State v. Zuspan

Decision Date11 June 2018
Docket NumberNo. 17-0723,17-0723
CourtWest Virginia Supreme Court
PartiesState of West Virginia, Plaintiff Below, Respondent v. Paul Gregory Zuspan, Defendant Below, Petitioner

(Mason County 14-M-AP-2)


Petitioner Paul Gregory Zuspan, by counsel Paul A. Knisley and Kevin W. Hughart, appeals the Circuit Court of Mason County's July 26, 2017, order denying his appeal from magistrate court following his conviction of one count of battery on an officer and two counts of obstructing/resisting an officer. The State of West Virginia, by counsel Scott E. Johnson, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the magistrate court (1) committed plain error when it effectively denied him court-appointed counsel and did not determine if he understood the consequences of going forward without counsel; (2) erred in granting the State's motion in limine to restrict the taking of evidence to only those events that took place at the scrapyard; (3) erred in refusing to permit petitioner to examine the police officers concerning evidence petitioner believed had not been produced; and (4) showed bias toward petitioner by discussing certain issues in front of the jury and the manner in which it addressed him. Petitioner also alleges that the State committed prosecutorial misconduct when it bolstered the credibility of its witnesses.

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 affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In December of 2011, seven criminal complaints were filed against petitioner that charged him with one count of damage or destruction of public utility property, two counts of battery on an officer, two counts of assault on an officer, and two counts of obstructing/resisting an officer. These charges stemmed from an incident in which two officers stopped at a scrapyard in order to speak with petitioner regarding signs nailed to public utility poles. Upon being notified that the manner in which the signs were hung violated state law, petitioner "angrily responded" that the poles belonged to him and he "could put whatever he wanted on them." After the officers reiterated that the poles were public utility poles, petitioner became "verbally irate" and told the officers to leave his property. One officer then asked petitioner to provide his identification, which caused petitioner to become "even more belligerent" and threaten the officers with a large metal bar. Petitioner was advised to put the bar down; petitioner complied, but also took a defensive posture and refused to be handcuffed. As the officers attempted to handcuff petitioner, he forcefully fought their efforts, kicked both officers in their legs, and threatened them by saying he would "take both of [them]." Petitioner was eventually taken into custody and transported to the Mason County State Police Detachment, where further physical altercations between petitioner and police were alleged to have occurred.

In December of 2013, petitioner filed a civil suit against the West Virginia State Police Department in Mason County. However, in April of 2014, petitioner's suit was dismissed, without prejudice, due to his failure to comply with statutory notice provisions.

In May of 2014, petitioner's jury trial took place in magistrate court. Prior to trial, petitioner's first court-appointed attorney filed a motion to be relieved as counsel on the ground that the attorney-client relationship had deteriorated. This motion was granted. After new counsel was appointed, petitioner asked for her to be removed because the new attorney did not keep an appointment with him and, instead, appeared for the meeting the day after their scheduled appointment. This motion was also granted. Finally, after receiving a third appointed attorney, petitioner requested that new counsel move to withdraw because of a breakdown in communication. That motion was granted, and petitioner thereafter moved to proceed without an attorney. As such, petitioner represented himself at trial. Ultimately, the jury convicted petitioner of one count of battery on an officer and both counts of obstructing/resisting an officer. The jury acquitted petitioner of the remaining counts. The magistrate thereafter sentenced petitioner to an effective sentence of six months in jail and a total of $1,143.83 in court costs.

In August of 2014, petitioner appealed his conviction to the circuit court. Ultimately, the circuit court denied petitioner's appeal. It is from the order denying and dismissing his appeal to circuit court that petitioner appeals.

To begin, petitioner argues that the magistrate court committed plain error when it effectively denied him court-appointed counsel and did not determine if he understood the consequences of going to trial without an attorney. Accordingly, we note that "[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." Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). We further note that "[a] judge's decision to allow an accused to exercise his right to self-representation is reviewed under an abuse of discretion standard." Syl. Pt. 1, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005). Upon our review, we find no abuse of discretion in the magistrate's court's decision to permit petitioner to exercise his right to self-representation.

In regard to self-representation, we have held as follows:

"A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3)he exercises the right in a manner which does not disrupt or create undue delay at trial." Syllabus Point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

Sandor, 218 W.Va. at 471-72, 624 S.E.2d at 908-09, Syl. Pt. 4. Moreover,

[w]hen an accused chooses to proceed without the assistance of counsel, the preferred procedure is for the trial court to warn the accused of the dangers and disadvantages of self-representation and to make inquiries to assess whether the accused's choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction may be sustained only if the totality of the record demonstrates that the accused actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation.

Id. at 472, 624 S.E.2d at 909, Syl. Pt. 7. Finally, we note that "[t]he test [to determine whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel is] whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se." Id. at 472, 624 S.E.2d at 909, Syl. Pt. 5 (quoting Syl. Pt. 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985)).

At the outset, it is important to note that petitioner does not allege that he was unaware of the dangers of self-representation. In fact, on appeal to this Court, petitioner plainly states that "[he] understood the risks of self-representation[.]" Instead, he takes issue with the level of the magistrate court's warnings concerning such dangers. According to petitioner, the magistrate court's warning that he would be required to understand how the trial proceeds and what he was allowed to do constituted an insufficient warning about the dangers of self-representation. We find, however, that the magistrate court appropriately warned petitioner of the dangers of self-representation, especially given petitioner's admission that he was aware of these dangers.

Further, the record is clear that petitioner voiced his desire to represent himself in a clear and unequivocal manner. As noted above, petitioner was appointed three separate attorneys prior to trial. With the exception of the first attorney, petitioner either moved for or joined in the motion moving for the attorney's removal. Specifically, petitioner moved, pro se, to remove his second attorney because she failed to appear for a scheduled meeting. In relation to his third attorney, the record shows that petitioner expressed a desire for that individual to be relieved from his representation. At this point, petitioner specifically motioned the magistrate court to be permitted to represent himself. In fact, in his motion, petitioner alleged that, in addition to the multiple attorneys appointed to represent him, he also sought to retain his own counsel. However, petitioner alleged that he could not find an attorney that would represent him and that no attorneys, including court-appointed counsel, would present his case "how [he] wishe[ed] it to be handled." At trial, the magistrate court discussed petitioner's decision to represent himself and indicated that, one month prior to trial, the magistrate "asked [petitioner] five separate times that day [if he] wanted to apply for court[-]appointed counsel again." Despite the magistrate court's repeated questions concerning the appointment of counsel, petitioner ultimately responded that he would represent...

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