State v. Booth, 16-0692
| Decision Date | 17 November 2017 |
| Docket Number | No. 16-0692,16-0692 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Todd Booth, Defendant Below, Petitioner |
Petitioner Todd Booth, by counsel E. Scott Stanton, appeals the June 22, 2016, "Sentencing and Commitment Order" entered in the Circuit Court of Fayette County following his conviction by a jury of conspiracy to commit a felony, malicious assault, and robbery in the first degree. The State of West Virginia, by counsel Zachary Aaron Viglianco, filed a response in support of the circuit court's order.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner and his co-defendants, Robert Patrick and Kristina Lambert, were indicted on January 12, 2016, on charges of conspiracy, malicious assault, first degree robbery, and burglary in connection with the beating and robbery of 74-year-old Bobby Wright ("the victim") on August 8, 2015. Approximately two weeks earlier, the victim met petitioner and Patrick at the vehicle repair shop where they worked in Beckley, West Virginia. The victim hired them to repair his vehicle. After the repairs were completed at the victim's home in Mount Hope, the victim paid the pair, at which time they were able to see that the victim was carrying $500 to $800 in cash.
On the evening of the attack, petitioner, Patrick, and Lambert drove to the victim's home. The victim, who was sitting in his living room, saw someone walk by the window. The victim testified that he got up "[a]nd I'd already knowed [sic] them a little bit, so I went out on the porch and went to talking to them." He then allowed Lambert to enter the home to use the bathroom. After Lambert returned to the car to get cigarettes, petitioner and Patrick attacked the victim, hitting him hard enough on the head to cause him to lose consciousness. The victim felt one of the men reach into his pocket and steal his wallet. According to Lambert, when the men returned to the car, they threw a wallet into the backseat and showed her their hands, which she described as "red." Lambert testified that the men then stated that the victim would not be waking up for a while.
At trial, Fayette County Deputy Adam Roberts, who answered the victim's 9-1-1 call on the evening of the attack, testified that, although the victim did not know the names of his attackers, "[h]e stated that he had met them at Greg Lilly Auto Sales in Beckley[,]" and that he had previously hired them to perform work on his vehicle. Detective William Kevin Willis testified that receipts and video surveillance of several stores in the area revealed that Lambert used the victim's credit card on the evening of the attack and that petitioner was seen in several of the videos alongside Lambert.
As a result of the attack, the victim suffered a fractured orbital bone, another skull fracture, and intracranial bleeding that resulted in a subdural hematoma. The attack also had a severe, degenerative impact on the victim's health, causing his memory and cognitive function to worsen and resulting in treatment for post-traumatic stress disorder ("PTSD"), depression, and anxiety.
On February 25, 2016, the State filed a motion under Rule 15 of the West Virginia Rules of Criminal Procedure to take the evidentiary video deposition of the victim on the ground that his "health is continuing to deteriorate and his ability to physically participate in the trial of this matter [set for April 7, 2016,] seems less and less likely." Following a hearing, and over petitioner's objection, the circuit court granted the State's motion.
On March 10, 2016, just prior to the scheduled video deposition of the victim, petitioner filed with the circuit court a waiver of his right to be present at the victim's video deposition. However, the State objected on the ground that the victim, who had not previously identified petitioner as one of his attackers, would be given the opportunity to identify the petitioner for the first time during the deposition. The State advised the court that it needed the victim to make the identification in order to prove its case. Based upon the State's objection, the circuit court refused to accept petitioner's waiver.
A video deposition of the victim was thereafter conducted in the courtroom and with the circuit judge presiding. During the course of the deposition, the victim recounted the attack and identified petitioner and Patrick, both of whom were present,1 as his attackers. Counsel for petitioner and his co-defendants cross-examined the victim.
Immediately following the victim's Rule 15 deposition, the circuit court conducted a hearing on the motions to sever previously filed by petitioner and Patrick. The court denied the motions. Prior to petitioner's trial, petitioner's co-defendants entered into plea agreements with the State.
On March 18, 2016, petitioner filed a motion to suppress the victim's identification of him at trial. Following a hearing, the circuit court denied the motion.
On April 7, 2016, the State filed a motion in limine to allow the victim's video depositionto be played at trial on the ground that, since the time the deposition was taken, the victim's "mental and cognitive condition has deteriorated to the point that it is the opinion of his treating health care providers that he not testify in person at the trial in this matter. . . . and that forcing [him] to testify will cause further damage to his health and well-being." Following a hearing, the circuit court granted the motion.
A two-day jury trial was conducted beginning on April 18, 2017. Petitioner was convicted of conspiracy, for which he was sentenced to one to five years of incarceration; malicious assault, for which he was sentenced to two to ten years; and first degree robbery, for which he was sentenced to fifty years.2 The sentences were ordered to be served consecutively to each other and to the sentence he was then currently serving for a prior conviction for daytime burglary in Monroe County, West Virginia.3 This appeal followed.
Petitioner's first assignment of error involves the taking and use of the victim's video deposition. Petitioner argues (1) that there was insufficient evidence that the victim was in such ill health that a video deposition under Rule 15 of the Rules of Criminal Procedure was warranted or that he could not thereafter appear at trial to testify; (2) that petitioner should have been permitted to waive his presence at the deposition; and (3) that the victim's identification of petitioner at the deposition should have been suppressed. We will address each of these arguments in turn.
Id. in relevant part. See Syl. Pt. 1, State ex rel. Spaulding v. Watt, 186 W. Va. 125, 411 S.E.2d 450 (1991) (). Petitioner argues that the State failed to show that "exceptional circumstances" existed in this case to warrant the taking of the victim's video deposition under Rule 15.
The decision whether to permit a deposition under Rule 15 rests with the sound discretion of the trial judge. See State v. Ferrell, 174 W. Va. 697, 699, 329 S.E.2d 62, 65 (1985). We find no error. Given the victim's advanced age and the fact that, based upon submitted medical records, his physical and mental health were deteriorating following the serious injuries sustained from the attack, the circuit court determined that, in the interest of justice, the victim's testimony should be preserved in a video deposition. We cannot say that the court abused itsdiscretion in so finding and in thus permitting the taking of the victim's deposition.
With regard to the court's subsequent ruling that permitted the State to use the victim's deposition at trial in lieu of his live testimony, we likewise find no error. Attached to its motion in limine to allow the use of the victim's deposition at trial, the State submitted a letter from the victim's health care provider that opined that the victim should not be required to testify at trial. In the provider's opinion, "the stress that [testifying] would produce would exacerbate [the victim's] anxiety and PTSD symptoms again to the point that he would not be able to function without the support of another person." He further opined that "the combination of the blunt force head trauma along with the stress of having to deal with the legal proceedings over that [sic] past nine months combined to worsen his cognitive function."
Under Rule 15(e) of the West Virginia Rules of Criminal, "[a]t the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the West Virginia Rules of Evidence. . . ." Id. in relevant part. Rule 804(a)(4) provides that "[a] declarant is considered to be unavailable...
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