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."