challenges prospective juror for lips holding followed Ross in that a defen- cause the trial court fails to remove alleging dant must show when juror, reversible error results even if a having constitutional violation for to use a subsequently defendant uses his perempto- juror. strike to remove a biased ry challenge to correct the trial court’s However, Phillips reached a different conclu- error. § sion under Va.Code W. 62-3-3. This stat- Syl. pt. Phillips, 194 W.Va. 461 S.E.2d provides, in part: ute relevant felony, In twenty jurors a case of shall be drawn from those in attendance for the holding Syllabus point 8 of trial of the accused. If a sufficient number Phillips, that a § violation of W. Va.Code 62- jurors panel procured for such cannot be reversal, requires 3-3 automatic has no ex way, in this the court shall order others to press implicit support or in the statute.10 selected, be forthwith summoned and until Clearly, the statute remedy is silent on a for panel twenty jurors, from, excep- free requirements. a violation of its doWe tion, completed, panel from which Phillips’ believe that remedy extreme of an may jurors accused strike off six and the trial, automatic new showing without a prosecuting attorney may strike off two prejudice, Although is warranted. fully we jurors.9 understand that the doctrine of stare decisis § (emphasis W. Va.Code 62-3-3 and footnote guide law, maintaining stability in the added). part ways precedent we will with that is not legally syllabus point sound. In 2 Dailey

The defendant in Phillips argued that “be- Corp., v. Bechtel [he] cause W.Va. use two of his peremptory challenges appellate we held that allegedly “[a]n on the two court disqualified jurors, previous should not overrule a was denied his statuto- decision ... ry right without peremptory challenges.” changing six evidence of conditions or Phillips, judicial interpretation 461 S.E.2d at 92. serious error in suffi raised, response Phillips compel to the issue poli cient deviation from the basic correctly phrase cy decisis, court found that the “free of the doctrine of stare which is to 9. by The statute reads in full by prosecut- as follows: off him shall be stricken off ing attorney, felony, twenty jurors panel In a case of so as to reduce the shall be twelve, drawn compose from those in attendance for the trial of who shall for the trial jurors the accused. If a sufficient number of of the case. panel procured way, for such cannot be in this (). (1949) § W.Va.Code 62-3-3 the court shall order others to be forthwith selected, panel summoned and until a of twen- Although Phillips remedy Sylla- set out the ty jurors, exception, completed, free from 8, point prior bus decisions of this Court also panel may from which the accused strike off recognized remedy of automatic reversal jurors prosecuting attorney may six showing prejudice. without a See State v. jurors. prosecuting attorney strike off two The Wilcox, 142, 144, 257, 286 S.E.2d 259 jurors, shall first strike off two and then the (1982) ("[I]t deny is reversible error to a valid accused six. If the accused failed to strike from challenge juror disqualified for cause even if the panel jurors such the number of this section by [peremptory] challenge.”). is later struck strike, allows him to the number not stricken

418 certainty, uniformity stability, and an automatic trial in

promote to a new federal juror when a biased is removed from course, clearly court “when it is in the law.” Of by jury panel with a strike made or that apparent that an error has been in Mar- criminal defendant. The defendant rule, application of an outmoded due tinez-Salazar was prosecuted by the federal conditions, injustice, devi- changing results drug trafficking government various warranted.” Wood- policy from that ation is dire, charges.12 During jury weapons voir Johnson, 8, 762, rum v. 210 569 766 n. prospective indicated that he would (2001) (internal 908, quota- n. 8 S.E.2d 912 prosecution. favor the The defendant asked omitted). and citations tions prospective the trial court to strike the reversal re We believe the automatic judge for cause. The trial denied the motion Phillips is Syllabus quired point under 8 of to strike for cause. The defendant used a by legally unsound and not dictated W. juror. peremptory strike to remove the § and more 62-3-3. The better Va.Code ultimately defendant convicted of all approach require a show legally sound is to charges by jury. appeal On to the Ninth over ing prejudice, Appeals Court of defendant ar- Circuit whelming majority prejudice states.11 trial, gued that he was to a new entitled approach is illustrated the United States showing prejudice, without a because the States v. United Supreme Court decision of denying trial court committed error Martinez-Salazar, 304, 528 U.S. 120 S.Ct. motion to strike the for cause. The (2000). 774, 145 L.Ed.2d 792 agreed granted Ninth Circuit the defen- Martinez-Salazar The decision in called dant a new trial. The Ninth Circuit took the that, 24(b) upon Supreme position Court to address the issue under Rule of the Federal Lucero, 1071, 450, majority require 11. A of courts a defendant 116 N.M. P.2d 863 1074 (1993); Clemmons, 391, N.C.App. establish when a strike is State v. 181 110, Entzi, (2007); 112 used to remove a who should have been 639 S.E.2d State v. 615 145, Hale, State, (N.D.2000); See N.W.2d 149 struck for cause. Pace v. 904 So.2d State v. 119 118, 864, 331, State, (2008); (Ala.Crim.App.2003); Ohio St.3d 892 N.E.2d 888 341 Minch v. State, 918, (Okla.Crim. 764, (Alaska v. Ct.App.1997); Harmon 248 P.3d 932 934 P.2d 770 State v. Berliner, 539, Kuhs, 376, 192, (2010); App.2011); Or.App. State v. 232 223 Ariz. 224 P.3d 198 744, (2009); State, 243, 907, 222 P.3d Chambers, 746 Commonwealth v. Miles v. 350 911 Ark. 85 S.W.3d 370, 96, (1996); 1, (2002); Whalen, Pa. People 546 685 A.2d 107 v. 152 Cal. 56 Cal.4th Barnville, 298, (R.I.1982); 673, 915, (Cal.2013); v. State 445 A.2d 301 Rptr.3d 294 P.3d 951 State Green, 347, 157, Ross, 213, 648, v. 301 State S.C. 392 S.E.2d 160 v. Conn. 269 849 A.2d 669-70 (1990); Daniel, 532, (2004); State, 338, (Del. State v. 606 N.W.2d 535 v. 422 A.2d 341 Holmes (S.D.2000); Schmeiderer, 1980), State v. 319 S.W.3d superseded grounds as statute on other 607, State, (Tenn.2010); Busby State, 1984); 633 (Del. v. 253 stated in Burke v. 484 A.2d 490 661, (Tex.Crim.App.2008); States, 297, (D.C. S.W.3d 670 State v. Johnson v. United 804 A.2d 304 Menzies, 393, (Utah 1994); 2002); State, 369, (Fla. 889 P.2d 400 Lattrell Street v. 592 So.2d 370 Swain, 33, 195, (1968); v. Iuli, 196, v. 127 Vt. A.2d 198 239 Dist.Ct.App.1992); Hawai'i State 101 Fire, 152, 1218, 143, Nelson, (2003); State v. 145 34 P.3d Wash.2d 65 P.3d 152 v. 99 Stoddard (2001); Lindell, 689, 293, 339, State (1978); 1225 v. 245 Wis.2d People P.2d Idaho 581 343 v. 223, Bowens, 1094, 339, N.W.2d Ma 629 245-46 But see v. Ill.App.3d 407 348 Ill.Dec. 205, (Colo.2005) (automatic 1249, State, People, (2011); 121 P.3d 210 Whiting 943 N.E.2d 1259 v. 24, Wilkins, showing prejudice); (Ind.2012); reversal without Harris v. 969 N.E.2d 30 State v. State, 464, 712, (1986) 348, 2005); (Iowa 255 Ga. S.E.2d 714 339 N.W.2d 693 351 State v. Commonwealth, (same); 823, 259, (2001); Shane v. 243 Broyles, S.W.3d 272 Kan. P.3d 272 36 Jacobs, 336, (same); (Ky.2007) State, 650, 764, 341 State v. 789 Ware v. 360 A.2d 771 Md. 759 1280, Good, (La.2001); (2000); Mendes, So.2d 1284 v. State 309 Commonwealth v. 441 Mass. 113, 948, (2002) (same); 459, 393, (2004); 43 P.3d Mont. 960 Peo- People 806 N.E.2d 408 v. Holli Weber, 822, 736, ple 154, v. 103 A.D.3d 959 N.Y.S.2d day, Mich.App. 144 162 376 N.W.2d (same); (N.Y.App.Div.2013) Prtine, 737 Townsend (1985); v. 784 N.W.2d Commonwealth, State, Va. (Minn.2010); Mettetal So.2d v. (2005) (same); State, v. 691 P.2d (Miss. 1993); Jamison, Patterson 603 623, State S.W.3d (same). (Wyo.1984) appear 256 states Two not (Mo.Ct.App.2012); Daly, 627 State v. 278 squarely to have issue: Maine 903, addressed the 47, (2009); Neb. 775 N.W.2d 70 Jitnan v. Hampshire. New Oliver, 623, (Nev.2011); 254 P.3d 630 State v. DiFrisco, (1994); 137 N.J. A.2d 751 645 Isiah, State v. 109 N.M. P.2d 302 12. The defendant were and a co-defendant tried grounds by, together. overruled on other Procedure, challenge Rules of Criminal the defendant to use a juror] [the remove right peremptory had a to exercise his because he did juror] not want [the to sit panel jurors. jury. strikes on a of unbiased Con- on his This was Martinez-Salazar’s sequently, the Ninth Circuit held that the choice. The District Court did not de- 24(b) process right defendant’s due under the Fifth mand —and Rule did require— not Amendment was violated because he had had that peremptory Martinez-Salazar use a peremptory challenge to use one of his strikes to cure curatively. Supreme

an error the trial court. The choosing In juror] to remove [the rather granted government’s appeal. Court the taking than appeal, chances on Mar- tinez-Salazar did not lose a peremptory Supreme opinion The Court’s in Martinez- Rather, challenge. challenge used the initially Salazar indicated that the govern- principal line with a reason peremp- juror ment conceded that the should have help tories: secure the constitutional However, govern- been struck for cause. the guarantee trial impartial jury.... position ment took the that a defendant conclusion, we note peremptory should be “to use a what this case does not involve. It challenge to strike a is not asserted who should have that the trial deliberately court misapplied been removed for cause[.]” Martinez-Sala- law in zar, order to force the defendants 528 U.S. at 120 S.Ct. at to use peremptory challenge Supreme L.Ed.2d 792. The to correct disagreed Court court’s Accordingly, question error. government with the no and held that a defen- is presented here whether dant such an peremptory not have to use a error does would warrant strike to reversal. Nor did remove biased from the the Dis- However, trict panel. ruling Court’s result in opinion seating held also any juror who should peremptory when a defendant have been does use dismissed for cause. As recognized, we have juror, strike to remove a biased the defen- circumstance would require dant must reversal. show to obtain trial. opinion addressed the issues- as We ... hold that a defendant’s exercise follows: peremptory challenges pursuant to Rule 24(b) reject impaired is not denied or

We when Government’s contention law, defendant peremptory chooses to use a under federal a defendant challenge obliged to remove a peremptory challenge to use a who should hold, however, have been excused for judge’s cure the cause. Martinez- error. We Salazar and his that if codefendant were the defendant to cure accorded elects such an peremptory by exercising challenges, error peremptory exact num- chal- (c) 24(b) ber Rule lenge, allowed in subsequently and is this case. convicted sat, precisely Martinez-Salazar on which received what no biased he has provided; federal law tenably not he cannot deprived any been rule-based or - any assert violation of his Fifth right. constitutional Amend- right process. ment to due Martinez-Salazar, 307-16, 528 U.S. at Appeals Court' of erred in conclud- (citations 777-82, S.Ct. at 145 L.Ed.2d 792 ing that the District Court’s for-eause omitted). compelled mistake Martinez-Salazar challenge juror] peremptorily, [the there- The decision in Martinez-Salazar followed by reducing his allotment of Ross, prosecution, which was a state in hold- challenges by one. A hard choice ing that the constitution is not violated when the same as no choice.... prosecution defendant in a federal uses a objecting

After to the District juror. Court’s strike to remove a biased denial of challenge, his for-cause Martinez- importantly, More Martinez-Salazar also option Salazar had letting juror] merely [the made clear that because a defendant and, petit jury conviction, sit on upon perempto- has a rule-based to exercise pursuing challenge ry a Sixth Amendment jury panel strikes on an unbiased does not Instead, appeal. Martinez-Salazar elected mean that he or she is entitled to a new trial 420 Vance, reversal. the defen- remove a an automatic strike to using peremptory a statutory rape and his conviction for The latter hold- dant’s panel. juror from biased were re- penitentiary of life in the supports this sentence

ing by Martinez-Salazar of the defendant voluntari- Syllabus point 8 versed as a result decision to overrule Court’s minutes dur- ly being absent for four or five Phillips. Vance ing a instructions. discussion Mar- Phillips in defendants both disapproved by this Court State was later they right had a argued that tinez-Salazar 647, Blair, 214 v. 158 W.Va. ex rel. Grob peremptory their strikes exercise all of to Syllabus 330 held S.E.2d We jurors. The Courts panel of unbiased a that, point 6 of Blair the defendants— agreed with both cases as the decisions of State v. [i]nsofar statute, right in a existed Phillips found Vance, 124 S.E.2d 252 146 W.Va. right found the exist- and Martinez-Salazar (1962)[,] prej- held progenitors and its However, the Courts differed in a rule. ed necessary for rever- udice is not a element occurred— remedy when a violation felony a conviction where the defen- sal of reversal Phillips provided for automatic during a trial occurrence dant was absent required showing a while Martinez-Salazar him, anything affecting in which was done Clearly, Martinez-Salazar is prejudice. disapproved. such eases are recognizes it approach because the better 647, 214 S.E.2d 330. been tried before 158 W.Va. when a defendant has or has received jury, unbiased she an Neuman, Similarly, in 179 State v. W.Va. guarantees. exactly the constitution what (1988), 77 this Court held 371 S.E.2d Consequently, a defendant should be re- court that it was reversible error for a trial prejudice resulting from the quired to show of his or her to fail to inform a defendant juror. To hold oth- of an unbiased selection testify. right to In State v. constitutional unjustifiable erwise in an waste results Salmons, 561, 509 S.E.2d 842 judicial time and resources. (1998), this determined that an auto- Court matic reversal for a Neuman violation was Thus, hold that a trial we now legally Consequently, we held sound. remove a biased from court’s failure to following Syllabus point 15 of Salm- required by jury panel, a W. Va.Code ons: (1949) not vio (Repl.Vol.2010), § does 62-3-3 Neuman, A violation of State v. 179 right defendant’s to a trial late a criminal subject is W.Va. impartial jury, if the defendant removes analysis. A to a harmless error rebuttable a strike. In order with repre- presumption exists that a defendant having per a new trial for used to obtain by legal informed sented counsel has been from emptory strike to remove biased right testify. to of the constitutional When jury panel, defendant must show a criminal represented by legal coun- a defendant Syllabus prejudice. holding point 8 of sel, violation is harmless error a Neuman Phillips, v. 194 461 S.E.2d State W.Va. in the absence of evidence that a defen- (1995), expressly overruled. legal dant’s counsel failed to inform him/ and overrule Phil- Our decision to revisit testify, right of the or that [her] join majority of courts in lips and the vast giv- into defendant was coerced or misled showing preju- country require ing up right testify. a defen- When dice when a defendant uses a trial, represents dant him/[her]self is not with- strike to remove biased violation is harmless error where Neuman precedent. previously This Court has out it is shown that the defendant was fact precedent that af- revisited and overruled right testify and that aware of his/her showing defendant relief without forded a the defendant was not coerced or misled example, Court held in prejudice. For testify. giving up into Vance, 124 S.E.2d W.Va. 509 S.E.2d (1962), that a violation of W. Va.Code (1923) Hey, Finally, ex Leonard v. requiring § in State rel. (Repl.Vol.2010), 62-3-2 (W.Va.1980), trial, Hundley present during a defendant be Ashworth, creating syllabus 181 W.Va. 382 S.E.2d 573 point three in the law— (1989), preindietment opinion, overruling syllabus this Court found that a point of8 State delay length presumptively Phillips, of sufficient was v. 194 W.Va. 461 S.E.2d 75 (1995) However, prejudicial to a in entirely defendant. discussion that is obiter —in Third, Facemire, dictum. I State ex rel. Knotts v. am concerned W.Va. about the (2009), implications syllabus of the new point 678 S.E.2d 847 we revisited the efficacy presumptive prejudice Hey Hundley and strikes. legally it and found to be unsound. Conse- Striking I. the Juror for Cause quently, this following Syl- Court held the in The following exchanges show that Mr. point 2 labus of Facemire: Wong was biased and should have been preindietment To maintain a claim that struck for cause the court: delay violates the Due Process Clause of (1) jury panel The following was asked the the Fifth Amendment to the U.S. Constitu question: “[Defense ... Counsel:] III, tion and Article Section 10 of the West anyone you Does think if intentionally Constitution, the defendant must someone, you murder should never prejudice. show actual To the extent our prison?” leave Wong Mr. raised his prior decisions in State ex rel. Leonard v. hand. (W.Va.1980), Hey, Hundley 269 S.E.2d 394 (2) Defense counsel up followed on Mr. Ashworth, 379, 382 181 W.Va. S.E.2d 573 Wong’s response: initial “[Defense (1989), progeny and their are inconsistent so, Wong, Mr. you Counsel:] if found holding, they with expressly this are over guilty Mr. Sutherland degree of first ruled. murder, you could not recommend 223 W.Va. 678 S.E.2d 847. No, mercy? Wong:] just [Mr. I feel if sum, legal In ground we are on solid with life, somebody takes a and since our Phillips. decision to revisit and overrule penalty don’t have the death here in

Thus, if persuaded by we had been Mr. Suth- Virginia, ought that’s where he erland that he removed a biased with a stay.” strike, this fact alone would not (3) Defense counsel asking continued have resulted a new trial. question: third “[Defense Is Counsel:] anyone agrees there here who with the

IV. saying, eye eye ‘An for an and a tooth for a Wong tooth?’ Mr. raised his CONCLUSION hand.” convicting The order Mr. Sutherland total, Wong responded Mr. to three sentencing first murder and him to questions posed by dealing defense counsel prison mercy for life without is affirmed. mercy. with the issue of Three times Mr. Affirmed. Wong indicated he unwilling would be mercy. Majority recommend The insists concurs, Chief Justice BENJAMIN Wong that Mr. did not make a “clear state dissents, part, part, and and reserves the bias,” required by ment of as State v. New separate opinion. to file a comb, BENJAMIN, Justice, concurring, Chief questioning by further defense part, dissenting, part: counsel was needed to establish whether Mr. impartially was indeed able to decide agree Majority’s with the decision to many ways the case. How different can conviction, affirm yet Mr. Sutherland’s say unconditionally unequivo someone — by Majority reaching route chosen cally they would not recommend mer —that First, conclusion is confused. unlike the Ma- cy? jority, I believe the circuit court was incor- Majority rect when it chose not to unsuccessfully compares strike the at issue, Second, Wong, Juntilla, for cause. I do not case to the facts Majority understand how support can S.E.2d 562 bar, Majority any effect on the made an initial statement case at issue in Juntilla clearly appellate jurisdiction its equivocated: “[T]he has exceeded ‘unlikely that I would by it would the Con- granted stated that be Article Section 14 of to, you mercy I would have any Virginia. feel but of West stitution know, hear the case I would have to Majority correctly found that Mr. Had the ” 711 S.E.2d at through.’ at Wong have for cause should been struck added). ques- Upon further (emphasis court, Phillips overruling the of the circuit stated, juror tioning, the Instead, legitimate. the because would be know, to, I you the case. I have hear syllabus point opinion in the is new created give if I stand here and don’t know could dictum, sylla- validity new obiter of the very time but it would that decision doubtful. point bus any I would feel probably unlikely Prejudice Peremptory III. and Strikes to, know, I mercy but I would have through.

would have to hear the case the effect I am concerned about 499-500, (empha- at 569-70 Id. at S.E.2d syllabus point will have on the Court’s added). juror’s Again, state- sis the Juntilla statutory peremptory right to defendant’s equivocated. ment Requiring showing prejudice of strikes. may place “a rock some defendants between Wong’s perfectly Mr. statements were place”: continuing to allow a and a hard say, somebody did not “If takes a clear. He hopes to sit on the in of biased life, probably to prison is where he should appeal peremptory using on or success stay.” affirmatively He indicated that strike to correct court’s error. person that a takes a life should believes who stay prison, through questions, three Majority if a defendant reasons that any he never made indication that he could not wish to use strike to does made a be convinced otherwise. error, a court’s the defendant can correct have been expression clear bias and should essentially gamble: make a the biased allow by the court for cause. struck hopes sit on the to case with the Phillips Overruling II. appeal. obtaining a reversal the case on Majority, our agree Majority’s

I with the conclusion that Unlike the I do not believe syllabus point Phillips or 8 of must be over- state and federal condone constitutions liberty. federal consti- encourage gambling person’s ruled. The and West aon guarantee right impartial tutions to an likely I find it more that a defendant would jury, precisely and that is what Mr. Suther- juror. prac- an offending choose to strike Applying Phillips land received. would lead tice, peremp- defendants of their most use all Therefore, agree to an absurd result. I If all tory strikes. a defendant wished to use Mr. Sutherland’s should be af- conviction jurors to six of his strikes eliminate who however, firmed; path I am disturbed cause, for but would otherwise be struck Phillips. Majority overruling took in was instead to use one of those syllabus point The new announced failing strikes to correct court’s error — Majority opinion is in a of the includ- section juror showing defen- strike a clear bias —that argument.” ed “for the sake The Court effectively perempto- dant has been denied created new no effect has law that has case, ry may In that contain strike. obiter Mr. Sutherland’s conviction. This is (or more) may one whom the defendant principle dictum. “It is a of American basic bias, perceived have wished to strike for a jurisprudence gratuitous- cannot a court not do so court’s but could because of the ly pronounce they envisage what the law error. be but themselves to rul- should must limit Peremptory English originated strikes ings justiciable or the context of a case prevent arose to from law and a biased controversy.” McCoy, Teller v. sitting jury: aon (1978) (Nee- 367, 396-97, J., cases, capital ly, concurring, dissenting, criminal at least part, “[I]n or ones, is, vitae, part). By creating not have allowed to law that does there infavorem reversal, prisoner arbitrary capricious and it impossible would be prove species challenge to a certain number of in that way, situation. In this all; jurors, showing any without cause at Majority believe may have overcorrected peremptory challenge: which called a the error in Phillips, resulting in the dimin- provision full of that tenderness and hu- ishment of the strikes. manity prisoners, English which our justly grounded laws are famous. This is

on two reasons. sensible, every

“1. As one must be what impressions

sudden and unaccountable

prejudices apt upon we are to conceive another; gestures

bare looks and and (when is, necessary prisoner how it that a life) put good to defend his should have a FAITH UNITED METHODIST CHURCH opinion jury, of his the want of which AND ALTA, CEMETERY OF TERRA him; might totally disconcert the law wills Virginia, Trinity West United Meth by any not that he should be tried one man Alta, Virgi odist Church of Terra West against preju- whom has conceived a nia, Petitioners dice, being assign even without able to reason for such his dislike. Because, upon challenges “2. for cause MORGAN, Respondent. Marvin D. shown, assigned prove if the reason insuffi- No. 12-0080. juror, perhaps cient to set aside the questioning may bare his indifference Supreme Appeals Court of resentment; provoke pre- sometimes Virginia. West which, consequences vent all ill from prisoner liberty, pleases, is still at if he April Submitted 2013. peremptorily to set him aside.” Decided June 4 Bl. Comm. 353. Alabama, 202, 242-243, Swain v. 380 U.S. (1965) (Goldberg,

S.Ct. 13 L.Ed.2d 759

J., dissenting), equal protection overruled on

and racial grounds by discrimination Bat Kentucky,

son v. 476 U.S. 106 S.Ct. Historically, peremp L.Ed.2d 69

tory strikes did not exist to correct a court’s

errors.

The effective denial of a strike

may person sitting jury, result through responses

who questions, man-

nerisms, tone, has shown bias that would requiring

not rise to the court to strike that Nonetheless,

juror for cause.

biased, strikes exist so that jury. can be removed from

contend that the United States and require constitutions would reversal

of a conviction obtained where such a biased peremp- sits on a if a defendant’s

tory strike effectively has been denied.

However, Majority’s syllabus point

requires be shown to warrant

Case Details

Case Name: State of West Virginia v. Timothy Ray Sutherland

Court Name: West Virginia Supreme Court

Date Published: Jun 5, 2013

Citation: 745 S.E.2d 448

Docket Number: 11-0799

Court Abbreviation: W. Va.