State of WV v. Justice
January 1994 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
Defendant Below, Appellee
Appeal from the Circuit Court of Mingo County
Honorable Elliott E. Maynard, Judge
Criminal Action No. A91-F19
Submitted: January 12, 1994
Filed: May 24, 1994
Stephen R. Van Camp
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Williamson, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "In a criminal case, a verdict of guilt will not be
set aside on the ground that it is contrary to the evidence, where
the state's evidence is sufficient to convince impartial minds of
the guilt of the defendant beyond a reasonable doubt. The evidence
is to be viewed in the light most favorable to the prosecution. To
warrant interference with a verdict of guilt on the ground of
insufficiency of evidence, the court must be convinced that the
evidence was manifestly inadequate and that consequent injustice
has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517,
244 S.E.2d 219 (1978).
2. "An indictment which charges that the defendant
feloniously, wilfully, maliciously, deliberately, premeditatedly
and unlawfully did slay, kill and murder is sufficient to support
a conviction for murder committed in the commission of, or attempt
to commit arson, rape, robbery or burglary, it not being necessary,
under W.Va. Code, 61-2-1, to set forth the manner or means by which
the death of the deceased was caused." Syllabus point 5, State v.
Bragg, 160 W.Va. 455, 235 S.E.2d 466 (1977).
3. "The general rule is that the voluntary consent of a
person who owns or controls premises to a search of such premises
is sufficient to authorize such search without a search warrant,
and that a search of such premises, without a warrant, when
consented to, does not violate the constitutional prohibition against unreasonable searches and seizures." Syllabus point 8,
State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971).
4. "Failure to make timely and proper objection to
remarks of counsel made in the presence of the jury, during the
trial of a case, constitutes a waiver of the right to raise the
question thereafter either in the trial court or in the appellate
court." Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93
S.E.2d 526 (1956).
5. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus point 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).
This is an appeal by Sharon Justice from an order of the
Circuit Court of Mingo County sentencing her to life in the
penitentiary with a recommendation of mercy for first degree
murder. On appeal, the defendant claims that the jury's verdict
was not supported by substantial evidence and that the prosecuting
attorney abused his position during trial. She argues that she
should have been granted a new trial on the basis of after-
discovered evidence; that there was a material variance between the
charges contained in the indictment against her and the proof
presented by trial by the State; and that the court erred in
failing to suppress certain items seized from her car. Lastly, the
defendant claims that the State committed a number of acts of
prosecutorial misconduct during her trial. After reviewing the
questions presented, this Court can find no reversible error.
Accordingly, the judgment of the Circuit Court of Mingo County is
During the early evening hours of March 22, 1991, the
defendant met Harold Cline, an individual who had the reputation of
frequently carrying a large amount of money, at the Playpen, a
small bar in Gilbert, West Virginia. She sat with him and
conversed with him.
While the defendant was talking with Mr. Cline, Richard
Collins and Randy Highlander entered the bar. Richard Collins knew
the defendant's daughter, and he spoke to the defendant. Sometime
later, according to Mr. Collins' testimony during the defendant's
trial, the defendant took Mr. Collins aside and told him that Mr.
Cline had a large amount of money. She suggested that she lure Mr.
Cline to another club and that Mr. Collins follow them. She
further suggested that Mr. Collins knock Mr. Cline over the head
with a baseball bat, which she had in her car, at an appropriate
time so that she could take his money.
After the defendant spoke with Mr. Collins, it was openly
suggested that the party go to the next club up the road, where
music was available for dancing. Mr. Cline learned of this
suggestion and wanted to go along. A short time later, the
defendant gave Mr. Collins and Mr. Highlander the keys to her car
and asked them to take it up to the next club, and she proceeded to
the club with Mr. Cline in his car.
When the defendant and Mr. Cline reached the next bar,
which was called "Yesterdays," Mr. Cline parked and got out and
started walking around to the passenger side door to let the
defendant out. Before he got there, the defendant was already
alighting from the car. A moment later, Richard Collins approached
Mr. Cline with a baseball bat and struck him on the shoulder. He then proceeded to strike Mr. Cline on the head with sufficient
force to fracture his skull. Mr. Cline later died of his injuries.
Shortly after the attack, the defendant, Mr. Collins, and
Mr. Highlander left the scene in the defendant's car.
During her trial, the defendant denied that she had
conspired with Mr. Collins and testified that she was horrified as
she watched Mr. Collins attack Mr. Cline.
Two individuals who were at Yesterdays witnessed the
attack on Mr. Cline from a distance. They were not able to
identify the assailants, but one of the witnesses, Michael Burke,
a security guard at Yesterdays, did manage to get the license plate
number of the vehicle in which they left the scene. The license
number was 1LF 998, a license plate number registered in the name
of the defendant.
The State Police were notified of the attack and traced
the license number taken by the witness to the defendant. They
later found the defendant's car parked outside her trailer. When
they arrived, Mr. Collins and Mr. Highlander were in the car, and
the State Police placed them under arrest. One of the State
troopers, Trooper Hedrick, observed an aluminum baseball bat lying
on the passenger side floorboard. Another trooper, Trooper
Schoolcraft, found a one-hundred-dollar bill and two one-dollar bills in Mr. Highlander's possession. A third trooper, Trooper
Kuenzel, found two one-hundred-dollar bills and four fifty-dollar
bills in the possession of Mr. Collins.
Inside the trailer, Trooper Hedrick advised the defendant
of her Miranda rights and questioned her about the incident at
Yesterdays. She stated that she knew Mr. Collins and Mr.
Highlander and that she had let them use her vehicle. The
defendant was not arrested. Her car, however, was impounded by the
On March 25, 1991, the defendant went to the State Police
barracks and inquired about retrieving her car. Trooper Hedrick
informed her that he was in the process of obtaining a search
warrant for the car, and he indicated that he needed either a
search warrant or a consent to search before he could search the
vehicle. He also apparently informed her that she could not
retrieve her car until it had been searched. The defendant
indicated that she would give a consent to search, and she signed
a form consent to search authorizing the State Police to search her
car. According to Corporal Pope and Trooper Hedrick, who were
present at the time the defendant signed the consent to search, the
form was read to her, and she indicated that she understood it.
After the consent to search was executed, Trooper Hedrick
took a photograph of the vehicle before actually conducting the search. The photograph showed the aluminum bat and a vodka bottle
in plain view on the floor of the car. The actual search of the
vehicle produced the bat, the vodka bottle, six one-dollar bills,
a sock with a rock in it, and a receipt of Harold Cline dated
March 9, 1990.
After further investigating the crime, the State Police
concluded that the defendant was implicated in it, and she was
indicted for murder. Mr. Collins and Mr. Highlander were also
indicted. Mr. Collins subsequently plead guilty to first degree
murder, and Mr. Highlander plead guilty to second degree murder.
The defendant was tried before a jury on January 6, 7, 8,
and 9, 1992. At the conclusion of the trial, the jury found the
defendant guilty of murder in the first degree and recommended
The Circuit Court of Mingo County subsequently sentenced
the defendant to life in the penitentiary with a recommendation of
On appeal, the defendant claims that the evidence adduced
during her trial did not support the jury's verdict.
In syllabus point 1 of State v. Starkey, 161 W.Va. 517,
244 S.E.2d 219 (1978), this Court summarized what should be considered in determining whether the evidence in a case supported
the verdict. The Court stated:
In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.
During the trial of the present case, Richard Collins,
who had previously plead guilty to first degree murder in
conjunction with the killing of Mr. Cline, testified in behalf of
the State. His testimony clearly implicated the defendant. Mr.
Collins testified as follows:
A: She [the defendant] told me that the old man sitting at the bar [Mr. Cline] had $4,000.00 or $5,000.00 on him and that there was a ball bat in the car and she wanted me to knock him out so that she could take his money . . . .
Q: And how was this to be accomplished?
A: I was to get the ball bat and knock him out and I was to follow her up to the club and when she had his back turned I was supposed to knock him out.
Q: Did you agree to do that?
A: Yes, sir, I did.
A: Because she said her daughter needed some clothes.
Mr. Collins also testified that after he had knocked the victim to the ground, the defendant bent down and started going through Mr. Cline's pockets. He said that the defendant took Mr. Cline's billfold and urged him to follow. She started running toward her car, and he followed. He testified that after the two of them got to the car, the defendant was happy and gave him Mr. Cline's wallet and told him to take some of the money and give her the rest. Later, she took the wallet back, and when the car stopped in a small hollow, she burned the cards and papers in it.
The State adduced the testimony of Randy Lee Highlander,
who had plead guilty to second degree murder in conjunction with
the killing of Mr. Cline. Mr. Highlander's testimony indicated
that Mr. Collins and the defendant planned the robbery of Mr.
Cline. His testimony largely corroborated that of Mr. Collins. He
further testified that at the time of the attack on Mr. Cline, the
defendant did not attempt to help Mr. Cline in any way, that she
did not scream, and that she did not run away. Instead, she bent
over Mr. Cline's body. He further testified that, at that point,
he ran from the scene of the immediate attack. He further
testified that he left the general scene with Mr. Collins and the
defendant in the defendant's car.
To develop its case further, the State called as a
witness Michael Burke, the security guard at Yesterdays Club, who
witnessed the assault on Mr. Cline and who managed to get the license number of the vehicle in which the perpetrators of the
crime left the scene.
Further evidence adduced by the State showed that the
license number obtained by Mr. Burke was registered in the
defendant's name. The State also circumstantially connected the
defendant's vehicle to the crime by offering evidence that a
baseball bat, large amounts of money, and a receipt of Harold
Cline's were found in the car.
In this Court's opinion, when the evidence adduced is
viewed in the light most favorable to the prosecution, it is
sufficient to convince impartial minds of the guilt of the
defendant beyond a reasonable doubt, and it does not appear that
the evidence was manifestly inadequate or that consequent injustice
Under the circumstances, and in view of the rule set
forth in syllabus point 1 of State v. Starkey, Id., this Court
believes that the defendant's contention that her conviction was
contrary to the evidence is without merit.
The defendant also claims that there was a material
variance between the defendant's indictment and the proof adduced
by the State.
In conjunction with this, the defendant argues that the
grand jury which indicted the defendant returned a two-count
indictment against her. The first count was for murder in the
first degree, and the second count was for aggravated robbery. As
previously indicated, the defendant was convicted of first degree
murder. In conjunction with the present assignment of error, the
defendant argues that the evidence adduced fails to show any intent
on the part of the defendant to kill. It also fails to show any
evidence of premeditation.
It appears that the defendant was convicted under the
felony murder theory.
The record indicates that Count 1 of the indictment
against the defendant charged that she "did feloniously, willfully,
maliciously, deliberately, and unlawfully slay, kill and murder
said Leonard Harold Cline."
The language in the indictment is in conformity with the
provisions of W.Va. Code § 61-2-1, which provides:
Murder by poison, lying in wait, imprisonment, starving, or by willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four [§ 60A-4-401 et seq.], chapter sixty-a of this code, is murder in the first degree. All other murder is murder in the second degree . . . .
Under the terms of this statute, felony murder, or murder committed in the commission of a robbery, is a form of murder in the first degree.
Under the law of West Virginia, there is no such thing as
an indictment for first degree murder or second degree murder.
State v. Schnelle, 24 W.Va. 767 (1884). An indictment is for
"murder," and the degree of murder depends upon the proof adduced
at trial. State v. Johnson, 49 W.Va. 684, 39 S.E. 665 (1901). A
general form of indictment for murder is good for conviction of
murder in the first degree or the second degree or for any lower
grade of homicide. State v. Douglass, 41 W.Va. 537, 23 S.E. 724
(1895). In view of the authorities, this Court believes that the
indictment of the defendant for murder, in accordance with W.Va.
Code § 61-2-1, was appropriate to support a conviction for first
The Court further notes that the statutory form of
indictment for murder is sufficient in a case for first degree
murder by felony murder. State v. Young, 173 W.Va. 1, 311 S.E.2d
118 (1983); State v. Bragg, 160 W.Va. 455, 235 S.E.2d 466 (1977);
Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). It is not
necessary under the law that the indictment set forth the means of
the death of the deceased. State v. Bragg, supra.
In syllabus point 5 of State v. Bragg, supra, the Court
summarized these principles in the following manner:
An indictment which charges that the defendant feloniously, wilfully, maliciously, deliberately, premeditatedly and unlawfully did slay, kill and murder is sufficient to support a conviction for murder committed in the commission of, or attempt to commit arson, rape, robbery or burglary, it not being necessary, under W.Va. Code, 61-2-1, to set forth the manner or means by which the death of the deceased was caused.
In the present case, the evidence does support the
conclusion that the defendant was implicated in the robbery of
Harold Cline and that that robbery resulted in his death. The
Court believes that there was adequate proof to support a felony
murder verdict and that, under the authorities cited, the
indictment adequately charged the crime of which the defendant was
The defendant next claims that the trial court erred in
failing to suppress the items seized from her car pursuant to the
consent to search.
Prior to trial, the defendant moved to suppress the items
which were seized pursuant to the consent to search which she
Before ruling on the suppression motion, the trial court
conducted an appropriate suppression hearing. At the conclusion of that hearing, the court ruled that the consent to search was a
valid consent to search and that the items seized were properly
admissible into evidence.
The record relating to the events surrounding the
defendant's giving a consent to search shows that on March 25,
1991, the defendant voluntarily went to the State Police Barracks
to inquire about the return of her automobile, which had been
impounded. At the State Police Barracks, the defendant was
informed that the State Police were in the process of obtaining a
search warrant for the vehicle and that they could not release it
before the search. According to evidence which was adduced, the
defendant, of her own free will, decided to sign a consent to
search to speed the return of her vehicle. The consent-to-search
form was read to the defendant, and she indicated her understanding
by signing the form.
As previously indicated, the trial court found that the
consent to search was valid and that the subsequent search
conducted pursuant to it was legal and the items found were
admissible into evidence.
In syllabus point 1 of State v. Angel, 154 W.Va. 615, 177
S.E.2d 562 (1970), this Court recognized that:
The State and Federal Constitutions prohibit any unreasonable searches and seizures and there are numerous situations in which a search and seizure warrant is not needed, such as an automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made, things that are obvious to the senses, and property that has been abandoned, as well as searches and seizures made that have been consented to.
The Court has also recognized that:
The general rule is that the voluntary
consent of a person who owns or controls
premises to a search of such premises is
sufficient to authorize such search without a
search warrant, and that a search of such
premises, without a warrant, when consented
to, does not violate the constitutional
prohibition against unreasonable searches and
Syllabus point 8, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971). See also State v. Smith, 186 W.Va. 33, 410 S.E.2d 269 (1991); and State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988), cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).
Further, the Court has repeatedly indicated that whether
a consent to search is voluntary is a question of fact to be
determined from the totality of the circumstances. State v.
Worley, Id.; State v. Farmer, 173 W.Va. 285, 315 S.E.2d 392 (1983);
and State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).
In the present case, there was evidence that the
defendant indicated that she would consent to a search of her car.
There was evidence that the police already had the vehicle
impounded and that they were in the process of obtaining a warrant
to search it. The facts suggest that the defendant had a
motivation to consent to a search in that she wanted possession of her vehicle. There was also evidence that the consent to search
form was read to her, that she indicated that she understood it,
and that she signed it. Rather clearly the State had already
impounded the defendant's car, and there was no need for the State
to fabricate a consent to search or to compel the defendant to
consent to the search.
In this Court's view, the totality of the circumstances
suggest that the consent to search was voluntary, and this Court
believes that the defendant's assignment of error on this point is
Lastly, the defendant claims that the prosecution was
guilty of a number of acts of prosecutorial misconduct and that she
was denied a fair trial.
In conjunction with her charge that the prosecution was
guilty of prosecutorial misconduct, the defendant argues that the
prosecutor abused her and her counsel during trial. She also
claims that the prosecutor, during closing argument, made improper
statements and misled the jury on the elements of felony murder.
In arguing that the prosecutor abused her during trial,
the defendant claims that the prosecutor improperly questioned her
about giving up a child for adoption and improperly inquired into
the question of whether she had ever used drugs.
During direct examination, the defendant was asked by her
own attorney whether she had any children. She indicated that she
did. She was then asked by her own attorney:
Q: There has been testimony that you have adopted one of your children to your mother. Is that correct?
Q: Why did you do that?
A: My mother could take care of her better financially.
During cross-examination, the State pursued this subject by asking:
Q: And you indicated that you adopted Erica
to your mother.
On appeal, the defendant claims that this cross-examination constituted prosecutorial misconduct.
In a number of cases, this Court has recognized that the
scope of cross-examination is coextensive with the evidence given
on direct examination; that is, a witness may be cross-examined on
matters which are raised on direct examination. See, e.g., State
v. Asbury, 187 W.Va. 87, 415 S.E.2d 891 (1992); State v. Green, 187
W.Va. 43, 415 S.E.2d 449 (1992); and State v. Richey, 171 W.Va.
342, 298 S.E.2d 879 (1982).
The defendant also argues that the State improperly
cross-examined her about drug use. There was evidence in the case
that Randy Highlander and Richard Collins, the co-conspirators in this case, had used cocaine on the night of the trial. On cross-
examination, the prosecutor asked the defendant: "Had you ever
done cocaine with Randy?" The defendant responded: "I don't do
cocaine. I do not do drugs." The prosecution pursued the question
In syllabus point 7 of State v. Cirullo, 142 W.Va. 56, 93
S.E.2d 526 (1956), this Court, citing syllabus point 6 of Yuncke v.
Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945), stated:
Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.
See State v. Trogdon, 168 W.Va. 204, 283 S.E.2d 849 (1981); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949); State v. Fisher, 123 W.Va. 745, 18 S.E.2d 649 (1941); and State v. Clifford, 58 W.Va. 681, 52 S.E. 864 (1906).
Under this, this Court believes that the defendant waived
her right to challenge on appeal the remarks of which she
complains. The Court further notes that the remarks did not
establish that the defendant used cocaine, a fact which would have
obviously been prejudicial to her case. Instead, they constituted
a denial that she used cocaine, a point that the State did not
In addition to claiming that the State improperly
examined her during trial, the defendant claims that the
prosecution abused her attorney, Jane Moran. This claim grows out
of a remark made by the prosecutor during closing argument. The
prosecutor argued that the defendant had "used Richard Collins,
Randy Highland, and she has used Jane Morgan." The defendant's
attorney immediately objected to this remark, and the court
instructed the jury:
Ladies and Gentlemen of the jury, the remark that Mrs. Justice has used her lawyer will not be considered by the jury. There is no evidence of that, and you aren't to consider matters that are not in evidence.
This Court has recognized that some latitude should be
allowed on closing argument and that improper remarks will not be
considered reversible error unless they work a "manifest injustice"
or clearly prejudiced the accused. As stated in syllabus point 5
of State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982):
A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.
Given the admonitory instruction given by the Court, as well as the nature of the challenged remark, this Court does not believe that the defendant has demonstrated that the prosecutor's remark worked a "manifest injustice" or that it clearly prejudiced the defendant.
In addition to arguing that there was prosecutorial
misconduct, the defendant claims that the prosecutor made
additional remarks on closing argument that misled the jury. One
sequence about which the defendant complains proceeded as follows:
Sharon Justice would have you believe from that witness stand that she left because she was scared of Richard -- he had gone hog wild. Yet, she gave Richard her car when they leave Gilbert at the Gilbert Creek Bridge. She would have you believe she was scared of him then, but she takes her elderly mother out later that night to seek this man she's been running from, trying to get away from all night. That's ridiculous, totally ridiculous! All you have to do to gauge her credibility is to look at that, to look at the events . . . .
Another proceeded as follows:
She did not tell the police the truth which
was that Dallas Hatfield took her back up to
the Playpen . . . It wasn't the Cline man
. . . She said she didn't want to tell the
police about Dallas Hatfield because 'I didn't
want to get him involved,' but she wants to
get someone who wasn't involved at all -- Mr.
Cline. This makes no sense. It shows that
continual -- the continual lying of this
defendant to the police and on the stand.
The defendant made no objection to these statements.
It appears to this Court that, to a large extent, the
prosecutor went through the story told by the defendant and
examined the inconsistencies and improbabilities in it.
As indicated in State v. Ocheltree, Id., the question of
whether prosecutorial remarks during closing argument constitute
reversible error depends on whether they work a "manifest injustice" and whether they clearly prejudice the defendant.
Wholly apart from the closing remarks, there was direct evidence
that the defendant was involved in the crime charged and
circumstantial evidence connecting her vehicle with the crime. The
remarks, since they, to a large degree, track the inconsistencies
in the defendant's testimony, cannot, in this Court's opinion, be
viewed as clearly prejudicing the defendant.
The Court notes that the prosecutor's remark about the
defendant lying on the stand was improper, but that in a number of
cases more offensive statements have been held to be insufficient
to warrant a reversal of a conviction. State v. Dietz, 182 W.Va.
544, 390 S.E.2d 15 (1990) (No manifest injustice where the
prosecutor remarked that the defendant was a "liar."); State v.
Barker, 168 W.Va. 1, 281 S.E.2d 142 (1981) (Defendant was lying to
save his own neck.); State v. Buck, 170 W.Va. 428, 294 S.E.2d 281
(1982) (Buck was in there to kill him.); State v. Lewis, 133 W.Va.
584, 57 S.E.2d 513 (1949) (Prosecutor characterized defendant as an
"abortionist, seducer, debaucher, and a butcher." "That is what he
is, a butcher.").
The defendant additionally claims that the prosecuting
attorney, during his closing argument, improperly misled the jury
on the elements of felony murder.
In considering this, the Court notes that the court
properly instructed the jury on the elements of felony murder.See footnote 1
During closing argument, the prosecutor stated:
I want you to realize now that it's not the State's opinion that murder was committed here premeditatedly and deliberately. That doesn't mean this defendant is not guilty of murder, because the Court has told you there's another first degree murder in this State and it's called felony murder and that's when a person dies at the hands of criminal action though it may be accidental and the reason for that is that people should not escape the death of one in a criminal act. If you return a first degree murder verdict in this case, it is a felony murder case.
To counter this, the defense argued:
[I]f someone is to be found guilty under
felony murder theory they must have an intent
to commit some crime or some unlawful act. By
simply being present at the time this takes
place, at the time either the criminal act or
the murder takes place that's not enough. The
Judge has told you in his instructions there
must be a specific intent on the part of that
person to commit a crime or an unlawful act.
On rebuttal, the State argued:
[I]f you've involved by yourself or with
someone in the commission of a crime such as
robbery, an individual dies from that, then
you're guilty of felony murder -- it's first
degree murder, and then you decide whether
there's mercy or not.
Given the context of the whole trial, and given the fact that the jury was properly instructed by the trial court on the factors to be considered in weighing a felony-murder conviction, this Court cannot conclude that the prosecutor's argument was prejudicial.
Lastly, the defendant claims that there were additional
circumstances in her case which conspired to deny her a fair trial
and which render her conviction tainted.
Randy Highlander, one of the individuals implicated in
the murder giving rise to this case, was represented by Charles
West. In preparing Mr. Highlander's case, Mr. West, on at least
three occasions, met with the defendant and interviewed her. The
defendant claims that as a result of these meetings, she believed
that Mr. West was representing her. She further claims that Mr.
West sent her to the State Police to retrieve her car without
counsel to advise her. She claims that when she went to the
police, she signed the consent which led to the search of her
vehicle. She claims that she did not understand the significance
of her action.
The defendant also argues that Mr. West used information
gleaned while she believed that he was acting as her attorney to
get a better bargain for his client, Randy Highlander.
In essence, the defendant argues that the legal system,
acting through Mr. West, misled her as to her legal posture and
acted to deprive her of a fair trial.
During the development of this case, Mr. West testified
that he told the defendant on numerous occasions that he would not
represent her. He further stated that he interviewed her as a
witness and not as a client.
Essentially, the Court believes that the evidence on what
occurred during Mr. West's contacts with the defendant is entirely
contradictory, and the trial court resolved the contradictions in
favor of the State. There is testimony to support the trial
court's decision, and although the defendant continues to adhere to
her claims, there is nothing in the record other than her testimony
which establishes that the legal system misled her or that her
contacts with Mr. West resulted in a denial of a fair trial.
A final argument made by the defendant is that the State
failed to disclose adverse information about Trooper Donald
Hedrick, one of the two troopers who interviewed the defendant and
obtained the consent to search her vehicle.
It appears that Trooper Hedrick became the object of an
internal State Police investigation while the defendant's trial was
pending and that, at the time of trial, Trooper Hedrick was on paid
administrative leave from the State Police. Some three to four
weeks after the defendant's trial, Trooper Hedrick was discharged
from the State Police. He subsequently appealed his dismissal.
The charges against Trooper Hedrick arose from a set of facts
totally unrelated to those in the present case.
The defendant essentially claims that the investigation
of Trooper Hedrick and the fact that he had been suspended from the
State Police were factors which potentially would have affected his
credibility during trial. She argues that the State should have
revealed the investigation and suspension to her prior to trial so
that the information could have been available to her attorney
It appears that at the time Trooper Hedrick became
involved in the defendant's case, Corporal Roby Pope was present
with him and the defendant at the State Police barracks. Trooper
Hedrick's testimony during the defendant's trial involved the
obtaining of the consent to search from the defendant, the search,
and the defendant's statements. The testimony of Trooper Hedrick
was wholly corroborated at trial by the testimony of Corporal Roby
In this Court's view, even if Trooper Hedrick's
credibility had been effectively impeached at trial because of the
investigation concerning him and his suspension, the testimony of
Corporal Pope would have stood. Additionally, the testimony of
neither trooper was wholly necessary to convict the defendant. The
defendant's guilt was established by the testimony of co-
conspirators, Richard Collins and Randy Highlander, and by other
While the Court believes that the State should have
revealed the investigation of Trooper Hedrick, the impeachment of
Trooper Hedrick could not have affected the outcome of the trial
beyond a reasonable doubt.
After reviewing the record and the questions raised in
this case, the Court can find no reversible error. Accordingly,
the judgment of the Circuit Court of Mingo County is affirmed.
Footnote: 1 The court told the jury:
1. Murder of the first degree is when
one person, with intent to kill, kills another
person feloniously, unlawfully, willfully,
maliciously, deliberately and premeditatedly.
The Court instructs the jury that murder in the first degree is also committed if the homicide occurs accidentally or otherwise during the commission or the attempt to commit arson, sexual assault, robbery or burglary. In such cases, the State is not required to prove malice or premeditation or that the defendant had any specific intent to kill the victim. This crime is called felony murder.