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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
RAYMOND LEE ELSWICK,
Defendant Below, Appellant
Appeal from the Circuit Court of Roane County
The Honorable Thomas C. Evans, III, Judge
Civil Action No. 05-F-59
Submitted: February 10, 2010
Filed: April 1, 2010
Morgan B. Hayes R. Christopher Smith
Lee F. Benford, II Attorney General's Office
Ripley, West Virginia
Charleston, West Virginia
Counsel for the Appellant
Counsel for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the circuit
court concerning a new trial and its conclusion as to the existence of reversible
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. Syl.
Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. This Court's standard of review concerning a motion to dismiss an
indictment is, generally, de novo. However, in addition to the de novo standard, where the
circuit court conducts an evidentiary hearing upon the motion, this Court's 'clearly
erroneous' standard of review is invoked concerning the circuit court's findings of fact. Syl.
Pt. 1, State v. Grimes, ___ W. Va. ___, ___S.E.2d ___, WL 3855953 (2009).
3. When a mistrial is granted on motion of the defendant, unless the
defendant was provoked into moving for the mistrial because of prosecutorial or judicial
conduct, a retrial may not be barred on the basis of jeopardy principles. Oregon v. Kennedy,
456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416,427 (1982). Syl. Pt. 8, State v.
Pennington, 179 W. Va. 139, 365 S.E.2d 803 (1987).
4. The determination of 'intention' in the test for the application of double
jeopardy when a defendant successfully moves for a mistrial is a question of fact, and the
trial court's finding on this factual issue will not be set aside unless it is clearly wrong. Syl.
Pt. 2, State ex rel. Bass v. Abbot, 180 W. Va. 119, 375 S.E.2d 590 (1988).
5. 'It is the three-term rule, W.Va. Code, 62-3-21 , which constitutes
the legislative pronouncement of our speedy trial standard under Article III, Section 14 of
the West Virginia Constitution.' Syl. Pt. 1, Good v. Handlan, 176 W.Va. 145, 342 S.E.2d
111 (1986). Syl. Pt. 2, State v. Carrico, 189 W.Va. 40, 427 S.E.2d 474 (1993).
A determination of whether a defendant has been denied a trial without
unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the
reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the
defendant. The balancing of the conduct of the defendant against the conduct of the State
should be made on a case-by-case basis and no one factor is either necessary or sufficient to
support a finding that the defendant has been denied a speedy trial. Syl. Pt. 2, State v.
Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).
7. 'Any term at which a defendant procures a continuance of a trial on his
own motion after an indictment is returned, or otherwise prevents a trial from being held,
is not counted as one of the three terms in favor of discharge from prosecution under the
provisions of Code, 62-3-21, as amended.' Syl. pt. 2, State ex rel. Spadafore v. Fox, 155
W.Va. 674, 186 S.E.2d 833 (1972).
Syl. Pt. 3, State v. Fender, 165 W.Va. 440, 268 S.E.2d
8. A prosecution that withholds evidence which if made available would tend
to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of
law under Article III, Section 14 of the West Virginia Constitution. Syl. Pt. 4, State v.
Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).
There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield,
169 W.Va. 191, 286 S.E.2d 402 (1982):(1) the evidence at issue must be favorable to the
defendant as exculpatory or impeachment evidence; (2) the evidence must have been
suppressed by the State, either wilfully or inadvertently; and (3) the evidence must have been
material, i.e., it must have prejudiced the defense at trial. Syl. Pt. 2, State v. Youngblood,
221 W.Va. 20, 650 S.E.2d 119 (2007).
10. In determining what consequences should flow from the State's breach
of its duty to preserve evidence, a trial court should consider (1) the degree of negligence or
bad faith involved; (2) the importance of the missing evidence considering the probative
value and reliability of secondary or substitute evidence that remains available; and (3) the
sufficiency of the other evidence produced at the trial to sustain the conviction. Syl. Pt. 2,
in part, State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995).
11. The formulation of jury instructions is within the broad discretion of a
circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of
discretion standard. A verdict should not be disturbed based on the formulation of the
language of the jury instructions so long as the instructions given as a whole are accurate and
fair to both parties. Syl. Pt. 6, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va
97, 459 S.E.2d 374 (1995).
12. Where there is no evidentiary dispute or insufficiency on the elements of
the greater offense which are different from the elements of the lesser included offense, then
the defendant is not entitled to a lesser included offense instruction. Syl. Pt. 2, State v.
Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).
13. A motion for continuance is addressed to the sound discretion of the trial
court, and its ruling will not be disturbed on appeal unless there is a showing that there has
been an abuse of discretion. Syl. Pt. 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539
14. In a criminal case, the inquiry made of a jury on its voir dire is within the
sound discretion of the trial court and not subject to review, except when the discretion is
clearly abused. Syl. Pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), overruled in part on other grounds, Syl. Pt. 8, State v. Dolin, 176 W.Va. 188, 347 S.E.2d 208
This is an appeal by Raymond Elswick (hereinafter Appellant) from a
December 29, 2008, order of the Circuit Court of Roane County sentencing the Appellant to
a term of life in the State penitentiary due to two previous felony convictions and a July 11,
2008, Roane County jury verdict of guilty of one count of voluntary manslaughter, as a lesser
included offense, and one count of conspiracy. The Appellant asserts multiple assignments
of error. Upon thorough review of the arguments of the parties, the record, and applicable
precedent, this Court affirms the decisions made by the Circuit Court of Roane County on
I. Factual and Procedural History
According to the evidence presented at trial, the Appellant went to the home
of Joey and Crystal Hicks in Spencer, West Virginia, to perform repair and renovation work
on May 26, 2005. While the Appellant was present in the home, Mrs. Hicks discovered
Daniel Lee Burns, age 51, molesting (See footnote 1)
her nine-year-old daughter. Mrs. Hicks alerted her
husband and the Appellant of Mr. Burns' actions, and the Appellant thereafter joined Mr. and
Mrs. Hicks in beating Mr. Burns, kicking him repeatedly, and forcibly removing him from
the home to the front porch. The beating of Mr. Burns continued on the porch, as witnessed
by neighbors. The Appellant, Mr. Hicks, and Mrs. Hicks beat Mr. Burns on the front lawn
and eventually placed Mr. Burns in a vehicle.
When police officers arrived, having been summoned by concerned neighbors,
the Appellant and Mr. and Mrs. Hicks informed the officers that Mr. Burns had departed the
premises. Retaining Mr. Burns in the vehicle, the Appellant, Mr. Hicks, and Mrs. Hicks
drove him to a secluded area, continuing to strike him throughout that trip. When they
stopped the vehicle in a wooded area, they removed Mr. Burns' finger with a knife and
cauterized it with a lighter to stop the bleeding. When Mr. Burns no longer responded to the
beatings, they placed him back in the vehicle and thereafter discovered that he had died.
They removed his body from the vehicle and placed it in a creek. An autopsy later revealed
that Mr. Burns had died of blunt force trauma.
On September 27, 2005, the Appellant was indicted for the crimes of murder,
felony murder, kidnaping, and conspiracy. The extensive series of delays ensuing thereafter
during the progress of this prosecution form the primary basis for this appeal. For example,
on October 21, 2005, the State moved to continue due to DNA testing delays. On October
24, 2005, the Appellant moved to continue to permit time for competency testing. Another
continuance was requested by the State on March 24, 2006, due to the fact that scientific
testing results had not been received. On May 25, 2006, in response to the State's late
disclosure of DNA evidence, scientific evidence, and footprint analysis, the Appellant moved
to continue. Again on September 26, 2006, the State made a late disclosure of several new
items of evidence, constituting the State's fourteenth supplemental disclosure and including
such items as a blood identification report, DNA report, and footwear comparison report.
A fifteenth supplemental disclosure by the State on October 2, 2006,
necessitated yet another continuance request by the Appellant. On the morning of scheduled
trial on February 20, 2007, the State disclosed a Crime Scene Report dated
July 7, 2005, as
well as fifty photographs of the crime scene. In response, the Appellant again moved for a
continuance based upon this late disclosure by the State.
The Appellant's first trial finally began on April 24, 2007. A mistrial was
ultimately declared in that trial due to the prosecutor's remark during closing argument.
Specifically, the prosecutor raised his hand, motioned toward the Appellant, and said, I
can't call Mr. Elswick as a witness, he has a right to remain silent. . . . The trial court
concluded that this statement constituted an indirect and unintentional reference to the fact
that the Appellant had not testified during trial and therefore granted a mistrial. The
Appellant thereafter moved to prohibit retrial based upon double jeopardy principles. In
response to the Appellant's motion, the trial court held a hearing on July 20, 2007, and heard
the testimony of the prosecutor regarding the remark that resulted in the mistrial, as more
fully developed below. The trial court found that the prosecutor did not intentionally
provoke the mistrial and denied the Appellant's motion to prohibit retrial.
Trial was rescheduled for June 24, 2007. However, on the day of that
rescheduled trial, the Appellant moved to continue based upon recent discovery of a possible
witness named John Richards. Mr. Richards had shared a jail cell with Mr. Hicks, and his
statement regarding certain evidence had been taken by the Calhoun County prosecutor and
faxed to the Roane County prosecutor in 2005. Mr. Richards had indicated that Mr. Hicks
had a knife and a lighter in his possession when he was arrested and jailed. The Calhoun
County prosecutor had entered into a plea agreement with Mr. Richards to reduce his
unrelated felony charge to a misdemeanor in exchange for his testimony in the Appellant's
On July 25, 2007, the State submitted its twenty-fourth supplemental
disclosure, including information about the lighter and knife used in the crime and thereafter
allegedly in Joey Hicks' possession. By November 5, 2007, the State revealed that blood had
been found on the lighter and that DNA testing continued in preparation for trial. Thus, the
trial was continued to December 10, 2007. The lighter was thereafter provided to the
Appellant's expert for testing in January 2008.
On January 9, 2008, the Appellant filed a motion to compel and also requested
sanctions, arguing that numerous items had not been properly forwarded to the Appellant's
expert. A Rule to Show Cause was issued against the State Police Lab, but the trial court
found that substantial compliance was ultimately demonstrated. The Appellants' Motion to
Dismiss for Ongoing Discovery Violations and Motion to Dismiss for Failure to Supply
Speedy Trial were also denied. The Appellant also moved for a continuance in March 2008
to permit time to complete forensic testing.
The Appellant's trial was conducted in July 2008, the ninth term of court after
his indictment. He was found guilty of voluntary manslaugher, as a lesser included offense,
and one count of conspiracy. On January 8, 2009, he was sentenced to life in prison based
upon recidivist information. He now appeals to this Court.
II. Standard of Review
The standard of review generally applicable to findings of a trial court was
explained as follows in syllabus point three of State v. Vance, 207 W.Va. 640, 535 S.E.2d
In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible error 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.
One of the critical issues raised in this case involves whether the trial court
should have dismissed the indictment for various reasons asserted by the Appellant. The
specific standard of review applicable to the assignments of error involving the trial court's
denial of the Appellant's motions to dismiss the indictment was explained in syllabus point
one of State v. Grimes, ___ W. Va. ___, ___S.E.2d ___, WL 3855953 (2009), as follows:
This Court's standard of review concerning a motion to
dismiss an indictment is, generally, de novo. However, in
addition to the de novo standard, where the circuit court
conducts an evidentiary hearing upon the motion, this Court's
clearly erroneous standard of review is invoked concerning
the circuit court's findings of fact.
The Appellant has asserted numerous other assignments of error involving
various legal principles and corresponding differing standards of review. Thus, in addition
to the standards set forth above, any additional specific standards of review will be discussed
separately as this Court addresses each of the Appellant's assignments of error below.
A. Double Jeopardy
The Appellant alleges that the trial court erred by denying his July 20, 2007,
motion to dismiss the indictment on double jeopardy grounds and his July 8, 2008, renewed
motion to dismiss the indictment on the same grounds. The Appellant asserts that retrial was
barred by double jeopardy principles after the mistrial was declared due to the prosecutor's
comments regarding the Appellant's failure to testify. This Court has explained as follows
in syllabus point eight of State v. Pennington, 179 W. Va. 139, 365 S.E.2d 803 (1987):
When a mistrial is granted on motion of the defendant, unless the defendant was provoked
into moving for the mistrial because of prosecutorial or judicial conduct, a retrial may not be
barred on the basis of jeopardy principles. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct.
2083, 2091, 72 L.Ed.2d 416,427 (1982). This Court has further explained that an inquiry
is required into the intent of the prosecutor in making the reference to failure to testify.
Specifically, in syllabus point two of State ex rel. Bass v. Abbot, 180 W. Va. 119, 375 S.E.2d
590 (1988), this Court observed: The determination of 'intention' in the test for the
application of double jeopardy when a defendant successfully moves for a mistrial is a
question of fact, and the trial court's finding on this factual issue will not be set aside unless
it is clearly wrong.
The United States Supreme Court, in Kennedy, explained that [p]rosecutoria1
conduct that might be viewed as harassment or overreaching, even if sufficient to justify a
mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the
prosecutor to subvert the protections afforded by the Double Jeopardy Clause. 456 U.S. at
Likewise, in Wassall v. Ryan, 705 F.2d 970 (8th Cir. 1983), the Eighth Circuit
Court of Appeals held as follows:
Where a defendant successfully moves for a mistrial, the
Double Jeopardy Clause generally does not bar reprosecution,
even if the motion for a mistrial is necessitated by prosecutorial
error. However, retrial is barred where the conduct giving rise
to the successful motion for a mistrial was intended to provoke
the defendant into moving for a mistrial.
!d. at 971 (citations omitted).
The Appellant also directs this Court's attention to Anderson v. Georgia, 645
S.E.2d 647 (Ga. 2007), a Georgia Court of Appeals case dealing with a bar of retrial based
on double jeopardy grounds. In Anderson, retrial was barred where the prosecutor introduced
documentary evidence at trial that indicated that the defendant had exercised his right to
remain silent upon request. The Anderson court found that the prosecutoria1 action was so
extremely blatant and that the prosecutor must have intended for a mistrial to result from his
conduct. Id. at 648-49.
In the case sub judice, the trial court conducted a July 20, 2007, hearing on the
Appellant's motion to dismiss the indictment on double jeopardy principles. During this
hearing, the prosecutor, Mark Sergent, testified regarding the remark that resulted in the
mistrial. He stated that the remark was made in an attempt to explain why Mr. and Mrs.
Hicks, co-defendants, had been called as witnesses. He further explained that he had
inadvertently made the statement in question. He testified that he did not purposefully make
a statement to cause a mistrial. He stated: The State's evidence was in, in its entirety. The
jury, a qualified panel of jurors was here, heard the entire case, there was no reason for me
to throw a jury.
In denying the Appellant's motion to dismiss the indictment, the trial court
explained that while the remark did indeed constitute reversible error by the State, there was
no evil intent, no motivation to harass or prejudice the Appellant, and no bad faith. The trial
court therefore found that double jeopardy would not bar retrial because the prosecutor's
statements were not made in an intentional attempt to provoke a mistrial.
Based upon this Court's review, we find no error by the trial court in refusing
to bar the Appellant's retrial. The evidence does not suggest the existence of a blatant
remark designed to instigate the granting of a mistrial. Rather, in this case, the evidence
compels the conclusion that the remark in question was an inadvertent reference to the
Appellant's failure to testify. It properly resulted in a mistrial, but it was not of the nature
to justify a double jeopardy prohibition of retrial of the Appellant. The trial court committed
no error in this regard.
B. Prosecutorial Misconduct
The Appellant also contends that the prosecutor engaged in misconduct by
failing to immediately disclose the plea agreement with John Richards in a Calhoun County
case and Mr. Richards' statement, (See footnote 2)
allegedly to be used as impeachment evidence against Mr.
Hicks if Mr. Hicks' testimony had been introduced. In response to the revelation of the
existence of the plea agreement and the surrounding circumstances, the trial court granted
the Appellant's motion to continue the trial. The trial court, however, denied the Appellant's
motion to dismiss the indictment on this basis, ruling that Rule 16(d)(2) of the West Virginia
Rules of Criminal Procedure (See footnote 3)
provides that the granting of a continuance is an appropriate
remedy for discovery violations, within the discretion of the trial court.
In response to the Appellant's allegations on appeal, the State maintains that
the prosecutor had no knowledge of the existence of the John Richards statement or a plea
agreement during the period of nondisclosure. Moreover, any potential disadvantage
occasioned by the late revelation of this matter was rectified by the granting of a continuance
by the trial court. As this Court has instructed, [t]he preferred relief where the party
responsible for the violation [nondisclosure] has not acted in bad faith is to grant the
defendant a continuance giving him or her an opportunity to prepare for trial once the
discovery materials have been made available. State ex rel. Rusen v. Hill
, 193 W. Va. 133,
140, 454 S.E.2d 427, 434 (1994).
Our cases and the West Virginia Rules of Evidence have
declared an implicit preference for a continuance when there has
been a discovery violation. See W.Va.R.Evid. 403 (unfair
surprise is not listed as a ground for exclusion). See State v.
Barker, 169 W.Va. 620, 623, 289 S.E.2d 207, 210 (1982)
([e]ven if this were a 'proper' case in which to claim surprise,
the appellant failed to move for a continuance, and, therefore,
waived his right to one); Martin v. Smith, 190 W.Va. 286, 291,
438 S.E.2d 318, 323 (1993) (even given that the admission of
Dr. Adams' testimony prejudiced Dr. Smith's case, we find such
prejudice far from incurable. Dr. Smith could have easily
moved for a continuance in order to secure a comparable expert
Id. at 141, 454 S.E.2d at 435.
During the motion hearing, the prosecutor, Mr. Sergent, testified that he did not
recall receiving a faxed copy of the Richards statement or any accompanying letter from the
Calhoun County Prosecutor's Office. Mr. Sergent testified that he had been out of town
when the fax arrived at the office and had not received it personally. He further explained
that a clerk had been terminated for failing to follow required protocol regarding the handling
of faxes received in the prosecutor's office. He stated that he had reviewed his entire file in
this case and had not located the fax in question.
At the conclusion of the hearing, the trial court ruled that it was unable to find,
based on a preponderance of the evidence, that Mr. Sergent had actual knowledge of the
Richards statement sent from the Calhoun County Prosecuting Attorney's Office until he was
informed of its existence by the Appellant's counsel on July 23, 2007. In the October 12,
2007, order denying the motion to dismiss the indictment, the trial court further explained
that Mr. Hicks' testimony was impeached by prior inconsistent statements made to law
enforcement officers, as well as by testimony from his wife, Crystal Hicks, during the initial
trial. The trial court opined that during the initial trial, ending in a mistrial, Mr. Hicks'
testimony was so utterly discredited that the question arose why the prosecutor even
bothered calling him as a witness. (See footnote 4)
The trial court ultimately ruled that the appropriate response to the revelation
of the Richards statement was to grant a continuance to permit
the defense the ability to investigate all circumstances
surrounding John Manis Richards and made a determination as
to whether he should be presented as a witness for the defense.
So, except for the delay in the second trial, any prejudice caused
by nondisclosure has been ameliorated by the court continuing
the trial until November, 2007.
Upon review by this Court, we find that the trial court's selection of a continuance as the
appropriate resolution of this matter was not erroneous. A continuance was granted to allow
development of the issues surrounding what the trial court correctly termed marginally
material evidence of Mr. Richards' reference to Mr. Hicks' possession of a lighter and knife
when he was arrested in May 2005. This Court declines to disturb the trial court's method
of handling this issue.
C. Alleged Discovery Violations
The Appellant also includes an assignment of error generally asserting that the
trial court erred in its denial of the Appellant's motion to dismiss the indictment for
numerous and ongoing discovery violations. In arguing this assignment of error, the
Appellant simply includes four quotes from prior cases of this Court regarding remedies for
discovery violations. No other arguments or explanations applying that law to the particular
facts or circumstances of this case are presented by the Appellant in this assignment of error.
As the State contends, the Appellant's argument on this assignment of error
does not provide any legal or factual reasoning regarding the alleged insufficiencies in the
trial court's decision to grant a continuance under the circumstances. This Court recognized
in State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996), that [a]lthough we liberally
construe briefs in determining issues presented for review, issues which are not raised, and
those mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal. 196 W. Va. at 302, 470 S.E.2d at 621; see also State v. Lilly, 194
W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (casual mention of an issue in a
brief is cursory treatment insufficient to preserve the issue on appeal). We find no merit in
the Appellant's assertion in this assignment of error.
D. Violation of Sixth Amendment Right to Speedy Trial
The Appellant also asserts that his Sixth Amendment right to a speedy trial
was violated by the delay between his indictment on September 27, 2005, and his trial on July
8, 2008. Our inquiry into alleged speedy trial violations is guided by syllabus point two of State v. Carrico
, 189 W.Va. 40, 427 S.E.2d 474 (1993), explaining that once the indictment
has been returned, '[i]t is the three-term rule, W. Va. Code, 62-3-21 , which
constitutes the legislative pronouncement of our speedy trial standard under Article III,
Section 14 of the West Virginia Constitution .' Syl. Pt. 1, Good v. Handlan
, 176 W.Va. 145,
342 S.E.2d 111 (1986). West Virginia Code § 62-3-21 (1959) (Repl. Vol. 2005) essentially
provides that an individual indicted for a crime must be tried within three terms of the
indictment. (See footnote 5)
This Court recently addressed allegations of a violation of Sixth Amendment
rights in State v. Jessie
, ___ W. Va. ___, 689 S.E.2d 21 (2009). In Jessie,
reiterated that the methodology for assessing such allegations was clearly established by this
Court in State v. Foddrell
, 171 W.Va. 54, 297 S.E.2d 829 (1982), utilizing the guidance of
the United States Supreme Court in Barker v. Wingo
, 407 U.S. 514 (1972). (See footnote 6) See also State
, 162 W.Va. 915, 253 S.E.2d 517 (1979) (identifying the Barker
factors). In syllabus
point two of Foddrell,
this Court explained the applicable standard as follows:
A determination of whether a defendant has been denied
a trial without unreasonable delay requires consideration of four
factors: (1) the length of the delay; (2) the reasons for the delay;
(3) the defendant's assertion of his rights; and (4) prejudice to
the defendant. The balancing of the conduct of the defendant
against the conduct of the State should be made on a
case-by-case basis and no one factor is either necessary or
sufficient to support a finding that the defendant has been
denied a speedy trial.
this Court utilized the standard enunciated above and concluded
that a delay of almost six years between the indictment and the trial was not caused by
neglect on the part of the investigating officers. The defendant in Foddrell
demonstrated that he was prejudiced by the delay, and this Court reasoned that [t]here was
no showing that the deceased witness [having died during the period of delay] would have
testified or what exactly her testimony would have been had she testified. Even if we assume
that her testimony would have supported the appellant's assertions at trial, there was no
showing that such testimony was critical to the appellant's defense at trial. 171 W.Va. at
58, 297 S.E.2d at 833.
In the case sub judice, the trial court denied the Appellant's motion to dismiss
the indictment on Sixth Amendment grounds and presented an extremely thorough evaluation
of the factors identified in Foddrell
. The trial court also addressed the
Appellant's assertion that delays by the State forced him to request continuances beyond the
statutorily-required three terms. (See footnote 7)
The trial court observed that many motions by the
Appellant were precipitated by late production of discoverable material such as delayed
production of forensic testing results by the State Crime Lab and the failure of the State
Police to deliver the crime report and photographs in a timely manner. However, the trial
court found that the reasons for delay were not exclusively attributable to the State and that
some delays were to the Appellant's benefit in the form of further forensic investigations,
obtaining favorable expert testimony, and further development of exculpatory information.
The trial court did not find any indication of a deliberate or intentional delay
by the State. The record does not reveal any instance of wilful or calculated postponement
by the State for the purpose of tactical advantage or otherwise. Nor does the record reveal
any intentional retention of materials requested by the Appellant. The trial court also
properly emphasized the fourth prong of the Foddrell analysis in evaluating this matter.
Specifically, prejudice to the Appellant, other than the months of waiting for trial, was found
to be virtually non-existent.
This Court has reviewed the circumstances surrounding the multiple instances
of delay, as revealed in the record and summarized above in the factual recitation. We find
no error by the trial court in refusing to dismiss the indictment based upon the periods of
delay. The reasons for each of the delays were addressed by the trial court, and the remedy
for such delays was appropriately determined to be the granting of a continuance in each
instance. Based upon our review, we find that neither a violation of West Virginia Code §
62-3-21 nor a violation of the speedy trial constitutional protection has occurred in this case.
E. State's Destruction of Evidence
The Appellant also contends that the State destroyed certain materials,
including some pieces of white paper with phone numbers and some photographs believed
to be the property of the Appellant. These items had been in the possession of Ms. Debra
Stewart, Mr. Hicks' mother, and had been obtained by the police when they went to Ms.
Stewart's home to retrieve the knife and lighter believed to have been used in the commission
of the crime. (See footnote 8)
On December 13, 2007, the Appellant filed a motion to dismiss the indictment
on the basis of this destruction of evidence, and a hearing was thereafter conducted by the
During the hearing, State Trooper Don Kitzmiller testified that these items had
been discarded because they lacked evidentiary value. Subsequent to argument of the
defense counsel that the case should be dismissed based upon the State's improper
destruction of evidence, the trial court inquired regarding the possible relevance of the items
seized that were thrown away or destroyed by Sergeant Kitzmiller. (See footnote 9)
Counsel for the
Appellant responded to the trial court's question and explained that he did not have
knowledge regarding exactly what those photographs or pieces of paper regarded. The trial
court then questioned the efficacy of dismissing a murder indictment even though defense
counsel could not identify any evidentiary value in the pieces of white paper or photographs.
The trial court ultimately concluded that the Appellant's defense had not been affected or
prejudiced in any manner by the destruction of the contents of that plastic bag.
The trial court found no evidentiary value in the destroyed materials and found
no evidence that inculpatory or exculpatory evidence was included. In Brady v. Maryland
373 U.S. 83 (1963), the United States Supreme Court expressed the principle that
suppression by the State of evidence favorable to an accused is violative of due process if the
evidence is deemed material to the accused's guilt or punishment. 373 U.S. at 87. Similarly,
in syllabus point four of State v. Hatfield
, 169 W.Va. 191, 286 S.E.2d 402 (1982), this Court
explained: A prosecution that withholds evidence which if made available would tend to
exculpate an accused by creating a reasonable doubt as to his guilt violates due process of
law under Article III, Section 14 of the West Virginia Constitution. This Court addressed
this issue subsequently in State v. Youngblood
, 221 W.Va. 20, 650 S.E.2d 119 (2007), and
observed that although Brady
addressed only exculpatory evidence, the principle had
ultimately been expanded to include impeachment evidence. 221 W.Va. at 28, 650 S.E.2d
at 127. The components of a due process violation under Brady were articulated as follows
in syllabus point two of Youngblood
There are three components of a constitutional due
process violation under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169
W.Va. 191, 286 S.E.2d 402 (1982):(1) the evidence at issue
must be favorable to the defendant as exculpatory or
impeachment evidence; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3)
the evidence must have been material, i.e., it must have
prejudiced the defense at trial.
Suppressed evidence is considered material only if there is a reasonable probability that the
result of the proceeding would have been different if the evidence had been disclosed. 221
W.Va. at 32, 650 S.E.2d at 131.
In pertinent part of syllabus point two of State v. Osakalumi, 194 W.Va. 758,
461 S.E.2d 504 (1995), this Court addressed the remedy to be selected by a trial court for
violations of a duty to preserve evidence, as follows:
In determining what consequences should flow from the State's
breach of its duty to preserve evidence, a trial court should
consider (1) the degree of negligence or bad faith involved; (2)
the importance of the missing evidence considering the
probative value and reliability of secondary or substitute
evidence that remains available; and (3) the sufficiency of the
other evidence produced at the trial to sustain the conviction.
Upon review by this Court, we find no error in the trial court's refusal to
dismiss the indictment on the basis of this destruction of evidence. The degree of negligence
involved is minimal, to the extent that the police officer testified that the materials in
question were of no value or relevance to the criminal investigation. Further, there is no
indication that the materials were important to the investigation or that the result of the
proceedings would have been different had those materials been available. The other
evidence presented at trial was sufficient to support the jury's conviction of the Appellant.
We find that this assignment of error is without merit.
F. Theory of Defense Instruction
The Appellant also asserts that the trial court erred in failing to provide the
Appellant's requested jury instruction on a particular component of his theory of defense.
The requested jury instruction would have informed the jury of the Appellant's position that
Mr. and Mrs. Hicks were providing false testimony regarding the Appellant's involvement
in the crime in order to obtain a favorable plea bargain agreement. As the State emphasizes,
a witness credibility instruction was properly provided to the jury, and any potential for false
testimony could have been evaluated through the jury's application of that instruction to the
testimony presented to them.
This Court has consistently held as follows with regard to the discretion of a
trial court in providing jury instructions:
The formulation of jury instructions is within the broad
discretion of a circuit court, and a circuit court's giving of an
instruction is reviewed under an abuse of discretion standard. A
verdict should not be disturbed based on the formulation of the
language of the jury instructions so long as the instructions
given as a whole are accurate and fair to both parties.
Syl. Pt. 6, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va 97, 459 S.E.2d 374
(1995). Similarly, this Court held the following in State v. Guthrie, 194 W. Va. 657, 461
S.E.2d 163 (1995), regarding jury instructions:
The 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 misled by the law. A jury
instruction cannot be dissected on appeal; instead, the entire
instruction is looked at when determining its accuracy. The 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 the [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.
!d. at 671, 461 S.E.2d at 177, quoting State v. Bradshaw, 193 W. Va. 519, 543, 457 S.E.2d
456, 480 (1995).
Based upon the review of this Court, it appears that the instructions approved
and provided to the jury by the trial court were precise, accurate, and fair to both parties. The
instructions exhaustively defined the elements of the offenses charged in the indictment and
specifically included a section dealing with witness credibility and the jury's function in
weighing the evidence presented. This Court finds no abuse of discretion in the trial court's
denial of the requested instruction.
G. Battery as a Lesser Included Offense Instruction
The Appellant also contends that the trial court erred in failing to provide a jury
instruction on battery as a lesser-included offense to murder. (See footnote 10)
This Court has observed that
battery is not to be considered as a lesser included offense to murder. State v. Watson
, 99 W.
Va. 34, 127 S.E. 637 (1925). In Watson
, this Court stated as follows:
[U]nder an indictment for murder, in the form prescribed by
section 1, of chapter 144 of the Code, which indictment did not
also aver facts constituting an assault or assault and battery, it
was error in giving an instruction defining the offenses of which
accused might be found guilty under the indictment, to tell the
jury, if they did not find him guilty of the graver offenses
covered by the indictment, they might find him guilty of assault
99 W. Va. at 36, 127 S.E.2d at 638. This Court also explained as follows in syllabus point
two of State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982): Where there is no
evidentiary dispute or insufficiency on the elements of the greater offense which are different
from the elements of the lesser included offense, then the defendant is not entitled to a lesser
included offense instruction.
As stated above, the formulation of jury instructions is within the discretion of
a trial court, and this Court will not disturb a trial court's findings absent an abuse of
discretion. Tennant, 194 W. Va. at 102, 459 S.E.2d at 379, syl. pt. 6. The Appellant does
not present any legitimate argument contesting the jury's finding that his actions contributed
to the death of the victim or that there was insufficiency of evidence regarding the conviction
for voluntary manslaughter. Nor does he present a legitimate argument requiring the
inclusion of an instruction on battery as a lesser included offense. Accordingly, the trial
court properly found that battery was not to be included when denying this offered
instruction. We find no abuse of discretion on this issue.
H. State's Motion to Continue During Recidivist Trial on December 9, 2008
The Appellant also asserts that the trial court erred in granting the State's
motion to continue to the following day during the recidivist trial on December 9, 2008. The
trial court permitted this recess to allow the State to call Lieutenant Michael Corsaro to bring
in original fingerprint cards as evidence and testify regarding the same. In presenting the
assignment of error on this issue, the Appellant again fails to provide any pertinent authority
to support his claim. As explained above, [a]lthough we liberally construe briefs in
determining issues presented for review, issues which are not raised, and those mentioned
only in passing but are not supported with pertinent authority, are not considered on appeal. LaRock, 196 W. Va. at 302, 470 S.E.2d at 621. Moreover, this Court has consistently held
that [a] motion for continuance is addressed to the sound discretion of the trial court, and
its ruling will not be disturbed on appeal unless there is a showing that there has been an
abuse of discretion. Syl. Pt. 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979). A
one-day delay to permit the calling of Lieutenant Corsaro to testify and to introduce original
fingerprint cards does not give rise to an abuse of discretion on the part of the trial court. We
therefore decline to reverse on this assignment of error.
I. Juror Questionnaire
The Appellant also contends that the trial court erred in failing to permit a juror
questionnaire to be distributed to the jurors during voir dire regarding qualifications to serve
on the jury. The Appellant's motion for such questionnaire was made on February 23, 2007,
and denied on March 27, 2007. The trial court concluded that written jury questionnaires are
not necessary to seat a qualified, fair, and impartial jury.
This Court has stated that [i]n a criminal case, the inquiry made of a jury on
its voir dire is within the sound discretion of the trial court and not subject to review, except
when the discretion is clearly abused. Syl. Pt. 2, State v. Beacraft, 126 W.Va. 895, 30
S.E.2d 541 (1944), overruled in part on other grounds, Syl. Pt. 8, State v. Dolin, 176 W.Va.
188, 347 S.E.2d 208 (1986). There is no authority requiring a court to issue the requested
juror questionnaire to jurors during voir dire, and there were no extenuating circumstances
in this case which would have supported the use of such questionnaire. The Appellant's
contention on this issue lacks merit, and this Court fails to discern any abuse of discretion
by the trial court in this regard.
J. Timeliness of Presentation of Recidivist Information
The jury rendered a verdict in this case on July 11, 2008. The State provided
limited information regarding its intent to file a habitual criminal information on August 18,
2008, and actually filed an Information of Prior Felony Convictions on September 18, 2008.
The Appellant contends that this delay violated West Virginia Code § 61-11-19 (1943) (Repl.
Vol. 2005) (See footnote 11)
to the extent that the statute requires the State to immediately inform the court
of a defendant's alleged prior felony convictions. The trial court considered the Appellant's
motion and entered an order denying the motion to dismiss the recidivist information on
December 1, 2008. In its findings, the trial court stated that the Appellant was not deemed
convicted until August 18, 2008, when his post-trial motions were denied and he was
adjudged guilty. Further, the trial court found as follows:
The obvious purpose of the statute is to require that the
court be informed of the prior felonies of the Defendant before
sentencing is imposed. The word immediately as appears in
the statute must be considered not only with the word upon
conviction but also the phrase and before sentencing. It is
apparent to the court that such information was given to the
court immediately after conviction and before sentence by the
representations made by the prosecutor on August 18, 2008.
The trial court's ruling in this regard is consistent with the prior statements of this Court. In State ex rel. Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002), cert. denied, 539 U.S.
948, for instance, this Court explained as follows:
[T]he immediacy requirement is satisfied if the State files the
information before sentencing and prior to the end of the term
of court within which the defendant was convicted. To hold
otherwise would risk a defendant being able to avoid imposition
of a recidivist sentence if the State is unaware at the time of
conviction of any predicate offenses. Such an inadvisable result
would emasculate [t]he primary purpose of our recidivist
statutes, W. Va.Code, 61-11-18 (1943), and W. Va.Code,
61-11-19 (1943), [which] is to deter felony offenders, meaning
persons who have been convicted and sentenced previously on
a penitentiary offense, from committing subsequent felony
offenses[,] Syl. pt. 3, in part, State v. Jones, 187 W.Va. 600,
420 S.E.2d 736 (1992) and to protect society from habitual
criminals. . . . State v. Stout, 116 W.Va. 398, 402, 180 S.E. 443,
213 W. Va. at 510, 583 S.E.2d at 807. In the present case, the State ultimately filed the
information on September 18, 2008, and the new term was set to begin on September 23,
2008. See Rule 2.05 of the West Virginia Trial Court Rules (stating that Fifth Circuit Term
of Court begins on fourth Tuesday in September).
On appeal to this Court, the Appellant contends that the trial court should have
granted his motion to dismiss the information of prior felony convictions due to this delay
by the State. Based upon this Court's review, however, the State did not violate the statutory
language. Limited information was provided as early as August 18, 2008, and the formal
information was filed on September 18, 2008. We find no error in the trial court's denial of
the Appellant's motion to dismiss.
Based upon the foregoing evaluation of the Appellant's assignments of error,
this Court affirms the Circuit Court of Roane County.
Mr. Burns was allegedly placing his hands inside the daughter's shirt and into
The Appellant filed a motion to dismiss the indictment on the basis of
prosecutorial misconduct due to the existence of a statement of John Richards provided by
Mr. Richards as part of a plea agreement in Calhoun County. Mr. Richards' statement was
premised on conversations he allegedly had with Joey Hicks while they were cell mates and
Mr. Richards' knowledge of the fact that Mr. Hicks had a knife and lighter in his possession
when he was arrested in May 2005. As the trial court observed, this evidence would have
been considered impeachment evidence and would have been probative only to the weight
and credibility to be afforded to the testimony of Mr. Hicks with regard to the utilization of
the knife and lighter during the crime and with regard to alleged inconsistent statements of
Mr. Hicks regarding the circumstances surrounding the beating of Mr. Burns. Mr. Hicks
testified in the Appellant's first trial, ending in a mistrial as noted above. However, Mr.
Hicks did not testify in the Appellant's second trial, ending in a conviction and being
In the hearing on the Appellant's motion to dismiss the indictment based upon
the late revelation of the Richards statement, it was discovered that a copy of the Richards
statement was faxed from the Calhoun County Prosecutor's Office to the Roane County
Prosecutor's Office in 2005. On the day of the scheduled trial, July 24, 2007, the Appellant
informed the trial court that he had learned of the Richards statement through the Calhoun
County Prosecutor's Office. In response, the trial court granted the Appellant's motion to
continue the trial until November 27, 2007.
West Virginia Rule of Criminal Procedure16(d)(2) provides as follows:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply
with this rule, the court may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the
party from introducing evidence not disclosed, or it may enter
such other order as it deems just under the circumstances. The
court may specify the time, place and manner of making the
discovery and inspection and may prescribe such terms and
conditions as are just.
Mr. and Mrs. Hicks, alleged accomplices of the Appellant, entered into plea
agreements. Mr. Hicks pleaded guilty to voluntary manslaughter and conspiracy to commit
a felony of voluntary manslaughter. Mrs. Hicks pleaded guilty to involuntary manslaughter;
conspiracy to commit a felony of malicious wounding; and conspiracy to commit a felony
The complete text of West Virginia Code § 62-3-21 is as follows:
Every person charged by presentment or indictment with
a felony or misdemeanor, and remanded to a court of competent
jurisdiction for trial, shall be forever discharged from
prosecution for the offense, if there be three regular terms of
such court, after the presentment is made or the indictment is
found against him, without a trial, unless the failure to try him
was caused by his insanity; or by the witnesses for the State
being enticed or kept away, or prevented from attending by
sickness or inevitable accident; or by a continuance granted on
the motion of the accused; or by reason of his escaping from jail,
or failing to appear according to his recognizance, or of the
inability of the jury to agree in their verdict; and every person
charged with a misdemeanor before a justice of the peace
[magistrate], city police judge, or any other inferior tribunal, and
who has therein been found guilty and has appealed his
conviction of guilt and sentence to a court of record, shall be
forever discharged from further prosecution for the offense set
forth in the warrant against him, if after his having appealed
such conviction and sentence, there be three regular terms of
such court without a trial, unless the failure to try him was for
one of the causes hereinabove set forth relating to proceedings
, the United States Supreme Court explained that the circumstances
of each case would dictate the outcome and stated as follows:
A balancing test necessarily compels courts to approach
speedy trial cases on an ad hoc
basis. We can do little more than
identify some of the factors which courts should assess in
determining whether a particular defendant has been deprived of
his right. Though some might express them in different ways,
we identify four such factors: Length of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice to the
407 U.S. at 530. It is worth noting that in Barker
, the United States Supreme Court found
no speedy trial violation where a five-and-one-half year delay occurred with all but seven
months attributable to the government, where the defendant did not assert such a right until
the day of trial, and no actual prejudice was found. Id
. at 532.
Syllabus point three of State v. Fender,
165 W.Va. 440, 268 S.E.2d 120
(1980), explained as follows: 'Any term at which a defendant procures a continuance of
a trial on his own motion after an indictment is returned, or otherwise prevents a trial from
being held, is not counted as one of the three terms in favor of discharge from prosecution
under the provisions of Code, 62-3-21, as amended.' Syl. pt. 2, State ex rel. Spadafore v.
, 155 W.Va. 674, 186 S.E.2d 833 (1972).
In the Appellant's motion to dismiss the indictment, he alleges that the State
had taken possession of a plastic bag containing the personal paperwork 'believed to be
property of Raymond Elswick' on August 30, 2007, when a knife and a lighter were also
taken into the State's possession. The Appellant further alleges that the State ultimately
admitted that certain paperwork had been discarded by the State. The Appellant requested
the trial court to dismiss the case for this intentional disposal of those materials.
Ms. Stewart thought the plastic bag contained a wallet, pieces of paper, and
photographs of dogs and people, but two police officers testified that it contained only paper
and photographs not relevant to the investigation. The property receipt also indicated that
the bag contained only pieces of paper and photographs. The police officers further
explained that they had gone to Ms. Stewart's home seeking only the knife and lighter in her
possession. She had requested that they take the plastic bag since it contained items that did
not belong to her or her son.
The Appellant was eventually convicted of voluntary manslaughter.
According to the instruction to the jury, the jury was to convict the Appellant of voluntary
manslaughter if it found beyond a reasonable doubt the following: 1) the Defendant,
RAYMOND ELSWICK 2) in Roane County 3) on a day in May 2005 did unlawfully and
intentionally 4) but without premeditation, deliberation, or malice, 5) kill and slay Daniel
West Virginia Code § 61-11-19 provides, in pertinent part, as follows: It
shall be the duty of the prosecuting attorney when he has knowledge of former sentence or
sentences to the penitentiary of any person convicted of an offense punishable by
confinement in the penitentiary to give information thereof to the court immediately upon
conviction and before sentence.