State Va. v. Black

• Decision Date: 04 March 2010
• Docket Number: No. 34722.,34722.
• Citation: 227 W.Va. 297,708 S.E.2d 491
• Parties: STATE of West Virginia, Plaintiff Below, Appelleev.Justin Keith BLACK, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

227 W.Va. 297

708 S.E.2d 491

STATE of West Virginia, Plaintiff Below, Appellee

v.Justin Keith BLACK, Defendant Below, Appellant.

No. 34722.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 2010.Decided March 4, 2010.

Syllabus by the Court

1. “It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review.” Syllabus point 2, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

2. “ ‘It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence.’ Syllabus Point 1, State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669 (1966), overruled in part, State ex rel. White v. Mohn, , 283 S.E.2d 914 (1981).” Syllabus point 2, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

3. “The question of admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, , 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994) only arises if it is first established that the testimony deals with ‘scientific knowledge.’ ‘Scientific’ implies a grounding in the methods and procedures of science while ‘knowledge’ connotes more than subjective belief or unsupported speculation. In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. It is the circuit court's responsibility initially to determine whether the expert's proposed testimony amounts to ‘scientific knowledge’ and, in doing so, to analyze not what the experts say, but what basis they have for saying it.” Syllabus point 6, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

4. “Where a trial court is presented with a defendant's failure to disclose the identity of witnesses in compliance with West Virginia Rule of Criminal Procedure 16, the trial court must inquire into the reasons for the defendant's failure to comply with the discovery request. If the explanation offered indicates that the omission of the witness' identity was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it is consistent with the purposes of the compulsory process clause of the sixth amendment to the United States Constitution and article II, section 14 of the West Virginia Constitution to preclude the witness from testifying.” Syllabus point 1, State v. Ward, 188 W.Va. 380, 424 S.E.2d 725 (1991).

5. “Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant.” Syllabus Point 4, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991).

6. “ ‘ “ ‘To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.’ Point 2, Syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).” Syllabus Point 1, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978).' Syl. pt. 1, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).” Syllabus point 6, State v. Satterfield, 193 W.Va. 503, 457 S.E.2d 440 (1995).

7. A claim of a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), presents mixed questions of law and fact. Consequently, the circuit court's factual findings should be reviewed under a clearly erroneous standard, and questions of law are subject to a de novo review.

8. “There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982):(1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.” Syllabus point 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

9. “Subject to certain exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court.” Syllabus point 8, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199 (1983).

10. “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 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.” Syllabus point 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

Jay C. Love, Huntington, WV, for the Appellant.Darrell V. McGraw, Jr., Attorney General, R. Christopher Smith, Assistant Attorney General, Charleston, WV, for the Appellee.

DAVIS, Chief Justice:

The defendant below and appellant herein, Justin Keith Black (hereinafter “Mr. Black”), appeals from an order entered July 2, 2008, by the Circuit Court of Cabell County. By that order, the circuit court sentenced Mr. Black to a period of forty years in the penitentiary following Mr. Black's jury conviction of second degree murder in violation of W. Va.Code § 61–2–1 (1991) (Repl.Vol.2005).¹ On appeal to this Court, Mr. Black sets forth numerous assignments of error, which will be addressed in this opinion. Based upon the parties' written arguments, the record designated for our consideration, and the pertinent authorities, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

On August 8, 2002, the dead body of Ms. Deanna Crawford was found by some loggers on Hickory Ridge located in Cabell County, West Virginia. The initial investigation focused on a suspect who was subsequently cleared by the police department, and the case went cold for several years.² Then, in January 2007, the police received information that a man named Brian Dement was involved with the murder, along with Mr. Black, Nathan Barnett, and Phillip Barnett.

Brian Dement was questioned by the police and provided several statements,³ all of which were different regarding his degree of participation in the matter. He gave a statement to the police detailing that he, along with Mr. Black, Phillip Barnett, and Nathan Barnett, was at a party on or about August 5, 2002, at Mr. Black's residence. He provided that he and the aforementioned persons left the party, along with Ms. Crawford, in a car that was driven by Mr. Black. Brian Dement further claimed that they stopped the car at an abandoned farm, that they all physically assaulted Ms. Crawford with kicks and punches, and that she was eventually killed.⁴ While Brian Dement's statements contained conflicting versions of his own participation in the murder, his last statement admitted his hands-on involvement in the crime. He was eventually arrested.

Mr. Black heard that the police were looking for him as a result of Brian Dement's statements, and he agreed to meet at the police detachment. Once there, he was Mirandized.⁵ While his statement provided a very limited version of his role in the events, he eventually admitted that he was with the victim, Brian Dement, Phillip Barnett, and Nathan Barnett on the evening in question. He further admitted that he drove them from the party at his house to a place on Hickory Road where there was an abandoned building. He stated, however, that he stayed at the vehicle while the others went to the area that became the crime scene. According to Mr. Black, Phillip and Nathan Barnett eventually returned to the car red-faced and the three of them left, leaving the victim and Brian Dement behind. Mr. Black recanted his statement one week later, alleging he had been coerced into providing details that had been supplied to him by law enforcement officials and that, in actuality, he had no knowledge of the crime or victim in question. He was indicted for murder in May 2007, along with Brian Dement,⁶ Philip Barnett, and Nathan Barnett. ⁷

Mr. Black was tried by a jury beginning April 15, 2008.⁸ At Mr. Black's trial, Brian Dement testified that, on the night in question, upon arriving at the abandoned building, Phillip Barnett punched the victim in the side of the face. The four men, including Mr. Black, then began screaming at the victim. Brian Dement testified that he grabbed the victim around the neck and pulled her up a path while the other three men followed and punched and kicked and beat on her. Brian Dement stated he eventually released his own hold on the victim and went into the woods while the other three men continued to beat her. Brian Dement testified that he could hear the victim screaming for her life then everything went quiet. The other three men left in the car while he hid in the weeds. Brian Dement then went to check on the victim and found that she was dead. Two inconsistent statements of Brian Dement's previous statements were then played for the jury. Brian Dement spoke with two private investigators ⁹ prior to...