                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    August 31, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-1234 (Fayette County 14-F-28)                                       OF WEST VIRGINIA


Lesa M. Lewis,

Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Lesa M. Lewis, by counsel J.B. Rees, appeals the Circuit Court of Fayette
County’s October 10, 2014, order sentencing her to one to five years in prison for one count of
conspiracy to commit a felony, in violation of West Virginia Code § 61-10-31; life with mercy
for one count of kidnaping, in violation of West Virginia Code § 61-2-14; and thirty years in
prison for one count of first-degree robbery, in violation of West Virginia Code § 61-2-12. The
State of West Virginia, by counsel Derek A. Knopp, filed a response in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in denying her motions to
strike two prospective jurors for cause.

        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 January of 2014, petitioner and four other individuals were indicted on one count of
conspiracy to commit a felony, in violation of West Virginia Code § 61-10-31; one count of
kidnaping, in violation of West Virginia Code § 61-2-14; and one count of first-degree robbery,
in violation of West Virginia Code § 61-2-12. The indictment alleged that petitioner and four co­
conspirators kidnaped and robbed an individual by taking him to an automated teller machine
against his will and forcing him to withdraw money.

        In August of 2014, petitioner’s jury trial commenced in the Circuit Court of Fayette
County. During jury voir dire, one prospective juror revealed that he was the brother-in-law of
Larry Harrah, the assistant prosecuting attorney prosecuting petitioner’s case. A second
prospective juror revealed that she was a child protective services (“CPS”) worker for the West
Virginia Department of Health and Human Resources in Nicholas County, West Virginia. Both
prospective jurors were specifically asked if they were biased or prejudiced for or against either
party. Both prospective jurors answered that they were not. Based on these disclosures, petitioner
made motions to strike both prospective jurors for cause. The circuit court denied petitioner’s
motions and found that there was no indication that either prospective juror possessed any bias or

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prejudice in this matter. Petitioner did not seek individual voir dire of either prospective juror.
However, she used two peremptory strikes to remove both prospective jurors from the jury panel.
Therefore, those potential jurors did not participate in the jury’s deliberation in petitioner’s case.
Following the presentation of evidence, argument, and deliberation, the jury returned a verdict of
guilty on all counts.

        In October of 2014, the circuit court held petitioner’s sentencing hearing. Petitioner
moved for probation, but the circuit court denied the motion and sentenced her to one to five
years in prison for the conspiracy conviction; thirty years in prison for the first-degree robbery
conviction; and life with mercy for the kidnaping conviction. All sentences were ordered to run
consecutively to one another. This appeal followed.

       This Court has held that

       “[i]n 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).

State v. Sutherland, 231 W.Va. 410, 412, 745 S.E.2d 448, 450 (2013).

       On appeal, petitioner assigns error to the circuit court’s denial of her motions to strike
two prospective jurors for cause. Further, petitioner argues that she had to use peremptory
challenges to correct the circuit court’s error, and, therefore, was deprived of her statutory
allotment of peremptory challenges.1 We have 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
       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 at 410, 745 S.E.2d at 448, Syl. Pt. 3. 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.” In
her brief to this Court, petitioner admits that she “does not claim any specific bias or prejudice of
the jury eventually paneled in this matter.” Instead, petitioner invites this Court to revisit its
holdings in Rollins and Phillips, which was expressly overruled by Sutherland. As we stated in
       1
           See W.Va. Code § 62-3-3 (regarding jury selection in felony cases).


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Sutherland, the overwhelming majority of states require a showing of prejudice with regard to
prospective jurors who are not ultimately empaneled because, when a criminal defendant has
been tried before an unbiased jury, he or she has received exactly what the constitution
guarantees. 231 W.Va. at 420, 745 S.E.2d at 458. Under the facts and circumstances presented in
this case, we decline petitioner’s invitation to deviate from our reasoning in Sutherland.
Accordingly, despite petitioner’s argument that both prospective jurors were biased against him,
we find that no error occurred because both jurors were removed from the jury panel by
peremptory challenge. Further, petitioner failed to demonstrate any resulting prejudice in the
record on appeal from her use of those peremptory challenges. Petitioner was tried by an
unbiased and impartial jury. Therefore, given the circumstances of this case, we find no error
with regard to the circuit court’s denial of petitioner’s motions to strike these two prospective
jurors for cause.

       For the foregoing reasons, the circuit court’s October 10, 2014, order is hereby affirmed.


                                                                                        Affirmed.


ISSUED: August 31, 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




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