State v. Dunn, 14–1037.

• Citation: 786 S.E.2d 174,237 W.Va. 155
• Decision Date: 13 April 2016
• Docket Number: No. 14–1037.,14–1037.
• Parties: STATE of West Virginia, Respondent v. Donald DUNN, Petitioner.
• Court: Supreme Court of West Virginia

237 W.Va. 155
786 S.E.2d 174

STATE of West Virginia, Respondent
v.
Donald DUNN, Petitioner.

No. 14–1037.

Supreme Court of Appeals of West Virginia.

Submitted April 5, 2016.
Decided April 13, 2016.

David L. White, Charleston, WV, for Petitioner.

Kristen Keller, Raleigh County Prosecuting Attorney, Beckley, WV, for Respondent.

DAVIS, Justice:

This a criminal appeal by Petitioner, Donald Dunn, from a judgment of the Circuit Court of Raleigh County. Mr. Dunn was convicted of the first degree murder of his stepfather and sentenced to life in prison without mercy. He was also convicted of attempted murder of his mother and sentenced to three to eighteen years in prison. The sentences were ordered to run consecutively. Mr. Dunn testified at trial and admitted to committing the crimes. Here, Mr. Dunn has asserted the following grounds as error: (1) denial of a continuance, (2) excluding certain testimony, (3) admitting evidence of jail telephone calls, (4) refusing to grant a mistrial, and (5) refusing to give a jury instruction on mercy. After a careful review of the briefs, the record submitted on appeal and listening to the argument of the parties, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are centered around Mr. Dunn's failed attempt to obtain a four year college degree. Mr. Dunn initially attended New River Community College. After two years at the college, he transferred to Marshall University in 2010. After one semester at Marshall, Mr. Dunn dropped out because of poor grades. Mr. Dunn did not tell his parents, Mark and Johanna McDermott,¹ that he had dropped out of college. For approximately two years, during alleged breaks from college, Mr. Dunn would return to his parents' home in Stanaford, West Virginia. At some point, Mr. Dunn informed his parents that he was going to graduate on May 25, 2013. However, a few weeks before that date, Mr. Dunn began concocting a plan to kill both of his parents. He did so because he “thought it would be easier to stage the murder suicide than it was for [him] to tell ‘em [he dropped out of college].”

786 S.E.2d 177

Mr. Dunn decided to stage the murder at his parents' home and make it appear as though his mother killed his stepfather and then killed herself. To do this, he planned to first shoot his stepfather twice and then shoot his mother once in the head. Mr. Dunn had written a suicide note for his mother in which she confessed to killing her husband. The handgun that Mr. Dunn was planning to use was taken from his parents' bedroom about two weeks before the murders were to take place. Because Mr. Dunn wanted to make it appear like a murder-suicide, he loaded only three bullets in the gun.

On the morning of Mr. Dunn's alleged graduation, May 25, his mother left the home on an errand. While she was away, Mr. Dunn killed his stepfather by shooting him twice in the head as he sat in a chair reading a book. When his mother returned home, Mr. Dunn met her outside and told her that he had a surprise for her. Mr. Dunn then walked his mother into the home and told her to sit down and close her eyes. After his mother complied, Mr. Dunn placed the gun to her head and pulled the trigger. The gun misfired and the bullet jammed in the gun. Mr. Dunn then told his mother that he had killed his stepfather, and that he had dropped out of college. Mr. Dunn's mother told him that she would tell the police she had killed her husband. Mr. Dunn agreed to this and allowed his mother to dial 911. While on the phone, Mrs. McDermott informed the 911 dispatcher that she had killed her husband.

When the police arrived at the crime scene, Mrs. McDermott told the police that she had killed her husband. Mrs. McDermott was then placed in a police car while the crime scene was being investigated. While in the police car, Mrs. McDermott informed the police that Mr. Dunn killed her husband and had attempted to kill her. Mr. Dunn and his mother were eventually taken to police headquarters in separate police cars. When Mr. Dunn arrived at police headquarters, he gave a statement initially denying any involvement with the killing. However, after he was told that his mother accused him of the killing, he confessed to killing his stepfather and attempting to kill his mother.

In June of 2013, Mr. Dunn was indicted on charges of first degree murder and attempted murder.² The case was tried before a jury in August of 2014.³ During the trial, Mr. Dunn testified and confessed to the jury that he killed his stepfather and attempted to kill his mother. Specifically, on direct examination, Mr. Dunn responded to questions by defense counsel as follows:

Q. You shot your stepfather and killed him?

A. Yes, sir.

Q. And tried to kill your mom?

A. Yes, sir.

The jury returned a verdict convicting Mr. Dunn of first degree murder through the use of a firearm. The jury did not recommend mercy. Mr. Dunn also was convicted by the jury of attempted murder through the use of a firearm. The trial court sentenced Mr. Dunn to life in prison without parole and a consecutive sentence of three to eighteen years in prison. This appeal followed.

II.

STANDARD OF REVIEW

Mr. Dunn has asserted five assignments of error. The issues presented have specific review standards. Therefore, we dispense with setting out a general standard of review. Specific standards of review will be discussed separately as we address each assignment of error.

III.

DISCUSSION

A. Denial of Continuance

The first issue raised by Mr. Dunn is that the trial court committed error in denying his motion for a continuance of the trial. According to Mr. Dunn's brief, he requested

786 S.E.2d 178

a continuance (1) because the State untimely disclosed it would use evidence from over 400 telephone calls he made while in jail, and (2) because he was under the influence of a narcotic pain medication. We will address each issue separately.

As an initial matter, we note that the standard of review with respect to a determination regarding a motion for continuance is well established. We have long held that,

[t]he granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made.

Syl. pt. 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919). See also Syl. pt. 2 State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979) (“A motion for continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of discretion.”).

1. Untimely disclosure of telephone calls. During a pretrial hearing held on July 28, 2014, the State informed the trial court that it was seeking an order that authorized disclosure of the recordings of telephone calls Mr. Dunn had while in jail awaiting trial.⁴ Defense counsel made an oral motion during the hearing asking for a brief continuance so that he could have time to review the telephone calls.⁵ At the time of the oral motion, it was not known how many phone calls Mr. Dunn had made. In his brief, Mr. Dunn has pointed out that over 400 telephone conversations were recorded.⁶

In denying the motion for continuance, the trial court noted that defense counsel only sought a “brief” continuance. However, the court pointed out that, because its calendar was set with previously scheduled trials and other matters, a continuance would not be brief. Instead, the court found that it would be at least five to six months before the case could be rescheduled for trial. Consequently, the court denied the motion. In doing so, the court made clear that if an issue arose involving the telephone calls, “I might stop a day to give you some time, but I am not going to continue this case ad infinitum. ” Based upon the particular facts of this case, we do not believe the court abused its discretion in denying a continuance to allow defense counsel to review the telephone calls.

We noted in In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996), that “[t]rial judges necessarily require a great deal of latitude in scheduling trials ..., not the least of which is that of assembling the witnesses and lawyers at the same time. This burden counsels against continuances except for compelling reasons.” Tiffany Marie, 196 W.Va. at 237 n. 24, 470 S.E.2d at 191 n. 24 (internal quotations and citation omitted). We also noted in State v. Bush, supra, several factors that may be considered in determining whether a trial court abused its discretion in denying a defendant a continuance. For purposes of this case, the most important and relevant factor cited by Bush is a consideration of “the likelihood of prejudice from the denial.” 163 W.Va. at 178, 255 S.E.2d at 545 (citation omitted). We crystalized the prejudice requirement in Syllabus point 1 of State v. Schrader, ...