State v. Johnson

Decision Date21 November 2014
Docket NumberNo. 14-0277,14-0277
CourtWest Virginia Supreme Court
PartiesState of West Virginia, Plaintiff Below, Respondent v. Merle Stanley Johnson, Defendant Below, Petitioner

(Jefferson County 12-F-101)


Petitioner Merle Stanley Johnson, by counsel Robert C. Stone Jr., appeals the February 6, 2014, order denying his post-trial motions following his convictions for the felony offense of driving under the influence causing the death of another and the misdemeanor offenses of negligent homicide, failure to maintain control of a vehicle, and failure to drive on the right side of the roadway. Respondent the State of West Virginia, by counsel Brandon C.H. Sims and Hassan S. Rasheed, filed a response to which petitioner submitted a reply.

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 affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On January 22, 2012, petitioner was involved in a two vehicle accident in Jefferson County shortly after 7:00 p.m. Apart from the drivers of the vehicles, there were no other witnesses to the accident. According to Sergeant Sell of the Jefferson County Sheriff's Department, petitioner's vehicle traveled across the eastbound lane and the left side of petitioner's vehicle left the roadway for over 150 feet. He then turned back onto the road, colliding head on with Mr. James L. Fletcher's vehicle. Both petitioner and the driver of the other vehicle, Mr. Fletcher, were transported to Jefferson Memorial Hospital. However, Mr. Fletcher died as a result of the accident. While at the hospital, petitioner advised the investigating officer, Deputy Douglas H. Fletcher, that he had swerved to avoid a deer. Petitioner admitted to the deputy that he had consumed a "couple of beers" at a business called the Tap House. Deputy Fletcher obtained a search warrant for petitioner's medical records at Jefferson Memorial Hospital, which revealed a blood serum result for alcohol of .240%. A four-count indictment was returned against petitioner, charging petitioner with feloniously driving under the influence causing death (Count I), negligent homicide (Count II), failure to maintain control (Count III), and failure to drive on the right side of the highway (Count IV).

Following a three-day jury trial, petitioner was found guilty on all counts. By order entered January 31, 2014, petitioner was sentenced to a term of incarceration of not less than two nor more than ten years for driving under the influence causing the death of another and negligent homicide. He was also fined $200 for his convictions for failure to maintain control of a vehicle and failure to drive on the right side of the roadway. Petitioner filed a motion for a new trial or judgment of acquittal, which motion was denied by order entered February 6, 2014. Petitioner appeals from that order.

In 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.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Based upon our review of the record before this Court, we find that the circuit court did not abuse its discretion in denying petitioner's motion for a new trial or for judgment of acquittal.

On appeal, petitioner asserts six assignments of error: (1) the circuit court erred by failing to grant petitioner's motion for judgment of acquittal as to Counts I and II of the indictment; (2) the circuit court erred by ruling that the State could offer into evidence at trial of the blood alcohol serum result attributed to petitioner; (3) the circuit court erred by failing to award petitioner a new trial where the State failed to notify petitioner prior to the direct examination of witness Laura Piercy, a lab employee, that Ms. Piercy had advised the State that she received only one order for alcohol serum testing on January 22, 2012; (4) the circuit court erred by failing to require the State to make an election as to Count I or Count II of the indictment by permitting the jury to deliberate on both counts and by refusing to give negligent homicide and reckless driving as lesser included offense instructions for Count I; (5) the circuit court erred by granting the State's motion in limine prohibiting petitioner from offering evidence at trial regarding the decedent's cell phone records; and (6) the circuit court erred by refusing to grant petitioner's motions to suppress his statement and medical records.

Petitioner's first assignment of error is that the circuit court erred by denying his motion for judgment of acquittal as to Counts I and II of the indictment. At the close of the State's casein-chief, petitioner moved for a judgment of acquittal for these counts, but the motion was denied by the circuit court. Petitioner argues that the circuit court erred by concluding that the State had made a prima facie case of reckless disregard for the safety of others. He contends that both the State's expert and his expert testified that petitioner's vehicle appeared to be under control when it left the roadway based on the tire track left in the snow, and neither expert testified that petitioner was traveling at an unsafe speed. He also points to testimony that the area of the accident may be a deer "choke point."1 Petitioner asserts that the evidence at trial indicated thatpetitioner's vehicle was not exceeding the speed limit and was not being driven in an erratic or reckless manner but that petitioner swerved to avoid a deer, causing him to run off the road for approximately two and a half seconds before hitting Mr. Fletcher's vehicle.

"A motion for judgment of acquittal challenges the sufficiency of the evidence." State v. Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996) (citing Franklin D. Cleckley, 2 Handbook on West Virginia Criminal Procedure 292 (2d ed.1993)). In addition,

"[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled." Syl. pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011); Syl. Pt. 7, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). In this case, petitioner has failed to carry that burden. The evidence admitted at trial established that petitioner's blood alcohol content was above the legal limit, petitioner consumed alcohol shortly before the accident, and petitioner swerved off the left side of the road before reentering the roadway where he struck Mr. Fletcher's car, leading to his death. When the evidence is viewed in the light most favorable to the State, we find that the circuit court did not err in denying petitioner's motion for judgment of acquittal or the subsequent motion for a new trial on this ground.

Petitioner next argues that the circuit court erred by ruling that the State could offer into evidence at trial a blood alcohol serum result attributed to petitioner. Petitioner filed a motion in limine/motion to suppress the results of a blood serum test attributed to petitioner based on what he claims was an insufficient chain of custody.2 He contends that the only documentation provided by the State in advance of the trial regarding the serum blood analysis was a computer printout indicating a blood alcohol serum result of .240%. Petitioner addresses the testimony of several witnesses who essentially stated that paramedic Wendy Bowman drew petitioner's blood, an unknown person labeled vials with petitioner's name, a doctor ordered that the samples be tested, and vials labeled with petitioner's name were tested to obtain the .240% result. Petitioner's expert, Richard McGarry, a forensic toxicologist, testified that he had concerns since Ms. Bowman did not label the specimens when they were collected and that there was no guarantee that the blood identified as petitioner's actually came from petitioner.

"A trial court's ruling on a motion in limine is reviewed on appeal for an abuse of discretion." Syl. Pt. 1, McKenzie v. Carroll Intern. Corp., 216 W.Va. 686, 610 S.E.2d 341 (2004). In State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995), this Court explained the two-tier standard of review of a circuit court's ruling on a motion to suppress:

[W]e first review a circuit court's findings of fact when ruling on a motion to suppress evidence under the clearly erroneous standard. Second, we review de novo questions of law and the circuit court's ultimate conclusion as to the constitutionality of the law enforcement action. Under the clearly

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