State v. Kendall

• Decision Date: 29 November 2006
• Docket Number: No. 32689.,32689.
• Citation: 639 S.E.2d 778
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Michael Lee KENDALL, Defendant Below, Appellant.

639 S.E.2d 778

STATE of West Virginia, Plaintiff Below, Appellee v.Michael Lee KENDALL, Defendant Below, Appellant.

No. 32689.

Supreme Court of Appeals of West Virginia.

Submitted: October 25, 2006.

Decided: November 29, 2006.

Dissenting Opinion of Justice Starcher December 12, 2006.

Syllabus by the Court

1."A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence.Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law.A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy.A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law.Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion."Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163(1995).

2."The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case.In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial.It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law."Syl. Pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710(1977).

3."Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters."Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469(1995).

4."`Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth AmendmentandArticle III, Section 6 of the West Virginia Constitution — subject only to a few specifically established and well-delineated exceptions.The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative.'Syllabus Point 1, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804(1980), overruled in part on other grounds byState v. Julius,185 W.Va. 422, 408 S.E.2d 1(1991)."Syl. Pt. 20, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820(2001).

5."A warrantless arrest in the home must be justified not only by probable cause, but by exigent circumstances which make an immediate arrest imperative."Syl. Pt. 2, State v. Mullins, 177 W.Va. 531, 355 S.E.2d 24(1987).

6."`The test of exigent circumstances for the making of an arrest for a felony without a warrant in West Virginia is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.This is an objective test based on what a reasonable, well-trained police officer would believe.'Syl. Pt. 2, State v. Canby, 162 W.Va. 666, 252 S.E.2d 164(1979)."Syl. Pt. 3, State v. Mullins, 177 W.Va. 531, 355 S.E.2d 24(1987).

Darrell V. McGraw, Jr., Attorney General, Barbara Allen, Managing Deputy Attorney General, Colleen A. Ford, Assistant Attorney General, Charleston, for the Appellee.

Jerald E. Jones, West & Jones, Clarksburg, for the Appellant.

PER CURIAM.

This is an appeal by Michael Kendall(hereinafter "Appellant") from an order of the Circuit Court of Gilmer County sentencing the Appellant to twenty days in jail and five years of probation based upon a jury conviction of burglary and three counts of brandishing.The Appellant challenges his conviction, asserting several assignments of error on appeal.Based upon thorough review of the record, briefs, arguments of counsel, and applicable precedent, this Court reverses the lower court and remands this matter for a new trial.

I.Factual and Procedural History

The Appellant, while employed as a police officer for the City of Glenville, was called to a local bar to investigate an alleged fight shortly after midnight on March 7, 2003.Mr. Jacob Dennison, an off-duty Weston, West Virginia, police officer, accompanied the Appellant on the call.Although the fight had ended by the time the Appellant and Mr. Dennison arrived at the scene, they remained in the parking lot and thereafter observed Mr. Kevin Tingler in what they believed to be an intoxicated state.The Appellant informed Mr. Tingler that he should not attempt to operate a motor vehicle.

A few hours later, at approximately 2:40 a.m., the Appellant observed Mr. Tingler driving his truck and began pursuing him in the police cruiser.The Appellant attempted to stop Mr. Tingler by using his emergency lights and siren.Mr. Tingler fled in his vehicle, and the Appellant pursued him for several miles through Gilmer County.Mr. Tingler eventually lost control of his vehicle and drove off the road.According to the testimony of the Appellant, the Appellant pulled his vehicle into a yard in an attempt to block Mr. Tingler's vehicle, got out of his police cruiser with his service pistol drawn, and requested that Mr. Tingler exit his vehicle.¹According to the Appellant, Mr. Tingler then drove his vehicle toward the Appellant, and the Appellant fired his pistol at Mr. Tingler's vehicle.Mr. Tingler thereafter drove away in his vehicle.

Approximately one hour later, at 4:00 a.m., the Appellant and Mr. Dennison arrived at Mr. Tingler's home.²According to the Appellant's testimony, lights in the home had been illuminated when he and Mr. Dennison first arrived but were turned off as the occupants became aware of the officers' presence.The Appellant saw a vehicle parked in the driveway and learned that it was registered to Mr. Tingler.The Appellant also observed muddy tire tracks going from the driveway to the rear of the home.

With his pistol drawn, the Appellant knocked on the door of the home.He testified that the door was open and that he tapped the door twice with his foot, announcing that he was a police officer.There is an evidentiary dispute regarding whether someone opened the door, the Appellant kicked it, or it swung open on its own when the Appellant knocked.³Although Kevin Tingler was not in the room, four other people were sitting in the room.⁴Mr. Larry Snider, one of the occupants of the room, testified that the Appellant was polite and requested permission to search the home.Mr. Snider also testified that Erlin Tingler gave the Appellant permission to search the home.The Appellant conducted a search of the home for Mr. Tingler but was unable to locate him.Mr. Tingler reported to the Gilmer County Sheriff's Department the following day.

The Appellant was thereafter indicted for attempted voluntary manslaughter, destruction of property, three counts of kidnapping, three counts of wanton endangerment, and burglary.The three counts of kidnapping were dismissed before the Appellant began his case-in-chief on the last day of trial.During the January and February 2004 trial, Mr. Dennison invoked the Fifth Amendment and did not testify.⁵The Appellant was convicted of burglary and three counts of brandishing, as the lesser included offense of the charged wanton endangerment.He was sentenced to twenty days in jail and five years probation.The sentence was stayed pending this appeal.

On appeal, the Appellant contends that the lower court erred by providing the jury with an "entry of premises" instruction informing the jury that neither exigent circumstances nor hot pursuit existed in this case and by failing to provide the jury with an instruction offered by the Appellant.The Appellant further contends that the prosecution inappropriately influenced Mr. Dennison's decision to invoke the Fifth Amendment and that the Appellant should not have been convicted of three counts of brandishing where only one act of brandishing was proven.

II.Standard of Review

This Court is presented with several assignments of error, each subject to a separate standard of review.Regarding the alleged instructional errors, this Court is guided by the standards of review articulated in syllabus point four of State v. Guthrie,194 W.Va. 657, 461 S.E.2d 163(1995), explaining as follows:

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence.Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law.A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy.A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law.Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

Regarding the Appellant's assignment of error on the issue of prosecutorial misconduct, this Court adheres to the principles...