State Of West Va. v. Elswick, No. 35014.

CourtSupreme Court of West Virginia
Citation225 W.Va. 285,693 S.E.2d 38
Decision Date01 April 2010
PartiesSTATE of West Virginia, Plaintiff Below, Appelleev.Raymond Lee ELSWICK, Defendant Below, Appellant.
Docket NumberNo. 35014.

225 W.Va. 285
693 S.E.2d 38

West Virginia.

STATE of West Virginia, Plaintiff Below, Appellee
v.
Raymond Lee ELSWICK, Defendant Below, Appellant.

No. 35014.

Supreme Court of Appeals of

Submitted Feb. 10, 2010.
Decided April 1, 2010.


693 S.E.2d 39

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693 S.E.2d 40

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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 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.” 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 ---- (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 [1959], 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).

6. “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 120 (1980).

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).

9. “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

693 S.E.2d 42
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 (1979).

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. 688, 347 S.E.2d 208 (1986).



Morgan B. Hayes, Lee F. Benford, II, Ripley, WV, for the Appellant.

R. Christopher Smith, Attorney General's Office, Charleston, WV, for the Appellee.

PER CURIAM:

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 these issues.

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 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

693 S.E.2d 43
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...

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14 practice notes
  • Elswick v. Plumley, Case No.: 2:14-cv-29300
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • May 1, 2015
    ...In an April 1, 2010, per curiam published decision, the WVSCA affirmed Elswick's convictions. (ECF No. 9-13 at 2, 4-5); State v. Elswick, 693 S.E.2d 38, 42 (W. Va. 2010). The WVSCA issued its mandate in the case on May 3, 2010. (ECF No. 9-14 at 2). B. State Habeas Proceedings On February 18......
  • State ex rel. Smith v. Olejasz, 21-0404
    • United States
    • Supreme Court of West Virginia
    • November 19, 2021
    ...803 (1987)." State ex rel. Bass v. Abbot , 180 W. Va. 119, 375 S.E.2d 590 (1988) ; see also Syl. Pt. 3, in part, State v. Elswick , 225 W. Va. 285, 693 S.E.2d 38 (2010).Second, I would place no reliance on Adkins , as the case upon which the Adkins Court relied, State v. Bennett , 157 W. Va......
  • State ex rel. Smith v. Olejasz, 21-0404
    • United States
    • Virginia Supreme Court of Virginia
    • November 19, 2021
    ...S.E.2d 803 (1987)." State ex rel. Bass v. Abbot, 180 W.Va. 119, 375 S.E.2d 590 (1988); see also Syl. Pt. 3, in part, State v. Elswick, 225 W.Va. 285, 693 S.E.2d 38 (2010). 6 Second, I would place no reliance on Adkins, as the case upon which the Adkins Court relied, State v. Bennett, 157 W.......
  • Saunders v. Ames, Civil Action 2:21-cv-00102
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • November 9, 2021
    ...has reviewed the cited caselaw and procedural rules and notes that the judge was not bound to only those options. While State v. Elswick, 693 S.E.2d 38 (W.Va. 2010) does not require that a motion to dismiss be granted for a discovery violation, it simply says continuance can be an appropria......
  • Request a trial to view additional results
14 cases
  • Elswick v. Plumley, Case No.: 2:14-cv-29300
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • May 1, 2015
    ...In an April 1, 2010, per curiam published decision, the WVSCA affirmed Elswick's convictions. (ECF No. 9-13 at 2, 4-5); State v. Elswick, 693 S.E.2d 38, 42 (W. Va. 2010). The WVSCA issued its mandate in the case on May 3, 2010. (ECF No. 9-14 at 2). B. State Habeas Proceedings On February 18......
  • State ex rel. Smith v. Olejasz, 21-0404
    • United States
    • Supreme Court of West Virginia
    • November 19, 2021
    ...803 (1987)." State ex rel. Bass v. Abbot , 180 W. Va. 119, 375 S.E.2d 590 (1988) ; see also Syl. Pt. 3, in part, State v. Elswick , 225 W. Va. 285, 693 S.E.2d 38 (2010).Second, I would place no reliance on Adkins , as the case upon which the Adkins Court relied, State v. Bennett , 157 W. Va......
  • State ex rel. Smith v. Olejasz, 21-0404
    • United States
    • Virginia Supreme Court of Virginia
    • November 19, 2021
    ...S.E.2d 803 (1987)." State ex rel. Bass v. Abbot, 180 W.Va. 119, 375 S.E.2d 590 (1988); see also Syl. Pt. 3, in part, State v. Elswick, 225 W.Va. 285, 693 S.E.2d 38 (2010). 6 Second, I would place no reliance on Adkins, as the case upon which the Adkins Court relied, State v. Bennett, 157 W.......
  • Saunders v. Ames, Civil Action 2:21-cv-00102
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • November 9, 2021
    ...has reviewed the cited caselaw and procedural rules and notes that the judge was not bound to only those options. While State v. Elswick, 693 S.E.2d 38 (W.Va. 2010) does not require that a motion to dismiss be granted for a discovery violation, it simply says continuance can be an appropria......
  • Request a trial to view additional results

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