State v. Corey

• Citation: 758 S.E.2d 117,233 W.Va. 297
• Decision Date: 23 April 2014
• Docket Number: No. 13–0769.,13–0769.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. David M. COREY, Defendant Below, Petitioner.

233 W.Va. 297

758 S.E.2d 117

STATE of West Virginia, Plaintiff Below, Respondent

v.David M. COREY, Defendant Below, Petitioner.

No. 13–0769.

Supreme Court of Appeals of

West Virginia.

Submitted April 8, 2014.

Decided April 23, 2014.

Syllabus by the Court

1. “Reviewing courts should grant magistrates deference when reviewing warrants for probable cause. Such warrants should be judged by a ‘totality-of-the-circumstances' test.” Syllabus point 5, State v. Thomas, 187 W.Va. 686, 421 S.E.2d 227 (1992).

2. “Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable nor is an affidavit based on hearsay acceptable unless there is a substantial basis for crediting the hearsay set out in the affidavit which can include the corroborative efforts of police officers.” Syllabus point 4, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986).

3. “Probable cause for the issuance of a search warrant exists if the facts and circumstances provided to a magistrate in a written affidavit are sufficient to warrant the belief of a prudent person of reasonable caution that a crime has been committed and that the specific fruits, instrumentalities, or contraband from that crime presently may be found at a specific location. It is not enough that a magistrate believes a crime has been committed. The magistrate also must have a reasonable belief that the place or person to be searched will yield certain specific classes of items. There must be a nexus between the criminal activity and the place or person searched and thing seized. The probable cause determination does not depend solely upon individual facts; rather, it depends on the cumulative effect of the facts in the totality of circumstances.” Syllabus point 3, State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995).

4. “Although Rules 401 and 402 of the West Virginia Rules of Evidence strongly encourage the admission of as much evidence as possible, Rule 403 of the West Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests to determinewhether logically relevant is legally relevant evidence. Specifically, Rule 403 provides that although relevant, evidence may nevertheless be excluded when the danger of unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.” Syllabus point 9, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

5. “The determination of what is good cause, pursuant to W. Va.Code, 62–2–1, for a continuance of a trial beyond the term of indictment is in the sound discretion of the trial court, and when good cause is determined a trial court may, pursuant to W. Va.Code, 62–3–1, grant a continuance of a trial beyond the term of indictment at the request of either the prosecutor or defense, or upon the court's own motion.” Syllabus point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981).

6. “Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived.” Syllabus point 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981).

7. “Prior to the entry of the verdict by a jury, a mistrial is procedurally possible; however, declaring a mistrial after the jury verdict is rendered is improper.” Syllabus, Vilar v. Fenton, 181 W.Va. 299, 382 S.E.2d 352 (1989).

8. “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.” Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Lauren M. Wilson, Sites Law Firm, Keyser, WV, for Petitioner.

Patrick Morrisey, Attorney General, Christopher S. Dodrill, Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

This appeal by David M. Corey (“Mr. Corey”) was filed from a judgment of the Circuit Court of Hampshire County sentencing him to life in prison without the possibility of parole. The sentence was imposed after a jury convicted Mr. Corey of first degree murder. In this appeal, Mr. Corey assigned error as follows: (1) invalid search warrant affidavit, (2) erroneous admission of ammunition and knives, (3) denial of right to a speedy trial, (4) denial of mistrial, and (5) insufficiency of the evidence. After a careful review of the briefs, record submitted on appeal, and listening to the arguments of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

The facts of this case show that Mr. Corey's younger brother, Danny Corey (“Danny”), was living at their mother's home in Romney, West Virginia, when he was shot on January 8, 2012, at around 8:00 p.m.¹ Danny was in his bedroom on the second floor of the home at the time of the shooting. The bullet that struck Danny was fired from a rifle outside the home. The bullet traveled through a bedroom window, struck Danny in the back, exited through his left upper arm, penetrated the bedroom door, and came to rest in a wall of the upstairs hallway. At the time of the shooting, Danny's ten-year-old niece, H.C.,² and an invalid aunt, Wanda McGuire, were also at home.³ H.C. heard the gunshot and ran up to Danny's room, where she found him lying on the floor and bleeding. H.C. telephoned her grandmother, Dorothy Corey (“Ms. Corey”), at work and told her that Danny had been shot.⁴ Ms. Corey instructed H.C. to call 911. H.C. called 911, and an ambulance arrived and transported Danny to a hospital where he was declared dead.

While the police were at the home investigating the shooting, they decided to perform gunshot residue tests ⁵ on Mr. Corey and his older brother, Steve. Two days after the shooting, Mr. Corey's former girlfriend, Kathy Stonebraker, voluntarily went to the local police and gave a statement that implicated Mr. Corey in the murder of his brother. Ms. Stonebraker informed the police that she thought Mr. Corey had had some involvement in his brother's death because “[h]e talked about how much he hated him, and he said he hated him enough to kill him.” Ms. Stonebraker also stated that Mr. Corey had hidden a gun in the woods behind his mother's home. According to Ms. Stonebraker, Mr. Corey was “raging mad” at his brother because he believed his brother would inherit their mother's home when she died.

Immediately after Ms. Stonebraker gave her statement, the police obtained a warrant to search Mr. Corey's home.⁶ During the search of the exterior of Mr. Corey's home the police uncovered some brush and found a box of rifle cartridges in a bag and five collector knives in a tin box. ⁷ The police took the rifle cartridges, but placed the knives back under the brush pile. After further investigation, including the receipt of a report that gunshot residue was found on Mr. Corey's right hand, the police arrested him on February 14, 2012. Mr. Corey subsequently was indicted for murder by a grand jury on September 5, 2012.

A four day jury trial was held in April 2013.⁸ During the trial, the State put on evidence that the police were not able to determine the specific caliber of the bullet that killed Danny-other than a .30 caliber rifle bullet. However, expert testimony was given that the bullet which killed Danny had “similar design characteristics” as the bullets found at Mr. Corey's residence. Medical evidence indicated the bullet was fired from a rifle. The State presented testimony from two witnesses, David Johnson and David Bridges, who indicated that in December 2011, Mr. Corey had attempted to sell them a rifle and scope, but that they did not purchase the weapon from him.⁹ There was also evidence by a witness, Donald McDaniel, who recounted a conversation he had in his home with Mr. Corey on the day before Danny was killed. Mr. McDaniel testified that Mr. Corey stated that he was going to kill his girlfriend, his girlfriend's boyfriend, and Danny. When Mr. Corey made the statement, he pulled out a pistol and showed it to Mr. McDaniel. There additionally was testimony by Ms. Stonebraker that recounted the statement she gave the police implicating Mr. Corey in the murder of Danny. The jury was informed through a State expert witness, Koren Powers, that Mr. Corey had gunshot residue on his right hand on the day that Danny was killed. The State called a witness, Brian Buracker, who testified that a few months before Danny was shot, he heard Mr. Corey state on several occasions that he was going to kill Danny. Mr. Buracker also testified to his observations of Mr. Corey at Danny's funeral:

Q. How did David react at that Funeral?

A. It made me sick. It was like he was at a family reunion, not a funeral.

Q. Was he crying?

A. No.

Q. Show any emotion to you at all?

A. Just a smile on his face. That's about all I got out of him.

Mr. Corey called six witnesses during his case-in-chief. However, he did not testify. Mr. Corey did not have an alibi witness for his whereabouts at the time Danny was killed. However, Mr. Corey did call two witnesses to show that he made a foodstamp purchase from a convenience store approximately one hour after Danny was shot. One of Mr. Corey's witnesses, Robert White, testified as a gunshot residue expert. Mr. White informed the jury that the gunshot residue found on Mr. Corey could have come from the hand of the police officer who performed the swab test on Mr. Corey and that it was impossible to say that the gunshot residue came from the weapon that killed Danny.

The jury,...