No. 27259 -- City of Philippi v. Tammy S. Weaver
McGraw, J., dissenting:
What troubles me most about this case is that apparently one juror was unable
to hear the judge, or understand his request, when he polled the jury at the conclusion of the
trial. Indeed, two other jurors had to speak with the juror in question before he finally
While it is entirely possible that this juror had heard and understood all the
testimony in the case, participated fully in deliberations with his fellow jurors, and had a
perfect grasp of the case, which he reflected by eventually responding guilty to the judge,
the majority is wrong to make all these assumptions in favor of a guilty verdict.
In prior cases we have addressed the important right of trial by jury. We have
The right of a criminal defendant to a jury trial is a fundamental constitutional guarantee provided in Article III, Section 14 of the West Virginia Constitution which states, in relevant part, that [t]rials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men [or women.] Article VIII, Section 10 otherwise provides, in relevant part, that a jury in a magistrate court shall consist of six jurors who are qualified as prescribed by law.
State ex rel. Ring v. Boober, 200 W.Va. 66, 69, 488 S.E.2d 66, 69 (1997).
It strikes me as axiomatic that if Ms. Weaver is entitled to a trial by jury, she
is equally entitled to a trial by jurors who can hear and understand the testimony in the case,
and that the state is entitled to the same. Because I have grave concerns that the juror in
question may not have heard and understood all of the proceedings in this case, I must
I am authorized to state that Justice Starcher joins in this dissent.