State of West Virginia v. James Messer ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
FILED
Plaintiff Below, Respondent
November 20, 2015
RORY L. PERRY II, CLERK
vs) No. 14-1180 (Mingo County 13-F-98) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
James Messer,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner James Messer, by counsel Karen S. Hatfield, appeals from the October 23,
2014, Sentencing Order entered by the Circuit Court of Mingo County following petitioner’s
convictions of two counts of burglary, one count of second degree robbery, and one count of
conspiracy. The Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a
response. Petitioner filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Factual Background
In April of 2013, petitioner was indicted for the burglary of the residence of Ronnie
Glenn and Leigh Ann Richardson (Count 1); conspiracy with co-defendant, Danny Colegrove,
for the burglary of the Richardson residence (Count 2); first degree robbery of William and
Vicky Evans (Count 3); burglary of the Evans residence (Count 4); and conspiracy with
Colegrove for the burglary of the Evans residence (Count 5). The case proceeded to a jury trial in
August of 2014.
The State’s theory at trial was that on December 7, 2012, petitioner and Colegrove met
and proceeded together to the Richardson residence. Upon arriving there, petitioner and
Colegrove broke into the residence through a rear door. The State alleged that the two men stole
guns from a gun cabinet and pills from the bottom drawer of the gun cabinet. Colegrove suffered
lacerations to his hand as a result of breaking the glass on the gun cabinet and required treatment
at a local hospital. On the way to the hospital, the two men stopped at the residence of
Colegrove’s grandfather and spoke with the grandfather about moving some items from their
vehicle into the grandfather’s vehicle. Petitioner then moved some guns into the grandfather’s
vehicle before proceeding to the hospital, which was approximately twenty-five minutes away.
1
Once at the hospital, the two men were questioned by Corporal Edwin Lee Williams of
the Mingo County Sheriff’s Department, who had already begun investigating the burglary of the
Richardson residence. After Colegrove received treatment for his hand, petitioner and Colegrove
left the hospital at approximately 11:21 p.m.
The State alleged that at approximately 12:00 p.m. on December 8, 2012, the two men
arrived at the Evans residence, which is adjacent to Colegrove’s grandfather’s residence. The
State alleged that petitioner and Colegrove, wearing ski masks, robbed Mr. and Mrs. Evans and
Mrs. Evans’s mother. Petitioner and Colegrove bound Mrs. Evans’ and her mother’s hands with
tape, forced Mr. Evans to lie on the floor, and forced Mr. Evans, at gunpoint, to reveal the
combination to his safe. Mr. Evans later identified the handgun as the same type of gun (a
revolver) stolen from the Richardson residence. Additionally, Mr. Evans, having lived next to
Colegrove’s grandfather, was able to identify Colegrove’s voice during the robbery. Mr. Evans
could not readily identify petitioner as the other assailant, but indicated that Colegrove referred
to him as “J.”
Corporal Williams testified that he received a call about a break-in at the Richardson
residence on December 7, 2012, at approximately 8:00 p.m. Upon inspecting the residence, he
identified that the rear door had been pried open or kicked in; that someone had taken pills and
several guns, including two shotguns, a rifle, and a .38-special revolver;1 and that the glass on the
gun cabinet had been broken and there was blood on the carpet below. Corporal Williams
notified dispatch and asked that he be advised of anyone reporting to a local hospital with
lacerations. Soon thereafter, upon being notified by dispatch, Corporal Williams traveled to
Appalachian Regional Hospital and spoke with Colegrove, petitioner, and petitioner’s girlfriend.
Corporal Williams left the hospital after about fifteen minutes.
Around midnight, Corporal Williams received a call about the incident at the Evans
residence, which is located approximately twenty minutes from the hospital.2 Corporal Williams
took statements from Mr. and Mrs. Evans, wherein Mr. Evans indicated that he recognized
Colegrove as one of the perpetrators because he was able to recognize Colegrove’s voice; that
the pair of assailants took approximately $1,500 in cash and assorted jewelry; and that the
assailants gained access to the safe by threatening to “blow his head off” if he did not provide the
correct combination.
1
Mr. Richardson testified that he had purchased the pistol from petitioner and that
petitioner would have known the location of the gun cabinet in the residence.
2
Petitioner contended during cross-examination of Corporal Williams that Colegrove’s
medical records proved it was impossible that the pair could travel to the Evans residence in such
a short time frame. Petitioner argued that the records indicated that they left the hospital at 11:48
p.m., meaning they could not have committed a robbery twenty minutes away at midnight.
However, the State countered that the records actually indicated that the trio left the hospital at
11:21 p.m., and that the 11:48 p.m. time was purely a dispositional status time to complete the
report.
2
Corporal Williams testified that, upon contacting Colegrove’s grandfather, he learned that
Colegrove and petitioner had placed guns in the back of the grandfather’s vehicle. Soon
thereafter, Corporal Williams received a call from Colegrove, who asked if he could “work out a
deal.” Corporal Williams then met Colegrove, who gave a statement identifying himself and
petitioner as the perpetrators of the Richardson burglary.
The State called Colegrove to testify as a hostile witness. Colegrove’s trial testimony
differed from his statement to Corporal Williams. Colegrove testified that he and petitioner were
good friends; that he and petitioner went to the Richardson residence to buy drugs; that he let
himself in after realizing no one was home; and that petitioner remained in the vehicle. Over
petitioner’s objection, the circuit court permitted the State to play the video of Colegrove’s
statement to Corporal Williams for the jury. Despite the inconsistencies between his statement
and his trial testimony, Colegrove continued to refuse to implicate petitioner in any of the crimes
charged, stating that he falsely implicated petitioner in his statement due to a “falling out” or
“altercation” the two had had involving a woman.
After hearing testimony from Mr. and Mrs. Richardson regarding the items stolen from
their residence and their estimated values, the State called Mr. Evans to testify. Mr. Evans
testified that he knew Colegrove and could identify his voice during the robbery, despite the fact
that both assailants were wearing ski masks, gloves, and jackets. Mr. Evans testified that
Colegrove referred to the other assailant as “J.” He identified the pistol used in the crime as
resembling a .38 revolver. He added that the assailants duct-taped his hands along with his wife’s
and mother-in-law’s hands before leaving the residence. Mrs. Evans testified consistent with her
husband and identified “J” as being slightly taller than five feet five inches with dark eyes.
The State rested its case, and petitioner moved for a judgment of acquittal on the basis of
insufficient evidence, which the circuit court denied. Petitioner then rested his case and renewed
his motion for judgment of acquittal, which the court denied. The jury deliberated for
approximately an hour before finding petitioner guilty on Counts 1, 3, 4, and 5. As to the
robbery, the jury found petitioner guilty of second degree robbery, rather than first degree
robbery as charged in the indictment. Finally, the jury acquitted petitioner on Count 2,
conspiracy for the burglary of the Richardson residence.
By order entered on October 23, 2014, the circuit court sentenced petitioner to one to
fifteen years in prison for each count of burglary and five to eighteen years in prison for second
degree robbery, with all three counts to run consecutively. The court sentenced petitioner to one
to five years in prison for conspiracy, to run concurrently with the first burglary count. Petitioner
now appeals to this Court.
Discussion
Petitioner raises twenty-two assignments of error on appeal. First, he contends that the
circuit court violated his constitutional right to a speedy trial by continuing his trial without just
cause. Petitioner states that he remained incarcerated from his arrest on December 20, 2012, to
his trial in August of 2014, and that neither the State nor he requested a continuance. Petitioner
contends that, because of the delay, the transcript of the Evans’s 911 call became unavailable and
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it would have established a clear timeline that showed that it was impossible for petitioner to
have committed the robbery.
Article III, Section 14 of the West Virginia Constitution requires that an accused have a
trial “without unreasonable delay.” In syllabus point six of State v. Elswick, 225 W.Va. 285, 693
S.E.2d 38 (2010), this Court held as follows:
“A determination of whether a defendant has been denied a trial without
unreasonable delay requires consideration of four factors: (1) the length of the
delay; (2) the reasons for the delay; (3) the defendant’s assertion of his rights; and
(4) prejudice to the defendant. The balancing of the conduct of the defendant
against the conduct of the State should be made on a case-by-case basis and no
one factor is either necessary or sufficient to support a finding that the defendant
has been denied a speedy trial.” Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297
S.E.2d 829 (1982).
In the present case, petitioner was indicted on April 24, 2013, and the matter proceeded to
a jury trial on August 5 and 6, 2014. He was appointed counsel three times. Attorney Jerry Lyall
was originally appointed the day following petitioner’s indictment, and filed a motion to
withdraw on October 25, 2013, which was granted. It appears that Attorney Lyall and petitioner
had a disagreement regarding the presentation of a plea offer, which petitioner characterized as
Attorney Lyall trying to “set him up.” The circuit court then appointed Attorney Diana Carter-
Weidel on November 7, 2013, who later identified a conflict and was permitted to withdraw on
January 24, 2014. Petitioner’s current counsel, Attorney Karen S. Hatfield, was then appointed
and took the case to trial.
Accordingly, any delay in the case was due to the withdrawal of petitioner’s first two
attorneys, not to any failures by the State or the court. As for the alleged prejudice, petitioner
fails to demonstrate how the transcripts of the 911 tapes would support his position that he could
not have committed the robbery at the Evans residence. Therefore, we see no violation of
petitioner’s right to a speedy trial.
In his second assignment of error, petitioner argues that there was a conflict of interest
because Attorney Diana Carter-Weidel, who had been appointed to represent him for a short
period, also represented Colegrove. Petitioner states that his and Colegrove’s interests were
adverse given Colegrove’s statement to the police implicating petitioner in the crimes, and, thus,
petitioner received ineffective assistance of counsel from Attorney Carter-Weidel.
We have held that “[t]he joint representation by counsel of two or more accused, jointly
indicted and tried is not improper per se; and, one who claims ineffective assistance of counsel
by reason of conflict of interest in the joint representation must demonstrate that the conflict is
actual and not merely theoretical or speculative.” Syl. Pt. 3, State ex rel. Postelwaite v. Bechtold,
158 W.Va. 479, 212 S.E.2d 69 (1975). “In a case of joint representation, once an actual conflict
is found which affects the adequacy of representation, ineffective assistance of counsel is
deemed to occur and the defendant need not demonstrate prejudice.” Syl. Pt. 4, Cole v. White,
180 W.Va. 393, 376 S.E.2d 599 (1988).
4
In this case, Attorney Carter-Weidel was petitioner’s appointed counsel for only about a
month before the potential conflict was discovered and petitioner was informed that she could
not represent him. Petitioner fails to allege that Attorney Carter-Weidel actually communicated
with him, worked on his case, or appeared on his behalf during this short period. Therefore,
petitioner cannot demonstrate that a conflict of interest that “affect[ed] the adequacy of
representation” as required by Cole to show ineffective assistance of counsel. We, accordingly,
reject petitioner’s second assignment of error.
Third, petitioner argues that the circuit court refused to remove an allegedly biased juror
for cause as he requested, but dismissed two jurors that the State wanted dismissed. We have
articulated the standard of review of this issue as follows:
In reviewing the qualifications of a jury to serve in a criminal case, we follow a
three-step process. Our review is plenary as to legal questions such as the
statutory qualifications for jurors; clearly erroneous as to whether the facts
support the grounds relied upon for disqualification; and an abuse of discretion as
to the reasonableness of the procedure employed and the ruling on
disqualification by the trial court.
State v. Miller, 197 W.Va. 588, 600-01, 476 S.E.2d 535, 547-48 (1996). In syllabus point four of
Miller, we further held:
The relevant test for determining whether a juror is biased is whether the
juror had such a fixed opinion that he or she could not judge impartially the guilt
of the defendant. Even though a juror swears that he or she could set aside any
opinion he or she might hold and decide the case on the evidence, a juror's
protestation of impartiality should not be credited if the other facts in the record
indicate to the contrary.
Additionally,
“[w]hen a prospective juror makes a clear statement of bias during voir
dire, the prospective juror is automatically disqualified and must be removed from
the jury panel for cause. However, when a juror makes an inconclusive or vague
statement that only indicates the possibility of bias or prejudice, the prospective
juror must be questioned further by the trial court and/or counsel to determine if
actual bias or prejudice exists. Likewise, an initial response by a prospective juror
to a broad or general question during voir dire will not, in and of itself, be
sufficient to determine whether a bias or prejudice exists. In such a situation,
further inquiry by the trial court is required. Nonetheless, the trial court should
exercise caution that such further voir dire questions to a prospective juror should
be couched in neutral language intended to elicit the prospective juror's true
feelings, beliefs, and thoughts—and not in language that suggests a specific
response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the
circumstances must be considered, and where there is a probability of bias the
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prospective juror must be removed from the panel by the trial court for cause.”
Syllabus point 8, State v. Newcomb, 223 W.Va. 843, 679 S.E.2d 675 (2009).
Syl. Pt. 2, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013).
The record reveals that the circuit court struck two jurors for cause because of their close
relationship with petitioner’s trial counsel. As a result of this relationship, these two jurors stated
that they would be uncomfortable rendering a verdict for the State. Petitioner sought to remove a
juror who stated that he had a working relationship with the prosecutor fifteen years before the
trial but who had not kept in contact with him since then. Contrary to the two jurors removed by
the court, this juror expressed no concern over his ability to render a fair verdict, and the circuit
court refused to strike him for cause. Based upon our review of the record, we see no error by the
circuit court in it rulings on the parties’ respective motions to strike certain jurors.
Petitioner’s fourth and twelfth assignments of error similarly contend that the jury’s
verdict was contrary to the manifest weight of the evidence because the only evidence
implicating petitioner was Colegrove’s “false” statement. He argues that none of the alleged
victims could implicate him in the crimes charged. This Court has long held that
[t]he function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime proved beyond a reasonable doubt.
Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Additionally, we have held
that
[a] criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all
the evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
an appellate court. Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Syl. Pt. 3, id.
In this case, the jury was free to place more weight on Colegrove’s pretrial statement to
the police clearly implicating petitioner than his completely inconsistent trial testimony that
6
attempted to exonerate him. However, even excluding Colegrove’s pretrial statement, the trial
evidence suggested that petitioner was with Colegrove on the night of the crimes; that only
petitioner knew the location of the gun cabinet in the Richardson residence; and that petitioner
assisted in moving the guns into his grandfather’s vehicle. As for the robbery, Mrs. Evans
testified that Colegrove referred to his accomplice as “J” and her description of the accomplice’s
height and build matched that of petitioner. Additionally, the evidence suggested that the
revolver used in the robbery was the same one stolen from the Richardson residence. Upon our
review of the record and being mindful of the deference afforded to all inferences and credibility
assessments made by the jury, we find that the evidence, albeit circumstantial, was sufficient to
sustain petitioner’s convictions.
In his fifth and twentieth assignments of error, petitioner contends that the circuit court
failed to suppress State’s evidence that was not timely disclosed. Petitioner states that he was
provided the State’s witness list only five calendar days before the trial; that the State never
disclosed an exhibit list until the start of trial, but was allowed to introduce its exhibits anyway;
and that the State did not timely disclose Colegrove’s Crime Information Bureau (“CIB”) report,
his plea deal, or his prior statements to police. Petitioner argues that these late disclosures
hindered his ability to adequately prepare his defense.
“The traditional appellate standard for determining prejudice for discovery violations
under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged
analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it
hamper the preparation and presentation of the defendant's case.” Syl. Pt. 2, State ex rel. Rusen v.
Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994). In the present case, the State admittedly had
difficulty providing its witness list and witness CIB reports to petitioner in advance of trial.
However, our review reveals that petitioner was provided the information at trial, and despite his
assertions, was able to extensively use the documents in his defense. Specifically, petitioner
exhaustively attacked Corporal William’s investigation, identifying information relating to
petitioner, and Colegrove’s credibility and reasoning for initially implicating petitioner.
Accordingly, we cannot find that petitioner’s defense was hampered such as to warrant a new
trial.
Sixth, petitioner argues that the valuation evidence of the stolen items lacked any basis
and should have been excluded. Essentially, petitioner claims that the circuit court allowed the
victims to testify to the value of the items stolen from their residences without requiring the State
to first prove that the victims owned said items. Petitioner’s argument defies common sense. The
victims testified to owning or possessing the items that were stolen and the costs they paid to
purchase those items. Upon our review, we find that the victims’ testimony that they owned the
stolen items was a sufficient basis for the circuit court to permit evidence of the value of the
items.
7
In his seventh assignment of error, petitioner argues that the circuit court committed plain
error3 when it permitted a tainted and suggestive identification of petitioner to be presented to the
jury. The testimony about which petitioner complains came from Mrs. Evans, who testified that
one of the robbers referred to his accomplice as “J,” and that “J” was a little taller than five foot
five inches tall, with really dark brown eyes, and a “a little voice you won’t forget.” Petitioner
contends that this testimony was unfairly prejudicial because Mrs. Evans never included such a
description in her statement to the police at the time of the incident, but rather, mentioned it for
the first time at trial. However, as respondent correctly states, Mrs. Evens never identified
petitioner at trial; she testified to the facts of the robbery and to the characteristics of the
accomplice as she perceived him. She never pointed to petitioner and testified that he was the
one with Colegrove during the robbery. As such, we must reject petitioner’s argument.
Petitioner’s eighth assignment of error is that the jury should not have been permitted to
view the video of Colegrove’s statement to the police. Petitioner argues that the video was overly
prejudicial and not warranted because Colegrove admitted on the stand that his testimony
differed from his previous statement. Additionally, petitioner argues that the statement was made
in a coercive atmosphere, as Colegrove was in a vehicle with two police officers who were
asking him leading questions.
“A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are
subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204
W.Va. 58, 511 S.E.2d 469 (1998). In syllabus point seven of Rodoussakis, we further held that
[a] videotaped interview containing a prior inconsistent statement of a
witness who claims to have been under duress when making such statement or
coerced into making such statement is admissible into evidence if: (1) the contents
thereon will assist the jury in deciding the witness' credibility with respect to
whether the witness was under duress when making such statement or coerced
into making such statement; (2) the trial court instructs the jury that the
videotaped interview is to be considered only for purposes of deciding the
witness' credibility on the issue of duress or coercion and not as substantive
evidence; and (3) the probative value of the videotaped interview is not
outweighed by the danger of unfair prejudice.
(Citation omitted). In the present case, we must first note that petitioner did not object to the
substance of Colegrove’s statement being submitted to the jury; rather, his objection targeted the
statement being submitted to the jury in the form of a video. Respondent states that Colegrove
pled guilty to crimes associated with the Richardson burglary and the Evans robbery in exchange
for his testimony in petitioner’s trial. However, once on the stand, Colegrove chose to remove
3
“To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995).
8
petitioner from every aspect of the crimes. The State then used Colegrove’s prior statement to
impeach his trial testimony in order to attack his credibility, and at the conclusion of the
evidence, the circuit court gave a general instruction regarding impeachment of witnesses.
Accordingly, the circuit court did not abuse its discretion in allowing the video of Colegrove’s
statement to be submitted to the jury.
Ninth, petitioner argues that the State committed prosecutorial misconduct by
withholding exculpatory evidence in the form of Colegrove’s medical records showing the exact
time that Colegrove and petitioner left the hospital and the transcript of the 911 operator’s call to
Corporal Williams informing him of the Evans burglary and robbery. Petitioner contends that
these items would have demonstrated that it was impossible for the two men to have traveled
from the hospital to the Evans’ residence in time to have committed the crimes there. Petitioner
states that he did not receive Colegrove’s medical records until the day prior to the start of trial,
and never received the transcript of the 911 call because Mingo County 911 destroys all
transcripts after one year.
The following three critical components must be considered when determining whether
the State has withheld exculpatory evidence such as to violate an accused’s due process rights
under Brady v. Maryland, 373 U.S. 83 (1963) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d
402 (1982):
(1) the evidence at issue must be favorable to the defendant as exculpatory
or impeachment evidence; (2) the evidence must have been suppressed by the
State, either willfully or inadvertently; and (3) the evidence must have been
material, i.e., it must have prejudiced the defense at trial.
Syl. Pt. 2, in part, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).
We find that petitioner’s argument fails under the first Brady component; that is, the
evidence is not exculpatory or impeachment evidence. According to the hospital records,
Colegrove’s treating physician noted Colegrove and petitioner left the hospital at 11:21 p.m. on
the night of the crimes. In contrast, the final disposition of the report states that Colegrove was
discharged and the report finalized at 11:48 p.m. The hospital records were provided to petitioner
and introduced at trial, and he was able to use the records to build his argument for an alternate
timeline in which he and Colegrove did not leave until the later time, making it nearly impossible
for the two to have committed the crimes. However, petitioner’s argument fails to acknowledge
that the records created an issue of fact for the jury to decide, i.e., whether the two left at 11:21
p.m. or 11:48 p.m., and the jury did not accept petitioner’s theory of the later time. Therefore, the
records did not exculpate petitioner.
As for the transcript of the 911 call, we likewise find that the evidence fails under the
Brady test above because it is speculative as to whether it was exculpatory; it was not suppressed
by the State; and there is no indication that the evidence would have been material at trial.
Petitioner’s quarrels with his initially-appointed counsel resulted in a large amount of time
between the indictment and the appointment of his eventual trial counsel. During this time, there
is no indication that the 911 transcript was requested by petitioner or was relevant to the State’s
9
investigation such that the State would preserve it. Petitioner relies on mere speculation that the
transcript would serve to prove his theory that he could not have committed the crimes at the
Evans residence. Therefore, we find no violation of Brady and reject petitioner’s ninth
assignment of error.
In his tenth assignment of error, petitioner contends that Corporal Williams should not
have been permitted to testify because he had no connection to the chain of evidence, was biased
against petitioner, and conducted an incomplete investigation. “The question of the competency
of a witness to testify is left largely to the discretion of the trial court and its judgment will not be
disturbed unless shown to have been plainly abused resulting in manifest error.” Syl. Pt. 8, State
v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974). Even though Corporal Williams was not the
officer who presented the case to the grand jury, contrary to petitioner’s assertions, he was
intimately involved in the investigation of the crimes at issue. Additionally, petitioner cross-
examined Corporal Williams based on petitioner’s perceived deficiencies in his police report.
Accordingly, we find that the circuit court did not abuse its discretion in permitting Corporal
Williams to testify.
Petitioner’s eleventh assignment of error is that the circuit court committed plain error by
allowing William and Vicky Evans to provide confusing and highly prejudicial testimony.
Specifically, petitioner takes issue with the fact that neither Mr. nor Mrs. Evans could positively
identify petitioner as one of the perpetrators, but rather, they believed petitioner was involved in
the crimes solely because of their faith in the investigation by the police.
Respondent counters that petitioner’s argument is “alarmingly without merit.” We agree.
“Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit
relevant evidence, but to exclude evidence whose probative value is substantially outweighed by
the danger of unfair prejudice to the defendant.” Syl. Pt. 4, Gable v. Kroger Co., 186 W.Va. 62,
410 S.E.2d 701 (1991). In the present, case both Mr. and Mrs. Williams testified to the details of
a traumatic robbery, during which they were bound with tape and robbed at gunpoint. In addition
to identifying the items stolen, they identified Colegrove as one of the perpetrators based upon
their familiarity with his voice, and added that he referred to his accomplice as “J,” whose height
and build matched that of petitioner. No doubt, their testimony was unfavorable to petitioner.
However, upon our review, we cannot conclude that the probative value of Mr. and Mrs. Evans’s
testimony was outweighed by its prejudice.
Petitioner’s next argues that the circuit court erred by (1) allowing leading questions
during the State’s direct examinations of its witnesses and (2) allowing inadmissible hearsay to
be admitted into evidence. “The allowance of leading questions rests largely in the discretion of
the trial court, and absent an abuse of such discretion, the trial court's ruling will not be
disturbed.” Syl. Pt. 6, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982). Our review of
the record reveals the circuit court sustained many of petitioner’s objections to the State using
leading questions. However, the court allowed leading questions during the State’s examination
of Colegrove and his grandfather. Importantly for our analysis, the State called Colegrove as an
adverse witness, in which leading questions are permitted. See Syl. Pt. 1, State v. Perolis, 183
W.Va. 686, 398 S.E.2d 512 (1990) (“When a party calls a hostile witness, an adverse witness, or
a witness identified with an adverse party, interrogation may be by leading questions.”). As for
10
the examination of Colegrove’s grandfather, the record reveals that, at times, he was non­
responsive during the State’s questioning. Therefore, the State was required to reformulate,
restructure, and, sometimes lead, the witness in order to elicit his testimony. As the State argues
in its brief, the record suggests that this witness’s difficulty could have been age-related.
Regardless, petitioner fails to convince us that these leading questions resulted in an abuse of
discretion by the circuit court.
As for the admission of improper hearsay evidence, petitioner argues that the victims
were permitted to testify that their belief that petitioner was involved in the crimes was based on
what they had been told by police, and that petitioner was convicted based on pure hearsay. We
disagree. We have held that
[g]enerally, out-of-court statements made by someone other than the
declarant while testifying are not admissible unless: 1) the statement is not being
offered for the truth of the matter asserted, but for some other purpose such as
motive, intent, state-of-mind, identification or reasonableness of the party's
action; 2) the statement is not hearsay under the rules; or 3) the statement is
hearsay but falls within an exception provided for in the rules.
Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990). Upon our review, we cannot
conclude that the court erred by allowing this testimony. For one, this testimony was elicited by
petitioner in cross-examination to attack the basis for the victim’s belief that petitioner was
involved in the crimes. He attempted to benefit from its admission and now attempts to paint
such admission as reversible error. Therefore, we reject petitioner’s argument that he was
prejudiced by the admission of hearsay evidence.
Petitioner’s fourteenth assignment of error is that the circuit court allowed the State to
introduce a photograph of a gun cabinet, the video of Colegrove’s statement, and an audio
recording of another telephone statement made by Colegrove to the police, all without a proper
foundation. We reject petitioner’s argument and find no error. With respect to the photo of the
gun cabinet, both Colegrove and Mr. Richardson corroborated that the photo was a truthful
representation of the cabinet which was the subject of the theft. With respect to the recorded
statements of Colegrove, petitioner fails to articulate how the recordings were not properly
authenticated and identified prior to their use by the State; rather, he reiterates his previous
argument that the recordings were improperly used to impeach Colegrove.
As his fifteenth assignment of error, petitioner argues that it was plain error to allow
Colegrove to testify in orange prison attire. We have held that “[a] criminal defendant has no
constitutional right to have his witnesses appear at trial without physical restraints or in civilian
attire.” Syl. Pt. 3, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), In
syllabus point four of State v. Allah Jamaal W., 209 W.Va. 1, 543 S.E.2d 282 (2000), we further
held that
[t]he trial judge should not permit an incarcerated defense witness to
appear at trial in the distinctive attire of a prisoner. However, the burden is upon
the defendant to timely move that an incarcerated witness be permitted to testify
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at trial in civilian clothes. If the trial judge denies the motion, the judge must set
forth on the record the reasons for denying said motion.
In the present case, there is no indication that petitioner moved for Colegrove to testify in
civilian clothing, or that he objected to Colegrove’s prison attire at trial. Additionally, at trial,
petitioner attacked Colegrove’s credibility, his motives for allegedly lying about petitioner, his
prior criminal actions, and his plea deal with the State, thereby making his status as a convicted
criminal known to the jury, independent of his prison garb. Therefore, we find that Colegrove’s
appearance in prison attire did not “seriously affect[] the fairness, integrity, or public reputation
of the judicial proceedings.” See Syl. Pt. 7, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995) (setting forth the elements required for a defendant to invoke the plain error doctrine).
Petitioner’s sixteenth assignment of error is that the circuit court committed plain error by
ending the first day of trial early because the State failed to ensure that Colegrove was available
to testify that day. Petitioner states that the State’s conduct forced the second day of trial, which
included jury deliberations, to last into the late evening hours. Respondent explains that
Colegrove refused to testify at petitioner’s trial unless his counsel was present, and his counsel
was not available on the first day of trial. So, Colegrove was called to testify on the second day
and final day of trial. Upon our review, we cannot agree with petitioner’s unsupported
speculation that the delay was a tactic by the State to ensure that, after such a long day, the jury
would be anxious to reach a quick verdict. We acknowledge that the circuit court reprimanded
the State for not ensuring Colegrove’s availability as planned, but we see no prejudice or error
warranting relief for petitioner. See Miller, supra.
Next, petitioner contends that the State committed prosecutorial misconduct by failing to
disclose its inducements to Colegrove in exchange for his testimony against petitioner. Petitioner
contends that Colegrove was charged with driving on a revoked license in the weeks prior to the
December 2012, crimes at issue in this case, and the State dismissed those charges in January
2013, as evidenced by Colegrove’s CIB report.
“The prosecution must disclose any and all inducements given to its witnesses in
exchange for their testimony at the defendant's trial.” Syl. Pt. 2, State v. James, 186 W.Va. 173,
411 S.E.2d 692 (1991). In the present case, the reason for and nature of the dismissal of
Colegrove’s traffic charges is unclear. Petitioner contends that the timing suggests that the
charges were dismissed in exchange for Colegrove’s testimony. Respondent contends that it’s
more likely that the charges were procedurally dismissed upon their joinder with Colegrove’s
felony proceedings for the burglary and robbery charges, and that petitioner is mischaracterizing
the dismissal as an inducement. However, what is clear, and what is most important, is that
Colegrove affirmatively testified that he was made no promises related to the traffic charges in
exchange for his testimony in petitioner’s trial. Therefore, we do not find that the State failed to
disclose its inducements to Colegrove with respect to his traffic charges, as required by James, as
it is not clear that there were any inducements made relating to those charges.
In his eighteenth assignment of error, petitioner asserts that the circuit court erred in
denying his motions for judgment of acquittal because there was a lack of evidence to support his
convictions. We disagree. We have long held that
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[u]pon motion to direct a verdict for the defendant, the evidence is to be
viewed in light most favorable to prosecution. It is not necessary in appraising its
sufficiency that the trial court or reviewing court be convinced beyond a
reasonable doubt of the guilt of the defendant; the question is whether there is
substantial evidence upon which a jury might justifiably find the defendant guilty
beyond a reasonable doubt.
Syl. Pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974) (citation omitted). For the same
reasons we rejected petitioner’s fourth assignment of error, above, we reject his claim that he
was entitled to a judgment of acquittal. Colegrove implicated petitioner as his accomplice. The
jury heard him recant that statement, but chose, as was its right, to disregard his testimony
exonerating petitioner. However, even disregarding Colegrove’s statement, there was substantial
evidence presented by the State upon which the jury could find petitioner guilty. Therefore, we
find no error in the denial of petitioner’s motions for judgment of acquittal.
Petitioner’s nineteenth assignment of error is that the circuit court erred in denying his
motion for a new trial. “Although the ruling of a trial court in granting or denying a motion for a
new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal
when it is clear that the trial court has acted under some misapprehension of the law or the
evidence.” Syl. Pt. 1, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011) (citations omitted).
In White, we further held that “[w]e review the rulings of the circuit court concerning a new trial
and its conclusion as to the existence of reversible error under an abuse of discretion standard,
and we review the circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syl. Pt. 2, in part (citations omitted).
In the present case, petitioner failed to state in his brief how the denial of his motion was
an abuse of discretion, or how the circuit court’s findings were clearly erroneous. In fact, his
argument in support of this assignment of error fails to contain any analysis. Accordingly, we
reject petitioner’s argument. See, in part, W.Va.R.App.P. 10(c)(7) (“The argument must contain
appropriate and specific citations to the record on appeal, including citations that pinpoint when
and how the issues in the assignments of error were presented to the lower tribunal. The Court
may disregard errors that are not adequately supported by specific references to the record on
appeal.”).
In his next assignment of error, petitioner argues that it was plain error for the State to
“force” Mr. and Mrs. Richardson to testify against petitioner, despite their requests to have the
charges against him dismissed and their admission that they could not identify him as a
perpetrator. The victims in the present case all testified to the crimes committed against them,
including Mr. and Mrs. Richardson. At trial, according to petitioner, they opined that there was
no evidence that petitioner broke into their home, aside from what the police had told them. As
respondent correctly points out, petitioner’s argument has no basis in the law, and, therefore, we
reject it.
Petitioner’s final assignment of error is that he was denied a fair trial as a result of
cumulative effect of the circuit court’s numerous errors. We have held that “[w]here the record
of a criminal trial shows that the cumulative effect of numerous errors committed during the trial
13
prevented the defendant from receiving a fair trial, his conviction should be set aside, even
though any one of such errors standing alone would be harmless error.” Syl. Pt. 5, State v. Smith,
156 W.Va. 385, 193 S.E.2d 550 (1972). Respondent counters that petitioner’s appeal appears to
be “an amalgamation of every objection made during [p]etitioner’s trial and several additional
errors not properly raised during trial.” Our review of this matter reveals no error by the circuit
court, let alone numerous errors, the cumulative effect of which denied petitioner a fair trial.
For the foregoing reasons, we affirm the Circuit Court of Mingo County’s “Sentencing
Order,” entered on October 23, 2014.
Affirmed.
ISSUED: November 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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