State v. Duke
| Decision Date | 14 April 2022 |
| Docket Number | 21-0162 |
| Citation | 873 S.E.2d 867 |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent, v. Shaun Richard DUKE, Defendant Below, Petitioner. |
| Court | West Virginia Supreme Court |
Matthew Brummond, Esq., Public Defender Services, Charleston, West Virginia, Counsel for Petitioner
Patrick Morrisey, Esq., Attorney General, Caleb A. Seckman, Esq., Assistant Solicitor General, Andrea Nease Proper, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent
The petitioner, Shaun Richard Duke, was convicted by a jury on five drug-related charges. He appeals the January 28, 2021, sentencing order entered by the Circuit Court of Nicholas County, West Virginia.1 He argues that his conviction and sentence violated the Double Jeopardy Clause of the United States and West Virginia Constitutions by permitting the jury to convict him of both delivery and delivery causing death; that the circuit court erred in failing to exclude the "jailhouse snitch's testimony" that the petitioner premeditated a murder of the victim on his own, because the evidence was irrelevant to the unintentional and vicarious homicide charged in the indictment, and concerned an uncharged bad act; and that the respondent State of West Virginia's ("the State") evidence was insufficient to prove that he knowingly "contributed to the criminal act" or conspired with the drug dealer.
Upon careful review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we find the circuit court erred in permitting the petitioner to be convicted of both delivery of a controlled substance2 and delivery of a controlled substance causing death3 because the convictions in this case violated the constitutional prohibition against putting an individual twice in jeopardy. We further determine that there is no error in regard to the petitioner's remaining two issues. Therefore, we reverse the petitioner's convictions in regard to both Counts 1 and 2, pertaining to delivery of controlled substances methamphetamine and Fentanyl, and remand the case to the circuit court for resentencing; the remainder of the petitioner's convictions and sentences are affirmed.
In this case, the petitioner permitted Erica Westfall, a drug dealer, to use his vehicle in order to carry out the delivery of methamphetamine and Fentanyl to Teddy Nutter ("the victim") and his girlfriend, Ann Russell. Both the petitioner and Ms. Westfall were implicated in the delivery of those controlled substances to the victim, which resulted in the victim's death due to methamphetamine and Fentanyl intoxication.
A three-day trial began on August 25, 2020. The evidence introduced included the testimony of Sgt. Jarred S. Bennett with the Nicholas County Sheriff's Department. He testified that on September 24, 2019, he responded to a call that a deceased person had been dropped off at Summersville Regional Medical Center's emergency room. Two individuals had dropped the body and fled the scene. Sgt. Bennett stated that from a description of the vehicle involved in dropping the body, Ms. Russell, the victim's girlfriend, was located and stopped.4 Sgt. Bennett testified that Ms. Russell agreed to give a statement.5 She told Sgt. Bennett that Erica Westfall came to her trailer between 4:00 a.m. and 5:00 a.m. on September 24 to sell drugs. Ms. Russell also told the officer that Ms. Westfall was driven to her home by the petitioner.6
Ms. Westfall also testified that she suffered from drug addiction and had sold methamphetamine and heroin to support herself for approximately a year and had sold drugs to both the victim and Ms. Russell. She met the petitioner four to five months prior to the events herein and stated that he would stop by her home a couple of times a week. Ms. Westfall did not have a car and would sometimes get rides with the petitioner in his car, which she described as a white Oldsmobile. She stated that she would give the petitioner drugs or cash in exchange for the transportation but never sold drugs to him.
Ms. Westfall testified that on September 24, 2019, she received a text from Ms. Russell, who wanted to buy heroin.7 She stated that the petitioner showed up at her house sometime just after midnight on September 24 and she informed him that she had just received a delivery of methamphetamine and heroin. She stated that because she had been fighting with her roommate, she and the petitioner left the house almost as soon as he arrived. They drove to a remote area of Nicholas County known as "Gilboa Holler," parked the petitioner's car, and got high taking drugs. Both she and the petitioner spent about three hours talking while smoking methamphetamine and heroin, which she provided to him in exchange for the use of his vehicle. Ms. Westfall stated that during this time her intention was to "sell what [she] needed" to Ms. Russell and the victim. She indicated that even though she did not recall "the nature of ... [the] conversations that evening[ ]" with the petitioner, she assumed that her decision to stop by Ms. Russell's house to sell drugs came up in their conversation.8 Ms. Westfall again stated during cross-examination that she believed she and the petitioner discussed stopping by Ms. Russell's, adding that "I didn't say for sure that I was going to stop by there, but I mentioned it." Ms. Westfall and the petitioner left this area with Ms. Westfall driving, and although she was going to get cigarettes, she turned around and drove to Ms. Russell's house instead. The petitioner was "in and out" of sleep when they drove to Ms. Russell's house.
Ms. Westfall stated that when they arrived at Ms. Russell's home she went to the door alone, leaving the petitioner in his car. She stated that she let both the victim and Ms. Russell know that the petitioner was in the car and asked them if it was okay if he came into the home too. She then returned to petitioner's car to get her scales out of her purse and to get the petitioner. Ms. Westfall testified that the petitioner could see her remove the scales from her purse and that she "believe[d] that he knew what [she] w[as] going to do." The petitioner accompanied her back into Ms. Russell's home, where Ms. Westfall and the victim had a discussion about what he wanted to buy "drug-wise." Ms. Westfall stated that the victim wanted to try the methamphetamine, so they smoked some of it before he purchased drugs from her. As she stated, "I gave Teddy the drugs, and he gave me the money." She further stated that the victim, Ms. Russell, and the petitioner were all present during this transaction. Thereafter, Ms. Westfall, Ms. Russell, and the victim all proceeded to get high using methamphetamine. Ms. Westfall stated that they left the house around 5:00 a.m., after staying there about forty-five minutes.9
After leaving Ms. Russell's home, Ms. Westfall and the petitioner parked at a vacant house next door to Ms. Westfall's home and took more drugs. Ms. Russell came by Ms. Westfall's home around 8:30 or 9:00 in the morning, asking if Ms. Westfall and the petitioner wanted to go with her to a gas station.10 They went to a gas station in Ms. Russell's car, after which they returned to Ms. Westfall's home, the petitioner left in his vehicle, and Ms. Russell stayed another hour or so.
Ms. Russell also testified during trial. She stated that she met the victim and began dating him while both were in a drug court program. She admitted that they both used drugs while living together, including methamphetamine and heroin. On September 23, after she and the victim took a drug screen they went home and "smoked a little bit of meth[.]" Ms. Russell admitted to texting Ms. Westfall about buying methamphetamine and heroin from her. Although Ms. Westfall responded that she only had methamphetamine, Ms. Russell did not receive that text from her; nonetheless, Ms. Russell testified that Ms. Westfall showed up at her trailer in the petitioner's vehicle in the early morning hours of September 24 to complete the drug transaction. Ms. Russell confirmed that Ms. Westfall was alone when she came into the residence and that the petitioner was outside asleep in the vehicle. Ms. Westfall asked her if the petitioner could come into her trailer. Ms. Westfall then returned to the vehicle to tell the petitioner he could come in and to get her scales from her purse, which were needed to complete the drug transaction. When the petitioner went into the house he sat beside the victim, who Ms. Russell stated knew the petitioner, and the two men began to converse.
Thereafter, the victim, Ms. Westfall and Ms. Russell proceeded to get high. Ms. Russell testified that after the...
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