State v. Dumire
| Decision Date | 16 December 2020 |
| Docket Number | No. 19-1086,19-1086 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. George Elmer Dumire, Defendant Below, Petitioner |
Petitioner George Elmer Dumire, by counsel Belinda A. Haynie, appeals the Circuit Court of Preston County's April 10, 2019, conviction order and the November 5, 2019, sentencing order. Respondent the State of West Virginia, by counsel Scott E. Johnson, filed a response in support of the circuit court's orders. Petitioner filed a reply.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner was indicted by a Preston County grand jury on March 7, 2018, on six counts: (1) delivery of a controlled substance within 1000 feet of a school in violation of West Virginia Code § 60A-4-401(a)(i) and West Virginia Code § 60A-4-406(a)(2); (2) delivery of a controlled substance in violation of West Virginia Code § 60A-4-401(a); (3) aiding and abetting in the delivery of a controlled substance in violation of West Virginia Code § 60A-4-401(a)(i); (4) child neglect creating a substantial risk of serious bodily injury in violation of West Virginia Code § 61-8D-4(c); (5) aiding and abetting in the delivery of a controlled substance in violation of West Virginia Code § 60A-4-401(a)(i); and (6) child neglect creating substantial risk of serious injury in violation of West Virginia Code § 61-8D-4(c). These charges stemmed from drug crimes that occurred between August of 2017 and January of 2018.
The indictment provided that petitioner sold controlled substances to a confidential informant. These controlled buys were videoed pursuant to several Electronic Intercept Orders ("EIO") obtained by Deputy Powley, of the Preston County Sheriff's Department. Prior to trial, petitioner filed a motion to suppress evidence of the controlled buys, arguing that the EIO applications lacked probable cause. The circuit court conducted a July 20, 2018, hearing, and entered an order on October 24, 2018, which granted in part and denied in part, petitioner's motion to suppress. Specifically, the court concluded that a drug sale between petitioner and confidential informant M.M., on August 9, 2017, took place outside of petitioner's home so Deputy Powley did not need an EIO to record that criminal transaction and, therefore, it was admissible. However, the court concluded that the State's recording of the August 17, 2017, transaction was inadmissible. The circuit court found that an October 25, 2017, EIO application contained sufficient information to justify a finding of probable cause so that recording was admissible. Finally, the circuit court concluded there was probable cause for a January 9, 2018, EIO "based upon [Deputy Powley's] prior knowledge and observation of [petitioner's] alleged drug activity via the use of a confidential informant on several prior occasions."
A two-day trial was held in March of 2019. At trial, Deputy Powley testified that M.M. told the officer that M.M. could make purchases of controlled substances from petitioner. Based upon that information, Deputy Powley entered into a confidential informant contract with M.M. M.M. set up a purchase of three 10 mg Percocet tablets from petitioner on August 9, 2017, and he effected the purchase within 1,000 feet of Kingwood Elementary School. Later, on August 17, 2017, M.M. arranged to buy five 5 mg Percocet tablets from petitioner. On October 25, 2017, M.M. arranged to buy five 10 mg Percocet tablets from petitioner; this exchange occurred between M.M. and petitioner's seventeen-year-old daughter, H.D. Finally, on January 9, 2018, M.M. purchased four 10 mg Percocet tablets, but the pills were delivered to M.M. by T.D., petitioner's twelve-year-old son.1
At trial, M.M. testified that he had known petitioner for a decade and had purchased drugs from him throughout that time, roughly three to five times per week.2 M.M. testified consistent with Deputy Powley as to the controlled purchases noted above. With regard to the purchase on October 25, 2017, M.M. testified that, although petitioner's daughter delivered the substance, thisexchange was the result of a deal that he had arranged with petitioner. Likewise, M.M. testified that, while the pills were delivered by petitioner's son on January 9, 2018, he had made arrangements with petitioner to purchase the pills from petitioner.
During closing arguments, over the objection of petitioner's counsel, the circuit court gave the State's proposed jury instruction number ten as follows:
The Court further instructs the jury in drug-related offenses, the infiltration of drug related offenses, the infiltration of drug operations and limited participation in their unlawful practice by law enforcement personnel is a recognized and permissible means of detention and apprehension.
The jury convicted petitioner of delivery of a controlled substance within 1,000 feet of a school (count 1); delivery of a controlled substance (count 2); aiding and abetting in the delivery of a controlled substance (count 3); and aiding and abetting in the delivery of a controlled substance (count 5). However, the jury acquitted petitioner of the charge of child neglect creating a substantial risk of serious bodily injury (count 4) and found petitioner guilty of child neglect creating a substantial risk of bodily injury, a lesser included offense of child neglect creating a substantial risk of serious injury in violation of West Virginia Code § 61-8D-4(c) (count 6).
The State filed a recidivist information against petitioner. The recidivist jury returned a verdict against petitioner finding that petitioner had previously been convicted of first-degree manslaughter, grand larceny after a former conviction of a felony,3 and burglary.4 By order entered on November 5, 2019, the circuit court imposed a life sentence on petitioner as a habitual offender under count 1 of the indictment. The circuit court imposed an indeterminate one-to-fifteen year sentence of incarceration on count 2 to run consecutively to count 1. As to count 3, the circuit court imposed an indeterminate one-to-fifteen year sentence of incarceration to be served consecutively to count 2. As to count 5, the circuit court imposed an indeterminate one-to-fifteen year sentence of incarceration to run consecutively to count 3. As to count 6, the circuit court imposed a six month sentence of incarceration to run concurrently with count 5. The circuit court also assessed the costs of the proceedings to petitioner. Petitioner appealed.
On appeal, petitioner raises five assignments of error. First, petitioner maintains that the lower court erred when it denied his motion to suppress videotapes of the controlled buys, which petitioner claims were obtained in violation of Article III, § 6 of the West Virginia Constitution and West Virginia Code § 62-1F-1 to -9. Next, petitioner asserts that the lower court erred when it gave the State's proposed jury instruction number ten. Petitioner further complains that he was deprived of a fair trial because the prosecutor made improper remarks during closing arguments. Additionally, petitioner maintains that the imposition of a life sentence pursuant to West Virginia Code § 61-11-18(c) violates the proportionality clause of Article III, § 5 of the West Virginia Constitution. Finally, petitioner argues that he was denied a fair trial because of cumulative errorthat occurred during the course of the trial. We will address each of these assignments of error separately below.
Initially, petitioner asserts that the circuit court should have suppressed the audio/video recordings of the drug transactions on October 25, 2017, and January 9, 2018, because the State failed to prove probable cause when it obtained the EIOs. The State, however, maintains that the applications for the EIOs that were used to obtain the recordings contained a sufficient showing of probable cause and indicia of reliability as to the informant. As addressed below, we agree with the State.
On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.
Syl. Pt. 3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).
We recently considered a matter involving electronic interception and reaffirmed our prior holding that "[e]lectronic interception by law enforcement authorities of a person's conduct or oral communications in his or her home is governed by W.Va. Code §§ 62-1F-1 to -9." Syl. Pt. 1, State v. Howells, 243 W. Va. 1, 842 S.E.2d 205 (2020) (citation omitted).5
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