IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2023 Term 

_______________ 

No. 21-0764 

_______________ 

STATE OF WEST VIRGINIA, 

Plaintiff Below, 

Respondent, 

v. 

AARON GLENN HOARD, 

Defendant Below,

Petitioner. 

____________________________________________________________ 

Appeal from the Circuit Court of Preston County 

The Honorable Steven L. Shaffer, Judge

Criminal Case Number: 20-F-92 

AFFIRMED 

____________________________________________________________ 

Submitted: February 8, 2023 

Filed: April 28, 2023 

William David Wilmoth, Esquire

Steptoe & Johnson PLLC 

Wheeling, West Virginia 

Christopher S. Etheredge, Esquire 

Steptoe & Johnson PLLC 

Charleston, West Virginia 

Counsel for Petitioner

Patrick Morrisey, Esquire

Attorney General 

Lara K. Bissett, Esquire 

Assistant Attorney General 

Charleston, West Virginia 

Counsel for Respondent 

JUSTICE ARMSTEAD delivered the Opinion of the Court. 

JUSTICE WOOTON concurs and reserves the right to file a concurring opinion. 

FILED

April 28, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE BUNN, deeming herself disqualified, did not participate in the decision of this 

case.

JUDGE PAUL T. FARRELL, sitting by temporary assignment.
i

SYLLABUS BY THE COURT

1. ““‘Although the ruling of a trial court in granting or denying a motion 

for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed 

on appeal when it is clear that the trial court has acted under some misapprehension of the 

law or the evidence.’ Syl. [P]t. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 

S.E.2d 218 (1976).” Syl. Pt. 1, Andrews v. Reynolds Mem‘l Hosp., Inc., 201 W. Va. 624, 

499 S.E.2d 846 (1997).” Syllabus Point 1, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 

(2000). 

2. “As a general rule, the refusal to give a requested jury instruction is 

reviewed for an abuse of discretion. By contrast, the question of whether a jury was 

properly instructed is a question of law, and the review is de novo.” Syllabus Point 1, State 

v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996). 

3. “Whether facts are sufficient to justify the delivery of a particular 

instruction is reviewed by this Court under an abuse of discretion standard. In criminal 

cases where a conviction results, the evidence and any reasonable inferences are considered 

in the light most favorable to the prosecution.” Syllabus Point 12, State v. Derr, 192 W. 

Va. 165, 451 S.E.2d 731 (1994).

4. “Whether a change of venue is warranted rests in the sound discretion 

of the trial court, and its ruling thereon will not be disturbed, unless it clearly appears that 

such discretion has been abused.” Syllabus Point 2, State v. Gangwer, 169 W. Va. 177, 

286 S.E.2d 389 (1982).
ii

5. “The remedial doctrines of knowing and intelligent waiver 

and harmless error are firmly established by statute, court rule and decisions as salutary 

aspects of the criminal law of this State.” Syllabus Point 4, State v. Blair, 158 W. Va. 647, 

214 S.E.2d 330 (1975). 

6. “Failure to observe a constitutional right constitutes reversible error 

unless it can be shown that the error was harmless beyond a reasonable doubt.” Syllabus

Point 5, State v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975). 

7. “The trial court must instruct the jury on all essential elements of the 

offenses charged, and the failure of the trial court to instruct the jury on the essential 

elements deprives the accused of his fundamental right to a fair trial, and constitutes 

reversible error.” Syllabus, State v. Miller, 184 W. Va. 367, 400 S.E.2d 611 (1990). 

8. “It is not error to refuse to give an instruction to the jury, though it 

states a correct and applicable principle of law, if the principle stated in the instruction 

refused is adequately covered by another instruction or other instructions given.” Syllabus

Point 3, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). 

9. ““‘To warrant a change of venue in a criminal case, there must be a 

showing of good cause therefor, the burden of which rests on the defendant, the only person 

who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist 

at the time application for a change of venue is made. Whether, on the showing made, a 

change of venue will be ordered, rests in the sound discretion of the trial court; and its 

ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid 

has been abused.’ [Syllabus] Point 2, Syllabus, State v. Wooldridge, 129 W. Va. 448, 40 
iii

S.E.2d 899 (1946).” Syllabus Point 1, State v. Sette, 161 W. Va. 384, 242 S.E.2d 464 

(1978).” Syllabus Point 1, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).

10. ““‘A present hostile sentiment against an accused, extending 

throughout the entire county in which he is brought to trial, is good cause for removing the 

case to another county.’ [Syllabus Point 2], State v. Dandy, 151 W.Va. 547, 153 S.E.2d 

507 (1967), quoting [Syllabus Point 1], State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927).” 

Syllabus Point 2, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978).” Syllabus Point 

2, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).

11. “One of the inquiries on a motion for a change of venue should not be 

whether the community remembered or heard the facts of the case, but whether the jurors 

had such fixed opinions that they could not judge impartially the guilt or innocence of the 

defendant.” Syllabus Point 3, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).

12. “Where the record of a criminal trial shows that the cumulative effect 

of numerous errors committed during the trial prevented the defendant from receiving a 

fair trial, his conviction should be set aside, even though any one of such errors standing 

alone would be harmless error.” Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 

S.E.2d 550 (1972). 
1

Armstead, Justice:

On November 3, 2019, Aaron Glenn Hoard (“Hoard”) fired multiple gun 

shots, four of which struck and killed Grant William Felton, Jr. (“Grant”). As a result, 

Hoard was convicted by a Preston County jury of second-degree murder and was sentenced

to a determinate term of 40 years. Following trial, the circuit court denied Hoard’s motion 

for a new trial or, in the alternative, motion for judgment of acquittal and he appeals the 

circuit court’s denial of that motion, raising four issues. First, he alleges that the State 

improperly referenced his right to pre-trial silence at two points during his trial. Second, 

he argues that the jury instructions were insufficient, unsupported, and incorrect. Third, he 

avers that he was denied a fair trial because of errors made regarding empanelment of the 

jury. Finally, Hoard asserts that because of cumulative errors during his trial, he was denied 

his right to a fair trial.

Having diligently reviewed the entire voluminous record on appeal, the briefs

and arguments of the parties, all other matters of record, and the applicable legal authority, 

we find that the circuit court did not err and affirm the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the early evening of November 2, 2019, Hoard, his girlfriend, Machaela 

Jefferies (“Jefferies”), and his friend, Nathan Lanham (“Lanham”), left Hoard’s home 

outside of Morgantown, West Virginia to meet at Brian Teets’ (“Teets”), and his girlfriend, 
2

Kristina Andrews’ (“Andrews”), home on the Brandonville Pike a few miles outside of 

Terra Alta, West Virginia.1

 The Hoard Group then went to Shorthorns Saloon 

(“Shorthorns”) in Terra Alta.

When the Hoard Group arrived at Shorthorns, it was full of patrons and the 

Hoard Group positioned itself in one of the few remaining spaces inside of Shorthorns – in 

front of the stage. As the evening progressed, Hoard became more and more rowdy and 

unwieldy, knocking into patrons on the dance floor and colliding with Sharon Roy, a patron 

seated on a bar stool, with such force that she fell to the floor. Not long after, Grant 

approached Hoard and asked him to calm down or leave. Shiloh Robertson (“Robertson”), 

Shorthorns’ bouncer, observed the Hoard Group and Hoard’s behavior and also saw Grant 

approach Hoard. Robertson noted that Hoard appeared angry after his conversation with 

Grant. Following Grant’s discussion with Hoard, Shorthorns’ owner Jason Peaslee

(“Peaslee”), signaled Robertson to remove Hoard from Shorthorns. 

By that time, it was the early morning hours of November 3, 2019. Robertson 

approached Hoard and told him he needed to leave. Robertson placed his hands under 

Hoard’s arms and started to physically escort him from Shorthorns. At about the same 

time someone struck Robertson in the back of the head. Robertson continued to escort the 

Hoard Group outside of Shorthorns and ten to twelve people followed along with the 

1 These five people, Hoard, Jefferies, Lanham, Teets, and Andrews will be 

referred to collectively as the “Hoard Group.”
3

remainder of the Hoard Group. Once outside, the Hoard Group began walking toward

Hoard’s truck, which was parked in a parking area adjacent to Shorthorns and the railroad 

tracks. After the Hoard Group left Shorthorns, the ten to twelve people continued to mingle 

outside Shorthorns’ entrance.

Once inside Hoard’s truck, the Hoard Group began recounting the events that 

had just transpired. At that time, Teets realized he was missing his hat and vest and 

Andrews determined that she did not have her phone, both having left those items inside 

Shorthorns. Andrews then asked Jefferies – who was driving the truck – to pull to the front 

of Shorthorns so they could retrieve these items. Thus, Jefferies parked Hoard’s truck in 

the road across the street from Shorthorns and Hoard and Teets exited the truck and walked 

toward Shorthorns and the people still outside.

Hoard and Teets were immediately met by the people gathered outside of 

Shorthorns and others who came from inside as word quickly spread that they had returned 

and were trying to get inside Shorthorns. As the crowd focused its attention on Teets, 

Hoard walked across the street, away from the people and away from Shorthorns. 

However, after a brief period of time, Hoard walked back across the street and attempted 

to enter Shorthorns. He was met by Grant and Peaslee. Grant again told Hoard he needed 

to leave. Hoard retorted that he would “take you all on” or “take you all out.” As a result 

of this statement, Grant grabbed Hoard by the shoulders and physically moved Hoard 
4

across the street toward his truck. Grant and Hoard were followed by D.J. Wilt (“Wilt”)

and Mike Felton (“Felton”), who were escorting Teets toward Hoard’s truck.

Hoard suddenly broke away from Grant who then followed Hoard to the 

passenger side of his truck. Hoard opened the passenger side door and Jefferies dove out 

of the truck on top of Grant. Grant was knocked to the ground. Hoard then reached into 

the passenger floorboard of his truck, where his briefcase was located. Inside his briefcase 

was a gun, which Hoard retrieved, climbed on the running board, and fired four shots into 

the air. Immediately after those four shots were fired, Grant, Wilt, and Felton attempted to 

disarm Hoard. Felton testified that he tried to push Hoard’s arm upward but Hoard lowered

the gun and fired four shots into Grant, mortally wounding him.

2

 Wilt then wrested the 

gun from Hoard, Jefferies climbed back into the driver’s seat of the truck, and Hoard and 

Jefferies fled the scene, with Jefferies driving the truck to Teets’ home. As they fled, they 

2 Dr. Elizabeth Rouse from the Office of the Chief Medical Examiner

testified that she observed four gunshot wounds to Grant. She was unable to determine the 

order the wounds were inflicted. 

The first observed wound, described as “incapacitating and lethal” stuck 

Grant in the back of his head, slightly to the left of center. This bullet travelled in a 

downward direction through Grant’s brain, exiting below the mandible on the right side of 

his neck. The second observed wound was to the front right side of Grant’s chest. This 

bullet also travelled downward and slightly left to right, exiting through his back. The third 

observed wound was a superficial wound to Grant’s upper right arm. The fourth and final 

observed wound was another superficial, grazing, wound to Grant’s head. The fourth 

wound was the only wound of the four where soot and stippling were present around the 

wound. Dr. Rouse opined that this meant the fourth observed wound came from a gunshot 

fired at “intermediate to close range.” The testimony is unclear as the precise location of 

the fourth wound.
5

left behind over half of the Hoard Group – Lanham, Teets, and Andrews, who had exited 

the truck. 

Lieutenant Rodeheaver (“Rodeheaver”) of the Preston County Sheriff’s 

Department arrived on scene and took over as lead investigator. He received information 

that Hoard was the shooter and issued a BOLO3 for him. He also sought assistance from 

the West Virginia State Police crime response team, who, led by Trooper Hall, assisted in 

gathering crime scene evidence. To ascertain the status of Grant, Rodeheaver left the scene 

and went to Preston Memorial Hospital in Kingwood where he was informed that Grant 

had succumbed to his wounds. Thereafter, Rodeheaver obtained an arrest warrant for 

Hoard, charging him with the first-degree murder of Grant.

Because Hoard lived outside of Preston County, contact was made with the 

Monongalia County Sheriff’s Department on November 3, 2019, to conduct surveillance 

of Hoard’s home and attempts were made to “ping” both Hoard and Jefferies’ phones to 

ascertain their location but both phones were turned off. Additionally, both Hoard and 

Jefferies discontinued their Facebook accounts. Eventually, on November 4, 2019, Hoard 

turned himself in to the Monongalia County Sheriff’s Department. At some point prior to 

his arrest, Hoard removed the distinctive truck topper from his truck.

3 BOLO is a law enforcement acronym for “Be On the Look Out.”
6

Hoard was indicted by a Preston County Grand Jury on one count of firstdegree murder on June 23, 2020, and the matter was set for trial. Prior to trial, Hoard

moved for a change of venue, or in the alternative, to conduct a telephone survey to 

determine the “climate” in Preston County surrounding the upcoming trial. The proffered 

purpose of the survey request was to conduct a random telephonic survey of 300 Preston 

County residents in hopes of gathering support for a motion for a change of venue. In 

support of this motion, Hoard attached a memorandum prepared by his consultant, Orion 

Strategies, that described the social media interactions regarding the murder that it had 

found during its research. The circuit court held the motion for change of venue in 

abeyance until after jury selection and denied the motion for the survey.

4

Jury selection began on Wednesday, May 5, 2021. For jury selection, the 

circuit court summonsed ninety-eight potential jurors. Of the jurors who appeared for jury 

selection, seventy indicated during preliminary questioning that they had heard about the 

case prior to appearing for service. Therefore, every juror was subjected to individual voir 

dire. At the conclusion of individual voir dire of each prospective juror, each party raised 

any request it had to strike that prospective juror for cause. Of the first thirty-six jurors 

pulled from the jury wheel, from whom the jury was ultimately selected, Hoard moved to 

strike prospective jurors 5, 6, 12, 14, and 32 for cause and the circuit court granted those

4 Hoard alleged he did not need court approval for the survey and the State 

did not object to one being performed.
7

motions. The State moved to strike prospective jurors 22 and 27 for cause and the circuit 

court also granted those motions. Additionally, the circuit court struck prospective jurors 

4, 11, 18, 25, 26, 28, 29, and 35 on its own. Although disputed by Hoard, the record reflects 

that no motions were made by either party to strike jurors 1, 21, 24, or 34 for cause.5

After jury selection was completed, the trial began on Friday, May 7, 2021. 

During its opening statement, the State said the following:

Lieutenant Rodeheaver did a considerable number of 

interviews along with other law enforcement officers with the 

sherrif’s department to determine what happened on November 

3rd of 2019, and the witnesses interviewed will be able to 

describe it to you in their own words. The one interview we 

didn’t get was with Aaron Hoard or his girlfriend.

This drew an immediate objection from Hoard’s counsel and a motion for a mistrial was 

made.6

 The circuit court denied the motion, reasoning that the State “did not say that 

5 Hoard’s brief represents that motions were made to strike each of these 

jurors for cause. Our intensive review of the record indicates no such motions were made.

6 The discussion on the record between Hoard’s counsel, Belinda Haynie, 

Assistant Prosecuting Attorney Megan Fields, and the circuit court was as follows:

Ms. Haynie: I’m going to move for a mistrial. She can’t talk 

about the fact that he didn’t interview Aaron Hoard.

Ms. Fields: Yes, I can.

Ms. Haynie: No, you can’t.

Ms. Fields: Yes, I can.

(continued . . .)
8

[Hoard] did not give a statement. She said [Lt. Rodeheaver] was unable to interview 

[Hoard].” 

Ms. Haynie: You cannot comment on the defendant’s—

Ms. Fields: Yes, I can. He wasn’t – he wasn’t interviewed.

THE COURT: Ms. Fields, calm down. Calm down. Okay. 

Go ahead, Ms. Haynie.

Ms. Haynie: Well, she cannot comment on the defendant’s 

right to stay – remain silent and she just did with the jury. I 

move for a mistrial.

THE COURT: No, she did not say that he did not give a 

statement. She said he was unable to interview Mr. Hoard.

Ms. Haynie: That’s a comment on his right to remain silent.

Ms. Fields: No, he has a right to remain silent at trial.

Ms. Haynie: No.

Ms. Fields: And to not testify.

Ms. Haynie: You cannot talk about his refusal to talk.

THE COURT: Well, I’m going to note – I’m going to note 

your objection. I’m going to overrule it right now.

Ms. Haynie: I’m moving for a mistrial.

THE COURT: Okay. You can do that.

Ms. Haynie: Okay.

THE COURT: All right.
9

On Friday, May 14, 2021, the sixth day of trial, Hoard elected to testify. This 

subjected him to cross-examination by the State. During that cross-examination, the 

following exchange occurred:

Q: So just so happened to be that the person that took you 

across the road that you say did a choke-out on your or choked 

you out –

A: Yes, ma’am.

Q: - was the only one that took these four bullets.

A: Yes, ma’am.

Q: And that was an accident?

A: It was a complete and total accident. I never murdered that 

man.

Q: You didn’t murder him?

A: I didn’t murder that man.

Q: But you never told police that, did you?

Hoard’s counsel contemporaneously objected, approached the bench, and 

again moved for a mistrial on the grounds that the question was impermissible as it 

referenced Hoard’s invocation of his Fifth Amendment privilege against selfincrimination, and “even if he testifies, it can’t be used against him.” The circuit court 

denied the motion stating that Hoard needed to state that he didn’t give any statement to 

police upon the advice of counsel. However, after the bench conference, Hoard did not 

answer the question and no party asked that Hoard be compelled to do so.
10

Immediately after the parties rested, late in the day on Friday afternoon, May 

14, 2021, the circuit court excused the jury for the day and began discussion of jury 

instructions. There were numerous jury instructions tendered by both parties. The State 

objected to several of Hoard’s proposed jury instructions and Hoard objected to the State’s 

proposed jury instruction on heat of passion, arguing this case did not involve heat of 

passion. Hoard tendered numerous instructions to the circuit court on the issue of self-
11

defense.7

 Ultimately, the circuit court gave a slightly modified version of Hoard’s 

proposed instruction 31.8

 

7 Hoard’s proposed self-defense instructions 22, 23, 24, and 25 are 

reproduced here. Proposed instruction 22 provided:

The Court instructs the jury that it is not essential to the 

right of self-defense that the danger should in fact exist. If, to 

the defendant, it reasonably appeared that the danger in fact 

existed, he had the right to defend against it to the same extent 

and under the same rules that would apply in case the danger 

had been real.

In passing upon the danger, if any, to which the accused 

was exposed, you will consider the circumstances as they 

reasonably appeared to him and draw such conclusions from 

these circumstances as he could reasonably have drawn, 

situated as he was at the time. In other words, the Court 

instructs you that the accused is entitled to be tried and judged 

by the facts as they reasonably appeared to him and not by any 

intention that may or may not have existed in the mind of the 

deceased.

Proposed instruction 23:

The Court instructs the jury that as to the imminency of 

the danger which threatened the defendant, and the necessity 

of action in the first instant, the defendant is the judge; and that 

the jury must pass upon the defendant’s action in the 

circumstances presented, viewing said action from the 

defendant’s standpoint at the time of his action; and if the jury 

believe from all the facts and circumstances in the case, viewed 

from the standpoint of the defendant at the time of the action, 

that the defendant had reasonable ground to believe, and did 

believe, the danger imminent, and that the action was necessary 

to preserve his own life, or to protect him from great bodily 

harm, he was excusable for using a deadly weapon in his 

defense and the jury should find the defendant not guilty.

(continued . . .)
12

Proposed instruction 24:

The Court instructs the jury that where a man is 

threatened with danger, the law authorizes him to determine 

from appearances and the actual state of things surrounding 

him as to the necessity of resorting to force, and if he acts from 

reasonable and honest conviction, he will not be held 

criminally responsible for a mistake as to the actual danger. 

Where other and more judicious men would have been 

mistaken: for when one man attempts to injure another, it gives 

the injured the right to make use of such means to prevent 

injury as his behavior and the situation necessitates.

Proposed instruction 25:

The Court instructs the jury that a person has a right to 

repel force by force in the defense of his person, his family or 

his habitation, and if in so doing he may use only so much force 

as the necessity, or apparent necessity, of the case requires, he 

is not guilty of any offense, though he kills or injures his 

assailant in so doing.

8 The only changes made by the circuit court to Hoard’s proposed instruction 

31 were grammatical. The version given by the Court stated:

Thus, one of the questions to be determined by you in 

this case is whether or not [Hoard] acted in self-defense as to 

justify his acts. A person can claim self-defense for the 

protection of [themselves] or others. Under the laws of this 

state, if the defendant was not the aggressor, and had 

reasonable grounds to believe and actually did believe that he 

was in immediate danger of death or serious bodily harm from 

which he could save himself only by using deadly force against 

his assailant, then he had the right to employ deadly force to 

defend himself. Deadly force is considered force which is 

likely to cause death or serious bodily harm.

In order for [Hoard] to have been justified in the use of 

deadly force in self-defense, he must not have provoked the 

(continued . . .)
13

Over the intervening weekend, Hoard’s counsel sent an email to the circuit 

court that raised that the instruction on malice was being given twice to the jury – once 

during the instruction for first-degree murder and once during the instruction for seconddegree murder. That email is not in the record and no specific objection was lodged on the 

record to the circuit court for reading the malice instruction twice. Once the entire body of 

instructions was compiled, Hoard only interjected a general objection to the circuit court 

not giving all of his offered instructions:

And, Your Honor, just so I’m making a record for 

appeal, I just want to say that I’m – any instruction or verdict 

form that I previously submitted that’s not given, I would 

preserve that objection, and I don’t know specifically what 

they are right now, but, I mean, I think generally the [c]ourt has 

given, you know, sort of the instructions – I mean, honestly, 

right now I can’t think of anything. I mean, I know that I gave 

some self-defense instructions that probably, like, came from, 

assault on him or been the aggressor. Mere words, without 

more, do not constitute provocation or aggression. 

The circumstances under which he acted must have 

been such as to produce in the mind of a reasonable prudent 

person, similarly situated, the reasonable belief that the other 

person was then about to kill him or to do him serious bodily 

harm. In addition, [Hoard] must have actually believed that he 

was in imminent danger of death or serious bodily harm and 

that deadly force must be used to repel it.

If evidence of self-defense is present, the State must 

prove beyond a reasonable doubt that [Hoard] did not act in 

self-defense. If you find that the State has failed to prove 

beyond a reasonable doubt that [Hoard] did not act in selfdefense, you must find [Hoard] not guilty. In other words, if 

you have a reasonable doubt as to whether or not [Hoard] acted 

in self-defense, your verdict must be not guilty.
14

like, the 1930s the way they were written. So I just want to 

preserve that for appeal in case. 

At the conclusion of the trial on Monday, May 17, 2021, Hoard was found

guilty of second-degree murder. By order entered August 23, 2021, the circuit court denied 

Hoard’s motion for judgment of acquittal and motion for new trial. Thereafter, Hoard was 

sentenced to a determinate term of forty years of incarceration. Hoard appeals from those 

orders. 

II. STANDARD OF REVIEW

This matter raises issues arising from rulings made at different points in a 

criminal trial and all of which were ruled upon in the circuit court’s denial of the motion 

for judgment of acquittal and for a new trial and Hoard’s sentencing. Motions for a new 

trial are governed by an abuse of discretion standard:

“‘Although the ruling of a trial court in granting or 

denying a motion for a new trial is entitled to great respect and 

weight, the trial court’s ruling will be reversed on appeal when 

it is clear that the trial court has acted under some 

misapprehension of the law or the evidence.’ Syl. [P]t. 4, 

Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 

218 (1976).” Syl. Pt. 1, Andrews v. Reynolds Mem ‘l Hosp., 

Inc., 201 W. Va. 624, 499 S.E.2d 846 (1997).

Syl. Pt. 1, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). 

Sentencing orders are reviewed “under a deferential abuse of discretion 

standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 2, in 
15

part, State v. Georgius, 225 W. Va. 716, 696 S.E.2d 18 (2010) (citation omitted). Similarly, 

a circuit court’s “decision to grant or deny a motion for mistrial is reviewed under an abuse 

of discretion standard.” State v. Lowery, 222 W. Va. 284, 288, 644 S.E.2d 169, 173 (2008). 

Issues arising from jury instructions have a two-part review. “As a general 

rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. 

By contrast, the question of whether a jury was properly instructed is a question of law, 

and the review is de novo.” Syl. Pt. 1, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 

(1996). “Whether facts are sufficient to justify the delivery of a particular instruction is 

reviewed by this Court under an abuse of discretion standard. In criminal cases where a 

conviction results, the evidence and any reasonable inferences are considered in the light 

most favorable to the prosecution.” Syl. Pt. 12, State v. Derr, 192 W. Va. 165, 451 S.E.2d 

731 (1994).

Finally, a change of venue is also reviewed under an abuse of discretion 

standard. “Whether a change of venue is warranted rests in the sound discretion of the trial 

court, and its ruling thereon will not be disturbed, unless it clearly appears that such 

discretion has been abused.” Syl. Pt. 2, State v. Gangwer, 169 W. Va. 177, 286 S.E.2d 389

(1982). Mindful of our standards of review, we now discuss the four issues raised by Hoard 

in this appeal.
16

III. ANALYSIS

A. References to Pre-Trial Silence

Hoard argues that the circuit court erred in not granting a mistrial because of 

the two instances in which the State made references to his pre-trial silence. The State 

argues there was no error but if there was, such error was harmless. The right to silence is 

protected by the Fifth Amendment of the United States Constitution which provides, in 

pertinent part, “[n]o person ... shall be compelled in any criminal case to be a witness 

against himself.” U.S. CONST. amend V. The United States Supreme Court held in 

Miranda v. Arizona, 384 U.S. 436, 471 (1966), this right requires “an individual held for 

interrogation must be clearly informed that he has the right to consult with a lawyer and to 

have the lawyer with him during interrogation . . . .” 

Later cases have extended Miranda to references made by the State to a 

criminal defendant’s pre-trial silence during the course of a trial. In Doyle v. Ohio, 426 

U.S. 610 (1976), the United States Supreme Court held that a defendant could not be 

impeached at trial based upon invocation of such defendant’s pre-trial constitutional right 

to remain silent. “We hold that the use for impeachment purposes of petitioners’ silence, 

at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause 

of the Fourteenth Amendment.” Id. at 619 (footnote omitted). This Court embraced the 

Doyle rule:
17

Under the Due Process Clause of the West Virginia 

Constitution, Article III, Section 10, and the presumption of 

innocence embodied therein, and Article III, Section 5, relating 

to the right against self-incrimination, it is reversible error for 

the prosecutor to cross-examine a defendant in regard to his 

pre-trial silence or to comment on the same to the jury.

Syl. Pt. 1, State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977). However, following 

Doyle, the United States Supreme Court modified Doyle’s holding, finding, “that 

impeachment by use of prearrest silence does not violate the Fourteenth Amendment.” 

Jenkins v. Anderson, 447 U.S. 231, 240 (1980). We have followed Jenkins and have held 

there is no constitutional violation when “the defendant’s silence occurred prior to his arrest 

and the giving of Miranda warnings . . . .” State v. Ramsey, 209 W. Va. 248, 256, 545 

S.E.2d 853, 861 (2000). See also State v. Walker, 207 W. Va. 415, 419 n.2, 533 S.E.2d 48, 

52 n.2 (2000) (“We point out that the protections afforded a defendant for postMiranda silence are generally not available for pre-arrest silence. This Court noted 

approvingly in [State v.] Oxier, 175 W. Va. [760,] 761 n.1, 338 S.E.2d [360,] 361 n.1

[(1985)], language from the decision in Jenkins, that ‘impeachment by use of prearrest 

silence does not violate the Fourteenth Amendment.’” (citation omitted)).

Our review of the record before us demonstrates that it is unclear whether the 

references made to Hoard’s silence were to those of pre-arrest silence or post-Miranda

silence. In light of that ambiguity, we are unable to conclusively find that such references 

are to Hoard’s pre-arrest silence. Accordingly, the circuit court’s determination that such 
18

references did not violate Hoard’s right against self-incrimination was erroneous.

However, in light of the brevity of such references, coupled with the overwhelming 

evidence adduced against Hoard, we agree with the State that such error was harmless.

9

 

Hoard urges us to apply State v. Walker, 207 W. Va. 415, 533 S.E.2d 48 

(2000), and reverse and remand this matter for a new trial. In Walker, the following 

colloquy was elicited on cross-examination of the defendant:

Q. Then, of course, you were at the hospital and Detective 

Westfall, who was investigating the shooting, came to see you, 

didn’t he?

A. Yes, him and Tommy Ransom.

Q. And you didn’t tell him a day afterwards that Mr. Belcher 

had pulled a knife on you, did you?

A. It was two days. No, I couldn’t talk to him.

....

Q. You recall Detective Westfall testifying that you told him 

that this was all an accident, don’t you?

A. Right.

Q. You didn’t tell him that Harold Belcher threatened to gut 

you like a hog, did you?

A. No.

Q. You didn’t show Detective Westfall the cut, did you?

9 As argued by the State, Doyle acknowledged the possible application of 

harmless error analysis to a claim that a Defendant’s post-Miranda silence was improperly 

referenced during a trial but did not apply such analysis because no argument was raised 

to apply that doctrine. See Doyle, 426 U.S. at 619-20.
19

A. No, I didn’t. I meant to do that for a reason.

State v. Walker, 207 W. Va. 415, 420, 533 S.E.2d 48, 53 (2000). This Court held that line 

of questioning of Walker on his post-Miranda silence was reversible error. Further, in 

Walker, the State made the following statement in closing argument:

He never said anything to the police officers that he was cut by 

Harold Belcher. He never said anything to the police officers 

that Harold Belcher had a knife to his groin. He never said 

anything to the police officers that Harold Belcher threatened 

to gut him like a hog. He never said that stuff because it didn’t 

happen[ ].

... Why wouldn’t he tell—why wouldn’t he tell the police 

officers that Harold Belcher did these things? It doesn’t make 

sense. If it happened, he would have told them. He would have 

said that to the police officers.

Id., 207 W. Va. at 421, 533 S.E.2d at 54. This Court held that argument to be a violation 

of post-Miranda silence stating that “[t]o permit the State to do what occurred in this case, 

would effectively make Miranda warnings meaningless.” Id.

However, we find the holding in Walker unpersuasive under the facts present 

here. We had previously indicated application of a harmless error analysis is appropriate 

in this same context. In State v. Marple, 197 W. Va. 47, 475 S.E.2d 47 (1996), we were 

confronted with a situation in which a witness commented on a defendant’s silence during 

the trial:
20

The first witness called by the State was Officer Cecil. Officer 

Cecil was the only witness to comment on the defendant’s 

post-Miranda silence. The State did not dwell on the issue 

beyond the one question to Officer Cecil nor did Officer Cecil 

go beyond the few remarks quoted above. 

Id., 197 W. Va. at 53, 475 S.E.2d at 53. Balancing that limited comment regarding the 

defendant’s silence with overwhelming evidence of guilt, we concluded, “we do not find a 

miscarriage of justice nor do we believe the circuit court’s error brings into question the 

fairness, integrity, or reputation of judicial proceedings, and we decline the invitation to 

grant the defendant a new trial.” Id., 197 W. Va. at 54, 475 S.E.2d at 54.

More recently, in Buxton v. Ballard, No. 14-0648, 2015 WL 2364510 (W. 

Va. May 15, 2015) (memorandum decision), this Court examined a nearly identical set of 

questions to those posited in this matter. Buxton was asked on cross-examination:

Q. [Prosecutor]: You stated to the jurors a while ago that you 

just wanted them to know your side of the story. The Story that 

you testified to, that you have in your notes, the way you 

answered your lawyer, have you ever told that story to anyone 

else other than your lawyer?

A. [Petitioner]: No.

Q. [Prosecutor]: If you wanted everybody to know your side

why didn’t you tell it to the police officer?

[Defense counsel]: Objection, Your Honor.

THE COURT: Will be sustained.

[Prosecutor]: That’s all the questions I have.
21

Id., at *2-3. This Court then distinguished the facts of Buxton from those of Boyd, finding 

that “the circuit court did not allow the constitutionally impermissible evidence to be 

presented to the jury. This distinction is critical to our conclusion in the present case that 

the prosecutor’s unanswered question did not constitute error” Id., at 4. In this case, 

following a bench conference, the State did not press for an answer to the clearly 

impermissible question it asked. Thus, like in Buxton, the question was and remains 

unanswered and the State never thereafter “suggest[ed] that [Petitioner’s] silence is 

indicative of guilt.” State v. Bruffey, 231 W. Va. 502, 510, 745 S.E.2d 540, 548 (2013). 

From our review, we believe it appropriate to apply a harmless error analysis 

to instances where a defendant’s silence is referenced during trial. Indeed, we have 

previously held that harmless error is a firmly established doctrine in West Virginia, even 

for constitutional errors at trial. “The remedial doctrines of knowing and intelligent waiver 

and harmless error are firmly established by statute, court rule and decisions as salutary 

aspects of the criminal law of this State.” Syl. Pt. 4, State v. Blair, 158 W. Va. 647, 214 

S.E.2d 330 (1975). “In a constitutional context, the doctrine is also applied because 

appellate courts are not bound to reverse for a technical violation of a fundamental right.” 

Id., 158 W. Va. at 659, 214 S.E.2d at 337. In the case of constitutional errors at trial, 

“[f]ailure 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, Id. This rule has been 
22

applied in other jurisdictions where prosecutors have commented upon a defendant’s 

silence:

Indeed, the general rule around the country is that “improper 

comments on a defendant’s invocation of his right to remain 

silent are subject to a harmless error analysis and need not 

require reversal if the Court is convinced, beyond a reasonable

doubt, that the error did not contribute to the verdict.” Jones v. 

State, 748 So.2d 1012, 1021-1022 (Fla.1999). See also Taylor 

v. State, 254 Ga. App. 150, 561 S.E.2d 833, 836 (2002) (“Even 

if we assume that there was an improper comment on 

[defendant’s] silence, such an impropriety does not 

automatically require reversal and may be harmless error.”); 

State v. Tucker, 138 Idaho 296, 62 P.3d 644, 647 (Ct. App.

2003) (“Commentary on a defendant’s right to remain silent, if 

determined to be constitutional error, is subject to the harmless 

error analysis[.]”); State v. Ezzell, 642 S.E.2d 274, 278 

(N.C.Ct.App. 2007) (“[A] comment implicating a defendant’s 

right to remain silent, although erroneous, is not invariably 

prejudicial. Indeed, such error will not earn the defendant a 

new trial if, after examining the entire record, this Court 

determines that the error was harmless beyond a reasonable 

doubt.”); State v. Shuler, 353 S.C. 176, 577 S.E.2d 438, 444 

(2003) (“While the State may not comment on the defendant’s 

right to remain silent, an improper reference is subject to 

harmless error analysis.”).

State v. Murray, 220 W. Va. 735, 745, 649 S.E.2d 509, 519 (2007) (Davis, C.J., dissenting).

In this case, we believe it is clear the error in briefly referencing Hoard’s 

silence was harmless beyond a reasonable doubt. There were two instances in which the 

State referred to Hoard’s silence. The first occurred during opening statements on day one 

of the trial. The second was during cross-examination of Hoard on day six of the trial. We 

believe that two isolated references to Hoard’s silence spread across a full calendar week, 
23

a record of nearly 3,000 pages, and the lack of emphasis on the two isolated instances at 

any other point in the trial, constitutes harmless error. This is particularly true because it 

is clear that the evidence of guilt proven at trial was quite extensive. The State produced 

evidence proving that after being forcibly removed from Shorthorns, Hoard went to his 

truck, opened the truck door, opened his briefcase, and retrieved his gun. He then stood on 

the running board of the truck and fired four shots into the night sky. He then fired the gun 

in a downward direction and four bullets struck Grant, killing him. Immediately following 

the incident, Hoard fled the scene, returning to Teets’ home and later traveled to his home 

outside Morgantown. Hoard turned off his cell phone and deleted his Facebook page. 

Finally, he removed the distinctive truck topper from his truck. The State also established 

a motive – Hoard was angry at Felton for his part in removing Hoard from Shorthorns –

that also points to Hoard’s guilt. We believe that there was overwhelming evidence of 

Hoard’s guilt that the jury considered in rendering its verdict and it is clear beyond a 

reasonable doubt that, without the two isolated references to Hoard’s silence, the jury 

would have nonetheless returned a guilty verdict.

B. Jury Instructions

We note at the outset that no specific objections were raised to the circuit 

court regarding the given instructions during trial. Only a general objection, noted above, 

was lodged regarding the jury instructions. Objections to jury instructions must be specific
24

and must be raised prior to closing argument. “No party may assign as error the giving or 

refusal to give an instruction ... unless that party objects thereto before the arguments to 

the jury have begun, stating distinctly the matter to which that party objects and the grounds 

of the objection.” Rule 30, W. Va. R. Cr. P. Now, we turn to each of the issues raised 

regarding the jury instructions.

1. Self Defense Instructions

The circuit court gave a slightly modified version of Hoard’s proposed 

instruction 31 on self-defense. The given instruction informed the jury that if Hoard was 

not the aggressor, and he reasonably believed he was in imminent danger of death or serious 

bodily injury, he had the right to employ deadly force to defend himself. The jury was also 

instructed that Hoard could not provoke the assault and that if a similarly situated 

reasonably prudent person had a reasonable belief that that he was about to be killed or 

subjected to serious bodily injury, and Hoard actually believed that he was in imminent 

danger of death or serious bodily injury, he could use deadly force to repel it. Finally, the 

jury was told that if evidence of self-defense was present, the State had to prove beyond a 

reasonable doubt that Hoard did not act in self-defense.

We have previously held that “[t]he trial court must instruct the jury on all 

essential elements of the offenses charged, and the failure of the trial court to instruct the 

jury on the essential elements deprives the accused of his fundamental right to a fair trial, 

and constitutes reversible error.” Syl., State v. Miller, 184 W.Va. 367, 400 S.E.2d 611 
25

(1990). However, “[i]t is not error to refuse to give an instruction to the jury, though it 

states a correct and applicable principle of law, if the principle stated in the instruction 

refused is adequately covered by another instruction or other instructions given.” Syl. Pt. 

3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). We are required to review 

the jury instructions as a whole. See Syl. Pt. 2, Roberts v. Stevens Clinic Hosp., Inc., 176 

W. Va. 492, 345 S.E.2d 791 (1986). 

Hoard argues that the circuit court erred in not giving his proposed jury 

instructions 22, 23, 24, and 25 on self-defense.10 Based upon our review of the self-defense 

instruction given and the proposed instructions not given, we conclude that proposed 

instructions 22, 23, 24, and 25 were cumulative of the self-defense instruction that was 

given and are duplicative of each other. Moreover, the self-defense instruction given by 

the circuit court was an accurate statement of the law. As such, we find no error.

2. Intent Instructions

Next, Hoard argues that the circuit court erred in giving instructions on intent 

crimes, because the State failed to prove the element of intent. Hoard argues that the circuit 

10 Proposed instruction 22 cited to “State v. Gibson, 186 W. Va. 465, 413 

S.E.2d 120 (1991).” Proposed instruction 23 cited to “State v. Donahue, 79 W. Va. 260, 

265, 90 S.E. 834 (1916); State v. Cain, 20 W. Va. 679, 707 (1882); State v. Clark, 51 W. 

Va. 457, 468, 41 S.E. 204 (1902); and, State v. DeBoard, 119 W. Va. 396, 407, 194 S.E. 

349 (1937).” Proposed instruction 24 cited to “Gibson.” Proposed instruction 25 cited to 

“State v. Manns, 48 W. Va. 480, 486, 37 S.E. 613 (1900); State v. Hamrick, 74 W. Va. 145, 

81 S.E. 703 (1914); and, State v. Banks, 99 W. Va. 711, 715, 129 S.E. 715 (1925).” 
26

court erred in giving instructions for the crimes of first-degree murder, second-degree 

murder, and voluntary manslaughter, all requiring the State to prove the specific intent to 

kill. See Guthrie, 194 W. Va. at 673-74, 461 S.E.2d at 179-80 (first-degree and seconddegree murder require intent to kill); State v. Drakes, 243 W. Va. 339, 348, 844 S.E.2d 

110, 119 (2020) (intent to kill is an element of voluntary manslaughter).

Hoard alleges there was insufficient evidence to support the instructions on 

intent and points us to two cases for the proposition that only jury instructions supported 

by the evidence should be given at trial. See Syl. Pt. 12, State v Henson, 239 W. Va. 898, 

806 S.E.2d 822 (2017); Syl. Pt. 5, State v. Bowling, 232 W. Va. 529, 753 S.E.2d 27 (2013).

We are mindful that:

Whether facts are sufficient to justify the delivery of a 

particular instruction is reviewed by this Court under an abuse 

of discretion standard. In criminal cases where a conviction 

results, the evidence and any reasonable inferences are 

considered in the light most favorable to the prosecution.

Syl. Pt. 12, Derr.

The evidence adduced at trial supported the circuit court’s instructions to the 

jury and the circuit court did not abuse its discretion in giving the intent instructions. Hoard 

went to his truck, opened the door, opened his briefcase, retrieved his gun, stood on the 

running board of his truck, fired four shots into the night sky, turned the gun in a downward 

direction, fired four bullets into Grant, resulting in his death. From these facts, there was 

sufficient evidence presented to the jury from which it could conclude that Hoard intended 
27

to kill Grant. Accordingly, the circuit court did not err in giving instructions on the crimes 

of first-degree murder, second-degree murder, and voluntary manslaughter.

3. Malice Instructions

Finally, Hoard argues that the circuit court erred in instructing the jury twice 

on malice. The circuit court included the same instruction on malice in its instruction on 

first-degree murder as it did in its instruction on second-degree murder. The circuit court 

gave the following instruction as to first-degree murder and repeated it as to second-degree 

murder by simply replacing the term “first degree” with “second degree”:

In order to find [Hoard] guilty [of] murder of the first 

degree [second degree] you must find that [Hoard] acted with 

malice. Malice is the intentional doing of a wrongful act 

without just cause or excuse, with an intent to inflict an injury 

or under circumstances that the law will imply and evil intent. 

Malice is also a condition of the mind showing a heart fatally 

bent on mischief, without regard to social duty. Malice is a 

term of art importing wickedness and excluding a just cause or 

excuse.

The word malice, as used in these instructions, is used 

in a technical sense. It may be either express or implied and 

includes not only anger, hatred and revenge, but other 

unjustifiable motives. It may be inferred or implied by you 

from all of the evidence in this case if you find such inference 

is reasonable from the facts and circumstances of this case 

which have been proven to your satisfaction beyond a 

reasonable doubt. It may be inferred from any deliberate and 

cruel act done by [Hoard], without any reasonable provocation

or excuse, however sudden. Malice is not confined to ill-will 

toward any one or more particular person, but malice is every 

evil design in general; and by it is meant that the fact has been 

attended by such circumstances as are ordinarily symptoms of 

a wicked, depraved and malignant spirit, and carry with them 

the plain indications of a heart, regardless of social duty, fatally 
28

bent upon mischief. It is not necessary that malice must have 

existed for any particular length of time. It is sufficient if 

malice springs into the mind before the accused did the killing.

Malice and intent to kill, which must be proven beyond 

a reasonable doubt, can be inferred by the jury from [Hoard’s] 

use of a deadly weapon if you believe by proof beyond a 

reasonable doubt that [Hoard] did use a deadly weapon under 

circumstances which you do not believe afforded [Hoard] 

excuse, justification, or provocation for his conduct. If you 

believe there was legal justification, excuse, or provocation, 

the inference of malice does not arise and malice must be 

established beyond a reasonable doubt independently without 

the aid of the inference.

The court instructs the jury that if you believe there was 

legal justification, excuse or provocation for [Hoard’s] 

conduct, you may not infer malice from the use of a deadly 

weapon. If you have found there was legal justification, excuse 

or provocation for Hoard’s conduct, the State must prove 

malice beyond a reasonable doubt independently and without 

the aid of the inference. You are not obligated to find, 

however, and you may not find [Hoard] guilty unless you are 

satisfied that the State has proven the element of malice beyond 

a reasonable doubt.

Malice is a required element of both first-degree and second-degree murder. 

See Gibson, 186 W. Va. at 471, 413 S.E.2d at 126 (“[M]urder in the first degree is when 

one person kills another unlawfully, maliciously, deliberately, and premeditatedly. . . .”); 

Syl. Pt. 2, in part, Drakes (“Murder in the second degree is the unlawful, intentional killing 

of another person with malice...”). Thus, as we noted above, the circuit court was required 

to “instruct the jury on all essential elements of the offenses charged, and the failure of the 

trial court to instruct the jury on the essential elements deprives the accused of his 

fundamental right to a fair trial, and constitutes reversible error.” Syl., Miller.
29

In general, the question on review of the sufficiency of

jury instructions is whether the instructions as a whole were 

sufficient to inform the jury correctly of the particular law and 

the theory of defense. We ask whether: (1) the instructions

adequately stated the law and provided the jury with an ample 

understanding of the law, (2) the instructions as a whole fairly

and adequately treated the evidentiary issues and defenses 

raised by the parties, (3) the instructions were a correct 

statement of the law regarding the elements of the offense, and 

(4) the instructions meaningfully conveyed to the jury the 

correct burdens of proof. Thus, a jury instruction is erroneous 

if it has a reasonable potential to mislead the jury as to the 

correct legal principle or does not adequately inform the jury

on the law. An erroneous instruction requires a new trial unless 

the error is harmless. See State ex rel. Grob v. Blair, 158 

W.Va. 647, 214 S.E.2d 330 (1975).

State v. Miller, 197 W. Va. 588, 607, 476 S.E.2d 535, 554 (1996).

In this case, we easily conclude that the trial court’s instructions were 

sufficient. Hoard argues that “it is clear that [Hoard] was prejudiced” by the giving of the 

duplicative instructions. However, the two cases cited by Hoard do not support that 

proposition. State v. Pannell, 175 W. Va. 35, 330 S.E.2d 844 (1985) merely discusses in 

passing the potential for a future case where there is “selective re-reading of instructions”

upon request by the jury causing unfair prejudice. Id., 175 W. Va. at 39, 330 S.E.2d at 848. 

That is not at all what happened in this case. In fact, the holding in Pannell states:

The giving of an incomplete instruction does not 

constitute reversible error where consideration of the 

instructions as a whole cures any defect in the incomplete 

instruction.

Syl. Pt. 1, Id. 
30

The other case cited by Hoard is from the United States District Court for the 

Central District of California. See Mendoza v. Sullivan, Case No.: 8:19-cv-00622-MAA, 

2021 WL 310937 (C.D. Ca. Jan. 29, 2021). This case also fails to support Hoard’s position. 

First, Mendoza was a collateral attack upon a conviction. Id. at 1. Second, the instruction 

given in Mendoza correctly stated the law. Id. at 11. Finally, the Mendoza court affirmed 

the giving of duplicative instructions. Id. at 12 (“Even if the instruction was somewhat 

repetitive or duplicative, Mendoza fails to demonstrate a trial court commits reversible 

error simply by giving a redundant instruction which is otherwise clear, impartial, and 

accurate.”). 

The decision to give the malice instruction twice may have been redundant, 

but there was no harm in repeating the same instruction regarding malice with each of the 

two murder instructions. It accurately informed the jury of the elements of first-degree and 

second-degree murder. We conclude that the instructions as a whole adequately stated the 

law, fairly treated the issues and defenses of the parties, correctly stated the elements of the 

crimes, and properly instructed on the burdens of proof. The circuit court did not err in 

giving duplicative instructions on malice.

C. Jury Selection

Prior to trial, Hoard sought a change of venue and/or permission to conduct 

a survey of residents of Preston County to determine sentiment and opinions about this 

case. The impetus for the survey arose from preliminary review of social media following 
31

the murder that showed multiple instances of people sharing and commenting about it. 

Hoard did not show that the persons making such social media comments were residents 

of Preston County and the circuit court denied the motion for a survey. As for the change 

of venue motion, the circuit court did not immediately rule on the motion and held it in 

abeyance pending the outcome of jury selection.11 

West Virginia’s Constitution provides:

Trials of crimes, and of misdemeanors, unless herein 

otherwise provided, shall be . . . in the county where the alleged 

offence was committed, unless upon petition of the accused, 

and for good cause shown, it is removed to some other county.

11 The following discussion was had regarding this point:

Ms. Haynie: And I want to put on the record, of course, my 

continuing motion for change of venue.

THE COURT: So noted. Yup. And if we cannot sit a jury – I 

mean, you know, we are trying to get 32 jurors, and if I can’t 

sit a panel of jurors, then we’ll have to look at that; but if I can 

sit a panel of jurors that can be – render a verdict true and 

accurate based solely upon the facts presented within the four 

walls of the courtroom, then, basically, you know, I think he 

has received a fair trial.

Ms. Haynie: Well, I mean, I am sure we’ll be renewing the 

motion. I just wanted to make it on – make the record.

THE COURT: Yeah. And I will give you a continuing, you 

know, motion.

Ms. Haynie: Okay.
32

W. Va. CONST. art. III, § 14, in part. Our Legislature has provided that, “[a] court may, on 

the petition of the accused and for good cause shown, order the venue of the trial of a 

criminal case in such court to be removed to some other county.” W. Va. Code § 62-3-13 

(1923). This protection for defendants in criminal matters is also contained in West 

Virginia’s Rules of Criminal Procedure:

The circuit court upon motion of the defendant shall transfer 

the proceedings as to that defendant to another county if the 

circuit court is satisfied that there exists in the county where 

the prosecution is pending so great a prejudice against the 

defendant that he or she cannot obtain a fair and impartial trial 

at the place fixed by law for holding the trial.

W. Va. R. Cr. P. 21(a). 

In support of their respective positions, both parties point us to the first three 

Syllabus Points of State v. Derr:

1. “‘To warrant a change of venue in a criminal case, there must 

be a showing of good cause therefor, the burden of which rests 

on the defendant, the only person who, in any such case, is 

entitled to a change of venue. The good cause aforesaid must 

exist at the time application for a change of venue is made. 

Whether, on the showing made, a change of venue will be 

ordered, rests in the sound discretion of the trial court; and its 

ruling thereon will not be disturbed, unless it clearly appears 

that the discretion aforesaid has been abused.’ Point 2, 

Syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 

(1946).” Syllabus Point 1, State v. Sette, 161 W.Va. 384, 242 

S.E.2d 464 (1978).

2. “‘A present hostile sentiment against an accused, extending 

throughout the entire county in which he is brought to trial, is 

good cause for removing the case to another county.’ Point 2, 

Syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 

(1967), quoting Point 1, Syllabus, State v. Siers, 103 W.Va. 
33

30, 136 S.E. 503 (1927).” Syllabus Point 2, State v. Sette, 161 

W.Va. 384, 242 S.E.2d 464 (1978).

3. One of the inquiries on a motion for a change of venue 

should not be whether the community remembered or heard the 

facts of the case, but whether the jurors had such fixed opinions

that they could not judge impartially the guilt or innocence of 

the defendant.

Syl Pts. 1-3, Derr. Widespread publicity, however, does not by itself, require 

a change of venue. See Syl. Pt. 2, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966). 

After three days of jury selection, including individual voir dire of all 

members of the pool from which the jury was selected, an impartial jury was seated. The 

circuit court was satisfied that there was no present hostile sentiment against Hoard 

necessitating moving the case out of Preston County or to conduct the pre-trial survey. In 

fact, during jury selection, counsel for Hoard stated that information obtained during their 

investigation of prospective jurors was used to guide their actions.

12 

12 At one point during jury selection, Hoard’s counsel stated, “Well, I mean, 

here’s what I am going to say. I am pleasantly surprised that the people have been honest, 

because the people who have already excused – have already told us, we already knew that 

they could not sit on this jury based upon our research.” (emphasis added)

As voir dire progressed, this discussion was had:

THE COURT: . . . Now this next juror is the one that didn’t 

want to come that I had to threaten to have somebody go get 

him today, so probably going to be a little hostile, so.

Ms. Haynie: Well, he lives right down the road from Heidi 

Felton, so.

(continued . . .)
34

Further, the arguments raised by Hoard as to four specific jurors, (1, 21, 24, 

34), were not preserved as Hoard made no motions to strike these specific jurors for cause. 

Hoard affirmatively states in his brief that the circuit court denied motions to strike these 

four jurors for cause. However, the record reflects that no such motions were made to 

strike these four jurors.13 Our Rules of Appellate Procedure require that “[t]he argument 

THE COURT: Who does?

Ms. Haynie: [Juror 35]

THE COURT: Oh, does he? You guys know a lot of stuff I 

don’t.

Ms. Haynie: Yeah. I mean, if our information is correct.

(emphasis added).

13 Additionally, these jurors clearly stated, following lengthy individual voir 

dire, that they could render a fair verdict. Juror 1 was asked by the circuit court, “So do 

you think based upon all the witnesses we’ve talked about and your knowledge of the case, 

would you be able to sit and render a verdict true and accurate based solely upon the facts 

of this case?” Juror 1 answered, “Yes.” 

As to Juror 21, the following colloquy took place:

Ms. Haynie: So if you were selected as a juror in this case and 

you were – had listened to all of the evidence and had come to 

a conclusion in your own mind about what you thought the 

verdict should be, if that verdict was not what maybe the 

community would want you to render would you – is there 

pressure there that you would not want to be under or would 

you be able to render the verdict that you felt was true?

(continued . . .)
35

[Juror 21]: I would be able to do what I felt was correct.

 

Juror 24 was also questioned by Hoard’s counsel:

Ms. Haynie: Okay. If you were selected to sit as a juror in this 

case, could you take whatever you heard about this case 

through social media or news or your husband or whatever, set 

it aside, and render a verdict in this case based solely on what 

you hear in the courtroom? 

[Juror 24]: Yeah.

Ms. Haynie: Okay. If you sat as a juror in this case and after 

listening to all the evidence had come in [sic] your own mind 

and heart to a verdict that you thought was just and true, would 

you feel pressure to render a different verdict because of the –

the community pressure to render a different verdict than what 

you felt was true in your heart, or would you go ahead and 

render that verdict that you felt was true despite what the 

community might feel or think?

[Juror 24]: I think that the – it has to be proven that he’s guilty 

or not.

Ms. Haynie: Okay.

[Juror 24]: You know, I mean, evidence has to prove that.

Ms. Haynie: Okay. So even if you sat as a juror and you 

thought maybe the State didn’t meet it’s [sic] burden, you 

would still find Mr. Hoard not guilty even if you knew that 

maybe your family – or I’m sorry, community members 

disagreed with you?

[Juror 24]: Yeah.

Finally, Juror 34 had the following exchange with Hoard’s counsel:

(continued . . .)
36

must contain appropriate and specific citations to the record on appeal, including citations 

that pinpoint when and how the issues in the assignments of error were presented to the 

lower tribunal.” W. V. R. App. P. 10(c)(7). 

Hoard points us to the circuit court’s order denying his motion for a new trial 

and motion for judgment of acquittal in support of the proposition that the circuit court 

denied motions to strike these four jurors for cause. The circuit court’s order makes no 

mention of whether Hoard properly moved to strike these jurors for cause. Although the 

same section of Hoard’s brief does contain pinpoint citations to the transcript, it fails to 

point to any place in the transcript where Hoard actually moved to strike these four jurors. 

Ms. Haynie: Yeah, okay. If Mr. Felton – Michael Felton 

testifies in this case and gives conflicting testimony with 

another witness that you don’t know, would you believe Mr. 

Felton’s testimony over the other witness solely because you 

knew him or you were his acquaintance?

[Juror 34]: Testimony is considered as evidence, right?

Ms. Haynie: Uh-huh.

[Juror 34]: It’s all about the facts.

Ms. Haynie: Okay.

[Juror 34]: So[,] to answer your question, no, I would not give 

– show any type of – be impartial to either or.

Ms. Haynie: Solely because you knew him, right? You would 

listen to all the evidence and weight out everything?

[Juror 34]: Right.
37

Our thorough review of the transcript reveals no such motions. Because Hoard has failed 

to demonstrate that he moved to strike these jurors, and the circuit court conducted 

thorough individual voir dire of each such juror which resulted in its conclusion that each 

juror could render an impartial verdict, we find no error. 

D. Cumulative Error

Finally, Hoard argues that cumulative errors resulted in him being denied his 

constitutional right to a fair trial and the circuit court erred in denying his motion for 

judgment of acquittal. Cumulative error exists:

Where the record of a criminal trial shows that the 

cumulative effect of numerous errors committed during the 

trial prevented the defendant from receiving a fair trial, his 

conviction should be set aside, even though any one of such 

errors standing alone would be harmless error.

Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (emphasis added). For 

this doctrine to apply, “there must be more than one harmless error.” State v. 

McKinley, 234 W.Va. 143, 167 n.22, 764 S.E.2d 303, 327 n.22 (2014). We previously 

found that one error cannot constitute cumulative error:

In an attempt to locate reversible error, Appellant cites

to four evidentiary rulings that the trial court made that, taken 

together, should require reversal under the doctrine of 

cumulative error.

. . . .

While the State concedes that one of the four enumerated 

evidentiary rulings was error, it argues that the other 

evidentiary rulings relied upon by Appellant were not an abuse 

of the trial court’s discretion. We agree. Accordingly, we do 

not find cumulative error justifying a reversal of Appellant's 

conviction. 
38

State v. Cook, 228 W. Va. 563, 571-2, 723 S.E.2d 388, 396-7 (2010) (footnotes omitted). 

Here, we found the circuit court committed harmless error by concluding that 

the brief references to Hoard’s pre-trial silence did not violate his protection against selfincrimination. These harmless errors were clearly insignificant in a record of nearly 3,000 

pages. Although the limited references constituted error, it is clear that as to the doctrine 

of cumulative error, “[i]f the errors, while numerous, are insignificant or inconsequential, 

the case should not be reversed under the doctrine.” 1 Louis J. Palmer, Jr., Handbook on 

Evidence for West Virginia Lawyers, § 103.03[1][e], p. 40 (7th ed. 2021) (footnote 

omitted). Thus, we find no cumulative error in this matter.

IV. CONCLUSION

For the foregoing reasons, we affirm Hoard’s conviction and sentencing by 

the circuit court.

Affirmed.