State v. Moran, 14496

Citation168 W.Va. 688,285 S.E.2d 450
Decision Date18 December 1981
Docket NumberNo. 14496,14496
PartiesSTATE of West Virginia v. Charles MORAN.
CourtSupreme Court of West Virginia

Syllabus of the Court

"Subject to certain exceptions, pre-trial discovery in a criminal case is within the sound discretion of the trial court; however, after a witness has testified from notes used to refresh his recollection, the defense is absolutely entitled to inspect the notes from which the witness testified and must be given a reasonable opportunity to prepare cross-examination." Syl. pt. 1, State v. Dudick, W.Va., 213 S.E.2d 458 (1975).

S. J. Angotti, David L. Solomon, Morgantown, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Silas B. Taylor, Laurie J. Garrigan, Asst. Attys. Gen., Charleston, for defendant in error.

PER CURIAM.

Charles Moran appeals from a conviction of unlawful wounding in the Circuit Court of Harrison County. As our review of the record, briefs, and oral arguments convinces us that Moran received a fair trial and that his assignments of error lack merit, 1 we affirm.

Moran's primary assignments of error are premised on the alleged failure of the State and the trial court to provide him a hearing on any of his twenty-four pre-trial motions and an alleged prejudicial denial of pre-trial discovery. Moran also contends he was entitled to a hearing on his motion to disqualify the circuit court judge under the provisions of an administrative rule promulgated by this Court to govern such motions.

Moran's argument that the trial court erred in not ruling on his pre-trial motions is not well-taken. Proper consideration of this issue requires us to consider some of the basic facts surrounding the crime and particularly the totality of circumstances under which defense counsel represented Moran. 2

Moran was indicted as a result of an incident occurring on November 3, 1976, in which he allegedly shot a man named John Wolfe who, though seriously wounded, lived to testify against him. During the same incident, Moran's companion that evening, Calvin "Toehead" Atkins, shot and killed a Mr. Joe Shaffer, the brother of the mayor of Clarksburg. Because they injured different individuals, Moran and Atkins were indicted and tried separately. Both were represented by the law firm of Solomon and Angotti, counsel for Moran in this appeal. Atkins was tried first and from this representation, defense counsel learned most, if not all, of the relevant facts bearing on Moran's commission of the crime.

Defense counsel filed twenty-five pre-trial motions in the Atkins' case. Twenty-three of these motions were essentially identical to the motions filed in Moran's case. The State filed answers to the motions filed on behalf of Atkins, and the trial court held a hearing granting some and denying others. During the hearing, the trial court ruled on all matters raised by Atkins in his motions for a bill of particulars and for discovery as well as other matters. At the close of the hearing, defense counsel moved for a continuance for Moran which was not contested by the State. Defense counsel then informed the court that Moran's case could be expedited considerably because the motions in both cases were substantially the same and the trial court's rulings as to Atkins could be applied to Moran as well. Defense counsel then indicated a desire to argue the validity of the Moran indictment, and the trial court afforded an opportunity to argue the point then or later, and defense counsel requested a postponement. The trial court directed defense counsel to prepare an order. That order continued Moran's case until the next term and continued the hearing on the pre-trial motions until a later date to be scheduled by the court.

In April, 1977, Atkins was tried. During State's case in chief, all the witnesses who would later testify against Moran were put on the stand except for the medical witnesses. During the trial there were many references to Moran and John Wolfe. In the Atkins case, defense counsel was provided the names of all investigators involved with the shooting, evidence found on John Wolfe's person, photographs of the crime scene, eyewitness testimony concerning Wolfe, the entire substance of John Wolfe's testimony, and a fingerprint test done for Moran. Moran testified for Atkins at the trial. The State's answers to Atkins' pre-trial motions, also provided defense counsel substantial evidence connected with both cases.

The State also answered Moran's motions for discovery and a bill of particulars, denying certain requests on the grounds that they had been refused by the court. The defense was provided a list of exhibits and a list of the State's witnesses. At the commencement of Moran's trial, no motion was made for a hearing on any of his motions nor was there any assertion of a denial of pre-trial discovery. These matters were first raised by defense counsel in a motion for a judgment of acquittal. On the record as summarized above, defense counsel argues that the trial court had an absolute duty to dispose of all pre-trial motions and to ensure the case was in a proper posture for trial.

Moran's arguments are not supported by the law or the facts. He was not denied a hearing on all of his pre-trial motions since there was in effect a joint hearing on the Atkins and Moran cases, and defense counsel stated on the record that the motions were susceptible of identical rulings. Defense counsel cannot be permitted to benefit from the order providing that his pre-trial motions would be continued and heard on a later date to be set by the court. Defense counsel must assume the burden of bringing these motions to the attention of the trial court. If defense counsel desired a hearing on certain motions, they should have asked for one. As we said in State v. Grimmer, W.Va., 251 S.E.2d 780, 785 (1979): "When there is an opportunity to speak, silence may operate as a waiver of objections to error and irregularities at the trial which, if reasonably made and presented, might have been regarded as prejudicial." In the circumstances of this case, defense counsel's failure to demand a hearing as to certain of his pre-trial motions...

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18 cases
  • State v. Davis
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...1, State v. Baker, 169 W.Va. 357, 287 S.E.2d 497 (1982); State v. Ketchum, 169 W.Va. 9, 289 S.E.2d 657, 660 (1981); State v. Moran, 168 W.Va. 688, 285 S.E.2d 450, 452 (1981); State v. Craft, 165 W.Va. 741, 759, 272 S.E.2d 46, 56 (1980); State v. Clawson, 165 W.Va. 588, 619, 270 S.E.2d 659, ......
  • State v. Garrett
    • United States
    • Supreme Court of West Virginia
    • December 11, 1995
    ...as the moving party, must assume the burden of bringing his motion to the attention of the trial court. State v. Moran, 168 W.Va. 688, 691, 285 S.E.2d 450, 453 (1981). On appeal, this Court will not consider nonjurisdictional questions not considered by the trial court: " ' "This Court will......
  • State v. Bongalis, 17971
    • United States
    • Supreme Court of West Virginia
    • February 17, 1989
    ...of the objections contained in the motion. See State v. McKinney, 178 W.Va. 200, 205, 358 S.E.2d 596, 601 (1987); State v. Moran, 168 W.Va. 688, 691, 285 S.E.2d 450, 453 (1981). Other courts have reached a similar conclusion. People v. Thibudeaux, 54 Ill.Dec. 275, 98 Ill.App.3d 1105, 424 N.......
  • State v. Fairchild
    • United States
    • Supreme Court of West Virginia
    • November 18, 1982
    ...based on W.Va.Code § 57-2-3 at trial operates as a waiver of that objection on appeal. State v. Baker, supra; State v. Moran, 168 W.Va. 688, 285 S.E.2d 450 (1981); State v. Burton, supra; State v. Thomas, Moreover, inspection of the transcript clearly indicates that the appellant voluntaril......
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