State v. Lease

• Decision Date: 10 April 1996
• Docket Number: No. 22960,22960
• Citation: 472 S.E.2d 59,196 W.Va. 318
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Crossen T. LEASE, Defendant Below, Appellant.

Page 59

472 S.E.2d 59

196 W.Va. 318

STATE of West Virginia, Plaintiff Below, Appellee, v. Crossen T. LEASE, Defendant Below, Appellant.

No. 22960.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 1996.

Decided April 10, 1996.

Syllabus by the Court

1. "To successfully challenge the validity of a search warrant on the basis of false information in the warrant affidavit, the defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally or with reckless disregard for the truth, included a false statement therein. The same analysis applies to omissions of fact. The defendant must show that the facts were intentionally omitted or were omitted in reckless disregard of whether their omission made the affidavit misleading." Syl. Pt. 1, State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995).

2. "A search warrant affidavit is not invalid even if it contains a misrepresentation, if, after striking the misrepresentation, there remains sufficient content to support a finding of probable cause. Probable cause is evaluated in the totality of the circumstances." Syl. Pt. 2, State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995).

3. "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 misled 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).

Silas B. Taylor, Managing Deputy Attorney General, Charleston, for the State.

Emmett Jessee Ballard, Assistant Public Defender, Princeton, for Appellant.

PER CURIAM.

This is an appeal by Crossen T. Lease (hereinafter "the Appellant") from an October 31, 1994, order of the Circuit Court of Mercer County sentencing him to an indeterminate term of three to twenty-three years upon his conviction of six counts of possession with intent to deliver a controlled substance. ¹ The Appellant contends that the search warrant in this matter was not validly obtained and that the jury instruction regarding the elements required to prove intent to deliver was inadequate. We affirm the decision of the lower court.

I.

On February 7, 1994, the Appellant and his daughter were in his home in Oakvale, West Virginia, when the child's mother, Ms. Sherry Phillips, unexpectedly arrived at the residence. ² The child was sleeping, and Ms. Phillips informed the Appellant that she planned to remove the child from the residence. According to the Appellant's testimony, Ms. Phillips smoked marijuana and drank tequila during this visit. Ms. Phillips testified that she had taken "at least ten" Valiums that day, had smoked four or five marijuana joints, and had spent the evening drinking bourbon and tequila. The Appellant physically removed Ms. Phillips from the home, and she pounded on the door and windows until the Appellant called the police.

When Trooper T.D. Bradley arrived, he arrested Ms. Phillips for public intoxication and possession of marijuana and transported her to police barracks. En route, she informed him that the Appellant had illegal guns and drugs in the home. Based upon Ms. Phillips' information, Trooper Bradley sought a search warrant for the Appellant's residence on February 8, 1994. The affidavit in support of the application for the warrant provided as follows:

This officer rec'd [sic] a verbal statement from Sherry Phillips who lived with the accused approx. 5 year [sic]. She told this officer the accused had several illegal auto[matic] firearms and the location of same in the residence. She also told this officer where he place [sic] a small amount of marijuana and where he kept his large quantities.

No additional information was provided, and the warrant was issued by Magistrate Jerry Flanagan. Four officers executed the warrant at the Appellant's home and located legally registered firearms and illegal drugs. ³ Ms. Kathy Lawrence, a friend of the Appellant, was present at the home during the search. She was charged with grand larceny after she stole money from a room of the home where the officers had placed her during the search.

Subsequent to a September 1994 trial, the Appellant was convicted of six counts of possession with intent to deliver and was sentenced to an indeterminate term of three to twenty-three years. He appeals to this Court alleging that (1) the affidavit in support of the application for the search warrant failed to support the warrant and omitted facts which tended to diminish probable cause; and (2) the jury instruction regarding the elements of "intent to deliver" was inadequate.

II.

The Appellant maintains that the information provided in the application for the warrant was insufficient to alert the magistrate to several determinative facts. For instance, from the application presented, the magistrate did not have knowledge that Ms. Phillips, the only individual upon whose information the application was premised, had been removed from the home under arrest for public intoxication and possession of marijuana. The Appellant also insists that the magistrate should have been alerted to Ms. Phillips' extreme state of agitation with the Appellant over the circumstances surrounding the visitation of the child and Ms. Phillips' desire to remove the child from the home. The Appellant contends that such information would have placed the magistrate on notice of Ms. Phillips' possible motivation to exaggerate or provide false details. The Appellant also argues that the magistrate should have been informed that Ms. Phillips' blood alcohol level was .095 and that Ms. Phillips did not inform the officer regarding the time period during which she allegedly observed the illegal drugs or firearms in the Appellant's home.

In syllabus point one of State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995), we explained as follows:

To successfully challenge the validity of a search warrant on the basis of false information in the warrant affidavit, the defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally or with reckless disregard for the truth, included a false statement therein. The same analysis applies to omissions of fact. The defendant must show that the facts were intentionally omitted or were omitted in reckless disregard of whether their omission made the affidavit misleading.

Id. at 598, 461 S.E.2d at 104, Syl. Pt. 1. We also specified that recklessness is to be inferred from an omission only where the material omitted would have been clearly critical to the finding of probable cause. Id. at 601, 461 S.E.2d at 107 (citing United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 193, 133 L.Ed.2d 128 (1995)).

In syllabus point two of Lilly, we further stated that "[a] search warrant affidavit is not invalid even if it contains a misrepresentation, if, after striking the misrepresentation, there remains sufficient content to support a finding of probable cause. Probable cause is evaluated in the totality of the circumstances." Id. at 598, 461 S.E.2d at 104, Syl. Pt. 2. Additionally, the reviewing court must "determine whether ... supplemented with the omitted material, the remaining content of the affidavit is sufficient to establish probable cause." Id. at 601, 461 S.E.2d at 107. In Lilly, we determined that an affidavit underlying the warrant did not provide a substantial basis for determining the reliability of the confidential informant and was therefore insufficient to establish probable cause to issue a warrant. Id. at 604, 461 S.E.2d at 110.

In United States v. Collins, 61 F.3d 1379 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995), the defendant argued that a warrant for the search of his trailer was not supported by probable cause and that he was entitled to a Franks hearing because the affidavit supporting the search warrant omitted the fact that the sheriff saw the defendant in possession of firearms in June 1993 and instead implied that the sheriff had seen the defendant shortly before the warrant was issued. Id. at 1384. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). ⁴ The Ninth Circuit determined that the defendant's "bare assertion that the omission of the June date was deliberate 'because the [ATF] agents knew the truth and failed to include it in the warrant application,' does not establish that the omission was the result of anything other than negligence or innocent mistake." 61 F.3d at 1384. The Ninth Circuit had previously addressed this issue in United States v. Kyllo, 37 F.3d 526 (9th Cir.1994) and had established a policy similar to our rationale in Lilly. See 194 W.Va. at 601, 461 S.E.2d at 107. The Kyllo court explained that a defendant is entitled to a Franks hearing upon a showing that the affidavit contains deliberate or reckless omissions that tend to mislead and demonstrate that the affidavit supplemented by the omissions would not be sufficient to support a finding of probable cause. Kyllo, 37 F.3d at 529. With regard to the Collins' assertion that the warrant was not supported by probable cause, the court found that the affidavit revealing that the defendant had previously admitted his possession of firearms and that an investigation disclosing prior convictions and two outstanding arrest...