State of West Virginia v. Michael Lane Pinkerman
CourtWest Virginia Supreme Court
Date FiledOctober 29, 2026
Docket24-234
StatusPublished
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Full Opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
Fall 2026 Term
FILED
_____________________ October 29, 2026
released at 3:00 p.m.
No. 24-234 C. CASEY FORBES, CLERK
_____________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
v.
MICHAEL LANE PINKERMAN,
Defendant Below, Petitioner.
___________________________________________________________
Appeal from the Circuit Court of Cabell County
The Honorable Gregory Howard, Judge
Case No. 20-F-226
AFFIRMED
_________________________________________________________
Submitted: September 10, 2026
Filed: October 29, 2026
Thomas Peyton, Esq. John B. McCuskey, Esq.
Peyton Law Firm, PLLC Attorney General
Nitro, West Virginia Holly M. Mestemacher, Esq.
Counsel for Petitioner Assistant Attorney General
Office of the Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE FLANIGAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “To successfully challenge the validity of a search warrant on the basis
of false information in the warrant affidavit, the defendant must establish by a
preponderance of the evidence that the affiant, either knowingly and intentionally or with
reckless disregard for the truth, included a false statement therein. The same analysis
applies to omissions of fact. The defendant must show that the facts were intentionally
omitted or were omitted in reckless disregard of whether their omission made the affidavit
misleading.” Syl. Pt. 1, State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995).
2. “‘Failure to observe a constitutional right constitutes reversible error
unless it can be shown that the error was harmless beyond a reasonable doubt.’ Syl. pt. 5,
State v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).” Syl. Pt. 14, State v. Salmons, 203
W. Va. 561, 509 S.E.2d 842 (1998).
3. “Except for willful, intentional fraud the law of this State does not
permit the court to go behind an indictment to inquire into the evidence considered by the
grand jury, either to determine its legality or its sufficiency.” Syl., Barker v. Fox, 160 W.
Va. 749, 238 S.E.2d 235 (1977).
4. “Once the defendant establishes a prima facie case of willful,
intentional fraud in obtaining an indictment he is entitled to a hearing with compulsory
i
process.” Syl. Pt. 3, State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 844
(1989).
5. “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.” Syl. Pt. 5,
State v. Benny W., 242 W. Va. 618, 837 S.E.2d 679 (2019).
6. “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.” Syl.
Pt. 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013).
ii
FLANIGAN, Justice:
The petitioner, Michael Lane Pinkerman. Sr., appeals the March 18, 2024,
sentencing order of the Circuit Court of Cabell County following his conviction of
misdemeanor obstructing an officer. The petitioner contends the circuit court erred in (1)
denying his motion to suppress evidence based upon a warrantless search and/or a faulty
search warrant, (2) denying his motion to dismiss the indictment for false or misleading
testimony to the grand jury, and (3) refusing to strike two potential jurors for cause. For
the reasons set forth below, we find that the circuit court committed no reversible error.
Consequently, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On October 28, 2019, the petitioner’s twenty-six-year-old son, Michael
Pinkerman, Jr. (“Junior”), was terminated from his position at the Ona Volunteer Fire
Department. On October 29, 2019, the fire department reported that shots had been fired
at and struck the fire station at some point overnight into the early morning hours. Cabell
County Sheriff's Department (“CCSD”) investigating officers determined that
approximately thirteen shots had been fired into three bay doors of the fire station
damaging the doors and firetrucks inside. A 9mm shell casing was found on scene.
Junior’s name was given as a possible suspect due to his recent termination and concerning
statements made to fire department personnel upon his termination.
1
On October 30, 2019, four CCSD officers visited the petitioner’s property to
speak with his son Junior, who resided at the property with his parents. After the officers
knocked several times at different doors and windows, Junior exited the home holding a
9mm pistol and assumed a “tactical stance.” Officers ordered Junior to place the firearm
down, but instead he attempted to hand it to a deputy. They then ordered Junior to place
the firearm on a nearby woodpile. Junior removed the magazine, rolled the slide, and
ejected a bullet from the chamber, catching it in his hand. He also engaged the safety before
placing the gun on the woodpile. Sgt. McQuaid1 of the CCSD escorted Junior away from
the firearm to speak with him about the incident at the fire station. Meanwhile, Lt. Steve
Vincent picked up the firearm and confirmed it was rendered safe. Thereafter, Cpl. Jared
Cremeans photographed one side of the firearm, picked the firearm up, placed it on the
opposite side, and photographed it again.
When Sgt. McQuaid began questioning Junior about the fire station incident,
he indicated that he no longer wished to speak with the officers and ordered them off the
property. Officers again moved the firearm further away from Junior and asked him not to
pick up or reassemble the firearm until they had left the driveway. However, by the time
officers reached their vehicles, Junior had already inserted the clip and chambered a round.
1
Sgt. McQuaid’s first name does not appear in the record.
2
After the officers left the petitioner’s property, Deputy Preston Stephens
phoned 911 dispatch to run what he thought was the serial number of the 9mm Beretta
through the National Crime Information Center (“NCIC”) database. However, Deputy
Stephens did not realize that he provided dispatch the model number of the 9mm Beretta,
not the serial number. Dispatch indicated that the “serial number” given returned to a 9mm
Beretta that was reported stolen out of the State of Arizona.2 The make and caliber matched
the firearm photographed at the petitioner’s residence. A second firearm of a different
make and caliber also appeared on the NCIC report. Dispatch asked the officers if they
had the model number or any other identifying information and the officers responded that
they did not.3 Based upon dispatch’s report of the 9mm Beretta being stolen, Cpl.
Cremeans applied for and was granted a search warrant for the petitioner’s property to
retrieve the 9mm Beretta and an arrest warrant for Junior for transferring or receiving stolen
property.
CCSD officers, along with their tactical “S.W.A.T.” team, arrived at the
petitioner’s property at approximately 6:00 p.m. on October 30, 2019, to execute the
warrants. Officers announced their presence and purpose at the door of the residence, but
2
It appears from all the information provided that law enforcement in the State of
Arizona made the same mistake in reporting the model number of the firearm and not the
correct serial number.
3
Deputy Stephens began to ask dispatch to call and verify the status as stolen but
backtracked as CCSD policy was not to verify the status until the 9mm Beretta was in the
officers’ possession.
3
the occupants did not open the door. Officers attempted to force open the door; however,
it was immediately pushed shut. Officers observed that the petitioner had shut and
barricaded himself against the door, blocking the officers from entering. A struggle ensued
over the door. Shortly thereafter, officers could see Junior emerge from a bedroom
brandishing a firearm and shots were exchanged.4 Ultimately, two law enforcement
officers were shot, the petitioner was grazed by a bullet, and Junior was shot multiple times.
The petitioner and officers suffered non-lethal injuries; however, Junior died from his
wounds.
A few weeks after the incident, officers learned that the 9mm Beretta firearm
alleged to be stolen was lawfully purchased and owned by the petitioner since 1999.
In October of 2020, the Cabell County grand jury indicted the petitioner on
two counts of attempted murder, two counts of malicious assault, two counts of wanton
endangerment, and one count of misdemeanor obstructing an officer. During the grand
jury proceedings, Trooper G. Losh of the West Virginia State Police as well as Deputy
Nate Rogers of the CCSD testified about what transpired when officers arrived at the
petitioner’s property to serve the warrants. During their testimony, they referred to the
9mm Beretta multiple times as being “stolen.” The officers never informed the grand jury
4
The firearm used by Junior in this exchange was not the 9mm Beretta that was the
subject of the search warrant.
4
that the 9mm Beretta was eventually determined to be lawfully purchased and owned by
the petitioner.
The circuit court heard testimony regarding the search warrant at a pretrial
hearing on February 21, 2023. The court determined that given the manner in which Junior
approached the officers, the handling of the 9mm Beretta was for officer safety. The court
also found that the 9mm Beretta was in plain view when the photographs were taken.
Further, the court found that law enforcement acted in good faith both in providing the
information to dispatch and applying for the warrants. In a subsequent order, the court
found that the petitioner had not made a prima facie showing of willful or intentional fraud
regarding the testimony officers presented to the grand jury, and it therefore denied a
hearing on the motion. The court noted that neither officer was directly asked if they knew
the 9mm Beretta was stolen. The court found that whether the officers knew at the time of
their testimony that the 9mm Beretta was not stolen was irrelevant to the charges contained
within the indictment, reasoning that the status of the 9mm Beretta (whether stolen or not)
was not an element of any offense charged in the indictment.
The petitioner’s trial commenced on January 23, 2024. During voir dire, two
prospective jurors disclosed they knew testifying officers. The first juror, juror number
104, was friends with the mother of Deputy Brady Hinchman and stated that Hinchman
“grew up with my son” and that “[o]ur sons went all through school together.” This juror
5
stated that she had known the officer since his childhood, having babysat him. However,
juror number 104 indicated that she had not discussed this matter with him or his mother.
Ultimately, she indicated this relationship would not impact her ability to be impartial. The
second juror, number 8, had a nephew who was in law enforcement in the area and had
family who lived near the residence in question. This juror thought her nephew might have
been called to the scene but was unsure. Juror number 8 indicated that she had heard about
the incident through news media but did not speak to any law enforcement about the case.
She ultimately stated that she could remain impartial. Juror number 8 stated that she also
knew Deputy Stephens from school, church, and the neighborhood, but again stated she
could remain impartial. The court denied both challenges for cause, and the petitioner
removed both jurors using peremptory strikes.
Evidence admitted at trial included law enforcement testimony regarding the
petitioner shutting the door to his home and barricading himself against the door thereby
blocking the officers from entering, after officers announced their presence and purpose at
the door of the residence.
Following trial, the jury acquitted the petitioner of malicious assault and
wanton endangerment, hung on the two attempted-murder counts, and convicted him of
6
misdemeanor obstructing an officer.5 The circuit court sentenced him to twelve months in
jail. The court entered its sentencing order on March 18, 2024, and the petitioner timely
appealed.
II. STANDARD OF REVIEW
The petitioner first contends the circuit court erred in denying his motion to
suppress.
When reviewing a ruling on a motion to suppress, an
appellate court should construe all facts in the light most
favorable to the State, as it was the prevailing party below.
Because of the highly fact-specific nature of a motion to
suppress, particular deference is given to the findings of the
circuit court because it had the opportunity to observe the
witnesses and to hear testimony on the issues. Therefore, the
circuit court's factual findings are reviewed for clear error.
Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). “On appeal, legal
conclusions made with regard to suppression determinations are reviewed de novo. Factual
determinations upon which these legal conclusions are based are reviewed under the clearly
erroneous standard. In addition, factual findings based, at least in part, on determinations
of witness credibility are accorded great deference.” Syl. Pt. 3, State v. Stuart, 192 W. Va.
428, 452 S.E.2d 886 (1994).
5
The State moved to dismiss the attempted murder counts with prejudice which the
circuit court granted.
7
Regarding the petitioner’s motion to dismiss, “[o]ur standard of review of a
motion to dismiss an indictment is generally de novo.” State v. Davis, 205 W. Va. 569,
578, 519 S.E.2d 852, 861 (1999).
Additionally, the petitioner alleges error in the denial of motions to strike
certain jurors for cause.
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.
Syl. Pt. 5 State v. Benny W., 242 W. Va. 618, 837 S.E.2d 679 (2019).
III. DISCUSSION
As noted above, the petitioner asserts three assignments of error. We
consider each alleged error in turn, below.
A. Motion to Suppress
The petitioner first argues that the circuit court erred in denying his motion
to suppress all evidence that flowed from officers handling and photographing the 9mm
Beretta. He contends that their conduct constituted an illegal search and seizure of his
8
property or in the alternative, the search warrant was obtained by false and misleading
testimony. The State responds that handling and photographing the 9mm Beretta was not
a search or seizure as it was in plain view. The State contends the statements in the warrant
applications were based on information the officers possessed at the time and that mere
errors do not constitute false or misleading statements.
As previously stated, this claim involves differing standards of review; we
review legal conclusions de novo and review factual determinations under the clearly
erroneous standard. Stuart, 192 W. Va. at 429, 452 S.E.2d at 887, Syl. Pt. 3. In addition,
we give great deference to factual findings based on determinations of witness credibility.
Id. “To successfully challenge the validity of a search warrant on the basis of false
information in the warrant affidavit, the defendant must establish by a preponderance of
the evidence that the affiant, either knowingly and intentionally or with reckless disregard
for the truth, included a false statement therein.” Syl. Pt. 1, in part, State v. Lilly, 194 W.
Va. 595, 461 S.E.2d 101 (1995); accord Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
“Mere negligence or innocent mistake is insufficient to void a warrant.” Lilly, 194 W. Va.
at 601, 461 S.E.2d at 107 (citing Franks, 438 U.S. at 171).
The petitioner does not contend that Cpl. Cremeans knowingly stated a
falsehood; he argues only that the officers acted recklessly. However, the record does not
support that characterization. The number relayed to dispatch—in fact the firearm’s model
9
number rather than its serial number—returned a matching make and caliber in the NCIC
database as a weapon reported stolen in Arizona, and the officer repeated and verified that
number with dispatch. The same confusion between the serial number and the model
number occurred with at least one other law enforcement agency. See supra n.2. When
the officer relayed a number that returned a database match for the same make and caliber
of firearm, and who verifies that number with dispatch, he at most made the kind of
negligent or innocent mistake that Franks and Lilly place beyond the reach of suppression.
Construing the facts in the light most favorable to the State, the officer reasonably relied
on the information relayed by dispatch, and the circuit court did not err in declining to void
the warrant. To the extent the circuit court also found that law enforcement acted in good
faith, that finding corroborates the absence of any reckless disregard for the truth. We need
not, and do not, decide whether the good-faith exception to the exclusionary rule
recognized in United States v. Leon, 468 U.S. 897 (1984), applies in these circumstances.
See Lilly, 194 W. Va. at 605 n.16, 461 S.E.2d at 111 n.16 (declining to address the good-
faith exception).
The petitioner argues that when Cpl. Cremeans picked the 9mm Beretta up
and turned it over to photograph its opposite side, he conducted a search under Arizona v.
Hicks, 480 U.S. 321 (1987), in which the Supreme Court held that moving an object to
expose a concealed surface is a search distinct from the lawful objective that first brought
the officer into contact with the object. However, in this case it is unnecessary for us to
10
decide whether the handling and photographing of the 9mm Beretta was a search or seizure.
The petitioner was not charged with or convicted of any offense relating to the 9mm Beretta
the officers photographed. Rather, he was indicted on charges stemming from the use of a
different firearm and his own overt actions.
Still, even assuming the manipulation of the 9mm Beretta was an unlawful
search, suppression of the resulting photograph would not alter the outcome in this case.
“Failure to observe a constitutional right constitutes reversible error unless it can be shown
that the error was harmless beyond a reasonable doubt. Syl. pt. 5, State v. Blair, 158 W.
Va. 647, 214 S.E.2d 330 (1975).” Syl. Pt. 14, State v. Salmons, 203 W. Va. 561, 509 S.E.2d
842 (1998). The burden of establishing that a constitutional error is harmless beyond a
reasonable doubt rests on the State as the beneficiary of the error. State v. Blevins, 231 W.
Va. 135, 158, 744 S.E.2d 245, 268 (2013)(citing Syl. Pt. 3 State v. Frazier, 229 W. Va. 724,
735 S.E.2d 727 (2012)); see Chapman v. California, 386 U.S. 18, 24 (1967). The inquiry
is whether the record contains any indication that the challenged evidence “could have
influenced the jury’s verdict.” Blevins, 231 W. Va. at 157, 744 S.E.2d at 267.
The petitioner was convicted of obstructing an officer under West Virginia
Code § 61-5-17. That offense requires “forcible or illegal conduct that interferes with a
police officer’s discharge of official duties.” State v. Carney, 222 W. Va. 152, 157, 663
S.E.2d 606, 611 (2008). It is established by the petitioner’s own conduct—refusing to open
11
the door and barricading it against officers executing facially valid warrants—not by any
physical evidence recovered from the 9mm Beretta. The challenged evidence revealed
nothing incriminating as to the obstruction charge and could not have contributed to that
verdict. On this record, any error in denying suppression was harmless beyond a
reasonable doubt.
B. Grand Jury
The petitioner next alleges the circuit court erred in denying his motion for a
hearing regarding “misrepresentations” officers made to the grand jury about the 9mm
Beretta being stolen when they were aware, at that time, that it was lawfully owned by the
petitioner. The State responds that no misrepresentations were made before the grand jury.
The testimony elicited reflected what officers knew at the time and therefore the petitioner
has failed to make a showing of willful, intentional fraud.
This Court has long held that, “[e]xcept for willful, intentional fraud the law
of this State does not permit the court to go behind an indictment to inquire into the
evidence considered by the grand jury, either to determine its legality or its sufficiency.”
Syl., Barker v. Fox, 160 W. Va. 749, 238 S.E.2d 235 (1977). The defendant must first make
a prima facie case of willful, intentional fraud before he is entitled to a hearing with
compulsory process. Id. at 753, 238 S.E.2d at 237; see also Syl. Pt. 3, State ex rel. Pinson
v. Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989). Testimony that is merely misleading
12
does not satisfy that threshold; in State ex rel. Pinson v. Maynard, testimony that was
misleading but did not emanate from the State and involved no prosecutorial misconduct
presented no prima facie showing of willful, intentional fraud. 181 W. Va. at 666, 383
S.E.2d at 848. The prima facie showing of willful or intentional fraud must precede the
court’s consideration of the impact of the false or misleading testimony. See State v. Back,
241 W. Va. 209, 820 S.E.2d 916 (2018).
Here, the petitioner argues that the State had a duty to disclose to the grand
jury the fact that the 9mm Beretta was later determined not to be stolen, but rather lawfully
owned by the petitioner. He argues that the State knew the 9mm Beretta was not stolen at
the time of the presentment to the grand jury and that its failure to elicit evidence of that
fact constituted fraud in obtaining the indictment. However, the status of the 9mm Beretta,
whether stolen or not, had no bearing upon the charges contained in the indictment
(attempted murder, malicious assault on a law enforcement officer, wanton endangerment,
and obstructing an officer) or upon the charge for which the petitioner was convicted
(obstructing an officer). The witnesses were asked about the 9mm Beretta in the context
of what was known on October 30, 2019; the information about the 9mm Beretta explained
why a warrant was obtained and why law enforcement returned to the property that
evening. Because the petitioner identified no willful, intentional fraud, he did not make
the threshold showing required to go behind the indictment, and the circuit court did not
err in denying a hearing on that basis.
13
The petitioner’s remaining argument invokes the alternative procedure of
Syllabus Point 5 of Pinson: where “perjured or misleading testimony presented to the grand
jury is discovered before trial and there is no evidence of prosecutorial misconduct, the
State may withdraw the indictment without prejudice, or request the court to hold an in
camera hearing to inspect the grand jury transcripts and determine if other sufficient
evidence exists to support the indictment.” Pinson, 181 W. Va. at 663, 383 S.E.2d at 845,
Syl. Pt. 5. The petitioner reads that syllabus point to require an in-camera hearing
whenever misleading testimony surfaces, without regard to the threshold showing of fraud.
However, this Court rejected that reading in Back, 241 W. Va. 209, 820 S.E.2d 916. In
Back, this Court explained that “Pinson did not eliminate the requirement for a prima facie
showing of willful, intentional fraud before a circuit court may go behind an indictment,”
and that “[w]ithout such a showing, the circuit court simply could not inquire into the
evidence presented to the grand jury.” Id. at 214, 820 S.E.2d at 921. Because the petitioner
made no prima facie showing of willful, intentional fraud, Syllabus Point 5 of Pinson was
never triggered, and the circuit court was not required to hold an in-camera hearing.
In any event, Barker v. Fox, 160 W. Va. at 752, 238 S.E.2d at 237 (1977),
confirms that no relief is warranted in this case. In Barker, we explained that where an
indictment rests on insufficient evidence and the State produces no other evidence at trial
than what was before the grand jury, “the prisoner will be vindicated as fully by an acquittal
14
as he would be by quashing the indictment.” Id. at 752, 238 S.E.2d at 237. That is what
occurred here. The petit jury—informed at trial that the 9mm Beretta was lawfully
owned—acquitted the petitioner of malicious assault and wanton endangerment and hung
on the attempted-murder counts, which the State then dismissed with prejudice. It
convicted only on the obstructing an officer charge, a charge resting on the petitioner’s own
conduct and wholly independent of the 9mm Beretta’s status. Therefore, any deficiency in
the grand jury’s information about the pistol’s status could not have prejudiced the one
charge on which the petitioner stands convicted.
C. Jurors
The final error the petitioner raises is that the circuit court erred by denying
his motions to strike for cause two potential jurors who either knew a State’s witness or
recalled media reports surrounding the events at issue. The State responds that each juror
indicated that their relationships and/or prior knowledge would not influence their
decision-making process. Additionally, the State argues that this claim fails because the
petitioner used peremptory strikes to remove these jurors and so no prejudice ensued.
“As a general matter we have held that a ‘trial court has broad discretion in
determining whether to strike jurors for cause, and we will reverse only where actual
prejudice is demonstrated.’” State v. Benny W., 242 W. Va. 618, 628, 837 S.E.2d 679, 689
(2019) (quoting State v. Miller, 197 W. Va. 588, 605, 476 S.E.2d 535, 552 (1996)). A
15
prospective juror’s “social relationship with an employee of a law enforcement agency
does not operate as a per se disqualification for cause ... unless the law enforcement official
is actively involved in the prosecution of the case.” State v. Mills, 221 W. Va. 283, 287,
654 S.E.2d 605, 609 (2007) (quoting Syl. Pt. 6, in part, State v. Beckett, 172 W. Va. 817,
310 S.E.2d 883 (1983)). Where such a relationship exists, a party may conduct individual
voir dire, but a juror’s acquaintance with a witness is not disqualifying unless the
relationship is sufficient to preclude the juror from rendering a fair verdict. Mills, 221 W.
Va. at 288, 654 S.E.2d at 610.
Here, both challenged jurors affirmed they could remain impartial, and the
petitioner developed no facts showing that either relationship would preclude a fair verdict.
However, even assuming the court should have granted either challenge for cause, the
petitioner would not be entitled to relief, because he removed both jurors by peremptory
strike and has shown no resulting prejudice. This Court has 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.
Syl. Pt. 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013). Further,
[t]o make a showing of prejudice a challenge must show
that the appellant was forced to accept a juror who should have
been excused for cause. That is, appellate courts will not find
16
reversible error based on the trial court’s refusal to remove that
juror for cause unless the resulting jury was not fair and
impartial.
State v. Rollins, 233 W. Va. 715, 729, 760 S.E.2d 529, 543 (2014).
The petitioner has not alleged that a juror who actually participated in the
trial and verdict should have been removed for cause. Rather, he urges this Court to
reconsider Sutherland and to hold that the forced use of a peremptory strike alone
constitutes prejudice. This Court has declined that invitation before and we decline it again.
See State v. White, No. 15-0344, 2016 WL 2977322, at *3 (W. Va. May 23, 2016)
(memorandum decision). Sutherland adopted the prejudice requirement deliberately,
reasoning that a defendant tried before an unbiased jury “has received exactly what the
constitution guarantees,” and it expressly overruled the automatic-reversal rule of Syllabus
Point 8 of State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995). Sutherland, 231 W. Va.
410, 745 S.E.2d 448. We adhere to Sutherland and its progeny. Because the petitioner has
not shown the prejudice those cases require, we find no error regarding the seating of the
jury.
IV. CONCLUSION
For the foregoing reasons, the Circuit Court of Cabell County’s March 18,
2024, sentencing order is hereby affirmed.
17
Affirmed.
18