State v. Hoard

• Docket Number: 21-0764,No. 21-0764
• Decision Date: 28 April 2023
• Citation: 889 S.E.2d 1,248 W. Va. 428
• Parties: STATE of West Virginia, Plaintiff Below, Respondent, v. Aaron Glenn HOARD, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

248 W.Va. 428

889 S.E.2d 1

STATE of West Virginia, Plaintiff Below, Respondent, v. Aaron Glenn HOARD, Defendant Below, Petitioner.

No. 21-0764

Supreme Court of Appeals of West Virginia.

Submitted: February 8, 2023

Filed: April 28, 2023

William David Wilmoth, Esquire, Steptoe & Johnson PLLC, Wheeling, West Virginia, Christopher S. Etheredge, Esquire, Steptoe & Johnson PLLC, Charleston, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esquire, Attorney General, Lara K. Bissett, Esquire, Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent

Armstead, Justice:

On November 3, 2019, Aaron Glenn Hoard("Hoard") fired multiple gun shots, four of which struck and killed Grant William Felton, Jr.("Grant").As a result, Hoard was convicted by a Preston County jury of second-degree murder and was sentenced to a determinate term of 40 years.Following trial, the circuit court denied Hoard's motion for a new trial or, in the alternative, motion for judgment of acquittal and he appeals the circuit court's denial of that motion, raising four issues.First, he alleges that the State improperly referenced his right to pre-trial silence at two points during his trial.Second, he argues that the jury instructions were insufficient, unsupported, and incorrect.Third, he avers that he was denied a fair trial because of errors made regarding empanelment of the jury.Finally, Hoard asserts that because of cumulative errors during his trial, he was denied his right to a fair trial.

Having diligently reviewed the entire voluminous record on appeal, the briefs and arguments of the parties, all other matters of record, and the applicable legal authority, we find that the circuit court did not err and affirm the circuit court.

I.FACTUAL AND PROCEDURAL BACKGROUND

In the early evening of November 2, 2019, Hoard, his girlfriend, Machaela Jefferies("Jefferies"), and his friend, Nathan Lanham("Lanham"), left Hoard's home outside of Morgantown, West Virginia to meet at Brian Teets’ ("Teets"), and his girlfriend, Kristina Andrews’ ("Andrews"), home on the Brandonville Pike a few miles outside of Terra Alta, West Virginia.¹The Hoard Group then went to Shorthorns Saloon ("Shorthorns") in Terra Alta.

When the Hoard Group arrived at Shorthorns, it was full of patrons and the Hoard Group positioned itself in one of the few remaining spaces inside of Shorthorns – in front of the stage.As the evening progressed, Hoard became more and more rowdy and unwieldy, knocking into patrons on the dance floor and colliding with Sharon Roy, a patron seated on a bar stool, with such force that she fell to the floor.Not long after, Grant approached Hoard and asked him to calm down or leave.Shiloh Robertson("Robertson"), Shorthorns’ bouncer, observed the Hoard Group and Hoard's behavior and also saw Grant approach Hoard.Robertson noted that Hoard appeared angry after his conversation with Grant.Following Grant's discussion with Hoard, Shorthorns’ owner Jason Peaslee("Peaslee"), signaled Robertson to remove Hoard from Shorthorns.

By that time, it was the early morning hours of November 3, 2019.Robertson approached Hoard and told him he needed to leave.Robertson placed his hands under Hoard's arms and started to physically escort him from Shorthorns.At about the same time someone struck Robertson in the back of the head.Robertson continued to escort the Hoard Group outside of Shorthorns and ten to twelve people followed along with the remainder of the Hoard Group.Once outside, the Hoard Group began walking toward Hoard's truck, which was parked in a parking area adjacent to Shorthorns and the railroad tracks.After the Hoard Group left Shorthorns, the ten to twelve people continued to mingle outside Shorthorns’ entrance.

Once inside Hoard's truck, the Hoard Group began recounting the events that had just transpired.At that time, Teets realized he was missing his hat and vest and Andrews determined that she did not have her phone, both having left those items inside Shorthorns.Andrews then asked Jefferies – who was driving the truck – to pull to the front of Shorthorns so they could retrieve these items.Thus, Jefferies parked Hoard's truck in the road across the street from Shorthorns and Hoard and Teets exited the truck and walked toward Shorthorns and the people still outside.

Hoard and Teets were immediately met by the people gathered outside of Shorthorns and others who came from inside as word quickly spread that they had returned and were trying to get inside Shorthorns.As the crowd focused its attention on Teets, Hoard walked across the street, away from the people and away from Shorthorns.However, after a brief period of time, Hoard walked back across the street and attempted to enter Shorthorns.He was met by Grant and Peaslee.Grant again told Hoard he needed to leave.Hoard retorted that he would "take you all on" or "take you all out."As a result of this statement, Grant grabbed Hoard by the shoulders and physically moved Hoard across the street toward his truck.Grant and Hoard were followed by D.J. Wilt("Wilt") and Mike Felton("Felton"), who were escorting Teets toward Hoard's truck.

Hoard suddenly broke away from Grant who then followed Hoard to the passenger side of his truck.Hoard opened the passenger side door and Jefferies dove out of the truck on top of Grant.Grant was knocked to the ground.Hoard then reached into the passenger floorboard of his truck, where his briefcase was located.Inside his briefcase was a gun, which Hoard retrieved, climbed on the running board, and fired four shots into the air.Immediately after those four shots were fired, Grant, Wilt, and Felton attempted to disarm Hoard.Felton testified that he tried to push Hoard's arm upward but Hoard lowered the gun and fired four shots into Grant, mortally wounding him.²Wilt then wrested the gun from Hoard, Jefferies climbed back into the driver's seat of the truck, and Hoard and Jefferies fled the scene, with Jefferies driving the truck to Teets’ home.As they fled, they left behind over half of the Hoard Group – Lanham, Teets, and Andrews, who had exited the truck.

Lieutenant Rodeheaver ("Rodeheaver") of the Preston County Sheriff's Department arrived on scene and took over as lead investigator.He received information that Hoard was the shooter and issued a BOLO ³ for him.He also sought assistance from the West Virginia State Police crime response team, who, led by Trooper Hall, assisted in gathering crime scene evidence.To ascertain the status of Grant, Rodeheaver left the scene and went to Preston Memorial Hospital in Kingwood where he was informed that Grant had succumbed to his wounds.Thereafter, Rodeheaver obtained an arrest warrant for Hoard, charging him with the first-degree murder of Grant.

Because Hoard lived outside of Preston County, contact was made with the Monongalia County Sheriff's Department on November 3, 2019, to conduct surveillance of Hoard's home and attempts were made to "ping" both Hoard and Jefferies’ phones to ascertain their location but both phones were turned off.Additionally, both Hoard and Jefferies discontinued their Facebook accounts.Eventually, on November 4, 2019, Hoard turned himself in to the Monongalia County Sheriff's Department.At some point prior to his arrest, Hoard removed the distinctive truck topper from his truck.

Hoard was indicted by a Preston County Grand Jury on one count of first-degree murder on June 23, 2020, and the matter was set for trial.Prior to trial, Hoard moved for a change of venue, or in the alternative, to conduct a telephone survey to determine the "climate" in Preston County surrounding the upcoming trial.The proffered purpose of the survey request was to conduct a random telephonic survey of 300 Preston County residents in hopes of gathering support for a motion for a change of venue.In support of this motion, Hoard attached a memorandum prepared by his consultant, Orion Strategies, that described the social media interactions regarding the murder that it had found during its research.The circuit court held the motion for change of venue in abeyance until after jury selection and denied the motion for the survey.⁴

Jury selection began on Wednesday, May 5, 2021.For jury selection, the circuit court summonsed ninety-eight potential jurors.Of the jurors who appeared for jury selection, seventy indicated during preliminary questioning that they had heard about the case prior to appearing for service.Therefore, every juror was subjected to individual voir dire.At the conclusion of individual voir dire of each prospective juror, each party raised any request it had to strike that prospective juror for cause.Of the first thirty-six jurors pulled from the jury wheel, from whom the jury was ultimately selected, Hoard moved to strike prospective jurors 5, 6, 12, 14, and 32 for cause and the circuit court granted those motions.The State moved to strike prospective jurors 22 and 27 for cause and the circuit court also granted those motions.Additionally, the circuit court struck prospective jurors 4, 11, 18, 25, 26, 28, 29, and 35 on its own.Although disputed by Hoard, the record reflects that no motions were made by either party to strike jurors 1, 21, 24, or 34 for cause.⁵

After jury selection was completed, the trial began on Friday, May 7, 2021.During its opening statement, the State said the following:

Lieutenant Rodeheaver did a considerable number of interviews along with other law enforcement officers with the sherrif's department to determine what happened on November 3^rd of 2019, and the witnesses interviewed will be able to describe it to you in their own words.The one interview we didn't get was with Aaron Hoard or his girlfriend.

This drew an immediate objection from Hoard's counsel and a motion for a mistrial was made.⁶The circuit court denied the motion, reasoning that the State"did not say that [Hoard]...