State of West Virginia v. Shane Eric Hagerman ( 2023 )

No. 22-0219 – State v. Hagerman FILED
November 9, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
BUNN, Justice, concurring, joined by Justice Armstead:
I agree with the majority’s determination that, under the specific facts of this
case, the circuit court did not violate Mr. Hagerman’s right to a randomly selected jury
representing a fair cross-section of the community by excluding certain individuals from
the jury panel based on the geographic location of their residences. Here, Mr. Hagerman
received a fair trial with a randomly selected and impartial jury. Consequently, I agree with
the majority’s conclusion to affirm the conviction.
While Mr. Hagerman received a fair trial, I write separately to express my
concern in other circumstances—where a circuit court judge removes certain jurors from a
jury panel sua sponte and without notice to the parties—which could easily run afoul of
the protections in the United States Constitution, the West Virginia Constitution, and the
West Virginia Code. As correctly stated in the majority opinion, both the Sixth Amendment
of the United States Constitution and article III, section 14 of the West Virginia
Constitution provide for a right to a jury trial in all criminal proceedings. 1 Furthermore,
West Virginia Code § 52-1-1 provides that,
1
See Syl. pt. 4, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994) (“‘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
[i]t is the policy of this state that all persons selected
for jury service be selected at random from a fair cross section
of the population of the area served by the court, and that all
citizens have the opportunity in accordance with this article to
be considered for jury service and an obligation to serve as
jurors when summoned for that purpose.
I do not disagree with the majority’s conclusion that “circuit court judges are
afforded a certain amount of discretion in the jury selection process.” State v. Hagerman,
No. 22-0219, slip op. at 11 (W. Va. Nov. 9, 2023) (citing State ex rel. Stanley v. Sine, 215
W. Va. 100, 107, 594 S.E.2d 314, 321 (2004). Nor do I disagree that “‘a trial court is
entitled to rely upon its self-evaluation of allegedly biased jurors in determining actual
juror bias.’” Hagerman, No. 22-0219, slip op. at 11 (quoting State v. Miller, 197 W. Va.
588, 605, 476 S.E.2d 535, 552 (1996)). However, the Legislature, in establishing that jurors
must “be selected at random from a fair cross section of the population,” requires circuit
courts to follow a detailed process for the selection of petit jury members. W. Va. Code
§ 52-1-1. The Legislature has also created a process for all parties—including criminal
defendants—to timely object to that process. See W. Va. Code § 52-1-15.
West Virginia Code §§ 52-1-6 to -9 sets forth a process for the random
selection of petit jury panel members from which a trial jury is ultimately selected. 2
dire of the jury panel is necessary to effectuate that fundamental right.’ Syllabus Point 4,
State v. Peacher, 167 W. Va. 540, 280 S.E.2d 559 (1981).”).
2
See W. Va. Code § 52-1-6 (providing for a jury wheel or jury box and the
random selection of names from a master list to be included in the jury wheel or jury box).
See also W. Va. Code § 52-1-7(a) (“The chief judge of the circuit, or the judge in a single
2
Certainly, West Virginia Code § 52-1-8(a) requires the circuit court to “determine whether
any prospective juror is disqualified for jury service on the basis of information provided
on the juror qualification form or interview with the prospective juror or other competent
evidence.” 3 However, under no circumstances may “[a] citizen [] be excluded from jury
service on account of race, color, religion, sex, national origin, economic status or being a
qualified individual with a disability.” W. Va. Code § 52-1-2.
A party may challenge “compliance with [jury] selection procedures” by
following a process established by the Legislature. See W. Va. Code § 52-1-15 (entitled
“Challenging compliance with selection procedures”). Specifically,
[w]ithin seven days after the moving party discovers, or
by the exercise of due diligence could have discovered, the
grounds [to challenge jury selection procedures], and in any
event before the petit jury is sworn to try the case, a party may
move to stay the proceedings, quash the indictment or move
for other relief as may be appropriate under the circumstances
or the nature of the case.
judge circuit, shall provide by order rules relating to the random drawing by the clerk of
panels from the jury wheel or jury box for juries in the circuit and magistrate courts. The
rules may allow for the drawing of panels at any time. Upon receipt of the direction and in
the manner prescribed by the court, the clerk shall publicly draw at random from the jury
wheel or jury box the number of jurors specified.”); W. Va. Code § 52-1-7a (provides for
an “[a]lternate procedure for selection of jury” by electronic methods or a combination of
manual and electronic methods); W. Va. Code § 52-1-9(a) (“The jurors drawn for jury
service shall be assigned at random by the clerk to each jury panel in a manner prescribed
by the court.”).
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West Virginia Code § 52-1-8(b) establishes certain circumstances when a
prospective juror is disqualified to serve on a jury.
3
W. Va. Code § 52-1-15(a). In its motion to stay, quash, or request other relief, the party
must explain “the facts which support the party’s contention that there has been a
substantial failure to comply with [W. Va. Code §§ 52-1-1 to -26] in selecting the jury.”
Id. In the absence of fraud, this procedure is the “exclusive means” for a party to “challenge
a jury on the ground that the jury was not selected in conformity with [W. Va. Code
§§ 52-1-1 to -26].” Id. at § 52-1-15(c).
Consequently, these statutes regarding the selection of jurors and the
procedures to challenge that selection process illustrate that while the circuit court retains
some discretion regarding the disqualification of potential jurors, the circuit court must
inform the parties of any disqualifications so that a party may timely challenge the jury
selection process. If a circuit court fails to follow Legislative directives and requests that
specific potential jurors be removed from the jury wheel or box, and the parties are not
made aware of those requests in open court or by other notice prior to trial, the parties lack
the necessary information to properly challenge jury selection pursuant to § 52-1-15. A
circuit court obscuring the selection process makes it impossible for a party to know
whether a violation of the statutory selection process occurred.
Corresponding with a defendant’s Sixth Amendment right to an “impartial
jury,” jury selection must not occur in secret, hidden from the parties. One cannot
determine whether the defendant’s right to an impartial jury has been violated if the
defendant is unaware of the circumstances surrounding the jury panel’s selection. Of
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particular concern is a scenario in a criminal case, however unlikely, where a circuit court
improperly—and secretly—asks a circuit clerk to remove individuals from the jury wheel
or box who meet certain criteria, such as those of a particular “race, color, religion, sex,
national origin, economic status or being a qualified individual with a disability.” While
that scenario did not happen in the case here, circuit courts must protect the integrity of the
jury selection process by following the West Virginia Code’s requirements. This process
ensures juries consist of a random, fair cross-section of the population, in turn protecting a
criminal defendant’s constitutional rights. For these reasons, I respectfully concur with the
majority’s opinion in this case. I am authorized to state that Justice Armstead joins in this
concurrence.
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