State v. White

• Decision Date: 18 August 2011
• Docket Number: No. 35529.,35529.
• Citation: 722 S.E.2d 566
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Larry S. WHITE, II, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

722 S.E.2d 566

STATE of West Virginia, Plaintiff Below, Appellee

v.Larry S. WHITE, II, Defendant Below, Appellant.

No. 35529.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 2011.

Decided Feb. 10, 2011.

Aug. 18, 2011.

Opinion of Justice Alsop

Matthew L. Clark, Kayser Layne & Clark, PLLC, Point Pleasant, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, WV, for Appellee.

DAVIS, Justice:

In this appeal, Larry S. White, II, defendant below (hereinafter referred to as "Mr. White"), challenges an order of the Circuit Court of Jackson County convicting him of one count of first-degree murder and one count of conspiracy to commit a felony, and sentencing him to life with mercy for the first-degree murder conviction, and a consecutive sentence of one to five years for the conspiracy. Mr. White contends that the trial court committed the following errors: (1) failing to grant his motions to strike two prospective jurors; (2) convicting him upon insufficient evidence; (3) admitting evidence that was the fruit of an unlawful search of a cellular telephone; (4) admitting certain out-of-court statements under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence ; and (5) refusing to grant his "Amended Renewed Motion for New Trial" based upon alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a thorough review of this appeal, we find no error. We therefore affirm the circuit court's order.

I.FACTUAL AND PROCEDURAL HISTORY

According to the evidence presented at trial,¹ at the time relevant to the instant matter, the defendant, Mr. White, and Roseann Osborne, the victim's wife (hereinafter referred to as "Ms. Osborne"), had been romantically involved for some time, had lived together for nearly a year, and had a young child together, notwithstanding the fact that Ms. Osborne was, throughout this time, married to Mohammed Mahrous (hereinafter referred to as "Mr. Mahrous"). There also was evidence that Mr. White and Ms. Osborne had, at various times, discussed their desire to murder Mr. Mahrous in the presence of one of their friends, Angelina Barney.

Sometime after 9:15 p.m. on September 17, 2007, Ms. Osborne and her husband, Mr. Mahrous, met at Riverfront Park in Ravenswood, West Virginia. Ms. Osborne drove to the park in a yellow Ford truck that was owned by her husband, and her husband drove to the park in a vehicle she owned. While Ms. Osborne and Mr. Mahrous were at the park, Mr. White approached them and inflicted three forceful blows to Mr. Mahrous's head with a hammer, causing his death. The evidence established that the hammer was in a plastic bag during the attack. The plastic bag, stained with traces of Mr. Mahrous's blood, was later discovered on the river bank, and a subsequent search of the river produced the hammer. Stuck to the hammer was a piece of the plastic bag.

Following the attack, Mr. White departed from the park, while, at approximately 10:22 p.m., Ms. Osborne called the Jackson County 911 Center and reported that her husband had been attacked by an unknown assailant who first asked him for a cigarette and then began to strike him in the head. Ms. Osborne gave a description of the assailant that did not match Mr. White. Police and Emergency personnel responded, and Mr. Mahrous was pronounced dead at the scene.

The yellow Ford truck and Ms. Osborne's vehicle were transported to the city maintenance garage in Ravenswood, West Virginia, and, relevant to this case, a search warrant was obtained to search the truck. Among other things, a Motorola cellular telephone was seized during the search. The telephone led investigators to the defendant, Mr. White, who was then in the State of Indiana. Officers traveled to Indiana to take a statement from Mr. White. During the course of a six-hour interview, Mr. White ultimately confessed to killing Mr. Mahrous by striking him in the head with a hammer. Following the investigation, a grand jury indicted Mr. White and Ms. Osborne with murder in the first degree and conspiracy to commit murder in the first degree. Mr. White and Ms. Osborne were tried separately.²

At trial, Mr. White did not dispute that he had killed Mr. Mahrous. Rather, he presented a diminished capacity defense, arguing that he lacked the ability to premeditate and deliberate Mr. Mahrous's murder. The jury found him guilty of murder in the first degree with a recommendation of mercy, and likewise found him guilty of conspiracy to commit a felony. Mr. White filed a motion for a new trial, and the motion was denied. The trial court then sentenced him to life with mercy for the charge of first-degree murder, and a term of not less than one year nor more than five years for the conspiracy charge. The two sentences are to be served consecutively. Mr. White then filed an "Amended Renewed Motion for New Trial." The trial court denied the motion, and this appeal followed.

II.STANDARD OF REVIEW

This case is on appeal from the trial court's order denying Mr. White's motion for a new trial. With respect to a trial court's denial of a motion for a new trial, this Court has explained 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)." Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

Syl. pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Most of the contended errors raised by Mr. White in this appeal are subject to particular standards of review, which standards will be set out in connection with our discussion of the alleged errors to which they pertain. Nevertheless, we note here that our general standards for reviewing findings and rulings made by a trial court have been described in this way:

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). See also Tennant v. Marion Health Care Found., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995) ("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."). With this general standard in mind, we proceed to address the issues herein raised by Mr. White.

III.DISCUSSION

On Appeal, Mr. White has set forth several assignments of error. We will address each assertion separately.

A. Jurors

Mr. White first argues that the trial court erred in failing to grant his motions to strike for cause two prospective jurors, Michelle Lemon and Cassia Scott, based upon their bias or prejudice allegedly revealed during voir dire.³ The State replies that there was no abuse of discretion on the part of the trial court in denying Mr. White's motions to strike the prospective jurors, as their voir dire responses did not demonstrate any bias or prejudice.

1. Standard of Review. As the State correctly observes, "[t]he determination of whether a prospective juror should be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge." O'Dell v. Miller, 211 W.Va. 285, 288, 565 S.E.2d 407, 410 (2002). See also State v. Miller, 197 W.Va. 588, 605, 476 S.E.2d 535, 552 (1996) ("The trial court has broad discretion in determining whether to strike jurors for cause, and we will reverse only where actual prejudice is demonstrated." (citation and footnote omitted)). With respect to this Court's standard for reviewing a trial court's ruling on a motion to disqualify a juror, it has been further established that,

[i]n reviewing the qualifications of a jury to serve in a criminal case, we follow a three-step process. Our review is plenary as to legal questions such as the statutory qualifications for jurors; clearly erroneous as to whether the facts support the grounds relied upon for disqualification; and an abuse of discretion as to the reasonableness of the procedure employed and the ruling on disqualification by the trial court.

State v. Miller, 197 W.Va. 588, 600–01, 476 S.E.2d 535, 547–48 (1996).

2. Discussion. Having considered the proper standard for our review of this issue, we turn to our analysis, first noting that

[t]he relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.

Syl. pt. 4, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535. Furthermore, "[a]ctual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed." Syl. pt. 5, id.

The basis for Mr. White's objection to Ms. Lemon was that she had a relationship with a detective who was the lead investigator in the case. However, the circuit court concluded that Ms. Lemon's only connection was with the...