State v. Richardson

• Decision Date: 09 September 2019
• Docket Number: No. 18-0342,18-0342
• Court: Supreme Court of West Virginia
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Julian Lee Richardson, Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent v. Julian Lee Richardson, Defendant Below, Petitioner

No. 18-0342

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

September 9, 2019

(Berkeley County CC-02-2017-F-160)

MEMORANDUM DECISION

Petitioner Julian Lee Richardson, by counsel B. Craig Manford, appeals the Circuit Court of Berkeley County's denial of his post-trial motion for new trial or judgment of acquittal notwithstanding the jury verdict. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, submitted 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.

On September 4, 2016, petitioner allegedly drove a car at the time it was used in a drive-by shooting at the Martin Luther King Jr. Park in Martinsburg, West Virginia. Thereafter, he was indicted on one count of attempted first-degree murder; ten counts of felony wanton endangerment; one count of conspiracy to commit wanton endangerment; and one count of felony destruction of property. During his trial in December of 2017, petitioner testified that he was not involved in the shooting and did not assist or help the shooter, Willie Hudson, in any way on September 4, 2016. He also denied driving to or from work on September 4, 2016. However, West Virginia State Police Corporal Zach Nine testified that petitioner typically drove a gray Chrysler 300, and the State admitted Exhibit 1, which was a photograph of the vehicle, without objection. Cpl. Nine testified that the vehicle was registered in petitioner's name and that he witnessed petitioner driving that vehicle in early September of 2016. Another witness, Jennifer Reynolds¹, testified that she saw petitioner driving a gold Cadillac with Mr. Hudson in the passenger seat and Lafate Odoms in the back seat on September 4, 2016. According to Martinsburg Police Lieutenant Scott Funkhouser, Ms. Reynolds flagged him down on the afternoon of September 4, 2016, and relayed to him that Mr. Hudson, while traveling with petitioner and Mr. Odoms, displayed a gun and told her he was sorry that her "children would soon not have a father." Lt. Funkhouser testified thatwhen he was speaking with Ms. Reynolds, he received a call over his radio that shots had been fired at Martin Luther King Jr. Park.

Martinsburg City Police Officer Christopher Johnson testified that he responded to the shots fired call and found a black pickup truck "stopped at an odd angle" with what appeared to be bullet holes in the left hand side. Officer Johnson found ten bullet casings and identified the extent of the damage to the truck. After speaking with witnesses, he put out a be-on-the-lookout ("BOLO") call for a "grayish bluish Chrysler 300 with at least two African American male occupants." Officer Johnson confirmed that the vehicle in the BOLO matched the one pictured in Exhibit 1.

Petitioner's counsel moved for a directed verdict at the close of the State's case-in-chief, but the circuit court denied that motion. His renewed motion at the close of evidence was also denied by the circuit court. Following closing arguments, the jury deliberated before adjourning for the evening and resuming deliberations the following day. The jury informed the court that it was unable to reach a verdict, and the court provided additional instruction pursuant to State v. Blessing, 175 W. Va. 132, 331 S.E.2d 863 (1985).² The circuit court directed the jury to continuedeliberations to see if a verdict could be reached.

Petitioner was convicted by the jury of one count of felony attempted voluntary manslaughter, a lesser-included offense of attempted first-degree murder; ten counts of felony wanton endangerment with a firearm; and one count of misdemeanor destruction of property. He was found not guilty of the conspiracy charge. Petitioner filed a post-trial motion for new trial or judgment of acquittal notwithstanding the jury verdict. The circuit court heard arguments on those motions and denied petitioner's motion for new trial. He was sentenced to twelve months of incarceration for attempted voluntary manslaughter; one year of incarceration for each count of felony wanton endangerment with a firearm; and one year of incarceration for misdemeanor destruction of property. The circuit court ordered that the sentences be served concurrently but suspended the execution of the sentence, placing petitioner on supervised probation for one year. Petitioner appeals from the March 20, 2018, sentencing order.

At the outset, we note that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). In addition, we have stated as follows:

This Court applies the following general standard when reviewing a circuit court decision denying a new trial:

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). Additionally, we note that "[t]he Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence." State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (per curiam) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). Accord State v. Minigh, 224 W.Va. 112, 124, 680 S.E.2d 127, 139 (2009) (per curiam).

State v. Trail, 236 W. Va. 167, 174, 778 S.E.2d 616, 623 (2015).

On appeal, petitioner sets forth three assignments of error. First, he argues that the circuit court committed plain error by admitting Exhibit 1, which was a photograph of petitioner's car. Petitioner concedes that there was no objection to the State's introduction or continued use of Exhibit 1 but is critical of the circuit court's failure to sua sponte reject the admission of thatexhibit. While petitioner asserts plain error, he fails to conduct an adequate plain error analysis under the following standard:

This Court has held: "[t]o trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995); see also Syllabus Point 2, State v. White, 231 W.Va. 270, 744 S.E.2d 668 (2013). . . . In State v. Lightner, 205 W.Va. 657, 659, 520 S.E.2d 654, 662 (1999), this Court stated, "In criminal cases, plain error is error which is so conspicuous that the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it."

State v. David K., 238 W. Va. 33, 42-43, 792 S.E.2d 44, 53-54 (2016). Instead, petitioner states that

[t]he [p]lain [e]rror [d]octrine is applicable in this case as (1) the [c]ourt identified an error on the record; (2) the error is not harmless but plain; (3) the [c]ourt believed the error did in fact affect the substantial rights of the [p]etitioner, to-wit, the right to a fair trial; and (4) the error seriously affects the fairness, integrity, and public reputation of the judicial proceedings.

Simply reciting the standard without applying the standard to the facts of this case does not satisfy the requirements of West Virginia Rule of Appellate Procedure 10(c)(7), which requires that the brief "contain an argument exhibiting clearly the points of fact and law presented . . . ." While it is apparent that petitioner contests the admission of the Exhibit 1, he fails to inform this Court how the admission of Exhibit 1 satisfies any of the other plain error criteria. For this reason, we decline to address the merits of this assignment of error.

Petitioner's second assignment of error is that the circuit court committed plain error by ruling that the testimony of Brittany Carr³ regarding unsolicited statements she heard witness Jennifer Reynolds⁴ make immediately prior to testifying were inadmissible hearsay. Petitioner's single-page argument on this point quotes Rule 803 of the West Virginia Rules of Evidence, followed by only two paragraphs of argument. Petitioner asserts that he initially argued that the statement was not hearsay under the excited utterance exception; he now additionally argues that the statement reflected Ms. Reynolds's then-existing mental and emotional state of mind. He contends that Ms. Carr wanted to offer testimony that she heard Ms. Reynolds say that "he didn't do nothing[sic]. He wasn't there." According to petitioner, "[t]his could have easily referred to the Wilson Street encounter . . . rather than the shooting at Martin Luther King Jr. Park where she was not present." He does not offer any support for that contention. While arguing that Ms. Carr'stestimony as to the unsolicited and spontaneous statements of Ms. Reynolds "while under extreme stress before testifying" was an exception to the hearsay rule under the plain error doctrine, he fails to cite a single case supporting that argument.

Rules 801, 802, and 803 of the West Virginia Rules of Evidence address what constitutes hearsay and the exceptions to the inadmissibility of hearsay....