Rory Perry: Topics-Criminal

First seven opinions of the September 2008 term

Thu, 16 Oct 2008 13:48:15 GMT

Summaries of the first seven opinions issued in the September 2008 term of court were posted today. One opinion, Savarese v. Allstate, resolved a case that was argued in the January term of court. Unless otherwise stated, in all opinions issued this term, Justice Albright is not participating and Senior Status Justice McHugh is sitting by temporary assignment.

The final day of arguments in the September term of court is Tuesday, October 29.

Jnauary term opinions summarized

Wed, 16 Jul 2008 17:49:23 GMT

Posted today were summaries of each of the 66 opinions issued in the January 2008 term of court, comprising 26 signed opinions and 40 per curiam opinions.

CASES HELD OVER: Four cases submitted for decision in the January 2008 term of court were held over, with an opinion to issue during the September term. Those cases are: (1) SAVARESE v. ALLSTATE INS. CO., No. 33443(Argued January 23, 2008); (2) RASHID v. TARAKJI, No. 33596 (Argued April 1, 2008); (3) STATE EX REL. HATFIELD v. PAINTER, No. 33668 (Argued April 16, 2008); (4) LAWYER DISC. BD. v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing. The case was re-argued on May 25, 2008. Thereafter, Chief Justice Maynard recused himself from the case, and the case will be set for a second re-argument in the September term.)

CRIMINAL :: Unauthorized entry not element of daytime burglary

Wed, 16 Jul 2008 17:39:24 GMT

STATE v. JOSHUA LEE SLATER, No. 33659 (MAYNARD, C.J.)(Starcher, J., dissenting)(Benjamin, J., concurring)(June 9, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County for the offenses of kidnaping, domestic battery, wanton endangerment and daytime burglary by breaking and entering. Holding that unauthorized entry is not an element of the crime of daytime burglary by breaking and entering. Further holding that the circuit court properly sentenced the defendant to life with mercy on the kidnaping charge, where there was sufficient evidence for the jury to conclude that a concession was obtained. Further concluding that the sentence was within statutory limits and therefore not reviewable, that the jury's questions during deliberations were not the type requiring explanation beyond referring to the jury instructions, and that other objections to the jury instructions were waived by defense counsel.

CRIMINAL :: Insufficient evidence to support obstruction convictions

Wed, 16 Jul 2008 17:38:40 GMT

STATE v. WANDA CARNEY and BETTY JARVIS, No. 33522 (Per Curiam)(April 25, 2008). Reversing convictions for one count each of obstructing a police officer and conspiracy to obstruct a police officer. Because the conduct was effected without force, reiterating that any obstruction conviction must be supported by conduct that is unlawful or illegal. Holding that none of the three instances cited by the State involved illegal conduct, and there was no evidence that law enforcement's investigation was impeded. Because there is no evidence to support the obstruction convictions, the conspiracy conviction fails as well.

CRIMINAL :: Improper comment on defendant's silence

Wed, 16 Jul 2008 17:37:21 GMT

STATE v. MINDY KEESECKER, No. 33377 (Per Curiam)(Maynard, C.J., dissenting)(April 25, 2008). Reversing a jury conviction arising from the Circuit Court of Mercer County for six counts of sexual assault in the third degree. Holding that during closing argument the prosecutor improperly referred to the defendant's decision not to testify at trial. In light of the fact that the State's substantive evidence consisted only of the testimony of the victim and a prior written statement by the defendant, the prosecutor's statements were erroneous and prejudicial, and were not harmless error. Remanded for new trial.

CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support

Wed, 16 Jul 2008 17:36:25 GMT

STATE v. DAVID GABRIEL STAMM, No. 33505 (DAVIS, J.)(May 23, 2008). Reversing a conviction arising from the Circuit Court of Harrison County, for the felony offense of failure to meet an obligation to provide support to a minor under W. Va. Code 61-5-29. Holding, in syllabus point 5 that: "Insofar as W.Va. Code 61-5-29(3)(1999)(Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article II, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code 61-5-29, is unconstitutional and unenforceable. W. Va. Code Sections 61-5-29(1) and (2) remain fully enforceable." Under the circumstances of the case, further holding that a jury instructions did not render harmless the constitutional error of the burden-shifting statute, because the jury instructions could have misled the jury into believing that the defendant bore the burden of proof as to his ability to pay support. Remanded for a new trial.

CRIMINAL, EVIDENCE :: Proffer inadequate to defeat rape shield

Wed, 16 Jul 2008 17:34:55 GMT

STATE v. JOSHUA C. WEARS, No. 33529 (Per Curiam)(June 26, 2008). Affirming a conditional guilty plea arising from the Circuit Court of Putnam County for one count of Third Degree Sexual Assault. Holding that the circuit court properly excluded certain evidence related to prior sexual conduct of the victim, where despite ample opportunity the defendant did not produce a proffer of evidence that was adequate to overcome the rape shield statute.

CRIMINAL, EVIDENCE :: Clergy-communicant privilege, proof of age difference

Wed, 16 Jul 2008 17:33:58 GMT

STATE v. JOHN LOWERY, No. 33660 (Per Curiam)(May 27, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County on two felony counts of sexual assault in the third degree and two misdemeanor counts of sexual abuse in the third degree. Holding that admission of a pastor's testimony was proper because the defendant did not make any confidential communication or confession to the pastor witness that was revealed by the pastor's testimony. Further holding that the trial court properly decided not to declare a mistrial after an outburst by a spectator, where the trial court immediately ejected the spectator and gave the jury a curative instruction. Finally holding that the four-year age difference required under the felony counts was adequately proven by the State's evidence that the victim was fifteen, the jury's ability to observe the appearance of the defendant, and the jury's knowledge of the fact that the defendant was married with children.

CRIMINAL, EVIDENCE :: Expert testimony on diminished capacity

Wed, 16 Jul 2008 17:32:58 GMT

STATE v. DREU FERGUSON, JR., No. 33530 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Mason County that denied a motion for new trial following a jury conviction for voluntary manslaughter. Holding that the circuit court improperly struck expert testimony presented by the defendant. Holding that the expert testimony sufficiently set forth that the defendant's mental state at the time of the crime would have prevented him from forming intent to kill, thus establishing the diminished capacity defense. Remanded for new trial.

CRIMINAL, EVIDENCE :: Invited error, intrinsic evidence

Wed, 16 Jul 2008 17:32:11 GMT

STATE v. HAROLD LEE CYRUS, No. 33453 (Per Curiam)(February 20, 2008). Affirming an order of the Circuit Court of Mercer County imposing sentence on two counts of sexual abuse by a custodian and two counts of incest. Holding that the state did not improperly present expert testimony of a CPS worker and a nurse practitioner. Holding at the witnesses were presented as fact witnesses by the state, and that expert testimony was elicited by the defendant's counsel on cross examination, and was therefore invited error. Further holding that evidence of abuse in McDowell County was intrinsic evidence not subject to Rule 404(b). Finally holding that there was no error in the admission of evidence from abuse & neglect proceedings, where both the state and the defendant relied upon those proceedings.

CRIMINAL, EVIDENCE :: Consumption of evidence and defendant's ability to test

Wed, 16 Jul 2008 17:31:23 GMT

STATE EX REL. RONALD W. HOLCOMB v. SADLER, No. 33669 (Per Curiam)(February 15, 2008). Denying a writ of prohibition sought to prevent enforcement of an order of the Circuit Court of Mercer County that would permit DNA testing of fingernail scrapings of the 5 year-old victim, in a prosecution charging first degree murder and death of a child by a parent due to child abuse. Holding that the possibility of consumption of the evidence did not unfairly infringe upon the defendant's right to independent testing and cross examination, where appropriate protocols are available to be followed during the testing, such that the defendant's request for relief in prohibition is not warranted at this time.

CRIMINAL, HABEAS CORPUS :: Witnesses in prison attire and shackles

Wed, 16 Jul 2008 17:30:21 GMT

GARY ALLEN GIBSON v. McBRIDE, No. 33321 (Per Curiam)(Benjamin, J., dissenting)(June 12, 2008). Affirming an order of the Circuit Court of Cabell County that granted habeas corpus relief and set aside a conviction for conspiracy to commit a murder that took place at the former West Virginia Penitentiary in Moundsville. Holding that the circuit court properly concluded that the defendant's constitutional right to a fair trial was violated when the trial court allowed key witnesses for the State, who were incarcerated at the time of trial, to testify in civilian clothing and without shackles while key defense witnesses, who were also incarcerated at the time of trial, testified wearing prison attire and were forced to wear shackles.

CRIMINAL, JUVENILES :: Separate charges subsequent to transfer

Wed, 16 Jul 2008 17:29:34 GMT

STATE v. JAMES LEE BROOKS, III, No. 33662 (ALBRIGHT, J.)(Starcher, J., concurring in part and dissenting in part)(May 23, 2008). Affirming jury convictions arising from the Circuit Court on Monongalia for the offenses of conspiracy to commit first-degree robbery, malicious assault, and conspiracy to commit malicious assault. (This case was granted only as to a single assignment of error.) Rejecting appellant's contention that his transfer from juvenile to adult jurisdiction solely on the charge of first-degree robbery precluded indictment on additional related charges, because those charges were formally not part of the basis for the original transfer. Holding, in syllabus point 2, that where the transfer is mandatory under W.Va. Code 49-5-10(d)(2)(2001)(Repl. Vol. 2004) "there is no statutory impediment that prevents the State form charging the juvenile by indictment with offenses that were not included in the transfer motion and/or hearing provided those additional offenses flow from the same factual allegations of criminal activity that were the subject of the transfer hearing."

CRIMINAL, PROCEDURE :: Late disclosure, denial of continuance

Wed, 16 Jul 2008 17:28:41 GMT

STATE v. OWEN HAWK, III, No. 33435 (Per Curiam)(April 7, 2008). Affirming conviction for the offense of fleeing from an officer while under the influence of alcohol, obtained following jury trial in the Circuit Court of Roane County. Holding that the lower court did not err in denying a continuance due to disclosure of potentially exculpatory evidence on the evening before trial, where the evidence in question - the identity of another arrestee who may have witnessed certain conduct by the police after the defendant was arrested - was not material to the pending charges.

HABEAS CORPUS, PROCEDURE :: Denial of relief without evidentiary hearing

Wed, 16 Jul 2008 17:09:48 GMT

STATE EX REL. JAMES BLAINE WALDRON v. SCOTT, No. 33434 (Per Curiam)(March 18, 2008). Affirming an order of the Circuit Court of McDowell County that denied habeas corpus relief without conducting an evidentiary hearing. Holding that although the order failed to make specific findings as to why an evidentiary hearing was not required, such omission was harmless in light of the fact that each issue raised was exhaustively addressed in the circuit court's order; and further in light of the fact that several of the issues were previously and finally adjudicated in the petitioner's direct appeal. The circuit court addressed the petitioner's claim of ineffective assistance of counsel in a very detailed fashion, and correctly held that the prejudice prong of the Strickland standard could not be satisfied.

MOTOR VEHICLES, CRIMINAL :: Delay in receipt of officer's statement

Wed, 16 Jul 2008 17:00:45 GMT

CARPENTER v. CICCHIRILLO, COMMISSIONER, No. 33654 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Kanawha County that reversed an administrative decision to revoke a driver's license for driving under the influence. Holding that a minor delay in receipt of the Statement of Arresting Officer did not deprive the DMV of its duty to investigate and consider license revocation once it received the paperwork. In light of the fact that the driver was not subject to actual prejudice because of the delay, the circuit court erred in reversing the DMV's revocation decision.

CRIMINAL :: Numerous errors rejected, second degree murder

Fri, 01 Feb 2008 20:09:15 GMT

STATE v. ERIC ALLEN FOSTER, No. 33323 (Per Curiam)(Benjamin, J., disqualified)(Moats, Judge, by temporary assignment)(November 19, 2007)(Rehearing denied, January 10, 2008). Affirming an order of the Circuit Court of Nicholas County imposing two consecutive forty-year sentences upon jury conviction for two counts of second degree murder. Rejecting assertions that there was insufficient evidence of intent. Further holding that certain jury instructions and selection of certain jurors did not constitute plain error, and that there was no per se ineffective assistance of counsel.

CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived

Fri, 01 Feb 2008 20:08:04 GMT

STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden, No. 33244 (Per Curiam)(November 9, 2007). Affirming an order of the Circuit Court of Cabell County that denied a post-conviction habeas corpus petition. Holding that the 212 year sentence for a single count of aggravated robbery was within statutory limits and that the circuit court properly took into account the defendant's extensive and escalating criminal history. Deeming the defendant's skeletal argument regarding ineffective assistance of habeas counsel to have been waived, given the absence of supporting arguments or authority.

CRIMINAL :: Negligent homicide

Fri, 01 Feb 2008 20:07:03 GMT

STATE ex rel. NELSON, Prosecuting Attorney v. FRYE, No. 33499 (Per Curiam)(November 8, 2007). Denying a writ of prohibition sought to prevent dismissal of negligent homicide charges following a logging truck accident that resulted in the death of another driver. Holding that where the evidence showed that the truck driver was in excess of the recommended speed, but not over the speed limit, there was insufficient evidence of reckless disregard to sustain the charges.

CRIMINAL :: Incest, sexual assault, double jeopardy

Fri, 01 Feb 2008 20:06:07 GMT

STATE v. JONATHON FREEMONT RAY, No. 33324 (BENJAMIN, J.)(Starcher, J., concurring)(Albright, J., concurring)(November 8, 2007). Affirming sentences upon multiple convictions for sexual assault, incest and other sex-based offenses imposed by the Circuit Court of Preston County. Rejecting defendant's assertion that consanguinity is an element of the offense of incest, and holding that the statutory definition of incest is met where the victims were stepchildren of the defendant's biological brother. Further rejecting the assertion that double jeopardy prevents convictions for sexual assault and incest arising from the same incident. Applying the Blockburger test to determine that each offense requires a separate element to be proven.

CRIMINAL :: Sufficient evidence to support sexual abuse by custodian

Fri, 01 Feb 2008 20:02:55 GMT

STATE v. KENNETH RAY COLLLINS, No. 33300 (Per Curiam). Affirming a conviction and sentence imposed by the Circuit Court of Mingo County upon conviction for one count of sexual abuse in the third degree and one count of sexual abuse by a parent, guardian or custodian. Holding that the record ñ- including evidence that the defendant "controlled and supervised the eleven year old girl on numerous, albeit temporary, occasions when he would take her away from home to go riding on his four-wheeler" -- reveals a sufficient basis for the jury to conclude that the defendant met the statutory definition of custodian.

CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived

Fri, 01 Feb 2008 20:01:44 GMT

STATE v. DANIEL B. BINGMAN, No. 33299 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(October 26, 2007). Affirming a conviction and sentence imposed by the Circuit Court of Gilmer County upon conviction for one count of petit larceny in violation of W. Va. Code 61-3-13(b). The indictment for grand larceny occurred more than one year after the offense. Holding that defense counsel failed to object to jury instructions on the lesser-included offense, thereby waiving any statute of limitations defense that could be asserted, in accord with rule announced in syllabus point 3 of STATE v. BOYD, 209 W. Va. 90, 543 S.E.2d 647 (2000).

CRIMINAL :: Assessment of jury costs on defense counsel reversed

Fri, 01 Feb 2008 20:00:24 GMT

STATE EX REL. TERRON GODFREY v. ROWE, No. 33444 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(October 16, 2007). Granting a moulded writ of prohibition to prevent enforcement of an order imposing jury costs on defense counsel following a mistrial. Holding that the trial court properly rejected defendant's assertion that the second trial was barred by double jeopardy. Further denying as premature relief sought in relation to a motion to join counts of a subsequent indictment and directing the circuit court to address the joinder motion.

CRIMINAL :: No prejudice in trial court amending indictment

Fri, 01 Feb 2008 19:59:21 GMT

STATE v. RICHARD ALLEN HAINES, No. 33304 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Hampshire County that imposed sentence upon a jury conviction for one count of felony delivery of a Schedule II controlled substance. Rejecting appellant's contention that the trial court erred in amending the indictment, which had erroneously identified methamphetamine as a Schedule I controlled substance. Holding that the trial court properly concluded that the amendment was not substantial and did not require resubmission to the grand jury in light of the fact that the appellant was not misled, there was no additional burden of proof, and he was not prejudiced as a result of the amendment.

CRIMINAL :: Sufficient evidence to sustain murder conviction

Fri, 01 Feb 2008 19:58:20 GMT

STATE v. THOMAS JOSEPH MACPHEE, No. 33297 (Per Curiam)(Maynard, J., concurring)(October 12, 2007). Affirming an order of the Circuit Court of McDowell County that imposed a life sentence with mercy following a jury conviction for felony murder. Rejecting appellant's argument that he was merely an accessory after the fact. Holding that the evidence was sufficient to sustain the conviction.