State v. Malcomb, 19-1193

• Decision Date: 23 June 2021
• Docket Number: No. 19-1193,19-1193
• Court: West Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Wesley Shawn Malcomb, Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent v. Wesley Shawn Malcomb, Defendant Below, Petitioner

No. 19-1193

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 23, 2021

(Harrison County 13-F-174-1)

MEMORANDUM DECISION

Petitioner Wesley Shawn Malcomb, by counsel Sam H. Harrold III, appeals the Circuit Court of Harrison County's November 27, 2019, order sentencing him to one year of incarceration for each of two counts of wanton endangerment involving a firearm, said sentences to run concurrently. However, the circuit court suspended those sentences and placed petitioner on home incarceration as a form of alternative sentence. Respondent the State of West Virginia, by counsel Gordon L. Mowen II, filed a response.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner and Melissa McNemar had been in a long-term relationship, during which time petitioner drove a Ford Explorer. After the relationship ended, petitioner wanted to keep the vehicle, though it was in Ms. McNemar's possession. On April 7, 2013, Ms. McNemar called the Harrison County Sheriff's Department to request help making arrangements to return the Explorer to petitioner. Deputy Zach Mealey instructed her to park the vehicle at the Spelter Fire Department and leave the key under the mat. He also instructed petitioner to wait for ten to fifteen minutes after the vehicle was dropped off before accessing it to drive home "so there wouldn't be any confrontation between the two." Ms. McNemar's friend, Shane Pierce, drove separately to the fire department so that he could drive Ms. McNemar home afterward.¹

Instead of waiting the ten to fifteen minutes after the Explorer was parked at the fire department, petitioner waited less than a minute before pulling into the parking lot. Mr. Pierce walked over to petitioner's car to hand him the keys, at which time petitioner pulled a gun on Mr. Pierce. Ms. McNemar yelled to petitioner to put the gun down, but petitioner struck Mr. Pierce in the head with it, repeatedly saying, "I'm going to shoot you." Petitioner also began waving the gun around, pointing it at both Mr. Pierce and Ms. McNemar. There is a dispute as to whether petitioner tried to run over Mr. Pierce with his truck, at which time Mr. Pierce threw a rock at petitioner while petitioner was seated inside his truck. At that point, Ms. McNemar called 9-1-1. The responding deputy obtained surveillance footage from the Spelter Fire Department parking lot, which showed most of the encounter at issue. When petitioner was apprehended, a loaded Glock .40 caliber magazine was recovered from his vehicle, but no gun was found. He initially denied having a firearm during the encounter but later confessed.

Petitioner was indicted on two counts of wanton endangerment involving a firearm and one count of assault. The indictment charged him with pointing a firearm at and threatening to shoot Mr. Pierce, pointing a firearm at Ms. McNemar, and assaulting Mr. Pierce by attempting to strike Mr. Pierce with his vehicle.

The State moved to suppress and redact a portion of the 9-1-1 recording, arguing that it was irrelevant and constituted inadmissible impeachment evidence. Specifically, it sought to exclude statements petitioner made from an unrelated event in which petitioner told the Harrison County Sheriff's Department that one of the victims "ha[d] been arrested a lot of times," was "a big troublemaker," and "spent a year in jail and everything else." In an additional motion, the State sought to exclude Ms. McNemar's statement made during a separate 9-1-1 call, in which she stated that she previously "g[o]t [petitioner] on domestic violence." In support of that motion, the State argued that Ms. McNemar's prior domestic violence complaint against petitioner was irrelevant. Petitioner also moved to suppress Ms. McNemar's statement made during the 9-1-1 call. The circuit court held a hearing on those motions on October 7, 2013, during which petitioner's counsel represented to the court that the State had provided a redacted version of the 9-1-1 calls and the parties were in agreement with regard to those redactions. "So we can jointly agree to dismiss [those motions] I believe." The State immediately clarified

to make sure everything is on the record. I agree with everything [petitioner's counsel] said, but just to ensure the parties and the [c]ourt understand what I believe to be the agreement. There are two portions of the 911 call that the State had moved to redact. One is - pertains to Mr. Malcomb's statements . . . in which Mr Malcolm[sic] stated that one of the victims was, quote, unquote, "a big trouble maker, had been arrested a lot of times, and served a year in jail." I move to redact that and that has been redacted from the copy I gave to [petitioner's counsel]. The State believes that [is] impeachment evidence and irrelevant to the case at hand. In addition, one of the victims had stated that, quote, "I had to get him" - meaning Mr. Malcomb - "on domestic violence." Which again is irrelevant to the case at hand.

Petitioner's counsel did not present any objection or opposition to the State's representations.

Petitioner filed a notice of affirmative defense: self-defense. In that notice, petitioner stated that he drew his pistol and pointed it at Mr. Pierce in response to Mr. Pierce picking up and preparing to throw a cinder block brick at petitioner while in petitioner's immediate proximity, placing petitioner in fear of imminent danger, death, or serious bodily harm. Petitioner submitted a self-defense instruction to the circuit court, and the circuit court gave that instruction to the jury.

Petitioner's jury trial was held in October of 2013, and petitioner was convicted of both counts of wanton endangerment involving a firearm but acquitted of assault. He then filed a motion for post-verdict judgment of acquittal, arguing there was insufficient evidence to support wanton endangerment involving a firearm; that motion was denied by the circuit court. Petitioner was sentenced to one year of incarceration for each conviction, said sentences to run concurrently. However, the circuit court suspended those sentences and placed petitioner on home incarceration as a form of alternative sentence. On April 8, 2019, petitioner filed a renewed motion for post-verdict judgment of acquittal or, in the alternative, to reconsider his sentence. Thereafter, on November 27, 2019, petitioner was resentenced for purposes of appeal. Petitioner appeals from that order.

At the outset, we note that

"'[t]he Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syllabus Point 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997)." Syllabus Point 2, State v. Georgius, 225 W. Va. 716, 696 S.E.2d 18 (2010).

Syl. Pt. 1, State v. Varlas, 243 W. Va. 447, 844 S.E.2d 688 (2020).

On appeal, petitioner sets forth three assignments of error. He first argues that the circuit court committed reversible error by submitting an improper and prejudicial self-defense instruction at trial. Specifically, he contends that the circuit court's self-defense instruction was clearly erroneous because it failed to communicate all requisite elements fairly. He claims that the instruction omitted or grossly modified the element of proportionality to the danger perceived. However, as petitioner admits later in his brief, his trial attorney submitted the very instruction of which he complains. As we have found,

petitioner waived any error regarding this jury instruction. As we stated in Lease v. Brown, 196 W.Va. 485, 473 S.E.2d 906 (1996), when a defendant submits the instruction, "any error stemming from its inclusion in the case has either been waived or deemed 'invited error.' " Id. at 488, 473 S.E.2d at 909 (internal citation omitted). Moreover, "[n]o party may assign as error the giving or the refusal to give an instruction . . . unless that party objects thereto before the arguments to the jury are begun, stating distinctly the matter to which that party objects and the grounds of the objection[.]" W.Va. R. Crim. P. 30, in part.

Lewis, 235 W. Va. 694, 703 n.24, 776 S.E.2d 591, 600 n.24 (2015). This waiver was the direct result of the jury instruction at issue being offered by [p]etitioner . . . .

Lewis v. Ames, 242 W. Va. 405, 410, 836 S.E.2d 56, 61 (2019). In addition, petitioner's complaint relates not to an element of the crime charged but an element of a defense asserted by petitioner during trial. We agree with the State that even if the instruction were incorrect and petitioner had not invited it, petitioner may have benefitted from the error because any alleged omission made it easier for petitioner to establish self-defense. Therefore, we find that petitioner is not entitled to relief based on the circuit court giving his requested instruction regarding his claim of self-defense.

Next, petitioner asserts that the circuit court committed reversible error when it granted the State's motion to suppress and redact portions of 9-1-1 recordings due to irrelevancy and inadmissible impeachment evidence. On October 1, 2013, the State moved to suppress petitioner's recorded statements with law enforcement that were made prior to the incident in which he stated that Mr. Pierce had been arrested a number of times and was a "troublemaker." The State argued that the statements were irrelevant under Rule 401 of the West Virginia Rules of Evidence and inadmissible under...