State v. Jessie

• Decision Date: 24 November 2009
• Docket Number: No. 34589.,34589.
• Citation: 689 S.E.2d 21
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Walter JESSIE, Defendants Below, Appellant.

689 S.E.2d 21

STATE of West Virginia, Plaintiff Below, Appellee v. Walter JESSIE, Defendants Below, Appellant.

No. 34589.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 2009.

Decided November 24, 2009.

Syllabus by the Court

1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. "In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition 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." Syl. Pt. 2, Walker v. West Virginia Ethics Commn., 201 W.Va. 108, 492 S.E.2d 167 (1997).

3. "As a general matter, a defendant may not assign as error, for the first time on direct appeal, an issue that could have been presented initially for review by the trial court on a post-trial motion." Syl. Pt. 2, State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998).

4. Although this Court has held that a defendant may not assign an error for the first time on appeal that could have been presented initially for review in a post-trial motion, failure to raise an issue in a post-trial motion will not prevent this Court from entertaining that issue on appeal where it is clear that the trial court carefully and completely considered that specific issue in a pre-trial motion.

5. "The Sixth Amendment speedy trial right begins with the actual arrest of the defendant and will also be initiated where there has been no arrest, but formal charges have been brought by way of an indictment or information." Syl. Pt. 1, State v. Drachman, 178 W.Va. 207, 358 S.E.2d 603 (1987).

6. "A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial." Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).

7. "In those situations where there has been no arrest or indictment, the Sixth Amendment right to a speedy trial is not implicated. Yet, the prosecution may have substantially delayed the institution of criminal proceedings causing prejudice to the defendant by way of loss of witnesses or other evidence. In this situation, the Fifth Amendment due process standard is utilized." Syl. Pt. 2, State v. Drachman, 178 W.Va. 207, 358 S.E.2d 603 (1987).

8. In an effort to clarify the precise triggering event critical to an analysis of Fifth and Sixth Amendment rights of an accused with regard to allegedly prejudicial delays in prosecution, the events occurring within the defendant's chronology should be characterized as pre-accusatory or post-accusatory. Pre-accusatory delays, encompassing the time period before the moment of accusation whether by arrest or indictment, are evaluated under the Due Process provision of the Fifth Amendment. Post-accusatory delays, encompassing the time period after the moment of accusation whether by arrest or indictment, are evaluated under the speedy trial provision of the Sixth Amendment.

9. "To maintain a claim that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the defendant must show actual prejudice. To the extent our prior decisions in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va.1980), Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and their progeny are inconsistent with this holding, they are expressly overruled." Syl. Pt. 2, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

10. "In determining whether preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting prejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the government's decision to prosecute after substantial delay violates fundamental notions of justice or the community's sense of fair play. To the extent our prior decision in Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and its progeny are inconsistent with this ruling, they are expressly overruled." Syl. Pt. 3, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

11. "To demonstrate that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, a defendant must introduce substantial evidence of actual prejudice which proves he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was or will be likely affected." Syl. Pt. 4, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).

12. "In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

13. "It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim." Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992).

14. "`In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect.' Syl. Pt. 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981)." Syl. Pt. 7, Acord v. Hedrick, 176 W.Va. 154, 342 S.E.2d 120 (1986).

15. "To trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Robert B. Kuenzel, Avis, Whitten & Wandling, Logan, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, R. Christopher Smith, Attorney General's Office, Charleston, WV, for Appellee.

McHUGH, Justice:

This is an appeal by Walter Jessie (hereinafter "Appellant") from a conviction for unlawful assault in the Circuit Court of Mingo County. The Appellant claims that he was denied his constitutional right to a speedy trial and that his due process rights were violated by a two and one-half year delay between the arrest and the indictment. He further contends that he did not waive his right to a speedy trial, that his counsel was ineffective, and that he was denied due process of law by the State's failure to inform him of its intent to introduce evidence of flight. Subsequent to thorough review of the record, arguments of counsel, briefs, and applicable precedent, this Court affirms the determination of the lower court.

I. Factual and Procedural History

While driving their vehicle on August 1, 2004, the Appellant and his wife noticed Mr. Randy Francis and a female companion, Tony Reynolds,¹ driving in another vehicle. Mr. Francis had allegedly had an affair with the Appellant's wife while the Appellant and his wife had been separated. The Appellant allegedly flagged down the vehicle in which Mr. Francis and Ms. Reynolds were traveling. The Appellant and Mr. Francis exited the vehicles, and the Appellant allegedly proceeded to beat Mr. Francis with a tire iron or bumper jack. Mr. Francis suffered a broken collar bone and skull damage.²

The Appellant was arrested on August 26, 2004, twenty-five days after the incident in question. The incident was initially investigated by Officer Jason Smith and was subsequently investigated by Officer Joe Smith after Officer Jason Smith left the police department. On January 27, 2007, the Appellant was indicted for unlawful assault, in violation of West Virginia Code § 61-2-9 (2004) (Repl.Vol. 2005). Claiming that the two and one-half year delay between the arrest and the indictment was prejudicial and violative of his constitutional rights, the Appellant filed a Motion to Dismiss the indictment. On March 12, 2007, the lower court held a hearing on the Appellant's Motion to Dismiss, and the motion was ultimately denied. On May 9, 2007, a jury convicted the Appellant of unlawful assault, and ...