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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2006 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
MICHAEL LEE KENDALL,
Defendant Below, Appellant
Appeal from the Circuit Court of Gilmer County
The Honorable Jack Alsop, Judge
Case No. 03-F-26
Reversed and Remanded with Directions
Submitted: October 25, 2006
Filed: November 29, 2006
Darrell V. McGraw, Jr.
Jerald E. Jones
Attorney General West & Jones
Clarksburg, West Virginia
Managing Deputy Attorney General Attorney for the Appellant
Colleen A. Ford
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right
to file a dissenting opinion.
SYLLABUS BY THE COURT
1. 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. Syl. Pt. 4, State v. Guthrie
W.Va. 657, 461 S.E.2d 163 (1995).
2. The prosecuting attorney occupies a quasi-judicial position in the trial of
a criminal case. In keeping with this 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
W.Va. 234, 233 S.E.2d 710 (1977).
3. Four factors are taken into account in determining whether improper
prosecutorial comment is so damaging as to require reversal: (1) the degree to which the
prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert attention to extraneous matters.
Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
4. 'Searches conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III,
Section 6 of the West Virginia Constitution _ subject only to a few specifically established
and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there
must be a showing by those who seek exemption that the exigencies of the situation made
that course imperative.' Syllabus Point 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804
(1980), overruled in part on other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1
(1991). Syl. Pt. 20, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001).
5. A warrantless arrest in the home must be justified not only by probable
cause, but by exigent circumstances which make an immediate arrest imperative. Syl. Pt.
2, State v. Mullins, 177 W.Va. 531, 355 S.E.2d 24 (1987).
6. 'The test of exigent circumstances for the making of an arrest for a felony
without a warrant in West Virginia is whether, under the totality of the circumstances, the
police had reasonable grounds to believe that if an immediate arrest were not made, the
accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during
the time necessary to procure a warrant, endanger the safety or property of others. This is an
objective test based on what a reasonable, well-trained police officer would believe. Syl. Pt.
2, State v. Canby, 162 W.Va. 666, 252 S.E.2d 164 (1979). Syl. Pt. 3, State v. Mullins, 177
W.Va. 531, 355 S.E.2d 24 (1987).
This is an appeal by Michael Kendall (hereinafter Appellant) from an order
of the Circuit Court of Gilmer County sentencing the Appellant to twenty days in jail and five
years of probation based upon a jury conviction of burglary and three counts of brandishing.
The Appellant challenges his conviction, asserting several assignments of error on appeal.
Based upon thorough review of the record, briefs, arguments of counsel, and applicable
precedent, this Court reverses the lower court and remands this matter for a new trial.
I. Factual and Procedural History
The Appellant, while employed as a police officer for the City of Glenville,
was called to a local bar to investigate an alleged fight shortly after midnight on March 7,
2003. Mr. Jacob Dennison, an off-duty Weston, West Virginia, police officer, accompanied
the Appellant on the call. Although the fight had ended by the time the Appellant and Mr.
Dennison arrived at the scene, they remained in the parking lot and thereafter observed Mr.
Kevin Tingler in what they believed to be an intoxicated state. The Appellant informed Mr.
Tingler that he should not attempt to operate a motor vehicle.
A few hours later, at approximately 2:40 a.m., the Appellant observed Mr.
Tingler driving his truck and began pursuing him in the police cruiser. The Appellant
attempted to stop Mr. Tingler by using his emergency lights and siren. Mr. Tingler fled in
his vehicle, and the Appellant pursued him for several miles through Gilmer County. Mr.
Tingler eventually lost control of his vehicle and drove off the road. According to the
testimony of the Appellant, the Appellant pulled his vehicle into a yard in an attempt to block
Mr. Tingler's vehicle, got out of his police cruiser with his service pistol drawn, and
requested that Mr. Tingler exit his vehicle. (See footnote 1)
According to the Appellant, Mr. Tingler then
drove his vehicle toward the Appellant, and the Appellant fired his pistol at Mr. Tingler's
vehicle. Mr. Tingler thereafter drove away in his vehicle.
Approximately one hour later, at 4:00 a.m., the Appellant and Mr. Dennison
arrived at Mr. Tingler's home. (See footnote 2)
According to the Appellant's testimony, lights in the home
had been illuminated when he and Mr. Dennison first arrived but were turned off as the
occupants became aware of the officers' presence. The Appellant saw a vehicle parked in
the driveway and learned that it was registered to Mr. Tingler. The Appellant also observed
muddy tire tracks going from the driveway to the rear of the home.
With his pistol drawn, the Appellant knocked on the door of the home. He
testified that the door was open and that he tapped the door twice with his foot, announcing
that he was a police officer. There is an evidentiary dispute regarding whether someone
opened the door, the Appellant kicked it, or it swung open on its own when the Appellant
knocked. (See footnote 3)
Although Kevin Tingler was not in the room, four other people were sitting in the
room. (See footnote 4)
Mr. Larry Snider, one of the occupants of the room, testified that the Appellant was
polite and requested permission to search the home. Mr. Snider also testified that Erlin
Tingler gave the Appellant permission to search the home. The Appellant conducted a search
of the home for Mr. Tingler but was unable to locate him. Mr. Tingler reported to the Gilmer
County Sheriff's Department the following day.
The Appellant was thereafter indicted for attempted voluntary manslaughter,
destruction of property, three counts of kidnapping, three counts of wanton endangerment,
and burglary. The three counts of kidnapping were dismissed before the Appellant began his
case-in-chief on the last day of trial. During the January and February 2004 trial, Mr.
Dennison invoked the Fifth Amendment and did not testify. (See footnote 5)
The Appellant was convicted
of burglary and three counts of brandishing, as the lesser included offense of the charged
wanton endangerment. He was sentenced to twenty days in jail and five years probation.
The sentence was stayed pending this appeal.
On appeal, the Appellant contends that the lower court erred by providing the
jury with an entry of premises instruction informing the jury that neither exigent
circumstances nor hot pursuit existed in this case and by failing to provide the jury with an
instruction offered by the Appellant. The Appellant further contends that the prosecution
inappropriately influenced Mr. Dennison's decision to invoke the Fifth Amendment and that
the Appellant should not have been convicted of three counts of brandishing where only one
act of brandishing was proven.
II. Standard of Review
This Court is presented with several assignments of error, each subject to a
separate standard of review. Regarding the alleged instructional errors, this Court is guided
by the standards of review articulated in syllabus point four of State v. Guthrie, 194 W.Va.
657, 461 S.E.2d 163 (1995), explaining as follows:
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.
Regarding the Appellant's assignment of error on the issue of prosecutorial
misconduct, this Court adheres to the principles announced in syllabus point three of State
v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), providing as follows:
The prosecuting attorney occupies a quasi-judicial
position in the trial of a criminal case. In keeping with this
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
Syllabus point six of State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995), also provides as
Four factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to
require reversal: (1) the degree to which the prosecutor's
remarks have a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced
to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert
attention to extraneous matters.
The Appellant also asserts that the lower court erred in permitting conviction
for three separate counts of brandishing where only one act of brandishing was proven. That
issue presents a question of law which this Court reviews de novo.
With those standards of review as guidance, we consider the allegations of the
A. Alleged Exigent Circumstances Instructional Error
The Appellant contends that the lower court erred by providing the jury with
an instruction regarding the entry of the premises which directed a verdict against the
Appellant by informing the jury that neither exigent circumstances nor hot pursuit existed
when the Appellant entered the Tingler home. That instruction specifically provided as
Absent exigent circumstances, hot pursuit of [or] consent
to enter the premises, a law enforcement officer does not have
the authority to enter into a private residence unless the law
enforcement officer has a search warrant to enter the premises.
The Court further instructs the jury that exigent
circumstances and hot pursuit did not exist under the facts of
this case, that would have authorized Michael Kendall to enter
the residence of Erlin Tingler.
According to the assertions of the Appellant, the lower court compounded this instructional
error by failing to provide the jury with the Appellant's offered instruction regarding the right
to enter a home and make a warrantless search subsequent to the commission of a felony in
an officer's presence. (See footnote 6)
In discussion of these instructional assignments of error on appeal, the State
emphasizes that the lower court's instructions were correct and that this Court has
consistently held that a warrantless arrest must be justified by probable cause and exigent
circumstances, as discussed below. Furthermore, the State asserts that the refused
instruction, as offered by the Appellant, was unnecessary and would have been contradictory
to the court's chosen instruction.
This Court's examination of the appropriateness of the lower court's
instructions must commence with an analysis of the principle of exigent circumstances. The
Fourth Amendment protects individuals in their homes against unreasonable searches and
seizures. See State v. Poling
, 207 W.Va. 299, 303, 531 S.E.2d 678, 682 (2000). In syllabus
point twenty of State v. Ladd
, 210 W.Va. 413, 557 S.E.2d 820 (2001), this Court explained
Searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment and Article III, Section 6 of the
West Virginia Constitution _ subject only to a few specifically
established and well-delineated exceptions. The exceptions are
jealously and carefully drawn, and there must be a showing by
those who seek exemption that the exigencies of the situation
made that course imperative. Syllabus Point 1, State v. Moore,
165 W.Va. 837, 272 S.E.2d 804 (1980), overruled in part on
other grounds by State v. Julius, 185 W.Va. 422, 408 S.E.2d 1
Thus, a warrantless entry into a home is not permitted under the Fourth Amendment unless
certain specified situations exist. In State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996),
this Court addressed the exigent circumstances which might justify a warrantless search and
explained as follows:
The test for the existence of exigent circumstances is
whether the facts would lead a reasonable, experienced police
officer to believe the evidence might be destroyed or removed
before a warrant could be secured. There must be evidence both
that an officer was actually . . . motivated by a perceived need
to render aid or assistance and that a reasonable person under
the circumstances must have thought that an emergency
existed. State v. Cecil,
173 W.Va. 27, 32 n. 10, 311 S.E.2d 144,
150 n. 10 (1983).
196 W.Va. at 112 n. 7, 468 S.E.2d at 727 n. 7. Recognized situations in which exigent
circumstances exist include: danger of flight or escape; danger of harm to police officers or
the general public; risk of loss, destruction, removal, or concealment of evidence; and hot
pursuit of a fleeing suspect. Id.
, 468 S.E.2d at 727 n. 7. (See footnote 7)
In State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50 (1995), this Court stated:
Exigent circumstances exist where there is a compelling need for the official action and
there is insufficient time to secure a warrant, police may then enter and search private
premises . . . without obtaining a warrant. 194 W.Va. at 549 n. 11, 461 S.E.2d at 55 n. 11.
The Buzzard Court also explained:
Exigent circumstances may exist in many situations: three well
recognized situations are when police reasonably believe (1)
their safety or the safety of others may be threatened, (2) quick
action is necessary to prevent the destruction of potential
evidence, or (3) immediate action is necessary to prevent the
suspect from fleeing.
Id., 461 S.E.2d at 55 n. 11.
As this Court explained in syllabus point two of State v. Mullins, 177 W.Va.
531, 355 S.E.2d 24 (1987), [a] warrantless arrest in the home must be justified not only by
probable cause, but by exigent circumstances which make an immediate arrest imperative. See also State v. Davisson 209 W.Va. 303, 308, 547 S.E.2d 241, 246 (2001). Syllabus point
three of Mullins explains the circumstances under which exigent circumstances exist for an
arrest for a felony by stating:
The test of exigent circumstances for the making of an
arrest for a felony without a warrant in West Virginia is
whether, under the totality of the circumstances, the police had
reasonable grounds to believe that if an immediate arrest were
not made, the accused would be able to destroy evidence, flee or
otherwise avoid capture, or might, during the time necessary to
procure a warrant, endanger the safety or property of others.
This is an objective test based on what a reasonable, well-trained
police officer would believe. Syl. Pt. 2, State v. Canby, 162
W.Va. 666, 252 S.E.2d 164 (1979).
In State v. Cheek, 199 W.Va. 21, 483 S.E.2d 21 (1996), police officers
suspected that the defendant had been driving under the influence. They therefore proceeded
to his home, detected the odor of alcohol, and executed a warrantless arrest after pulling him
from his house into the front yard. This Court found that the arrest was illegal, explaining
Although the State maintains that the metabolism of alcohol
created an exigent circumstance, the officers did not have
reasonable grounds based on their investigation before the arrest
to use the metabolism of alcohol as an exigent circumstance.
Because Mr. Cheek was in his home, he was not liable to flee,
destroy evidence or endanger the safety or property of others;
especially with the two officers outside. Finally, we note that
although the responding officers were on foot patrol, by the time
Mr. Cheek was arrested, a third officer in a cruiser was present.
Given the communications which must have occurred to bring
the additional officer to the scene, the responding officers could
have obtained an arrest warrant and probably would have if
probable cause existed at that time to arrest Mr. Cheek for
driving under the influence.
199 W.Va. at 26-27, 483 S.E.2d at 26-27.
In the case sub judice, the Appellant asserts that the lower court abused its
discretion by deciding the question of whether exigent circumstances existed, by removing
that factual decision from the jury, and by explicitly instructing the jury that neither exigent
circumstances nor hot pursuit existed. Courts addressing the issue of the proper entity to
decide the question of exigent circumstances have recognized that the issue involves a mixed
question of law and fact. (See footnote 8) United States v. Russell,
436 F.3d 1086, 1089 n. 2 (9th Cir. 2006);
United States v. Bynum
, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Zermeno
F.3d 1058, 1063, n. 2 (9th Cir. 1995). Other courts have expressly stated that the presence
of exigent circumstances is a question of fact within the province of the Jury. . . . Richmond
v. City of Brooklyn Center,
2005 WL 1843332, *8 (D. Minn. 2005); see also Ewolski v. City
, 287 F.3d 492, 501 (6th Cir. 2002) (holding that the determination of exigent
circumstances is normally a question for the jury. . . .).
In Lassiter v. City of Bremerton
, 2006 WL 2597999 (W.D. Wash. 2006), the
United States District Court for the Western District of Washington explained the basic
principle of Fourth Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable. 2006 WL at *2 (citing Payton v. New York
U.S. 573, 590 (1980)). The court then explained that [t]he presence of exigent
circumstances, however, provides a narrow exception to the warrant requirement. Id.
Whether Defendants can establish exigent circumstances is a disputed question of fact for
the jury to decide. Id.
This is particularly true where disputed questions exist regarding such issues
as the facts precipitating the search, the considerations within the understanding of the
officers conducting the search, and whether the search was conducted with or without
consent. The United States District Court for the Middle District of Florida addressed these
concerns in Ripley v. City of Lake City Florida,
2006 WL 2194594 (M.D. Fla. 2006) and
queried whether exigent circumstances [were] present as to justify the search if no consent
was made. If exigencies were present, were they enough to compel an exception to the
warrantless entry into Mr. Ripley's home? The Court believes that this is a question for the
jury. 2006 WL 2194594 at *3.
In the present case, this Court concludes that the lower court should have
permitted the issue of exigent circumstances to be decided by a jury. There were several
elements of relevant disputed testimony which would bear upon the decision. For instance,
the Appellant testified that the door was ajar when he arrived at the home. Testimony by the
Appellant and Mr. Snider (See footnote 9)
also indicated that the Appellant actually received consent to
search the Tingler home. Additional testimony by the Appellant indicated that he believed
that Mr. Tingler might flee, be injured, or present a danger to the safety of the police officers
or other individuals. While this Court is cognizant that not all assertions of exigent
circumstances provide legal justification for warrantless entry, the circumstances of this case
present a situation in which the legitimacy of the Appellant's concerns and the disputed facts
underlying such concerns create a question of fact for jury resolution. We consequently
reverse the Appellant's conviction on this ground and remand for a new trial consistent with
B. Alleged Prosecutorial Misconduct
The Appellant also includes an assignment of error alleging prosecutorial
misconduct regarding the decision of Mr. Dennison to invoke the Fifth Amendment and not
testify. The Appellant contends that the prosecution silenced Mr. Dennison by threatening
him with prosecution and by failing to offer him immunity. The State responds to that
allegation by stating that it did not threaten Mr. Dennison in any manner and that it was not
required to offer immunity for Mr. Dennison's testimony. In essence, the State contends that
Mr. Dennison's decision not to testify was not influenced by the action of the State.
Based upon our review of the record, we find no evidence that the State
prevented Mr. Dennison from testifying or in any significant manner influenced his decision
to invoke that Fifth Amendment. In fact, Mr. Dennison's statement was utilized at trial. (See footnote 10)
The State did not intimidate Mr. Dennison in any perceivable manner, and there is no
suggestion that Mr. Dennison was coerced into asserting the privilege. We therefore agree
with the contention of the State on this issue and find no merit to the Appellant's allegation
of prosecutorial misconduct. Where considering such a claim, other courts have generally
concluded that absent egregious prosecutorial misbehavior, the practice of denying defense
witness immunity does not violate a defendant's constitutional rights. See, e.g., United States
, 623 F.2d 769, 772-75 (2d Cir. 1980), cert. denied
, 449 U.S. 1077 (1981); United
States v. Klauber,
611 F.2d 512, 517 n. 10 (4th Cir. 1979), cert. denied
, 446 U.S. 908 (1980).
C. Conviction of Three Counts of Brandishing
The Appellant was charged with three separate counts of wanton
endangerment. The jury convicted him of three counts of the lesser included offense of
brandishing. (See footnote 11)
On appeal, the Appellant contends that three separate counts are not justified
by the evidence since there was only one act of brandishing by the Appellant, an act which
happened to be witnessed by several people.
The Appellant did not object to the three separate counts at trial and has raised
this issue for the first time on appeal. However, since this Court has reversed this case on
the instructional error and is remanding for a new trial, we cannot overlook the possibility
of error on retrial. Double jeopardy principles prohibit the State from retrying (See footnote 12)
Appellant on the wanton endangerment charges; thus, it will be necessary for the lower court
to readdress this brandishing issue during the new trial.
In a factually comparable case, the California Court of Appeals addressed the
issue of the number of counts of brandishing which are appropriately charged in a given
situation. In In re Peter F
., 34 Cal.Rptr.3d 52 (Cal. App. 2005), the court held that a single
act of brandishing a deadly weapon in the presence of others, even where witnessed by more
than one person, could support only one conviction. (See footnote 13)
The court reasoned as follows:
At two separate times, Peter waved a knife and/or a box cutter
in a threatening manner. Each time, two people were present.
We conclude, and the Attorney General agrees, Peter
could properly be charged with only one count of brandishing a
deadly weapon in connection with each separate incident, for a
total of two counts, no matter how many individuals were
present and witnessed his actions. Therefore, we remand the
case to the juvenile court to strike two of the four counts of
brandishing a deadly weapon. . . .
34 Cal.Rptr.3d 52, 53. Thus, the matter was remanded to the trial court with directions to
strike two of the four counts of brandishing to the extent that the defendant should be
convicted of only one count for each separate incident. Id.
Similarly, in the present case, the State's evidence indicated only one act of
brandishing a weapon. Despite the presence of multiple witnesses, one act of brandishing
should produce a conviction for only one count of brandishing. There did not appear to be
any evidence of multiple acts of brandishing or specific instances of threats against separate
individuals. These issues may be readdressed during the new trial.
Based upon the foregoing, this Court reverses the Appellant's conviction and
remands this case for a new trial consistent with this opinion.
The State asserts that the Appellant actually hit Mr. Tingler's vehicle with the
The home was apparently owned by Erlin Tingler, the father of Kevin Tingler.
Some of the occupants of the room testified that the Appellant kicked open
the door. However, an examination of the door by the Gilmer County Sheriff's Department
did not reveal any damage to the door or latch.
The four individuals in the room when the Appellant entered were Chad
Tingler (Kevin Tingler's brother), Larry (Mike) Snider, Kevin Thompson, and Jeff
Mahalich. Erlin Tingler was apparently in bed sleeping when the Appellant first arrived and
later awakened and talked with the Appellant. Chad Tingler testified that he and his friends
had gathered in the living room and were getting ready to awaken Erlin Tingler when the
Despite Mr. Dennison's decision not to testify, the defense was permitted to
utilize a statement Mr. Dennison had made to the Sheriff's Department regarding the events
in question. Mr. Dennison has not been charged with any offense.
The instruction offered by the Appellant and refused by the lower court would
have instructed the jury as follows:
The Court instructs the jury that a police officer may
always make a warrantless arrest for a felony committed in his
presence. However, a warrantless arrest in the home must be
justified not only by probable cause, but by exigent
circumstances which make an immediate arrest imperative.
You are further instructed that the tests of exigent
circumstances for the making of an arrest for a felony without
a warrant in West Virginia is whether, under the totality of
circumstances, the police had reasonable grounds to believe that
if an immediate arrest was not made, the accused would be able
to destroy evidence, flee or otherwise avoid capture, or might,
during the time necessary to obtain a warrant endanger the
safety or property of others.
Therefore, if you believe from the evidence in this case
that Kevin Tingler had committed the felony of fleeing from a
police officer in a motor vehicle while under the influence of
alcohol or other felony by striking a police officer with his
motor vehicle in an attempt to escape arrest, and you further
believe from the evidence that Michael Kendall had reasonable
cause to believe that Kevin Tingler may be hiding in the home
of his father Erlin Tingler and if you further believe that exigent
circumstances existed which justified Michael Kendall in
making a warrantless arrest, then he had the right to enter the
home of Erlin Tingler to conduct a search for Kevin Tingler and
to inquire of the occupants of the home if they knew of Kevin
For example, in Cecil
, this Court upheld the search of a mobile home under
exigent circumstances where the police had legitimate reason to believe that an injured or
deceased child might be in the mobile home. 173 W.Va. at 34, 311 S.E.2d at 151.
The distinguishing characteristics among questions of law, questions of fact,
and mixed questions of law and fact are uniquely examined by the authors of a monograph
developed for the Federal Judicial Center entitled The Analysis and Decision of Summary
, as extensively quoted in Justice Albright's dissent to Merrill v. West
Virginia Dept. of Health and Human Resources,
219 W.Va. 151,
632 S.E.2d 307 (2006).
The authors of that writing conclude that where resolution of ultimate facts turns on the
assessment of human behavior and expectations, the matter is generally for jury
determination. The authors explain as follows:
When the application of a rule of law depends on the
resolution of disputed historical facts, however, it becomes a
mixed question of law and fact. Plaintiff's standing to sue, for
example, may turn on activities of the plaintiff that are in
dispute. Whether the statute of limitations has run may depend
on a dispute over when plaintiff received notice. Such disputed
facts normally preclude summary judgment.
Mixed questions of law and fact arise in a variety of
other forms. Normally, the legal questions presented are
resolved by the court and the fact issues by the jury. Contract
disputes, though frequently questions of law, may present mixed
questions; when the court determines that a document is
ambiguous, for example, the jury resolves evidentiary disputes
such as what the parties intended. Constitutional issues, though
generally questions of law, may be mixed questions when they
turn on factual determinations.
Although the terms are sometimes used interchangeably,
it is useful to distinguish mixed questions of law and fact from
questions of ultimate fact. Mixed questions generally require
the resolution of disputes over historical fact. Ultimate facts
present a different kind of factual inquiry, one involving a
process that implies the application of standards of law.
[Baumgartner v. U.S.,
322 U.S. 665, 671, 64 S.Ct. 1240, 88
L.Ed. 1525 (1944).] Like some historical facts, ultimate facts
are derived by reasoning or inference from evidence, but, like
issues of law, they incorporate legal principles or policies that
give them independent legal significance. They often involve
the characterization of historical facts, and their resolution is
Ultimate facts occupy a broad segment of the spectrum
between fact and law. Where on that spectrum a particular
ultimate fact belongs depends on whether it is predominantly
factual or legal. For example, whether a defendant used due
care in the operation of a vehicle or was driving in the course of
employment or whether that person's acts were the proximate
cause of plaintiff's injuries are all questions of ultimate fact that
are predominantly factual rather than legal and therefore clearly
for the jury. Similarly, whether a person had reasonable cause,
acted within a reasonable time, or can be charged with notice
are predominantly factual (though outcome-determinative)
questions. The resolution of such questions turns on an
assessment of human behavior and expectations within the
common experience of jurors. Concerning issues of this sort,
traditionally resolved by juries, the Supreme Court [in Railroad
Co. v. Stout
, 17 Wall. 657, 84 U.S. 657, 664, 21 L.Ed. 745,]
said in 1873: It is assumed that twelve men know more of the
common affairs of life than does one man, that they can draw
wiser and safer conclusions from admitted facts thus occurring
than can a single judge.
Near the opposite end of the spectrum lie those ultimate
facts that, though nominally facts, have a high law content.
Their resolution (in the absence of evidentiary disputes) turns
on matters of law and policy and on technical issues underlying
the legal scheme. The administration of the rules under which
they arise benefits from consistency, uniformity, and
predictability. Whether an instrument is a security, whether a
plaintiff is a public figure, whether a publication is not
copyrightable as historical, whether an invention was reduced
to practice, and whether a carrier operated as a common carrier
are questions of ultimate fact calling for the interpretation and
application of essentially legal standards.
Schwarzer, Hirsch & Barrans, The Analysis and Decision of Summary Judgment Motions
139 F.R.D. 441, 456-57 (1992) (footnotes omitted).
Mr. Snider testified that he had gone around the corner of the living room into
the kitchen but that the Appellant came in, shook my hand, told me that Kevin was in some
trouble and he asked for permission to search the house and Erlin gave him the permission
. . . .
The Appellant contends that the statement was insufficient and that Mr.
Dennison's testimony would have provided additional benefit to the Appellant's
development of a defense at trial.
West Virginia Code § 61-7-11 (1994) (Repl. Vol. 2005), provides as follows:
It shall be unlawful for any person armed with a firearm
or other deadly weapon, whether licensed to carry the same or
not, to carry, brandish or use such weapon in a way or manner
to cause, or threaten, a breach of the peace. Any person
violating this section shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not less than fifty nor
more than one thousand dollars, or shall be confined in the
county jail not less than ninety days nor more than one year, or
This Court noted in State ex rel. Young v. Morgan
, 173 W.Va. 452, 317
S.E.2d 812 (1984), that well established double jeopardy principles . . . preclude a higher
conviction on retrial where the defendant has been implicitly acquitted of such higher
offense by his conviction of a lesser included offense at the original trial. 173 W.Va. at
454, 317 S.E.2d at 813.
The relevant California statute, Penal Code section 417, subdivision (a)(1),
provided in pertinent part as follows:
Every person who, except in self-defense, in the presence
of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening
manner, or who in any manner, unlawfully uses a deadly
weapon other than a firearm in any fight or quarrel is guilty of
a misdemeanor, punishable by imprisonment in a county jail for
not less than 30 days.