                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                              FILED
                                                                                       May 23, 2016
vs) No. 15-0344 (Fayette County 14-F-234)                                              RORY L. PERRY II, CLERK
                                                                                    SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA
Marvin L. White,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Marvin L. White, by counsel Matthew D. Brummond, appeals the Circuit
Court of Fayette County’s March 11, 2015, order sentencing him to consecutive prison terms of
one to five years for one count of felony conspiracy and one to fifteen years for one count of
burglary. The State, by counsel Lara Kay Omps-Botteicher, filed a response. Petitioner filed a
reply and a notice of additional authorities. On appeal, petitioner alleges two assignments of
error: (1) that the circuit court erred in denying his motion to strike a prospective juror for cause,
and (2) that the circuit court violated his constitutional right to self-representation.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In September of 2014, the Fayette County Grand Jury indicted petitioner and a co­
defendant on two felony charges: (1) conspiracy to commit burglary in violation of West
Virginia Code § 61-10-31, and (2) burglary in violation of West Virginia Code § 61-3-11. The
charges related to the unlawful breaking and entering of a home in Fayette County that occurred
in April of 2014. Thereafter, petitioner was arraigned in the Circuit Court of Fayette County. By
that time, E. Scott Stanton had been appointed as petitioner’s counsel.1 Following the indictment,
Mr. Stanton engaged in discovery with the State and filed several motions on his client’s behalf.

        In October of 2014, petitioner, pro se, filed four hand-written motions and a hand-written
petition for his attorney to provide him with discovery. One of the four pro se motions was a
“request to be appointed as co-counsel[.]”A few days after those documents were filed, Mr.
Stanton moved to withdraw as petitioner’s counsel.

       1
         It is unclear from the record on appeal when Mr. Stanton was appointed to represent
petitioner in this case.

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        In November of 2014, the circuit court held a pre-trial motions hearing. At that hearing,
Mr. Stanton argued that he should be relieved as petitioner’s counsel due to (1) an ethical
complaint petitioner filed against him2 and (2) petitioner’s motion to serve as co-counsel, which
Mr. Stanton interpreted as a motion for self-representation.3 However, when the circuit court
asked petitioner directly whether it was his “desire to have other counsel in this matter[,]”
petitioner replied, “No, sir. I’m happy with [Mr. Stanton]. I just wanted him to file some motions
for me[.]” The circuit court further asked petitioner, “So[,] you’re going to have to have an
appointed counsel; is that right?” Petitioner answered, “Yes, sir.” The circuit court then engaged
in a colloquy with petitioner on the issue of self-representation, which focused on petitioner’s
lack of legal training, experience, and education as well as the dangers of self-representation. At
the conclusion of that colloquy, the circuit court denied Mr. Stanton’s motion to withdraw. In so
doing, the circuit court found that the attorney-client relationship had not been irretrievably
broken.

       In December of 2014, the circuit court held a second pre-trial motions hearing. At that
hearing, petitioner’s counsel argued several pre-trial motions not previously decided, none of
which concerned a request by petitioner to represent himself.

        In January of 2015, petitioner’s jury trial commenced. Petitioner made no request to
represent himself at that time. During jury voir dire, the circuit court asked the jury panel
whether the immediate family of any of the prospective jurors were members of law enforcement
“or in any prosecutor’s office at all[.]” Prospective Juror Workman indicated that his nephew,
Larry Harrah, was Fayette County’s prosecuting attorney. In response to that answer, the circuit
court asked Prospective Juror Workman whether his relationship with Mr. Harrah would “in any
way bias or prejudice [him] for or against the State or for or against this defendant[.]”
Prospective Juror Workman answered, “No, sir, it would not.” Petitioner objected to Prospective
Juror Workman remaining on the jury panel, and the State countered that Prospective Juror
Workman was expressly unbiased and that Mr. Harrah was not personally prosecuting this case.
The circuit court ultimately ruled that Prospective Juror Workman could remain on the jury
panel. However, petitioner thereafter employed a peremptory strike to remove Prospective Juror
Workman. The trial ensued. Following deliberations, the jury returned a verdict of guilty on both
counts.

       Thereafter, petitioner moved for judgment notwithstanding the verdict and a new trial. In
March of 2015, the circuit court held hearings on petitioner’s post-trial motions, which were
denied, and on the issue of sentencing. At the conclusion of the sentencing hearing, and by order


       2
        The substance and ultimate disposition of this ethical complaint is not apparent from the
record on appeal.
       3
         Mr. Stanton made the following statements regarding petitioner’s motion to serve as co­
counsel: “[Petitioner] also filed a motion to basically serve as co-counsel, which I am
interpreting as a motion to serve as his own counsel[;]” “I think that basically what he is asking
is that he be permitted to serve as his own attorney[;]” and “I think he wants to serve as his own
counsel[.]”
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entered on March 11, 2015, the circuit court sentenced petitioner to a cumulative prison term of
two to twenty years. This appeal followed.

       This Court reviews challenges made to a circuit court’s findings and rulings as follows:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). With regard to our review of
juror qualifications, we follow a three-step standard of review:

       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).

State v. Sutherland, 231 W.Va. 410, 412, 745 S.E.2d 448, 450 (2013). With these standards in
mind, we turn to petitioner’s two assignments of error.

        On appeal, petitioner first argues that the circuit court erred in denying his motion to
strike Prospective Juror Workman for cause due to his relationship with Mr. Harrah. It is
axiomatic that a criminal defendant is entitled to a trial by impartial jury:

               The right to a trial by an impartial, objective jury in a criminal case is a
       fundamental right guaranteed by the Sixth and Fourteenth Amendments of the
       United States Constitution and Article III, Section 14, of the West Virginia
       Constitution. A meaningful and effective voir dire of the jury panel is necessary
       to effectuate that fundamental right.

Syl. Pt. 4, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981). Petitioner claims that the
circuit court’s denial of his motion to strike the prospective juror constitutes reversible error for
which we should grant him a new trial. In support of his argument, petitioner relies upon our
holding in syllabus point 4 of State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), that “[a]
potential juror closely related by blood or marriage to either the prosecuting or defense attorneys
involved in the case or to any member of their respective staffs or firms should automatically be
disqualified.” However, petitioner acknowledges that we have also held 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

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       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.

Sutherland, 231 W.Va. at 410, 745 S.E.2d at 448, syl. pt. 3. Further, in State v. Rollins, 233
W.Va. 715, 760 S.E.2d 529 (2014), we explained that “Sutherland makes clear that unless a
criminal defendant shows prejudice, a trial court does not commit reversible error when it fails to
strike a juror for cause where a party uses a peremptory strike to eliminate the offending juror
from the jury panel.” Id. at 729, 760 S.E.2d at 543.

        Petitioner attempts to distinguish Sutherland from the facts of this case by arguing that
juror bias is distinct from juror disqualification. Under this theory, petitioner requests that this
Court limit the holding in Sutherland to biased jurors. Following a review of the record on
appeal and the parties’ arguments, we decline petitioner’s invitation to revisit and limit our
holding in Sutherland based on the arguments and circumstances presented in this case.
Therefore, we find that Sutherland controls our resolution of this matter.

        It is uncontested here that Prospective Juror Workman disclosed his relationship with Mr.
Harrah during voir dire of the jury panel and that, following the denial of his motion to strike for
cause, petitioner employed a peremptory strike that removed Prospective Juror Workman from
the jury panel. It is also uncontested that the jury that decided petitioner’s case was impartial.
Therefore, as Prospective Juror Workman did not sit on the jury that decided petitioner’s case
and petitioner’s jury was impartial, petitioner received both a meaningful and effective voir dire
and the rights guaranteed by the Sixth and Fourteenth Amendments of the United States
Constitution and Article III, Section 14, of the West Virginia Constitution. Moreover, because
petitioner has failed to demonstrate any prejudice from his use of a peremptory strike to remove
Prospective Juror Workman, we find no reversible error in the circuit court’s denial of the
motion to strike that prospective juror for cause.

        Petitioner’s second assignment of error is that the circuit court violated his constitutional
right to self-representation. The law is clear that “[t]he right of self-representation is a correlative
of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia
Constitution.” Syl. Pt. 7, State v. Sheppard, 172 W.Va. 656, 661, 310 S.E.2d 173, 178 (1983);
see U.S. Const. amends. VI, XIV; Faretta v. Cal., 422 U.S. 806 (1975) (holding that criminal
defendants have constitutional right to refuse counsel and represent themselves). Indeed, “‘[a]
person accused of a crime may waive his constitutional right to assistance of counsel and his
constitutional right to trial by jury, if such waivers are made intelligently and understandingly.’
Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964).” Syl. Pt. 4,
State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012). That said, this Court has also explained
that a criminal defendant’s right to self-representation is a qualified one:

               A defendant in a criminal proceeding who is mentally competent and sui
       juris, has a constitutional right to appear and defend in person without the
       assistance of counsel, provided that (1) he voices his desire to represent himself in
       a timely and unequivocal manner; (2) he elects to do so with full knowledge and
       understanding of his rights and of the risks involved in self-representation; and (3)

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       he exercises the right in a manner which does not disrupt or create undue delay at
       trial.

Surber, 228 W.Va. at 623, 723 S.E.2d at 855, syl. pt. 5 (citing Sheppard, 172 W.Va. 656, 310
S.E.2d 173, syl. pt. 8); see Sheppard, 172 W.Va. at 670, 310 S.E.2d at 187 (stating that “the right
of self-representation is a qualified right and its exercise is subject to reasonable restrictions
designed to further two important considerations: protection of other fundamental rights
guaranteed the accused by the Constitution, and protection of the orderly administration of the
judicial process.”).

        Petitioner claims to have satisfied the elements listed in Surber to proceed by self-
representation; however, the record on appeal does not support that conclusion. Surber first
requires that a waiver of the right to counsel and the invocation of the right to self-representation
be made unequivocally. Surber next requires such a request to be made with the full knowledge
and understanding of the rights and risks involved. Petitioner’s pro se motion asked the circuit
court to permit him to proceed as “co-counsel;” thus, it did not unequivocally waive his right to
counsel and to seek self-representation. Further, at the hearing on this issue, petitioner made no
unequivocal statement that he wished to waive his right to counsel and to proceed by self-
representation. To the contrary, at that hearing, petitioner stated that he would need court-
appointed counsel and that he was “happy with [Mr. Stanton]. [Petitioner] just wanted him to file
some motions” in the case. Notwithstanding the attempts of Mr. Stanton and the circuit court to
rephrase petitioner’s motion as a request to serve as his own counsel, petitioner made no such
unequivocal request to the circuit court. Further, assuming petitioner’s pro se motion met the
“unequivocal manner” element in Surber, there is no evidence that petitioner had a full
understanding of the rights and risks involved in self-representation at the time he filed that
motion. Based on the record before us, the circuit court explained those rights to him during its
colloquy in November of 2014. Petitioner made no request to proceed by self-representation
during or after that colloquy.

         Given the circumstances of this case, petitioner failed to satisfy the reasonable
restrictions, as set forth in Surber, placed upon the right of self-representation. Based on our
review, we find no violation by the circuit court of petitioner’s constitutional rights, and, as such,
we find no merit to petitioner’s second assignment of error.

       For the foregoing reasons, the circuit court’s March 11, 2015, sentencing order is hereby
affirmed.


                                                                                           Affirmed.

ISSUED: May 23, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis

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Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Allen H. Loughry II





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