State v. Sutherland

• Decision Date: 05 June 2013
• Docket Number: No. 11–0799.,11–0799.
• Citation: 745 S.E.2d 448,231 W.Va. 410
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Timothy Ray SUTHERLAND, Defendant Below, Petitioner.

231 W.Va. 410

745 S.E.2d 448

STATE of West Virginia, Plaintiff Below, Respondent

v.Timothy Ray SUTHERLAND, Defendant Below, Petitioner.

No. 11–0799.

Supreme Court of Appeals of West Virginia.

Submitted April 9, 2013.

Decided June 5, 2013.

Syllabus by the Court

1. “Actual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.” Syllabus point 5, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

2. “When a prospective juror makes a clear statement of bias during voir dire, the prospective juror is automatically disqualified and must be removed from the jury panel for cause. However, when a juror makes an inconclusive or vague statement that only indicates the possibility of bias or prejudice, the prospective juror must be questioned further by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an initial response by a prospective juror to a broad or general question during voir dire will not, in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a situation, further inquiry by the trial court is required. Nonetheless, the trial court should exercise caution that such further voir dire questions to a prospective juror should be couched in neutral language intended to elicit the prospective juror's true feelings, beliefs, and thoughts—and not in language that suggests a specific response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and where there is a probability of bias the prospective juror must be removed from the panel by the trial court for cause.” Syllabus point 8, State v. Newcomb, 223 W.Va. 843, 679 S.E.2d 675 (2009).

3. 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.

Jason D. Parmer, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner.

Patrick Morrissey, Attorney General, Laura Young, Assistant Attorney General, Charleston, WV, for Respondent.

DAVIS, Justice:

This is an appeal by Timothy Ray Sutherland (hereinafter “Mr. Sutherland”) from his conviction for first degree murder. Mr. Sutherland was sentenced by the Circuit Court of Kanawha County to life in prison without the possibility of parole. In this appeal, Mr. Sutherland argues that the circuit court committed error by failing to strike a prospective juror for cause. ¹ After a careful review of the parties' briefs, the record submitted on appeal, and listening to the arguments of the parties, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

In 2009, Mr. Sutherland was living temporarily at the home of his cousin, Stacie Smith, in St. Albans, West Virginia. In the early morning hours of December 28, 2009, Mr. Sutherland got into an argument with Ms. Smith in her bedroom. The argument involved a comment made by Mr. Sutherland that Ms. Smith's boyfriend did not treat her properly. During the argument, Ms. Smith called Mr. Sutherland a “junkie”. Mr. Sutherland became outraged at being called a drug addict and left the bedroom. He then went into the kitchen and smoked a cigarette. Within a few minutes, he returned to the bedroom carrying a butcher knife. Mr. Sutherland fatally stabbed Ms. Smith on the right side of her neck as she laid on the bed.² Before fleeing the scene of the murder, Mr. Sutherland took Ms. Smith's cell phone, credit card, money, and car keys. He also wrote the words “Cheating Whore” on a living room wall in the house.³

The police arrested Mr. Sutherland in an abandoned trailer on December 30, 2009. The police initially arrested Mr. Sutherland on an outstanding warrant for failing to register as a sex offender.⁴ Subsequent to his arrest, Mr. Sutherland confessed to killing Ms. Smith. In April 2010, a grand jury indicted Mr. Sutherland on charges of first degree murder and first degree robbery. After a three-day trial in March 2011, a jury returned a verdict convicting Mr. Sutherland of first degree murder, without a recommendation of mercy; the jury acquitted Mr. Sutherland of first degree robbery.⁵

II.STANDARD OF REVIEW

We are asked to review the trial court's decision not to strike a potential juror for cause. We have articulated the standard of review of this issue as follows:

In 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). See Syl. pt. 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987). In Syllabus point 4 of Miller, the Court further held:

The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.

197 W.Va. 588, 476 S.E.2d 535. With these standards in mind, we turn to the issue presented as an assignment of error.

III.DISCUSSION

This case presents two issues for resolution. First, we must determine whether the trial court should have granted Mr. Sutherland's motion to strike a prospective juror for cause. Second, we take this opportunity to revisit our decision in State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), which permits a new trial whenever a criminal defendant uses a peremptory strike to remove a prospective juror that should have been struck for cause. We examine each issue separately.

A. Failing to Strike a Prospective Juror for Cause

Mr. Sutherland contends that a prospective juror was biased and that the trial court should have granted his motion to strike the juror for cause. This Court has held:

The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.

Syl. pt. 4, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). We also have recognized that “[a]ctual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.” Syl. pt. 5, Miller, id.

In this proceeding, Mr. Sutherland argues that the trial judge should have struck a prospective juror for cause based upon the following voir dire exchange:

[Defense Counsel:] Okay. Thank you. Part of the evidence that all of you—some of you will see in this case is a video of Mr. Sutherland confessing that he took Stacie Smith's life. So, as jurors, you won't really be deciding whether Mr. Sutherland is guilty or innocent. Instead, what you'll be deciding on is exactly what crime Mr. Sutherland is guilty of.... If you find him guilty of first degree murder, you also have to decide whether or not to grant Mr. Sutherland mercy.

Granting Mr. Sutherland mercy means that 15 years from now the Parole Board will take a look at his case; they'll hear from the victim's friends and relatives, people who were impacted by this crime; and then the Parole Board will decide whether or not Mr. Sutherland ever gets to leave prison, and if he leaves prison, he'll be on supervised parole.

Granting mercy is not a guarantee that he'll ever leave prison provided that you find him guilty of first degree murder, but mercy does mean that that option is available to him.

....

[Defense Counsel:] Thank you, judge. After telling you-all that, my first question for you is: Does anyone think if you intentionally murder someone, you should never leave prison?

(WHEREUPON, Potential Juror Number 178, Mr. Kevin Wong raised his hand.)

[Defense Counsel:] Mr. Wong. Is there anyone else that thinks if you intentionally murder someone, you should never leave prison?

(WHEREUPON, there was no response by the potential jurors.)

[Defense Counsel:] Mr. Wong, so, if you found Mr. Sutherland guilty of first degree murder, you 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.

....

[Defense Counsel:] Is there anyone here who agrees with the saying, “An eye for an eye and a tooth for a tooth?”

(WHEREUPON, Potential Juror Number 178, Mr. Kevin Wong raised his hand.)

[Defense Counsel:] Mr. Wong. Is there anyone here who's heard of the saying, “An eye for an eye only makes the whole world blind?”

(WHEREUPON, there was no response by the potential jurors.)

Mr. Sutherland contends that the above exchange required the trial court to strike Mr. Wong from the jury panel. In support of this contention, Mr. Sutherland relies primarily upon the decision in State v. Greer, 22 W.Va. 800 (1883).

The defendant in Greer was charged...