STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent August 31, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-1234 (Fayette County 14-F-28) OF WEST VIRGINIA 

Lesa M. Lewis,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Lesa M. Lewis, by counsel J.B. Rees, appeals the Circuit Court of Fayette 

County’s October 10, 2014, order sentencing her to one to five years in prison for one count of 

conspiracy to commit a felony, in violation of West Virginia Code § 61-10-31; life with mercy 

for one count of kidnaping, in violation of West Virginia Code § 61-2-14; and thirty years in 

prison for one count of first-degree robbery, in violation of West Virginia Code § 61-2-12. The 

State of West Virginia, by counsel Derek A. Knopp, filed a response in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in denying her motions to 

strike two prospective jurors for cause. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In January of 2014, petitioner and four other individuals were indicted on one count of 

conspiracy to commit a felony, in violation of West Virginia Code § 61-10-31; one count of 

kidnaping, in violation of West Virginia Code § 61-2-14; and one count of first-degree robbery, 

in violation of West Virginia Code § 61-2-12. The indictment alleged that petitioner and four coconspirators kidnaped and robbed an individual by taking him to an automated teller machine 

against his will and forcing him to withdraw money. 

In August of 2014, petitioner’s jury trial commenced in the Circuit Court of Fayette 

County. During jury voir dire, one prospective juror revealed that he was the brother-in-law of 

Larry Harrah, the assistant prosecuting attorney prosecuting petitioner’s case. A second 

prospective juror revealed that she was a child protective services (“CPS”) worker for the West 

Virginia Department of Health and Human Resources in Nicholas County, West Virginia. Both 

prospective jurors were specifically asked if they were biased or prejudiced for or against either 

party. Both prospective jurors answered that they were not. Based on these disclosures, petitioner 

made motions to strike both prospective jurors for cause. The circuit court denied petitioner’s 

motions and found that there was no indication that either prospective juror possessed any bias or 

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prejudice in this matter. Petitioner did not seek individual voir dire of either prospective juror. 

However, she used two peremptory strikes to remove both prospective jurors from the jury panel. 

Therefore, those potential jurors did not participate in the jury’s deliberation in petitioner’s case. 

Following the presentation of evidence, argument, and deliberation, the jury returned a verdict of 

guilty on all counts. 

In October of 2014, the circuit court held petitioner’s sentencing hearing. Petitioner 

moved for probation, but the circuit court denied the motion and sentenced her to one to five 

years in prison for the conspiracy conviction; thirty years in prison for the first-degree robbery 

conviction; and life with mercy for the kidnaping conviction. All sentences were ordered to run 

consecutively to one another. This appeal followed. 

This Court has held that 

“[i]n reviewing the qualifications of a jury to serve in a criminal case, we follow a 

three-step process. Our review is plenary as to legal questions such as the 

statutory qualifications for jurors; clearly erroneous as to whether the facts 

support the grounds relied upon for disqualification; and an abuse of discretion as 

to the reasonableness of the procedure employed and the ruling on 

disqualification by the trial court.” State v. Miller, 197 W.Va. 588, 600-01, 476 

S.E.2d 535, 547-48 (1996). 

State v. Sutherland, 231 W.Va. 410, 412, 745 S.E.2d 448, 450 (2013). 

On appeal, petitioner assigns error to the circuit court’s denial of her motions to strike 

two prospective jurors for cause. Further, petitioner argues that she had to use peremptory 

challenges to correct the circuit court’s error, and, therefore, was deprived of her statutory 

allotment of peremptory challenges.1 We have 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. The holding in Syllabus point 8 of State v. Phillips, 194 

W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled. 

Sutherland at 410, 745 S.E.2d at 448, Syl. Pt. 3. In State v. Rollins, 233 W.Va. 715, 760 S.E.2d 

529 (2014), we explained that “Sutherland makes clear that unless a criminal defendant shows 

prejudice, a trial court does not commit reversible error when it fails to strike a juror for cause 

where a party uses a peremptory strike to eliminate the offending juror from the jury panel.” In 

her brief to this Court, petitioner admits that she “does not claim any specific bias or prejudice of 

the jury eventually paneled in this matter.” Instead, petitioner invites this Court to revisit its 

holdings in Rollins and Phillips, which was expressly overruled by Sutherland. As we stated in 

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See W.Va. Code § 62-3-3 (regarding jury selection in felony cases). 

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Sutherland, the overwhelming majority of states require a showing of prejudice with regard to 

prospective jurors who are not ultimately empaneled because, when a criminal defendant has 

been tried before an unbiased jury, he or she has received exactly what the constitution 

guarantees. 231 W.Va. at 420, 745 S.E.2d at 458. Under the facts and circumstances presented in 

this case, we decline petitioner’s invitation to deviate from our reasoning in Sutherland. 

Accordingly, despite petitioner’s argument that both prospective jurors were biased against him, 

we find that no error occurred because both jurors were removed from the jury panel by 

peremptory challenge. Further, petitioner failed to demonstrate any resulting prejudice in the 

record on appeal from her use of those peremptory challenges. Petitioner was tried by an 

unbiased and impartial jury. Therefore, given the circumstances of this case, we find no error 

with regard to the circuit court’s denial of petitioner’s motions to strike these two prospective 

jurors for cause. 

For the foregoing reasons, the circuit court’s October 10, 2014, order is hereby affirmed. 

Affirmed. 

ISSUED: August 31, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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