Davis, Chief Justice:
(See footnote 13)
See also W. Va. R. Crim. P. 34 (stating, in part, that [t]he court on
motion of a defendant shall arrest judgment if the indictment or information does not charge
an offense or if the court was without jurisdiction of the offense charged). It is further
provided by Rule 12(f) that [f]ailure by a party to raise defenses or objections . . . which
must be made prior to trial, . . . may constitute waiver thereof, but the court for cause shown
should grant relief from the waiver.
(See footnote 14)
Reading these provisions together, we now hold that, for the purposes of Rule 12(b)(2) and Rule 12(f) of the West Virginia Rules of Criminal Procedure, if a defect in a charging instrument does not involve jurisdiction or result in a failure to charge an offense, a defendant must raise the issue prior to trial or the defect will be deemed waived absent a showing of good cause for failing to timely raise the issue. (See footnote 15)
Here, Tommy concedes that, prior to trial, he did not raise the issue of the petition being defective on venue grounds. Thus, in order for the venue issue not to be deemed waived, we must find that (1) venue is jurisdictional, (2) the absence of a statement of venue means an offense was not charged, or (3) good cause was shown for failing to timely raise the issue. (See footnote 16) See State v. Eddie Tosh K., 194 W. Va. 354, 357 n.4, 460 S.E.2d 489, 492 n.4 (1995) ([Rule] 12(b)(2) states that the defenses and objections based upon defects in an indictment or information must be raised prior to trial. The same reasoning should be applicable to a petition filed in a juvenile proceeding.). We will address each nonwaiver issue separately.
1. Venue is not jurisdictional. It has been recognized that jurisdictional errors are not waived, because they affect the basic authority of a court to hear and decide a case. United States v. Calderon, 243 F.3d 587, 590 (2nd Cir. 2001). Thus, if venue is jurisdictional, it may be raised at any time, even on appeal. See Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure, p. I-687 (1993) ([A] jurisdictional defect cannot be waived[.]). In State v. Dennis, 216 W .Va. 331, 607 S.E.2d 437 (2004), this Court made the following distinction between venue and jurisdiction:
Although at times related, [venue and jurisdiction] are hardly synonymous. In the context of a criminal case, jurisdiction involves the inherent power of [a] court to decide a criminal case, whereas venue relates to the particular county or city in which a court with jurisdiction may hear and determine a case. Thus, any court authorized by the [state] Constitution, or a statute enacted pursuant thereto, to hear and determine a case involving a criminal act has jurisdiction thereof.
Dennis, 216 W. Va. at 342, 607 S.E.2d at 448 (internal quotations and citations omitted). See Willis v. O'Brien, 151 W. Va. 628, 630-31, 153 S.E.2d 178, 180 (1967) (Jurisdiction is a constitutional endowment of power to hear and determine a cause. Thus, any court authorized by the Constitution, or a statute enacted pursuant thereto, to hear and determine a case involving a criminal act has jurisdiction thereof. Venue, on the other hand, is merely the place of trial. It designates the particular county in which a court having jurisdiction may properly hear and determine the case.). (See footnote 17)
In the case of State v. Haase, 446 N.W.2d 62 (S.D. 1989), the Supreme Court of South Dakota addressed the distinction between venue and jurisdiction as follows:
Jurisdiction is made up of two components, i.e., (a) personal jurisdiction and (b) subject-matter jurisdiction. . . . A court must have both personal and subject-matter jurisdiction before it may act on a criminal charge. . . . A court acquires personal jurisdiction by the accused's presence before the court, irrespective of the events procuring his presence. . . . Subject-matter jurisdiction entails the power of a court to hear a case, determine the facts, apply the law and set a penalty. . . . Subject-matter jurisdiction cannot be conferred by agreement, consent, or waiver. . . . A judgment rendered by a court without jurisdiction to pronounce it is wholly void and
without any force or effect whatever. . . . Jurisdiction may be challenged at any time during the pendency of the proceedings and for the first time on appeal. . . .
Venue is another matter. It refers to the county in which the prosecution is to be brought. . . . Generally, this will be the county in which the offense is alleged to have been committed. . . . However, unlike jurisdiction which cannot be conferred by waiver, . . . the right to venue of a prosecution in the county where the offense was committed can be waived by a defendant and the prosecution may proceed in another county. . . . Were the rule otherwise, a change in venue would not be possible. . . . In summation, subject matter jurisdiction cannot be waived, but venue can be waived.
. . .To be sufficient, a venue allegation must appear in an
indictment or information that the offense charged was
committed in the county in which the prosecution is
instituted. . . . Thus, if an indictment or information fails to
contain such an allegation, the defect must be raised prior to trial
or is deemed waived. . . .
Haase, 446 N.W.2d at 64-65 (internal quotations and citations omitted).
In the context of criminal litigation, federal courts have taken the position that [v]enue is not jurisdictional[.] United States v. Calderon, 243 F.3d 587, 590 (2nd Cir. 2001). See also United States v. Evans, 62 F.3d 1233, 1236 (9th Cir. 1995) (Strictly speaking, this is a matter of venue, not jurisdiction, because this constitutional right can be waived.); Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir. 1981) (Venue in federal criminal cases . . . is not jurisdictional.); United States v. Walden, 464 F.2d 1015, 1016 n.1 (4th Cir. 1972) ([I]mproper venue is not a jurisdictional defect[.]). Consequently, all federal appellate courts hold that the issue of venue is waived if not raised prior to trial. See, e.g., United States v. Collins, 372 F.3d 629, 633 (4th Cir. 2004); United States v. Perez, 280 F.3d 318, 328 (3rd Cir. 2002); United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002); United States v. Johnson, 297 F.3d 845, 861 (9th Cir. 2002); United States v. Roberts, 308 F.3d 1147, 1151-52 (11th Cir. 2002); United States v. LiCausi, 167 F.3d 36, 44 (1st Cir. 1999); United States v. Cordova, 157 F.3d 587, 597 n.3 (8th Cir. 1998); United States v. Miller, 111 F.3d 747, 750 (10th Cir. 1997); United States v. Brandon, 50 F.3d 464, 469 (7th Cir. 1995); United States v. Wilson, 26 F.3d 142, 151 (D.C. Cir. 1994); United States v. Khan, 821 F.2d 90, 93 (2nd Cir. 1987); United States v. Burkhart, 501 F.2d 993, 996 (6th Cir. 1974).
Consequently, we hold that, for the purposes of Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure, venue is not jurisdictional; therefore, a defect in a charging instrument involving venue is subject to waiver if not asserted prior to trial. See Dean v. State, 414 So. 2d 1096, 1099 (Fla. Dist. Ct. App. 1982) ([I]nsufficient allegations of venue in an information are subject to being waived[.]). Insofar as venue is not jurisdictional, Tommy cannot rely upon the jurisdictional exception to waiver contained in Rule 12(b)(2).
2. The absence of a statement of venue does not mean that an offense was not charged. Under Rule 12(b)(2), if a charging instrument fails to set out an offense for which a defendant is prosecuted, such a defect may be raised at any time. See Cleckley, Criminal Procedure, p. I-687 (Rule 12(b)(2) properly interpreted means that an objection to an information or indictment on the ground that it fails to charge an offense may be raised for the first time on appeal.). Tommy takes the position that failure to set out venue in the petition was tantamount to failing to state an offense. We disagree.
In State v. Burton, this Court stated that venue is not a fact which relates to the guilt or innocence of the accused. It is therefore not a substantive element of the crime[.] 163 W. Va. 40, 59-60, 254 S.E.2d 129, 141 (1979). See also United States v. Zidell, 323 F.3d 412, 421 (6th Cir. 2003) ([V]enue is not properly considered a true 'element' of a criminal offense.); United States v. Carreon-Palacio, 267 F.3d 381, 391 (5th Cir. 2001) ([V]enue differs in substance from statutory offense elements.); Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir. 1981) (Venue is wholly neutral; it is a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused.). In finding that venue was not a substantive element of an offense, Burton went on to hold that [t]he State in a criminal case may prove the venue of the crime by a preponderance of the evidence, and is not required to prove the same beyond a reasonable doubt. Syl. pt. 5, Burton, 163 W. Va. 40, 254 S.E.2d 129. Federal courts also hold that when proving a non-essential element of a crime, like venue, the government need only meet the preponderance of evidence standard. United States v. Stickle, 454 F.3d 1265, 1273 (11th Cir. 2006). Accord United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005); United States v. Strain, 396 F.3d 689, 692 n.3 (5th Cir. 2005); United States v. Morgan, 393 F.3d 192, 195 (D.C. Cir. 2004); United States v. Perez, 280 F.3d 318, 330 (3rd Cir. 2002); United States v. Matthews, 168 F.3d 1234, 1246 (11th Cir. 1999); United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir. 1996); United States v. Rosa, 17 F.3d 1531, 1541 (2nd Cir. 1994); United States v. Delgado, 914 F.2d 1062, 1064 (8th Cir. 1990); United States v. Rodgers, 755 F.2d 533, 549 n.19 (7th Cir. 1985); United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985); United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974); United States v. Charlton, 372 F.2d 663, 665 (6th Cir. 1967).
The above authorities support and we accordingly hold that, for the purposes of Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure, venue is not an essential element of an offense; therefore, a defect in a charging instrument involving venue is subject to waiver if not asserted prior to trial. This does not, however, relieve the State of its burden of proving venue at trial in every case by a preponderance of the evidence. See United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974) ([V]enue, since it may be waived, is not an essential fact constituting the offense charged.). In the instant proceeding, the absence of a statement of venue in several of the counts in the petition did not mean that the State failed to charge an offense. (See footnote 18) Consequently, Tommy cannot rely upon the offense charged exception to waiver contained in Rule 12(b)(2). (See footnote 19)
3. Good cause was not shown. Rule 12(b)(2) grants trial courts discretion, upon a showing of good cause, to allow a defendant to raise an otherwise untimely challenge to a charging instrument. Tommy failed to present the trial court with any reason for failing to timely move to dismiss the petition. Indeed, Tommy has failed to proffer in this appeal any reason for failing to timely challenge the petition on the issue of venue. Therefore, the good cause exception of Rule 12(b)(2) has no application in this case. (See footnote 20)
In sum, [a]s to the first point on appeal we [conclude] that [Tommy] may not now challenge his [adjudication and disposition] on the grounds that [the petition] fails to allege venue because he failed to raise the issue by pre-trial motion. Tucker v. State, 417 So. 2d 1006, 1009 (Fla. Dist. Ct. App. 1982).
The next issue raised by Tommy is that the trial court committed error in failing to exclude two jurors for cause. During voir dire of the jury panel, it was learned that one juror, Sandra Jones, was an employee of the Clay County Board of Education and that she worked with the complaining witness, Mr. Haynie. Voir dire also evidenced that a second juror, Barbara Sizemore, was the mother of a former deputy sheriff of Clay County. (See footnote 21) Tommy contends that both jurors should have been struck for cause.
The problem with Tommy's argument is that the record reveals that the trial court was never asked to strike either juror for cause. At the conclusion of voir dire the following exchange occurred:
Judge: Would counsel approach? Any motions for cause? Mr. Grindo? Mr. Karickhoff?
Karickhoff: (inaudible). . .
Judge: Ok, I assume the jury is qualified. And how long does [sic] the parties need to strike the jury?
Tommy contends that because of the inaudible portion of the above transcript, it is unclear whether his counsel asked the court to remove the two jurors for cause. (See footnote 22) We do not read the above passage so narrowly. The last response of the trial court clearly reveals that no objection for cause was made.
The proper time to make a challenge for cause is before the jur[y] is sworn to try the issue. Cleckley, Criminal Procedure, p. I-894. We have held that [t]he right of challenge, where it exists must be exercised [timely], and if not so exercised, the objection is unavailing to set aside the verdict. State v. Hayes, 109 W. Va. 296, 303, 153 S.E. 496, 499 (1930) (internal quotations and citation omitted). See also Syl. pt. 4, State v. Cooper, 74 W. Va. 472, 82 S.E. 358 (1914) (One accused of a felony waives his right of challenge, and will not, after verdict, be heard to complain, if, with knowledge of the disqualification, he remains silent or refuses, when afforded an opportunity, to exercise his right thereto.). In other words, and we so hold, when a defendant has knowledge of grounds or reason for a challenge for cause, but fails to challenge a prospective juror for cause or fails to timely assert such a challenge prior to the jury being sworn, the defendant may not raise the issue of a trial court's failure to strike the juror for cause on direct appeal. (See footnote 23) The reason for the waiver rule was addressed by a Missouri Court of Appeals in State v. Marlow, 888 S.W.2d 417 (Mo. Ct. App. 1994), as follows:
When the defendant is aware of facts which would sustain a challenge for cause, he must present his challenge during the voir dire examination or prior to the swearing of the jury, otherwise, the point is waived. . . . This requirement of contemporaneous objections to the venireperson's qualifications serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction attack on the jury selection process. . . .
Marlow, 888 S.W.2d at 420 (internal quotations and citations omitted). See also Daniels v.
State, 275 So. 2d 169, 172 (Ala. Crim. App. 1973) ( [F]ailure of the appellants to raise the
question of the disqualification of the juror . . . before trial by advising the court or making
some appropriate objection or motion to invoke a ruling by the court, was a waiver.); People
v. Henry, 627 N.E.2d 225, 227-28 (Ill. App. Ct. 1993) ([T]he defendant did not ask the court
to disqualify [the juror]. . . . Accordingly, he waived his statutory right to such a
challenge.); Langston v. State, 791 So. 2d 273, 281 (Miss. Ct. App. 2001) (If a party fails
to object to a juror before the jury is empaneled, that party waives any right to complain of
the jury's composition at a later time.); Syl. pt. 2, State v. Harris, 167 N.W.2d 386 (Neb.
1969) (A defendant who fails to challenge jurors for disqualification and passes the jurors
for cause waives his right to object to their selection and cannot later object after receiving
an unfavorable verdict.); Childress v. State, 1 P.3d 1006, 1016 (Okla. Crim. App. 2000)
([A]ny objection to the trial court's refusal to remove prospective juror . . . for cause is
waived, because defense counsel did not renew his challenge for cause prior to passing the
jury.); Gaona v. State, 733 S.W.2d 611, 618 (Tex. Crim. App. 1987) ([A]ppellant waived
any error by failing to inquire about the juror's qualifications during voir dire examination
and by failing to assert his challenge at that time.); In re Nash, 614 A.2d 367, 372 (Vt. 1991)
(The right to challenge a juror is waived by a failure to object before the jury is impaneled
if the basis for the objection is known or might, with reasonable diligence, have been
discovered during voir dire.); State v. Brunette, 583 N.W.2d 174, 179 (Wis. Ct. App. 1998)
([A] defendant waives an objection to a juror's bias if no motion is made to the trial court
to remove the juror for cause.); Munoz v. State, 849 P.2d 1299, 1302 (Wyo. 1993)
(Appellant waived his claim to reversible error with respect to his challenges [for cause] . . .
by passing the jury panel for cause.).
In the instant case, [b]y failing to challenge [for cause] when requested, [Tommy] waived his right thereto. State v. Cooper, 74 W. Va. 472, 474-75, 82 S.E. 358, 359 (1914). Therefore, we need not determine whether the jurors should have been removed for cause.
C. Failure of the Trial Court to Grant a Mistrial
The last issue raised by Tommy is that he is entitled to a new proceeding because jurors may have seen him wearing shackles and institutional clothing. (See footnote 24) In support of this assignment of error, Tommy cites to two decisions by the United States Supreme Court addressing the issue of shackling and institutional clothing, Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005), and Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). This assignment of error has no merit on its face.
Neither Deck nor Estelle is applicable to the facts of this case. In Deck, the Supreme Court indicated that, during the sentencing phase of a capital prosecution, a defendant should not, without justification, be shackled while in the courtroom. In Estelle, the Supreme Court indicated that a defendant being tried by a jury should not be required to wear prison garb while in the courtroom. Neither Deck nor Estelle, or any court in the country for that matter, prohibits transporting a prisoner to a courthouse wearing prison garb or shackles. Any rule to the contrary would be ludicrous.
In the instant proceeding, Tommy concedes that he was not dressed in institutional clothing while in the courtroom, nor was he wearing any physical restraints while in the courtroom. Further, Tommy does not state that a juror saw him while he was in the courthouse wearing institutional clothing and shackled. Tommy would have this Court grant him a new delinquency proceeding based upon the mere possibility that a juror might have seen him in the courthouse wearing institutional clothing and shackled. We decline to do so on such speculative grounds.