State v. Flack
| Decision Date | 26 November 2013 |
| Docket Number | No. 12–0829.,12–0829. |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Brandon FLACK, Defendant Below, Petitioner. |
OPINION TEXT STARTS HERE
Syllabus by the Court
An accomplice who has entered a plea of guilty to the same crime charged against the defendant may testify as a witness on behalf of the State. However, if the jury learns of the accomplice's guilty plea, then upon the motion of the defendant, the trial court must instruct the jury that the accomplice's plea of guilty cannot be considered as proving the guilt of the defendant, and may only be considered for proper evidentiary purposes such as to impeach trial testimony or to reflect on a witness' credibility. The failure of the trial court, upon request, to give such a limiting jury instruction is reversible error. To the extent that Syllabus Point 3 of State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748 (1982) is inconsistent, it is hereby modified.
Derrick W. Lefler, Esq., Gibson, Lefler & Associates, Princeton, WV, E. Ward Morgan, Esq., Bluefield, WV, for Petitioner.
Patrick Morrisey, Attorney General, Laura Young, Esq., Assistant Attorney General, for Respondent.
The defendant, Brandon Flack, appeals his convictions for the offenses of first degree murder, first degree robbery and criminal conspiracy. Upon thorough review of the record and consideration of the parties' briefs and arguments, we find no reversible error and affirm the defendant's convictions.
In late January 2011, the defendant and three other men devised a plan to burglarize the home of the defendant's uncle. On the evening of the planned burglary the four men gathered ski masks and two handguns, and then drove from their homes in Pulaski, Virginia, to Bluefield, West Virginia, where the uncle's house was located. Arriving shortly after midnight on January 29, 2011, the defendant and two of his accomplices donned the ski masks, obscuring their faces, and approached the back of the house. The fourth man remained in the car. Observing that lights were on in the house, one of the men knocked on the back door.
Inside the house were three seventeen-year-old boys, including Matthew Flack, a second cousin of the defendant's. Hearing the knock on the back door, Matthew peered through a curtain. Seeing the three masked men standing at the back door, Matthew ran to the second floor of the house where he retrieved a handgun.
As Matthew ran up the stairs, the defendant kicked in the back door. The three men then entered the house. The defendant went up the stairs and began struggling with Matthew. As Matthew and the defendant struggled, Jasman Montogmery, who was one of the defendant's accomplices, ran up the stairs, pulled out a pistol and shot Matthew in the face.
Although mortally wounded, Matthew shot and wounded the defendant. As Matthew lay on the floor dying, the defendant and his two accomplices ran out of the house and fled from the scene.
The three men took the defendant, who was bleeding heavily, to the Bluefield Regional Medical Center. In an effort to explain the shooting, the men concocted a story that the defendant had been shot in a drive-by-shooting. As the defendant received treatment, the men returned to the car where they waited in the parking lot. Police officers arrived at the hospital to investigate and went to the parking lot to talk with the three men. Noticing blood on the inside and outside of the car, the officers asked for and were given permission to search the vehicle. The officers found two handguns and ski masks in the car.
The defendant was indicted for first degree murder, burglary, first degree robbery and conspiracy to commit first degree murder. The defendant pled not guilty and his case proceeded to trial. During jury selection defense counsel objected to the venire, and to the jury pool as a whole. Noting that the defendant is African American, defense counsel argued that both the jury pool and the venire were “absolutely devoid of any African–American participants.” 1 The State responded 2 by noting that the jury pool was based on Department of Motor Vehicle and voter registration records, and that it was “completely race neutral.” The trial court overruled the objection, finding that the pool was randomly drawn and selected, and that there was no evidence of any intentional discrimination in how the jury pool was drawn.
At trial, the State's witnesses included Jasman Montgomery (the accomplice who shot and killed Matthew Flack) and Dr. James Kaplan, the State Medical Examiner.
Montgomery pled guilty to first degree murder and received a life sentence with the possibility of parole after serving fifteen years. As part of his plea agreement, Montgomery testified for the State and testified about his guilty plea before the jury. Further, he discussed the planning of the robbery, the forced entry into the Flack residence, his shooting of Matthew Flack, and testified about driving the defendant to the hospital. At no time during the trial did defense counsel request that the jury be given a limiting or cautionary instruction regarding the consideration which the jurors could—or could not—give to Montgomery's testimony that he had pled guilty to murdering Mr. Flack.
Dr. James Kaplan, who did not conduct the autopsy of Matthew Flack, testified that Mr. Flack died as a result of a gunshot wound. The autopsy report was not introduced into evidence, and the pathologist who prepared the report did not testify. Defense counsel did not object to Dr. Kaplan's testimony.
The jury found the defendant guilty of all charges set forth in the indictment. The defendant then moved for a new trial. The defendant's motion argued that his rights were violated when the trial court failed to sua sponte give the jury a limiting instruction regarding Montgomery's testimony about his guilty plea. The defendant also argued that his constitutional rights were violated because the jury panel lacked African–American members.3
On June 7, 2012, the trial court denied the motion for a new trial. The trial court found that the defendant failed to object to Montgomery's testimony about his guilty plea, and concluded that Montgomery's testimony was more helpful to the defendant than prejudicial. It was more helpful, the trial court reasoned, because Montgomery admitted that he personally shot and killed Matthew Flack, and even testified that the defendant did not have a handgun and that the defendant had admonished Montgomery for having a handgun. The trial court further found that plain error was not triggered because an
analysis of every witnesses' trial testimonies reveals no unfairness and certainly no doubt that the jury's verdict was proper and was NOT disproportionately affected by Mr. Montgomery's testimony. The evidence was sufficient and substantial to convict the defendant.
(Emphasis in original).
Further, the trial court found that the defendant failed to present any evidence that African Americans were “systematically excluded” from jury selection in Mercer County. The trial court noted that Mercer County “employs a state-wide system that draws names for jury duty in a racially neutral manner” which is that the pool is gathered from random drawings of voter and Department of Motor Vehicle records.
The trial court later dismissed the burglary offense after finding that it was a lesser included offense of the felony murder charge ( i.e., it was the predicate felony). The defendant was sentenced to life imprisonment with eligibility for parole after fifteen years for the murder offense, a determinate term of forty years for the first degree robbery offense, and an indeterminate term of one to five years on the conspiracy offense. The trial court ordered all sentences to run consecutively. The defendant now appeals.
The defendant presents four assignments of error in his appeal: (1) that the failure to give a limiting instruction regarding Montgomery's testimony about his guilty plea constitutes reversible error; (2) that his jury was not drawn from a fair cross section of the community; (3) that Mercer County does not comply with the statutory requirements counties are required to follow when assembling a jury pool; and (4) that Dr. Kaplan's testimony violated his confrontation rights. While these assignments of error are subject to particular standards of review set forth in our discussion, infra, we observe that there are also general standards guiding our review of the findings and rulings of a trial court.
In State v. White, 228 W.Va. 530, 536, 722 S.E.2d 566, 573 (2011), we observed that
Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).
This Court has also noted that
[i]n reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
We now turn to the issues presented in this appeal.
The defendant did not request a limiting instruction at the time of Montgomery's testimony, or during the trial court's jury...
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