State of West Virginia v. Lindsey M. Preston ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
FILED
Plaintiff Below, Respondent November 23, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 15-0210 (Monroe County 14-M-01) OF WEST VIRGINIA
Lindsey M. Preston,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Lindsey Mack Preston, by counsel Joseph Aucremanne and John C. Anderson
II, appeals the Circuit Court of Monroe County’s February 9, 2014, order fining him $100 for
failure to yield one-half portion of a paved roadway and sentencing him to concurrent terms of
incarceration of six months for driving while license revoked for driving under the influence, one
year for obstructing an officer, and one year for leaving the scene of an accident resulting in
bodily injury. The State of West Virginia, by counsel Nic Dalton, filed a response in support of
the circuit court’s order. On appeal, petitioner argues that (1) the circuit court erred by permitting
the State to introduce rebuttal evidence from an undisclosed witness solely to impeach the
credibility of a witness for petitioner; (2) the circuit court erred by permitting the State to elicit
rebuttal hearsay evidence, which was not disclosed to petitioner prior to trial, from a witness for
petitioner during petitioner’s case-in-chief; (3) the State withheld material evidence that
prejudiced petitioner, in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (4) the State
made improper remarks during its closing argument on the credibility of a witness for petitioner.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
On October 13, 2013, petitioner was arrested in Monroe County, West Virginia.
Following proceedings in the Magistrate Court of Monroe County, the magistrate court granted
petitioner’s motion to transfer the case to the Circuit Court of Monroe County, West Virginia, for
trial. Thereafter, the State filed a misdemeanor information charging petitioner with six crimes
related to the October 13, 2013, incident: (1) driving with license revoked for driving under the
influence (“DUI”) DUI, in violation of West Virginia Code § 17B-4-3(b); (2) obstructing an
officer, in violation of West Virginia Code § 61-5-17(a); (3) driving left of center, in violation of
West Virginia Code § 17C-7-6; (4) reckless driving, in violation of West Virginia Code § 17C-5­
3(a); (5) failure to yield one-half of a paved roadway, in violation of West Virginia Code § 17C­
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7-2(a); and (6) leaving the scene of an accident resulting in bodily injury, in violation of West
Virginia Code § 17C-4-1(a).
In November of 2014, petitioner’s two-day jury trial commenced. At trial, jurors heard
evidence that on October 13, 2013, a 2011 Hyunda Sonata, owned by petitioner’s mother,
collided with a Honda CRV, owned by Tammy and Frank Pence (“Pences”). The Pences testified
that when they noticed the on-coming Sonata, they pulled as far as possible to the side of the
paved, one-lane road, but they were restrained by a steep drop-off on their side of the roadway.
When the vehicles collided, the Pences’ vehicle was forced over the hillside drop-off and into
trees and brush on the steep embankment. During the crash, airbags deployed in both the Pences’
vehicle and the Sonata, but only the Sonata’s driver’s side airbag deployed, not its passenger side
airbag. The Pences could not identify the Sonata’s driver. However, the Pences’ son, who was
also in their vehicle at the time of the wreck, testified that he saw only one person in the
oncoming Sonata.
The State presented testimony from four individuals who arrived at the scene shortly after
the wreck occurred. Meghan O’Day testified that, to her knowledge, she and her family were the
first to arrive. Her brother, Sonny O’Day, explained that when they arrived, he saw only the
wrecked Sonata, and no other vehicles. When he discovered that the Pences’ vehicle had gone
over the embankment, he immediately descended that embankment to check on them. According
to Mr. O’Day, he arrived so soon after the wreck occurred that dust from the deployed airbags
still floated inside the Pences’ vehicle.
Frank and Heidi Houck similarly testified that they arrived on scene very soon after the
wreck occurred. Ms. Houck told the jury that she permitted petitioner to use her cellular
telephone to contact his mother. After speaking with his mother, petitioner asked Ms. Houck for
a ride to a nearby house, and she acquiesced. Ms. Houck drove petitioner to the nearby house
where he exited her vehicle, entered the house, and returned to Ms. Houck’s vehicle with
Brandon Ballard. Ms. Houck then drove petitioner and Mr. Ballard back to the scene of the
wreck. Several witnesses testified that petitioner was on scene when they arrived and that he had
blood on his face, but Mr. Ballard was not on scene when they arrived and had no apparent
injuries.
The investigating officer testified that, during his investigation, Mr. Ballard claimed to
have driven the Sonata with petitioner riding in the passenger seat. The officer said that he
witnessed blood on the Sonata’s driver’s side airbag, driver’s side floor, and just outside the
driver’s side door. However, no blood was found in the Sonata’s passenger’s side area. He also
informed the jury that petitioner’s driver’s license was revoked for DUI at the time of the wreck.
The State also presented the testimony of Clay Hunter, who resided with Mr. Ballard at
the time of the wreck. Mr. Hunter testified that petitioner came to Mr. Ballard’s home
immediately after the wreck and asked Mr. Ballard to tell the police he drove the Sonata. He
further said that he got into a vehicle to attempt to find the wreck site, but was stopped by a local
resident who complained that Mr. Hunter was driving too aggressively. At the time of giving his
testimony, Mr. Hunter had been charged with an unrelated crime, but he stated that he had made
no deals with the State in exchange for his testimony.
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Petitioner testified on his own behalf, and he presented several witnesses, including his
mother and Mr. Ballard. Petitioner and several of his witnesses claimed that Mr. Ballard drove
the Sonata and that petitioner rode in the Sonata’s passenger seat. Mr. Ballard stated that he
dropped a lit cigarette in the vehicle as he drove, and, while reacting to the dropped cigarette, he
crashed into the Pence’s vehicle. He then claimed to have left the scene to seek help before
anyone else arrived. According to petitioner’s witnesses, Mr. Hunter was not at Mr. Ballard’s
house on the day of the wreck.
Petitioner also presented the testimony of the director of the Monroe County 911 call
center to discuss the timing of certain calls made to 911. In its rebuttal, the State asked the 911
director about a call made to the 911 center on the day of the wreck concerning an aggressive
driver. The 911 director confirmed that a call was made to the 911 center reporting an aggressive
driver in the area of the wreck.
The State also called a rebuttal witness who claimed to have seen petitioner’s mother at a
store on the day of the wreck, which contradicted her testimony that she remained at her house
that day. Petitioner objected to this witness on the grounds of (1) hearsay as to the specific time
of petitioner’s mother’s visit to the store without an original receipt of a transaction and (2)
surprise as to any records from the store regarding petitioner’s mother’s visit. The Court
overruled petitioner on both grounds. In its closing argument, the State pointed out this
inconsistency between petitioner’s mother’s testimony and its rebuttal witness.
Following its deliberations, the jury convicted petitioner of (1) driving on a license
revoked for DUI; (2) obstructing an officer; (3) failure to yield one-half of a paved roadway; and
(4) leaving the scene of an accident resulting in bodily injury. The jury acquitted petitioner of
driving left of center and reckless driving.
In February of 2015, the circuit court held a sentencing hearing. Despite petitioner’s
argument for alternative sentencing, the circuit court sentenced petitioner to concurrent terms of
incarceration of six months for driving with license revoked for DUI; one year for obstructing an
officer; and one year for leaving the scene of an accident resulting in bodily injury. For the
conviction for failure to yield one-half of a paved roadway, the circuit court imposed a fine of
$100. The circuit court further ordered his sentences in this matter to run concurrently with a ten-
year term of incarceration for an unrelated first-degree robbery conviction. This appeal followed.
On appeal, we decline to address petitioner’s first, second, and fourth assignments of
error. In his first and fourth assignments of error, we find that petitioner failed to properly
preserve the issues for appellate review. His first assignment of error is that the circuit court
erred by permitting the State to use extrinsic evidence to impeach the credibility of his mother’s
testimony. While petitioner notes that this issue, if error, may be harmless, he asserts that the
State violated our holding in State v. Ramey, 158 W.Va. 541, 212 S.E.2d 737 (1975) and Rule
608(b) of the West Virginia Rules of Evidence. Petitioner’s fourth assignment of error is that the
prosecutor made remarks during his closing argument that demonstrated his personal opinion as
to the credibility of petitioner’s mother as a witness. However, both assignments of error were
neither objected to at trial nor otherwise raised before the circuit court.
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We have held that “[e]rrors assigned for the first time on appeal will not be regarded in
any matter of which the trial court had jurisdiction or which might have been remedied in the
trial court had objection been raised there.” State v. Dennis, 216 W.Va. 331, 350, 607 S.E.2d
437, 456 (2004). See also Honaker v. Mahon, 210 W. Va. 53, 60, 552 S.E.2d 788, 795 (2001)
(stating that “the general rule that a party’s failure to object waives any right to appeal an
issue.”); State v. Flanders, 218 W. Va. 208, 214, 624 S.E.2d 555, 561 (2005) (stating that
“[w]here objections were not shown to have been made in the trial court, and the matters
concerned were not jurisdictional in character, such objections will not be considered on appeal.”
(internal quotations and citation omitted)); State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d
613, 635 (1996) (stating that “the law ministers to the vigilant, not to those who sleep on their
rights . . . . When a litigant deems himself or herself aggrieved by what he or she considers to be
an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she
ordinarily must object then and there or forfeit any right to complain at a later time.”).
It is equally clear in our case law that
[t]o preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
The rule in West Virginia is that parties must speak clearly in the circuit court, on
pain that, if they forget their lines, they will likely be bound forever to hold their
peace. The forfeiture rule . . . fosters worthwhile systemic ends and courts will be
the losers if we permit the rule to be easily evaded. It must be emphasized that the
contours for appeal are shaped at the circuit court level by setting forth with
particularity and at the appropriate time the legal ground upon which the parties
intend to rely.
State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E .2d 162, 170 (1996) (citation
omitted). With specific regard to petitioner’s fourth assignment of error, we have held that
2. “If either the prosecutor or defense counsel believes the other has made improper
remarks to the jury, a timely objection should be made coupled with a request to the court to
instruct the jury to disregard the remarks.” Syllabus point 5, in part, State v. Grubbs, 178 W.Va.
811, 364 S.E.2d 824 (1987).
3. “Failure to make timely and proper objection to remarks of counsel made in the
presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the
question thereafter either in the trial court or in the appellate court.” Syllabus point 6, Yuncke v.
Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).
Syl. Pts. 2 and 3, State v. Scott, 233 W.Va. 12, 754 S.E.2d 588 (2014). Petitioner failed to object
to the use of extrinsic evidence at trial or the prosecutor’s remarks during closing arguments.
Without objections on these grounds, we decline to address them.
Petitioner’s second assignment of error is that the circuit court erred in permitting the
State to elicit rebuttal hearsay evidence from a witness for petitioner during his case-in-chief. He
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further alleges that such hearsay evidence was not disclosed to him prior to trial. However,
petitioner fails to cite any legal authority to support his assertions. This Court has previously
stated that “issues . . . mentioned only in passing but [ ] not supported with pertinent authority,
are not considered on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621
(1996) (citations omitted). Further, Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure requires that petitioner’s brief “must contain an argument exhibiting clearly the points
of fact and law presented, the standard of review applicable, and citing the authorities relied
on[.]” It is an appellant’s burden to show the error in judgment of which he complains. Syl. Pt. 2,
W. Va. Dep’t. of Health & Hum. Res. Emps. Fed. Credit Union v. Tennant, 215 W.Va. 387, 599
S.E.2d 810 (2004). Having cited no authority in support of his claim of error, we also decline to
address this issue on appeal.
Petitioner’s only viable contention on appeal is that the State violated Brady v. Maryland,
373 U.S. 83 (1963), and its progeny, when it failed to provide him with evidence of the 911 call
concerning an aggressive driver in the area of the wreck on the day in question. Petitioner
maintains that the State used that evidence at trial to bolster Mr. Hunter’s testimony. Mr. Hunter
testified that he was at Mr. Ballard’s house, overheard Mr. Ballard conspire to lie to the police
for petitioner, and was stopped by a local resident for driving aggressively while trying to find
the wreck site. Petitioner argues that evidence of the 911 call about an aggressive driver in the
area bolsters that testimony. While petitioner argues that the State had a duty to disclose
evidence of the 911 call, he does not indicate how the 911 call falls under Brady’s holding
regarding the disclosure of exculpatory or impeachment evidence. The 911 call at issue was
neither exculpatory for petitioner nor impeachment evidence for any of the State’s witnesses.
Moreover, petitioner attacked the credibility of Mr. Hunter’s story on cross-examination
and through his own witnesses. As we have explained, the concepts of “bolstering,”
“impeachment,” and “rehabilitation” relate to the credibility of a witness in the following ways:
[b]olstering occurs when a party seeks to enhance a witness’s credibility
before it has been attacked . . . . Bolstering is generally disallowed. Impeachment
occurs anytime a witness’s credibility is attacked, and it may be accomplished in
several different ways including, inter alia, the following: a witnes’'s character
trait for untruthfulness pursuant to W.Va. R. Evid. 608(a); prior convictions
pursuant to W.Va. R. Evid. 609(a); instances of misconduct not resulting in a
conviction pursuant to W.Va. R. Evid. 608(b); and prior inconsistent statements
pursuant to W.Va. R. Evid. 613 . . . . Rehabilitation, which occurs after a
witness’s credibility has been attacked . . . . Credibility issues concerning a
witness may be addressed by questioning that witness or through the testimony of
another witness.
State v. Wood, 194 W.Va. 525, 531, 460 S.E.2d 771, 777 (1995) (citing United States v. Toro, 37
M.J. 313, 315 (C.M.A.1993)).
In this case, the State’s use of evidence of the 911 call was clearly an attempt to
rehabilitate Mr. Hunter’s credibility, which petitioner admits in his brief to this Court he had
“vigorously attacked[.]” Therefore, under the circumstances of this case, we find no error in the
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State’s failure to disclose material that was neither exculpatory nor impeachment evidence or in
its use of that evidence at petitioner’s trial.
For the foregoing reasons, the circuit court’s February 9, 2014, order is hereby affirmed.
Affirmed.
ISSUED: November 23, 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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