                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                 March 23, 2020
vs) No. 18-1044 (Berkeley County 17-F-235)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Billy Edward Evans,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

        Petitioner Billy Edward Evans, by counsel Christian Riddell, appeals the sentencing order
entered on October 19, 2018, in the Circuit Court of Berkeley County, that denied his post-trial
motion for a new trial and sentenced him on his convictions of one count of attempted first-degree
murder, six counts of malicious assault, and five counts of wanton endangerment with a firearm.
The State of West Virginia, by counsel Andrea Nease Proper, filed a response in support of the
circuit court’s order. Petitioner submitted a reply.

       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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

       On January 24, 2017, petitioner was inside a Sheetz convenience store located in
Martinsburg, West Virginia, waiting for a cab. While he was standing by the window, Renzel
Danforth (“the victim”) walked inside. The two men were strangers to each other.

        What happened as and after the victim entered the store was highly contested at trial.
Petitioner claims that the victim believed that he (petitioner) was admiring his own reflection in
the store window and said, “N****rs think they’re pretty. These West Virginia n****rs think
they’re pretty, but n****rs ain’t as pretty as me . . . light skin is not in style no more.” According
to petitioner, the two men exchanged more words, causing petitioner to become angry at the
victim’s mannerisms and responses. Petitioner claims that, in an effort to de-escalate the situation,
he went outside the store to continue waiting for his cab. As the victim exited the store, the victim
said to petitioner, “Are you still here? You was talking a lot of s**t in there. I’ve got something
for you. You stay right there. I’ve got a nice piece of steel for you.” Petitioner claims that he
believed, based upon the victim’s comments, that he was going to retrieve either a knife or a gun
from his car. Petitioner testified that he followed the victim to his car for the purpose of taking
whatever it was that the victim was going to retrieve. Petitioner saw the victim reach under his

                                                  1
car’s seat to grab the “piece of steel,” at which point petitioner opened the victim’s car door and
reached for him in an effort to stop him. Petitioner testified that, although he was lawfully carrying
a firearm, he had not drawn it and, in fact, could not have possibly done so because he had a cup
of coffee in one hand while holding the handle on the victim’s car door and reaching for the victim
with the other hand.

         According to petitioner, the victim retrieved a knife, got out of his car, and began stabbing
at petitioner’s head. Petitioner testified that although he was able to get a hold of the victim, he felt
the victim puncture his body with the knife in various places, including his left shoulder, left arm,
left hand and fingers, and penis. Petitioner testified that he felt his “adrenalines rushing” because
he believed the victim was trying to kill him. Petitioner shot the victim six times and hit him in the
head with the butt of his gun. Petitioner left the scene in a cab and was later apprehended by police.

        The State’s theory of the case differed significantly from petitioner’s. The victim testified
that he entered the store to purchase gas. While he was standing in line, he “looked through the
window at my car and at myself and fixed my hair a bit . . . and then I saw [petitioner] staring at
me, but I just turned around, because I just – to avoid looking at him.” According to the victim, “I
just faced the cashier and then [petitioner] began to question me and asking me if I’m all right. I
didn’t respond, and then I heard him say it again if I’m all right. I still didn’t respond, and then he
said ‘because I have a gun and I will kill you now.’” In response, the victim tried to ignore him
and “laugh[ed] it off.” The victim paid for what he purchased, and walked outside. Petitioner then
appeared to the victim’s right and stated, “‘that’s your black car over there?’” According to the
victim, petitioner “reached in his pants and right when he did that that’s when I ran to my car.”
The victim then got into the driver’s seat, looked behind him, and saw petitioner with his gun. The
victim then reached under his seat and pulled out the knife he keeps there. He testified that he got
out of the car to prevent his girlfriend, who was in the passenger’s seat, from getting hurt. After
petitioner shot the victim six times, the victim began stabbing at him in an effort to stop petitioner
from shooting. Once petitioner ran out of ammunition, he began to hit the victim with the gun. The
victim continued to stab petitioner, eventually fell to the ground, and was transported to the
hospital.1

        Among the witnesses who testified at trial was Victor Hajnos, the assistant manager at
Sheetz who was working when the altercation between petitioner and the victim took place. Mr.
Hajnos testified that he observed the two men arguing, but never heard the victim threaten
petitioner. In contrast, he heard petitioner tell the victim that if he “came outside that he was going
to mess him up.” Mr. Hajnos testified that, when he rang the victim up at the counter, he “asked
him if he was all right and that . . . I could call the cops because I felt like something was wrong
and I offered that to him.” Mr. Hajnos warned the victim not to go outside. After the victim left
the store, Mr. Hajnos watched petitioner run after him. Mr. Hajnos hit the panic alarm to summon
law enforcement. Based upon his observations, Mr. Hajnos believed petitioner to be the aggressor.

        On August 31, 2017, petitioner was indicted by a Berkeley County Grand Jury on one count


        1
         The victim was shot in the neck, collar bone, left shoulder, the right side of the chest, and
in the groin. He also sustained a skull fracture and damage to his sinus cavity.


                                                   2
of attempted murder, six counts of malicious assault, and five counts of wanton endangerment.2
He was convicted by a jury on all twelve counts of the indictment.

        Petitioner filed a post-trial motion for a new trial. New counsel was appointed and a
renewed motion was filed. Following a hearing, the circuit court denied petitioner’s motion and
sentenced him to three to five years in prison for his attempted murder conviction; two to ten years
for each of the malicious assault convictions; and a determinate term of five years for each of the
wanton endangerment with a firearm convictions. All of petitioner’s sentences were ordered to run
consecutively. This appeal followed.

         In his first assignment of error, petitioner argues that the circuit court committed reversible
error by refusing to grant his motion for a continuance of his criminal trial in order to discharge
his trial counsel, whom petitioner believed was not competently representing him. Petitioner
contends that, on the first day of trial, he articulated numerous legitimate reasons why his trial
counsel was ineffective, including that counsel refused to listen to him, was not prepared to try the
case, did not “pay attention” to discovery, and refused to write things down. As further grounds
for a continuance, petitioner argued that, because his trial counsel could be called to testify in the
failure to appear case, see n.2., counsel had a conflict of interest that required he be discharged
from representing petitioner in the criminal matter at issue. According to petitioner, the circuit
court should have granted his request for a continuance so that he could obtain new counsel, and
its failure to do so was reversible error.

        We review the circuit court’s denial of petitioner’s request for a continuance for abuse of
discretion.

                “The granting of a continuance is a matter within the sound discretion of
       the trial court, though subject to review, and the refusal thereof is not ground for
       reversal unless it is made to appear that the court abused its discretion, and that its
       refusal has worked injury and prejudice to the rights of the party in whose behalf
       the motion was made.” Syllabus point 1, State v. Jones, 84 W. Va. 85, 99 S.E. 271
       (1919).

Syl. Pt. 1, State v. Dunn, 237 W. Va. 155, 786 S.E.2d 174 (2016).

        We first address petitioner’s claim that his trial counsel had a conflict of interest that
required his discharge from the present matter because counsel could be called as a witness in the
failure to appear case. See Syl. Pt. 5, Watson v. Black, 161 W. Va. 46, 239 S.E.2d 664 (1977)
(holding that court-appointed counsel may be relieved for good cause, including a conflict of
interest). The record reveals that, at a March 5, 2018, pretrial hearing, trial counsel had moved to
withdraw on this very ground—that is, that he might be called as a witness in the failure to appear
case. The court advised petitioner that it had other counsel standing by in the courtroom to appoint,


       2
         On January 16, 2018, petitioner failed to appear at a pre-trial hearing. As a result, he was
subsequently indicted on the charge of failing to appear. Petitioner alleged that his trial counsel
had advised him that he did not need to appear at the pre-trial hearing, a claim that counsel denied.
Separate counsel was appointed to represent petitioner on that charge.
                                                   3
if necessary, but cautioned that “it’s very likely he’s not going to be able to get ready for your case
within a month, which means that we might be setting your case out again.” After trial counsel and
petitioner conferred during a brief recess, petitioner agreed that trial counsel would continue to
represent him on the present charges. Nonetheless, petitioner now argues, as he did in connection
with his motion to continue, that, at the March 5th hearing, he did not understand that the trial
would be continued if new counsel was appointed. Rather, petitioner claims, he agreed to continue
with his trial counsel only because he believed that new counsel would not have adequate time to
prepare for a trial that was scheduled to begin approximately one month later.

        We find no error. “Whenever it is suggested to the trial court that an indigent criminal
defendant is dissatisfied with his court-appointed counsel, the trial court should conduct a hearing
on the record before trial to determine whether good cause exists to discharge a court-appointed
counsel and appoint another.” Syl. Pt. 3, Watson. It is clear that, at the March 5, 2018, hearing, the
conflict of interest issue was raised and resolved to petitioner’s satisfaction. Indeed, it was
petitioner who determined that his trial counsel should continue to represent him in this criminal
matter. Thus, we do not find that the circuit court abused its discretion in declining to revisit the
issue and in denying petitioner’s motion to continue his criminal trial based upon any conflict of
interest.

        We next address petitioner’s claim that a continuance should have been granted because
he believed that his trial counsel was not providing him with competent representation.

               In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-pronged test established in Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s
       performance was deficient under an objective standard of reasonableness; and (2)
       there is a reasonable probability that, but for counsel’s unprofessional errors, the
       result of the proceedings would have been different.

               In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified acts
       or omissions were outside the broad range of professionally competent assistance
       while at the same time refraining from engaging in hindsight or second-guessing of
       trial counsel’s strategic decisions. Thus, a reviewing court asks whether a
       reasonable lawyer would have acted, under the circumstances, as defense counsel
       acted in the case at issue.

Syl. Pts. 5 and 6, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

        We have cautioned that “‘it is the extremely rare case when this Court will find ineffective
assistance of counsel when such a charge is raised as an assignment of error on a direct appeal.’”
Id. at 14, 459 S.E.2d at 125 (quoting State v. Triplett, 187 W.Va. 760, 771, 421 S.E.2d 511, 522
(1992)). “The very nature of an ineffective assistance of counsel claim demonstrates the
inappropriateness of review on direct appeal. . . . Lacking an adequate record, an appellate court
simply is unable to determine the egregiousness of many of the claimed deficiencies.” Id. at 15,
459 S.E.2d at 126. Despite petitioner’s efforts to characterize this alleged error as something other

                                                  4
than an ineffective assistance of counsel claim, it is clear that petitioner’s argument is that his trial
counsel’s performance was objectively deficient. It is beyond cavil that “intelligent review is
rendered impossible because the most significant witness, the trial attorney, has not been given the
opportunity to explain the motive and reason behind his or her trial behavior.” Id. at 14-15, 459
S.E.2d at 125-26. See also Tex S. v. Pszczolkowski, 236 W. Va. 245, 254, 778 S.E.2d 694, 703
(2015) (“It is the need for the trial attorney’s testimony that generally precludes this Court
from reviewing any ineffective assistance of counsel claim on direct appeal.”); Miller, 194 W. Va.
at 17, 459 S.E.2d at 128 (stating that this Court “intelligently cannot determine the merits of this
ineffective assistance claim without an adequate record giving trial counsel the courtesy of being
able to explain his trial actions”). Thus, notwithstanding petitioner’s stated desire that this Court
consider, in this direct appeal of his convictions, whether his trial counsel provided competent
representation, we decline to do so.

        In his next assignment of error, petitioner argues that the circuit court erred in refusing his
request for a self-defense instruction because the court determined that petitioner was the
aggressor. He contends that there was a myriad of evidence that might reasonably cause a juror to
believe that he acted in self-defense and that the circuit court improperly removed this factual issue
from the jury as fact finder. Specifically, petitioner argues that the jury viewed the clothing he was
wearing at the time of the incident and that it had “blood and cuts” on them; that the victim’s claim
that petitioner, a perfect stranger to him, threatened to kill him while in the check-out line at Sheetz
was not credible; that the video footage from Sheetz did not show petitioner reaching into his pants
for a gun as the victim claimed, or that the victim was running away from petitioner; and that
petitioner had a cup of coffee in his hand when he approached the victim’s car and, thus, it was
impossible for petitioner to have had a gun in the other hand while also opening the victim’s car
door. Petitioner also points to witness testimony that corroborated his claim that he did not shoot
the victim until the fight had already started. Finally, according to petitioner’s own testimony, the
victim told him that he was going to his car to get a “piece of steel,” and that petitioner followed
him there because he (petitioner) did not have a car and, if the victim had returned with a weapon,
he could have harmed him and then driven away. We find no error.

                “As a general rule, the refusal to give a requested jury instruction is
        reviewed for an abuse of discretion. By contrast, the question of whether a jury was
        properly instructed is a question of law, and the review is de novo.” Syllabus Point
        1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

Syl. Pt. 1, State v. Brooks, 214 W. Va. 562, 591 S.E.2d 120 (2003).

       “‘The general rule is that a person accused of an assault does not lose his right to assert self-
defense, unless he said or did something calculated to induce an attack upon himself.’” Id. at 567,
591 S.E.2d at 125 (quoting Syl., State v. Smith, 170 W. Va. 654, 295 S.E.2d 820 (1982) (emphasis
added)). Further, this Court has instructed that “‘one who is at fault or who is the physical
aggressor can not [sic] rely on self-defense . . . .’” State v. Knotts, 187 W. Va. 795, 801, 421 S.E.2d
917, 923 (1992) (quoting Smith, 170 W. Va. at 656, 295 S.E.2d at 822 (emphasis added)). Indeed,

        “in general, the right of self-defense cannot be successfully invoked by
        an aggressor or one who provokes an altercation, unless he or she in good faith first

                                                   5
       withdraws from the combat at a time and in a manner to let the other person know
       that he or she is withdrawing or intends to withdraw from further aggressive
       action.” State v. Riley, 137 Wash.2d 904, 976 P.2d 624, 627 (1999) (citation
       omitted).

Brooks at 567, 591 S.E.2d at 125.

        Petitioner’s own testimony established that, after inflammatory words were allegedly
exchanged between him and the victim—including that the victim threatened to get “a nice piece
of steel” from his car—petitioner elected not to withdraw, seek help from others, or contact law
enforcement. Instead, petitioner followed the victim from the store, into the parking lot, and to his
car, where petitioner then shot him six times and hit him with the butt of his gun. As the circuit
court determined, petitioner

       was, in fact, the aggressor. He’s the one that elevated it up by charging at [the
       victim], grabbing him – grabbing [the victim] as he got into the car, and basically
       he provoked the very battle which resulted in [the victim] pulling a knife to protect
       himself and then responded by turning – whichever stage of the game, whether it
       was the gun that was brought out before or during the fight, I don’t think that that
       makes a difference when the gun was brought out because of the fact that he charges
       at [the victim] while [the victim] was getting into his vehicle, not when [the victim]
       is getting out of his vehicle.

         It is well settled that “‘[i]nstructions must be based upon the evidence and
an instruction which is not supported by evidence should not be given.’ Syllabus Point 4, State v.
Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).” Brooks, 214 W. Va. at 564, 591 S.E.2d at 122,
syl. pt. 5. See also Syl. Pt. 3, State v. Shingleton, 222 W. Va. 647, 671 S.E.2d 478 (2008). Based
upon the evidence, we find that the circuit court did not abuse its discretion in denying petitioner’s
request for a self-defense jury instruction.

         In his third assignment of error, petitioner argues that the prosecutor acted partially and
unfairly in making inappropriate comments as to the mendacity of witnesses at trial. In particular,
regarding the testimony of Mr. Hajnos, the Sheetz employee who testified that petitioner had been
the verbal aggressor inside the store, the prosecutor asked petitioner if Mr. Hajnos’s testimony was
“untruthful” and if he was “a liar.” Petitioner objected to the questioning on the ground that it
invaded the province of the jury. However, the circuit court overruled the objection, ruling that
“[i]t’s cross-examination. [The prosecutor] wants to know if there’s anything [petitioner] disagrees
with.” Petitioner also argues that the prosecutor unfairly questioned petitioner as to whether the
arresting officer testified truthfully regarding his interactions with petitioner, improperly
referenced petitioner’s nickname of “Dollar,” and made remarks about the mendacity of various
witnesses and petitioner during closing arguments. On appeal, petitioner argues that the prosecutor
violated his duty of fairness and impartiality and his quasi-judicial role by acting as a partisan and
by asserting that petitioner was untruthful. See State v. Moore, 186 W. Va. 23, 409 S.E.2d 490
(1990).




                                                  6
        As a threshold matter, we observe that petitioner made but one objection with regard to the
mendacity of a witness (Mr. Hajnos) and then failed to make a continuing objection to this line of
questioning. Nonetheless, petitioner argues that he adequately preserved the point for appellate
review. See State v. Kanney, 169 W. Va. 764, 766, 289 S.E.2d 485, 487 (1982). Regardless, we do
not find the questioning to be beyond the boundaries of allowable cross-examination. This Court
has held that

                [i]t is not improper on cross-examination to direct a witness to specific
        previous testimony of another witness and ask the witness whether he agrees or
        disagrees with such testimony. It is objectionable on cross-examination to require
        a witness to state whether another witness’ testimony is true or false, since this is
        the ultimate question that a jury must decide. However, the failure to sustain an
        objection to such improper question will not necessarily result in error, unless the
        technique has been used so pervasively and abusively in the cross-examination as
        to substantially distort the witness’ testimony on critical trial issues.

Syl. Pt. 3, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979). Further, when cross-examination
“point[s] to specific inconsistencies, rather than general credibility and where the examination did
not substantially distort the witness’ testimony, the use of comparative testimony techniques while
undesirable, would not constitute reversible error.” State v. Kinney, 169 W. Va. 217, 222, 286
S.E.2d 398, 401 (1982). Here, the State properly pointed out certain inconsistencies in petitioner’s
testimony as compared to the testimonies of Mr. Hajnos and the arresting officer. Accordingly, we
do not find that the State pervasively and abusively cross-examined petitioner such that the
questioning substantially distorted his testimony on critical trial issues.

         Petitioner also argues that the State unfairly remarked during its closing argument that, “to
believe [petitioner] you’d have to believe that almost everybody else . . . lied” and that “[t]he
defendant’s lying. . . . it’s a BS story. . . . He is lying.” Further, petitioner argues, the State
referenced his nickname, “Dollar,” stating, “His lawyer claimed at the beginning he was an
innocent kid. I don’t think Dollar is an innocent kid.” The record reveals that petitioner failed to
object to these remarks when made. We have instructed that “‘[i]f either the prosecutor or
defense counsel believes the other has made improper remarks to the jury,
a timely objection should be made coupled with a request to the court to instruct the jury to
disregard the remarks.’ Syllabus Point 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824
(1987).” Syl. Pt. 10, State v. Davis, 205 W. Va. 569, 519 S.E.2d 852 (1999). Further, “‘[f]ailure to
make timely and proper objection to remarks of counsel made in the presence of the jury, during
the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial
court or in the appellate court.’ Syl. Pt. 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410
(1945).” Syl. Pt. 2, State ex rel. Games-Neely v. Yoder, 237 W. Va. 301, 787 S.E.2d 572 (2016).
Because petitioner failed to timely object to the prosecutorial remarks about which he now
complains, this assignment of error is considered waived.




                                                    7
        In his final assignment of error, petitioner argues that the circuit court erred in giving an
Allen charge3 to the jury after it advised the court that it was deadlocked on the attempted murder
charge. During deliberations, a juror fell ill with a panic attack and was transported to the hospital
during a lunch break. Within hours, she returned and deliberations resumed. Later the next day,
the jury advised the circuit court that it was deadlocked at 11-1 on the attempted murder charge.
The court, with the agreement of the parties, responded to the jury that the verdict must be
unanimous. After the jury requested additional instruction, the circuit court—again, with the
agreement of the parties—gave the following Allen charge:

               You have informed this Court of your inability to reach a verdict as to count
       one. At the outset[,] the Court wishes you to know that although you have a duty to
       reach a verdict, if that is not possible the Court has neither the power nor the desire
       to compel agreement upon the verdict.

              The purpose of these remarks is to point out to you the importance and the
       desirability of reaching a verdict in this case, provided however that you as
       individual jurors can do so without surrendering or sacrificing your conscientious
       scruples or personal convictions.

               You will recall that upon assuming your duties in this case each of you took
       an oath. The oath places upon each of you as individuals the responsibility of
       arriving at a true verdict upon the basis of your opinion and not merely upon
       acquiescence in the conclusions of your fellow jurors.

               However, it by no means follows that opinions may not be changed by
       conference in the jury room. The very object of the jury system is to reach a verdict
       by a comparison of views and by consideration of the proofs with your fellow
       jurors.

               During your deliberations, you should be open minded and consider the
       issues with proper deference to and respect for the opinions of each other, and you
       should not hesitate to reexamine your own views in the light of such discussions.
       You should consider also that this case must at some time be terminated, that you
       are selected in the same manner and from the same source from which any future
       jury must be selected, that there is no reason to suppose that the case will ever be
       submitted to 12 persons more intelligent, more impartial or competent to decide it,
       or that more or clearer evidence will ever be produced on one side or the other.


       3
          “‘The Allen charge, often called the “dynamite charge,” is a supplemental instruction
given to encourage deadlocked juries to reach agreement.’ Franklin D. Cleckley, Handbook on
West Virginia Criminal Procedure, Vol. II, page 257 (2nd Ed.1993).” State v. Waldron, 218 W.
Va. 450, 459 n.11, 624 S.E.2d 887, 896 n.11 (2005), writ denied sub nom. Waldron v.
Scott (2006), aff’d sub nom. State ex rel. Waldron v. Scott, 222 W. Va. 122, 663 S.E.2d 576 (2008).
It originated from the case of Allen v. United States, 164 U.S. 492 (1896). See Waldron, 218 W.
Va. at 459 n.11, 624 S.E.2d at 896 n.11.


                                                  8
               You may retire now taking as much time as is necessary for further
       deliberations upon the issue submitted to you for determination. Thank you.

       On appeal, petitioner concedes that he did not object to the giving of the Allen charge. This
Court has cautioned that

       “[n]o party may assign as error the giving or the refusal to give an instruction or
       the giving of any portion of the charge unless that party objects thereto . . . but the
       court or any appellate court may, in the interest of justice, notice plain error in
       the giving or refusal to give an instruction[.]” West Virginia Rules of Criminal
       Procedure, Rule 30. Further, where a party does not object to the giving of
       an Allen charge, he must show plain error in order to obtain a reversal of the
       conviction. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.1992); State
       v. Clark, 175 W.Va. 58, 331 S.E.2d 496 (1985).

Waldron, 218 W. Va. at 459-60, 624 S.E.2d at 896-97. Petitioner argues that the giving of the
Allen charge was plain error because it was improperly directed at the “hold-out juror,” which, he
contends, one can rationally infer was the juror who became ill. He argues that the Allen charge
was intended to coerce the dissenting juror into abandoning her individually held view, acting
against her conscience, and convicting petitioner on the charge of attempted murder “‘not on the
basis of evidence and the law, but on the basis of majority opinion.’” Smalls v. Batista, 6 F.Supp.2d
211, 220-21 (S.D.N.Y. 1998) (quoting United States v. Beattie, 613 F.2d 762, 764 (9th Cir. 1980)).
See also United States v. Robinson, 560 F.2d 507 (2d Cir. 1997); U.S. v. Ajiboye, 961 F.2d 892 (9th
Cir. 1992). We find no error.

        First, petitioner fails to offer any factual support for his theory that the ill juror was also
the “hold-out” juror on the attempted murder charge. Thus, this claim is purely speculative.
Further, it is clear that the Allen charge at issue was in no way directed at the sole dissenter and,
thus, coercive. Rather, the circuit court’s instruction was not directed at either the minority or the
majority, but, instead, encouraged the jury as a whole to reach a verdict. The court urged the jurors
to compare their views, to be open-minded, and to consider and respect the opinions of each other.
As in State v. Hobbs, 168 W.Va. 13, 37, 282 S.E.2d 258, 272 (1981), the “trial court’s instructions
in the instant case constituted a fair and reasonable effort to stimulate continued deliberation.” In
syllabus point 2 of State v. Johnson, 168 W.Va. 45, 282 S.E.2d 609 (1981), we held:

       Where a jury has reported that it is unable to agree and the trial court addresses the
       jury urging a verdict, but does not use language the effect of which would be to
       cause the minority to yield its views for the purpose of reaching a verdict, the trial
       court’s remarks will not constitute reversible error.




                                                  9
Because the circuit court did not use language encouraging the minority to yield its views for the
purpose of reaching a verdict, we find no error in the circuit court’s decision to give the Allen
charge in this case.4

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: March 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




       4
          Petitioner mentions, in passing, that the circuit court failed to ask the ill juror whether,
during her absence, she spoke with anyone about the case or saw media reports about it. Petitioner
does not point to anywhere in the record where he requested this type of voir dire, nor did he raise
the issue as an assignment of error in this appeal.
                                                 10
