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WV Supreme Court | Office of the Clerk | Case Topics: Criminal

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

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First seven opinions of the September 2008 term

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STATE EX REL. TERRON GODFREY v. ROWE. Google It!. CRIMINAL :: Assessment of jury costs on defense counsel reversed.

Calendar. Links to Rules. Links to Forms.

Google It!. STATE v. KENNETH BOOKHEIMER and STATE v. JESSICA TINGLER. [Permanent Link].

[Permanent Link].Google It!.LOCAL GOVERNMENT, JAILS, PROCEDURE :: Regional jail fees.STATE EX REL. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY v. COUNTY COMMISSION OF CABELL COUNTY, et al., No. 33347 (ALBRIGHT, J.)(Starcher, J., concurring)(November 21, 2007)(Rehearing denied, January 10, 2008). Granting a moulded writ of mandamus in a dispute over payments by a county commission to the regional jail authority to cover the daily cost of housing county inmates. Addressing the Court's authority to issue moulded writ relief in cases having statewide impact and affecting the public interest, and holding that the county commission is obligated to pay assessed per diem charges, but that the regional jail authority must promptly meet and formulate a proposed legislative rule as provided for by W. Va. Code 31-20-10(h), addressing issues of uniformity, calculation of the per diem rate, and further clarifying the documentation surrounding any future rate increases. [Permanent Link].Google It!.CRIMINAL, JURY :: No Batson violation.CHRISTOPHER LEE DAVIS v. McBRIDE., No. 33199 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Kanawha County that denied a request for post-conviction habeas corpus relief. Affirming the circuit court's conclusion that the State had a legitimate non-discriminatory reason for using a peremptory strike to exclude the only African-American from the jury panel.[Permanent Link].Google It!.HEALTH CARE :: Incest conviction precludes operating legally unlicensed health care home. PLUMLEY v. WEST VIRGINIA DEPT. of HEALTH and HUMAN RESOURCES/OFFICE of HEALTH FACILITY LICENSURE and CERTIFICATION., No. 33287 (BENJAMIN, J.)(Starcher, J., dissenting)(Maynard, J., concurring)(Albright, J., dissenting)(October 12, 2007). Reversing an order of the Circuit Court of Cabell County that reversed an administrative order requiring closure of a "legally unlicensed health care home" as defined in West Virginia Code of State Rules 64-50-2.6. Holding that a conviction for felony incest, as revealed by a CIB background check, is sufficient to trigger a regulatory bar on operating such a health care home, because the conviction constitutes a crime relevant for the provision of care to a dependent population within the scope of W. Va. C.S.R. 64-50-4.4 (1999).

CRIMINAL :: Faulty indictment for robbery. [Permanent Link]. Google It!.

[Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Reciprocal discovery in magistrate court jury trials.STATE OF W. VA. v. MICHAEL DAVID DOONAN., No. 33052 (DAVIS, C.J.)(Maynard, J., dissenting)(December 1, 2006). Defendant, who was convicted of First Offense DUI by Magistrate Court, appealed an order of the Circuit Court of Wood County finding that the errors he cited were harmless, denying his appeal from conviction and sentencing him to serve 48 hours in jail. Reversing, and concurring with the State's confession of error as to defendant's assertion that the magistrate court erred by precluding his expert from testifying on the basis that the expert was not disclosed to the State. Holding, in syllabus point 5 that: "Until an appropriate rule is adopted in the Rules of Criminal Procedure for Magistrate Courts, the provisions of Rule 16 of the West Virginia Rules of Criminal Procedure shall govern the procedures and requirements for discovery in criminal cases which are to be heard on their merits in magistrate courts." Although the defendant made a request for discovery from the State, the State did not comply, and therefore under the reciprocal discovery principles in Rule 16, the defendant was under no obligation to disclose his expert. Therefore, the magistrate court erred in excluding the expert's testimony. Providing further guidance for remand regarding admission of an illegible printout. Remanding for new trial. [Permanent Link].Google It!.CRIMINAL :: Faulty indictment for robbery.STATE v. ERNEST J. JOHNSON., No. 32978 (Per Curiam)(Starcher, J., concurring)(November 29, 2006). Ernest J. Johnson appealed an order of the Circuit Court of Cabell County entered upon conviction for second degree robbery and sentence as an habitual offender to life with mercy. Vacating the robbery conviction, in light of the fact that the defendant was wrongly charged with first degree robbery, where no firearm or other weapon was presented. Holding that the lack of objection to the indictment did not act as a waiver, because the indictment was so defective as not to charge an offense. [Permanent Link].Google It!.CRIMINAL, ATTORNEYS :: Custodial interrogation, requests for counsel, presentence credits.STATE v. KEVIN RAY MIDDLETON., No. 33048 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Maynard, J., concurring)(November 29, 2006). Kevin Ray Middleton appealed his conviction and sentence imposed by the Circuit Court of Kanawha County for one count of sexual abuse by a parent, guardian or custodian and one count of first degree sexual abuse. Affirming, and rejecting arguments that statements made to authorities were improperly admitted. Outlining the factors to be considered by the trial court in determining whether a custodial interrogation exists for purposes of requiring MIRANDA warnings. Also setting forth two important holdings with regard to whether the defendant must be informed of the presence of counsel while being interrogated in a noncustodial setting. See, syllabus point 3: "A police officer may continue to question a suspect in a noncustodial setting, even though the suspect has made a request for counsel during the interrogation, so long as the officer's continued questioning does not render statements made by the suspect involuntary." Syllabus point 4: "If, during the course of noncustodial interrogation of a suspect, the police are made aware that legal counsel has been retained for the suspect, the police are under no obligation to inform the suspect that counsel has been retained." Finally, clarifying the manner in which presentence credits should be applied, "against the aggregated maximum term of the consecutive sentences." Syllabus point 6.

Issue #93. Issue #92. August 22.

[Permanent Link]. CRIMINAL, EVIDENCE :: 404(b) violations during cross-examination of defendant. STATE v. DAVID NELSON.

Google It!. STATE v. ADONIS RAY THOMPSON. [Permanent Link].

Google It!. STATE v. RICHARD ALLEN HAINES. [Permanent Link].

, No. 33073 (constitutionality of warrantless audio and video recordings obtained by undercover police informant while in defendant's home).HAINES v. KIMBLE., No. 32844 (appeal from refusal to remove executor of an estate, argued on rehearing).JACKSON v. PUTNMAN COUNTY BD. of ED., et al., No. 33038 (plaintiff appeals summary judgment for defendant where plaintiff asserts that the school board was negligent in failing to provide transportation for her son to an off-campus school event; her son was killed in an accident while riding in a private vehicle on the way back from the event). [Permanent Link].Google It!.CRIMINAL :: Conditional immunity offer was not plea agreement.STATE ex rel. STEPHANIE SUE GIBSON v. HON. JOHN S. HRKO, JUDGE, et al., No. 33203 (Per Curiam)(February 15, 2007). Denying a writ of prohibition sought by a criminal defendant to compel the circuit court of Wyoming County to accept a plea agreement. After reviewing the circumstances of the case, holding that no plea agreement was ever reached, and that the circuit court nevertheless had discretion to reject any agreement that may have been reached, and that if an agreement had been reached, the conditional offer of immunity discussed by the parties was never brought to fruition. [Permanent Link].Google It!.Friday, December 15, 2006.Final September opinions summarized, three cases held over.Issue 90 of the Opinion Summary service is.posted., covering the final 24 opinions issued for cases argued in the September 2006 term. The opinions in the following three cases argued this term will be held over until next term, when the opinions will issue in due course. The cases are listed below, along with a link to the day the case was argued, where briefs are available.STATE v. MULLENS.

[Permanent Link]. MOTOR VEHICLES, CRIMINAL :: Post-Stump pleas of nolo contendere. STATE EX REL. BAKER v. BOLYARD, Dir. Div. Motor Vehicles.

[Permanent Link].Google It!.CRIMINAL :: Sufficient evidence to support sexual abuse by custodian.STATE v. KENNETH RAY COLLLINS., No. 33300 (Per Curiam). Affirming a conviction and sentence imposed by the Circuit Court of Mingo County upon conviction for one count of sexual abuse in the third degree and one count of sexual abuse by a parent, guardian or custodian. Holding that the record ñ- including evidence that the defendant "controlled and supervised the eleven year old girl on numerous, albeit temporary, occasions when he would take her away from home to go riding on his four-wheeler" -- reveals a sufficient basis for the jury to conclude that the defendant met the statutory definition of custodian. [Permanent Link].Google It!.CRIMINAL :: Negligent homicide.STATE ex rel. NELSON, Prosecuting Attorney v. FRYE., No. 33499 (Per Curiam)(November 8, 2007). Denying a writ of prohibition sought to prevent dismissal of negligent homicide charges following a logging truck accident that resulted in the death of another driver. Holding that where the evidence showed that the truck driver was in excess of the recommended speed, but not over the speed limit, there was insufficient evidence of reckless disregard to sustain the charges. [Permanent Link].Google It!.CRIMINAL :: Incest, sexual assault, double jeopardy.STATE v. JONATHON FREEMONT RAY., No. 33324 (BENJAMIN, J.)(Starcher, J., concurring)(Albright, J., concurring)(November 8, 2007). Affirming sentences upon multiple convictions for sexual assault, incest and other sex-based offenses imposed by the Circuit Court of Preston County. Rejecting defendant's assertion that consanguinity is an element of the offense of incest, and holding that the statutory definition of incest is met where the victims were stepchildren of the defendant's biological brother. Further rejecting the assertion that double jeopardy prevents convictions for sexual assault and incest arising from the same incident. Applying the Blockburger test to determine that each offense requires a separate element to be proven.

[Permanent Link]. CRIMINAL, PROCEDURE :: Compelled testimony when witness is to invoke Fifth Amendment. STATE v. ANTHONY RAY WHITT.

CRIMINAL, PROCEDURE :: Late disclosure, denial of continuance. CRIMINAL, HABEAS CORPUS :: Witnesses in prison attire and shackles. CRIMINAL, JUVENILES :: Separate charges subsequent to transfer.

HABEAS CORPUS, PROCEDURE :: Denial of relief without evidentiary hearing. [Permanent Link]. Google It!.

JACKSON v. PUTNMAN COUNTY BD. of ED., et al. STATE v. MULLENS. HAINES v. KIMBLE.

Google It!. STATE v. WILLIAM MILLS, JR. [Permanent Link].

March 13th [Permanent Link] Google It! . First opinions of January term summarized. Posted today.

Google It!. STATE v. DREU FERGUSON, JR. [Permanent Link].

[Permanent Link]. CRIMINAL :: Conditional immunity offer was not plea agreement. STATE ex rel. STEPHANIE SUE GIBSON v. HON. JOHN S. HRKO, JUDGE, et al.

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[Permanent Link]. CRIMINAL :: Improper comment on defendant's silence was plain error. STATE v. BRIAN DANIEL MURRAY.

Summaries of all January 2007 opinions posted - corrected.Summaries of all 62 opinions issued in the January 2007 term of court are now posted. The summaries are in three groups.Issue 91., posted on.March 2, 2007., contains summaries of the first ten opinions of the term.Issue #92., posted.August 22., contains summaries of 45 opinions. Finally,.Issue #93., posted.August 28., contains seven opinion summaries that were inadvertently omitted from Issue #92.The opinion summaries are also available on three general category pages:. [Permanent Link].Google It!.MOTOR VEHICLES, CRIMINAL :: Post-Stump pleas of nolo contendere.STATE EX REL. BAKER v. BOLYARD, Dir. Div. Motor Vehicles., No. 33303 (BENJAMIN, J.)(Starcher, J., dissenting)(Maynard, J., concurring)(October 30, 2007). Affirming an order of the Circuit Court of Greenbrier County that affirmed an administrative decision imposing a six-month driver's license revocation on December 9, 2005, upon receipt of a notification for magistrate court that the defendant entered a nolo contendere plea to first offense DUI. The fact that the plea took place between the Court's prior decision in STATE EX REL STUMP v. JOHNSON, 217 W.Va. 733, 619 S.E.2d 246 (2005) and the May 15, 2006 amendment to W. Va. C.S.R. 91-5-14.1 means that the revocation was automatic upon notification of the nolo contendere plea. [Permanent Link].Google It!.Thursday, January 31, 2008.Updates.Throughout the day, I'll be posting the summaries of all 58 opinions issued in the.September 2007 term.of court. All told, there were 42 per curiam opinions and 16 signed opinions.[Permanent Link].Google It!.Friday, October 12, 2007.First six opinions of September 2007 term.The first six opinions of the September 2007 term of court were released today, and are available at.this link.[Permanent Link].Google It!.Tuesday, August 28, 2007.

[Permanent Link]. CRIMINAL :: No speedy trial violation. SER KEITH O'DELL MCCOURT v. HON. JACK ALSOP, JUDGE.

Google It!. This link. [Permanent Link].

CRIMINAL :: Probation revocation affirmed. [Permanent Link]. Google It!.

Google It!. STATE v. DAVID GABRIEL STAMM. [Permanent Link].

[Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Improper search.STATE v. KENNETH BOOKHEIMER and STATE v. JESSICA TINGLER., Nos. 33289 and 33290 (Per Curiam)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., dissenting)(November 8, 2007)(Rehearing denied, January 10, 2008). Reversing orders of the Circuit Court of Braxton County that imposed sentences on convictions of conspiracy and operating a clandestine drug laboratory. Holding that the circuit court erred by allowing introduction of evidence seized as the result of an illegal search. Holding that agitated behavior by a resident upon the officer's arrival after receipt of a call regarding a domestic dispute did not create an emergency or exigent circumstance justifying warrantless entry into the mobile home. Neither party consented, officers were asked to leave, and there was no indication that a protective sweep was warranted or justified. Remanded for a new trial. [Permanent Link].Google It!.CRIMINAL :: Sufficient evidence to sustain murder conviction.STATE v. THOMAS JOSEPH MACPHEE., No. 33297 (Per Curiam)(Maynard, J., concurring)(October 12, 2007). Affirming an order of the Circuit Court of McDowell County that imposed a life sentence with mercy following a jury conviction for felony murder. Rejecting appellant's argument that he was merely an accessory after the fact. Holding that the evidence was sufficient to sustain the conviction.[Permanent Link].Google It!. CRIMINAL, HABEAS CORPUS, ATTORNEYS :: Ineffective assistance of counsel in mercy phase.STATE EX REL. SHANE SHELTON v. PAINTER., Warden, No. 33322 (Per Curiam)(Maynard, J., concurring in part and dissenting in part)(Benjamin, J., concurring in part and dissenting in part)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Ohio County that denied a post-conviction habeas corpus petition after conducting an evidentiary hearing. After testifying at trial and admitting that he shot the victim, Shelton was convicted of first degree murder without mercy. Reviewing the single issue of ineffective assistance of counsel at trial, and holding that defense counsel betrayed his duty of loyalty to his client during closing argument by equivocating about whether his client deserved mercy, by failing to introduce any evidence in support of mercy, and by failing to make any meaningful plea for mercy, especially when combined with counsel's over-emphasis of his client's obvious guilt. Declining to remand for new trial on the issue of guilt, and requiring a limited new trial only on the penalty issue of whether Shelton should or should not receive mercy.

[Permanent Link]. CRIMINAL, PROCEDURE :: Jail clothing in penalty phase. STATE OF W. VA. v. JEFFREY L. FINLEY.

LINKS TO LAST 50 POSTS in this CATEGORY

CRIMINAL :: Incest, sexual assault, double jeopardy. CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived. CRIMINAL :: Negligent homicide.

Opinion summary Issue #92. [Permanent Link]. Google It!.

[Permanent Link].Google It!.EVIDENCE, HABEAS CORPUS :: Testimony by a judge.FREDERICO HATCHER v. THOMAS McBRIDE, WARDEN., No. 32977 (STARCHER, J.)(November 21, 2006). Frederico Hatcher appealed an order of the Circuit Court of Cabell County that denied his petition for post-conviction habeas corpus. He was previously convicted of felony murder without a recommendation of mercy. Holding that the assertion of evidentiary error with regard to admission of character testimony by a circuit judge was not cognizable in a habeas corpus proceeding. Holding further that testimony by judges should be discouraged, and setting forth guidelines to be followed in the future, including an appropriate balancing test, cautionary instructions, and other limitations. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Preservation of crime scene.STATE v. BRUSIE "DON" LANHAM., No. 33092 (Per Curiam)(November 30, 2006). Petitioner appealed an order of the Circuit Court of Ritchie County that denied the defendant's motion for a new trial following a jury conviction of felony-murder. Petitioner was sentenced to life in prison without the possibility of parole. Affirming, and rejecting the petitioner's argument that the State improperly destroyed exculpatory evidence when it returned the mobile home where the shootings took place to the family before defense counsel could examine the physical evidence. Holding that the circuit court did not err, in light of the fact that the conviction was for felony murder, the weight of eyewitness testimony, the 911 tape, and other evidence presented at trial, the absence of assertions that any critical piece of evidence was improperly preserved, and the efforts made by the State to collect all necessary evidentiary samples before the trailer was returned. [Permanent Link].Google It!.CRIMINAL, EVIDENCE, JURY :: Statements by juror as extrinsic evidence.STATE v. TONY FRANKLIN DAUGHERTY, SR., No. 33075 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(November 29, 2006). Petitioner appealed an order of the Circuit Court of Summers County denying a Motion for a New Trial after conviction, following a jury trial, on four counts of sexual abuse by a parent, guardian or custodian. Affirming, and holding that statements by a juror about fear of possible retaliation related to the mental process of the jury and therefore could not form the basis for a new trial under Rule of Evidence 606(b).

STATE EX REL. SHANE SHELTON v. PAINTER. Google It!. CRIMINAL, HABEAS CORPUS, ATTORNEYS :: Ineffective assistance of counsel in mercy phase.

CRIMINAL :: Witness as bailiff didnít violate due process, judge questioning witness wasn't plain error. [Permanent Link]. Google It!.

STATE v. DANNY L. CECIL. Google It!. CRIMINAL, JURY :: New trial awarded due to juror misconduct.

Sept 2004 List. Sept 2005 List. January 2005 List.

Google It!. STATE v. JULIAN R. SMITH. [Permanent Link].

Google It!. GARY ALLEN GIBSON v. McBRIDE. [Permanent Link].

CRIMINAL :: Improper comment on defendant's silence. CRIMINAL :: Unauthorized entry not element of daytime burglary. CRIMINAL :: Insufficient evidence to support obstruction convictions.

CRIMINAL :: Numerous errors rejected, second degree murder. HABEAS CORPUS, PROCEDURE :: Denial of relief without evidentiary hearing. MOTOR VEHICLES, CRIMINAL :: Delay in receipt of officer's statement.

STATE v. BRYAN ANTHONY MERRITT,, No. 33105 (Per Curiam)(April 19, 2007). Merritt appealed an order of the Circuit Court of Wood County that denied his petition for modification of sentence. Dismissed as moot in light of discharge of the 45-day sentence, and the absence of sufficient collateral consequences or great public interest that would justify relief. The underlying issue [^] whether the magistrate and circuit courts erred in not granting Merritt a stay [^] is of unique concern to Merritt. [Permanent Link] Google It! . Google It!. CRIMINAL, PROCEDURE :: Moot because sentence discharged.

CRIMINAL, EVIDENCE, CONSTITUTIONAL :: Warrantless surveillance in the home violates West Virginia Constitution. [Permanent Link]. Google It!.

[Permanent Link].Google It!.CRIMINAL, JURY :: Juror who worked with law enforcement properly seated.STATE v. WILLIAM MILLS, JR., No. 33340 (Per Curiam)(October 25, 2007). Affirming an order of the Circuit Court of Kanawha County that imposed sentence upon a jury conviction for delivery of a controlled substance. Rejecting appellant's contention that the trial court erred in refusing to strike a juror for cause. The juror was in uniform as a medic for county emergency services and also served on a volunteer fire department with a potential state witness. Concluding that the appellant failed to demonstrate a disqualifying social relationship, and further failed to specifically inquire as to the nature of the juror's relationships with law enforcement officials, and that the juror was very clear about being able to remain impartial. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: 404(b) violations during cross-examination of defendant.STATE v. DAVID NELSON., No. 33188. (Per Curiam)(Maynard, J., dissenting)(Starcher, J., concurring)(October 30, 2007). Reversing jury convictions of six felony offenses related to the death of Wanda Lesher, upon which the defendant had been sentenced to two terms of life without mercy, among other sentences to be served consecutively, on the basis that the defendant was denied a fair trial. Where defendant relied upon an alibi defense and testified at trial, it was error to permit the State on cross-examination to raise alleged acts of past misconduct that were unverified, inflammatory and not subjected to the requirements of Rule 404(b). The alleged acts were also not admissible in the context of rebuttal upon the issue of character. [Permanent Link].Google It!.CRIMINAL, JURY :: New trial awarded due to juror misconduct.STATE v. DANNY L. CECIL., No. 33298 (Per Curiam)(Maynard, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Putnam County imposing sentence upon jury convictions for multiple sex crimes. Rejecting several trial errors, including an assertion that the trial court improperly limited a defense expert with statistical evidence tending to undermine the veracity of assertions of sexual abuse victims. Reversing and remanding for a new trial in light of multiple instances of juror misconduct including investigation extrinsic to the deliberation process and one juror who contradicted the court's instructions on the weight to be given to testimony of witnesses. Remanded for new trial.

[Permanent Link]. CRIMINAL :: Negligent homicide. STATE ex rel. NELSON, Prosecuting Attorney v. FRYE.

STATE v. ERIC DELBERT JETT. Google It!. CRIMINAL :: Jury instruction on attempt properly refused.

[Permanent Link].Google It!.HABEAS CORPUS, PROCEDURE :: Denial of relief without evidentiary hearing.STATE EX REL. JAMES BLAINE WALDRON v. SCOTT., No. 33434 (Per Curiam)(March 18, 2008). Affirming an order of the Circuit Court of McDowell County that denied habeas corpus relief without conducting an evidentiary hearing. Holding that although the order failed to make specific findings as to why an evidentiary hearing was not required, such omission was harmless in light of the fact that each issue raised was exhaustively addressed in the circuit court's order; and further in light of the fact that several of the issues were previously and finally adjudicated in the petitioner's direct appeal. The circuit court addressed the petitioner's claim of ineffective assistance of counsel in a very detailed fashion, and correctly held that the prejudice prong of the Strickland standard could not be satisfied. [Permanent Link].Google It!.CRIMINAL, JUVENILES :: Separate charges subsequent to transfer.STATE v. JAMES LEE BROOKS, III., No. 33662 (ALBRIGHT, J.)(Starcher, J., concurring in part and dissenting in part)(May 23, 2008). Affirming jury convictions arising from the Circuit Court on Monongalia for the offenses of conspiracy to commit first-degree robbery, malicious assault, and conspiracy to commit malicious assault. (This case was granted only as to a single assignment of error.) Rejecting appellant's contention that his transfer from juvenile to adult jurisdiction solely on the charge of first-degree robbery precluded indictment on additional related charges, because those charges were formally not part of the basis for the original transfer. Holding, in syllabus point 2, that where the transfer is mandatory under W.Va. Code 49-5-10(d)(2)(2001)(Repl. Vol. 2004) "there is no statutory impediment that prevents the State form charging the juvenile by indictment with offenses that were not included in the transfer motion and/or hearing provided those additional offenses flow from the same factual allegations of criminal activity that were the subject of the transfer hearing.". [Permanent Link].Google It!.CRIMINAL, PROCEDURE :: Late disclosure, denial of continuance.STATE v. OWEN HAWK, III., No. 33435 (Per Curiam)(April 7, 2008). Affirming conviction for the offense of fleeing from an officer while under the influence of alcohol, obtained following jury trial in the Circuit Court of Roane County. Holding that the lower court did not err in denying a continuance due to disclosure of potentially exculpatory evidence on the evening before trial, where the evidence in question - the identity of another arrestee who may have witnessed certain conduct by the police after the defendant was arrested - was not material to the pending charges.

Criminal. [Permanent Link]. Google It!.

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[Permanent Link].Google It!.CRIMINAL :: Voluntary manslaughter conviction affirmed.STATE v. VALERIE WHITTAKER., No. 33037 (Per Curiam)(Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(April 5, 2007). Defendant appealed her Mercer County jury conviction for voluntary manslaughter. Holding that the circuit court properly refused to grant a judgment of acquittal based upon self-defense; that the circuit court properly limited the testimony of certain defense witnesses; and that the circuit court properly handled other evidentiary matters, including admitting a statement made by the defendant. [Permanent Link].Google It!.CRIMINAL :: Jury instruction on attempt properly refused.STATE v. ERIC DELBERT JETT., No. 33198 (Per Curiam)(May 17, 2007). Defendant appealed a Kanawha County Circuit Court conviction and sentence for operating or attempting to operate a clandestine drug laboratory under West Virginia Code 60A-4-411. Affirming the conviction, and holding that the circuit court properly refused to give defendant's requested jury instruction defining the term "attempt.".[Permanent Link]. Google It!.CRIMINAL :: Child neglect resulting in death conviction affirmed.STATE v. ADONIS RAY THOMPSON., No. 33206 (Per Curiam)(May 11, 2007). Defendant appealed Circuit Court of Kanawha County jury conviction for child neglect causing death, after his two-year old died from hyperthermia after being left in an infant car seat in defendant's car over four hours on a day when outside temperatures reached in excess of eighty degrees. Holding that it was not plain error for the trial court not to instruct the jury on the defense of unconsciousness or automatism, and further holding that the evidence was sufficient to support the conviction.

[Permanent Link].Google It!.CRIMINAL, HABEAS CORPUS :: Various errors rejected.SER JOHN MCLAURIN v. THOMAS MCBRIDE, WARDEN., No. 32983 (Per Curiam)(November 15, 2006). John McLaurin appealed an order of the Circuit Court of Kanawha County that denied of a petition for writ of habeas corpus. Affirming, and rejecting various assignments of error.[Permanent Link].Google It!.The items on this page are archived by the day they are posted. Use the calendar to browse posts by day.October 2008.BROWSE by CASE TOPICS. [Permanent Link].Google It!.HABEAS CORPUS :: Appeal involving parolee dismissed as moot.STATE EX REL. ROBERT L. MCCABE v. EVELYN SEIFERT, WARDEN., No. 32976 (Per Curiam)(Albright, J., dissenting)(Starcher, J., disqualified)(Mazzone, Judge, by temporary assignment)(November 29, 2006). Petitioner, who is now released on parole, appealed an order of the Circuit Court of Monongalia County denying his petition for a writ of habeas corpus. Holding that the appeal must be dismissed as moot, where limited issues remain, where the petitioner is on parole and does not make a substantive challenge to the conditions of his parole, with leave to file a motion in circuit court for correction of sentence. [Permanent Link].Google It!.Tuesday, November 21, 2006.CRIMINAL, PROCEDURE :: Jail clothing in penalty phase.STATE OF W. VA. v. JEFFREY L. FINLEY., No. 32961 (ALBRIGHT, J.)(Davis, C.J. and Maynard, J., dissenting)(Benjamin, J., concurring)(November 16, 2006). Jeffrey L. Finley appealed his conviction following a jury trial in the Circuit Court of Cabell County for first degree murder without a recommendation of mercy and two counts of second degree sexual assault. Granting mixed relief and affirming the conviction, but reversing the judgment at the penalty phase. Holding that it was a denial of due process to compel the defendant to appear in prison clothing at the penalty phase of a bifurcated murder trial, and setting forth guidelines for circuit courts to follow in the future.

CRIMINAL :: Unauthorized entry not element of daytime burglary. [Permanent Link]. Google It!.

[Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Expert testimony on diminished capacity.STATE v. DREU FERGUSON, JR., No. 33530 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Mason County that denied a motion for new trial following a jury conviction for voluntary manslaughter. Holding that the circuit court improperly struck expert testimony presented by the defendant. Holding that the expert testimony sufficiently set forth that the defendant's mental state at the time of the crime would have prevented him from forming intent to kill, thus establishing the diminished capacity defense. Remanded for new trial. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Proffer inadequate to defeat rape shield.STATE v. JOSHUA C. WEARS., No. 33529 (Per Curiam)(June 26, 2008). Affirming a conditional guilty plea arising from the Circuit Court of Putnam County for one count of Third Degree Sexual Assault. Holding that the circuit court properly excluded certain evidence related to prior sexual conduct of the victim, where despite ample opportunity the defendant did not produce a proffer of evidence that was adequate to overcome the rape shield statute. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Clergy-communicant privilege, proof of age difference.STATE v. JOHN LOWERY., No. 33660 (Per Curiam)(May 27, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County on two felony counts of sexual assault in the third degree and two misdemeanor counts of sexual abuse in the third degree. Holding that admission of a pastor's testimony was proper because the defendant did not make any confidential communication or confession to the pastor witness that was revealed by the pastor's testimony. Further holding that the trial court properly decided not to declare a mistrial after an outburst by a spectator, where the trial court immediately ejected the spectator and gave the jury a curative instruction. Finally holding that the four-year age difference required under the felony counts was adequately proven by the State's evidence that the victim was fifteen, the jury's ability to observe the appearance of the defendant, and the jury's knowledge of the fact that the defendant was married with children.

Google It!. STATE v. KENNETH RAY COLLLINS. [Permanent Link].

STATE v. JOHN LOWERY. Google It!. CRIMINAL, EVIDENCE :: Clergy-communicant privilege, proof of age difference.

CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived.CRIMINAL :: Negligent homicide.CRIMINAL :: Incest, sexual assault, double jeopardy.CRIMINAL :: Sufficient evidence to support sexual abuse by custodian.CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived.CRIMINAL :: Assessment of jury costs on defense counsel reversed.CRIMINAL :: No prejudice in trial court amending indictment.CRIMINAL :: Sufficient evidence to sustain murder conviction. CRIMINAL, HABEAS CORPUS, ATTORNEYS :: Ineffective assistance of counsel in mercy phase.View this page as XML [RSS 0.92]:.This page is based upon a modified version of the jenett.radio.simplicity.1.3R theme for.Radio Userland.Opinions.Site Map.Law Library.Site Search.Terms of Use.2008 Supreme Court of Appeals of West Virginia Rory Perry.Last update: 10/16/08; 9:48:45 AM.var site="s10quasqui".

[Permanent Link]. CRIMINAL :: Actual or constructive possession of drug-making materials or equipment. STATE v. MICHAEL CUMMINGS.

[Permanent Link].Google It!.CRIMINAL :: Witness as bailiff didnít violate due process, judge questioning witness wasn't plain error.STATE v. ALLEN D. WAUGH., No. 32773 (Per Curiam)(February 16, 2007). Petitioner appealed a conviction for second degree murder upon a jury trial in the Circuit Court of Mason County. Affirming the conviction, and holding that under the circumstances of the case, a bailiff who also acted as a prosecution witness did not violate due process, because the deputy's testimony was not that of a key witness at trial. Further concluding that questioning of a witness by the trial judge exceeded the scope of permissible questioning authorized by Rule 614(b), but did not rise to the level of plain error. [Permanent Link].Google It!.CRIMINAL :: No speedy trial violation.SER KEITH O'DELL MCCOURT v. HON. JACK ALSOP, JUDGE., No. 33213 (Per Curiam)(Albright, J., concurring in part and dissenting in part)(February 22, 2007). Petitioner sought to prohibit prosecution of a 1994 indictment, where petitioner was not arrested until 2006. Denying the writ, and holding that there was no speedy trial violation where the defendant never appeared for arraignment, where the State consistently obtained bench warrants and where the record fails to show any evidence that the State was aware of the defendant's whereabouts. [Permanent Link].Google It!.CRIMINAL :: Negligent homicide and violations of traffic statutes.STATE v. MARJORIE VIRGINIA GREEN., No. 33200 (ALBRIGHT, J.)(February 21, 2007). Defendant appealed her jury convictions in the Circuit Court of Hardy County on two counts of negligent homicide, arising from a vehicle accident that resulted in two deaths. Reversing the convictions and clarifying the standard set forth in STATE v. VOLLMER, 163 W.Va. 711, 259 S.E.2d 837 (1979), and holding, in syllabus point 5 that: "A conviction for negligent homicide must not be premised solely upon the violation of a traffic statute unless the underlying act which constitutes the violation or accompanying circumstances evidence a reckless disregard for the safety of others, characterized by negligence so gross, wanton, and culpable as to show a reckless disregard for human life.".

Jnauary term opinions summarized. [Permanent Link]. Google It!.

HABEAS CORPUS :: Appeal involving parolee dismissed as moot. [Permanent Link]. Google It!.

[Permanent Link]. CRIMINAL :: Insufficient evidence to support obstruction convictions. STATE v. WANDA CARNEY and BETTY JARVIS.

Google It!.CRIMINAL :: Actual or constructive possession of drug-making materials or equipment.STATE v. MICHAEL CUMMINGS., No. 33223 (BENJAMIN, J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(June 6, 2007). Reversing felony convictions for attempting to operate a clandestine drug lab and conspiracy to attempt to operate a clandestine drug lab obtained following a jury trial in the Circuit Court of Roane County. Rejecting the State's argument that both intent and possession could be inferred from the circumstances, which involved evidence that the appellant was operating a vehicle, which was not owned by him, and which contained cold medicine and matches in the rear passenger area. Holding, in syllabus point 6, that: "In order to sustain a conviction for violation of W. Va. Code 60A-4- 411 (2003), by assembling any chemicals or equipment for the purpose of manufacturing methamphetamine, the State must prove beyond a reasonable doubt that the defendant had actual or constructive possession over the chemicals and/or equipment. In order to establish constructive possession where the defendant is present in a vehicle wherein such materials are found, the State must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the chemicals and/or equipment to be used for the purposes of manufacturing methamphetamine and that such items were subject to the defendant's dominion and control.". [Permanent Link].Google It!.CRIMINAL :: Sentence properly corrected.STATE ex rel. CORNELL F. DAYE v. McBRIDE., Warden, Nos. 33100 & 33101 (STARCHER, J.)(June 27, 2007). Appellant sought review of an order of the Circuit Court of Raleigh County in a habeas corpus proceeding, arguing that the circuit court improperly corrected a sentence in order to permit enhancement. Holding, in syllabus point 5, that: "When any person is convicted of an offense under the Uniform Controlled Substances Act (W.Va Code, Chapter 60A) and is subject to confinement in the state correctional facility therefor and it is further determined, as provided in W.Va. Code, 61-11-19 (1943), that such person has been before convicted in the United States of a crime or crimes, including crimes under the Uniform Controlled Substances Act (W.Va. Code, Chapter 60A), punishable by confinement in a penitentiary, the court shall sentence the person to confinement in the state correctional facility pursuant to the provisions of W.Va. Code, 61-11-18 (2000), notwithstanding the second or subsequent offense provisions of W.Va. Code, 60A-4-408 (1971)." Holding that the circuit court properly corrected the illegal sentence originally imposed, and rejecting the appellant's argument that the enhancement provisions of the Uniform Controlled Substances Act should take precedence over the general habitual criminal offender statue. Remanded for appointment of counsel and further proceedings regarding remaining assignments of error. [Permanent Link].Google It!.CRIMINAL :: Probation revocation affirmed.STATE v. JAMES K. HOSBY., No. 33247 (Per Curiam)(June 7, 2007). Affirming an order of the Circuit Court of Jefferson County that revoked probation and ordered appellant to serve the remainder of a one-year jail sentence received after a guilty plea to the misdemeanor offense of failure to pay child support. Holding that the circuit court properly determined that the appellant failed to follow the conditions of probation.[Permanent Link].

Family. August 28. Criminal.

Tuesday, October 29. First seven opinions of the September 2008 term. Summaries of the first seven opinions.

March 2, 2007. Summaries of all January 2007 opinions posted - corrected. Issue 91.

CRIMINAL :: No prejudice in trial court amending indictment. [Permanent Link]. Google It!.

CRIMINAL, EVIDENCE :: Clergy-communicant privilege, proof of age difference. CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support. CRIMINAL, EVIDENCE :: Proffer inadequate to defeat rape shield.

Google It!. STATE v. DENVER A. YOUNGBLOOD, JR. [Permanent Link].

Google It!. STATE v. ERNEST J. JOHNSON. [Permanent Link].

CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support. [Permanent Link]. Google It!.

STATE OF W. VA. v. MICHAEL DAVID DOONAN. Google It!. CRIMINAL, EVIDENCE :: Reciprocal discovery in magistrate court jury trials.

CRIMINAL, HABEAS CORPUS :: Witnesses in prison attire and shackles. [Permanent Link]. Google It!.

CONFERENCE and ARGUMENT

[Permanent Link].Google It!.CRIMINAL, HABEAS CORPUS :: Witnesses in prison attire and shackles.GARY ALLEN GIBSON v. McBRIDE., No. 33321 (Per Curiam)(Benjamin, J., dissenting)(June 12, 2008). Affirming an order of the Circuit Court of Cabell County that granted habeas corpus relief and set aside a conviction for conspiracy to commit a murder that took place at the former West Virginia Penitentiary in Moundsville. Holding that the circuit court properly concluded that the defendant's constitutional right to a fair trial was violated when the trial court allowed key witnesses for the State, who were incarcerated at the time of trial, to testify in civilian clothing and without shackles while key defense witnesses, who were also incarcerated at the time of trial, testified wearing prison attire and were forced to wear shackles. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Invited error, intrinsic evidence.STATE v. HAROLD LEE CYRUS., No. 33453 (Per Curiam)(February 20, 2008). Affirming an order of the Circuit Court of Mercer County imposing sentence on two counts of sexual abuse by a custodian and two counts of incest. Holding that the state did not improperly present expert testimony of a CPS worker and a nurse practitioner. Holding at the witnesses were presented as fact witnesses by the state, and that expert testimony was elicited by the defendant's counsel on cross examination, and was therefore invited error. Further holding that evidence of abuse in McDowell County was intrinsic evidence not subject to Rule 404(b). Finally holding that there was no error in the admission of evidence from abuse & neglect proceedings, where both the state and the defendant relied upon those proceedings. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Consumption of evidence and defendant's ability to test.STATE EX REL. RONALD W. HOLCOMB v. SADLER., No. 33669 (Per Curiam)(February 15, 2008). Denying a writ of prohibition sought to prevent enforcement of an order of the Circuit Court of Mercer County that would permit DNA testing of fingernail scrapings of the 5 year-old victim, in a prosecution charging first degree murder and death of a child by a parent due to child abuse. Holding that the possibility of consumption of the evidence did not unfairly infringe upon the defendant's right to independent testing and cross examination, where appropriate protocols are available to be followed during the testing, such that the defendant's request for relief in prohibition is not warranted at this time.

STATE v. JONATHON FREEMONT RAY. Google It!. CRIMINAL :: Incest, sexual assault, double jeopardy.

Google It!. , No. 33105 (Per Curiam)(April 19, 2007). Merritt appealed an order of the Circuit Court of Wood County that denied his petition for modification of sentence. Dismissed as moot in light of discharge of the 45-day sentence, and the absence of sufficient collateral consequences or great public interest that would justify relief. The underlying issue [^] whether the magistrate and circuit courts erred in not granting Merritt a stay [^] is of unique concern to Merritt. [Permanent Link] Google It! . [Permanent Link].

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STATE v. MARJORIE VIRGINIA GREEN. Google It!. CRIMINAL :: Negligent homicide and violations of traffic statutes.

STATE v. GERALD THOMPSON, JR. Google It!. CRIMINAL, EVIDENCE :: Trial court improperly questioned witnesses.

[Permanent Link]. CRIMINAL, EVIDENCE :: Invited error, intrinsic evidence. STATE v. HAROLD LEE CYRUS.

[Permanent Link]. CRIMINAL, EVIDENCE :: Failure to provide pre-trial notice of 404(b) material, dismissed charges as 404(b) material. STATE v. JEREMIAH DAVID MONGOLD.

STATE v. ERIC ALLEN FOSTER. Google It!. CRIMINAL :: Numerous errors rejected, second degree murder.

[Permanent Link]. CRIMINAL, JURY :: No Batson violation. CHRISTOPHER LEE DAVIS v. McBRIDE.

SER JOHN MCLAURIN v. THOMAS MCBRIDE, WARDEN. Google It!. CRIMINAL, HABEAS CORPUS :: Various errors rejected.

[Permanent Link]. CRIMINAL :: Post-arrest statements properly admitted. STATE OF W. VA. v. ROGER ERIC JONES.

Site Map. Radio Userland. Opinions.

September 2007 term. Google It!. Updates.

Jnauary term opinions summarized. Live Webcast. First seven opinions of the September 2008 term.

Google It!. STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden. [Permanent Link].

Recent Opinions Summarized. WV Supreme Court Home. Current Term Opinion List.

Google It!. STATE v. JOSHUA LEE SLATER. [Permanent Link].

LOCAL GOVERNMENT, JAILS, PROCEDURE :: Regional jail fees. [Permanent Link]. Google It!.

STATE EX REL. CARROLL EUGENE HUMPHRIES v. THOMAS MCBRIDE, WARDEN. Google It!. CRIMINAL, ATTORNEYS :: Conflict of interest and ineffective assistance of counsel.

CRIMINAL, EVIDENCE :: Imputed knowledge of Brady material. [Permanent Link]. Google It!.

March 13th.[Permanent Link].Google It!.CRIMINAL, EVIDENCE, CONSTITUTIONAL :: Warrantless surveillance in the home violates West Virginia Constitution.STATE v. EDDIE MULLENS., No. 33073 (DAVIS, C.J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., dissenting)(February 28, 2007). Reversing an order of the Circuit Court of Boone County that denied a motion to suppress, where the defendant entered a conditional guilty plea and preserved the issue for appeal. After extensive review of state and federal authorities, holding that the West Virginia Constitution affords greater protection than the Fourth Amendment of the United States Constitution from warrantless electronic surveillance in the home. Holding, in syllabus point 2 that: "It is a violation of West Virginia Constitution article III, section 6 for the police to invade the privacy and sanctity of a person's home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person's home without first obtaining a duly authorized court order pursuant to W. Va. Code 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that STATE v. THOMPSON, 176 W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled." Further holding, in syllabus point 4: "Article III, section 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one- party consent to electronic surveillance provisions of W. Va. Code 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005).". [Permanent Link].Google It!.CRIMINAL :: Incorrect jury instruction on element of intent.STATE v. WADE C. DAVIS., No. 33191 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., dissenting)(April 5, 2007). Defendant appealed Circuit Court of Kanawha County jury conviction and sentence for second degree murder. Reversing and remanding for new trial, and holding that the circuit court erred in failing to properly instruct the jury that "intent" is an element of second degree murder, after the jury specifically inquired as to the difference between second degree murder and involuntary manslaughter. [Permanent Link].Google It!.Opinion summary Issue #92.Today I'll be posting the contents of.Issue #92.of the opinion summary service. The most recent issue covers the last 45 opinions issued in the January 2007 term of court.[Permanent Link].Google It!.Friday, March 2, 2007.First opinions of January term summarized.Summaries of the first ten opinions issued this term were.posted today., and will be e-mailed to subscribers as Issue #91. The opinions include State v. Mullens, held over from the prior term of court. The next argument docket will be held.

CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived. [Permanent Link]. Google It!.

Jan 2003 List. Jan 2004 List. Sept 2003 List.

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Posted. Google It!. Final September opinions summarized, three cases held over.

STATE v. MINDY KEESECKER. Google It!. CRIMINAL :: Improper comment on defendant's silence.

CRIMINAL :: Assessment of jury costs on defense counsel reversed. CRIMINAL :: Sufficient evidence to support sexual abuse by custodian. CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived.

[Permanent Link].Google It!.CRIMINAL :: No prejudice in trial court amending indictment.STATE v. RICHARD ALLEN HAINES., No. 33304 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Hampshire County that imposed sentence upon a jury conviction for one count of felony delivery of a Schedule II controlled substance. Rejecting appellant's contention that the trial court erred in amending the indictment, which had erroneously identified methamphetamine as a Schedule I controlled substance. Holding that the trial court properly concluded that the amendment was not substantial and did not require resubmission to the grand jury in light of the fact that the appellant was not misled, there was no additional burden of proof, and he was not prejudiced as a result of the amendment. [Permanent Link].Google It!.CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived.STATE v. DANIEL B. BINGMAN., No. 33299 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(October 26, 2007). Affirming a conviction and sentence imposed by the Circuit Court of Gilmer County upon conviction for one count of petit larceny in violation of W. Va. Code 61-3-13(b). The indictment for grand larceny occurred more than one year after the offense. Holding that defense counsel failed to object to jury instructions on the lesser-included offense, thereby waiving any statute of limitations defense that could be asserted, in accord with rule announced in syllabus point 3 of STATE v. BOYD, 209 W. Va. 90, 543 S.E.2d 647 (2000). [Permanent Link].Google It!.CRIMINAL :: Assessment of jury costs on defense counsel reversed.STATE EX REL. TERRON GODFREY v. ROWE., No. 33444 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(October 16, 2007). Granting a moulded writ of prohibition to prevent enforcement of an order imposing jury costs on defense counsel following a mistrial. Holding that the trial court properly rejected defendant's assertion that the second trial was barred by double jeopardy. Further denying as premature relief sought in relation to a motion to join counts of a subsequent indictment and directing the circuit court to address the joinder motion.

[Permanent Link].Google It!.CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived.STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden., No. 33244 (Per Curiam)(November 9, 2007). Affirming an order of the Circuit Court of Cabell County that denied a post-conviction habeas corpus petition. Holding that the 212 year sentence for a single count of aggravated robbery was within statutory limits and that the circuit court properly took into account the defendant's extensive and escalating criminal history. Deeming the defendant's skeletal argument regarding ineffective assistance of habeas counsel to have been waived, given the absence of supporting arguments or authority. [Permanent Link].Google It!.MOTOR VEHICLES, CRIMINAL :: Delay in receipt of officer's statement.CARPENTER v. CICCHIRILLO, COMMISSIONER., No. 33654 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Kanawha County that reversed an administrative decision to revoke a driver's license for driving under the influence. Holding that a minor delay in receipt of the Statement of Arresting Officer did not deprive the DMV of its duty to investigate and consider license revocation once it received the paperwork. In light of the fact that the driver was not subject to actual prejudice because of the delay, the circuit court erred in reversing the DMV's revocation decision. . [Permanent Link].Google It!.Friday, February 1, 2008.CRIMINAL :: Numerous errors rejected, second degree murder.STATE v. ERIC ALLEN FOSTER., No. 33323 (Per Curiam)(Benjamin, J., disqualified)(Moats, Judge, by temporary assignment)(November 19, 2007)(Rehearing denied, January 10, 2008). Affirming an order of the Circuit Court of Nicholas County imposing two consecutive forty-year sentences upon jury conviction for two counts of second degree murder. Rejecting assertions that there was insufficient evidence of intent. Further holding that certain jury instructions and selection of certain jurors did not constitute plain error, and that there was no per se ineffective assistance of counsel.

OPINION LINKS

CRIMINAL, HABEAS CORPUS, ATTORNEYS :: Ineffective assistance of counsel in mercy phase. CRIMINAL :: No prejudice in trial court amending indictment. CRIMINAL :: Sufficient evidence to sustain murder conviction.

[Permanent Link]. CRIMINAL, EVIDENCE, JURY :: Statements by juror as extrinsic evidence. STATE v. TONY FRANKLIN DAUGHERTY, SR.

[Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Late disclosure of rebuttal witness merited mistrial.STATE v. JULIAN R. SMITH., No. 33171 (Per Curiam)(Maynard, J., dissenting)(Albright, J., concurring)(June 13, 2007). Reversing conviction of the offense of aggravated robbery following a jury trial in the Circuit Court of Kanawha County. Holding that a witness, disclosed after the defendant testified, who recanted an undisclosed pretrial statement that supported the defendant's defense of alibi, was prejudicial. Holding that "manifest necessity for a mistrial is demonstrated in the record in the following respects: (1) the State failed to provide notice of the rebuttal witness whose testimony was elicited to contradict Smith's alibi defense; (2) the State advised Smith that it was unaware of any evidence favorable to Smith and, further, failed to disclose to Smith the pretrial statement of the rebuttal witness which initially had supported Smith's alibi defense; and (3) although stating to the Circuit Court that no formal plea agreement had been made with the rebuttal witness, the State failed to disclose that the witness had been offered the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial.". Criminal.Family.The first court day of the September term will take place on September 11th, with a Motion Docket and Argument Docket. Most of the dockets and briefs are now posted on the.September calendar page.[Permanent Link].Google It!.CRIMINAL :: Improper comment on defendant's silence was plain error.STATE v. BRIAN DANIEL MURRAY., No. 33193 (Per Curiam)(Davis, C.J., dissenting)(Maynard, J., dissenting)(Benjamin, J., concurring)(June 5, 2007). Defendant appealed following jury conviction in the Circuit Court of Morgan County for the offenses of failing to render aid at an automobile accident involving death and failure to maintain control of his vehicle. Applying plain error analysis to conclude that the prosecution improperly commented on the defendant's failure to testify. [Permanent Link].Google It!.Wednesday, August 22, 2007.CRIMINAL, ATTORNEYS :: Conflict of interest and ineffective assistance of counsel.STATE EX REL. CARROLL EUGENE HUMPHRIES v. THOMAS MCBRIDE, WARDEN., No. 33103 (Per Curiam)(April 19, 2007). Petitioner appealed an order of the Circuit Court of Greenbrier County that denied his petition for a writ of habeas corpus. Petitioner was convicted by a jury on July 30, 1999, of one count of felony offense of accessory before the fact to murder of the first degree, and one count of the felony offense of conspiracy to commit murder. Reversing and remanding for a new trial, in light of the conflict of interest of defense counsel and ineffective assistance of counsel with regard to several issues throughout trial, as well as a Sixth Amendment violation at trial.

Google It!. STATE EX REL. JAMES BLAINE WALDRON v. SCOTT. [Permanent Link].

Recent Opinions. Family. Opinions Home.

CRIMINAL, JURY :: Juror who worked with law enforcement properly seated. [Permanent Link]. Google It!.

Google It!. STATE v. JAMES K. HOSBY. [Permanent Link].

October 2008

[Permanent Link]. CRIMINAL :: Voluntary manslaughter conviction affirmed. STATE v. VALERIE WHITTAKER.

STATE v. WADE C. DAVIS. Google It!. CRIMINAL :: Incorrect jury instruction on element of intent.

FREDERICO HATCHER v. THOMAS McBRIDE, WARDEN. Google It!. EVIDENCE, HABEAS CORPUS :: Testimony by a judge.

Google It!. STATE v. RONNIE ALLEN RUSH. [Permanent Link].

STATE v. OWEN HAWK, III. Google It!. CRIMINAL, PROCEDURE :: Late disclosure, denial of continuance.

Jan 2006 List. Jan 2007 List. Sept 2006 List.

Google It!. Issue #92. [Permanent Link].

[Permanent Link].Google It!.CRIMINAL :: Unauthorized entry not element of daytime burglary.STATE v. JOSHUA LEE SLATER., No. 33659 (MAYNARD, C.J.)(Starcher, J., dissenting)(Benjamin, J., concurring)(June 9, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County for the offenses of kidnaping, domestic battery, wanton endangerment and daytime burglary by breaking and entering. Holding that unauthorized entry is not an element of the crime of daytime burglary by breaking and entering. Further holding that the circuit court properly sentenced the defendant to life with mercy on the kidnaping charge, where there was sufficient evidence for the jury to conclude that a concession was obtained. Further concluding that the sentence was within statutory limits and therefore not reviewable, that the jury's questions during deliberations were not the type requiring explanation beyond referring to the jury instructions, and that other objections to the jury instructions were waived by defense counsel. WV Supreme Court Office of the Clerk Case Topics: Criminal.WV Supreme Court Home.Current Term Opinion List.Recent Opinions Summarized.Updated: 10/16/08; 9:48:45 AM.Office of the Clerk.Case Topics: Criminal.Information about WV Supreme Court cases in the area of criminal law.Thursday, October 16, 2008.First seven opinions of the September 2008 term.Summaries of the first seven opinions.issued in the September 2008 term of court were posted today. One opinion, Savarese v. Allstate, resolved a case that was argued in the January term of court. Unless otherwise stated, in all opinions issued this term, Justice Albright is not participating and Senior Status Justice McHugh is sitting by temporary assignment. The final day of arguments in the September term of court is.Tuesday, October 29.[Permanent Link].Google It!.Wednesday, July 16, 2008.Jnauary term opinions summarized.Posted.were summaries of each of the 66 opinions issued in the January 2008 term of court, comprising 26 signed opinions and 40 per curiam opinions.CASES HELD OVER: Four cases submitted for decision in the January 2008 term of court were held over, with an opinion to issue during the September term. Those cases are: (1) SAVARESE v. ALLSTATE INS. CO., No. 33443(Argued January 23, 2008); (2) RASHID v. TARAKJI, No. 33596 (Argued April 1, 2008); (3) STATE EX REL. HATFIELD v. PAINTER, No. 33668 (Argued April 16, 2008); (4) LAWYER DISC. BD. v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing. The case was re-argued on May 25, 2008. Thereafter, Chief Justice Maynard recused himself from the case, and the case will be set for a second re-argument in the September term.).

[Permanent Link]. CRIMINAL, JUVENILES :: Separate charges subsequent to transfer. STATE v. JAMES LEE BROOKS, III.

Google It!. STATE v. EDDIE MULLENS. [Permanent Link].

[Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Imputed knowledge of Brady material.STATE v. DENVER A. YOUNGBLOOD, JR., No. 31765 (DAVIS, C.J.)(Maynard, J., dissenting)(Starcher, J., concurring)(Benjamin, J., dissenting)(May 10, 2007). On remand from the Supreme Court of the United States, reversing a jury conviction obtained in the Circuit Court of Morgan County. Holding that a prosecutor's duty to disclose Brady material includes disclosure of evidence that is known only to a police investigator and not to the prosecutor. Further clarifying the three components of a constitutional due process violation under Brady, and holding that the failure to disclose constituted a due process violation. Remanded for new trial. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Failure to provide pre-trial notice of 404(b) material, dismissed charges as 404(b) material.STATE v. JEREMIAH DAVID MONGOLD., No. 33222 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(June 6, 2007). Affirming a conviction for death of a child by parent, guardian or custodian by child abuse, obtained following a jury trial in the Circuit Court of Hampshire County. Holding that the trial court did not err in admitting related incident evidence that was not disclosed prior to trial, in light of the fact that the evidence was used to rebut defendant's character testimony. Setting forth a good cause standard for failure to disclose in syllabus point 3: "Rule 404(b) of the West Virginia Rules of Evidence requires the prosecution in a criminal case to disclose evidence of other crimes, wrongs or acts prior to trial if such disclosure has been requested by the accused; however, upon reasonable notice such evidence may be disclosed for the first time during trial upon a showing of good cause for failure to provide the requested pretrial notice." Further holding in syllabus point 4 that dismissal or acquittal of a charge does not prohibit its use as 404(b) material. [Permanent Link].Google It!.CRIMINAL, EVIDENCE :: Trial court improperly questioned witnesses.STATE v. GERALD THOMPSON, JR., No. 33097 (STARCHER, J.)(May 15, 2007). Defendant appealed a Clay County jury conviction for "attempting to operate or operating a clandestine drug lab." Reversing the conviction in light of the prejudice created by the repeated questioning of witnesses by the trial judge. Setting forth standards for evaluating whether a judge's partiality became a factor in the determination of the jury so that the defendant did not receive a fair trial.

Google It!. STATE EX REL. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY v. COUNTY COMMISSION OF CABELL COUNTY, et al. [Permanent Link].

[Permanent Link]. CRIMINAL, EVIDENCE :: Proffer inadequate to defeat rape shield. STATE v. JOSHUA C. WEARS.

CRIMINAL, EVIDENCE :: Preservation of crime scene. [Permanent Link]. Google It!.

COURT RULES

CRIMINAL, EVIDENCE :: Improper search. [Permanent Link]. Google It!.

Google It!. STATE v. ALLEN D. WAUGH. [Permanent Link].

CRIMINAL, EVIDENCE :: Consumption of evidence and defendant's ability to test. CRIMINAL, EVIDENCE :: Expert testimony on diminished capacity. CRIMINAL, EVIDENCE :: Invited error, intrinsic evidence.

CRIMINAL :: Child neglect resulting in death conviction affirmed. [Permanent Link]. Google It!.

[Permanent Link].Google It!.CRIMINAL :: Exigent circumstances is jury question; one act is one count of brandishing.STATE v. MICHAEL LEE KENDALL., No. 32689 (Per Curiam)(Starcher, J., dissenting)(November 29, 2006). Petitioner appealed his convictions upon jury trial in the Circuit Court of Gilmer County for burglary and for three counts of brandishing a firearm. Reversing, and holding that the jury, rather than the circuit court, should have decided the question of whether exigent circumstances existed for the defendant, a city police officer, to enter the home. Further holding that, despite the presence of multiple witnesses, one act of brandishing should produce a conviction for only one act of brandishing. Remanding for new trial. [Permanent Link].Google It!.CRIMINAL :: Prompt presentment rule violated, statements suppressed.STATE v. RONNIE ALLEN RUSH., No. 33035 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., concurring)(November 30, 2006). Defendant appealed the transfer of his case to adult status by the Circuit Court of Calhoun County and his ensuing convictions on two counts of manslaughter and one count each of first degree robbery, burglary, and conspiracy to commit burglary. Granting mixed relief, and affirming the circuit court's transfer decision. Reversing the circuit court's decision with regard to the admission of certain statements obtained. Holding that the totality of the circumstances, in light of the appellant's juvenile status and mental impairment, demonstrate that the significant period of delay in taking the appellant before a judicial officer was for the improper purpose of eliciting a confession. Remanding for new trial. [Permanent Link].Google It!.CRIMINAL :: Post-arrest statements properly admitted.STATE OF W. VA. v. ROGER ERIC JONES., No. 33072 (Per Curiam)(November 29, 2006). Petitioner was convicted for First Degree Murder and sentenced by the Circuit Court of Roane County to life in prison with no possibility of parole. Affirming the conviction and sentence, and rejecting argument that because questioning pertained to more than one crime but only one set of Miranda warnings were given, the post-arrest statements were improperly admitted. Further holding that no evidence of coercion was presented.

[Permanent Link]. MOTOR VEHICLES, CRIMINAL :: Delay in receipt of officer's statement. CARPENTER v. CICCHIRILLO, COMMISSIONER.

[Permanent Link]. CRIMINAL, MOTOR VEHICLES :: Driving privilege suspension applies to operating an ATV. STATE ex rel. SERGENT v. NIBERT, et al.

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CRIMINAL :: Prompt presentment rule violated, statements suppressed. [Permanent Link]. Google It!.

STATE EX REL. RONALD W. HOLCOMB v. SADLER. Google It!. CRIMINAL, EVIDENCE :: Consumption of evidence and defendant's ability to test.

Sept 2007. Current Term List. Jan 2008.

[Permanent Link].Google It!.CRIMINAL, PROCEDURE :: Compelled testimony when witness is to invoke Fifth Amendment.STATE v. ANTHONY RAY WHITT., No. 33039 (ALBRIGHT, J.)(Maynard, J., dissenting)(Benjamin, J., concurring)(April 6, 2007). Anthony Ray Whitt appealed his McDowell County conviction for second degree murder. Holding that the circuit court erred by refusing to permit a co-defendant to be called to the stand who indicated her intention, through counsel, to invoke the Fifth Amendment if called to testify. Setting forth guidelines for establishing a violation of the right to compulsory process afforded criminal defendants in article III, section 14 of the West Virginia Constitution, and further setting forth guidelines regarding the exception to the general rule against not allowing a witness to take the stand solely to invoke the Fifth Amendment privilege against self-incrimination, providing that the circuit court has discretion to permit such compulsory process in certain circumstances. Remanded for a new trial. [Permanent Link].Google It!.CRIMINAL, MOTOR VEHICLES :: Driving privilege suspension applies to operating an ATV.STATE ex rel. SERGENT v. NIBERT, et al., No. 33327 (ALBRIGHT, J.)(June 6, 2007). Granting a writ of prohibition sought by the prosecuting attorney of Roane County to prevent dismissal of an indictment for driving with a revoked license. Clarifying that administrative license suspension or revocation involves loss of both the license and privilege to operate a motor vehicle on public highways, and holding, in syllabus point 3 that "An individual who operates an all-terrain vehicle on a public highway of this state may be prosecuted for committing the offense of driving while suspended or revoked under the provisions of West Virginia Code 17B-4-3 (2004).". [Permanent Link].Google It!.CRIMINAL, PROCEDURE :: Moot because sentence discharged.STATE v. BRYAN ANTHONY MERRITT,., No. 33105 (Per Curiam)(April 19, 2007). Merritt appealed an order of the Circuit Court of Wood County that denied his petition for modification of sentence. Dismissed as moot in light of discharge of the 45-day sentence, and the absence of sufficient collateral consequences or great public interest that would justify relief. The underlying issue [^] whether the magistrate and circuit courts erred in not granting Merritt a stay [^] is of unique concern to Merritt.

CRIMINAL, EVIDENCE :: Late disclosure of rebuttal witness merited mistrial. [Permanent Link]. Google It!.

STATE v. MICHAEL LEE KENDALL. Google It!. CRIMINAL :: Exigent circumstances is jury question; one act is one count of brandishing.

Subscribe to E-Mail Opinion Summary List. Jan 2002 Term Summaries. Sept 2002 Term Summaries.

First six opinions of September 2007 term. [Permanent Link]. Google It!.

[Permanent Link].Google It!.CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support.STATE v. DAVID GABRIEL STAMM., No. 33505 (DAVIS, J.)(May 23, 2008). Reversing a conviction arising from the Circuit Court of Harrison County, for the felony offense of failure to meet an obligation to provide support to a minor under W. Va. Code 61-5-29. Holding, in syllabus point 5 that: "Insofar as W.Va. Code 61-5-29(3)(1999)(Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article II, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code 61-5-29, is unconstitutional and unenforceable. W. Va. Code Sections 61-5-29(1) and (2) remain fully enforceable." Under the circumstances of the case, further holding that a jury instructions did not render harmless the constitutional error of the burden-shifting statute, because the jury instructions could have misled the jury into believing that the defendant bore the burden of proof as to his ability to pay support. Remanded for a new trial. [Permanent Link].Google It!.CRIMINAL :: Insufficient evidence to support obstruction convictions.STATE v. WANDA CARNEY and BETTY JARVIS., No. 33522 (Per Curiam)(April 25, 2008). Reversing convictions for one count each of obstructing a police officer and conspiracy to obstruct a police officer. Because the conduct was effected without force, reiterating that any obstruction conviction must be supported by conduct that is unlawful or illegal. Holding that none of the three instances cited by the State involved illegal conduct, and there was no evidence that law enforcement's investigation was impeded. Because there is no evidence to support the obstruction convictions, the conspiracy conviction fails as well. [Permanent Link].Google It!.CRIMINAL :: Improper comment on defendant's silence.STATE v. MINDY KEESECKER., No. 33377 (Per Curiam)(Maynard, C.J., dissenting)(April 25, 2008). Reversing a jury conviction arising from the Circuit Court of Mercer County for six counts of sexual assault in the third degree. Holding that during closing argument the prosecutor improperly referred to the defendant's decision not to testify at trial. In light of the fact that the State's substantive evidence consisted only of the testimony of the victim and a prior written statement by the defendant, the prosecutor's statements were erroneous and prejudicial, and were not harmless error. Remanded for new trial.

STATE ex rel. CORNELL F. DAYE v. McBRIDE. Google It!. CRIMINAL :: Sentence properly corrected.

[Permanent Link]. CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived. STATE v. DANIEL B. BINGMAN.

PLUMLEY v. WEST VIRGINIA DEPT. of HEALTH and HUMAN RESOURCES/OFFICE of HEALTH FACILITY LICENSURE and CERTIFICATION. Google It!. HEALTH CARE :: Incest conviction precludes operating legally unlicensed health care home.

CRIMINAL, EVIDENCE :: Invited error, intrinsic evidence.CRIMINAL, EVIDENCE :: Consumption of evidence and defendant's ability to test.CRIMINAL, HABEAS CORPUS :: Witnesses in prison attire and shackles.CRIMINAL, JUVENILES :: Separate charges subsequent to transfer.CRIMINAL, PROCEDURE :: Late disclosure, denial of continuance.HABEAS CORPUS, PROCEDURE :: Denial of relief without evidentiary hearing.MOTOR VEHICLES, CRIMINAL :: Delay in receipt of officer's statement.CRIMINAL :: Numerous errors rejected, second degree murder. Criminal.Family.OPINION LINKS.Opinions Home.Recent Opinions.Current Term List.Jan 2008.Sept 2007.Jan 2007 List.Sept 2006 List.Jan 2006 List.Sept 2005 List.January 2005 List.Sept 2004 List.Jan 2004 List.Sept 2003 List.Jan 2003 List.Jan 2002 Term Summaries.Sept 2002 Term Summaries.Subscribe to E-Mail Opinion Summary List.OPINION SEARCH.Full Text Opinions.Search 1991-Present.COURT RULES.Links to Rules.Links to Forms.CONFERENCE and ARGUMENT.Calendar.Live Webcast.LINKS TO LAST 50 POSTS in this CATEGORY. First seven opinions of the September 2008 term.Jnauary term opinions summarized.CRIMINAL :: Unauthorized entry not element of daytime burglary.CRIMINAL :: Insufficient evidence to support obstruction convictions.CRIMINAL :: Improper comment on defendant's silence.CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support.CRIMINAL, EVIDENCE :: Proffer inadequate to defeat rape shield.CRIMINAL, EVIDENCE :: Clergy-communicant privilege, proof of age difference.CRIMINAL, EVIDENCE :: Expert testimony on diminished capacity.

BROWSE by CASE TOPICS

Google It!. STATE EX REL. ROBERT L. MCCABE v. EVELYN SEIFERT, WARDEN. [Permanent Link].

CRIMINAL :: Sufficient evidence to support sexual abuse by custodian. [Permanent Link]. Google It!.

Google It!. September calendar page. [Permanent Link].

[Permanent Link]. CRIMINAL :: Sufficient evidence to sustain murder conviction. STATE v. THOMAS JOSEPH MACPHEE.

CRIMINAL, EVIDENCE :: Expert testimony on diminished capacity. [Permanent Link]. Google It!.

[Permanent Link]. CRIMINAL, ATTORNEYS :: Custodial interrogation, requests for counsel, presentence credits. STATE v. KEVIN RAY MIDDLETON.

Google It!. STATE v. BRUSIE "DON" LANHAM. [Permanent Link].

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