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State v. McClung

Supreme Court of West Virginia

February 23, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Amy R. McClung, Defendant Below, Petitioner

         Greenbrier County 15-F-23

          MEMORANDUM DECISION

         Petitioner Amy R. McClung, by counsel Scott E. Johnson, appeals the Circuit Court of Greenbrier County's April 19, 2016, order sentencing her to an indeterminate term of not less than one nor more than five years of incarceration following her unlawful assault conviction. Respondent State of West Virginia, by counsel David A. Stackpole, filed a response. On appeal, petitioner argues that the circuit court abused its discretion by failing to quash the jury panel after a prospective juror stated that he considered the assistant prosecuting attorney representing the State to be honest.

         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.

         On February 3, 2015, petitioner was indicted on one count of malicious assault. Petitioner's trial commenced on July 14, 2015. During voir dire, the following exchange ensued between the circuit court and David Kirby, a prospective juror:

THE COURT: . . . The State is represented by Pat Via, who's the Prosecuting Attorney in this county, and Ryan Blake, who is the Assistant Prosecuting Attorney. I think everyone has seen him as he has stood. Anyone did not see his face? In the back? Okay.
Are any of you related to him, by blood or marriage?
Do any of you have any business or social relationship with him? Yes, sir.
MR. KIRBY: We attended high school together, graduated, were in the band together.
THE COURT: Mr. Workman?
MR. KIRBY: Kirby.
THE COURT: Kirby, excuse me. So you were in the same class?
MR. KIRBY: Yeah, from seventh grade through high school graduation.
THE COURT: Were you close friends?
MR. KIRBY: Not close, but we were ...

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