Affirming a conviction of first-degree sexual abuse and burglary where, in violation of statute, the defendant was examined for competence by only a psychologist, and not a psychiatrist, and where the defendant complained that inculpatory statements were the product of his intoxication and mental retardation, the Court held that (1) when a motion for mental status evaluation is filed to determine sanity or competency, an examination should be conducted by "one or more psychiatrists, or a psychologist and a psychiatrist" in accordance with W. Va. Code § 27-6A-1, but failure to do so may be deemed, when the circumstances warrant, to be harmless error and (2) in determining the voluntariness of a confession, the trial court must assess the totality of all the surrounding circumstances, and no one factor, including mental retardation or intoxication at the time of the interrogation, is alone sufficient to invalidate a confession.

State of West Virginia v. Marvin D. Sugg, No. 22486 (W. Va. March 10, 1995) (Cleckley, J.): 193 W.Va. 388, 456 S.E.2d 469:

Affirming a juvenile's adult conviction of aggravated robbery and 45-year sentence, the Court held that (1) the validity of a juvenile's waiver of rights should be evaluation in light of the totality of the circumstances and the presence or absence of the juvenile's parents at the time of the waiver is not dispositive; (2) where neither counsel nor a juvenile's parents are present during interrogation, the greatest care must be exercised to ensure that any inculpatory statement is voluntary and not the product of an ignorance of the juvenile's rights or adolescent fantasy, fright, or despair; (3) a juvenile's waiver of Miranda rights may be valid and a subsequent confession admissible even if made in the absence of counsel or parents; (4) if a delay in parental notification is initiated or suggested by a juvenile suspect and the police do nothing during the delay to take advantage of the juvenile's immaturity and inexperience, an inculpatory statement, voluntarily made, is not rendered inadmissible due to such delay; (5) improper prosecutorial remarks to the jury which do not clearly prejudice the accused or result in manifest injustice do not require reversal of a conviction; (6) the four factors in determining the prejudicial effect of improper prosecutorial remarks to a jury are (i) the degree to which the remarks may have mislead the jury to the defendant's prejudice, (ii) whether the remarks were isolated or extensive, (iii) the strength of the evidence of guilt of the accused, and (iv) whether it appears the remarks were made to divert juror attention to extraneous matters; and (7) R. Crim. P. 11 does not permit a judge's out-of-court discussion of the possible terms of a plea, but allows exploration of the terms of a plea agreement only in open court.

State of West Virginia v. Doug Jones, No. 22377 (W. Va. March 6, 1995) (Cleckley, J.): 193 W.Va. 378, 456 S.E.2d 459:

Reversing a conviction of first-degree murder with a recommendation of mercy where the defendant complained that his confession was the product of an illegal interrogation, the Court held that (1) where police merely question a suspect on the street, no protections against unreasonable seizure of the person are implicated; (2) where a suspect reasonably perceives that he or she is being detained and is no longer free to leave, protections against unreasonable seizure of the person are implicated, and the officer must have reasonable suspicion that criminal activity has occurred; (3) where the nature and duration of detention rise to the level of an arrest or its equivalent, the officer must have probable cause to believe that the detainee has engaged in criminal activity; and (4) without probable cause to arrest, a confession is rendered inadmissible if obtained pursuant to an officer's seizure and involuntary transportation of the suspect to a police station for interrogation.

State of West Virginia v. Gerald D. Mullins, No. 22514 (W. Va. March 3, 1995) (Fox, J.): 193 W.Va. 315, 456 S.E.2d 42:

Affirming a conviction of first-degree murder without a recommendation of mercy for a defendant whose barroom brawl resulted in the stabbing death of the decedent by another individual, the Court held that (1) a finding that two criminal actors possess a shared criminal intent does not require that the accused aider and abettor intend to commit the crime committed by the principal in the first degree where there is evidence of substantial physical participation in the crime by the accused and (2) substantial physical participation by a person charged as an aider and abettor in a criminal undertaking constitutes evidence from which a jury may properly infer an intent to assist the principal criminal actor.

State of West Virginia ex rel. Aristides Rojas v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County, and Pamela Games-Neely, Prosecuting Attorney for Berkeley County, No. 22599 (W. Va. February 23, 1995) (Fox, J.): 193 W.Va. 206, 455 S.E.2d 575:

Where indigent criminal defendant sought court-appointed experts after his family was able to retain counsel to represent him, the Court held that (1) if financial assistance provided by a third party makes it possible for an indigent criminal defendant to have the benefit of private counsel, subjects of judicial inquiry may include the source of the funds with which private counsel was retained, the terms of the legal representation agreement, and the reasonableness of the fee arrangement, and (2) financial assistance by a third party which enables an indigent criminal defendant to have the benefit of private counsel does not affect the defendant's right to expert assistance at public expense if such assistance is essential to an effective defense.

State of West Virginia v. Samuel E. Adams, No. 22398 and State of West Virginia ex rel. Samuel Adams v. Delbert Harrison, Sheriff of Putnam County, No. 22397 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 277, 456 S.E.2d 4:

Affirming convictions of concealing and transferring stolen property where one count of the indictment was amended to change the identity of the owner of the stolen goods, the Court overruled State v. McGraw, 140 W. Va. 547, 85 S.E.2d 849 (1955) and State v. Pruitt, 178 W. Va. 147, 358 S.E.2d 231 (1987), for the proposition that any change to an indictment requires its resubmission to the grand jury, instead holding that an indictment may be amended by the circuit court, provided that (i) the amendment is not substantial, (ii) the amendment is sufficiently definite and certain, (iii) the indictment does not unfairly surprise the defendant, and (iv) any evidence available to the defendant regarding the indictment is still available.

State of West Virginia ex rel. Michele L. Rusen, Prosecuting Attorney for Wood County v. Honorable George W. Hill, Judge of the Circuit Court of Wood County, and Lisa Harder, No. 22441 (W. Va. December 21, 1994) (Cleckley, J.): 193 W.Va. 133, 454 S.E.2d 427:

Rejecting a prosecutor's attempt to overturn the dismissal, with prejudice, of an embezzlement indictment as a discovery sanction, the Court held (1) the standard for determining prejudice for discovery violations under R. Crim. P. 16 is (i) whether nondisclosure surprised the defendant regarding a material fact and (ii) whether nondisclosure hampered preparation and presentation of the defense; (2) a circuit court may dismiss criminal charges for egregious and repeated discovery violations where lesser sanctions, such as a continuance, would be disruptive to the administration of justice or would not provide the same degree of assurance that the prejudice to the defendant will be removed; and (3) a circuit court is not required to find actual prejudice in order to impose discovery sanctions pursuant to R. Crim. P. 16(d)(2), but such prejudice will be presumed from repeated violations necessitating numerous continuances and delays.

State of West Virginia ex rel. Albert Kees v. Honorable David H. Sanders, Judge of the Circuit Court of Berkeley County, No. 22368 (W. Va. December 21, 1994) (McHugh, J.): 192 W.Va. 602, 453 S.E.2d 436:

Rejecting an attempt to force a trial judge to remand a traffic case to municipal court for a new trial with court-appointed counsel, the Court held that in a municipal court proceeding on a minor traffic offense, where a judge states, in advance of trial, that notwithstanding the applicable provision which permits a jail sentence, the judge will under no condition impose one nor impose a fine so onerous that the defendant cannot pay it thereby subjecting him to a contempt charge which may result in a jail sentence, then appointment of counsel pursuant to W. Va. Code § 29-21-2(2) is not required.

State of West Virginia v. David Duane Allen, No. 22240 (W. Va. December 15, 1994) (Cleckley, J.): 193 W.Va. 172, 455 S.E.2d 541:

Reversing a conviction of third-offense DUI where the trial judge responded to jury questions during deliberations without advising counsel, the Court held that the proper method of responding to a written jury inquiry during deliberations in a criminal case is for the judge to reconvene the jury and to give further instructions, if necessary, in the presence of the defendant and counsel in the courtroom.

State of West Virginia v. Helen Jean Honaker, No. 21860 (W. Va. December 15, 1994) (Cleckley, J.): 193 W.Va. 51, 454 S.E.2d 96:

Affirming a first-degree murder conviction based, in part, on inculpatory statements made in the presence of medical personnel when the defendant was being treated for a drug overdose, the Court held (1) police involvement is necessary for finding a confession involuntary, overruling State v. Muegge, 178 W. Va. 439, 360 S.E.2d 216 (1987) and State v. Sanders, 161 W. Va. 39, 242 S.E.2d 554 (1978) and (2) in the absence of police involvement, the admissibility of inculpatory statements is to be determined by the Rules of Evidence and not constitutional standards of voluntariness. On a separate issue, the Court held that to preserve for appellate review a claim of improper impeachment of the defendant or improper rebuttal by the use of prejudicial collateral evidence, the defendant must testify or the rebuttal evidence must be introduced.

State of West Virginia ex rel. William A. Allen v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, No. 22359 (W. Va. December 9, 1994) (Workman, J.): 193 W.Va. 32, 454 S.E.2d 77:

Refusing to block a DUI prosecution based, in part, on blood alcohol tests performed by hospital personnel, the Court held (1) W. Va. Code § 17C-5-4 does not govern the admissibility of blood alcohol tests conducted prior to the defendant's arrest at the direction of a treating physician or other medical personnel and (2) medical records regarding blood alcohol tests ordered by medical personnel for diagnostic purposes are subject to subpoena and not inadmissible by virtue of W. Va. Code § 57-5-4d.

State of West Virginia v. Harry E. Farmer, No. 22162 (W. Va. December 9, 1994) (McHugh, J.): 193 W.Va. 84, 454 S.E.2d 378:

Affirming a 90-year sentence for kidnapping, the Court held that a trial judge, for purposes of imposing a sentence on a defendant, convicted of kidnapping, for a period of not less than twenty or not less than ten years, has discretion to make findings as to whether the defendant inflicted bodily harm on the victim and as to whether ransom, money, or other concession has been paid or yielded for return of the victim, and because such findings are solely for the purposes of sentencing, and are not elements of the crime of kidnapping, a defendant's rights to due process and trial by jury are not violated by W. Va. Code § 61-2-14a.

State of West Virginia v. Brian Hopkins, No. 22079 (W. Va. December 8, 1994) (Neely, J.): 192 W.Va. 483, 453 S.E.2d 317:

Affirming a third-offense shoplifting conviction and sentence, the Court overruled State v. Armstrong, 175 W. Va. 381, 332 S.E.2d 837 (1985), with respect to the use of uncounseled convictions for purposes of penalty enhancement, holding that an uncounseled misdemeanor conviction, if no prison term was imposed, may be used to enhance punishment upon a subsequent conviction.

State of West Virginia v. Lyle B. McGinnis, Jr., No. 22031 (W. Va. December 8, 1994) (Cleckley, J.): 193 W.Va. 147, 455 S.E.2d 516:

Reversing a first-degree murder conviction where collateral crimes evidence was introduced involving embezzlement, arson, tax fraud, marital infidelity, and other debts, the Court held (1) when offering evidence pursuant to R. Evid. 404(b), it is not sufficient for the trial court or the prosecution to merely note the list of possible uses contained in the rule, rather the prosecution must identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence on for that purpose; (2) before admitting Rule 404(b) evidence, the trial court should conduct an in camera hearing to determine, pursuant to R. Evid. 104(a), whether there is a preponderance of evidence that the subject acts were committed by defendant and, if so established, whether the evidence is relevant under R. Evid. 401 and 402 and, if so relevant, whether the evidence meets the R. Evid. 403 balancing test; and (3) if a trial court, after conducting the appropriate in camera review, determines that the Rule 404(b) evidence is admissible, it should instruct the jury, at the time the evidence is offered and again in the general charge, on the limited purpose for which such evidence has been admitted.

State of West Virginia v. Gail B. Stuart, Jr., No. 22033 (W. Va. December 8, 1994) (Cleckley, J.): 192 W.Va. 428, 452 S.E.2d 886:

Affirming a second-offense DUI conviction where an anonymous call prompted police to look for the defendant, the Court held (1) police may stop a vehicle to investigate, contrary to State v. Meadows, 170 W. Va. 191, 292 S.E.2d 50 (1982), which the Court overrules, if they have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has committed, is committing, or is about to commit a crime; (2) when evaluating whether particular facts establish reasonable suspicion, one must examine the totality of circumstances, including the quality and quantity of information known by police; (3) legal conclusions with respect to suppression issues are reviewed de novo and factual decisions with respect to suppression issues are reviewed under the clearly erroneous standard, with credibility determinations accorded great deference; and (4) a police officer may rely on an anonymous call if subsequent police work or other facts support its reliability and, thereby, it is sufficiently corroborated to justify the investigatory stop under a reasonable suspicion standard.

State of West Virginia ex rel. R.L. v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, and Steven R. Bratke, Special Prosecuting Attorney for the State of West Virginia, No. 22495 (W. Va. December 8, 1994) (Neely, J.): 192 W.Va. 435, 452 S.E.2d 893:

Refusing to prohibit prosecution of a citizen-initiated indictment that was not signed by the prosecutor, the Court held that in cases where a grand jury returns an indictment based on a citizen's complaint and presentation, the attestation of the prosecuting attorney to the grand jury foreperson's signature is not required and the lack of such attestation, standing alone, is insufficient to vitiate the indictment and, to the extent State v. Davis, 178 W. Va. 87, 357 S.E.2d 769 (1987), State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), State v. DeBoard, 119 W. Va. 396, 194 S.E. 349 (1937), and State v. Burnette, 118 W. Va. 501, 190 S.E. 905 (1937), indicate to the contrary, they are overruled.

State of West Virginia v. Larry Gene Kelley, Jr., No. 22205 (W. Va. November 21, 1994) (McHugh, J.): 192 W.Va. 124, 451 S.E.2d 425:

Reversing a second-degree murder conviction where the sheriff, who testified at trial, served as bailiff, the Court held that a defendant's rights to due process and a fair trial by jury are violated when a sheriff serves as bailiff and testifies as a key witness for the prosecution.

State of West Virginia v. Mark Wayne Phalen, No. 22077 (W. Va. November 21, 1994) (McHugh, J.): 192 W.Va. 267, 452 S.E.2d 70:

Affirming a forgery conviction arising from the defendant's false signature on a fingerprint card, the Court held that (1) when a person who has given a false name later admits that the name given was false, whether the defendant had the requisite intent under W. Va. Code § 61-4-5 to commit forgery is a question of fact for the jury and (2) giving a false name on a police fingerprint card may constitute forgery since the act prejudices the legal rights of the State by frustrating its authority to administer justice.

State of West Virginia v. Thomas Russell Leroy Derr, No. 22101 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va 165, 451 S.E.2d 731:

Affirming the defendant's conviction of first-degree murder without mercy, where a number of errors were assigned, the Court held that (1) whether prospective jurors may have heard about a case is not determinative on a motion for change of venue, but rather whether those jurors have such fixed opinions that they cannot hear the evidence impartially; (2) the holding of State v. Rowe, 163 W. Va. 593, 259 S.E.2d 26 (1979), and its progeny, with respect to determining the admissibility of allegedly gruesome photographs, conflicts with R. Evi. 403 and, accordingly, is overruled; (3) the Rules of Evidence, as a comprehensive reformulation of common law evidentiary principles, provide the paramount guidance for questions of admissibility; (4) the admissibility of allegedly gruesome photographs must be determined by applying R. Evid. 401 through 403; (5) although otherwise relevant, evidence may be nevertheless be inadmissible, pursuant to R. Evid. 403, when the danger of unfair prejudice, confusion, or undue delay outweighs the value of the evidence; (6) prior to admission of an allegedly gruesome photograph, the trial court must determine (i) whether the photograph is probative, pursuant to R. Evi. 401, as to a fact of consequence in the case and, if probative, (ii) whether its probative value is outweighed by the R. Evi. 403 factors; (7) application of the R. Evi. 403 balancing test is a matter within the sound discretion of the trial court; (8) a trial court's refusal to give a requested instruction is reversible error only if (i) the instruction is a correct statement of law, (ii) the issue addressed by the instruction is not covered by another instruction, and (iii) it concerns an important issue in the trial such that the litigant's ability to effectively present the litigant's claims or defenses is seriously impaired; and (9) decisions regarding the giving of instructions are within the sound discretion of the trial court and, in criminal cases, any evidentiary issue related to the instructions are to be considered in a light most favorable to the prosecution.

State of West Virginia v. Robert Russell Farley, No. 22139 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va. 247, 452 S.E.2d 50:

Affirming multiple convictions of first-degree arson, second-degree arson, fourth-degree arson, and falsely reporting an emergency, the Court rejected the defendant's primary contention that his confession should have been excluded because he was told by interrogating officers that he did not perform well on a polygraph examination and that they would get him help, holding that (1) the scope of appellate review of the voluntariness of a confession, as well as whether the trial court applied the proper standard in making its determination, is de novo in nature; (2) in order for an assertion of Miranda rights to compel termination of police interrogation, the suspect's words or conduct must indicate more than a desire not to comment or to answer a particular question, but must expressly demonstrate a desire to terminate all questioning; and (3) in order to determine the voluntariness of a confession where representations or promises were made to the suspect by one in authority, a trial court should consider the totality of the circumstances and, contrary to State v. Parsons, 108 W. Va. 705, 152 S.E. 745 (1930), which is overruled to this extent, no single factor is determinative.

State of West Virginia v. Melody Long, No. 22195 (W. Va. November 2, 1994) (Miller, J.): 192 W.Va. 109, 450 S.E.2d 806:

In a decision involving the sentencing options available for defendants convicted of first or second-offense DUI, the Court held that W. Va. Code § 17C-5-2(m) permits home detention and W. Va. Code § 62-11B-5(1)(A) permits authorization to travel to and from the offender's place of employment during the period of home

detention, for individuals convicted of first or second-offense DUI.

State of West Virginia v. Ronald Dillon, No. 21807 (W. Va. July 20, 1994) (Workman, J.): 191 W.Va. 648, 447 S.E.2d 583:

Affirming the drug convictions of a defendant who complained that the introduction of audiorecordings of conversations he had with a police informant who failed to appear for trial violated his right of confrontation, the Court held that proof of consent for purposes of electronic intercept under W. Va. Code §§ 62-1D-3 and 62-1D-6 need not be by the consenting person's testimony, but may be demonstrated through other evidence, such as the testimony of the person to whom consent was given.

State of West Virginia v. Mabel Lewis aka Mabel Beasley, No. 21835 (W. Va. July 19, 1994) (Workman, J.): 191 W.Va. 635, 447 S.E.2d 570:

Overturning the sentence of an habitual shoplifter, the Court held that, prior to 1994 amendment, W. Va. Code § 61-3A-3(c), which prohibited probation for third-offense shoplifters, violated the proportionality principle contained in the cruel and unusual punishment clauses of U.S. Const. amend. VIII and W. Va. Const. art. III, § 5.

State of West Virginia v. Robert Earl Kirkland, Jr., No. 21759 (W. Va. July 15, 1994) (Workman, J.): 191 W.Va. 586, 447 S.E.2d 278:

Reversing multiple convictions due to insufficiency of the evidence, see also State v. Mayo, 191 W. Va. 79, 443 S.E.2d 236 (1994), the Court held on an unrelated issue that a trial court should conduct an evidentiary hearing on allegations of the discriminatory use of peremptory strikes only if the trial court determines that the prosecutor's allegedly nondiscriminatory reasons warrant further exploration.

State of West Virginia ex rel. Marshall Goff v. Honorable Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Ron Watkins, Sheriff of Marion County, No. 22088 (W. Va. June 17, 1994) (McHugh, J.): 191 W.Va. 473, 446 S.E.2d 695:

Reversing a trial court's refusal to grant good-time and trustee credit for a prisoner consecutively sentenced to a jail term of six months as a condition of probation on one count and six-months on another count, the Court held (1) a person who is ordered to serve a six-month period in the county jail as a condition of probation for one offense consecutive to an additional jail term of six-months on another offense is eligible for good crime credit pursuant to W. Va. Code § 7-8-11 and (2) when a person is ordered to confinement in the county jail as a condition of probation and performs work as a trustee within the jail, that person is entitled to a reduction in sentence in accordance with the provisions of W. Va. Code § 17-15-4.

State of West Virginia v. Lanny Crouch, Jr., No. 21883 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 272, 445 S.E.2d 213:

Affirming a first-degree murder conviction in which the defendant complained that a private attorney hired by the victim's family virtually handled the entire case, the Court held that, pursuant to § 7-7-8, the employment of a practicing lawyer to assist the State in a criminal prosecution is not prohibited.

In the Matter of an Investigation of the West Virginia State Police, Serology Division, No. 21973 (W. Va. May 20, 1994) (Miller, J.): 191 W.Va. 224, 445 S.E.2d 165:

Formally closing the investigation of the state police crime laboratory, the Court held that serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Lab, Serology Division, 190 W. Va. 321, 438 S.E.2d 501 (1993).

State of West Virginia ex rel. Eustace Brown, Derek Johnson, Vincent Nelson, and Donnie Smalls v. Jerry Dietrick, Administrator, Eastern Regional Jail, and the Honorable Gail Boober, Jefferson County Magistrate, No. 21904 (W. Va. April 20, 1994) (Miller, J): 191 W.Va. 169, 444 S.E.2d 47:

State of West Virginia ex rel. John R. Modie v. Honorable George W. Hill, Jr., Judge of the Court of Wood County, No. 22126 (W. Va. March 28, 1994) (McHugh, J.): 191 W.Va. 100, 443 S.E.2d 257:

Prohibiting trial of a defendant held on a detainer lodged in Ohio more than 180 days prior to his trial, the Court held that the failure of the State to bring an accused to trial within 180 days following the State's receipt of the petitioner's notice of imprisonment and request for final disposition, pursuant to the Agreement on Detainers, W. Va. Code § 62-14-1, mandates dismissal of the indictments pending against the petitioner, where there was no motion for continuance made by the State and the delay was not reasonable or necessary.

State of West Virginia v. Ronnie Wayne Jenkins, No. 21775 (W. Va. March 25, 1994) (Miller, J.): 191 W.Va. 87, 443 S.E.2d 244:

Reversing a first-degree murder without mercy conviction on instruction error which unconstitutionally shifted the burden of proof, the Court held (1) a first-degree murder instruction that informs the jury that malice need not be shown is erroneous; (2) a first-degree murder instruction that informs the jury that intent, malice, wilfullness, deliberation, and premediation may be inferred from the use of a deadly weapon is erroneous where there is evidence that the defendant's actions were based on some legal excuse, justification, or provocation, and anything to the contrary in State v. Louk, 171 W. Va. 639, 643, 301 S.E.2d 596, 600 (1983), is disapproved; and (3) an instruction which informs the jury that it may find the defendant guilty of first-degree murder if it finds he used a deadly weapon to kill the deceased unconstitutionally shifts the burden of proof.

State of West Virginia v. William Ulysses Mayo, Jr., No. 21760 (W. Va. March 25, 1994) (Miller, J.): 191 W.Va. 79, 443 S.E.2d 236:

Reversing a conviction of second-degree murder, attempted second-degree murder, and unlawful wounding, arising from a confrontation between a companion of the defendant and a merchant, the Court reiterated its holding in Syllabus Point 9 of State v. Fortner, 182 W. Va. 345, 387 S.E.2d 812 (1989), that merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator.

State of West Virginia v. Harry Jarrell, No. 21625 (W. Va. February 18, 1994) (Brotherton, J.): 191 W.Va. 1, 442 S.E.2d 223:

Reversing a murder conviction where grand jury testimony of the defendant's sister, who was declared incompetent to testify at trial, was admitted into evidence despite the defendant's sixth amendment objection, the Court reiterated its holding that the sixth amendment guarantees an accused the right to confront, i.e., to cross-examine, witnesses against him or her.

State of West Virginia v. Thomas J. Blair, III, No. 21558 (W. Va. December 14, 1993) (McHugh, J.): 190 W.Va 425, 438 S.E.2d 605:

Reversing the conviction of a local water company president for providing inadequate facilities, the Court held that the statute under which he was prosecuted, W. Va. Code § 24-3-1 is unconstitutionally vague because the language "establish and maintain adequate and suitable facilities" and "perform such service . . . as shall be reasonable, safe and sufficient for the security and convenience of the public" does not provide adequate standards for adjudication or set forth with requisite clarity the specific acts prohibited.

State of West Virginia v. David Leadingham, No. 21678 (W. Va. December 14, 1993) (McHugh, J.): 190 W.Va. 482, 438 S.E.2d 825:

Where police used informant to elicit information from the defendant who had been sent to a psychiatric facility for an evaluation, the Court reversed, holding that it is a due process violation rights for law enforcement to use an informant to penetrate the clinical environment of a psychiatric institution in order to elicit incriminating statements from a defendant who is undergoing a court-ordered evaluation.

State of West Virginia v. George W.H., No. 21658 (W. Va. December 13, 1993) (Miller, J.): 190 W.Va. 558, 439 S.E.2d 423:

Reversing convictions of sexual abuse by a custodian, which did not exist at the time of the alleged crimes, and sexual assault in the second degree, whose definition of "forcible compulsion" did not exist at the time of the alleged crimes, the Court reaffirmed its holding in Syl. pt. 1 of Adkins v. Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (1980), that under ex post facto principles of the federal and state constitution, a law passed after commission of an offense which operates to his or her detriment cannot be applied to the accused.

State of West Virginia v. Charles R. Kilmer, No. 21504 (W. Va. December 10, 1993) (Workman, C.J.): 190 W.Va. 617, 439 S.E.2d 881:

Affirming a conviction of first degree murder without mercy, the Court rejected an argument that due process requires the taping of police interrogations, holding that W. Va. Const. art. III, § 10, does not mandate that police electronically record custodial interrogations.

State of West Virginia v. Ronzel Richards, No. 21564 (W. Va. November 23, 1993) (Brotherton, J.): 190 W.Va. 299, 438 S.E.2d 331:

Reversing two malicious wounding convictions where the prosecution introduced evidence of prior convictions, the Court held (1) the mentioning of character issues by defense counsel during opening statements does not open the door for the introduction of otherwise inadmissible character evidence, and (2) the state may not seek W. Va. Code § 62-12-2 enhancement for use of a firearm during the commission of a crime unless it gives the defendant notice pursuant to Syllabus Point 2 of State v. Johnson, 187 W. Va. 360, 419 S.E.2d 300 (1992).

In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, No. 21973 (W. Va. November 10, 1993) (Miller, J.): 190 W.Va. 321, 438 S.E.2d 501:

Adopting the findings, conclusions, and recommendations of a special judge appointed to investigate allegations of impropriety in state police crime lab, the Court held that although it is a violation of due process to convict a defendant on false evidence, such conviction will not be set aside unless the false evidence had a material effect on the guilty verdict.

State of West Virginia v. Lisa A. Nelson, No. 21568 (W. Va. October 14, 1993) (Neely, J.): 190 W.Va. 73, 436 S.E.2d 308:

Where prosecution failed to demonstrate that defendant falsely signed voter's registration card or improperly submitted it for filing, the Court reversed, reiterating that circumstantial evidence will not support a guilty verdict unless guilt is proved to the exclusion of every reasonable hypothesis of innocence.

State of West Virginia v. Dawnella Rogers, No. 21516 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 730, 434 S.E.2d 402:

Rejecting a defendant's attempt to secure an appeal following expiration of the appeal period while the defendant was a fugitive, the Court held that a criminal defendant does not present good cause for resentencing where the reason for failing to pursue an appeal was that the defendant voluntarily absconded from custody during the statutorily-prescribed appeal period.

State of West Virginia v. Lisa A. Nelson, No. 21273 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 778, 434 S.E.2d 697:

Affirming a conviction of fraudulently secreting a public record for a police records clerk who falsely reported a criminal record, the Court rejected the defense that as custodian of the record, she could not be convicted under W. Va. Code § 61-5-3, holding that a position of mere public employment which requires providing information to the public based upon a review of public records is not equivalent to an officer in lawful charge of the public records for purposes of W. Va. Code § 61-5-3.

State of West Virginia v. Charles Daniel O'Donnell, No. 21143 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 628, 433 S.E.2d 566:

Where the alleged wife/victim wrote a letter to her husband/defendant following his conviction for multiple counts of sexual assault in which she recanted her trial testimony that an evening of group sex with three men was nonconsensual, the Court awarded a new trial, holding that newly-discovered evidence is not cumulative if it is either of a different kind or on a different issue as was presented at trial.

State of West Virginia ex rel. Cindy Walls v. Patricia Noland, as a Magistrate of Jefferson County, and Michael D. Thompson, as Prosecuting Attorney, No. 21495 (W. Va. July 16, 1993) (Brotherton, J.): 189 W.Va. 603, 433 S.E.2d 541:

Upholding the constitutionality of the worthless check statute, the Court held that the statutory complaint form contained in W. Va. Code § 61-3-39f is constitutionally sufficient because it requires a detailed itemization of the relevant facts and provides a sufficient basis for an independent determination of whether there is probable cause to proceed with a prosecution.

State v. Gary F., an infant, and Debbie F., his mother, No. 21412 (W. Va. June 28, 1993) (Workman, C.J.): 189 W.Va. 523, 432 S.E.2d 793:

Where primary witness at transfer hearing was not disclosed to the juvenile during discovery and testified telephonically, the Court reversed, holding that (1) the continuing disclosure requirement imposed by R. Crim. P. 16 applies to juvenile transfer proceedings and (2) telephonic testimony constitutes a denial of a juvenile's right to confrontation.

State of West Virginia v. Sean Romane Harris, No. 21400 (W. Va. June 9, 1993)(Neely, J.): 189 W.Va. 423, 432 S.E.2d 93:

Reversing the sexual assault conviction of a black defendant accused of raping a white victim where the prosecutor failed to state on the record her reasons for exercising peremptory challenges to remove three black jurors, the Court held that where racial bias is like to influence a jury, an inquiry must be made into such bias.

State of West Virginia v. Ronald Dean Rummer, No. 21095 (W. Va. May 25, 1993) (Miller, J.): 189 W.Va. 369, 432 S.E.2d 39:

Where defendant allegedly attacked victim, first grabbing her vagina and then her breasts, the Court sustained his conviction of two counts of sexual abuse, holding that a defendant who commits two or more of the separate acts of sexual contact defined in W. Va. Code § 61-8B-1(6) may be convicted of each separate act without a violation of double jeopardy principles.

State of West Virginia v. Timothy Layton, No. 21173 (W. Va. April 27, 1993) (Brotherton, J.): 189 W.Va. 470, 432 S.E.2d 740:

Where defendant who was convicted of aggravated robbery complained that standby counsel allowed the defendant to take the stand even though counsel intended not to question the defendant because counsel believed that the defendant intended to commit perjury, the Court affirmed, holding that when a defendant indicates that he or she is contemplating the commission of perjury, it is not ineffective assistance of counsel for the trial court to direct the defendant's attorney to refrain from participating in the examination of the defendant and to require the defendant to testify in a narrative fashion.

State of West Virginia ex rel. Angela McClanahan v. Honorable John Hamilton, Judge of the Circuit Court of Pendleton County, No. 21523 (W. Va. April 23, 1993) (Miller, J.): 189 W.Va. 290, 430 S.E.2d 569:

Concluding that the trial court should have disqualified the prosecuting attorney who had represented the defendant, charged with maliciously assaulting her husband, in an earlier divorce matter in which she had divulged information regarding her husband's abusive behavior, the Court held (1) R. Prof. Cond. 1.9(a) precludes an attorney who has formerly represented a client from representing another person in a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation and (2) once a former client has established that a former attorney is representing a party in a substantially related matter, the former client need not demonstrate that confidential information was divulged, which will be presumed from the relationship.

Andrew Keith Peyatt v. Donald L. Kopp, Magistrate, and Edmund J. Matko, Prosecuting Attorney for Harrison County, No. 20999 (W. Va. March 12, 1993) (McHugh, J.): 189 W.Va. 114, 428 S.E.2d 535:

Reversing an order directing a magistrate to conduct a new preliminary hearing in a sexual abuse case after the defendant complained regarding the magistrate's refusal to permit his presentation of evidence at such hearing, the Court held that a magistrate has discretion to allow hearsay evidence at a preliminary hearing if (1) the source of the hearsay is credible; (2) there is a factual basis for the hearsay; and (3) it would be an unreasonable burden to require testimony by the primary source of the evidence. On a related issue, the Court held that a writ of prohibition cannot issue against the presentation of a case to a grand jury by a prosecutor who believes that probable cause exists to support a conclusion that the suspect has committed a offense.

State of West Virginia ex rel. Jeffrey B. Reed, Prosecuting Attorney for Wood County v. Honorable Daniel B. Douglass, Judge of the Circuit Court of Wood County, and Dean Ray Buckley, No. 21520 (W. Va. February 16, 1993) (Miller, J.): 189 W.Va. 56, 427 S.E.2d 751:

Reversing the award of early release from probation where the prosecution was not granted an opportunity to oppose the defendant's motion, the Court held that when a defendant moves to obtain a favorable modification of the terms of probation under R. Crim. P. 32.1(b), the prosecuting attorney is entitled to reasonable notice of the motion for modification and an opportunity to be heard.

State of West Virginia v. Susan A. Carrico, No. 21299 (W. Va. February 11, 1993) (Neely, J.): 189 W.Va. 40, 427 S.E.2d 474:

Affirming the arson conviction of a wo man charged with burning her home, the Court held (1) a two-year delay in the return of an indictment, during which time an investigation was being conducted, did not violate her constitutional rights; (2) a dismissal nolle prosequi during the third term of court following her indictment did not violate the three-term rule because she was tried within the same term; and (3) the admission of incriminating statements made by her son to two of his friends did not violate the hearsay rule because (a) the statements were inconsistent with his trial testimony; (b) her son was given an opportunity at her trial to explain those statements; and (c) she was given an opportunity to cross-examine both of her son's friends at trial.

State of West Virginia ex rel. Patricia V. Kutsch, Prosecuting Attorney of Ohio County v. Honorable Ronald E. Wilson, Circuit Judge of Ohio County, and Earl Thomas Beals, No. 21530 (W. Va. February 11, 1993) (Neely, J.): 189 W.Va. 47, 427 S.E.2d 481:

Reversing a trial court's decision to suppress an Ohio conviction which was to be introduced in conjunction with the defendant's charge of third-offense DUI, the Court held that a person convicted of driving under the influence under an Ohio statute that makes it an offense to operate a motor vehicle with "a concentration of ten hundredths of one gram or more by weight of alcohol per two hundred liters of his breath" has committed an offense with "the same elements" as the offense set forth in W. Va. Code § 17C-5-2(d)(1)(E) of operating a motor vehicle with "an alcohol concentration in his blood of ten hundredths of one percent or by weight."

Curtis Mangus v. Honorable Charles E. McCarty, Judge of the Circuit Court of Calhoun County and Patricia L. McCartney, Probation Officer for Calhoun County, No. 21310 (W. Va. December 18, 1992) (Workman, J.): 188 W.Va. 563, 425 S.E.2d 239:

Where a probation revocation warrant was issued, but not served, until after expiration of the probation period, the Court blocked probation proceedings, holding that in order exercise jurisdiction to revoke probation subsequent to the expiration of the probationary period, the probationer must have been charged with the violation prior to the expiration.

State of West Virginia v. David White, No. 20962 (W. Va. December 17, 1992) (Workman, J.): 188 W.Va. 534, 425 S.E.2d 210:

Reversing a trial court's imposition of a jail sentence of five months and twenty-nine days as a condition of the granting of five years' probation, the Court held that if a trial court imposes a jail sentence as a condition of probation, the period of incarceration may not exceed the maximum one-third of the minimum statutory sentence pursuant to W. Va. Code § 62-12-9(4).

State of West Virginia v. Richard C. Seibert, Jr., No. 20931 (W. Va. December 17, 1992) (Brotherton, J.): 189 W.Va. 201, 429 S.E.2d 243:

Reversing the dismissal of an indictment for sexual assault where a previous indictment for the same offense had been dismissed, the Court held that dismissal of an indictment does not ordinarily foreclose the prosecutor from procuring a new indictment and that dismissal does not constitute return of a "not true bill" sufficient to trigger W. Va. Code § 52-2-9.

State of West Virginia v. Jack Earl Walker, No. 21023 (W. Va. December 17, 1992) (Neely, J.): 188 W.Va. 661, 425 S.E.2d 616:

Reversing a conviction of felony murder and arson on the grounds that the trial court erred in admitting evidence of (1) the defendant's ownership of certain firearms when such firearms could not have been used in the victim's murder; (2) petty thefts that had occurred in the vicinity of the crime when there was no evidence to link such thefts to the defendant; (3) a statement by the defendant, several months prior to the crime, that if anyone ever crossed him that he would "burn them down;" and, (4) hearsay statements made by a neighbor of the decedent concerning the defendant's presence in the area on the day of the crime, reiterating its holding that where the record of a criminal trial shows the cumulative effect of numerous errors which prevented the defendant from receiving a fair trial, the conviction should be set aside. On an unrelated issue, the Court held that the prosecution can withhold its decision regarding whether it intends to proceed on a premeditated or felony murder theory until the close of all the evidence, but that if the defendant makes a strong showing that he or she will be prejudiced by such delay, it is within the discretion of the trial court to direct an election by the prosecution.

Karl S. Dietz v. Carl Legursky, No. 21144 (W. Va. December 16, 1992) (McHugh, C.J.): 188 W.Va. 526, 425 S.E.2d 202:

Where trial judge stated he would declare a mistrial if the defendant did not testify after the defendant objected to the trial judge's statement during voir dire that the defendant would testify, but failed to declare such mistrial despite the exercise of the defendant's right not to testify, the Court ordered a new trial, holding that where a trial court represents that a mistrial will be declared if a criminal defendant does not testify, and the defendant does not testify in reliance upon such representation, it is reversible error for the trial court not to declare a mistrial. On a separate issue regarding the admissibility of opinion evidence regarding the victim's propensity for violence, where the defendant was not aware of such propensity, the Court, adopting Professor Cleckley's interpretation of R. Evi. 404(a)(2), held that where a defendant relies on self-defense or provocation, character evidence in the form of opinion testimony under R. Evi. 404(a)(2) and 405(a) may be admitted to show that the victim was the aggressor if the probative value of such evidence is not outweighed by the concerns set forth in R. Evi. 403.

David C. Harman, Magistrate for Mineral County v. Honorable Andrew N. Frye, Jr., Judge of the Twenty-First Judicial Circuit, No. 21233 (W. Va. December 15, 1992) (McHugh, C.J.): 188 W.Va. 611, 425 S.E.2d 566:

Abolishing the citizen complaint procedure for initiating criminal prosecutions, the Court held that, beginning on April 1, 1993, except where there is a specific statutory exception, a magistrate may not issue a warrant or summons for a misdemeanor or felony solely upon the complaint of a private citizen without a prior evaluation of the citizen's complaint by the prosecuting attorney or an investigation by the appropriate law enforcement agency. On a separate issue, the Court held that, in cases involving cross-warrants, where it would be improper for the prosecutor to act, trial courts should appoint special prosecutors pursuant to W. Va. Code § 7-7-8.

United States of America v. John P. Dobkin, aka Jack Dobkin; and Benjamin C. Dobkin, No. 21229 (W. Va. October 22, 1992) (Neely, J.): 188 W.Va. 209, 423 S.E.2d 612:

Interpreting statutes regulating the control of gambling devices on a certified question from federal district court, the Court held (1) reimbursement to a video poker machine player in money or anything of value, except free plays, constitutes gambling under W. Va. Code §61-10-1; (2) betting on the outcome of a video poker machine constitutes gambling under W. Va. Code §61-10-5; (3) permitting the use of a video poker machine for gambling purposes in a hotel, tavern or other location constitutes a violation of W. Va Code § 61-10-6; and (4) use of a video poker machine for gambling purposes does not constitute a violation of W. Va. Code §61-10-11.

State of West Virginia v. James R., II, No. 20933 (W. Va. October 9, 1992) (Brotherton, J.): 188 W.Va. 44, 422 S.E.2d 521:

Overturning a ruling which prohibited a prosecutor from representing the State in criminal proceedings in which the prosecutor had formerly represented the State in abuse and neglect proceedings, the Court held that such prior representation was insufficient to support disqualification of the prosecutor in the criminal proceedings, particularly in light of its further holding that no evidence acquired from a parent or custodian as the result of examinations performed in the course of abuse and neglect proceedings may be used in any subsequent criminal proceedings.

State of West Virginia ex rel. O.C. Spaulding, Prosecuting Attorney for Putnam County v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Mark J. McClelland, No. 21304 (W. Va. September 17, 1992) (Miller, J.): 188 W.Va. 124, 423 S.E.2d 217:

Overturning the award of post-conviction bail to a defendant convicted of first-degree sexual assault, the Court held that because first-degree sexual assault involves violence, it is subject to the provisions of W. Va. Code § 62-1C-1(b), which prohibits the award of post-conviction bail by circuit judges for certain types of offenses.

State of West Virginia v. Donald Wayne Triplett, No. 20172 (W. Va. July 23, 1992) (Workman, J.): 187 W.Va. 760, 421 S.E.2d 511:

Affirming a conviction of first-degree murder without mercy of a defendant charged with killing an acquaintance, the Court held that (1) it is permissible to allow jurors to take notes as long as proper voir dire is permitted concerning the jurors' capacity to take notes, and a cautionary instruction is given concerning the proper and improper uses of notetaking; (2) it is improper for a trial court to reduce a verdict of first-degree murder without mercy to first-degree murder with mercy; and (3) ineffective assistance will rarely be found on appeal, but should be developed in a habeas corpus proceeding.

State of West Virginia v. Richard A. Knotts, No. 20522 (W. Va. July 23, 1992) (Workman, J.): 187 W.Va. 795, 421 S.E.2d 917:

Affirming the first-degree murder without mercy conviction of a defendant charged with killing the current boyfriend of his brother's ex-girlfriend, the Court found permissible the use of an otherwise inadmissible statement for impeachment purposes, holding that where a voluntary statement is inadmissible due to a violation of the prompt presentment statute, the statement may be admissible for impeachment purposes if the accused testifies inconsistent with the statement.

State of West Virginia v. Carl Morris, No. 20906 (W. Va. July 22, 1992) (Brotherton, J.) (as modified): 187 W.Va. 737, 421 S.E.2d 488:

Extending its holding in State ex rel. Moomau v. Hamilton, 184 W. Va. 251, 400 S.E.2d 259 (1990), the Court held that a defendant convicted of driving while DUI-revoked for a third or subsequent offense is not eligible for probation, home confinement, or other alternative sentencing. Later, however, in a modified opinion filed July 22, 1992, the Court imposed a moratorium on the statute, permitting home confinement until the opening of the new penitentiary.

State of West Virginia v. Marvin John Thomas, No. 20676 (W. Va. July 15, 1992) (Neely, J.): 187 W.Va. 686, 421 S.E.2d 227:

In an important case involving the processing of forensic evidence, the Court reversed a conviction of first-degree murder, holding that (1) when the government performs a complicated test on evidence that is important to the determination of guilt, and in so doing eliminates the possibility of an independent replication of the test, the government must preserve as much documentation of the test as is reasonably possible to allow for a full and fair examination of the results by the defendant's experts. On separate issues, the Court held that (1) the existence of probable cause for issuing warrants will be reviewed using a totality of the circumstances test; (2) identical facts can provide probable cause supporting the issuance of more than one search warrant; and, (3) when false or unreliable information is presented to secure a warrant, the warrant is still valid if probable cause would have existed, based upon other evidence considered by the magistrate, in the absence of the false or unreliable information.

State of West Virginia v. Jay Montgomery Brown, No. 20472 (W. Va. July 10, 1992) (Workman, J.): 188 W.Va. 12, 422 S.E.2d 489:

Overturning the dismissal of an indictment for 17 counts of embezzlement by a public official, the Court held that embezzlement by a public official, under W. Va. Code § 61-3-20, does not require evidence of specific intent, but evidence that the public official intended to perform the act that resulted in embezzlement is alone sufficient.

State of West Virginia v. Michael Lewis, No. 20930 (W. Va. July 6, 1992) (Miller, J.): 188 W.Va. 85, 422 S.E.2d 807:

Rejecting an attempt to seek interlocutory review of the denial of a motion to suppress, the Court held that W. Va. Code § 58-5-2 does not permit the certification of questions in criminal cases. On another issue, the Court held that although the prosecution can promptly seek a writ of prohibition in a criminal case where the trial judge lacks jurisdiction or has abused discretion, if it relies upon the latter ground, it must demonstrate that the judge's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction.

State of West Virginia v. Gary Paul Kerns, No. 20485 (W. Va. July 1, 1992) (McHugh, C.J.): 187 W.Va. 620, 420 S.E.2d 891:

Rejecting the imposition of payment of special prosecutor fees pursuant to a criminal conviction, the Court held that W. Va. Code § 62-12-9 does not allow a circuit court to impose, as a condition of probation, the payment of special prosecutor fees. On a separate issue, the Court also noted that where a special prosecutor is appointed due to the disqualification of the regular prosecutor, it is not error for the trial court to deny a motion to remove the special prosecutor following reindictment when the reasons for the regular prosecutor's initial disqualification remain in effect.

State of West Virginia v. William Jones, No. 20657 (W. Va. June 26, 1992) (Miller, J.) 187 W.Va. 600, 420 S.E.2d 736:

Affirming the habitual criminal conviction of a defendant who held a Sears repairman hostage until his stove was repaired or replaced, the Court held (1) the remoteness of prior felonies is irrelevant for purposes of habitual criminal prosecutions; (2) imposition of a life recidivist sentence does not depend on the prior imposition of the 5-year enhancement under W. Va. Code § 61-11-18; and (3) where more than the statutory number of prior convictions have been proved, excess convictions are surplusage and do not affect the validity of a habitual criminal conviction.

State of West Virginia v. Patrick Shawn Johnson, No. 20197 and State of West Virginia v. Larry Barber, (W. Va. May 29, 1992) (Miller, J.) 187 W.Va. 360, 419 S.E.2d 300:

Affirming sentence enhancements imposed following jury findings regarding use of a firearm, the Court held that (1) W. Va. Code § 62-12-2 prohibits probation for a person convicted of committing a felony with the use, presentment, or brandishing of a firearm; (2) W. Va. Code § 21-12-2 allows the prosecution to give notice of intention to seek enhancement by either a statement in the indictment or other written statement; and (3) a trial court has no obligation to inform the jury of the effect of the finding of use of a firearm.

State of West Virginia v. Gary Wheeler, No. 20286 (W. Va. May 28, 1992) (Brotherton, J.) 187 W.Va. 379, 419 S.E.2d 447:

Rejecting a claim of reversible error arising from testimony by the victim's widow, the Court held that although evidence that a homicide victim was survived by a spouse or children is inadmissible, the admission of such evidence does not necessarily constitute reversible error.

State of West Virginia v. Robert M. Gray, No. 20733 (W. Va. May 28, 1992) (Neely, J.) 187 W.Va. 283, 418 S.E.2d 597:

Affirming the defendant's conviction of killing an off-duty deputy sheriff performing insurance surveillance work during a foiled arson, the Court rejected the contention that the jury had been tainted by members by personal knowledge of a codefendant's guilty plea acquired during their service on the codefendant's jury, holding that a juror is not disqualified solely because he or she was impaneled to serve as a juror at the trial of a different defendant charged with crimes arising from the same events.

State of West Virginia v. Denzil Delaney, No. 19837 (W. Va. April 16, 1992) (Brotherton, J.): 187 W.Va. 212, 417 S.E.2d 903:

Affirming a six-count conviction of sexual assault, the Court rejected the defendant's argument that the trial court erred in refusing to permit the alleged child victims to be physically and psychologically examined by his experts, holding that a defendant must present evidence of a "compelling need or reason" for such examinations. The Court set forth a six-part test for determining when independent examinations may be warranted: (1) the nature of the examination requested; (2) the age of the victim; (3) the potential trauma to the victim; (4) the probative value of the results of the requested examination; (5) the period of time since the alleged criminal act; and, (6) the evidence already available to the defendant.

State of West Virginia ex rel. Frankie Allan Phillips v. Shirley Boggess, Court Reporter for the Circuit Court of Nicholas County, No. 20914 (W. Va. April 3, 1992) (McHugh, C.J.): 187 W.Va. 153, 416 S.E.2d 270:

After circuit court ordered court reporter not to prepare a transcript for a defendant whose guilty plea was contingent upon his agreement not to pursue his appeal rights, the Court held that (1) a transcript request is not tantamount to an appeal; (2) an indigent criminal defendant is entitled to a trial transcript without endangering a plea agreement contingent upon his forsaking his appeal rights; and (3) if such defendant chooses to file a timely appeal, the prosecution may move to rescind the plea agreement.

State of West Virginia v. Terry A. Gill, No. 20155 (W. Va. March 24, 1992) (Miller, J.): 187 W.Va. 136, 416 S.E.2d 253:

Affirming convictions of sexual assault, sexual abuse, and sexual abuse by a parent, custodian, or guardian, for the same acts, the Court rejected the defendant's double jeopardy arguments, holding that (1) the Blockburger "same evidence" test does not apply where there is clear indication of a contrary legislative intent; (2) a claim that the double jeopardy clause has been violated based upon multiple punishments for the same act is to be resolved by determining the legislative intent as to punishment; (3) where legislative intent is not clear, the Blockburger test should be applied; and (4) a legislative statement in W. Va. Code § 61-8D-5(a), the sexual abuse by a parent, custodian, or guardian statute, that "[i]n addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection," clearly and unequivocally establishes a legislative intent for multiple punishments for the same criminal acts when the statutory criteria are met.

Committee on Legal Ethics of The West Virginia State Bar v. Charles F. Printz, Jr., No. 20665 (W. Va. March 23, 1992) (Neely, J.): 187 W.Va. 182, 416 S.E.2d 720:

Holding that it would have been improper to prosecute an attorney for compounding a felony or misprision of a felony under W. Va. Code § 61-5-19, the Court held that a penal statute may become void under the doctrine of desuetude if (1) the statute proscribes acts that are malum prohibitum and not malum in se; (2) there has been open, notorious, and pervasive violation of the statute for a long period; and (3) there has been a conspicuous policy of nonenforcement of the statute.

Gary Allen Gibson v. Carl E. Legursky, Warden, West Virginia Penitentiary, No. 20628 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 51, 415 S.E.2d 457:

Rejecting a habeas corpus challenge to the multiple use of felony convictions to impose two separate life recidivist sentences, the Court held that double jeopardy principles are not violated merely because earlier convictions used to establish a recidivist conviction are subsequently used to support a second recidivist conviction.

State of West Virginia v. Kennie Childers, No. 20426 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 54, 415 S.E.2d 460:

Reversing the conviction of a coal company president who violated an administrative order to secure a wage bond on the grounds that the indictment named the wrong statute and otherwise failed to specify the elements of the offense charged, the Court held (1) it is not essential to name the corporation in an indictment of a corporate officer as long as tl by a defendant to take a polygraph test is inadmissible in criminal trials.

State of West Virginia v. Phillip A. Ward, No. 19797 (W. Va. July 29, 1991) (Workman, J.): 188 W.Va. 380, 424 S.E.2d 725:

Where counsel for the defendant, who was convicted of first-degree murder without a recommendation of mercy and aggravated robbery, was not provided with an eyewitness statement that the another individual, not fitting the defendant's description, was observed at the scene of the crime, the Court rejected a Brady challenge, applying a harmless error analysis. Where the trial court refused to permit the defendant's uncle to testify on rebuttal to explain where he had obtained money used to buy a stereo on the day of the murder, on the grounds that such witness had to been disclosed during discovery and failed to comply with a seques ration order, the Court firmed, holding that (1) if a defendant's explanation for failure to disclose the identity of a witness indicates that the omission was willful and motivated by a desire to obtain a tactical advantage, a trial court may preclude the undisclosed witness from testifying, and (2) the preclusion of testimony for violating a sequestration order is proper where the violation undermines the integrity of the evidence sought to be presented.

State of West Virginia ex rel. Lawrence Redman, Jr. v. Jerry C. Hedrick, Warden, West Virginia Penitentiary, No. 19510 (W. Va. July 25, 1991) (McHugh, J.): 185 W.Va. 709, 408 S.E.2d 659:

Where the defendant was not present at a hearing on a motion to continue, which was granted, and a hearing on a motion to change the place of detention, which was also granted, the Court affirmed, holding that a criminal defendant's absence at a critical stage of the proceedings is not reversible error where there was no possibility of prejudice. Where the trial judge who presided over the grand jury proceedings had served as an assistant prosecutor during the initial stages of the defendant's prosecution, the Court reversed and remanded, holding that when such a potential conflict is challenged, the record of the grand jury proceeding must be made a part of the record in order to determine whether the defendant suffered any prejudice.

State of West Virginia v. Karen Sue DeBerry, No. 19990 (W. Va. July 25, 1991) (McHugh, J.): 185 W.Va. 512, 408 S.E.2d 91:

Where mother encouraged her 12-year-old daughter to consume alcohol at a party until she lost consciousness, gave her daughter's unconscious body to a man at the party to carry home where he raped her, after which the daughter died from acute ethanol intoxication, the Court reversed a trial court's dismissal of a charge of causing serious bodily injury to a child by felonious neglect, holding that (1) there is no requirement of proof of intent in a prosecution under W. Va. Code § 61-8D-4(b) for felonious neglect of a minor child causing serious bodily injury, and (2) the use of the term "neglect" in W. Va. Code § 61-8D-4(b), which is defined in W. Va. Code § 61-8D-1(6) as "unreasonable failure by a parent . . . to exercise a minimum degree of care to assure said minor child's physical safety or health," does not render the statute unconstitutionally vague, because it gives persons of ordinary intelligence fair notice of the conduct prohibited and provides adequate standards for adjudication.

State of West Virginia v. Raymond Hayes, No. 19783 (W. Va. July 12, 1991) (McHugh, J.): 185 W.Va. 664, 408 S.E.2d 614:

Where defendant was convicted of issuing a worthless check for payment of a security deposit, the Court affirmed, holding that (1) W. Va. Code § 61-3-39 and § 61-3-39a are not void for vagueness, and (2) a violation of W. Va. Code § 61-3-39a, issuance of a worthless check for a preexisting debt, is not a lesser included offense of W. Va. Code § 61-3-939, issuance of a worthless check to obtain property or a thing of value, which includes a security deposit.

State of West Virginia v. Lola Mae C., No. 19707 (W. Va. July 11, 1991) (Workman, J.): 185 W.Va. 452, 408 S.E.2d 31:

Where prosecution of the defendant, charged with sexually assaulting her stepson by inserting her finger in the boy's anus in preparation of insertion of his father's penis, included the introduction of evidence of assaults by the father of the victim when the defendant was not present, the Court affirmed under the "lustful disposition" exception to R. Evid. 404(b) of State v. Charles Edward L., 183 W.Va. 641, 398 S.E.2d 123 (1990), holding that where collateral act evidence would have been admissible against the principal in the first degree, it is also admissible against and aider and abettor.

State of West Virginia v. Cyrus Jonathan George, No. 19648 (W. Va. July 11, 1991) (Workman, J.): 185 W.Va. 539, 408 S.E.2d 291:

Where defendant allegedly shot the victim once, but was convicted both of malicious assault and attempted murder, the Court affirmed, holding that, inter alia, because malicious assault requires proof of bodily injury, while attempted murder does not, and because attempted murder requires proof of premeditation, while malicious assault does not, the double jeopardy clause does not prohibit, under the Blockburger test, malicious assault and attempted murder convictions for the same act.

State v. Rubin (Skeeter) Julius, No. 19836 (W. Va. July 3, 1991) (Miller, C.J.): 185 W.Va. 422, 408 S.E.2d 1:

Where the defendant's clothing was seized at the time of his booking, the Court affirmed its admissibility, holding that searches and seizures that could be made at the time of arrest may be conducted later when the accused arrives at the place of detention. Where defendant's jacket, described by an eyewitness, was seized from a chair in his home, the Court affirmed its admissibility, discarding the "inadvertent discovery" requirement of State v. Moore, 165 W. Va. 837, 272 S.E.2d 814 (1980) and State v. Stone, 165 W. Va. 266, 268 S.E.2d 50 (1980), and holding that the factors supporting a plain view warrantless seizure are (1) no fourth amendment violation by the officer in occupying the location from which incriminating evidence could be observed; (2) presence of the evidence in plain view with an immediately apparent incriminating character; and (3) a lawful right of access by the officer to the evidence. The Court also rejected sixth amendment challenges to the seizure of this evidence, holding that physical evidence lawfully seized from a defendant who has been lawfully arrested, even after exercise of his right to counsel, does not render such evidence inadmissible under the sixth amendment. On another issue, the Court rejected the defendant's challenge to a conviction of malicious assault of an individual whom he contended he was unaware occupied a building which he set afire, holding that under the doctrine of transferred intent, when a person intends to harm another, but in the course of attempting such harm, accidently harms another person, the person's intent will be transferred to the third party.

State of West Virginia v. Edward H. Young, No. 19647 (W. Va. June 28, 1991) (McHugh, J.): 185 W.Va. 327, 406 S.E.2d 758:

In a dentist's appeal of multiple convictions of unlawfully prescribing various controlled substances, the Court held (1) the elements of the offense of felonious constructive delivery of a controlled substance by a purported prescription issued by a registered physician, dentists, or other practitioner, are (a) constructive delivery of a controlled substance requiring a valid prescription by the issuance of a purported prescription on behalf of a purported patient who received the controlled substance from a pharmacist who filled such prescription and (b) issuance of the prescription intentionally and knowingly outside the usual course of professional practice or research; (2) an indictment of the offense of felonious constructive delivery of a controlled substance by a purported prescription issued by a registered physician, dentist, or other practitioner, must charge that the prescription was issued without a legitimate medical, dental, or other authorize purpose; and (3) although the indictments in the instant case did not precisely follow the language of the statute, the Court held such indictments proper, stating that there is flexibility in the selection of the charging terms for the felonious prescribing of controlled substances.

State of West Virginia v. Larry Caskey and Sandra Caskey, No. 20018 (W. Va. June 27, 1991) (Brotherton, J.): 185 W.Va. 286, 406 S.E.2d 717:

Where the defendants sought probation following entry of pleas of guilty in magistrate court to misdemeanor charges of child neglect, the Court prescribed the following procedures: (1) a defendant may request probation for a misdemeanor plea or conviction by filing a petition in circuit court; (2) a copy of the petition must be served on the prosecution; (3) the prosecution must have an opportunity to respond to the petition; and (4) the circuit court may immediately grant probation, deny probation, or may direct a presentence investigation.

State of West Virginia v. Andrew G. Hlavacek, No. 19699 (W. Va. June 27, 1991) (Brotherton, J.): 185 W.Va. 371, 407 S.E.2d 375:

Where a defendant, who did not appear to pose any threat to an officer's safety, was asked to empty his pockets, which produced three marijuana cigarettes and a pair of surgical scissors, the Court held that such "protective search" was unreasonable under the circumstances and violated the defendant's four amendment rights. Moreover, because the affidavit for a subsequent search warrant of the defendant's vehicle, which produced one pound of marijuana, relied solely upon the fruits of this unlawful search and information supplied by an unidentified confidential informant, the Court found such subsequent search illegal, holding that when information provided by a confidential informant is used in an affidavit for a search warrant, the affidavit must also contain information which sufficiently establishes the basis of the informant's knowledge and lends credibility to the informant's statements. Finally, while the Court recognized that independent police work may corroborate information contained in an affidavit for a search warrant, it held that such investigation must uncover details that are significant and specific in strengthening the confidential informant's credibility.

State of West Virginia v. Jeffrey A. Ward, No. 19704 (W. Va. May 9, 1991) (Brotherton, J.): 185 W.Va. 361, 407 S.E.2d 365:

Rejecting a challenge to sentencing which occurred almost three years after the defendant was convicted, the Court restated its holding in the single syllabus of Ball v. White, 170 W.Va. 417, 294 S.E.2d 270 (1982), that, in order to constitute a violation of the defendant's right to due process, delay in sentencing must be purposeful, oppressive, or otherwise prejudicial. Further rejecting a challenge to a four-month jail sentence as a condition to the two years' probation received by the defendant when his sentence of 1-10 years for daytime burglary was imposed, the Court held that, as a condition of probation, a court may require, under W. Va. Code § 62-12-9(4), that a probationer "serve a period of confinement in the county jail . . . not to exceed one third of the minimum sentence established by law . . . , but in no case shall such period of confinement exceed six consecutive months."

State of West Virginia ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Willie "Doc" Williams, No. 19855 (W. Va. April 25, 1991) (McHugh, J.): 185 W.Va. 72, 404 S.E.2d 763:

Affirming a trial court's decision to accept a guilty plea, but to impose a sentence different from that in plea agreement, the Court held that (1) when the state agrees to make a sentencing recommendation and enters into a plea agreement with the defendant pursuant to Rule 11(e) (1) (B) of the Rules of Criminal Procedure, the trial court is not bound to impose the sentence recommended by the state; (2) when the state agrees that a specific sentence is a suitable disposition and enters into a plea agreement pursuant to Rule 11(e) (1) (C) of the Rules of Criminal Procedure, the trial court may accept or reject the agreement, but may not accept the guilty plea and impose a different sentence; and, (3) when it is not clear whether the plea agreement has been entered into pursuant to Rule 11(e) (1) (B) or Rule 11(e) (1) (C) of the Rules of Criminal Procedure, the trial court may sentence the defendant without being bound by the sentencing provision in the plea agreement.

State of West Virginia ex rel. Benjamin Roach v. Jerry Dietrick, Superintendent, Eastern Regional Jail, No. 20005 (W. Va. April 17, 1991) (Miller, C.J.): 185 W.Va. 23, 404 S.E.2d 415:

Where the prosecution sought to set aside a guilty plea after the defendant was released pursuant to the department of corrections' calculation of good time credit, the Court ordered the defendant's discharge from further prosecution, holding that a person who has been incarcerated in jail awaiting sentencing, and who is credited with presentence jail time under W. Va. Code § 61-11-24, is also entitled to receive good time credit under W. Va. Code § 28-5-27(c) for the presentence jail time.

Kathy Jo Schofield v. West Virginia Department of Corrections, No. 19708 (W. Va. March 15, 1991) (Neely, J.): 185 W.Va. 199, 406 S.E.2d 425:

Where trial counsel knew that defendant's direction to seek either an acquittal or a manslaughter conviction was virtually impossible to achieve, knew that defendant's mental ability was limited, and knew of the defendant's history of social, emotional, and family problems, which could have been introduced in mitigation of punishment without inviting overwhelming counter-evidence, the Court affirmed the trial court's finding that trial counsel was unconstitutionally ineffective, affirming its standard of review set forth in Syllabus Point 19 of State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1975).

State of West Virginia ex rel. Darrell Gene Knotts and Rosalee Juba-Plumley, Special Prosecuting Attorney for the 29th Judicial Circuit v. Honorable Clarence L. Watt, III, Judge of the 29th Judicial Circuit, No. 20207 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 518, 413 S.E.2d 173:

Rejecting a request to dismiss an indictment based upon a conflict of interest by an assistant prosecutor at the time of the indictment who took no part in the prosecution, the Court held (1) where the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, any resulting indictment should be dismissed; (2) where the structural protections of the grand jury have not been so compromised as to render the proceedings fundamentally unfair, dismissal of any resulting indictment is appropriate only where the violation substantially influenced the decision to indict or there is grave doubt about the independence from taint of the grand jury's decision to indict; and (3) where a disqualified assistant prosecutor did not participate in the investigation or presentment of a case to the grand jury, and did not influence procurement of the indictment, a dismissal is not mandated merely because the assistant prosecutor was disqualified from participating.

State of West Virginia v. Stephen W. Hatfield, No. 19987 (W. Va. December 19, 1991) (McHugh, J.): 186 W.Va. 507, 413 S.E.2d 162:

Where defendant, who had attempted suicide following his arrest and was examined for mental disturbance, entered a guilty plea to first-degree murder without mercy, despite protests from his attorneys, the Court remanded, holding that where a defendant attempts suicide following a determination of mental competency, then, without further examination, tenders a plea of guilty against the advice of counsel to a charge of first degree murder, the trial court should inquire into the customary areas, as well as require (1) counsel to state on the record why counsel opposes the plea; (2) the defendant to acknowledge on the record that he or she understands counsel's statements; and (3) that despite this understanding, the defendant still desires to enter a plea of guilty.

State of West Virginia v. Stewart Martin Elliott, No. 20128 (W. Va. December 13, 1991) (Workman, J.): 186 W.Va. 361, 412 S.E.2d 762:

Where defendant killed mother, raped her daughter, and stole items from their residence, the Court clarifying its holding in State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983), held that where there is more than one underlying felony supporting a felony murder conviction, and one of the underlying felonies is committed upon a separate victim from the murder victim, that felony does not merge with the felony murder conviction for purposes of double jeopardy.

State of West Virginia ex rel. Department of Transportation, et al. v. Honorable A. L. Sommerville, Jr., Judge of the Circuit Court of Webster County; Thomas Arthur Grimes; and Melvin Cox, No. 20324 (W. Va. December 12, 1991) (McHugh, J.): 186 W.Va. 271, 412 S.E.2d 269

Reversing a circuit court injunction prohibiting authorities from weighing suspected overweight vehicles if the driver refuses to submit the vehicle to weighing, the Court held that (1) where a statute is both remedial and penal, its remedial provisions should be liberally construed to achieve the purposes of the statute and its penal provisions should be strictly construed to enforce the penalties provided, and (2) W. Va. Code § 17C-17-10(a) permits authorities to "require the driver of any vehicle . . . to stop and submit such vehicle . . . to a weighing," even where the driver refuses to comply with W. Va. Code § 17C-17-10, and is subject to a separate criminal penalty.

State of West Virginia v. Mary M. Burd, No. 20001 (W. Va. December 11, 1991) (Workman, J.): 187 W.Va. 415, 419 S.E.2d 676:

Affirming the defendant's convictions of conspiracy to commit murder and attempted murder of her lover's wife and son arising from (1) payment of $150 to her co-conspirator for the purchase of a gun to commit the murder; (2) tender to her co-conspirator of a map to the victims' home, a physical description of both victims, a sketch of the interior of the home, and an envelope containing a suicide note; (3) discussion with her co-conspirator of his travel arrangements, the method of gaining entry into the home, the manner in which the murder should occur, and the appearance of the crime scene; and (4) payment of $500 to her co-conspirator as a down payment, the Court held that where formation of criminal intent is accompanied by preparation to commit the crime of murder and a direct overt and substantial act toward its perpetration, the requirements for the crime of attempted murder have been met.

State of West Virginia v. Larry Eldon James, No. 19938 (W. Va. November 20, 1991) (Neely, J.): 186 W.Va. 173, 411 S.E.2d 692:

Rejecting a Brady challenge to the prosecution's alleged failure to disclose that his co-defendant was receiving probation in exchange for his testimony and that, despite his statements to the probation department to the contrary, he was AWOL from the Navy, the Court held that although the prosecution must disclose all inducements given to witnesses in exchange for their testimony at a criminal defendant's trial, the defendant in the instant case had not sufficiently developed the evidence on the alleged inducement, but was invited to institute habeas corpus proceedings to develop such record, and that the evidence regarding the co-defendant's misrepresentations about his military status was unrelated to any claim of witness bias or interest.

State of West Virginia v. Melissa Walters, No. 20110 (W. Va. November 18, 1991) (McHugh, J.): 186 W.Va. 169, 411 S.E.2d 688:

Rejecting the prosecution's appeal from the dismissal of misdemeanor battery complaints, the Court held that W. Va. Code § 58-5-30 does not authorize an appeal by the State from the dismissal of a criminal complaint initially filed in magistrate court.

State of West Virginia ex rel. James F. Painter v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20203 (W. Va. October 31, 1991) (Brotherton, J.): 186 W.Va. 82, 411 S.E.2d 25:

Where co-conspirator committed suicide during police chase, the Court held that other co-conspirators could not be charged with felony-murder if the only death which occurred during the commission of the underlying felony was the suicide of a co-conspirator in the criminal enterprise.

State of West Virginia ex rel. O.C. Spaulding, Prosecuting Attorney for Putnam County v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Michael B. Pauley, No. 20384 (W. Va. October 17, 1991) (Miller, C.J.): 186 W.Va. 125, 411 S.E.2d 450:

Reversing a trial court order for a witness to submit to deposition by a criminal defendant, the Court held that even though a potential witness in a criminal proceeding is unwilling to talk to an attorney or an investigator for a defendant, W. Va. R. Crim. P. 15 authorizes a court to order a deposition only when it is necessary to preserve the testimony of a witness who will be unavailable for trial.

State of West Virginia v. James William Smith, No. 19958 (W. Va. October 16, 1991) (Neely, J.): 186 W.Va. 33, 410 S.E.2d 269:

Reversing a second-degree murder conviction based, in part, on a confession obtained after a seven-hour interrogation at the conclusion of which the defendant was taken to the emergency room of a local hospital where he was treated for cuts, bruises, and a ruptured eardrum, the Court held that although confessions that are legally involuntary may be used for the limited purpose of impeachment, confessions that are factually involuntary may not be used for any purpose. Similarly, with respect to an article of clothing seized with the "consent" of the defendant after the seven-hour "interrogation," the Court held that consent to a search or seizure that is factually involuntary is invalid.

State of West Virginia v. Gary Wayne Miller, No. 19593 (W. Va. December 19, 1990) (McHugh, J.): 184 W.Va. 367, 400 S.E.2d 611:

Reversing convictions of grand larceny, forgery and uttering, the Court held that the failure of a trial court to instruct the jury on all essential elements of the offenses charged deprives the accused of his fundamental right to a fair trial, and constitutes reversible error.

State of West Virginia v. John Allen Whitt, No. 19544 (W. Va. December 14, 1990) (Miller, J.): 184 W.Va. 340, 400 S.E.2d 584:

Rejecting a challenge to the admissibility of a recording of a telephone conversation between the defendant and a citizen who was cooperating with police, the Court held that 18 U.S.C. § 2511 (2) (c) permits the admission of evidence derived from intercepted wire or oral communications where the interceptor is acting under color of law and is a party to the communication or where the interceptor is acting under color of law and one of the parties to the communication has given prior consent. Moreover, the Court held that if there is an allegation consent was coerced, the State must show there were no undue pressure, threats or promises.

State of West Virginia ex rel. Fredtricia Natalie Johnson v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; and William C. Forbes, Prosecuting Attorney of Kanawha County, No. 19827 (W. Va Deember 14, 1990) (Miller, J.): 184 W.Va. 346, 400 S.E.2d 590:

Prohibiting the prosecution of a defendant who was indicted more than one year after misdemeanor charges were dismissed by the prosecution, the Court held that where a misdemeanor warrant in magistrate court is dismissed, further prosecution for the same offense after one year has passed since execution of the original warrant is precluded unless the record shows one or more of the exceptions contained in W. Va. Code § 61-3-21.

State of West Virginia v. James Edward S., No. 19577 (W. Va. December 12, 1990) (Miller, J.): 184 W.Va. 408, 399 S.E.2d 42:

Reversing an incest conviction obtained, in part, through the testimony of a social worker regarding extrajudicial statements made by the defendant's daughter, who did not appear at trial, the Court held such testimony will not be held violative of the Confrontation Clause only if the prosecution affirmatively demonstrates that (1) substantial diligence was expended to obtain the witness's attendance, and (2) the testimony bears adequate indicia of reliability, such as where the evidence falls within a hearsay exception. Moreover, the Court held that the Confrontation Clause precludes residual hearsay testimony under R. Evid. 803(24) and 804(b) (5) unless there is a specific showing, apart from any corroborating evidence, of particularized guarantees of trustworthiness. Although not held reversible under the circumstances presented, the Court held that where a party seeks to introduce a prior inconsistent statement indicating witness bias, which might lead the witness to slant, unconsciously or otherwise, testimony in favor of or against a party, three factors must be present: (1) the statement must be a prior inconsistent statement of the witness, (2) the witness must be given an opportunity to explain or deny having made the statement, and (3) the opposing party must be afforded an opportunity to interrogate the witness concerning the statement.

State of West Virginia v. Raymond Housden, No. 19644 (W. Va. November 29, 1990) (Workman, J.): 184 W.Va. 171, 399 S.E.2d 882:

Rejecting a challenge to a sentence imposing consecutive life recidivist and 1-10 year sentences, the Court held that for multiple convictions rendered on the same day, sentences may be imposed which run consecutively, even though one of those convictions is subject to enhancement under W. Va. Code § 61-11-19.

State of West Virginia v. Brigitte Wickline, No. 19494 (W. Va. October 24, 1990) (Miller, J.): 184 W.Va. 12, 399 S.E.2d 42:

Affirming a conviction of first-degree murder, the Court held that where evidence demonstrated that any delay in presenting the defendant to a magistrate was not for the purpose of obtaining her confession, but rather was for routine processing of the crime scene and suspect, failure to suppress a confession voluntarily given upon the defendant's arrival at the police station did not constitute error. On an unrelated issue, the Court held that despite its belief that the defendant's assertion of ineffective assistance of counsel might have some merit, the record on appeal was inadequate to resolve the claim, which it suggested should be developed by writ of habeas corpus.

State of West Virginia v. Michael Perolis, No. 19607 (W. Va. October 18, 1990) (Neely, C.J.): 183 W.Va. 686, 398 S.E.2d 512:

Where defense counsel was precluded from asking leading questions of the prosecutrix in a sexual assault case regarding handwritten notes tending to impeach her direct testimony that she had not returned to the defendant's home following the assault, the Court reversed, holding that when a party calls a hostile witness, an adverse witness, or a witness identified with an adverse party, interrogation may be conducted by leading questions.

Robert Craigo v. Carl Legursky, Warden, West Virginia Penitentiary, No. 19728 (W. Va. October 4, 1990) (Workman, J.): 183 W.Va. 678, 398 S.E.2d 160:

Rejecting a prisoner's challenge to a charge of escape following his departure from work release without permission, the Court held that because a convict who is transferred to work release remains in the custody of the department of corrections, such convict is guilty of felony escape if he or she leaves without permission.

State of West Virginia v. Edward Charles L., No. 19004 (W. Va. July 27, 1990) (Workman, J.): 183 W.Va. 641, 398 S.E.2d 123:

Overruling State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), in affirming sexual assault and sexual abuse convictions based, in part, on evidence, unrelated to the specific crimes charged, that the defendant (1) fondled his infant son through a diaper, (2) engaged in phone sex in the presence of his children, (3) deposited ejaculate into a bag of his daughter's underwear, (4) touched his groin area through his trousers, (5) masturbated following sex with his wife, (6) leaned against the washing machine during its spin cycle, (7) copulated with the family dog, (8) removed his vasectomy stitches during masturbation, and (9) stimulated himself rectally in the presence of his son as he looked at Hustler magazine, holding that when a defendant is charged with "child sexual assault or sexual abuse," collateral acts or crimes may be introduced to show "the perpetrator" had a "lustful disposition" toward the victim, other children, or children generally, provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. Distinguishing Syl. pt. 3 of State v. Murray, 180 W.Va. 41, 375 S.E.2d 405 (1988), in which the Court had held that, "[o]ut-of-court statements made by the victim of a sexual assault may not be introduced by a third party unless the statements qualify as an excited utterance," in affirming the admission of hearsay testimony regarding statements made by the alleged victims to their psychologist four years after the incidents described, the Court held that if a declarant's motive in making a hearsay statement is consistent with the purposes of promoting treatment and its content is such as is reasonably relied upon by a physician in treatment of diagnosis, such hearsay statement is admissible. The Court further extended this rule to affirm the trial court's admission of a similar hearsay statement by the alleged victims' mother on the theory that they were primarily offered to explain why she sought psychological treatment for the victim. Finally, distinguishing State v. McCoy, 179 W.Va. 223, 366 S.E.2d 731 (1988), in which the Court had held that an expert may "not give an opinion, expressly or implicitly, as to whether or not the alleged victim was raped," in affirming the trial court's admission of testimony by the psychologist that, "[I]t's my opinion that [the victims were] sexually abused," the Court held that in cases of "child sexual abuse" an expert may state an opinion based on "objective findings" as to whether the child comports with the psychological and behavioral profile of a child sexual abuse victim.

State of West Virginia v. Charles Ray Merritt, No. 19489 and Charles Ray Merritt v. Carl Legursky, Warden, West Virginia Penitentiary, No. 19488 (W. Va. July 26, 1990) (Workman, J.): 183 W.Va. 601, 396 S.E.2d 871:

Despite an eight-year delay in the perfection of an appeal, the Court held that notwithstanding the length of any delay, once a defendant's appeal has been adjudicated on the merits, the defendant is not entitled to habeas corpus relief.

State of West Virginia v. John W. Schoolcraft, No. 19303 (W. Va. July 25, 1990) (Brotherton, J.): 183 W.Va. 579, 396 S.E.2d 760:

Where the defendant was convicted of two separate counts that had been severed prior to trial, the Court reversed, holding that although an indictment may charge more than one offense, a defendant may be convicted only of those charges that are prosecuted at trial. Where the trial court had rejected a defense request to introduce for purposes of impeachment a videotaped interview after the alleged sexual assault victim stated she could not recall the interview, the Court reversed, holding that where a witness cannot recall a prior statement or denies making it, the statement may be introduced for purposes of impeachment.

State of West Virginia v. Betty Jean Kelly, No. 19368 (W. Va. July 25, 1990) (Miller, J.): 183 W.Va. 509, 396 S.E.2d 471:

Rejecting a wife's forgery defense that her husband had authorized her to sign his name, the Court held that in order to sustain a conviction for forgery, the State must prove that: (1) the accused falsely made or altered a writing; (2) the accused did so with intent to defraud; and, (3) the writing so created or altered is of such a nature that if it were genuine it could prejudice the legal rights of another. The Court further held that it is not necessary to show actual prejudice to the rights of another to sustain a forgery conviction as long as there was intent to defraud and potential prejudice to the rights of another. Finally, the Court held that subsequent ratification of a forgery will not excuse the crime.

State of West Virginia v. Paul William Ferrell, No. 19401 (W. Va. July 24, 1990) (Neely, C.J.): 184 W.Va. 123, 399 S.E.2d 834:

In affirming convictions of kidnapping, second-degree murder, and third-degree arson based upon circumstantial evidence, including the fact that the defendant had telephoned bookstores and libraries throughout the country posing as a physician seeking information on anal sex, the Court held: (1) evidence of these phone calls was admissible to show a motive for these crimes, i.e., obtaining sexual gratification, as well as to prove the kidnapping charge; (2) expert evidence that the defendant's body language constituted an admission of guilt was harmless in light of other evidence properly admitted; and, (3) reference in the trial court's instruction to the "guilt or innocence of the accused" was not reversible in light of other instructions on the State's obligation to prove the defendant's guilt beyond a reasonable doubt.

State of West Virginia v. Thomas Eugene Sayre, No. 19214 (W. Va. July 24, 1990) (Brotherton, J.): 183 W.Va. 376, 395 S.E.2d 799:

Rejecting a double jeopardy challenge to second and third-degree sexual assault convictions arising from a single act of intercourse between a 25 year old male and 15 year old female, the Court held that because consent, which is irrelevant to a charge of third-degree sexual assault, is a necessary element of the crime of second-degree sexual assault, the convictions passed the Blockburger test.

State of West Virginia ex rel. Eugene Blake v. Honorable Robert G. Chafin, Judge of the Circuit Court of Wyoming Co., No. 19362 (W. Va. July 11, 1990) (Workman, J.): 183 W.Va. 269, 395 S.E.2d 513:

Reversing a trial court's rejection of a prisoner's habeas corpus petition on the ground that it attacked only one of two concurrent life sentences, the Court held that even where habeas corpus review of a conviction will not alter the circumstances of a prisoner's confinement, a trial court must still render a ruling on the merits and may not summarily dismiss.

State of West Virginia ex rel. Ricky Starr, Michael Bryant, Bobby Chafin, Tim Preece, Albert Rush Cline and Mike Holbrook v. Honorable Robert C. Halbritter, Duly Appointed and Acting Special Judge of the Circuit Court of Logan County, West Virginia, and Donald C. Wandling, Prosecuting Attorney of Logan County, West Virginia, No. 19649 (W. Va. June 28, 1990) (McHugh, J.): 183 W.Va. 350, 395 S.E.2d 773:

Invalidating indictments prepared following the grand jury's vote and which were seen only by their foreperson, the Court held that the failure of a grand jury to vote as a body upon the text of an indictment is a fundamental error so compromising the integrity of the process as to constitute prejudice per se, and any indictment so obtained must be dismissed as void, without prejudice to the right of the State to later seek a valid indictment.

State of West Virginia v. Jesse Braden King, No. 18391 (W. Va. June 28, 1990) (McHugh, J.): 183 W.Va. 440, 396 S.E.2d 402:

Where prosecution impeached testimony of defendant's daughter with videotape of an investigatory interview in which the daughter alleged that her father had engaged in sexual intercourse with her and two sisters, which allegations the daughter contended were the product of duress and coercion by the investigating officer, the Court held that a videotaped interview containing a prior inconsistent statement can be introduced if (1) the contents of the videotape are sufficient for the jury to decide whether the witness was under duress or coerce when making the prior inconsistent statement; (2) a limiting instruction is given that such evidence is to be considered only for the purpose of determining credibility, not as substantive evidence; and, (3) its probative value outweighs its prejudicial effect. Even though defendant's daughter admitted making a prior inconsistent statement, the Court held that the admission of such videotape impeachment evidence was proper.

E.B., Jr., V.E.B., and M.D.H., all juveniles under the age of eighteen years v. Honorable Thomas B. Canterbury and the Honorable John C. Ashworth, Judges of the Tenth Judicial Circuit, and Lawrence R. Frail, Prosecuting Attorney of Raleigh County, No. 19565 (W. Va. June 26, 1990) (Workman, J.): 183 W.Va. 197, 394 S.E.2d 892:

Under W. Va. Code § 49-5-1 to -18, the Court held that until a juvenile is transferred to adult jurisdiction, a grand jury has no authority to return a true bill of indictment against such juvenile.

State of West Virginia v. Arthur Dale Collins, No. 18795 (W. Va. June 22, 1990) (Miller, J.): 186 W.Va. 1, 409 S.E.2d 181:

Where prosecution knew one of its witnesses had recanted a prior statement to police that the defendant had admitted killing the victim and another of its witnesses had recanted a prior statement that the defendant had told their mother that he had severed a romantic relationship with the victim prior to her death, the Court held that a prior statement of a witness, even if given under oath during the course of a police interrogation, is not a statement made subject to the penalty of perjury or during a trial, hearing, or other proceeding as required by Rule 801(d) (1) (A) of the Rules of Evidence. Moreover, rejecting the State's claim that such statement was admissible as impeachment evidence under R. Evid. 607, the Court held that otherwise inadmissible evidence may not be introduced under the guise of impeachment if, under R. Evid. 403, the impeachment value of such evidence is outweighed by its prejudicial effect. Finally, the Court held that even in those cases where impeachment value outweighs prejudicial effect, failure of the trial court to give a cautionary instruction that such evidence cannot be considered as substantive constitutes plain error.

William C. Duncil, Warden v. Hon. Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Judson Warren White, No. 19360 (W. Va. June 12, 1990) (Miller, J.): 183 W.Va. 175, 394 S.E.2d 870:

In prohibiting enforcement of an order by a circuit judge which invalidated a guilty plea and sentenced the defendant to time served, the Court held (1) a defendant has no absolute right to withdraw a guilty plea before sentencing, and a trial court's decision to permit withdrawal will be disturbed only for abuse of discretion; (2) where a defendant seeks to withdraw a guilty plea before sentencing, claiming innocence, a trial court should consider the length of time between entry of the plea and filing of the withdrawal motion, the reason withdrawal was not presented at an earlier point in the proceedings, whether the defendant maintained his innocence through the proceedings, whether the prosecution will suffer prejudice, and whether the defendant has articulated some ground in support of his claim of innocence; (3) although it is improper to enhance a sentence based on a prior invalid conviction, before such sentence will be vacated, the defendant must show the prior conviction was unconstitutional, the sentencing judge mistakenly believed it was valid, and the prior conviction was used to enhance the challenged sentence.

State of West Virginia v. John B. Kerns, No. 19247 (W. Va. June 8, 1990) (McHugh, J.): 183 W.Va. 130, 394 S.E.2d 532:

Reversing a trial court decision that it lacked jurisdiction to consider work release or home confinement for a person convicted in magistrate court of second-offense DUI, the Court held that interpretation of the relevant statutes to permit a circuit court to order work release or home confinement in lieu of incarceration imposed by a magistrate court in a misdemeanor case was consistent with the purposes of the statutes that permit those alternative sentences.

State of West Virginia v. Elbert Wayne Giles, Jr., No. 19048 (W. Va. June 7, 1990) (Brotherton, J.): 183 W.Va. 237, 395 S.E.2d 481:

Where juvenile suspect was transported by officer to police headquarters without sufficient probable cause, was not taken before a judicial officer in a timely manner, and was extensively interrogated in an accusatory fashion, the Court determined that he had been "taken into custody," under W. Va. Code § 49-5-8(d), and should have been afforded a "written statement explaining [his] right to a prompt detention hearing, his right to counsel including appointed counsel if he cannot afford counsel and his privilege against self-incrimination," and that two inculpatory statements which were the product of the interrogation should have been suppressed. On another issue, the Court held that if a murder case is prosecuted under both felony-murder and first-degree murder theories, jury instructions must be given to distinguish between these two theories and verdict forms must be provided so that it can be determined under which theory the conviction is based.

State of West Virginia, ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. The Honorable Patsy McGraw, Magistrate, Kanawha County Magistrate Court, No. 19550 (W. Va. June 4, 1990) (Workman, J): 183 W.Va. 144, 394 S.E.2d 743:

Where defendants were incarcerated pursuant to trespassing complaints containing wrong statutory citation, the Court held that as long as defendants were incarcerated pursuant to other valid complaints which charged offenses for which incarceration was a possible penalty, no prejudice could be claimed, and erroneous citation was not ground for dismissal with prejudice. On another issue, the Court upheld the dismissal of obstruction charges with prejudice due to the prosecution's refusal to present its case because its motion to amend the trespassing complaints was denied.

Irvin Hutchinson v. Jerry Dietrich, Administrator, Eastern Regional Jail, and Honorable Thomas W. Steptoe, Jr., Judge of the Circuit Court of Morgan County, No. 19483 (W. Va. May 17, 1990) (Brotherton, J.): 183 W.Va. 25, 393 S.E.2d 663:

Rejecting defendant's claim that he was entitled to mandatory probation on a charge of delivery of less than 15 grams of marijuana without remuneration, the Court held that such mandatory probation is not available to individuals who are contemporaneously convicted of other drug offenses. Accepting defendant's claim that the trial court improperly enhanced both his marijuana and cocaine sentences using a prior grand larceny conviction, the Court held that convictions rendered on the same day should be treated as a single conviction for purposes of the habitual criminal statute, and only one of such multiple convictions may be enhanced.

State of West Virginia v. Terry Lee Ruggles, No. 19105 (W. Va. May 17, 1990) (Brotherton, J.): 183 W.Va. 58, 394 S.E.2d 42:

Where prosecution offered forensic pathologist who testified regarding trajectory of bullet using a live model to rebut the defendant's claim that gun accidently discharged as the victim was attempting to prevent defendant's suicide, the Court held use of a model to demonstrate an expert's testimony is permissible, provided demonstration is (1) performed circumspectly; (2) not overly gruesome; (3) within the witness's field of expertise; and, (4) assistive to the jury in understanding complicated or confusing testimony.

State of West Virginia v. John R. Maynard, No. 19135 (W. Va. March 30, 1990) (Workman, J.): 183 W.Va. 1, 393 S.E.2d 221:

In an appeal of an aggravated robbery conviction, the Court held that although testimony regarding an anonymous telephone call to the police implicating the defendant was possibly hearsay because, though not admitted for proof of the matter asserted, it was not relevant to the prosecution or the defense, the introduction of other evidence of guilt rendered harmless the admission of such hearsay.

State of West Virginia v. Phillip Porter, No. 18874 (W. Va. March 22, 1990) (McHugh, J.): 182 W.Va. 776, 392 S.E.2d 216:

Where the defendant, who was acquitted of the murder of one of two victims who were killed by the same perpetrator at the same time and place, but was later tried and convicted of the murder of the other victim, the Court held that, under Ashe v. Swenson, 397 U.S. 436 (1970), the principle of collateral estoppel, which precludes relitigation of an issue of ultimate fact that has been formerly determined by a valid and final judgment, might render the defendant's conviction constitutionally defective under the double jeopardy clause, but that remand was necessary for the circuit court to compare the evidence presented in the two trials.

State of West Virginia v. Ronald Eugene Daniel, No. 19301 (W. Va. March 9, 1990) (Brotherton, J.): 182 W.Va. 643, 391 S.E.2d 90:

Where the defendant was convicted of first degree murder and malicious wounding after randomly firing in a van in which he was traveling, which he contended was done in self-defense, the Court held: (1) it was not error for the trial court to refuse to declare a mistrial when one of the defendant's witnesses attempted to bribe a juror, even though the juror failed to report such attempt until after the conclusion of the trial; (2) it was not error for the trial court to give the Ferguson instruction that malice can be inferred from the intentional use of a deadly weapon; and, (3) it was not error for the trial court to include the word "credible" in an instruction regarding the defendant's burden of persuasion on the affirmative defense of accident.

Frank Billotti v. A.V. Dodrill, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden, No. 18534 (W. Va. March 9, 1990) (Brotherton, J.): 183 W.Va. 48, 394 S.E.2d 32:

Although the Court noted criminal defendants have a constitutional right to petition for appeal, including a free transcript and effective assistance of appointed counsel, it held that, even for those sentenced to terms of life imprisonment without possibility of parole, there is no constitutional right to full appellate review. Further, the Court restated its holding that only trial errors involving constitutional violations are subject to review upon a writ of habeas corpus. Finally, the Court restated its holding that an instruction outlining factors to consider for determining whether to grant mercy in a first degree murder case should not be given.

State of West Virginia v. Karl Dietz, No. 18909 (W. Va. March 8, 1990) (on rehearing) (McHugh, J.): 182 W.Va. 544, 390 S.E.2d 15:

Where testimony regarding sexual aspect of homicide was elicited by both the defendant and the prosecution, arising from the discovery of an earring in the victim's vagina, the Court held that where a defendant's witness raises a material issue on direct and testifies adversely to the prosecution upon cross-examination, it is proper to allow the prosecution to present rebuttal evidence. Where medical examiner, who was neither a psychiatrist nor a psychologist, presented rebuttal evidence to the effect that the homicide in question was "psychosexual," the Court held such testimony admissible if based upon such examiner's (1) post mortem examination or review of the report; (2) knowledge of the characteristics of psychosexual homicide; and, (3) experience in post mortem examinations upon similar victims. Although trial court excluded proffered evidence of victim's violent past, the Court held that such testimony may be excluded if the defendant had no prior knowledge of such violent history. Despite trial court's inference during voir dire that defendant would testify, when defendant alleged such decision had not been reached, the Court rejected assignment of error, restating that the conduct of voir dire rests in the sound discretion of the trial court. Finally, the Court determined that no reversible error was committed when the trial court permitted tape recording and transcript of confession to be taken into the jury room during deliberations.

State ex rel. Jim Webb v. Honorable Ronald E. Wilson, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County, No. 19276 and State ex rel. Hugh Wellman v. Honorable Ronald E. Wilson, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County, No. 19279 (W. Va. February 15, 1990) (McHugh, J.): 182 W.Va. 538, 390 S.E.2d 9:

Because the initial indictments were dismissed as void after expiration of three unexcused regular terms of court, the Court held that, under the three-term rule of W. Va. Code § 62-3-21, the defendants were "forever discharged" and could not be prosecuted on the charges contained in the indictments.

State of West Virginia v. Steve Adkins, No. 19255; State of West Virginia v. Goodwill Motors, Inc., a corporation, Jack Webb, Joey Kohari, and Hugh Wellman, No. 19256; State of West Virginia v. Irvin "K.O." Damron, No. 19257; State of West Virginia v. Samuel Kapourales, No. 19248; State of West Virginia v. Robert Simpkins, No. 19259; State of West Virginia v. Paul Sizemore, No. 19260; State of West Virginia v. R. Doyle Van Meter, II, No. 19261; and, State of West Virginia v. W. Thomas Ward, No. 19262 (W. Va. December 20, 1989) (Brotherton, C.J.): 182 W.Va. 442, 388 S.E.2d 316:

The Court rejected the State's attempt to appeal the dismissal of indictments under the three-term rule, holding that the right of the State to appeal in criminal cases is limited under W. Va. Code § 58-5-30 to the dismissal of indictments that are "bad or insufficient".

State of West Virginia v. John Spence, Jr., No. 18203 (W. Va. December 20, 1989) (Miller, J.): 182 W.Va. 472, 388 S.E.2d 498:

Although one of the investigating officers indicated to the aggravated robbery victim prior to a photographic array that he suspected the defendant was the perpetrator, the Court held that this did not render such array impermissibly suggestive because the victim did not know the defendant and his name was not linked to any photograph. On a related issue,the Court held admissible testimony by a police officer regarding photographic identifications because both the officer and the victim were available for cross-examination. Finally, the Court upheld a sixty-year sentence for aggravated robbery in light of defendant's prior robbery conviction, seventeen prior arrests, eleven prior convictions, and use of a weapon.

State of West Virginia v. Dewey C. Davis, No. 18871 (W. Va. December 20, 1989) (Miller, J.): 182 W.Va. 482, 388 S.E.2d 508:

Where the defendant's son committed a sexual assault in his father's mobile home, without his father's intervention despite pleas of assistance from the victim, while the defendant lay on the bed patting the victim's hand, the father's conviction of sexual assault was affirmed under State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989). Although investigating officer neglected to sign affidavit upon which issuance of search warrant was based, the Court upheld warrant's validity, holding that (1) the affiant was sufficiently identified in the affidavit; (2) the affiant was sworn before and known to the issuing magistrate; and, (3) the affiant attested that the affidavit facts were true.

State of West Virginia v. Cheryl L. Satterfield, No. 18657 (W. Va. December 14, 1989) (Neely, J.): 182 W.Va. 365, 387 S.E.2d 832:

In reversing a trial court's dismissal of a third-offense DUI indictment on the ground that the prosecution was bound by its initial charge of second-offense DUI, which was withdrawn by the prosecution after the defendant failed to plead guilty to such initial charge, the Court held that the prosecuting attorney is vested with discretion in the management of criminal prosecutions, and may, in the exercise of such discretion, decide which of several possible charges to bring against an accused.

State v. Winston C. Fortner, Jr., No. 18941 (W. Va. December 14, 1989) (Miller, J.): 182 W.Va. 345, 387 S.E.2d 812:

Although prosecution failed to disclose victim's statement that one of five attackers had no sexual contact with her and tried to offer moral support during gang rape, the Court held no Brady violation occurred because defendant had confessed to two acts of sexual intercourse with victim and evidence suggested that such statement referred to another individual. Where the defendant joined with others in shouting, "We want some pussy," "Don't hog it all," "I'm next," "Let us do something," and "It's my turn;" assisted in removing victim's clothing; ridiculed one of the attackers when he failed to attain an erection; and otherwise manifested a shared attitude of joviality, his conviction of aiding and abetting the acts of his fellow attackers was held proper, even where some of those acts occurred outside his presence. In this regard, the Court held (1) under the "concerted action" principle, a defendant who is present at the scene of a crime and, by acting with another, contributes to the criminal act, is criminally liable for such offense as if he were the sole perpetrator and, (2) for a defendant to successfully "withdraw" from a concerted criminal action, he must demonstrate that he communicated his disavowal of, disapproval of, opposition to the proposed conduct sufficiently in advance to give his confederates a reasonable opportunity to abandon their venture. Where defendant was convicted both of abduction, for the initial seizure of the victim, and kidnapping, for her removal to a remote location for purposes of sexual assault, the Court held that the crimes of abduction with intent to defile and kidnapping with intent to avoid arrest are separate offenses, and that the defendant's conviction therefor did not constitute a double jeopardy violation.

State of West Virginia v. Daney L. Marcum, No. 18651 (W. Va. October 19, 1989) (Neely, J.): 182 W.Va. 104, 386 S.E.2d 117:

In an appeal from a first-degree murder and arson conviction, the Court held that admission of accomplice's confession constituted a violation of the defendant's sixth amendment right to confrontation where the accomplice was unavailable for cross-examination and where the confession lacked sufficient independent "indicia of reliability" because (1) it was given under interrogation, not spontaneously; (2) it was not directly against penal interest, but rather attempted to shift blame for the murder toward the defendant; and, (3) although there was some evidence corroborating the defendant's involvement, the evidence tended to contradict the accomplice's claim that the accomplice was not involved in the murder.