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No. 21-0114 – State of West Virginia v. Quenton A. Sheffield 

Wooton, Justice, concurring:

 I concur in the Court’s judgment, in the entirety of its well-reasoned opinion, 

and in its two new syllabus points. I agree that a violation of Rule 24(c) of the West Virginia 

Rules of Criminal Procedure is subject to harmless error analysis because the rule is not 

constitutionally grounded; that as part and parcel of such analysis, there is a presumption 

of prejudice to the defendant/petitioner that the State must overcome; and that under the 

facts and circumstances of this case, the State failed to overcome that presumption. I write 

separately, however, to express my view that the circuit court’s failure to swear the recalled 

alternate juror before sending her into the jury room to deliberate was fundamental, 

structural error that in and of itself rendered the petitioner’s conviction invalid. See State 

v. Moore, 57 W. Va. 146, 49 S.E. 1015 (1905), overruled on other grounds by State v. 

Grimmer, 162 W. Va. 588, 589, 251 S.E.2d 780, 782 (1979): 

It is hardly necessary to cite authorities to show that a person 

cannot be legally convicted unless the record shows that the 

jury which tried the case were sworn according to law. It is not 

necessary that the oath should be copied into the order, but the 

record must affirmatively show somewhere and in some way 

that the jury were sworn in the manner prescribed by law, 

before there can be a legal conviction. 

Moore, 57 W. Va. at 146, 49 S.E. at 1016. 

 Although the State acknowledges the rule established in Moore, it relies on 

an Oregon case, State v. Vogh, 41 P.3d 421 (Or.Ct.App. 2002), for the proposition that the 

FILED

June 14, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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rule requiring a jury to be sworn is “legal formalism” which “has since given way to a more 

functional approach.” Id., 41 P.3d at 426. I find Vogh to be unpersuasive for several 

reasons. First, most if not all of the court’s discussion is dicta, as the case was decided on 

the basis of the defendant’s procedural default in failing to raise the issue in a motion for 

new trial. Id. at 423. Second, the court recognized the distinction between cases involving 

untimely swearing of the jury and cases involving failure to swear the jury at all, noting 

that the only Oregon case on point1 involved the former. Id. at 425. As to the latter, the 

court acknowledged that the Moore rule is not an outlier, concluding “that the authority is 

divided and that no particular consensus exists.” Id. at 425. Third, I wholeheartedly 

disagree with the court’s conclusion in Vogh that the failure to swear the jury in a criminal 

case, which is part and parcel of constitutional “fair trial” provisions, is subject to a 

harmless error analysis less rigorous than that articulated by this Court in numerous 

decisions: 

“We have long held that ‘[e]rrors involving deprivation 

of constitutional rights will be regarded as harmless only if 

there is no reasonable possibility that the violation contributed 

to the conviction.” Syl. pt. 20, State v. Thomas, 157 W.Va. 

640, 203 S.E.2d 445 (1974). See also W. Va. R.Crim. P. 52(a) 

(“Any error, defect, irregularity or variance which does not 

affect substantial rights shall be disregarded.”). Further, 

“[f]ailure to observe a constitutional right constitutes a 

reversible error unless it can be shown that the error was 

harmless beyond a reasonable doubt.” Syl. pt. 5, State ex rel. 

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

1 State v. Barone, 986 P.2d 5 (Or. 1999).
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State v. DeWeese, 213 W. Va. 339, 352, 582 S.E.2d 786, 799 (2003); see also State v.

Flack, 232 W. Va. 708, 716, 753 S.E.2d 761, 769 (2013) (“We made clear in Syllabus 

Point 3 of Frazier [State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727 (2012)] that ‘[i]n a 

criminal case, the burden is upon the beneficiary of a constitutional error to prove beyond 

a reasonable doubt that the error complained of did not contribute to the verdict 

obtained.’”). 

 

 In my view, the failure to swear the dismissed-and-subsequently-recalled 

alternate juror in the instant case deprived the petitioner of his guaranteed right to a trial 

“by a jury of twelve[,]” W. Va. Const. art. III, § 14,

2 in that only eleven members of the 

panel had taken the required oath as jurors. In that regard, the record is clear that the 

petitioner never agreed, either orally or in writing,3 to be tried by fewer than twelve jurors. 

The circuit court presented the petitioner with a classic Hobson’s choice: if he did not agree 

to have his guilt or innocence decided by an eleven-person jury, the recalled juror would 

participate in deliberations. Although the petitioner chose the latter option, it is clear from 

the record that this was not a true choice in that it was not made knowingly, intelligently, 

2 Although the text of article three, section fourteen of the West Virginia 

Constitution provides for a jury of twelve men, the WEST VIRGINIA JURY SERVICE FOR 

WOMEN AMENDMENT, AMENDMENT 1, was approved by the voters on November 6, 1956, 

making women eligible for jury service.

3 See W. Va. R. Crim. P. 23(b) (providing that “[j]uries shall be of 12[]” unless the 

parties “stipulate in writing with the approval of the court, that the jury shall consist of any 

number less than 12[.]”) (emphasis added).
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and voluntarily. See State v. Redden, 199 W. Va. 660, 487 S.E.2d 318 (1997), where this 

Court held that

“‘Certain constitutional rights are so inherently personal and so 

tied to fundamental concepts of justice that their surrender by 

anyone other than the accused acting voluntarily, knowingly, 

and intelligently would call into question the fairness of a 

criminal trial.’ Syllabus Point 5, State v. Neuman, 179 W.Va. 

580, 371 S.E.2d 77 (1988).” 

Id. at 661, 487 S.E.2d at 319, Syl. Pt. 2. Thus, the petitioner cannot reasonably be held to 

have waived his constitutional rights under article three, section fourteen of the West 

Virginia Constitution. 

“I do not necessarily dispute the contention that ‘the fact 

that the jury at common law was composed of 12 is a historical 

accident, unnecessary to effect the purposes of the jury system 

and wholly without significance ‘except to mystics’ . . . Yet, 

under the West Virginia Constitution twelve is indeed the 

‘magic number’ . . . and this Court should be loath to tinker 

with such a stable and predictable fixture of our criminal 

jurisprudence.” 

State v. Lightner, 205 W. Va. 657, 665, 520 S.E.2d 654, 662 (1999) (McGraw, J., 

dissenting) (citations omitted). 

 Finally, I reject the State’s argument that because the recalled juror had been 

sworn earlier, her oath somehow “carried over” despite the fact that she had been excused 

by the circuit court. The State cites U.S. v. Turrietta, 696 F.3d 972 (10th Cir. 2012) as 

support for its position – yet another case in which the court’s entire discussion of jurors’ 
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oaths is dicta,4 as the case was decided on the basis of the defendant’s procedural default: 

defense counsel had deliberately waited until after the verdict was in and the jury 

discharged to complain that the jury hadn’t been sworn, leading the court to observe that 

“[t]he interests of justice are generally not served by allowing a party to object to an error 

after the trial has concluded and the party has lost.” Id. at 985-86. More significantly, 

however, Turrietta has nothing whatsoever to do with whether a juror’s oath somehow 

“carries over” after his or her discharge, and the State has cited no authority for this 

extraordinary proposition. One can only wonder where the State would have this Court 

4 Interestingly, much of the dicta supports the proposition that jurors’ oaths are 

critical to their ability to perform the task assigned to them: to well and truly try the case. 

Although we do not resolve the issue here, we can 

readily perceive a difference, in terms of this central function, 

between a sworn and an unsworn jury. Sworn jurors stand 

before a judge with uplifted hands and recite an oath designed 

to impress a duty on their conscience. They promise to carry 

out their charge—to render a verdict in accordance with the 

evidence—conscientiously and impartially, based on the 

court's instructions on the law. Whether swearing an oath 

makes jurors more reliable factfinders is a question we are 

unequipped to answer, but the principle behind the exercise is 

sound: A juror impressed with the seriousness of his charge is 

more likely to be attentive at trial and, in turn, more likely to 

carry out his duty faithfully, with due respect for the ideals 

underlying the criminal process. See United States v.

Martin, 740 F.2d 1352, 1358 (6th Cir.1984) (“Swearing the 

jury ... serves to emphasize the importance and seriousness of 

the juror's task....”). In this sense, it is fair to presume the oath 

furthers the fair resolution of factual issues.

Turrietta, 696 F.2d at 978.
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draw the line: does an oath “carry over” after discharge for an hour, a day, a week? Not 

surprisingly, the State avoids asking this critical question, let alone answering it.

 For the reasons set forth herein, I respectfully concur.