State v. Sites
| Decision Date | 07 February 2019 |
| Docket Number | 16-0437 |
| Parties | STATE of West Virginia, Respondent v. Michael S. SITES, Petitioner |
| Court | West Virginia Supreme Court |
Nicholas T. James, Esq., Daniel R. James, Esq., The James Law Firm, Keyser, West Virginia, Attorneys for Petitioner
Patrick Morrisey, Esq., Attorney General, Thomas T. Lampman, Esq., Assistant Attorney General, Gordon L. Mowen, II, Esq., Assistant Attorney General, Attorneys for Respondent
This appeal was brought by Michael S. Sites (hereinafter "Petitioner") from the April 11, 2016, order of the Circuit Court of Grant County sentencing him for his convictions of first-degree murder, holding a hostage to defile, and two counts of possession of a controlled substance with intent to deliver.1 In this appeal Petitioner has assigned error as follows: admission of toxicology evidence, admission of Rule 404(b) evidence, joinder of Count II with other offenses, failure to sever offenses occurring on different dates, improperly responding to jury questions, admission of previously excluded evidence, and insufficient evidence to support two convictions. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.
The relevant facts of this case began on September 12, 2013. On that day, Petitioner drove from his home in Grant County, West Virginia, to a pharmacy in Winchester, Virginia, to pick up his prescription drugs Alprazolam
(also called Xanax ) and Oxycodone
(also called Percocet
).2 Petitioner was accompanied by his adult daughter, Jordan Kivett, and an adult family relative named Lexus Cantwell.3 After obtaining the pills, and while still in the pharmacy parking lot, Petitioner, Ms. Kivett and Ms. Cantwell crushed some of the pills and snorted them up their noses. Later that evening a party was held at Petitioner’s home in Grant County. Petitioner gave his prescription pills freely to all the females at the party, including Ms. Cantwell. The men were required to pay for the pills.
At some point during the evening, Ms. Cantwell became incapacitated from taking the prescription pills and drinking alcohol. After a few of the guests did not see Ms. Cantwell in the house, they asked Petitioner where she was. Petitioner stated that Ms. Cantwell "passed out in the closet, so [he] put her in the bed." One of the guests, Joey Snyder, demanded to see Ms. Cantwell.4 Petitioner unlocked his bedroom door briefly and Mr. Snyder was able to see Ms. Cantwell lying on a bed with her pants off.
It appears that during the course of the next four days Ms. Cantwell stayed at Petitioner’s home. Ms. Kivett, who had been staying at Petitioner’s home, stayed at the home of her boyfriend during this four-day period. However, Ms. Kivett maintained daily contact with Ms. Cantwell during this time. Ms. Kivett had the impression that Ms. Cantwell "acted like she almost wasn’t allowed to [leave Petitioner’s home]." On September 16, 2013, Ms. Kivett went to Petitioner’s home to do some laundry. She repeatedly knocked on Petitioner’s bedroom door, which was locked, but got no answer. After being in the home for several hours, Ms. Kivett began knocking on Petitioner’s bedroom door again. Petitioner finally responded and said that he would be out. After Petitioner came out of his bedroom, Ms. Kivett saw Ms. Cantwell lying on his bed with vomit coming out of her mouth and blood coming out of her nose and ears; she was dead. Ms. Kivett told Petitioner to call 911, but he decided to drive Ms. Cantwell’s body to a hospital.
Petitioner dropped off Ms. Cantwell’s body at Grant Memorial Hospital. He informed a nurse that Ms. Cantwell was a friend of his daughter and that he believed her name was Lexi. Petitioner left the hospital without telling the nurse his name. After Petitioner left the hospital, he saw Ms. Kivett riding with her boyfriend and flagged them down. During a brief discussion with Ms. Kivett on the roadside, Petitioner attempted to get her to agree that he was at work when she found Ms. Cantwell’s body. Ms. Kivett informed Petitioner that she was going to tell the truth. A few days later Petitioner tried to suggest to Ms. Kivett that Ms. Cantwell committed suicide. Several days after this incident Petitioner told Ms. Kivett that "he was afraid that it was his fault, that he may have gave [Ms. Cantwell] too many pills." A pathologist determined that Ms. Cantwell "died of intoxication by the combined effects of the oxycodone
and the alprazolam."
Subsequent to a police investigation, a grand jury returned a five count indictment against Petitioner on March 3, 2015. The indictment charged him with one count of first-degree murder by supplying Ms. Cantwell with lethal amounts of Oxycodone and Alprazolam; one count of holding Ms. Cantwell hostage with the intent to defile; two counts of possession with the intent to deliver the controlled substance Alprazolam; and one count of possession with the intent to deliver the controlled substance Oxycodone. The prosecutor presented the case under a felony-murder theory, with the Oxycodone charge as the underlying felony.5
The case was tried before a jury starting on February 17, 2016, and concluded on February 19, 2016.6 The prosecutor presented testimony from nineteen witnesses. Petitioner did not testify and did not call any witnesses. The jury submitted seven questions to the trial court during its deliberations. The trial court responded to each of the questions. The jury ultimately returned a verdict convicting Petitioner of first-degree murder, holding hostage to defile, and two counts of possession with the intent to deliver the controlled substance Alprazolam.7 Following the denial of post-trial motions the Petitioner filed this appeal. While the appeal was pending the parties filed a joint motion asking this Court to stay the appeal,8 and permit them to supplement the record on the issue of the trial judge responding to seven jury questions.9 By order entered January 25, 2017, this Court granted the motion and remanded the case "for the limited purpose of establishing the record on issues related to the assignment of error of whether petitioner’s rights were violated when the circuit court answered a series of questions for the jury outside the presence of petitioner or his counsel."10
On remand, a hearing was conducted before a new judge, the Honorable H. Charles Carl, III. A total of eight witnesses testified on remand regarding the issue, including Petitioner, his trial counsel11 and the presiding trial judge.12 Petitioner testified that he was present when the trial court responded to the first two jury questions, but that his trial counsel was not present. Petitioner also testified that he was not present when the trial judge responded to the last five jury questions. Petitioner’s trial counsel testified that he was only present for one of the questions (possibly the sixth question) submitted by the jury. Trial counsel also disputed a claim that the trial judge contacted him by cell phone regarding the first two jury questions. The trial judge testified that Petitioner was not present when he responded to the last five jury questions, but that Petitioner’s trial counsel was present for all of the questions except the first jury question.13 The trial judge also stated that he called trial counsel on his cell phone and consulted with him regarding the first jury question.14 The official court reporter testified that the court reporting equipment was running in the courtroom during the jury deliberations. The court reporter indicated that the recording equipment only picked up trial counsel’s voice once, and that was around the time when the sixth jury question was sent into the courtroom. The court reporter also testified that she distinctly remembered that trial counsel was not present for the first question, because "[w]e contacted him at McDonald’s and waited." The trial judge’s law clerk testified that the trial judge called Petitioner’s trial counsel to inform him of the first jury question. The law clerk also testified that trial counsel was present for the last five jury questions. The bailiff for the trial judge testified that trial counsel was present for all of the jury questions. Two other witnesses at the hearing testified that they had no recollection of the events surrounding the jury questions.15
Subsequent to the remand hearing, the Petitioner filed a supplemental brief addressing the jury question issues. The State then filed its brief, which addressed the jury question issues.
This case comes to this Court after the trial court denied Petitioner’s post-trial motions for judgment of acquittal and new trial. We have held that "[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, Sanders v. Georgia-Pacific Corp ., 159 W. Va. 621, 225 S.E.2d 218 (1976). It has also been noted that McInarnay v. Hall , 241 W. Va. 93, 818 S.E.2d 919, 924 (2018) (internal quotation marks and citation omitted). This Court applies the following general standard when reviewing a circuit court decision denying a motion for 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...
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