State v. Hottle

• Decision Date: 17 July 1996
• Docket Number: No. 23094,23094
• Citation: 476 S.E.2d 200,197 W.Va. 529
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Billy Joe HOTTLE, Defendant Below, Appellant.

Page 200

476 S.E.2d 200

197 W.Va. 529

STATE of West Virginia, Plaintiff Below, Appellee, v. Billy Joe HOTTLE, Defendant Below, Appellant.

No. 23094.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1996.

Decided July 17, 1996.

[197 W.Va. 530] Syllabus by the Court

1. "Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his right [sic] and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby." Syllabus Point 2, State ex rel. M.S.B. v. LeMaster, 173 W.Va. 176, 313 S.E.2d 453 (1984).

2. " 'A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the 3. "The joinder of related offenses to meet possible variance in the evidence is not ordinarily subject to a severance motion. In those other situations where there has been either a joinder of separate offenses in the same indictment or the consolidation of separate indictments for the purpose of holding a single trial, the question of whether to grant a motion for severance rests in the sound discretion of the trial court." Syllabus Point 6, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

                [197 W.Va. 531] same or similar character, or are based on the same act or transactions, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.'   Syllabus Point 1,  State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980)."   Syllabus Point 4, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981)
                

4. "When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction." Syllabus Point 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

5. " 'In a prosecution for first-degree murder, the State must submit jury instructions which distinguish between the two categories of first-degree murder--willful, deliberate, and premeditated murder and felony-murder--if, under the facts of the particular case, the jury can find the defendant guilty of either category of first-degree murder. When the State also proceeds against the defendant on the underlying felony, the verdict forms provided to the jury should also reflect the foregoing distinction so that, if a guilty verdict is returned, the theory of the case upon which the jury relied will be apparent.' Syl. pt. 9, State v. Giles, 183 W.Va. 237, 395 S.E.2d 481 (1990)." Syllabus Point 1, State v. Walker, 188 W.Va. 661, 425 S.E.2d 616 (1992).

6. " 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981) [overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994) ]." Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

7. "Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987).

Dennis V. DiBenedetto, Prosecuting Attorney for Grant County, Petersburg, for Appellee.

Timothy M. Sirk, Keyser, for Appellant.

PER CURIAM.

Billy Joe Hottle appeals his August 12, 1994 conviction by jury of two felony murders, two attempted murders in the first degree, one kidnapping, one attempted aggravated robbery and three grand larcenies. No recommendation of mercy was made by the jury. On appeal, Mr. Hottle alleges the following assignments of error: (1) ineffective assistance of counsel; (2) prejudicial joinder; (3) admission of evidence of unrelated crimes; (4) failure to give instructions about and verdict form for second degree murder; and (5) failure to disqualify the

[197 W.Va. 532] prosecuting attorney because of personal interest. Based on our examination of the record, we find that the claim of ineffective assistance of counsel is premature and that the other assignments of error are without merit, and therefore, we affirm Mr. Hottle's convictions.

I. FACTS AND BACKGROUND

On August 5, 1993, Mr. Hottle escaped from the Work Release Center in Cass, West Virginia, and thereafter he was joined by Craig Swick, his cousin, who walked away from a work release center in Charleston, West Virginia on August 15, 1993. After his escape, Mr. Hottle stayed in Fayette County until August 18, 1993 when he, accompanied by his cousin, returned to his home area of Petersburg and Grant County. On the night of August 19, 1993, Mr. Hottle allegedly stole a truck parked in front of a 7-Eleven store. Alerted by the truck's owner, the police chased the truck until it was wrecked. Mr. Hottle, Mr. Swick and Mr. Hottle's girlfriend, the truck's occupants, escaped capture. On August 21, 1993, Mr. Hottle's girlfriend left the Grant County area and returned alone to Fayette County.

Allegedly, shortly after Mr. Hottle's girlfriend left, Mr. Hottle, accompanied by his cousin, stole another truck in which a .22 caliber Ruger semi-automatic pistol had been left. After abandoning the second truck, apparently because of mechanical problems, Mr. Hottle walked to the residence of Leon Miller and Donna Ours, arriving there after 10:15 p.m. on August 22, 1993. Early on August 23, 1993, the bodies of Mr. Miller and Ms. Ours were found. Mr. Miller was found outside; he had been shot three times in the head. Ms. Ours was found in her bed; she had been shot three times, twice in the head. Ms. Ours' yellow GEO Storm automobile was missing; however, the yellow GEO Storm was seen late on August 22, 1993, traveling at high rate of speed headed toward Mineral County.

Shortly after midnight on August 23, 1993, a yellow GEO Storm and two men, matching the descriptions of Mr. Hottle and Mr. Swick, were seen at a 7-Eleven store in Keyser, Mineral County, West Virginia. The 7-Eleven clerk was found dead shortly thereafter; her body was in a locked storeroom. She had been shot once in the head. Subsequent ballistics testing confirmed that the .22 caliber Ruger pistol was the murder weapon in all three deaths.

On August 23, 1993, the police contacted Mr. Hottle's girlfriend in Fayette County. After she was taken into custody, the police searched the area around her house on the morning of August 24, 1993 and found Ms. Ours' yellow GEO Storm parked in a wooded area behind Mr. Hottle's girlfriend's house. On August 26, 1993, Mr. Hottle, allegedly accompanied by his cousin, forced a minister with his wife and granddaughter to drive them from Fayette County to Grant County.

On August 27, 1993 in Petersburg, a woman notified the police that she had encountered but eluded Mr. Hottle. Mr. Hottle, allegedly accompanied by his cousin, went to a local automobile dealership where they attempted to get vehicle keys from the dealership's employees. After the police converged on the dealership, Mr. Hottle, using an employee as a shield, attempted to escape by forcing the employee to drive away from the dealership. ¹ During this attempt, Mr. Hottle was shot and the employee/hostage was injured. When Mr. Hottle was captured, he still had the .22 caliber Ruger pistol in his possession.

Mr. Hottle was indicted in Grant County on two counts of felony murder in the deaths of Mr. Miller and Ms. Ours, one count of kidnapping the dealership employee/hostage, two counts of attempted murder of police officers, one count of attempted aggravated robbery and three counts of grand larceny involving three vehicles. Shortly after Mr. Hottle's arrest, counsel was appointed. After a five day trial in August 1994, the jury found Mr. Hottle guilty on all charges. Based on the jury verdict, Mr. Hottle received Mr. Hottle appealed his convictions to this Court on July 19, 1995. Although his appeal petition outlined ten (10) assignments of error, Mr. Hottle, in his brief, discussed only the following five assignments of error: (1) ineffective assistance of counsel; (2) prejudicial joinder; (3) admission of unrelated crimes; (4) failure to give instructions about and verdict form for second degree murder; and (5) failure to disqualify prosecuting attorney because of personal interest. ²

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