                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA,                                                  FILED
Plaintiff Below, Respondent                                           April 23, 2015
                                                                      released at 3:00 p.m.
vs.) No. 14-0437 (Kanawha County 14-F-51)                             RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA
ROY DALE MCKEAN,
Defendant Below, Petitioner


                             MEMORANDUM DECISION

       Petitioner, Roy Dale McKean, by counsel Rick Holroyd, appeals the March 14, 2014,
order of the Circuit Court of Kanawha County that sentenced him to an aggregate term of
seven to fifteen years of incarceration, upon his conviction by a jury of four felony offenses
and three misdemeanor offenses. The State of West Virginia, by counsel Christopher S.
Dodrill, filed a summary response in support of the circuit court’s order. On appeal,
Petitioner argues that the circuit court erred in denying his motion for a new jury pool.

        This Court has considered the parties’ briefs, the record on appeal, and the parties’
oral arguments. Upon consideration of the standard of review, 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.

       The evidence at trial showed that on November 2, 2013, at around 11:00 p.m., Trooper
D. Gregory observed a motorcycle being driven by Mr. McKean along Route 60 in St.
Albans, West Virginia. An unidentified woman was on the motorcycle with Mr. McKean.
After observing that the motorcycle had a missing tail-light, Trooper Gregory turned on his
cruiser’s flashing lights to initiate a traffic stop of the motorcycle. However, Mr. McKean
refused to stop and instead began a high speed attempt to evade Trooper Gregory. The high
speed pursuit of Mr. McKean was captured on a dashboard camera in Trooper Gregory’s
vehicle. At some point during the chase, Mr. McKean turned into a residential area where
he apparently hit a bump in the road and crashed his motorcycle. Mr. McKean and the
unidentified woman ran from the crash scene. Trooper Gregory was able to catch Mr.
McKean. A fight ensued between Mr. McKean and Trooper Gregory. A passerby assisted
Trooper Gregory in placing Mr. McKean under arrest. After Mr. McKean was arrested,

                                              1

another police officer, who had responded to the incident, found a duffel bag near Mr.
McKean’s motorcycle.       The duffel bag contained materials used for making
methamphetamine.

       In the 2014 January term of court, a grand jury returned an eight count indictment
against Mr. McKean. The case went to trial on February 10, 2014. During jury selection,
the prospective jurors in the jury pool were asked by the trial court if any of them had been
acquainted with Mr. McKean. One prospective juror, a deputy sheriff, responded that he
believed that he had once arrested Mr. McKean. The trial court stopped the general
questioning and removed the deputy sheriff from the jury pool. Defense counsel moved the
court for a new jury pool. The trial court denied the motion and provided the jury pool with
a curative instruction. The case proceeded to trial. The State called three witnesses during
its case-in-chief. Mr. McKean testified during his case-in-chief and called one witness.
After the State called a rebuttal witness, the case was turned over to the jury. The jury
returned a verdict convicting Mr. McKean of seven counts of the indictment.1

        Here, Mr. McKean has presented only one assignment of error. Mr. McKean contends
that the trial court committed error in denying his motion to dismiss the jury pool as a result
of the statement made by the deputy sheriff during jury selection. We previously have held
that, “[a]bsent a few exceptions, this Court will review . . . procedural rulings of the circuit
court under an abuse of discretion standard.” Syl. pt. 1, in part, McDougal v. McCammon,
193 W. Va. 229, 455 S.E.2d 788 (1995).

       The right of a criminal defendant to an impartial and objective jury is a fundamental
right guaranteed by the state and federal constitutions. Specifically, this Court has held that:

                     [t]he 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). We also have
cautioned that “[t]he mere presence of a biased prospective juror on a jury panel, although


       1
        The eighth count of the indictment was not submitted to the jury. The record
indicates that the circuit court entered an order after the trial dismissing the eighth count
upon a motion by the State to nolle prosequi the offense.

                                               2

undesirable, does not threaten a defendants constitutional right to an impartial jury if the
biased panel member does not actually serve on the jury that convicts the defendant.” State
v. Phillips, 194 W. Va. 569, 587, 461 S.E.2d 75, 93 (1995), overruled on other grounds by
State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013).

         The issue of a prospective juror making a possible bias statement during jury selection
was recently addressed by this Court in Nenigar v. Ballard, No. 13-0385, 2013 WL 6153154
(W. Va. Nov. 22, 2013) (memorandum decision). The defendant in Nenigar was sentenced
to life in prison, without the possibility of parole, after being convicted of first-degree murder
by a jury in 2004. The conviction was upheld on direct appeal. The defendant subsequently
filed a habeas corpus petition seeking to obtain a new trial. One of the issues raised in the
habeas petition was that during jury selection a prospective juror stated that she knew “the
Defendant from a previous placement that he was in.” Defense counsel approached the
bench and moved the court to declare a mistrial and summon a new jury pool. The trial court
denied that motion, but granted defense counsel's motion to strike the juror for cause. In the
habeas proceeding the trial court found that no error occurred in denying the motion to grant
a mistrial and dismiss the jury pool. In the appeal of the habeas decision, this Court affirmed
the habeas trial court’s ruling and adopted the habeas judge’s order in full. The relevant part
of the habeas order adopted by this Court addressed the issue as follows:

                       The Court finds that there was no special attention
               brought to [the juror’s] statement. The Court further funds [sic]
               that [the juror] did not elaborate on what she meant by saying
               “placement” and there is no indication that the jury panel
               thought she meant incarceration or other confinement. The
               Court further finds that the trial court made further inquiries of
               the jury panel, after that particular comment, if there was any
               reason that they had a bias or prejudice against Petitioner and
               none of the jurors stated that they were influenced by [the
               juror’s] statement. The Court further finds that [the juror] did
               not serve on the jury that convicted the Petitioner. Therefore,
               the Court concludes that Petitioner is unable to show a violation
               under the State and federal constitutions regarding his right to
               an impartial, objective jury. Therefore, the Court concludes that
               the trial court did not err in failing to call a mistrial during voir
               dire.

Nenigar, 2013 WL 6153154, at *13. In the instant proceeding, we believe Mr. McKean, like
the defendant in Nenigar, has failed to show a violation of his constitutional right to an
impartial jury.

                                                3

     The trial court gave a curative instruction after the deputy sheriff made the improper
comment. The trial court instructed the jury as follows:

                      THE COURT: All right [sic], ladies and gentlemen, I’m
               going to instruct you to disregard what that last juror said. Just
               because one’s arrested doesn’t mean that they are guilty of
               anything.

                       Is there any juror here who cannot set that aside and
               judge this case strictly on the merits of the evidence presented
               in this case, or is the fact that he was arrested on some prior
               occasion that we don’t know when or what it was about or any
               of those circumstances of it, that would so preoccupy you that
               you would not be able to be fair and impartial to him? And it’s
               okay to tell me that it’s going to affect your judgment in this
               case, because that’s what I want to know, if it’s going to impact
               you in any way.

                     Is there any juror who that last juror’s statements might
               impact you in any regard?

                         Okay. The record will reflect that there were no hands
               raised.

        We believe that the trial court’s curative instruction fulfilled its purpose of learning
whether any of the prospective jurors were influenced by the deputy sheriff’s remark. None
of the prospective jurors indicated that they would be biased against Mr. McKean because
of the remark by the deputy sheriff. Moreover, Mr. McKean had a right to question the
prospective jurors individually if he believed the curative instruction was insufficient. See
State v. Finley, 177 W. Va. 554, 355 S.E.2d 47 (1987). However, Mr. McKean chose not to
exercise that right.2 See State v. Miller, 197 W. Va. 588, 603, 476 S.E.2d 535, 550 (1996)
(“[w]here a defendant does not seek additional voir dire to demonstrate possible bias,
prejudice, or disqualification, there can be no error for the failure to strike prospective jurors
for cause.”). Finally, the record shows that the deputy sheriff did not serve on the jury.

       Based upon the facts in this case, we simply have not found any evidence to show that


       2
        In fact, the State actually mentioned that, “if necessary, we can do individual voir dire
of each juror[.]”

                                                4

the trial court abused its discretion in denying Mr. McKean’s motion to dismiss the jury pool.
The evidence in this case, including a video tape of the high speed pursuit, was sufficient for
the jury to find Mr. McKean guilty beyond a reasonable doubt. We have held that “‘[a]
reviewing court should not reverse a criminal case on the facts which have been passed upon
by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict
must have been the result of misapprehension, or passion and prejudice.’ Syllabus point 3,
State v. Sprigg, 103 W.Va. 404, 137 S.E. 746 (1927).” Syl. pt. 1, State v. Easton, 203 W. Va.
631, 510 S.E.2d 465 (1998).

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: April 23, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                5

