State v. Costello, No. 19-0326

CourtSupreme Court of West Virginia
Writing for the CourtJenkins, Chief Justice
Citation857 S.E.2d 51
Parties STATE of West Virginia, Plaintiff Below, Respondent v. Kevin Travis COSTELLO, Defendant Below, Petitioner
Docket NumberNo. 19-0326
Decision Date02 April 2021

857 S.E.2d 51

STATE of West Virginia, Plaintiff Below, Respondent
v.
Kevin Travis COSTELLO, Defendant Below, Petitioner

No. 19-0326

Supreme Court of Appeals of West Virginia.

Submitted: February 9, 2021
Filed: April 2, 2021


Matthew Brummond, Justin M. Collin, Appellate Advocacy Division, Public Defender Services, Charleston, West Virginia, Attorney for the Petitioner.

Patrick Morrisey, Attorney General, Andrea Nease Proper, Deputy Attorney General, Gordon L. Mowen, II, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.

Jenkins, Chief Justice:

857 S.E.2d 54

Petitioner Kevin Travis Costello ("Mr. Costello") was convicted on one count of DUI causing serious bodily injury. After the jury returned a guilty verdict, the State filed a recidivist information pursuant to the provisions of West Virginia Code section 61-11-18 (eff. 2000) and section 61-11-19 (eff. 1943) and this State's body of recidivist caselaw. The recidivist information alleged that Mr. Costello had previously been convicted of two prior felony offenses: (1) possession of heroin with intent to distribute in Maryland and (2) distribution of crack cocaine in the United States District Court for the Northern District of West Virginia. The jury convicted Mr. Costello as charged in the information. Thereafter, the circuit court sentenced him to life in prison, with mercy. This appeal followed.

857 S.E.2d 55

In this appeal, Mr. Costello raises three issues.1 First, he alleges that a mistrial should have been granted following the testimony of his probation officer because the officer testified to an undisclosed oral statement. Second, Mr. Costello contends that the State provided insufficient evidence of his prior Maryland conviction. Third, he argues that his life sentence is disproportionate.

Having considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we find no error. Accordingly, for the reasons set forth below, Mr. Costello's conviction and sentence are affirmed.

I.

FACTUAL AND PROCEDURAL HISTORY

On July 24, 2017, while driving on U.S. 340 in Jefferson County, West Virginia, Mr. Costello passed out, crossed the center line into oncoming traffic, hit an embankment, and then crashed into an oncoming vehicle. A two-year-old child, who was riding in the back seat of the oncoming vehicle, was seriously and permanently injured. Following the crash, witnesses observed Mr. Costello to be disoriented and speaking incoherently. According to the witnesses, when Mr. Costello got out of his vehicle, he was shirtless, his eyes were "droopy," and "his words were kind of jumbled." Once the responding officers arrived on scene, Mr. Costello was noted to be "stumbling," "mumbling," and "staggering." When the officers explained to him how to perform the field sobriety test, "[t]here were several times he was standing up falling asleep." Mr. Costello consented to a breath test that showed he had no alcohol in his system; however, he refused to submit to a blood draw. Mr. Costello was arrested and, during subsequent sobriety testing, fell asleep forty-two times.

After his arrest, Mr. Costello met with his probation officer because his suspected criminal conduct violated a number of terms relating to his probation. At the time of the crash, he had only recently been released from imprisonment and was on probation. During the meeting, Mr. Costello made the following written admissions to probation violations:

1) You did violate rule J of the rules and regulations governing your release on Probation in that on or about 07-24-17, you did use drugs to wit: Heroin;

2) You did violate rule [E] of the rules and regulations governing your release on Probation in that on or about 07-24-17, you did manifest behavior that threatened the safety of yourself or others, or that could result in your imprisonment; which caused you to be charged with DUI (narcotics) with felony serious bodily harm.

On January 16, 2018, Mr. Costello was indicted for DUI causing serious bodily harm. Prior to trial, Mr. Costello moved to exclude the written admissions on the ground that they were made during the course of a legal examination and were inadmissible. The circuit court disagreed with his reasoning and concluded that the admissions were voluntarily made as to his probation violations and were not the subject of a legal examination. The court further ruled that the first admission—that he used heroin—was admissible. However, the court ruled that Mr. Costello's admission to the second violation was inadmissible under West Virginia Rule of Evidence 403 because it "lack[ed] clarity and [was] ambiguously phrased in the disjunctive."

Mr. Costello's defense at trial was that he consumed the heroin after the accident occurred in order to dispose of the evidence. In contrast to Mr. Costello's theory, his probation officer testified, without giving prior notice to the State, that Mr. Costello gave an oral confession during their above-mentioned meeting. The probation officer testified that Mr. Costello confessed that he snorted heroin while driving home from work, blacked

857 S.E.2d 56

out, crashed into the victim's vehicle, and woke up sometime after the crash. Defense counsel did not object to the probation officer's testimony, and he did not move to strike it from the record of the proceedings. Rather, at the conclusion of this testimony, defense counsel requested a sidebar and then moved for a mistrial on the basis that the State improperly elicited this testimony in violation of the trial court's pretrial ruling on the admission of certain documentary evidence. The court denied the motion for a mistrial and stated:

I don't detect that what this witness said was in any way the same as what that portion of that document said. So I'm going to deny your motion ... as I recall what was redacted was not in any way what this witness just testified to regarding the snorting heroin, crossing bridge, blacking out, and waking after the car was flipped over ....

Following the close of the State's case, Mr. Costello renewed his motion for a mistrial on the same grounds as his earlier motion—that is, that the officer's testimony violated the court's prior ruling that Mr. Costello's statement that he violated Part E of the rules governing his early release from prison was inadmissible. The trial court again denied the motion and stated:

[The probation officer] testified that the defendant told him that he had ingested a substance, heroin, and that he recalls crossing the bridge and then the next thing he lost consciousness and woke when his car was upside down. The statement that was redacted says, and I quote, "You did violate Rule E of the rules and regulations governing your release on probation and that on or about 7-24-17 you did manifest behavior that threatened the safety of yourself or others, or that could result in imprisonment; which caused you to be charged with DUI, narcotics with felony serious bodily harm." I don't see those as even close to identical statements.

After the motion for mistrial was denied, Mr. Costello testified in his own defense. He admitted that he made a confession to his probation officer but claimed that he had been untruthful in order to shorten his jail sanction for violating his probation. At the close of all the evidence, Mr. Costello once again moved for a mistrial and also moved for acquittal. These motions were denied.

The jury convicted him of one count of DUI causing serious bodily injury, as alleged in the indictment. Mr. Costello moved for a new trial and later filed a supplemental motion for a new trial. At a hearing on the motion, he argued that the State's failure to disclose his confession was error, and that, had the confession been properly disclosed, he would have "[a]ltered [his] trial strategy in significant ways if that information had been presented ... before trial." Mr. Costello also argued that the circuit court should have held a pretrial hearing to determine if his confession was voluntary. The State countered that, during the prosecuting attorney's multiple conversations with Mr. Costello's probation officer prior to trial, he never once mentioned that he had given a full confession. The circuit court acknowledged that neither party was aware that the officer would testify about Mr. Costello's confession and, indeed, he did not accuse the State of intentionally withholding this evidence.

The court ultimately denied Mr. Costello's motion for a new trial and concluded that its pretrial ruling excluding his written statement did not include the oral confession he made to his probation officer and that, in fact, the motion to suppress sought to suppress Mr. Costello's statements only and, thus, could not be construed to encompass the officer's testimony about the confession that he consumed heroin before the accident. Regarding the voluntariness of the confession, the circuit court determined that no hearing was required because Mr. Costello failed to argue that the confession was involuntary.

In its order denying the motion for a new trial, the circuit court found that, "[a]t trial, [Mr.] Costello did not...

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2 practice notes
  • State v. Hess, 20-0457
    • United States
    • Virginia Supreme Court of Virginia
    • 12 Enero 2022
    ...wasting time, or needlessly presenting cumulative evidence." [5] As this Court recently affirmed in State v. Costello, 245 W.Va. 19, --, 857 S.E.2d 51, 59 (2021) (quoting State v. Guthrie, 194 W.Va. 657, 684, 461 S.E.2d 163, 190 (1995)), [w]hen analyzing trial errors, this Court views them ......
  • Jefferson Cnty. Vision, Inc. v. City of Ranson, 20-0789
    • United States
    • Virginia Supreme Court of Virginia
    • 6 Octubre 2021
    ...right to complain at a later time. State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996). State v. Costello, 245 W.Va. 19, ___, 857 S.E.2d 51, 58 (2021). Applying our well-established precedent, we decline to address this assignment of error which petitioners did not raise in the ......
2 cases
  • State v. Hess, 20-0457
    • United States
    • Virginia Supreme Court of Virginia
    • 12 Enero 2022
    ...wasting time, or needlessly presenting cumulative evidence." [5] As this Court recently affirmed in State v. Costello, 245 W.Va. 19, --, 857 S.E.2d 51, 59 (2021) (quoting State v. Guthrie, 194 W.Va. 657, 684, 461 S.E.2d 163, 190 (1995)), [w]hen analyzing trial errors, this Court views them ......
  • Jefferson Cnty. Vision, Inc. v. City of Ranson, 20-0789
    • United States
    • Virginia Supreme Court of Virginia
    • 6 Octubre 2021
    ...right to complain at a later time. State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996). State v. Costello, 245 W.Va. 19, ___, 857 S.E.2d 51, 58 (2021). Applying our well-established precedent, we decline to address this assignment of error which petitioners did not raise in the ......

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