WORKMAN, Justice:

This case is before the Court upon an Order of the Circuit Court of Greenbrier County, West Virginia, certifying questions concerning the upcoming retrial of the mercy phase of the Defendant's,1 Billy Ray McLaughlin's, first degree murder case. After examining the briefs submitted,2 hearing oral arguments and reviewing the relevant law, the Court has reformulated the questions with answers as explained in detail below.3

I. Facts and Proceedings Below

On April 4, 1995, the Defendant was indicted for the first degree murder of his wife in Pocahontas County, West Virginia.4 At his trial, the Defendant was convicted of first degree murder without a recommendation of mercy and sentenced to life without mercy. This conviction came after the jury was instructed that if it recommended mercy, the Defendant would be eligible for parole in ten years;5 however, at the time, West Virginia Code § 62-3-15 (2005)6 had been amended and required the Defendant to serve fifteen years before becoming eligible for parole. The Defendant was subsequently sentenced to life in prison without the possibility of parole. His direct appeal was refused by the Court (5-0).

On August 28, 1998, the Defendant filed a petition for writ of habeas corpus in Fayette County, West Virginia, which was transferred to Greenbrier County.7 In his habeas petition, the Defendant alleged that he was denied his right to due process when the trial court erroneously instructed the jury that if it recommended mercy, he would be eligible for parole in ten years when, in fact, he would be required to serve fifteen years before becoming eligible for parole. Based upon State v. Doman, 204 W.Va. 289, 512 S.E.2d 211 (1998)(per curiam),8 the circuit court agreed that the instruction was erroneous and granted habeas relief to the Defendant in the form of a new trial solely on the issue of whether he should receive a recommendation of mercy.

The Defendant appealed the circuit court's habeas decision to this Court, arguing that he should be granted a new trial on all issues. The appeal was refused. The Defendant then filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on February 21, 2006. See McLaughlin v. McBride, 546 U.S. 1186, 126 S.Ct. 1366, 164 L.Ed.2d 75 (2006).

During the pretrial proceedings for the retrial of the mercy phase, the trial court certified three questions regarding the retrial.9 The questions posed by the trial court are as follows:

II. Standard of Review

In syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), this Court held that "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Id. Likewise, a de novo standard of review governs the interpretation of any statutory provision as it involves a purely legal question. Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 466 S.E.2d 424 (1995). Applying the foregoing de novo standard of review, the Court examines the certified questions posed and answered by the circuit court.

III. Discussion of Law

A. Certified Question 1

The first question the Court10 addresses is whether West Virginia Code § 62-3-15 unconstitutionally shifts the burden of persuasion11 on the issue of mercy to the defendant in the penalty phase of a case?12 The parties agree that neither has the burden of proof in a bifurcated mercy proceeding under the provisions of West Virginia Code § 62-3-15. While the circuit court phrased the first certified question in terms of the constitutionality of the statute, it is important to note at the outset that the constitutionality of West Virginia Code § 62-3-15 has been upheld by this Court in several decisions.13 Indeed, the issue is so-well-settled that in State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), the Court stated that "[f]urther inquiry and evaluation of the statute's constitutionality hardly would be worth the effort, resources, and costs." Id. at 313, 470 S.E.2d at 632.

Notwithstanding the fact that the constitutionality of West Virginia Code § 62-3-15 is well-established, the statute does not expressly address which party has the burden of proof as to the sentencing phase of the jury deliberations. The trial court specifically found that the statute was unconstitutional, stating that:

The trial court's reliance upon LaRock in reaching its answer that the provisions of West Virginia Code § 62-3-15 unconstitutionally shifts the burden of proof to the defendant is misplaced. Significantly, in LaRock, which was authored by Justice Cleckley, not Justice Davis, there is absolutely no discussion or suggestion that the provisions of West Virginia Code § 62-3-15 are unconstitutional because the statute shifts the burden of "disproving a material element of the State's case" to the defendant as the trial court found in the case sub judice. Rather, in LaRock, the issue before the Court was whether the consolidation of both the guilt and sentencing phases effectively denied the defendant a fair trial. 196 W.Va. at 313, 470 S.E.2d at 632. The defendant argued that the statute should be construed to permit discretionary bifurcation. Id. This Court agreed, holding that "[a] trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy." 196 W.Va. at 299, 470 S.E.2d at 618, Syl. Pt. 4.

Subsequent to LaRock, in State v. Rygh, 206 W.Va. 295, 524 S.E.2d 447 (1999), this Court found in footnote one that there is no "burden of proof" relative to the mercy recommendation. Rather, the Court opined:

206 W.Va. at 297 n. 1, 524 S.E.2d at 449 n. 1.

Based upon the foregoing, the Court now holds that the provisions of West Virginia Code § 62-3-15 do not place a burden of proof on either the State or the defendant for the mercy phase of a first degree murder trial where that phase is bifurcated. Because of the lack of a burden of proof in the bifurcated mercy phase of a first degree murder trial, the circuit court incorrectly found that there was an unconstitutional shifting of the burden of proof from the State to the Defendant.

B. Certified Question 2

The next certified question is whether the jury's verdict must be unanimous in a bifurcated mercy phase of a first degree murder trial? The circuit court found that "insofar as the language of Chapter 62 Article 3 Section 15 of the West Virginia Code may permit a decision of less than a unanimous verdict by a jury finding beyond a reasonable doubt that a defendant is not entitled to a recommendation of mercy, such would be unconstitutional." While the Defendant advocates for a unanimous jury verdict on the issue of mercy, the State does not appear to take a clear position either way. The State maintains, however, that if the jury verdict for the mercy determination must be unanimous, then juries should be so instructed regardless of whether a bifurcated trial or a unitary trial occurs.

The answer to this question is found in the West Virginia Rules of Criminal Procedure. In West Virginia Rule of Criminal Procedure 31, provides that in a criminal trial, "[t]he verdict shall be unanimous. It shall be returned by the jury to the judge in open court." Id. As the Court previously held in syllabus point one of State v. Tennant, 173 W.Va. 627, 319 S.E.2d 395 (1984), "Rule 31 of the West Virginia Rules of Criminal Procedure, which is modeled after Rule 31 of the Federal Rules of Criminal Procedure, mandates that the verdict in a criminal case be unanimous and provides a procedure for ensuring that the verdict is unanimous, i.e., the jury poll."15 There is no limitation in Rule 31 that indicates that it only applies to the guilt phase of trials and not to the mercy phase where bifurcation has occurred. Accordingly, we hold that consistent with the provisions of West Virginia Rule of Criminal Procedure 31, a jury verdict in a bifurcated mercy phase of a first degree murder trial must be unanimous.16

C. Certified Question 3

The third certified question is whether the jury that determines guilt must be the same jury that determines the issue of mercy in a first degree murder case? The circuit court answered this certified question in the negative, stating that "[t]his Court realizes this issue has not been ruled on specifically in a syllabus point, but our State Supreme Court has ruled the same jury on the issue of guilt does not have to be the same jury determining mercy."

The Defendant asserts that while the Court has implicitly ruled in Doman that the jury that determines guilt does not have to be the same jury that determines the issue of mercy, the Doman decision should be reconsidered and overruled. 204 W.Va. 289, 512 S.E.2d 211. According to the Defendant, the provisions of West Virginia Code § 62-3-15 require that the same jury make both findings regarding guilt and mercy. Further, the Defendant asserts that to the extent that this Court found differently in Doman, the constitutional doctrine of separation of powers was violated, because the Court effectively rewrote the statute. Finally, relying upon the United States Supreme Court decision in Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), the Defendant argues that the provisions of West Virginia Code § 62-3-15 give the Defendant a due process right to have his guilt and the issue of mercy decided by the same jury.

In contrast, the State contends that the Defendant essentially is trying to elevate to constitutional status an argument which is really one of statutory construction "by making the sweeping pronouncement that he `has a state and federal constitutional due process right to be sentenced according to the statutory procedure of W. Va.Code § 62-3-15, which requires that any decision as to mercy be part of a new trial on guilt/innocence.'"

The Defendant's argument is fatally flawed because it is based upon an erroneous reading of the provisions of West Virginia Code § 62-3-15. West Virginia Code § 62-3-15 provides, in pertinent part, that

Id. (emphasis added). The Defendant posits that by the Legislature's use of the phrase "the jury," the Legislature meant "the same jury." Thus, the Defendant reads into the statute the word "same," which simply does not exist.

"Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). There is a lack of any argument before the Court that the provisions of West Virginia Code § 62-3-15 are ambiguous. This Court's function, therefore, is to accept the plain meaning of West Virginia Code § 62-3-15 without resorting to any interpretation. Id. The plain meaning of the phrase "the jury" is "[a] group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them." Black's Law Dictionary 934 (9th ed.2009). Absent from this plain meaning, as well as the entire statute, is language which indicates that the jury which decides a defendant's guilt must be the same jury that decides whether to recommend mercy if a defendant is convicted of first degree murder.17

This Court has considered this question of whether different juries can decide the guilt phase and the mercy phase on three occasions. In three separate opinions, the Court has upheld remand of the case for a new trial on the mercy phase with a new jury, where the first degree murder conviction otherwise was valid.

The first case in which the Court delved into this issue is Doman, a case closely akin to the instant matter. The defendant in Doman was convicted of first degree murder and sentenced to life imprisonment without mercy. 204 W.Va. at 290, 512 S.E.2d at 212. On appeal, the defendant claimed that his conviction should be reversed because the circuit court improperly instructed the jury on when the defendant would be eligible for parole if he received a recommendation of mercy. Id.

The Court agreed and reversed and remanded the case, in part, for a new trial on the sole question of whether the defendant should receive mercy. The Court based its decision to reverse only on this question, stating that "we cannot see how the improper instruction affected the jury's underlying conclusion that the appellant was guilty of the crime charged." Id. at 292, 512 S.E.2d at 214. Thus, relying on this Court's decision in LaRock, which provided for the bifurcation of the guilty phase and the recommendation of mercy phase of the jury, the Court stated that:

Id.

Then, in State v. Finley, 219 W.Va. 747, 753, 639 S.E.2d 839, 845 (2006), cert. denied, 549 U.S. 1298, 127 S.Ct. 1860, 167 L.Ed.2d 351 (2007), the guilty phase and the mercy phase of the defendant's trial for first degree murder and sexual assault in the second degree were bifurcated. During the mercy phase of the proceeding, the trial court denied the defendant's motion to wear civilian clothing, thereby essentially compelling him to wear prison garb during the penalty phase. Id. at 749, 639 S.E.2d at 841. On appeal, the defendant asserted that if the Court found that the penalty phase was fatally flawed due to the trial court's ruling, requiring the appellant to wear prison clothing during the penalty phase, then "the only proper remedy is a new trial and not simply a remand for retrial of the mercy determination." Id. at 753, 639 S.E.2d at 845. The defendant argued, similar to the Defendant's argument herein, that the language of West Virginia Code § 62-3-15 "mandates that the same jury which determines the issue of guilt must also be the jury that decides the issue of mercy." 219 W.Va. at 753, 639 S.E.2d at 845.

While the Court found that the penalty phase was flawed due to the trial court requiring the defendant to wear prison attire, the Court rejected the defendant's interpretation of the statutory provision, which would have required the entire conviction to be set aside. Instead, just as in Doman, the Court set aside the defendant's penalty phase recommendation. Id. In so doing, the Court instructed:

Id.

Most recently, in State ex rel. Shelton v. Painter, 221 W.Va. 578, 655 S.E.2d 794 (2007), relying on the early cases of Doman and Finley, the Court stated:

221 W.Va. at 586, 655 S.E.2d at 802.

Consequently, this Court has on three occasions allowed for the sole retrial of the penalty phase where there is no reason to reverse the conviction. By so doing, the Court has implicitly construed the provisions of West Virginia Code § 62-3-15 to mean that a different jury than that which decided the guilt phase of a first degree murder case can be used to decide the mercy phase of the case, and that the phrase "the jury" in West Virginia Code § 62-3-15 refers to the jury in the conceptual and institutional sense. The Court, therefore, now holds that the provisions of West Virginia Code § 62-3-15 do not require that the jury that decides the guilt phase of a first degree murder case must also be the same jury that decides the mercy phase of the case. While it should be a rarity that a different jury is used, it sometimes becomes a necessity in cases such as the instant one where there are no meritorious grounds to overturn the underlying conviction and the defendant is only entitled to a retrial on the mercy phase. The circuit court correctly answered this question.

D. Certified Question 4

The last certified question asks whether the prosecution is limited in the mercy stage of a bifurcated trial to the presentation of evidence introduced in the guilt phase of trial and rebuttal of evidence presented by the defendant? The circuit court found that the burden of proof is on the State and, therefore, the State is required to present its case first. This answer, however, does not answer the question presented. The Defendant posits that "the trial court has, however, effectively answered the question in the negative by its ruling that the State may present additional Rule 404(b), WVRE, witnesses that did not testify at McLaughlin's original trial." The Defendant argues that this type of evidence should not be allowed where it was not offered in the original trial.18 The State does not really take a specific position on this particular evidence, but simply defers to the discretion of the trial court's evaluation on the admissibility of the evidence. The State does reiterate that there is no burden of proof at this stage; however, the State asserts that logic dictates that the Defendant would ordinarily go first. The State also offers that since in this case, the jury that determined guilt is not the same jury that will decide mercy, the trial court should be given the discretion to decide how much, if any, trial evidence should be re-presented to the jury in order to demonstrate the circumstances of the crime before the Defendant presents evidence relevant to mercy. Alternatively, the State suggests that the trial court could instruct the jury at the outset that another jury has found the Defendant guilty beyond a reasonable doubt of the crime, and that this trial is solely for the purpose of deciding whether the Defendant is entitled to mercy making him eligible for parole after fifteen years.

The Court has discussed in several opinions the scope of evidence which may be admitted during the mercy phase of a bifurcated first degree murder proceeding. For instance, the Court has stated that

Rygh, 206 W.Va. at 297 n. 1, 524 S.E.2d at 449 n. 1 (emphasis added).19

In Finley, the Court, however, stated that

219 W.Va. at 752, 639 S.E.2d at 844.

Further, in a dissenting opinion to Schofield v. West Virginia Department of Corrections, 185 W.Va. 199, 406 S.E.2d 425 (1991) (Workman, J., dissenting), the following rationale for a bifurcated proceeding was set forth:

Id. at 207, 406 S.E.2d at 433.

Just recently, the Court in State ex rel. Dunlap v. McBride, 225 W.Va. 192, 691 S.E.2d 183 (2010), addressed the appellant's arguments stemming from the denial of his petition for habeas corpus relief that the underlying criminal trial for first degree murder20 was improperly bifurcated and that evidence was improperly admitted during the penalty phase.21 The trial court in Dunlap ruled, prior to trial, that during the guilt phase of trial the State could present evidence in its case-in-chief that the appellant previously tried to slash the throat of his former wife, Betty Yates, and that he was incarcerated for over two years for stabbing his former wife. Id. at ___, 691 S.E.2d at 191.

Once the trial began, the State moved the court to introduce additional prior bad acts by the defendant against Ms. Yates. Id. The trial court denied the motion as untimely Rule 404(b) evidence. Id.; see W. Va. R. Evid. 404(b). The State then moved the court to bifurcate the trial so that the additional bad acts could be used during the sentencing phase. Id. at ___, 691 S.E.2d at 191-92. The trial court initially denied the motion; however, once the defendant's former wife began to testify, the State moved the trial court again to bifurcate. The trial court took the State's motion under advisement. Id. at ___, 691 S.E.2d at 192. After the defendant put on his case-in-chief, the State called rebuttal witnesses. The State again moved the trial court to bifurcate the trial. The trial court ultimately granted the State's motion and, in so doing, gave the defendant several days to prepare for the sentencing hearing before the jury. Id.

The Court upheld the trial court's ruling, finding that the decision to bifurcate was within the trial court's discretion pursuant to the Court's decision in LaRock, 196 W.Va. at 299, 470 S.E.2d at 618, Syl. Pt. 4 ("A trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy."). The Court found that

Dunlap, 226 W.Va. at ___, 691 S.E.2d at 192 (emphasis added).

Further, the defendant argued that the State improperly was allowed to introduce evidence of other bad acts including numerous incidents of violent conduct by the defendant toward his former wife and their children during the penalty phase without the trial court conducting a McGinnis hearing. Id. The Court found no error, stating

225 W.Va. at ___, 691 S.E.2d at 193.

Based upon the foregoing, the Court holds that the type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendant's guilt or innocence. Admissible evidence necessarily encompasses evidence of the defendant's character, including evidence concerning the defendant's past, present and future, as well as evidence surrounding the nature of the crime committed by the defendant that warranted a jury finding the defendant guilty of first degree murder, so long as that evidence is found by the trial court to be relevant under Rule 401 of the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the West Virginia Rules of Evidence.

Finally, regarding whether the defendant or the State would first present evidence to the jury, as previously mentioned in Rygh, the Court indicated that "a defendant would ordinarily proceed first in any bifurcated mercy phase." 206 W.Va. at 297 n. 1, 524 S.E.2d at 449 n. 1. West Virginia Rule of Evidence 611(a) offers additional guidance on this issue as follows:

Further, just recently, in syllabus point two of State v. Fields, No. 34746, 225 W.Va. 753, 696 S.E.2d 269 (2010), the Court held that "[t]o safeguard the integrity of its proceedings and to insure the proper administration of justice, a circuit court has inherent authority to conduct and control matters before it in a fair and orderly fashion."

Under the provisions of West Virginia Code § 62-3-15,

Id.; see W. Va.Code § 61-2-2 (2005)("Murder of the first degree shall be punished by confinement in the penitentiary for life."). Given that under the foregoing statute, the punishment of life imprisonment upon conviction for first degree murder is fixed unless the jury, in its discretion, recommends mercy, it logically follows that the defendant should generally go first in offering argument and evidence to the jury in his or her quest to show the jury why it should recommend mercy. See id.; W. Va.Code § 62-3-15. Thereafter, the State would be allowed to offer any impeachment or rebuttal evidence as warranted by evidence offered by the defendant, including, but not limited to, evidence surrounding the nature of crime committed, as well as evidence of other bad acts. The defendant then would have the last opportunity to offer any evidence to refute that offered by the State, and have the last argument to the jury before it would make the mercy determination.

The Court, therefore, now holds that in the mercy phase of a bifurcated first degree murder proceeding, the defendant will ordinarily proceed first; however, the trial court retains the inherent authority to conduct and control the bifurcated mercy proceeding in a fair and orderly manner.

IV. Conclusion

Having answered the certified questions herein, this case is dismissed from the docket of this Court.

Certified questions answered.

Justice KETCHUM dissents and reserves the right to file a dissenting opinion.

KETCHUM, J., dissenting:

I dissent from the majority's opinion for two reasons.

First, the statute pertaining to the verdict and sentencing in murder cases, W.Va.Code, 62-3-15 [1965], does not provide for bifurcated trials. The statute speaks of one trial by one jury. It simply says that if a person is indicted for murder, the jury must (1) decide if the person "is guilty of murder of the first degree or second degree," and (2) if the person is adjudged guilty of murder of the first degree, "the jury may, in their discretion, recommend mercy[.]" There is nothing in the statute clearly saying a trial must be split into two parts, or worse, that the two parts can be tried by two separate juries.

I concede that the statute could be read— if it is constitutionally necessary for a fair trial—to allow bifurcated trials. And that brings me to the second reason for my dissent: I don't believe bifurcation gives criminal defendants a fair trial.

When this Court adopted discretionary bifurcation of the penalty and mercy phases of murder trials in 1996,1 it adopted an idyllic academic dream into our jurisprudence. The problem is that, in reality, it created a procedural nightmare that allows the State to introduce egregious, formerly inadmissible, "bad character" evidence at the penalty phase of the trial.

In a unitary trial, it is the option of the defendant as to whether evidence of the defendant's good character will be introduced at trial. If the defendant introduces character evidence, then the door is opened to the prosecutor to rebut that evidence with something to show the defendant's bad character.

The lofty, ivory tower theory behind bifurcation is that it would help defendants in their quest to introduce evidence of good character. What happens in reality is that prosecutors encourage and seek bifurcation, and then use that bifurcated system to initiate the introduction of character evidence— before the defendant ever opens the door by introducing any character evidence. What I believe bifurcation has really done is assist West Virginia's prosecutors in their quest to bury defendants in irrelevant, misleading evidence of the defendant's bad character. Prosecutors proffer witnesses who know the defendant kicked a dog 20 years ago, or saw the defendant jaywalk on the way to the courthouse, or heard the defendant say an unkind word to his mother, and then argue to the jurors, "Is this the kind of person we ever want walking our streets?"

Unitary trials worked without a hitch until LaRock was decided in 1996. Since then, I believe first degree murder trials have become a legal nightmare. The facts of the case sub judice (and the cases mentioned in footnote 2) are typical examples. I have tried many unitary murder trials as a lawyer, and I never saw the procedural or evidentiary problems like we are now experiencing. The jury that heard the facts surrounding the crime determined mercy, not another jury many years later.

My practical experience taught me that one juror could shift the verdict from a lifetime-in-prison murder verdict, to a verdict of murder with mercy where the defendant had a shot at release in the future. Under a bifurcated system, where separate juries are adjudicating guilt and the penalty, that leverage by the defendant is largely lost. The second, penalty-phase jury begins knowing the defendant is guilty of murder, and the only question they must unanimously resolve is whether the defendant is entitled to mercy. The defendant begins this second phase essentially judicially stripped of his or her constitutional "benefit of the doubt," which is exactly the opposite what is supposed to occur under W.Va.Code, 62-3-15.

In LaRock and its progeny, the Court obviously was trying to ensure that defendants got a fair trial. The problem is, I think the bifurcated process that resulted is pretty much ensuring that defendants aren't getting a fair trial.

Accordingly, I respectfully dissent.