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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
GREGG DULANEY SMITH,
Defendant Below, Appellant.
Appeal from the Circuit Court of Ritchie County
Honorable Robert L. Holland, Jr., Judge
Criminal Case No. 07-F-43
Submitted: September 21, 2010
Filed: October 27, 2010
Rocco E. Mazzei, Esq.
Darrell V. McGraw, Jr.
Clarksburg, West Virginia Attorney General
Attorney for the Appellant
R. Christopher Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. When an attorney is sought to be disqualified from representing his
client because an opposing party desires to call the attorney as a witness, the motion for
disqualification should not be granted unless the following factors can be met: First, it must
be shown that the attorney will give evidence material to the determination of the issues
being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony
is prejudicial or may be potentially prejudicial to the testifying attorney's client. Syllabus
Point 3, Smithson v. U.S. Fidelity & Guaranty Company, 186 W.Va. 195, 411 S.E.2d 850
2. Sentences imposed by the trial court, if within statutory limits and if
not based on some [im]permissible factor, are not subject to appellate review. Syllabus
Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
3. United States Constitution, Amendment IV, and West Virginia
Constitution, Article III, § 6, do not apply to searches by private individuals unless they are
acting as instruments or agents of the State. Syllabus Point 1, State v. Oldaker, 172 W.Va.
258, 304 S.E.2d 843 (1983).
The Appellant, Gregg Dulaney Smith (Defendant), appeals his convictions for
the offenses of one count of attempted first degree murder, one count of malicious assault
with a shotgun, one count of malicious assault with a hammer, and one count of wanton
endangerment involving a firearm. On appeal, the Defendant makes the following
assignments of error: (1) the trial court erred by not disqualifying the prosecuting attorney
whom the defendant had named as a witness; (2) the sentences of imprisonment imposed
upon him are disproportionate to the nature and character of his offenses and therefore
violate Article III, Section 5 of the Constitution of West Virginia; (3) the trial court erred in
not ruling on his motion for a new trial; (4) the evidence was insufficient to support a
conviction for attempted first degree murder; and (5) the trial court erred by not suppressing
video evidence provided to the State by the victim. Having fully considered the record and
the briefs of the parties, we affirm the defendant's convictions and sentences.
The events underlying the defendant's offenses were recorded on a home video
surveillance system. This video footage shows that on September 7, 2007, the defendant
walked out of his house carrying a shotgun. Upon exiting his house, the defendant walked
to the trunk area of his car which was parked in his driveway. A few feet away the victim,
Tom Smith (Mr. Smith), was working on his car. (See footnote 1)
The video shows Mr. Smith working on
his car for several hours before the defendant exited his house with the shotgun. (See footnote 2)
had his back to the defendant when the defendant came out of his house. Upon noticing the
defendant, Mr. Smith turned his head and looked over his shoulder at the defendant carrying
the shotgun. After observing the defendant for a few seconds, Mr. Smith turned his head
away from the defendant and returned to the work he was doing on his car. At this time the
defendant, with no provocation apparent from the video surveillance footage, set down the
shotgun and aggressively approached Mr. Smith. Upon reaching Mr. Smith, the defendant
reached down and picked up a claw hammer that Mr. Smith had been using to work on his
car and began violently swinging it at Mr. Smith, striking Mr. Smith in the head and arms.
Mr. Smith is observed on the video footage struggling to hold the defendant's arms to keep
the defendant from further striking him with the hammer. The momentum of the struggle
took Mr. Smith and the defendant approximately eight feet from the front of Mr. Smith's car
to the rear of the defendant's car, where the defendant grabbed his shotgun.
Mr. Smith is then seen trying to push the shotgun away and attempting to
restrain the defendant's other arm to prevent the defendant from hitting him again with the
hammer. Within seconds of grabbing the shotgun, the defendant dropped the hammer and,
putting both hands on the shotgun, turned it towards Mr. Smith's stomach. Mr. Smith pushed
the shotgun downwards, and the defendant struggled to bring it back up. The momentum of
the struggle over the shotgun took the defendant and Mr. Smith out of the line of sight of the
surveillance camera; however, within seconds the defendant shot Mr. Smith in the leg,
essentially severing it. After shooting Mr. Smith in the leg, the defendant beat Mr. Smith in
the head with a trash can and a heavy object. Mr. Smith's ten year old son, Tristan, can be
seen on the surveillance video rushing to where his father lay on the ground.
As a result of the defendant's attack, Mr. Smith suffered serious injuries.
These injuries included a broken arm and hand and the amputation of the lower portion of
Mr. Smith's leg. (See footnote 3)
Following the attack, the defendant was arrested and indicted by a Ritchie
County Grand Jury for the offenses listed above. The defendant exercised his right to trial
by jury and was subsequently found guilty on all charges. At sentencing, the trial court
imposed the maximum sentences permitted by law and ordered them to run consecutive to
each other, for an effective sentence of not less than twelve years, nor more than thirty-five
years in the West Virginia State Penitentiary.
It is from those convictions and sentences that the defendant now appeals.
II. Standard of Review
The defendant has raised five assignments of error. For purposes of clarity, the
appropriate standard of review is set forth in our discussion of each of the assigned errors.
Motions to Disqualify the Prosecuting Attorney
The defendant argues that the trial court erred in refusing a defense motion to
disqualify the prosecuting attorney and by failing to rule on the defendant's renewed motion
to disqualify the prosecuting attorney. In Syllabus Point 2 of Walker v. West Virginia Ethics
Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997), we held that:
[i]n reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential
standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard,
and we review the circuit court's underlying factual
findings under a clearly erroneous standard. Questions of
law are subject to a de novo review.
The record reflects that the defendant initially moved to disqualify the
prosecuting attorney because the defendant wanted the prosecutor to testify that Mr. Smith
was a dangerous person and that a videotape in the possession of [the prosecutor] would be
part of that evidence and there may be issues with regard to the authenticity or chain of
custody of such tape. On February 12, 2008, a hearing on the motion was held by the trial
court. At the hearing the prosecuting attorney informed the trial court that he did not have
possession of the video referenced by the defendant and that he was never a part of the chain
of custody of that video. The trial court denied the motion to disqualify the prosecuting
attorney, finding that the video had been maintained by law enforcement officials. The trial
court also found that the video in question had been made by the defendant and, as such,
ruled that the defendant can use the tape in any manner which he sees fit.
At some point thereafter, the defendant fired his trial counsel and obtained new
counsel. On August 7, 2008, the defendant renewed his motion to disqualify the prosecuting
attorney. The second motion to disqualify the prosecutor was premised on the defendant's
intent to call the prosecutor as a fact witness. The substance of the prosecutor's expected
testimony was that the defendant had spoken with the prosecutor on at least three occasions
prior to the incident with Mr. Smith. In these discussions, one of which was an in-person
meeting where the defendant brought legal counsel with him, the defendant relayed the
difficulty [he] was having with [Mr. Smith] and sought the prosecutor's assistance and
advice as to how to deal with the situation. The defendant proffered that the prosecutor
would testify as to the defendant's unsuccessful efforts to get the prosecuting attorney to file
charges against Mr. Smith or obtain a peace bond against Mr. Smith.
Simultaneous with filing the renewed motion to disqualify the prosecuting
attorney, the defendant filed an amended witness list naming the prosecuting attorney as a
fact witness for the defense. The defendant also obtained and served on the prosecuting
attorney a witness subpoena. After being served with the subpoena, the prosecutor moved
to have it quashed, arguing that the issue had already been decided by the trial court.
The record does not reflect that the trial court ruled on the renewed motion to
disqualify the prosecuting attorney; however, the record also shows that the defendant took
no further action to prosecute the motion after it was filed. (See footnote 4)
Reviewing the record, we do not
find that the trial court's failure to address the renewed motion to disqualify the prosecuting
attorney constitutes reversible error.
The defendant did not object or bring to the trial court's attention that the
renewed motion to disqualify remained a pending motion, even though the record reflects
that the trial court, prior to commencement of the trial, asked defendant's counsel if the
defense was ready to proceed, to which defendant's counsel responded Yes, your Honor.
Our review of the record fails to find that the defendant, at any point during the trial, raised
the issue of the outstanding motion with the trial court which would have provided the trial
court the opportunity to address that issue. Moreover, while the defendant had identified the
prosecuting attorney as a witness and even served a witness subpoena on him, the defendant
did not call the prosecutor to the stand which would have forced the trial court to address the
Had the issue been properly raised, the defendant would not have been entitled
to disqualify the prosecuting attorney under our standard for disqualifying opposing counsel
when opposing counsel may be called as a witness. In Syllabus Point 3 of Smithson v. U.S.
Fidelity & Guaranty Company, 186 W.Va. 195, 411 S.E.2d 850 (1991), we held that:
When an attorney is sought to be disqualified
from representing his client because an opposing
party desires to call the attorney as a witness, the
motion for disqualification should not be granted
unless the following factors can be met: First, it
must be shown that the attorney will give evidence
material to the determination of the issues being
litigated; second, the evidence cannot be obtained
elsewhere; and, third, the testimony is prejudicial or
may be potentially prejudicial to the testifying
The defendant ostensibly wanted the prosecutor to testify that the defendant
met with the prosecutor prior to the defendant's attack on the victim regarding complaints
he had about Mr. Smith, and also to testify that the defendant had sought to have criminal
charges prosecuted against Mr. Smith for a battery. The defendant was not entitled to
disqualify the prosecuting attorney because the substance of the prosecutor's proposed
testimony was obtained from other witnesses at trial and, therefore, the defendant failed to
meet the second prong of our standard in Smithson. One of the witnesses providing the
substance of the prosecutor's proposed testimony was attorney Berkeley Simmons. Attorney
Simmons testified that he had been retained by the defendant, prior to the defendant's attack
on Mr. Smith, for the purpose of helping the defendant address the problems he was having
with Mr. Smith. As part of his assistance to the defendant, Attorney Simmons testified that
he personally contacted the prosecuting attorney in June 2007 and arranged a meeting
between the defendant and the prosecutor. At that meeting, Attorney Simmons recalled that
the defendant complained to the prosecuting attorney that Mr. Smith had, on a repeated basis,
harassed him, intimidated him and his family including acts of [vandalism] and other
misconduct. When asked of the outcome of the meeting, Attorney Simmons testified that
he did not know that anything was resolved, but that he did recall that the prosecutor had
discussed the possibility of a mutual peace bond.
In addition to Attorney Simmons, the defendant called David Richards, who
was the Chief of Police for the Pennsboro Police Department in Ritchie County. Chief
Richards testified that he had filed a criminal complaint against Mr. Smith for battery
because Mr. Smith was alleged to have pushed [the defendant] in the back. A video of that
incident - Defendant's Exhibit 2, which is also the same video that formed the basis for the
defense's first motion to disqualify- was introduced by the defense and admitted into
evidence without objection. Chief Richards testified that the battery complaint was later
dismissed on motion of the prosecuting attorney because the state cannot prove this case
beyond a reasonable doubt. The motion to dismiss, as well as the criminal complaint against
Tom Smith, were admitted into evidence.
It is clear from our review of the record that there was no basis to disqualify
the prosecuting attorney. The substance of the prosecutor's testimony was obtained from
other witnesses. Therefore, the defendant's motion failed to meet the standard set forth in Smithson for disqualifying a party opponent's legal counsel.
Proportionality of Sentences
The defendant argues that the sentences imposed upon him are grossly
disproportionate to the character and degree of his offenses, and therefore in violation of
Article III, Section 5 of the Constitution of West Virginia
. (See footnote 5)
In Syllabus Point 1 of State v.
, 201 W.Va. 271, 496 S.E.2d 221 (1997), we held that [t]he Supreme Court of Appeals
reviews sentencing orders, including orders of restitution made in connection with a
defendant's sentencing, under a deferential abuse of discretion standard, unless the order
violates statutory or constitutional commands. We have also held that [s]entences imposed
by the trial court, if within statutory limits and if not based on some [im]permissible factor,
are not subject to appellate review. Syllabus Point 4, State v. Goodnight
, 169 W.Va. 366,
287 S.E.2d 504 (1982).
Having reviewed the record and statutes under which the defendant has been
sentenced, we find that the sentences imposed upon him are within statutory limits. We
further find that the defendant has not alleged that his sentences were based on any
constitutionally impermissible factor such as race or religion. As Justice Cleckley aptly
noted in his concurring opinion in State v. Head, 198 W. Va. 298, 306, 480 S.E.2d 507, 515
(1996), [c]ircuit court judges have a right to believe that so long as they have not violated
a law or acted in a nefariously discriminatory way in imposing sentences, this Court will not
sift through the nooks and crannies of their decisions determined on finding that which is not
there. We continue to subscribe to that well stated principle of judicial review.
We find that the defendant has not shown the sentences imposed by the trial
court are in excess of that permitted or required by statute or to have been based on some
impermissible constitutional factor. (See footnote 6)
Failure to Rule on the Defendant's Motion for New Trial
The defendant's third assignment of error is that the circuit court failed to rule
on his Motion for New Trial. The record shows that on January 30, 2009, the defendant filed
a motion for a new trial, setting forth therein two grounds. First, the defendant argued that
Defendant's Exhibit 2 - a video purporting to show a battery being committed upon the
defendant by Mr. Smith - was not sent into the jury room with the rest of the evidence.
Second, the defendant argued that there was insufficient evidence to support a conviction for
attempted first degree murder. In its response to this assigned error, the State argues that the
defendant's motion for a new trial was time-barred pursuant to Rule 33, West Virginia Rules
of Criminal Procedure
. (See footnote 7)
Rule 33 requires that a motion for new trial, based on grounds other than newly
discovered evidence, be filed within ten days after verdict or finding of guilty or within such
further time as the court may fix during the ten-day period. In the case before us, the
verdicts were returned on September 5, 2008 and the trial court ordered the verdicts spread
upon the record. The defendant was immediately remanded to custody pending post trial
motions. The defendant's motion for a new trial was filed on January 30, 2009, and was
more than four months untimely.
While we find that the motion for a new trial was untimely, we also note that
the second ground set forth in the motion - that the evidence was insufficient evidence to
support a conviction for attempted murder - is a specifically assigned error in this appeal and
will therefore be addressed in this Opinion. With regard to the first ground set forth in the
defendant's motion for a new trial - that defendant's Exhibit 2 was not sent to the jury room
- the record before us contains no evidence, not even a proffer or an affidavit, to support the
defendant's assertions that defendant's Exhibit 2 was not sent to the jury room. While the
defendant alleges that the video cart and television used to display the Exhibit were seen in
the hallway outside the jury's chambers, and that a bailiff informed defendant's counsel that
the jury did not want the equipment in the chambers, that fact alone does not mean that
Defendant's Exhibit 2 was not sent into the jury room with all of the other evidence. Had
defendant's counsel been concerned with the fact that the cart and monitor were not in the
jury room, counsel could have brought it to the attention of the trial court at that time. If it
had been promptly brought to the trial court's attention, the trial court would have been
provided the opportunity to correct the situation to the extent that anything required
correcting and, at a minimum, a record could have been made on the issue. Instead, for
reasons unclear from the record, the defendant chose not to complain about this issue until
several months after the trial. This delay was not timely and we find that the defendant failed
to properly preserve the issue for appeal.
Insufficiency of the Evidence
The defendant's fourth assignment of error is that the evidence adduced at trial
was insufficient to support a verdict of attempted first degree murder. We disagree. In
Syllabus Point 1 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we set forth our
standard of review for cases making a challenge to the sufficiency of the evidence. This
standard is as follows:
The function of an appellate court when
reviewing the sufficiency of the evidence to support
a criminal conviction is to examine the evidence
admitted at trial to determine whether such
evidence, if believed, is sufficient to convince a
reasonable person of the defendant's guilt beyond
a reasonable doubt. Thus, the relevant inquiry is
whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier
of fact could have found the essential elements of
the crime proved beyond a reasonable doubt.
Reviewing the record before us in the light most favorable to the prosecution,
it is abundantly clear that any rational trier of fact could have found the essential elements
of the [defendant's] crime [of attempted first degree murder] proved beyond a reasonable
doubt. Id. This evidence includes the defendant's testimony and other, more empirical,
At trial, the defendant testified that immediately preceding the attack he went
to place a shotgun in the trunk of his car and, while in the process of doing that, was told by
his neighbor Tom Smith that he had a flat tire. The defendant testified that he then walked
around the side of his car to look at the tire. The defendant contended that it was at this point
that Mr. Smith told the defendant that he was going to hit him with a hammer, at which time
he got it before [Tom Smith] could get it. (See footnote 8)
When asked why he swung the hammer at Mr.
Smith, the defendant responded that he could not believe [he] swung it at him because he
had never done anything like that in his life. When asked why he swung the hammer at him
again after the first time, the defendant said that I guess I was afraid [Mr. Smith] was going
to, you know, come after me again. When asked why he picked up the shotgun, the
defendant testified that he only picked it up because he did not think it would be very good
to just let it sit there in the driveway with [Mr. Smith] out there and that his intent was to
go back inside his house and call the police.
The video surveillance evidence introduced at the trial portrays a completely
different sequence of the events than those described by the defendant in his testimony. The
video shows Mr. Smith to have been working on his car over a period of several hours prior
to the defendant's attack. As the defendant left his house and approached the trunk of his
car, Mr. Smith, who was a few feet away at his car, looked over his shoulder (Mr. Smith's
body remained turned away from the defendant) in the direction of the defendant who was
carrying the shotgun.
After a few seconds of looking in the defendant's direction, Mr. Smith returned
his focus to the work he was doing on his car. When Mr. Smith turned away, the defendant
aggressively rushed over to where Mr. Smith was leaning over his vehicle, grabbed a
hammer that Mr. Smith had been using to work on his car, and began swinging it at Mr.
Smith. Mr. Smith can be seen raising his arms in an effort to protect his head and face from
the hammer blows. Mr. Smith succeeds in grabbing the defendant's arm to prevent the
defendant from again swinging the hammer at him, at which time Mr. Smith and the
defendant struggle for several seconds, the momentum of that struggle carrying them
approximately eight feet to the back of the defendant's car. When reaching the back of the
defendant's car, the defendant reaches for and picks up the shotgun, pointing it at Mr. Smith,
at which time Mr. Smith struggled to not only push the barrel of the shotgun away, but
continue to hold the hammer-wielding arm of the defendant. Seconds later, the defendant
drops the hammer and places both hands on the shotgun, turning it towards Mr. Smith's
stomach, while Mr. Smith continued to struggle to push the barrel away. It was during this
struggle that the defendant shot Mr. Smith.
There is no indication on the video that Mr. Smith did anything on the day of
the attack to threaten the defendant, the defendant's family or the defendant's property. The
evidence of record was sufficient to prove the defendant was the aggressor in an attack
completely unprovoked by the victim, Mr. Smith, and that the defendant intended to murder
Mr. Smith, first with hammer blows to Mr. Smith's head and then with a shotgun blast.
We find the defendant's argument that the evidence was insufficient to support
a conviction for attempted first degree murder to be without merit.
Admission of Video Evidence
The defendant's final assignment of error is that the trial court erred by
admitting into evidence the video of the defendant's attack on Mr. Smith. The defendant
argues that the video was inadmissible because its contents had been illegally obtained from
him by Tom Smith. At a hearing on the defendant's motion to exclude the video, the
evidence established that both Mr. Smith and the defendant had wireless home video
surveillance systems. It was also established that it was from a camera on the defendant's
surveillance system that footage of the attack was transmitted.
According to the testimony, Mr. Smith's system received images on the same
frequency as that transmitted by the defendant's camera. Being aware of this frequency
cross-over, Mr. Smith had previously programmed his computer to capture and record any
video feed transmitted by the defendant's wireless camera. After being shot by the
defendant, Mr. Smith informed law enforcement officers responding to the 911 call that the
entire incident had been recorded and asked them to get the recording from his computer.
The investigating officers went to Mr. Smith's computer and transferred a copy of the
surveillance footage to a compact disc. It is that surveillance video footage that the
defendant argues should have been excluded by the trial court on the basis that he had a
privacy expectation in the video footage captured by Mr. Smith and Mr. Smith's interception
of the video feed from his camera violated that right.
that the defendant is accurate in his assertion that he had
a privacy expectation in the wireless video transmission and that Mr. Smith violated that right
by viewing and recording it, (See footnote 9)
this Court nonetheless concludes that the defendant did not
have a basis to exclude this evidence at his criminal trial. In Syllabus Point 1 of State v.
, 172 W.Va. 258, 304 S.E.2d 843 (1983), we held that, in criminal trials, the United
States Constitution, Amendment IV, and West Virginia Constitution, Article III, § 6, do not
apply to searches by private individuals unless they are acting as instruments or agents of the
State. Our rationale in Oldaker
, for not applying the Fourth Amendment or Article III,
Section 6 of the West Virginia Constitution
to searches by private individuals, also extends
to seizures by private persons. In Sutherland v. Kroger Company
, 144 W.Va. 673, 683,110
S.E.2d 716, 723 (1959), we observed that:
[t]he constitutional provisions in the State and
Federal Constitutions prohibiting unreasonable
searches and seizures, . . . are only applicable to the
State and Federal Governments and not to private
In Burdeau v. McDowell, 256 U.S. 465, 475 (1921), the United States Supreme
Court also discussed this issue, holding that:
The Fourth Amendment gives protection against
unlawful searches and seizures, and as shown in the
previous cases, its protection applies to governmental
action. Its origin and history clearly show that it was
intended as a restraint upon the activities of sovereign
authority, and was not intended to be a limitation upon
other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested occupation of
his dwelling and the possession of his property, subject to
the right of seizure by process duly issued.
In the present case the record clearly shows that no
official of the Federal Government had anything to do with
the wrongful seizure of the petitioner's property, or any
knowledge thereof until several months after the property
had been taken from him[.] It is manifest that there was no
invasion of the security afforded by the Fourth
Amendment against unreasonable search and seizure, as
whatever wrong was done was the act of individuals in
taking the property of another. A portion of the property
so taken and held was turned over to the prosecuting
officers of the Federal Government. We assume that
petitioner has an unquestionable right of redress against
those who illegally and wrongfully took his private
property under the circumstances herein disclosed, but
with such remedies we are not now concerned.
In the present appeal, there is no evidence to prove that Mr. Smith was acting
as an instrument or agent of the state. Mr. Smith received a wireless signal being transmitted
by the defendant's camera and the contents of that wireless transmission were recorded by
Mr. Smith on his personal computer. After the defendant's attack, Mr. Smith gave a copy
of that recording to police. We do not find the trial court erred in admitting the video
surveillance footage captured by the victim, Mr. Smith.
For the reasons set forth herein, the defendant's convictions and sentences are
There is no indication in the record that the Defendant and the victim, while sharing
the same last name, are related.
The defendant's and Mr. Smith's driveways were parallel to each other, and separated
by approximately three feet.
Mr. Smith had several surgeries in the effort to save his leg, including a surgery
where muscle from his back was removed and grafted to his leg.
We note for the record that the defendant's appellate counsel did not represent the
defendant at his trial below.
Article III, Section 5 of the Constitution of West Virginia
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishment inflicted. Penalties shall be
proportioned to the character and degree of the offence. No person shall
be transported out of, or forced to leave the State for any offence
committed within the same; nor shall any person, in any criminal case, be
compelled to be a witness against himself, or be twice put in jeopardy of
life or liberty for the same offence.
Arguments that a defendant's sentence violates the proportionality requirement of
Article III, Section 5 of the Constitution of West Virginia
are properly raised in a habeas
proceeding, where a record can be made of the evidence and argument supporting a
defendant's contention that his or her sentence is disproportionate to the character and degree
of the offense. Because we do not address the defendant's proportionality arguments on the
merits - other than concluding that it is not properly raised on direct appeal
- the defendant
is not barred from raising that issue in a petition for writ of habeas corpus ad subjiciendum
West Virginia Rules of Criminal Procedure
, Rule 33  provides as follows:
The court on motion of a defendant may grant a new trial
to that defendant if required in the interest of justice. If trial was
by the court without a jury the court on motion of a defendant for
a new trial may vacate the judgment if entered, take additional
testimony, and direct the entry of a new judgment. A motion for
a new trial based on the ground of newly discovered evidence may
be made only after final judgment, but if an appeal is pending the
court may grant the motion only on remand of the case. A motion
for a new trial based on any other grounds shall be made within
ten days after verdict or finding of guilty or within such further
time as the court may fix during the ten-day period.
Based on video evidence, there was a very small distance between where Mr. Smith
was standing in his driveway and where the defendant's car was parked in the defendant's
driveway - approximately eight feet.
The record indicates that as of the time of the defendant's sentencing, a civil action
had been filed by Mr. Smith against the defendant. We are careful in our language today to
be clear that we make no finding on the issue of whether the defendant's rights had been
violated by Mr. Smith's ability to view and record the wireless transmissions emanating from
the defendant's wireless security camera. Our finding is limited to concluding that because
Mr. Smith was a private citizen and was not acting in concert with the police in the recording
of the wireless transmissions, our precedent does not require suppression of that evidence in
a criminal proceeding.