745 S.E.2d 448 | W. Va. | 2013
Lead Opinion
This is an appeal by Timothy Ray Sutherland (hereinafter “Mr. Sutherland”) from his conviction for first degree murder. Mr. Sutherland was sentenced by the Circuit Court of Kanawha County to life in prison without the possibility of parole. In this appeal, Mr. Sutherland argues that the circuit court committed error by failing to strike a prospective juror for cause.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, Mr. Sutherland was living temporarily at the home of his cousin, Stacie Smith, in St. Albans, West Virginia. In the early morning hours of December 28, 2009, Mr. Sutherland got into an argument with Ms. Smith in her bedroom. The argument involved a comment made by Mr. Sutherland that Ms. Smith’s boyfriend did not treat her properly. During the argument, Ms. Smith called Mr. Sutherland a “junkie”. Mr. Sutherland became outraged at being called a drug addict and left the bedroom. He then went into the kitchen and smoked a cigarette. Within a few minutes, he returned to the bedroom carrying a butcher knife. Mr. Sutherland fatally stabbed Ms. Smith on the right side of her neck as she laid on the bed.
The police arrested Mr. Sutherland in an abandoned trailer on December 30, 2009. The police initially arrested Mr. Sutherland on an outstanding warrant for failing to register as a sex offender.
II.
STANDARD OF REVIEW
We are asked to review the trial court’s decision not to strike a potential juror for cause. We have articulated the standard of review of this issue as follows:
In reviewing the qualifications of a jury to serve in a criminal case, we follow a three-step process. Our review is plenary as to legal questions such as the statutory qualifications for jurors; clearly erroneous as to whether the facts support the grounds relied upon for disqualification; and an abuse of discretion as to the reasonableness of the procedure employed and the ruling on disqualification by the trial court.
State v. Miller, 197 W.Va. 588, 600-01, 476 S.E.2d 535, 547-48 (1996). See Syl. pt. 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987). In Syllabus point 4 of Miller, the Court further held:
*413 The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror’s protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.
197 W.Va. 588, 476 S.E.2d 535. With these standards in mind, we turn to the issue presented as an assignment of error.
III.
DISCUSSION
This ease presents two issues for resolution. First, we must determine whether the trial court should have granted Mr. Sutherland’s motion to strike a prospective juror for cause. Second, we take this opportunity to revisit our decision in State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), which permits a new trial whenever a criminal defendant uses a peremptory strike to remove a prospective juror that should have been struck for cause. We examine each issue separately.
A. Failing to Strike a Prospective Juror for Cause
Mr. Sutherland contends that a prospective juror was biased and that the trial court should have granted his motion to strike the juror for cause. This Court has held:
The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the ease on the evidence, a juror’s protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.
Syl. pt. 4, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). We also have recognized that “[ajctual bias can be shown either by a juror’s own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.” Syl. pt. 5, Miller, id.
In this proceeding, Mr. Sutherland argues that the trial judge should have struck a prospective juror for cause based upon the following voir due exchange:
[Defense Counsel:] Okay. Thank you. Part of the evidence that all of you — some of you will see in this case is a video of Mr. Sutherland confessing that he took Stacie Smith’s life. So, as jurors, you won’t really be deciding whether Mr. Sutherland is guilty or innocent. Instead, what you’ll be deciding on is exactly what crime Mr. Sutherland is guilty of.... If you find him guilty of first degree murder, you also have to decide whether or not to grant Mr. Sutherland mercy.
Granting Mr. Sutherland mercy means that 15 year’s from now the Parole Board will take a look at his ease; they’ll hear from the victim’s friends and relatives, people who were impacted by this crime; and then the Parole Board will decide whether or not Mr. Sutherland ever gets to leave prison, and if he leaves prison, he’ll be on supervised parole.
Granting mercy is not a guarantee that he’ll ever leave prison provided that you find him guilty of first degree murder, but mercy does mean that that option is available to him.
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[Defense Counsel:] Thank you, judge. After telling you-all that, my first question for you is: Does anyone think if you intentionally murder someone, you should never leave prison?
(WHEREUPON, Potential Juror Number 178, Mr. Kevin Wong raised his hand.)
[Defense Counsel:] Mr. Wong. Is there anyone else that thinks if you intentionally murder someone, you should never leave prison?
(WHEREUPON, there was no response by the potential jurors.)
[Defense Counsel:] Mr. Wong, so, if you found Mr. Sutherland guilty of first degree murder, you could not recommend mercy?
*414 [Mr. Wong:] No, I just feel if somebody takes a life, and since you don’t have the death penalty here in West Virginia, that’s where he ought to stay.
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[Defense Counsel:] Is there anyone here who agrees with the saying, “An eye for an eye and a tooth for a tooth?”
(WHEREUPON, Potential Juror Number 178, Mr. Kevin Wong raised his hand.)
[Defense Counsel:] Mr. Wong. Is there anyone here who’s heard of the saying, “An eye for an eye only makes the whole world blind?”
(WHEREUPON, there was no response by the potential jurors.)
Mr. Sutherland contends that the above exchange required the trial court to strike Mr. Wong from the jury panel. In support of this contention, Mr. Sutherland relies primarily upon the decision in State v. Greer, 22 W.Va. 800 (1883).
The defendant in Greer was charged with first degree murder, which, at that time, was punishable by death.
The second bill of exceptions was to the ruling of the court sustaining the challenge to W.S. Duff, who was sworn on his voir dire, having been regularly drawn as a juror. The question was propounded by the court “whether he had any conscientious scruples against inflicting the death penalty in a proper case?” To which, answer was made, that “he had conscientious scruples against inflicting the death penalty; that he would be governed by the law and evidence, but was opposed to inflicting capital punishment.” ... “Whereupon said proposed juror was rejected by the court for that reason alone and no other, against the objection of the prisoner.”
22 W.Va. at 809. Ultimately, the Court in Greer found that the trial court did not abuse its discretion in striking the potential juror for cause. The opinion set out its holding on the issue in Syllabus points 5 and 6 as follows:
5. In empaneling a jury in a capital case a proposed juror examined on his voir dire, who in answer to a question propounded by the court says, he has conscientious scruples against inflicting the death-penalty, is incompetent and is properly rejected by the court, although he says he will be governed by the law and the evidence.
6. Since our statute gives a jury a discretion, when they find a prisoner guilty of murder in the first degree, to say he shall be punished by imprisonment in the penitentiary, it is more important to the State, that juries should have no conscientious scruples against inflicting the death penalty-
Greer, 22 W.Va. 800.
Although we find Greer instructive, we do not find it controlling. In fact, Greer has been implicitly modified by our evolving law on striking a potential juror for cause, as illustrated in Syllabus point 8 of State v. Newcomb, 223 W.Va. 843, 679 S.E.2d 675 (2009):
When a prospective juror makes a clear statement of bias during voir dire, the prospective juror is automatically disqualified and must be removed from the jury panel for cause. However, when a juror makes an inconclusive or vague statement that only indicates the possibility of bias or prejudice, the prospective juror must be questioned further by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an initial response by a prospective juror to a broad or general question during voir dire will not, in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a situation, further inquiry by the*415 trial court is required. Nonetheless, the trial court should exercise caution that such further voir dire questions to a prospective juror should be couched in neutral language intended to elicit the prospective juror’s true feelings, beliefs, and thoughts — and not in language that suggests a specific response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and where there is a probability of bias the prospective juror must be removed from the panel by the trial court for cause.
Assuming, for the sake of argument, that West Virginia had retained the death penalty, Greer’s automatic disqualification of a potential juror could occur only if the potential juror has made a “clear statement of bias,” as required by Newcomb. In other words, Newcomb does not require a potential juror be automatically disqualified for making a biased statement if the statement is inconclusive or vague. See Syl. pt. 4, O’Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002). It is this exception in Newcomb that has modified any general application of Greer on the issue of bias.
In the instant proceeding, Mr. Sutherland argues that Mr. Wong made a clear statement of bias. Therefore, Mr. Sutherland contends, Mr. Wong should have been disqualified. We disagree.
Mr. Wong responded in a general manner to the question of whether a person should ever leave prison for committing intentional murder. Rather than following up with further questions, as required under Newcomb, defense counsel stopped questioning Mr. Wong on the issue of mercy. Under the decision in Newcomb, defense counsel had an obligation to ask further questions in order to place into the record Mr. Wong’s response to being able to follow the law on the issue of mercy as directed by the trial judge with regard thereto. A case which illustrates this point is State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011).
In Juntilla, the defendant was convicted by a jury of first degree murder, sexual assault in the first degree, and conspiracy to commit sexual assault. One of the issues raised by the defendant on appeal was that the circuit court erred in denying his motion to strike a prospective juror, David Small-wood, for cause. The opinion set out the argument as follows:
Specifically, the Appellant argues in his brief that the potential juror was “predisposed to make a recommendation of no mercy verdict.” The Appellant contends that the juror stated that it would be “unlikely that I would feel any mercy but I would have to, you know, I would have to hear the ease through.” The juror also said that he is a strong proponent of the death penalty and believes that West Virginia should adopt it as a sentence. Because the circuit court refused to grant the Appellant’s motion, he was forced to use a peremptory strike to eliminate the juror. In contrast, the Appellee maintains that Juror Smallwood indicated that he favored a state law permitting the death penalty, but he acknowledged that West Virginia does not have the death penalty, that he could grant mercy and that he would have to listen to the facts of the case before making a decision.
Juntilla, 227 W.Va. at 499, 711 S.E.2d at 569. Based upon the above facts, this Court found that the tidal judge did not abuse his discretion in denying the motion to strike the potential juror for cause:
A review of the record reveals that Juror Smallwood told the circuit court that it was his belief that West Virginia should have a death penalty. When questioned further about West Virginia not having the death penalty and whether, in light of that, Juror Smallwood could recommend mercy, the juror responded:
I have to, you know, hear the case. I don’t know if I could stand here and give that decision at this very time but it would probably be unlikely that I would feel any mercy but I would have to, you know, I would have to hear the case through.
Based upon an examination of the entire voir dire of Juror Smallwood, the Court finds that the circuit court did not err in denying the Appellant’s motion to strike the juror for cause.
Juntilla is instructive in showing that, when a potential juror in a first degree murder case makes a general statement of not being predisposed to granting mercy, further questioning should occur to ascertain the juror’s willingness to impartially decide the issue based upon the law and the facts of the case presented. Here, defense counsel failed to make further inquiry of Mr. Wong as to whether he would follow the trial court’s instructions and decide the issue of mercy based upon the facts of the case. See Syl. pt. 6, in part, Miller, 197 W.Va. 588, 476 S.E.2d 535. (“The challenging party bears the burden of persuading the trial court that the juror is partial and subject to being excused for caused[.]”). Consequently, the trial court did not abuse its discretion in denying Mr. Sutherland’s motion to strike Mr. Wong for cause.
B. Using a Peremptory Strike to Remove a Juror Who Should Have Been Removed for Cause
Assuming, for the sake of argument, that the trial court erred in not striking Mr. Wong for cause, Mr. Sutherland further contends that he was automatically entitled to a new trial under Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995),
The defendant in State v. Phillips was convicted of second degree murder for killing his wife. On appeal, one of the issues raised by the defendant was that the trial court committed error in failing to strike two jurors for cause. Even though the defendant struck both jurors with peremptory strikes, he argued that he was entitled to a new trial because he was guaranteed a jury panel of unbiased prospective jurors, when he exercised his peremptory strikes, under (1) the state and federal constitutions and (2) W. Va.Code § 62-3-3 (1949) (Repl.Vol.2010). The constitutional and statutory issues addressed by Phillips will be examined separately.
1. No right to an automatic new trial under the state or federal constitutions without a showing of prejudice. The defendant in Phillips contended that he was entitled to a new trial without a showing of prejudice because “the presence of the two biased jurors on the jury panel denied his right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and Section 14 of Article III of the West Virginia Constitution.” Phillips, 194 W.Va. at 586, 461 S.E.2d at 92. This Court rejected the argument after determining that, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the United States Supreme Court expressly held that “ ‘[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.’ ” Phillips, 194 W.Va. at 586, 461 S.E.2d at 92 (quoting Ross, 487 U.S. at 88, 108 S.Ct. at 2278, 101 L.Ed.2d 80).
A trial court’s failure to remove a biased juror from a jury panel does not violate a defendant’s right to a trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of Article III of the West Virginia Constitution. In order to succeed in a claim that his or her constitutional right to an impartial jury was violated, a defendant must affirmatively show prejudice.
194 W.Va. 569, 461 S.E.2d 75.
Under Phillips, the mere presence of a biased juror on a jury panel does not
2. No right to an automatic new trial under W. Va.Code § 62-3-3 without a showing of prejudice. The decision in Phillips followed Ross in holding that a defendant must show prejudice when alleging a constitutional violation for having to use a peremptory strike to remove a biased juror. However, Phillips reached a different conclusion under W. Va.Code § 62-3-3. This statute provides, in relevant part:
In a case of felony, twenty jurors shall be drawn from those in attendance for the trial of the accused. If a sufficient number of jurors for such panel cannot be procured in this way, the court shall order others to be forthwith summoned and selected, until a panel of twenty jurors, free from, exception, be completed, from which panel the accused may strike off six jurors and the prosecuting attorney may strike off two jurors.9
W. Va.Code § 62-3-3 (emphasis and footnote added).
The defendant in Phillips argued that “because [he] was required to use two of his peremptory challenges on the two allegedly disqualified jurors, he was denied his statutory right to six peremptory challenges.” Phillips, 194 W.Va. at 586, 461 S.E.2d at 92. In response to the issue raised, the Phillips court correctly found that the phrase “free from exception” found in W. Va.Code § 62-3-3 required a jury panel be unbiased before a defendant used his or her peremptory strikes. The court’s remedy for a violation of the statute was set out in Syllabus point 8 of Phillips as follows:
The language of W. Va.Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory challenges until an unbiased jury panel is assembled. Consequently, if a defendant validly challenges a prospective juror for cause and the trial court fails to remove the juror, reversible error results even if a defendant subsequently uses his peremptory challenge to correct the trial court’s error.
Syl. pt. 8, Phillips, 194 W.Va. 569, 461 S.E.2d 75.
The holding in Syllabus point 8 of Phillips, that a violation of W. Va.Code § 62-3-3 requires automatic reversal, has no express or implicit support in the statute.
We believe that the automatic reversal required under Syllabus point 8 of Phillips is legally unsound and is not dictated by W. Va.Code § 62-3-3. The better and more legally sound approach is to require a showing of prejudice, as is required by the overwhelming majority of states.
The decision in Martinez-Salazar called upon the Supreme Court to address the issue of an automatic right to a new trial in federal court when a biased juror is removed from a jury panel with a peremptory strike by a criminal defendant. The defendant in Martinez-Salazar was prosecuted by the federal government on various drug trafficking and weapons charges.
The Supreme Court’s opinion in Martinez-Salazar indicated initially that the government conceded that the juror should have been struck for cause. However, the government took the position that a defendant should be required “to use a peremptory challenge to strike a juror who should have been removed for cause[.]” Martinez-Salazar, 528 U.S. at 314, 120 S.Ct. at 781, 145 L.Ed.2d 792. The Supreme Court disagreed with the government and held that a defendant does not have to use a peremptory strike to remove a biased juror from the jury panel. However, the opinion also held that when a defendant does use a peremptory strike to remove a biased juror, the defendant must show prejudice to obtain a new trial. The opinion addressed the issues- as follows:
We reject the Government’s contention that under federal law, a defendant is obliged to use a peremptory challenge to cure the judge’s error. We hold, however, that if the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right. -
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The Court' of Appeals erred in concluding that the District Court’s for-eause mistake compelled Martinez-Salazar to challenge [the juror] peremptorily, thereby reducing his allotment of peremptory challenges by one. A hard choice is not the same as no choice....
After objecting to the District Court’s denial of his for-cause challenge, Martinez-Salazar had the option of letting [the juror] sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, Martinez-Salazar elected to use a challenge to remove [the juror] because he did not want [the juror] to sit on his jury. This was Martinez-Salazar’s choice. The District Court did not demand — and Rule 24(b) did not require— that Martinez-Salazar use a peremptory challenge curatively.
In choosing to remove [the juror] rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremp-tories: to help secure the constitutional guarantee of trial by an impartial jury....
In conclusion, we note what this case does not involve. It is not asserted that the trial court deliberately misapplied the law in order to force the defendants to use a peremptory challenge to correct the court’s error. Accordingly, no question is presented here whether such an error would warrant reversal. Nor did the District Court’s ruling result in the seating of any juror who should have been dismissed for cause. As we have recognized, that circumstance would require reversal.
We ... hold that a defendant’s exercise of peremptory challenges pursuant to Rule 24(b) is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. Martinez-Salazar and his codefendant were accorded 11 peremptory challenges, the exact number Rule 24(b) and (c) allowed in this case. Martinez-Salazar received precisely what federal law provided; he cannot tenably assert any violation of his Fifth Amendment right to due process.
Martinez-Salazar, 528 U.S. at 307-16, 120 S.Ct. at 777-82, 145 L.Ed.2d 792 (citations omitted).
The decision in Martinez-Salazar followed Ross, which was a state prosecution, in holding that the constitution is not violated when a defendant in a federal prosecution uses a peremptory strike to remove a biased juror. More importantly, Martinez-Salazar also made clear that merely because a defendant has a rule-based right to exercise peremptory strikes on an unbiased jury panel does not mean that he or she is entitled to a new trial
The defendants in both Phillips and Martinez-Salazar argued that they had a right to exercise all of their peremptory strikes on a panel of unbiased jurors. The Courts in both cases agreed with the defendants— Phillips found the right existed in a statute, and Martinez-Salazar found the right existed in a rule. However, the Courts differed on the remedy when a violation occurred— Phillips provided for automatic reversal while Martinez-Salazar required a showing of prejudice. Clearly, Martinez-Salazar is the better approach because it recognizes that when a defendant has been tried before an unbiased jury, he or she has received exactly what the constitution guarantees. Consequently, a defendant should be required to show prejudice resulting from the selection of an unbiased juror. To hold otherwise results in an unjustifiable waste of judicial time and resources.
Thus, we now hold that a trial court’s failure to remove a biased juror from a jury panel, as required by W. Va.Code § 62-3-3 (1949) (Repl.Vol.2010), does not violate a criminal defendant’s right to a trial by an impartial jury, if the defendant removes the juror with a peremptory strike. In order to obtain a new trial for having used a peremptory strike to remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.
Our decision to revisit and overrule Phillips and join the vast majority of courts in the country that require a showing of prejudice when a defendant uses a peremptory strike to remove a biased juror is not without precedent. This Court previously has revisited and overruled precedent that afforded a defendant relief without showing prejudice. For example, this Court held in State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962), that a violation of W. Va.Code § 62-3-2 (1923) (Repl.Vol.2010), requiring a defendant be present during a trial, required an automatic reversal. In Vance, the defendant’s conviction for statutory rape and his sentence of life in the penitentiary were reversed as a result of the defendant voluntarily being absent for four or five minutes during a discussion of jury instructions. Vance was later disapproved by this Court in State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). We held in Syllabus point 6 of Blair that,
[i]nsofar as the decisions of State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962)[,] and its progenitors held that prejudice is not a necessary element for reversal of a felony conviction where the defendant was absent during a trial occurrence in which anything was done affecting him, such eases are disapproved.
158 W.Va. 647, 214 S.E.2d 330.
Similarly, in State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988), this Court held that it was reversible error for a trial court to fail to inform a defendant of his or her constitutional right to testify. In State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998), this Court determined that an automatic reversal for a Neuman violation was not legally sound. Consequently, we held the following in Syllabus point 15 of Salmons:
A violation of State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988), is subject to a harmless error analysis. A rebuttable presumption exists that a defendant represented by legal counsel has been informed of the constitutional right to testify. When a defendant is represented by legal counsel, a Neuman violation is harmless error in the absence of evidence that a defendant’s legal counsel failed to inform him/ [her] of the right to testify, or that the defendant was coerced or misled into giving up the right to testify. When a defendant represents him/[her]self at trial, a Neuman violation is harmless error where it is shown that the defendant was in fact aware of his/her right to testify and that the defendant was not coerced or misled into giving up the right to testify.
203 W.Va. 561, 509 S.E.2d 842.
Finally, in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va.1980), and Hundley v.
To maintain a claim that preindietment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the defendant must show actual prejudice. To the extent our prior decisions in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va.1980), Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and their progeny are inconsistent with this holding, they are expressly overruled.
223 W.Va. 594, 678 S.E.2d 847.
In sum, we are on solid legal ground with our decision to revisit and overrule Phillips. Thus, if we had been persuaded by Mr. Sutherland that he removed a biased juror with a peremptory strike, this fact alone would not have resulted in a new trial.
IV.
CONCLUSION
The order convicting Mr. Sutherland of first degree murder and sentencing him to prison for life without mercy is affirmed.
Affirmed.
. Although Mr. Sutherland only briefed one assignment of error, his Notice of Appeal listed three assignments of error. Insofar as Mr. Sutherland has briefed only one issue in this appeal, the remaining two issues assigned in the Notice of Appeal are deemed waived. See State v. Harris, 226 W.Va. 471, 472 n. 1, 702 S.E.2d 603, 604 n. 1 (2010) ("Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived.”) (internal quotations and citation omitted).
. At the time of the stabbing, Ms. Smith's infant son was in the home, but he was in his bedroom. Ms. Smith also had a daughter who had spent the night at a friend’s home. The record does not indicate the age of either child.
. It was later determined that Mr. Sutherland wrote the words on the wall to make the police suspect that Ms. Smith’s boyfriend had committed the crime.
. At the time of the arrest, the police did not have sufficient evidence to charge Mr. Sutherland with the murder of Ms. Smith. However, he was a "person of interest” in the murder.
. Other facts, as they relate to the assignment of error, will be addressed in Section III, infra.
. "In 1965, the death penalty in West Virginia was abolished by the legislature.” Vance v. Holland, 177 W.Va. 607, 608, 355 S.E.2d 396, 397 (1987).
. Phillips was a 4-1 decision, with Justice Workman dissenting.
. Ross involved a state court prosecution in which the defendant invoked the federal constitution as a basis for reversal.
. The statute reads in full as follows:
In a case of felony, twenty jurors shall be drawn from those in attendance for the trial of the accused. If a sufficient number of jurors for such panel cannot be procured in this way, the court shall order others to be forthwith summoned and selected, until a panel of twenty jurors, free from exception, be completed, from which panel the accused may strike off six jurors and the prosecuting attorney may strike off two jurors. The prosecuting attorney shall first strike off two jurors, and then the accused six. If the accused failed to strike from such panel the number of jurors this section allows him to strike, the number not stricken off by him shall be stricken off by the prosecuting attorney, so as to reduce the panel to twelve, who shall compose the jury for the trial of the case.
W.Va.Code § 62-3-3 (1949) ().
. Although Phillips set out the remedy in Syllabus point 8, prior decisions of this Court also recognized the remedy of automatic reversal without a showing of prejudice. See State v. Wilcox, 169 W.Va. 142, 144, 286 S.E.2d 257, 259 (1982) ("[I]t is reversible error to deny a valid challenge for cause even if the disqualified juror is later struck by a [peremptory] challenge.”).
. A majority of courts require a defendant to establish prejudice when a peremptory strike is used to remove a juror who should have been struck for cause. See Pace v. State, 904 So.2d 331, 341 (Ala.Crim.App.2003); Minch v. State, 934 P.2d 764, 770 (Alaska Ct.App.1997); State v. Kuhs, 223 Ariz. 376, 224 P.3d 192, 198 (2010); Miles v. State, 350 Ark. 243, 85 S.W.3d 907, 911 (2002); People v. Whalen, 56 Cal.4th 1, 152 Cal.Rptr.3d 673, 294 P.3d 915, 951 (Cal.2013); State v. Ross, 269 Conn. 213, 849 A.2d 648, 669-70 (2004); Holmes v. State, 422 A.2d 338, 341 (Del.1980), superseded by statute on other grounds as stated in Burke v. State, 484 A.2d 490 (Del.1984); Johnson v. United States, 804 A.2d 297, 304 (D.C.2002); Street v. State, 592 So.2d 369, 370 (Fla.Dist.Ct.App.1992); State v. Iuli, 101 Hawai'i 196, 65 P.3d 143, 152 (2003); Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339, 343 (1978); People v. Bowens, 407 Ill.App.3d 1094, 348 Ill.Dec. 339, 943 N.E.2d 1249, 1259 (2011); Whiting v. State, 969 N.E.2d 24, 30 (Ind.2012); State v. Wilkins, 693 N.W.2d 348, 351 (Iowa 2005); State v. Broyles, 272 Kan. 823, 36 P.3d 259, 272 (2001); Ware v. State, 360 Md. 650, 759 A.2d 764, 771 (2000); Commonwealth v. Mendes, 441 Mass. 459, 806 N.E.2d 393, 408 (2004); People v. Holliday, 144 Mich.App. 560, 376 N.W.2d 154, 162 (1985); State v. Prtine, 784 N.W.2d 303, 311 (Minn.2010); Mettetal v. State, 615 So.2d 600, 603 (Miss.1993); State v. Jamison, 365 S.W.3d 623, 627 (Mo.Ct.App.2012); State v. Daly, 278 Neb. 903, 775 N.W.2d 47, 70 (2009); Jitnan v. Oliver, 254 P.3d 623, 630 (Nev.2011); State v. DiFrisco, 137 N.J. 434, 645 A.2d 734, 751 (1994); State v. Isiah, 109 N.M. 21, 781 P.2d 293, 302 (1989), overruled on other grounds by, State v. Lucero, 116 N.M. 450, 863 P.2d 1071, 1074 (1993); State v. Clemmons, 181 N.C.App. 391, 639 S.E.2d 110, 112 (2007); State v. Entzi, 615 N.W.2d 145, 149 (N.D.2000); State v. Hale, 119 Ohio St.3d 118, 892 N.E.2d 864, 888 (2008); Harmon v. State, 248 P.3d 918, 932 (Okla.Crim.App.2011); State v. Berliner, 232 Or.App. 539, 222 P.3d 744, 746 (2009); Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 107 (1996); State v. Barnville, 445 A.2d 298, 301 (R.I.1982); State v. Green, 301 S.C. 347, 392 S.E.2d 157, 160 (1990); State v. Daniel, 606 N.W.2d 532, 535 (S.D.2000); State v. Schmeiderer, 319 S.W.3d 607, 633 (Tenn.2010); Busby v. State, 253 S.W.3d 661, 670 (Tex.Crim.App.2008); State v. Menzies, 889 P.2d 393, 400 (Utah 1994); Lattrell v. Swain, 127 Vt. 33, 239 A.2d 195, 198 (1968); State v. Fire, 145 Wash.2d 152, 34 P.3d 1218, 1225 (2001); State v. Lindell, 245 Wis.2d 689, 629 N.W.2d 223, 245-46 (2001). But see Ma v. People, 121 P.3d 205, 210 (Colo.2005) (automatic reversal without showing prejudice); Harris v. State, 255 Ga. 464, 339 S.E.2d 712, 714 (1986) (same); Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky.2007) (same); State v. Jacobs, 789 So.2d 1280, 1284 (La.2001); State v. Good, 309 Mont. 113, 43 P.3d 948, 960 (2002) (same); People v. Weber, 103 A.D.3d 822, 959 N.Y.S.2d 736, 737 (N.Y.App.Div.2013) (same); Townsend v. Commonwealth, 270 Va. 325, 619 S.E.2d 71, 73 (2005) (same); Patterson v. State, 691 P.2d 253, 256 (Wyo.1984) (same). Two states appear not to have squarely addressed the issue: Maine and New Hampshire.
. The defendant and a co-defendant were tried together.
Concurrence in Part
concurring, in part, and dissenting, in part:
I agree with the Majority’s decision to affirm Mr. Sutherland’s conviction, yet the route chosen by the Majority in reaching that conclusion is confused. First, unlike the Majority, I believe the circuit court was incorrect when it chose not to strike the juror at issue, Mr. Wong, for cause. Second, I do not understand how the Majority can support creating new law — syllabus point three in the opinion, overruling syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995) — in a discussion that is entirely obiter dictum. Third, I am concerned about the implications of the new syllabus point on the efficacy of peremptory strikes.
I. Striking the Juror for Cause
The following exchanges show that Mr. Wong was biased and should have been struck for cause by the court:
(1) The jury panel was asked the following question: “[Defense Counsel:] ... Does anyone think if you intentionally murder someone, you should never leave prison?” Mr. Wong raised his hand.
(2) Defense counsel followed up on Mr. Wong’s initial response: “[Defense Counsel:] Mr. Wong, so, if you found Mr. Sutherland guilty of first degree murder, you could not recommend mercy? [Mr. Wong:] No, I just feel if somebody takes a life, and since you don’t have the death penalty here in West Virginia, that’s where he ought to stay.”
(3) Defense counsel continued by asking a third question: “[Defense Counsel:] Is there anyone here who agrees with the saying, ‘An eye for an eye and a tooth for a tooth?’ Mr. Wong raised his hand.”
In total, Mr. Wong responded to three questions posed by defense counsel dealing with the issue of mercy. Three times Mr. Wong indicated he would be unwilling to recommend mercy. The Majority insists that Mr. Wong did not make a “clear statement of bias,” as required by State v. Newcomb, 223 W.Va. 843, 679 S.E.2d 675 (2009), and that further questioning by defense counsel was needed to establish whether Mr. Wong was indeed able to impartially decide the case. How many different ways can someone say — unconditionally and unequivocally — that they would not recommend mercy?
The Majority unsuccessfully compares this case to the facts of State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011). The juror
I have to, you know, hear the case. I don’t know if I could stand here and give that decision at this very time but it would probably be unlikely that I would feel any mercy but I would have to, you know, I would have to hear the case through.
Id. at 499-500, 711 S.E.2d at 569-70 (emphasis added). Again, the Juntilla juror’s statement was equivocated.
Mr. Wong’s statements were perfectly clear. He did not say, “If somebody takes a life, prison is where he should probably to stay.” He affirmatively indicated that he believes that a person who takes a life should stay in prison, and through three questions, he never made any indication that he could be convinced otherwise. Mr. Wong made a clear expression of bias and should have been struck by the court for cause.
II. Overruling Phillips
I agree with the Majority’s conclusion that syllabus point 8 of Phillips must be overruled. The federal and West Virginia constitutions guarantee the right to an impartial jury, and that is precisely what Mr. Sutherland received. Applying Phillips would lead to an absurd result. Therefore, I agree that Mr. Sutherland’s conviction should be affirmed; however, I am disturbed by the path the Majority took in overruling Phillips.
The new syllabus point announced by the Majority is in a section of the opinion included “for the sake of argument.” The Court has created new law that has no effect on Mr. Sutherland’s conviction. This is obiter dictum. “It is a basic principle of American jurisprudence that a court cannot gratuitously pronounce what they envisage the law should be but must limit themselves to rulings in the context of a justiciable case or controversy.” Teller v. McCoy, 162 W.Va. 367, 396-97, 253 S.E.2d 114, 131 (1978) (Neely, J., concurring, in part, and dissenting, in part). By creating law that does not have any effect on the case at bar, the Majority has exceeded its appellate jurisdiction as granted by Article 8, Section 14 of the Constitution of West Virginia.
Had the Majority correctly found that Mr. Wong should have been struck for cause by the circuit court, the overruling of Phillips would be legitimate. Instead, because the new syllabus point created in the opinion is obiter dictum, the validity of the new syllabus point is doubtful.
III. Prejudice and Peremptory Strikes
I am concerned about the effect the Court’s new syllabus point will have on the defendant’s statutory right to peremptory strikes. Requiring a showing of prejudice may place some defendants between “a rock and a hard place”: continuing to allow a biased juror to sit on the jury in hopes of success on appeal or using a peremptory strike to correct a court’s error.
The Majority reasons that if a defendant does not wish to use a peremptory strike to correct a court’s error, the defendant can essentially make a gamble: allow the biased juror to sit on the case with the hopes of obtaining a reversal of the case on appeal. Unlike the Majority, I do not believe our state and federal constitutions condone or encourage gambling on a person’s liberty.
I find it more likely that a defendant would choose to strike an offending juror. In practice, most defendants use all of their peremptory strikes. If a defendant wished to use all six of his strikes to eliminate jurors who would otherwise not be struck for cause, but was instead required to use one of those strikes to correct a court’s error — failing to strike a juror showing clear bias — that defendant has effectively been denied a peremptory strike. In that case, the jury may contain one juror (or more) whom the defendant may have wished to strike for a perceived bias, but could not do so because of the court’s error.
Peremptory strikes originated in English law and arose to prevent a biased juror from sitting on a jury:
“[I]n criminal cases, or at least in capital ones, there is, infavorem vitae, allowed to*423 the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons.
“1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is, that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.
“2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.”
4 Bl. Comm. 353.
Swain v. Alabama, 380 U.S. 202, 242-243, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Goldberg, J., dissenting), overruled on equal protection and racial discrimination grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Historically, peremptory strikes did not exist to correct a court’s errors.
The effective denial of a peremptory strike may result in a person sitting on the jury, who through his responses to questions, mannerisms, and tone, has shown bias that would not rise to requiring the court to strike that juror for cause. Nonetheless, that juror is biased, and peremptory strikes exist so that that juror can be removed from the jury. I contend that the United States and West Virginia constitutions would require reversal of a conviction obtained where such a biased juror sits on a jury if a defendant’s peremptory strike has been effectively denied. However, the Majority’s new syllabus point requires that prejudice be shown to warrant reversal, and it would be impossible to prove prejudice in that situation. In this way, I believe the Majority may have overcorrected the error in Phillips, resulting in the dimin-ishment of the right to peremptory strikes.
