State of West Virginia v. Norma G. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent
April 28, 2017
vs) No. 15-0713 (Greenbrier County 13-F-52) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Norma G.,
Defendant Below, Petitioner
MEMORANDUM DECISION
The Petitioner Norma G.1, by counsel Ryan H. Keesee, appeals her conviction for the
felony offense of extortion. Respondent State of West Virginia, by counsel Shannon Frederick
Kiser, filed a response.
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.
In June of 2013, Norma G. (“the defendant”) was indicted for the offense of extortion.2
Following a jury trial in October of 2014, the defendant was convicted of the offense of
extortion. The evidence at trial revealed that in December of 2011, the defendant contacted
Corporal Baker of the Greenbrier County Sheriff’s Department and told him that she found her
husband, J.G., viewing pornographic material with her eight-year-old daughter. The defendant
advised Corporal Baker that she confronted J.G., and told him that if he did not give her a deed
to his farm property, that she would go to the police. According to Corporal Baker, the defendant
repeated this statement several times. The defendant told Corporal Baker that she now owned the
property. The deed to the property was entered into evidence, and showed that J.G. and his son
deeded the property to the defendant on August 23, 2011. The defendant reported the crime to
police months after the incident allegedly occurred, when J.G. refused to leave the property.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
The June of 2013, indictment was the third superseding indictment in this matter.
Petitioner was first indicted on February 8, 2012. A superseding indictment was issued in June of
2012. Those indictments were dismissed in October of 2012, and May of 2013.
1
J.G. testified at trial that after the defendant confronted him about her daughter, the
defendant told him that she wanted the farm, and he attempted to buy his freedom from the
defendant. J.G. testified that the only reason he deeded the farm to the defendant was to avoid
prosecution. Corporal Baker testified that after speaking with a prosecuting attorney, he charged
the defendant with extortion, based upon her receipt of the deed to J.G.’s property through
accusing him of a crime.
During the trial, there was an incident involving an allegation of prosecutorial
misconduct. On the second day of trial, the defendant’s counsel alleged that the special
prosecuting attorney, Kristen Cook, engaged in improper communications with the attorney for a
potential defense witness, Kevin M. Upon the circuit court’s inquiry, Mr. Hunter, counsel for
Kevin M., testified as to the exchange stating that he was approached by Ms. Cook and a deputy,
and that “I got a clear indication from Ms. Cook that if [Kevin M.] indicated that [he knew about
the exchange of property for the defendant’s silence], that could have an impact on the custody
issue3 and was I going to talk with him – would I talk with him, and I said, if I talk with him, I
will tell him to tell the truth. And I felt like they – I had a feeling I was being told that so that I
would, in some way, try to influence his testimony.”
Ms. Cook apologized to the Court and to counsel. Ms. Cook stated that she invited Kevin
M.’s counsel to trial in order to help him protect his client’s interest. The circuit court found that
Ms. Cook did not engage in prosecutorial misconduct, and that there was no evidence that the
conversation was conveyed to Kevin M., although Kevin M. did not testify at trial. The
defendant testified on her own behalf at trial. The jury returned a verdict of guilty of the offense
of extortion.
In addition, post-trial it was discovered that a juror, (“Juror O”) who was selected to
serve on the defendant’s jury panel, was not qualified to sit on a Greenbrier County jury. During
jury selection, the State used a peremptory strike to remove Juror O from the jury panel. The
defendant filed an appeal of the jury verdict to this Court. While the defendant’s direct appeal
was pending, and after learning that this juror was present for the initial voir dire, the defendant
filed a motion for a new trial. In response, Judge Pomponio, who presided over the defendant’s
trial, sent a letter to this Court advising of the improper juror, and noting that he had previously
dismissed another case as a result of this juror’s ineligibility.
Subsequently, this Court filed a notice of intent to dismiss the defendant’s appeal, as the
defendant was granted a new trial, thereby rendering her appeal moot. Following receipt of this
notice, the defendant’s trial counsel and the State of West Virginia agreed to withdraw the
defendant’s original appeal. However, the circuit court never entered an order granting the
defendant a new trial. The circuit court held a hearing on the defendant’s motion for new trial on
December 8, 2014. After hearing arguments regarding the unqualified juror, Judge Richardson,
(who took the bench after Judge Pomponio retired), denied the defendant’s motion for a new
trial. The circuit court found that the defendant did not suffer prejudice as a result of this juror,
3
Prior to the trial, the witness and the defendant were involved in an abuse and neglect
proceeding regarding their shared children. The circuit court granted custody to the witness.
2
and the State’s use of a peremptory strike to remove the juror.
On January 14, 2015, the circuit court ordered that the defendant undergo a sixty-day
diagnostic evaluation at the Lakin Correctional Center. The defendant was sentenced June 18,
2015, to one to five years of incarceration in the state penitentiary. Her sentence was suspended
by the circuit court, and the court ordered the defendant to serve the remainder of her sentence on
home confinement. The defendant now appeals her conviction to this Court.
The defendant raises several grounds on appeal. Since the alleged errors concern different
principles of law, the applicable standards of review will be incorporated into the discussion of
each issue. We note, generally, that, “[t]his Court reviews the circuit court's final order and
ultimate disposition under an abuse of discretion standard. We review challenges to findings of
fact under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4,
Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996). In addition, “[a] reviewing court
should not reverse a criminal case on the facts which have been passed upon by the jury, unless
the court can say that there is reasonable doubt of guilt and that the verdict must have been the
result of misapprehension, or passion and prejudice.” Syl. Pt.1, State v. Easton, 203 W. Va. 631,
510 S.E.2d 465 (1998) (citation omitted).
The defendant first argues that the extortion statute, West Virginia Code § 61-2-13 is
unconstitutionally overbroad in that it does not specifically include the element of intent.4 The
defendant argues that the statute makes any statement that may result in pecuniary benefit to the
speaker illegal, regardless of whether the statement is protected or privileged, in violation of the
First Amendment of the United States Constitution, and article three, section seven of the West
Virginia Constitution.
We have previously stressed the importance of our separation of powers doctrine, and the
great deference to which the legislature is entitled in the interpretation and construction of a
statute.
In considering the constitutionality of a legislative enactment, courts must
exercise due restraint, in recognition of the principle of the separation of powers
in government among the judicial, legislative and executive branches. Every
reasonable construction must be resorted to by the courts in order to sustain
constitutionality, and any reasonable doubt must be resolved in favor of the
4
West Virginia Code § 61-2-13 states, in relevant part,
If any person threaten injury to the character, person or property of another
person, or to the character, person or property of his wife or child, or to accuse
him or them of any offense, and thereby extort money, pecuniary benefit, or any
bond, note or other evidence of debt, he shall be guilty of a felony, and, upon
conviction, shall be confined in the penitentiary not less than one nor more than
five years.
W. Va. Code § 61-2-13.
3
constitutionality of the legislative enactment in question. Courts are not concerned
with questions relating to legislative policy. The general powers of the legislature,
within constitutional limits, are almost plenary. In considering the
constitutionality of an act of the legislature, the negation of legislative power must
appear beyond reasonable doubt.
Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351
(1965). Further, “[w]here the language of a statute is free from ambiguity, its plain meaning is to
be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153
W. Va. 714, 172 S.E.2d 384 (1970). Based on the plain words of the statute and the applicable
case law governing the interpretation and construction of this statute, this Court finds that the
statute is not overbroad, as it requires that the threats are made for a purpose: to “extort money,
pecuniary benefit, or any bond, note or other evidence of debt.” See W.Va. Code § 61-2-13. In
addition, extortion is malum in se. See generally Committee on Legal Ethics of the West Virginia
State Bar v. Printz, 187 W. Va. 182, 416 S.E.2d 720 (1992). Accordingly, we find no reversible
error.
Next, the defendant argues that the circuit court erred by refusing to instruct the jury
regarding the meaning of “criminal intent to commit extortion.” At trial the defendant’s counsel
offered an instruction regarding the element of intent. This instruction was rejected by the circuit
court. Regarding jury instructions, we have held,
“[a] trial court’s instructions to the jury must be a correct statement of the law and
supported by the evidence. Jury instructions are reviewed by determining whether
the charge, reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not mislead by the law. A jury
instruction cannot be dissected on appeal; instead, the entire instruction is looked
at when determining its accuracy. A trial court, therefore, has broad discretion in
formulating its charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court’s discretion concerning the specific
wording of the instruction, and the precise extent and character of any specific
instruction will be reviewed only for an abuse of discretion.” Syllabus Point 4,
State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Syl. Pt. 8, State v. Foster, 221 W. Va. 629, 656 S.E.2d 74 (2007). Concerning the offense of
extortion, the jury herein was instructed that, “in order to prove the commission of the offense of
“extortion”, the State of West Virginia must overcome the presumption of innocence and prove,
beyond a reasonable doubt,” and prove that the defendant “accused Jack E. G. of an offense
involving his alleged display of sexual material to a minor”; and thereby did obtained (sic) and
extorted a certain tract or parcel of real estate situate in Greenbrier County, West Virginia.” We
find that this instruction was an accurate statement of the law, and that the jury was properly
instructed that the State must prove that the defendant accused J.G. of a sexual offense for the
purpose of obtaining property. Consequently we find no error.5
5
The defendant neglects to include the proposed instructions in the appendix record.
“The appellate review of a ruling of a circuit court is limited to the very record there made and
will not take into consideration any matter which is not a part of that record.” Syl. Pt. 2, State v.
4
The defendant also complains that the circuit court erred by refusing to grant her a new
trial based upon the improper paneling of an unqualified juror, Juror O. The parties do not
dispute that one of the jurors empaneled in the defendant’s case, was not a resident of Greenbrier
County and was therefore ineligible to sit on the jury panel in the underlying case.
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). Based on our review of
the record, we find that the defendant’s claim regarding Juror O lacks merit. The record reveals
that while Juror O was not a resident of Greenbrier County at the time he was placed on the jury
panel, Juror O did not serve on the defendant’s jury. The State used one of it peremptory strikes
to remove Juror O from the panel. As a result, the defendant did not suffer any prejudice. “In
order to obtain a new trial for having used a peremptory strike to remove a biased juror from a
jury panel, a criminal defendant must show prejudice.” Syl. Pt. 3, in part, State v. Sutherland,
231 W. Va. 410, 745 S.E.2d 448 (2013). Accordingly, we find no error.
The defendant next asserts as an assignment of error that she received ineffective
assistance of counsel. The defendant complains that her counsel was ineffective because Judge
Pomponio indicated to this Court that he intended to order a new trial in the defendant’s case, as
a result of the improperly paneled juror. However, the defendant’s trial counsel failed to obtain
an order to that effect. As a result, upon Judge Pomponio’s retirement, Judge Robert Richardson,
after holding a full hearing on the issue of the juror, denied the defendant’s request for a new
trial. We find that the record is incomplete with respect to the defendant’s claim, and decline to
review this assignment of error based on the same. Regarding ineffective assistance of counsel
claims on direct appeal, we held,
“[i]t is the extremely rare case when this Court will find ineffective assistance of
counsel when such a charge is raised as an assignment of error on a direct appeal.
The prudent defense counsel first develops the record regarding ineffective
assistance of counsel in a habeas corpus proceeding before the lower court, and
may then appeal if such relief is denied. This Court may then have a fully
developed record on this issue upon which to more thoroughly review an
ineffective assistance of counsel claim.” Syl. pt. 10, State v. Triplett, 187 W.Va.
760, 421 S.E.2d 511 (1992).
Syl. Pt. 11, State v. Garrett, 195 W. Va. 630, 466 S.E.2d 481 (1995). Accordingly, we decline to
reverse the defendant’s conviction on this ground.
Bosley, 159 W. Va. 67, 218 S.E.2d 894 (1975). Accordingly, we decline to review the
defendant’s proposed jury instruction, and limit our review to the record before this Court.
5
The defendant next argues that the circuit court erred in failing to declare a mistrial after
being informed of prosecutorial misconduct. The defendant argues that the prosecutor’s actions
intimidated a witness, Kevin M., from testifying in the defendant’s trial. Based upon our review
of the record, we find no error. We are mindful that,
“[t]he prosecuting attorney occupies a quasi-judicial position in the trial of a
criminal case. In keeping with his position, he is required to avoid the role of a
partisan, eager to convict, and must deal fairly with the accused as well as the
other participants in the trial. It is the prosecutor’s duty to set a tone of fairness
and impartiality, and while he may and should vigorously pursue the State’s case,
in so doing he must not abandon the quasi-judicial role with which he is cloaked
under the law.’ Syl. pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).”
Syl. pt. 1, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).
Syl. Pt. 1, State v. Hottinger, 194 W. Va. 716, 461 S.E.2d 462 (1995).
Rule 4.4(a) of the West Virginia Rules of Professional Conduct state that, “[i]n
representing a client, a lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the
legal rights of such a person.” The State asserts that the prosecutor spoke to the witness’ counsel
in order to help him protect his client’s interests. The record reflects that the prosecuting attorney
explained on the record,
I apologize to Mr. Hunter if he felt like I put him in a bad position. That was not
my intentions, whatsoever. In fact, I asked him, maybe he should be here, today,
to protect his client’s interest. That was never my intention to put him in a bad
position, or make him feel like I was trying to make him do something, and I want
to apologize to him, directly, if that’s how he felt.
The defendant argues that the prosecuting attorney’s statements served no purpose other
than to embarrass, delay, or burden Kevin M. We disagree. Here, the prosecuting attorney
approached the witness’s counsel in an attempt to inform him of potential consequences of his
client testifying in a criminal trial, in order to help counsel assist the witness in acting in his own
best interest. “[M]any situations arise in which a lawyer’s communications on behalf of a client
cannot avoid addressing conduct by another party that is both criminal and tortious. Inevitably,
the question of which remedial routes will be taken must also be addressed.” Printz, 187 W. Va.
at 184, 416 S.E.2d at 722 (citing Hazard and Hodes, The Law of Lawyering, A Handbook on the
Model of Rules of Professional Conduct, 4.4:103 (Prentice Hall Law & Business 1990). Further,
the defendant has failed to show how she was prejudiced by the actions of the prosecuting
attorney, as she was capable of providing a subpoena to the witness in order to compel his
testimony at trial. Accordingly, we find no error.6
6
The defendant also asserts that the prosecutor misrepresented the production of
evidence (in the form of an audio recording), asserting that the prosecutor at first told the trial
court that she was not in possession of the evidence, but later admitted to having possession of it.
6
The defendant also argues that the circuit court erred in refusing to dismiss her indictment
pursuant to the three-term rule. The defendant claims that she was originally indicted for the
offense on February 8, 2012, and that this matter should have been tried within the October of
2012 term of court. The defendant asserts that the delays in prosecution are reversible error. This
Court has explained,
[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).
The State counters that although five terms of court expired from the defendant’s original
indictment to trial, that the defendant moved for a continuance during the June and October of
2012 terms of court. As a result, those terms do not count toward the “three-term rule”
calculation. We agree with respondent. Under the plain language of the statute,
Every person charged by presentment or indictment with a felony or
misdemeanor, and remanded to a court of competent jurisdiction for trial, shall
be forever discharged from prosecution for the offense, if there be three regular
terms of such court, after the presentment is made or the indictment is found
against him, without a trial, unless the failure to try him was caused by his
insanity; or by the witnesses for the State being enticed or kept away, or
prevented from attending by sickness or inevitable accident; or by a continuance
granted on the motion of the accused; or by reason of his escaping from jail, or
failing to appear according to his recognizance, or of the inability of the jury to
agree in their verdict[.]
W. Va. Code § 62-3-21, in part, (emphasis added). The record reflects, and the defendant admits,
that she joined two motions for continuances in the June of 2012 and October of 2012 terms of
court, and as a result, those continuances are excluded from consideration in the calculation of
the three-term rule. Consequently, we find that the defendant’s argument lacks merit.
The defendant next complains that there was insufficient evidence to convict her of the
offense of extortion. The defendant asserts that she did not extort the property, but that she was
offered the property by J.G. in exchange for her silence. The State counters that the defendant
admitted to extorting J.G. in exchange for not reporting the crime on several occasions, Further,
J.G. testified that he signed the property over to the defendant in order to avoid prosecution. We
have long held that,
As the evidence was provided to the defendant, introduced into evidence at trial, and heard by
the jury, we find no prejudice and decline to reverse on this ground.
7
[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). Based upon our review of
the record herein, when viewed in the light most favorable to the prosecution, we find that there
is sufficient evidence to support the defendant’s convictions. The State presented evidence at
trial that J.G. conveyed the deed to the property on August 23, 2011, and that the defendant did
not report the alleged sexual crimes against her daughter until December of 2011, when J.G.
refused to move off of the property. Further, J.G. testified that the defendant confronted him in
August and told him that she had evidence that he showed pornographic materials to her
daughter, in the form of a tape recording, and that he could “sign over his farm” to her and leave,
or she would report him to the police. Roger Baker of the Greenbrier County Sheriff’s
Department testified that the defendant told him numerous times that she told J.G. to sign over
the deed to the property or she would report him to the police.
Regarding the sufficiency of evidence in a criminal trial, we have held,
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, Guthrie. Based on the forgoing, we find sufficient evidence to uphold the defendant’s
conviction for the felony offense of embezzlement.
The defendant also asserts that the trial court erred in suppressing the testimony of a
clergyman. As the defense presented its case-in-chief, J.G.’s counsel, (from a related criminal
proceeding) moved the trial court to suppress the testimony of a clergyman, who the defendant
intended to call as a witness. The defendant asserted that this clergyman would testify that J.G.
had “longstanding plans” to deed the property to the defendant. J.G.’s counsel argued that under
West Virginia Code § 57-3-9, no member of the clergy “shall be compelled to testify in any
criminal or grand jury proceedings . . . .” We have held that,
“[a] communication will be privileged, in accordance with W.Va.Code, 57–3–9
(1992), if four tests are met: (1) the communication must be made to a clergyman;
8
(2) the communication may be in the form of a confidential confession or a
communication; (3) the confession or communication must be made to the
clergyman in his professional capacity; and (4) the communication must have
been made in the course of discipline enjoined by the rules of practice of the
clergyman’s denomination.” Syllabus Point 3, State v. Potter, 197 W.Va. 734, 478
S.E.2d 742 (1996).
Syl. Pt. 2, State v. Lowery, 222 W. Va. 284, 664 S.E.2d 169 (2008). The record reflects that J.G.
spoke with this person as a member of clergy, in a counseling setting, to discuss the situation
with the defendant. As such, the circuit court’s finding was not clearly erroneous, and we find no
error in the circuit court allowing J.G. to assert that his communications with a clergyman were
privileged under West Virginia Code § 57-3-9.
The defendant finally asserts that there is cumulative error in this case, sufficient to
overturn the verdict. “‘Where the record of a criminal trial shows that the cumulative effect of
numerous errors committed during the trial 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).” Syl. Pt. 5,
State v. Walker, 188 W. Va. 661, 425 S.E.2d 616 (1992). As we find no error, we decline to
overrule the defendant’s conviction on this ground.
For the foregoing reasons, we affirm.7
Affirmed.
ISSUED: April 28, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
7
The defendant also asserts as an assignment of error that the circuit court erred in its
responses to the jury’s questions during deliberations. An hour into jury deliberations, the circuit
court received a note from the jury in which the jury claimed to be deadlocked. In response, the
circuit court conferred with the parties, and issued a handwritten note to the jury that instructed
the jury to review the evidence and deliberate. However, the record reflects that the defendant
did not object to this procedure or the instruction to the jury. “Errors 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.” Syl. Pt. 1, State v.
Berry, 227 W. Va. 221, 707 S.E.2d 831 (2011) (citation omitted). Accordingly, we decline to
address this assignment of error.
9