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Benjamin opinion agrees with court's decision, but not reasoning behind it

CHARLESTON, W.Va. -- State Supreme Court Justice Brent Benjamin wrote in a separate opinion last week that although he agrees with his colleague's decision affirming Timothy Ray Sutherland's first-degree murder conviction, their reasoning is flawed.

Benjamin states the court overstepped by changing a law that automatically grants a defendant a new trial when a defendant has to use a prealotted strike on a juror who should have been removed for cause.

In 2011, a Kanawha County jury convicted Sutherland, 32, of Nitro on charges of first-degree murder without a recommendation of mercy.

Sutherland used a kitchen knife to stab his cousin, Stacie Smith, 32, in the neck as she lay in bed on her back. Her then 3-year-old son was in the house at the time. He wrote, "cheating whore" on the wall to cast suspicion on Stacie Smith's boyfriend.

Sutherland appealed the conviction stating he should be granted a new trial, because one of his allotted strikes had to be used on a juror who should have been struck by the court for cause.

Potential juror Kevin Wong raised his hand when Sutherland's attorney asked, "Does anyone think if you intentionally murder someone, you should never leave prison?"

The defense followed up, "Mr. Wong, so, if you found Mr. Sutherland guilty of first-degree murder, you could not recommend mercy?"

Wong replied, "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."

Wong also was the only juror to raise their hand to agree with the saying, "An eye for an eye and a tooth for a tooth."

In a criminal trial, each side is given a number of strikes during jury selection. Sutherland claims that one prospective juror should've been struck by the court for cause at his request, based on what he believed were biased statements. Kanawha Circuit Judge Jim Stucky didn't agree, and Sutherland's attorney had to use one of his strikes to remove the juror.

Last month, the high court issued an opinion finding Stucky was right not to strike the juror for cause. The court also reversed a 1995 decision, which automatically granted a defendant a new trial when he was required to use a strike to remove a juror who should have been struck by the court for cause.

Benjamin wrote that he believed the juror should have been struck based on his statements.

Benjamin's opinion states that while he doesn't believe Sutherland should be granted a new trial and that the 1995 decision needs updated, justices were wrong to change the law under the circumstances because the law has no effect on Sutherland's case.

When justices found the juror shouldn't have been struck for cause, that should have ended the discussion, according to Benjamin.

In their decision, justices wrote the 1995 decision was an "extreme remedy," and ruled defendants now must show prejudice to be granted a new trial.

Benjamin believes, however, that would be hard to do.

"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," he wrote.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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