State v. Hodge, 19-0316
| Decision Date | 20 January 2021 |
| Docket Number | No. 19-0316,19-0316 |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Michael R. Hodge Jr., Defendant Below, Petitioner |
| Court | West Virginia Supreme Court |
Petitioner Michael R. Hodge Jr., by counsel Robert P. Dunlap II, appeals the Circuit Court of Fayette County's February 28, 2019, sentencing and commitment order. Respondent the State of West Virginia, by counsel Mary Beth Niday, filed a response.
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 is appropriate under Rule 21 of the Rules of Appellate Procedure.
On August 28, 2017, minor S.J. drove petitioner, Bryan Allen, and Jarrell Green to an area near the home of Angelia Miranda Danielle Pyatt ("Miranda") and Miranda's then-boyfriend and later husband, Noah Pyatt, in Fayetteville, West Virginia.1 That home was located on a dead-end road and was surrounded by woods. Around that time, Miranda let the dog outside; the dog immediately ran to the woods and began barking. As Miranda left the porch to yell for the dog, she was approached by three African American men, later identified as petitioner, Mr. Allen, and Mr. Green, wearing full face black ski masks and black clothing. They reportedly approached her from the front, surrounded her, and shot her in the chest without speaking. Miranda fell to the ground but struggled with the shooter to grab the firearm; she fired two shots while on the ground, striking one of the men. The injured man ran toward the woods after being shot, but the other two men struck Miranda in the head and face before fleeing. Miranda was able to return to her houseand lock the door. Mr. Pyatt returned to the home approximately two minutes later and rushed Miranda to the hospital, calling 9-1-1 along the way. Miranda suffered a gunshot to the right side of her rib cage, which exited through her lower back. She had a burn under her breast from the barrel of the gun. She described the firearm as a black machine gun.
Sergeant Willis of the Fayette County Sheriff's Department responded to the 9-1-1 call and met Miranda at Plateau Medical Center before she was transferred to Charleston Area Medical Center, where she was examined by Dr. Shane Monnett. He determined that the gunshot did not hit any major organs and surgery was not required. Sgt. Willis received a second 9-1-1 call later that night from A.J., S.J.'s mother, who reported that a person had been shot in a drive-by shooting in the Whipple Scarbro area of Fayette County and had been transported to Raleigh General Hospital. Sgt. Willis later determined that the subject of that call was Mr. Green; Mr. Green subsequently acknowledged his involvement in the incident at Miranda's residence. When Sgt. Willis spoke with A.J. and S.J. on August 29, 2017, both women identified petitioner, Mr. Allen, and Mr. Green as the men involved in the shooting at Miranda's. At that time, S.J. was involved in a romantic relationship with petitioner, who was arrested for malicious assault while hiding in the A.J. and S.J.'s residence. Bryan Allen was arrested shortly thereafter on the same charge.
When petitioner was arrested, Sgt. Willis did not find any weapons on his person, but petitioner had a cell phone in his pocket. That phone was seized and taken to the sheriff's department. Corporal Pack helped Sgt. Willis package the cell phone and label it at the office. Cpl. Pack asked petitioner for the passcode to his phone, and petitioner provided the code after he was Mirandized.2 In January of 2018, Sgt. Willis obtained a search warrant, and Forensics Specialist Mason Hines downloaded the contents of petitioner's cell phone, where he discovered photographs dated August 5, 2017. Those photographs showed petitioner holding what appeared to be an assault rifle; google searches for Mr. Pyatt's address; a text message from petitioner on August 25, 2017, that petitioner had found Mr. Pyatt's house; and reports that indicated petitioner's phone connected to a wireless router in Oak Hill at 10:00 p.m. on August 28, 2017, and again at 12:29 a.m. on August 29, 2017.
On August 29, 2017, Mr. Pyatt gave Sgt. Willis consent to search the residence he shared with Miranda. During that search, a spent .22 casing was found on a mat on the front porch, which was promptly secured. S.J. also informed Sgt. Willis that Bryan Allen had tossed an assault rifle into a wooded area in Mt. Hope. A.J. retrieved the weapon, a Mossberg .22 caliber rifle, and took it to Sgt. Willis around October 5, 2017. At that time, the rifle did not have any ammunition or magazines. It was sent off for comparison to the .22 casing found at Miranda's residence. That analysis was performed by Ryan Christopher, a forensic analyst with the West Virginia State Forensics Laboratory, on August 6, 2018. He determined that the casing was from the recovered firearm. Sgt. Willis requested a firearms trace from the ATF, which revealed that petitioner had purchased the rifle at a pawn shop on August 5, 2017, as matched by serial numbers.
Jarrell Green told police that S.J. drove petitioner and Mr. Allen to Mr. Green's house and that petitioner asked if Mr. Green wanted to rob Mr. Pyatt and Miranda the next day. Mr. Greenresponded that they should do it then to get it over with. Petitioner, Mr. Allen, and S.J. told Mr. Green that the residence was targeted because Mr. Pyatt had guns and flashed money on Snapchat. Mr. Green went with Mr. Allen, S.J., and petitioner to Mr. Allen's house, where they got their "guns and stuff ready" before proceeding to Miranda's residence. The three men wore black clothing and face coverings, and petitioner showed Mr. Green a gun in the trunk of S.J.'s car that petitioner said was an automatic rifle. S.J. drove the men to a dirt road approximately ten to fifteen yards from Miranda's residence, and S.J. remained in the car while the men ran through the woods. Mr. Green remembered only that the men came within four or five yards of the front porch and then remembered Miranda fighting with petitioner and Mr. Allen over the gun, at which time shots were fired, Mr. Allen punched Miranda, and Mr. Green was shot in the right leg near his ankle. Mr. Green began running back to the car. He did not recall what petitioner did with the rifle after the incident. S.J. drove the men to her mother's house where Mr. Green's leg was wrapped in a scarf and an ambulance was called. Petitioner reported to medical personnel that Mr. Green was a victim of a drive-by shooting in Whipple. However, S.J., petitioner, and Mr. Allen left A.J.'s home before law enforcement arrived.3
Petitioner was indicted of conspiracy to commit a felony, attempted robbery, malicious assault, attempted murder, wanton endangerment involving a firearm, and assault in the commission of a felony. He filed a motion to suppress any statements given to law enforcement and any evidence obtained from his cell phone. Petitioner also sought to sever his trial from that of his co-defendants. Following a hearing on those motions, the circuit court denied the same. Petitioner was tried before a jury on December 11 and 12, 2018, and was convicted of conspiracy to commit a felony, attempted robbery in the first degree, malicious assault, and assault during the commission of a felony. He was sentenced to an indeterminate term of one to five years of incarceration and a fine for conspiracy; a determinate term of seventy-five years for attempted robbery; an indeterminate term of two to ten years for malicious assault; and an indeterminate term of two to ten years and a fine for assault during the commission of a felony, with credit for time served. Petitioner's sentences were ordered to run consecutively.4 Petitioner appeals from the circuit court's February 28, 2019, sentencing and commitment order.
"The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under adeferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
Syl. Pt. 1, State v. Wasson, 236 W. Va. 238, 778 S.E.2d 687 (2015). State v. Bleck, -- W. Va. --, --, 843 S.E.2d 775, 779 (2020).
On appeal, petitioner asserts seven assignments of error. First, he contends that the circuit court erred by admitting his statement in violation of his constitutional rights because his statement was taken without his full understanding of his rights. Cpl. Pack began reading petitioner his rights and asked petitioner if he understood that he had a right to remain silent until he had an attorney present. Petitioner asked, "[W]hat did they mean by that?" In discussing the issue with Cpl. Pack, petitioner said, "I'm already here" and that "[I]t's too late for that sh*t." Petitioner contends that Cpl. Pack failed to clarify that it was not too late to have an attorney present, which resulted in petitioner giving his statement in violation of his due process rights. According to petitioner, respondent filed a motion to determine the voluntariness of the statement, and petitioner filed a motion to suppress the statement. During the August 2, 2018, pretrial hearing, the State indicated it did not intend to use petitioner's statement in its case-in-chief because the statement...
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