State v. Thomas

• Docket Number: 22-0239
• Decision Date: 08 November 2023
• Parties: STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. DAVID RAY THOMAS, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

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STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. DAVID RAY THOMAS, Defendant Below, Petitioner.

No. 22-0239

Supreme Court of Appeals of West Virginia

November 8, 2023

Submitted: September 12, 2023

Appeal from the Circuit Court of Ohio County The Honorable Michael J. Olejasz Case No. 18-F-15 AFFIRMED

Devon T. Unger, Esq. West Virginia Innocence Project Morgantown West Virginia Counsel for the Petitioner

Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq Solicitor General William E. Longwell, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

JUSTICE WOOTON dissents and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syllabus Point 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

2. ""'The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court.' Syllabus point 8, State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989)." Syllabus Point 1, State v. Costello, 245 W.Va. 19, 857 S.E.2d 51 (2021).

3. "'The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982)' Syl. Pt. 1, State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985)." Syllabus Point 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

4. "''The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, , 285 S.E.2d 432 (1981) [overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994)].' Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982)." Syllabus Point 5, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997).

5. "Under Code, 61-11-8, which provides, in part, that: 'Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows: ***' the failure or prevention of the accused to commit the offense attempted is as much an element of the attempt to commit the offense as the immediate specific intent to commit to the offense and an overt act in furtherance of such intent." Syllabus Point. 4, State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953).

6. Attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree.

7. "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syllabus Point. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

8. "Before a manifest necessity exists which would warrant the declaring of a mistrial and the discharging of the jury and ordering a new trial, the circumstances must be prejudicial, or appear to be prejudicial, to the accused or the state." Syllabus Point 3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972).

9. "The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case." Syllabus Point 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).

10. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syllabus Point 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976) (abrogated on other grounds by State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

11. "In the trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence, the weight and credibility of the testimony of any witness is for jury determination." Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952).

12. "It is improper for a prosecutor in this State to '[a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness … or as to the guilt or innocence of the accused….' ABA Code DR7-106(C)(4) in part." Syllabus Point 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

13. "'Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of the competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.' Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995)." Syllabus Point 1, State v. Hamrick, 216 W.Va. 477, 607 S.E.2d 806 (2004).

OPINION

ARMSTEAD, JUSTICE:

Petitioner appeals his conviction of sexual assault in the first degree following a jury trial in the Circuit Court of Ohio County. On appeal, Petitioner asserts that the circuit court erroneously: (1) refused to instruct the jury on the offense of attempted sexual assault in the first degree; (2) denied Petitioner's motion for a mistrial regarding a photographic identification; (3) denied an in camera hearing when Petitioner learned that there was an out-of-court photographic identification; and (4) denied a mistrial when the prosecution's key witness testified at trial to the opposite of what had been provided in discovery and the assistant prosecutor vouched for the witness's credibility.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the circuit court did not err. We, therefore, affirm Petitioner's conviction.

I. FACTUAL AND PROCEDURAL HISTORY

On or about February 3, 2017, A.M.^[1] disclosed to her elementary school counselor that a man touched her vagina one time.^[2] This disclosure was reported to West Virginia Child Protective Services and the West Virginia State Police. Further, this disclosure was memorialized in an email drafted by the counselor, which reads:

[A.M.] disclosed that in May or June of last summer (between 4 and 5 grade) a "private body part rule" had been broken with her. She shared that while at her mom's house, still living in North Park Apartments, her mom's friends "Dayo" had touched her vagina while he thought she was asleep on the couch. She explained that mom was in the shower and that she had fallen asleep on the couch with her baby brother, [A]. Dayo picked up and moved [A] to the other end of the couch and then sat back down with her and put his hand inside of her pants. He stopped when mom opened the door to come out of the bathroom, where she was showering. She pretended to be asleep while Dayo touched her and she thinks he did not know that she realized this was happening to her. She said that she told her mom the next day and that she said, Ok, I will talk to Dayo about it. [A.M.] thinks mom was lying [because] "I can always tell when she's lying" and thinks she never did anything about it [be]cause they never talked about it again. Until reporting to this counselor, she says that she has not told anyone else. I called the new caseworker and she asked me to help transport [A.M.] to Harmony House for forensic interview this same day. I also made a formal report to WV CPS centralized intake.

The counselor transported A.M. to Harmony House for a forensic interview. Although the interview was recorded, the video was the only portion that actually recorded. The audio of the interview failed to record.

A.M.'s case worker at the time of her disclosure witnessed the interview and prepared an email memorializing it. In the email, the case worker described A.M.'s account of the event in which she identified Dayo as the man who put his hand inside her clothes in the "bikini bottom part between the legs." Further, according to the case worker's email, A.M. said that Dayo "moved his fingers around and it felt 'weird it's hard to explain.'" She noted that "[A.M.] denies penetration. She says that the incident stopped when he heard...