State of West Virginia v. Timothy Ray Sutherland

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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