No. 11-0799 – State of West Virginia v. Timothy Ray Sutherland
                                                                                FILED
                                                                                July 16, 2013

                                                                           RORY L. PERRY II, CLERK

                                                                         SUPREME COURT OF APPEALS

                                                                             OF WEST VIRGINIA


Benjamin, Chief Justice, 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

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       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 at issue in Juntilla made an

initial statement that was clearly equivocated: “[T]he 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 case through.” 227 W. Va. at 499, 711 S.E.2d at 569 (emphasis added). Upon further

questioning, the juror stated,

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                    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

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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

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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, in
              favorem vitae, allowed to 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

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              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 (1965) (Goldberg, J., dissenting), overruled on

equal protection and racial discrimination grounds by Baston v. Kentucky, 476 U.S. 79

(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 diminishment of the right to

peremptory strikes.

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