State v. Dorsey

• Decision Date: 18 July 2014
• Docket Number: No. 12–1486.,12–1486.
• Citation: 234 W.Va. 15,762 S.E.2d 584
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Lamar DORSEY, Defendant Below, Petitioner.

234 W.Va. 15

762 S.E.2d 584

STATE of West Virginia, Plaintiff Below, Respondent

v.Lamar DORSEY, Defendant Below, Petitioner.

No. 12–1486.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 28, 2014.

Decided June 4, 2014.

Concurring Opinion of Justice Benjamin

July 18, 2014.

Syllabus by the Court

1. “When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore the circuit court's factual findings are reviewed for clear error.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

2. “In contrast to a review of the circuit court's factual findings, the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article II of the West Virginia Constitution is a question of law that is reviewed de novo. Similarly, an appellate court reviews de novo whether a search warrant was too broad. Thus, a circuit court's denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or based on the entire record, it is clear that a mistake has been made.” Syl. Pt. 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

3. “The Fourth Amendment of the United States Constitution, and Article III, Section 6 of the West Virginia Constitution protect an individual's reasonable expectation of privacy.” Syl. Pt. 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

4. An individual who is unwelcome in the dwelling of another, or who has procured or maintained access to the dwelling through coercion, threats of violence or exploitation, does not have an expectation of privacy that society is willing to recognize as reasonable and, therefore, cannot claim the protections afforded by the Fourth Amendment of the United States Constitution and Article III, Section 6 of the West Virginia Constitution.

5. “There is no absolute right under either the West Virginia or the United States Constitutions to plea bargain. Therefore, a circuit court does not have to accept every constitutionally valid guilty plea merely because a defendant wishes to so plead.” Syl. Pt. 2, State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995).

6. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

Crystal L. Walden, Esq., Deputy Public Defender, Office of Public Defender, Charleston, WV, for Petitioner.

Patrick Morissey, Esq., Attorney General, Benjamin F. Yancey III, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

LOUGHRY, Justice:

This case is before this Court upon the appeal of the petitioner and defendant below, Lamar Dorsey (hereinafter the “petitioner”), from the November 9, 2012, final order of the Circuit Court of Logan County, sentencing him for his jury convictions of two counts of conspiracy in violation of West Virginia Code § 61–10–31 (2010) ¹ and two counts of delivery of crack cocaine, a controlled substance, in violation of West Virginia Code § 60A–4–401 (2010).² In this appeal, the petitioner asserts that the circuit court erred by (1) denying his motion to suppress evidence seized from the residence where he was staying at the time of his arrest; (2) summarily rejecting a plea agreement that the petitioner was allegedly willing to accept; and (3) allowing the State to proffer evidence it sought to admit at trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence³ and ruling on the admissibility of that evidence based solely on the proffer. Upon review of the record, the parties' briefs and oral argument, as well as the pertinent authorities, we find no reversible error and affirm the final order.

I. Factual and Procedural Background

In October 2010, the petitioner, a resident of Columbus, Ohio, began staying intermittently with Joseph Scott Osborne, a resident of Logan County, West Virginia. According to Mr. Osborne, the petitioner was staying with him to sell narcotics from his residence. In exchange for allowing the petitioner to stay in his house and run his drug operation, Mr. Osborne received crack cocaine from the petitioner. One of the petitioner's customers during this period was Wendi Gillespie, a neighbor of Mr. Osborne. In December 2010, the petitioner began staying with Ms. Gillespie at her trailer in Kistler, West Virginia,⁴ and continued to operate his drug trade from her home. ⁵ The petitioner and Ms. Gillespie had no prior social relationship, and their only previous interactions had occurred when Ms. Gillespie purchased narcotics from the petitioner. In exchange for allowing the petitioner to stay in her home, Ms. Gillespie was paid $20.00 in crack cocaine for every $100.00 of crack cocaine sold by the petitioner. Additionally, the petitioner supplied Ms. Gillespie with other drugs, including marijuana, and helped pay at least one of her utility bills.

In January of 2011, the West Virginia State Police received two separate tips from known informants that the petitioner was selling crack cocaine out of Ms. Gillespie's residence. Believing that the statements of the informants alone were not sufficient to secure a warrant, the State Police decided to seek the cooperation of Ms. Gillespie by visiting her residence and conducting a “knock and talk.” ⁶ Trooper J.K. Harris, accompanied by three other officers—Troopers Hensley, Dick, and Powers—drove to Ms. Gillespie's home on January 21, 2011, for that purpose.⁷

Upon arrival, the four officers took positions on both sides of Ms. Gillespie's home. During proceedings below, Trooper Harris testified that the three other officers surrounded the home to cover the exits of the residence and to ensure officer safety. He then walked onto the front porch of the home and knocked on the door. According to Trooper Harris, no one came to the door immediately, but he heard activity inside the trailer. As Trooper Harris knocked a second time, Trooper Hensley, who was stationed at the rear of the residence, saw an individual run through the house, and heard the sound of a toilet flushing. Trooper Harris knocked once again and announced that he was with the State Police and asked Ms. Gillespie to open the door. Ms. Gillespie responded that she was coming to open the door.

Ms. Gillespie testified during the proceedings below that when the State Police arrived at her residence, the petitioner ran into her bedroom where she was smoking marijuana. The petitioner informed her that the police were outside, and then threatened to kill her if she opened the door, making a throat-cutting motion across his neck while delivering the threat. Ms. Gillespie stated that after a few minutes delay, she asked who was outside. Ms. Gillespie further testified that after Trooper Harris identified himself as a police officer, she waited a few more minutes and then opened the front door to the residence and the officers entered her home.

With the knowledge that there were other individuals on the premises and with their whereabouts unknown, Trooper Harris and his fellow officers proceeded to secure the residence and the persons therein. In the bathroom of the home, Trooper Harris found the petitioner standing in front of the toilet. While securing the petitioner, Trooper Harris observed the toilet running and a substance believed to be marijuana floating in the water. Additionally, one other individual, Joseph Hurley, was found on the premises. Mr. Hurley later gave a statement admitting that he was there to purchase crack cocaine from the petitioner.

After securing the petitioner and Mr. Hurley, Trooper Harris spoke with Ms. Gillespie and informed her that he had received information that crack cocaine was being sold out of her residence by the petitioner. Trooper Harris then asked Ms. Gillespie for permission to search the premises, which she granted voluntarily.⁸ Upon searching the home, the officers found $2,204 in cash and a digital scale and razor blade with cocaine residue on both items in a bedroom. They also found a 9mm handgun hidden beneath a washer and dryer. After taking statements from Ms. Gillespie and Mr. Hurley, the petitioner was arrested. He was indicted on drug-related charges in January 2012. Prior to his trial, the...