State v. Salmons, 24967.

Citation509 S.E.2d 842,203 W.Va. 561
Decision Date04 November 1998
Docket NumberNo. 24967.,24967.
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Michael Daniel SALMONS, Defendant Below, Appellant.

Ira Mickenberg, Gregory Ayers, Assistant Public Defenders, Charleston, West Virginia, Attorneys for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, West Virginia, Attorneys for the Appellee.

William C. Forbes, Kanawha County Prosecuting Attorney, Jon R. Blevins, Assistant Kanawha County Prosecuting Attorney, Charleston, West Virginia, Attorneys for the Appellee.

DAVIS, Chief Justice:

Mr. Salmons, defendant below/appellant, (hereinafter "Mr. Salmons"), appeals a final judgment by the Circuit Court of Kanawha County convicting him of and sentencing him for the crimes of kidnaping and aggravated robbery. Mr. Salmons was sentenced to thirty years confinement for the aggravated robbery conviction. He was sentenced to life imprisonment with mercy for the kidnaping conviction. The sentences run concurrently. Mr. Salmons now seeks a new trial on the grounds that (1) the State failed to disclose exculpatory evidence, (2) the trial court improperly struck for cause two jurors, and (3) the trial court failed to advise him of his right to testify. Having reviewed the evidence, the parties' arguments and the applicable authority, we affirm the decision of the Circuit Court of Kanawha County.


On March 27, 1996,1 at approximately 5:30 p.m., in Charleston, West Virginia, Mr. Philip Myles,2 the victim in this case, drove to a bar called the Tap Room.3 Shortly after Mr. Myles arrived at the bar, Mr. Salmons entered the bar. Mr. Salmons was followed by four other accomplices.4 Mr. Myles and Mr. Salmons eventually engaged in a conversation and had drinks.5 Mr. Salmons' four accomplices left the bar after a brief period. At approximately 6:30 p.m., Mr. Myles left the bar with Mr. Salmons and went directly to his car. While standing next to the car, Mr. Salmons asked Mr. Myles to join him in a game of pool. Mr. Myles declined and indicated he had to go home. According to the trial testimony of Mr. Myles, after he declined to play pool, Mr. Salmons "asked me again and I said no, I don't want to, and I started to put my keys in the car and [Mr. Salmons] grabbed me by the shirt here and started wrestling me, then he started motioning like this in the alley." The motioning gesture by Mr. Salmons was a signal to his four accomplices, who had been waiting in an alley since leaving the bar.6 Mr. Myles testified as follows to the ensuing events:

Q. What happened then?
A. All the people that had left the bar came out of the alley. They were hiding in a little alcove in the alley and they started beating on me and dragging me through the alley.
Q. Now when you say all the people who left the bar, who are we talking about?
A. Kim Porter, Blaine Salmons, and the two other people that I didn't know.
Q. And they come out of the alley, they start beating on you and dragged you back to the alley?
A. They dragged me back into the alley where they were hiding in that alcove and they were beating me and kicking me and I was on the ground at one point and then Blaine Salmons put my hands up over my head and slams me into the wall.
* * * * * *
Q. What happens next?
A. Everyone started going through my pockets and took everything I had and [Mr. Salmons] took my car keys and went back to get the car and drove it over to where we were.

Mr. Myles was forced into the car.7 Mr. Salmons then drove away with Mr. Myles and his four accomplices. Mr. Salmons drove to Boone County and picked up an individual named Matthew Callahan. Mr. Salmons then returned to Charleston and dropped off two accomplices, John Murphy and Mariah. Next, Mr. Salmons drove to Mr. Myles' apartment. Upon arriving at the apartment, Mr. Salmons and Matthew Callahan got out of the car and went into Mr. Myles' apartment. Mr. Myles attempted to escape while the car was parked near his apartment. He bolted from the car and began running and screaming for help. Blaine Salmons ran after Mr. Myles and caught him. Blaine dragged Mr. Myles back to the car. Kim Porter struck Mr. Myles in the head with an object several times. Mr. Myles began bleeding. Mr. Salmons and Matthew Callahan returned carrying items stolen from Mr. Myles' apartment.

After leaving Mr. Myles' apartment, Mr. Salmons drove to Lewis County. Kim Porter described the events that next occurred as follows:

Q. Once you all got back in the car, what, if anything, happened?
A. When we got in the car, we went up in a hollow, I don't know where it was located, and Matthew was talking about, you know, his family's land or something, and he was talking about, you know, we could kill him and no one would find his body there. So we went a long ways up there and everyone had forced Mr. Myles out of the car and we all had gotten out and Blaine had tried to get Mr. Myles to fight him and he wouldn't, so all of a sudden he just started throwing punches.
Q. Who's that that started throwing punches?
A. Blaine. And then everyone started taking turns on beating him.
Q. Who were they beating?
A. Mr. Myles
* * * * * *
Q. When the beatings were over, what did you think, what did you think about Mr. Myles?
A. He was on the ground, he was laying and blood was everywhere and I was scared. I thought he was dead.

After the beating, Mr. Myles was again forced into the car. Mr. Salmons and his accomplices then forced Mr. Myles to ride with them as far as Georgia.8 While in Georgia, Blaine Salmons decided he wanted to return to Charleston. Mr. Salmons and his accomplices agreed. At that point, Mr. Myles was instructed to drive the car. On March 29, 1996, Mr. Myles drove into Charleston with his abductors. Mr. Salmons and his accomplices got out of the car leaving Mr. Myles by himself. Mr. Myles was given a note by his abductors when they left him. The note read:

Philip, we all just want you to know that we're sorry and we hope that you don't go to the police because we'll get away and then we'll be back for you but if you just forget about everything, we'll never come after you again but if you get one of the Crips in trouble, you will be a dead man so think smart before you do something stupid because you can't get us all and you know that. Just go on with your life and don't make us have a reason to come back for you. Peace.

Subsequent to Mr. Myles' release by his abductors, a grand jury returned an indictment against Mr. Salmons charging him with kidnaping and aggravated robbery in the abduction of Mr. Myles.9 On November 22, 1996, a jury found Mr. Salmons guilty of both charges. On February 18, 1997, the trial court sentenced Mr. Salmons to thirty years imprisonment on the aggravated robbery conviction, and life imprisonment with mercy on the kidnaping conviction. The sentences were ordered to run concurrently. From this sentencing, Mr. Salmons appeals to this Court.

A. The Failure to Disclose Exculpatory Evidence

Mr. Salmons' first assignment of error involves a statement given to the police by Jeffrey Huff. Mr. Huff was at the Tap Room bar at the time of Mr. Myles' abduction. Mr. Huff informed police investigating the crime that, as Mr. Myles left the bar, Mr. Myles stated that he was taking Mr. Salmons home. Mr. Huff's statement was never provided to Mr. Salmons. Mr. Salmons contends in this appeal that failure to produce the statement to him violated the disclosure principles articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 26.2 of the West Virginia Rules of Criminal Procedure; and Rule 612(b) of the West Virginia Rules of Evidence.

Before considering the Brady assignment of error, we must first decide whether the Brady issue is properly before this Court. "We are duty bound to take up [this] issue sua sponte, because it implicates the scope of our appellate jurisdiction." Province v. Province, 196 W.Va. 473, 478 n. 11, 473 S.E.2d 894, 899 n. 11 (1996). The record does not indicate how or when Mr. Salmons first learned of Mr. Huff's statement. Mr. Salmons' brief mentions, in a footnote, that the defense was unaware of the statement during the trial. The State acknowledges the existence of the statement and has briefed the issue. Regardless of these facts, it appears that the issue of Mr. Huff's statement was never presented to the trial court, as there is no court order or hearing transcript directly addressing Mr. Huff's statement evidencing that the trial court had an opportunity to rule on the matter.10 While the parties apparently agree that this Court should consider the present issue, we are not bound to hear it. "Courts are never bound by the acts or agreements of the parties." Bartles v. Hinkle, 196 W.Va. 381, 388, 472 S.E.2d 827, 834 (1996).

We have held that "[a]s a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). "We have invoked this principle with a near religious fervor. This variant of the `raise or waive' rule cannot be dismissed lightly as a mere technicality. The rule is founded upon important considerations of fairness, judicial economy, and practical wisdom." State v. Miller, 197 W.Va. 588, 597, 476 S.E.2d 535, 544 (1996). See Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) ("This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record."); State v. Grimmer, 162 W.Va. 588, 595...

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