State v. Donley

• Decision Date: 02 December 2004
• Docket Number: No. 31649.,31649.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Kristy DONLEY, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

607 S.E.2d 474

216 W.Va. 368

STATE of West Virginia, Plaintiff Below, Appellee v. Kristy DONLEY, Defendant Below, Appellant.

No. 31649.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 2004.

Decided December 2, 2004.

Darrell V. McGraw, Jr., Attorney General, Colleen A. Ford, Assistant Attorney General, Charleston, for the Appellee.

Robert Twitty, Public Defender Corporation, Weirton, for the Appellant.

ALBRIGHT, Justice:

This is an appeal by Kristy Donley (hereinafter "Appellant") from an order entered by the Circuit Court of Hancock County subsequent to a jury verdict finding the Appellant guilty of eight counts of concealment of minor children. The Appellant received a sentence of probation and home confinement. On appeal, the Appellant contends that (1) the doctrine of desuetude should render the statute under which she was convicted void; (2) the lower court erred by failing to sua sponte declare a mistrial after a juror read a portion of a newspaper article concerning the case; (3) the lower court erred by admitting a family court order into evidence; and (4) the prosecutor violated a pre-trial admonition regarding questioning the Appellant concerning a wedding ring. After thorough review of the record, briefs, and applicable precedent, we reverse the Appellant's conviction and remand to the lower court for a new trial.

I. Factual and Procedural History

Douglas and Kristy Donley were married in 1987, and they have two daughters, Ashley and Kadi. The parties were separated in 1999, a complaint for divorce was filed on February 17, 1999, and a final divorce order was entered by the Circuit Court of Hancock County on April 10, 2001. Subsequent to the divorce, Mr. Donley was granted visitation rights with the daughters, and guardian ad litem Cathryn Nogay was appointed. Based upon the Appellant's extensive interference with scheduled visitations between Mr. Donley and the daughters and her denial of access to the daughters, the family court¹ transferred custody of the children to Mr. Donley. The children resided with their father for approximately one and one-half months, during which the Appellant continued to interfere with custody and allegedly attempted to alienate the children from their father emotionally. Mr. Donley returned primary custody to the Appellant voluntarily due to the conflicts and adjustment difficulties.

During January, February, and March 2002, Mr. Donley arranged visitation through the West Virginia State Police, in an attempt to enforce his visitation rights. The parties were to meet at the police station to exchange custody of the children. If the Appellant did not appear by 9:15 a.m. on designated days, Mr. Donley was to accompany police officers to the Appellant's home to obtain the children. Mr. Donley asserted that on eight occasions, the Appellant failed to present the children for the scheduled visitation.

By order dated April 8, 2002, the Judge of the Family Court of Hancock County entered an order setting forth the visitation requirements to which the parties should be bound. In the April 2002 term, based upon the Appellant's alleged continued violation of the family court order, a Hancock County Grand Jury indicted the Appellant on eight felony counts of concealment of a minor child from a person entitled to visitation, in violation of West Virginia Code § 61-2-14d (1984) (Repl. Vol. 2000).² Subsequent to a January 2003 jury trial, the Appellant was convicted on all eight counts and received a sentence of probation and home confinement. The Appellant now appeals.

II. Standard of Review

The Appellant has presented several assignments of error, as briefly outlined above. Our review is governed, in part, upon syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), in which this Court stated as follows: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Our review of the admissibility of evidence is governed by syllabus point two of State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983), providing as follows: "`Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983)." Pursuant to those standards of review, we evaluate the Appellant's claims.

III. Discussion

A. Doctrine of Desuetude

The Appellant asserts that West Virginia Code § 61-2-14d, the statute under which she was convicted, should be rendered void under the doctrine of desuetude. Black's Law Dictionary 458 (7th ed. 1999) defines desuetude as "1. Lack of use; obsolescence through disuse. 2. The doctrine holding that if a statute or treaty is left unenforced long enough, the courts will no longer regard it as having any legal effect even though it has not been repealed." In syllabus point three of Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992), this Court explained:

Penal statutes may become void under the doctrine of desuetude if:

(1) The statute proscribes only acts that are malum prohibitum and not malum in se;

(2) There has been open, notorious and pervasive violation of the statute for a long period; and

(3) There has been a conspicuous policy of nonenforcement of the statute.

Thus, any evaluation must commence with an attempt to distinguish between crimes that are malum prohibitum and crimes that are malum in se."Crimes that are malum in se will not lose their criminal character through desuetude, but crimes that are malum prohibitum may." Printz, 187 W.Va. at 188, 416 S.E.2d at 726. A crime that is malum in se is "[a] crime or an act that is inherently immoral, such as murder, arson, or rape[,]" Black's Law Dictionary 971 (7th ed. 1999), while a crime that is malum prohibitum is "[a]n act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral." Id.

In the present case, the crime of which the Appellant was convicted, concealing a minor child in violation of a court order, defines a malum in se act, rather than a malum prohibitum act. The act of concealing a child is inherently wrong, even if not criminalized by a statute. Additionally, this case fails to satisfy the second prong of the Printz test, requiring a showing of "open, notorious, and pervasive violation of the statute for a long period...." 187 W.Va. at 183, 416 S.E.2d at 721, syl. pt. 3. The Appellant has presented no evidence that individuals are committing this crime without prosecution. Neither has she presented any evidence that there is "a conspicuous policy of nonenforcement." Id. at 183, 416 S.E.2d at 721, syl. pt. 3.³

Our review of the Appellant's assignment of error dealing with desuetude persuades us that the statute under which the Appellant was convicted is not void. As the Connecticut appellate court explained, "[t]he doctrine of desuetude, the concept that a statute may be void because of its lack of use, is founded on the constitutional concept of fairness embodied in federal and state constitutional due process and equal protection clauses." State v. Linares, 32 Conn.App. 656, 630 A.2d 1340, 1346 n. 11 (1993),overruled on other grounds by State v. Linares, 232 Conn. 345, 655 A.2d 737 (1995). In other words, "[t]he problem [of applying, or refusing to apply, the rubric of desuetude] must be approached in terms of that fundamental fairness owed to the particular defendant that is the heart of due process." United States v. Elliott, 266 F.Supp. 318, 326 (1967). We find no fundamental fairness violation in the present case. Based upon this Court's finding that the Appellant has failed to introduce evidence sufficient to satisfy the criteria outlined in Printz, we find that the Appellant's assertion regarding the doctrine of desuetude must fail.

B. Alleged Juror Bias

The Appellant also contends that the lower court erred by failing to sua sponte order a mistrial or to remove a juror once it was discovered that the juror had read a newspaper article concerning the trial. The lower court extensively questioned the juror concerning his perusal of the news article and specifically asked Appellant's counsel whether he had any further questions of the juror. Appellant's counsel replied, "No, I think you covered it." Most significantly, when asked by the lower court whether there was any objection to its finding that the juror "had not been prejudiced in any way," Appellant's counsel responded, "No, Your Honor." Specifically, the following exchange occurred:

Q. Mr. Twitty [Appellant's counsel], do you wish to inquire?

MR. TWITTY: No. I think you covered it.

JUDGE GAUGHN: I'm going to find that he's not been prejudiced in any way. The indictment contains all the same information in much greater detail than what that portion of the article has. I'm not going to excuse this juror. I don't believe he's been tainted in any way. Do you have any objection to that?

MR. TWITTY: No, Your Honor.

Thus, it is uncontested that no objection was preserved on the issue of juror prejudice. We further find that Appellant's counsel affirmatively waived any argument the Appellant may have had concerning the alleged juror bias.

The existence of such affirmative waiver and intentional relinquishment of the right to object to the court's findings precludes this Court from utilizing the plain error doctrine to reverse on this issue. As this Court stated in syllabus point eight of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995):

Under the "plain error" doctrine, "waiver" of error must be distinguished from "forfeiture" of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect

...