State of WV v. Lease
Annotate this CaseJanuary 1995 Term
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No. 22960
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
CROSSEN T. LEASE,
Defendant Below, Appellant
_________________________________________________
Appeal from the Circuit Court of Mercer County
Honorable John R. Frazier, Circuit Judge
Criminal Action No. 94-F-142
AFFIRMED
_______________________________________________
Submitted: January 10, 1996
Filed: April 10, 1996
Silas B. Taylor
Managing Deputy Attorney General
Charleston, West Virginia
Attorney for the State
Emmett Jessee Ballard
Assistant Public Defender
Princeton, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "To successfully challenge the validity of a search warrant on the basis of false
information in the warrant affidavit, the defendant must establish by a preponderance of the
evidence that the affiant, either knowingly and intentionally or with reckless disregard for
the truth, included a false statement therein. The same analysis applies to omissions of fact.
The defendant must show that the facts were intentionally omitted or were omitted in
reckless disregard of whether their omission made the affidavit misleading." Syl. Pt. 1, State
v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995).
2. "A search warrant affidavit is not invalid even if it contains a misrepresentation,
if, after striking the misrepresentation, there remains sufficient content to support a finding
of probable cause. Probable cause is evaluated in the totality of the circumstances." Syl. Pt.
2, State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995).
3. "A trial court's instructions to the jury must be a correct statement of the law and
supported by the evidence. Jury instructions are reviewed by determining whether the
charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues
involved and were not mislead by the law. A jury instruction cannot be dissected on appeal;
instead, the entire instruction is looked at when determining its accuracy. A trial court,
therefore, has broad discretion in formulating its charge to the jury, so long as the charge
accurately reflects the law. Deference is given to a trial court's discretion concerning the
specific wording of the instruction, and the precise extent and character of any specific
instruction will be reviewed only for an abuse of discretion." Syl. Pt. 4, State v. Guthrie, 194
W. Va. 657, 461 S.E.2d 163 (1995).
Per Curiam:
This is an appeal by Crossen T. Lease (hereinafter "the Appellant") from an October
31, 1994, order of the Circuit Court of Mercer County sentencing him to an indeterminate
term of three to twenty-three years upon his conviction of six counts of possession with
intent to deliver a controlled substance.(1) The Appellant contends that the search warrant in
this matter was not validly obtained and that the jury instruction regarding the elements
required to prove intent to deliver was inadequate. We affirm the decision of the lower
court.
I.
On February 7, 1994, the Appellant and his daughter were in his home in Oakvale,
West Virginia, when the child's mother, Ms. Sherry Phillips, unexpectedly arrived at the
residence.(2) The child was sleeping, and Ms. Phillips informed the Appellant that she planned
to remove the child from the residence. According to the Appellant's testimony, Ms. Phillips
smoked marijuana and drank tequila during this visit. Ms. Phillips testified that she had
taken "at least ten" Valiums that day, had smoked four or five marijuana joints, and had spent
the evening drinking bourbon and tequila. The Appellant physically removed Ms. Phillips
from the home, and she pounded on the door and windows until the Appellant called the
police.
When Trooper T. D. Bradley arrived, he arrested Ms. Phillips for public intoxication and possession of marijuana and transported her to police barracks. En route, she informed him that the Appellant had illegal guns and drugs in the home. Based upon Ms. Phillips' information, Trooper Bradley sought a search warrant for the Appellant's residence on February 8, 1994. The affidavit in support of the application for the warrant provided as follows:
This officer rec'd [sic] a verbal statement from Sherry
Phillips who lived with the accused approx. 5 year [sic]. She
told this officer the accused had several illegal auto[matic]
firearms and the location of same in the residence. She also told
this officer where he place [sic] a small amount of marijuana
and where he kept his large quantities.
No additional information was provided, and the warrant was issued by Magistrate Jerry
Flanagan. Four officers executed the warrant at the Appellant's home and located legally
registered firearms and illegal drugs.(3) Ms. Kathy Lawrence, a friend of the Appellant, was
present at the home during the search. She was charged with grand larceny after she stole
money from a room of the home where the officers had placed her during the search.
Subsequent to a September 1994 trial, the Appellant was convicted of six counts of
possession with intent to deliver and was sentenced to an indeterminate term of three to
twenty-three years. He appeals to this Court alleging that (1) the affidavit in support of the
application for the search warrant failed to support the warrant and omitted facts which
tended to diminish probable cause; and (2) the jury instruction regarding the elements of
"intent to deliver" was inadequate.
II.
The Appellant maintains that the information provided in the application for the warrant was insufficient to alert the magistrate to several determinative facts. For instance, from the application presented, the magistrate did not have knowledge that Ms. Phillips, the only individual upon whose information the application was premised, had been removed from the home under arrest for public intoxication and possession of marijuana. The Appellant also insists that the magistrate should have been alerted to Ms. Phillips' extreme state of agitation with the Appellant over the circumstances surrounding the visitation of the child and Ms. Phillips' desire to remove the child from the home. The Appellant contends that such information would have placed the magistrate on notice of Ms. Phillips' possible motivation to exaggerate or provide false details. The Appellant also argues that the magistrate should have been informed that Ms. Phillips' blood alcohol level was .095 and that Ms. Phillips did not inform the officer regarding the time period during which she allegedly observed the illegal drugs or firearms in the Appellant's home.
In syllabus point one of State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995), we explained as follows:
To successfully challenge the validity of a search warrant
on the basis of false information in the warrant affidavit, the
defendant must establish by a preponderance of the evidence
that the affiant, either knowingly and intentionally or with
reckless disregard for the truth, included a false statement
therein. The same analysis applies to omissions of fact. The
defendant must show that the facts were intentionally omitted or
were omitted in reckless disregard of whether their omission
made the affidavit misleading.
Id. at ___, 461 S.E.2d at 104, Syl. Pt. 1. We also specified that recklessness is to be inferred
from an omission only where the material omitted would have been clearly critical to the
finding of probable cause. Id. at ___, 461 S.E.2d at 107 (citing United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.), cert. denied, 116 S. Ct. 193 (1995)).
In syllabus point two of Lilly, we further stated that "[a] search warrant affidavit is
not invalid even if it contains a misrepresentation, if, after striking the misrepresentation,
there remains sufficient content to support a finding of probable cause. Probable cause is
evaluated in the totality of the circumstances." Id. at ___, 461 S.E.2d at 104, Syl. Pt. 2.
Additionally, the reviewing court must "determine whether . . . supplemented with the
omitted material, the remaining content of the affidavit is sufficient to establish probable
cause." Id. at ___, 461 S.E.2d at 107. In Lilly, we determined that an affidavit underlying
the warrant did not provide a substantial basis for determining the reliability of the
confidential informant and was therefore insufficient to establish probable cause to issue a
warrant. Id. at ___, 461 S.E.2d at 110.
In United States v. Collins, 61 F.3d 1379 (9th Cir.), cert. denied, 116 S. Ct. 543
(1995), the defendant argued that a warrant for the search of his trailer was not supported by
probable cause and that he was entitled to a Franks hearing because the affidavit supporting
the search warrant omitted the fact that the sheriff saw the defendant in possession of
firearms in June 1993 and instead implied that the sheriff had seen the defendant shortly
before the warrant was issued. Id. at ___. See Franks v. Delaware, 438 U.S. 154 (1978).(4)
The Ninth Circuit determined that the defendant's "bare assertion that the omission of the
June date was deliberate 'because the [ATF] agents knew the truth and failed to include it in
the warrant application,' does not establish that the omission was the result of anything other
than negligence or innocent mistake." 61 F.3d at 1384. The Ninth Circuit had previously
addressed this issue in United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994) and had
established a policy similar to our rationale in Lilly. See 194 W. Va. at ___, 461 S.E.2d at
107. The Kyllo court explained that a defendant is entitled to a Franks hearing upon a
showing that the affidavit contains deliberate or reckless omissions that tend to mislead and
demonstrate that the affidavit supplemented by the omissions would not be sufficient to
support a finding of probable cause. Kyllo, 37 F.3d at 529. With regard to the Collins'
assertion that the warrant was not supported by probable cause, the court found that the
affidavit revealing that the defendant had previously admitted his possession of firearms and
that an investigation disclosing prior convictions and two outstanding arrest warrants
adequately established probable cause. Collins, 61 F.3d at 1384.
In the case at bar, we must determine whether, after striking any misrepresentations and supplementing with any omitted material, there is sufficient information to establish probable cause. In footnote ten of Lilly, we set forth a useful definition of probable cause as follows:
Probable cause has been defined as reasonable grounds
for belief, supported by less than prima facia proof but more
than mere suspicion. The task of a magistrate in issuing a
warrant is "simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit
before him, including the 'veracity' and 'basis of knowledge' of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found
in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). In other words,
facts which would lead a reasonably cautious person to believe
the search will uncover evidence of a crime will support a
finding of probable cause.
194 W. Va. at ___, 461 S.E.2d at 108, n.10.
We do not believe that the absence of certain facts within the affidavit in this case was the result of calculated, deliberate, or malicious intent. Reexamining the affidavit with the inclusion of the issues surrounding Ms. Phillips' possible deleterious motivation regarding her characterization of the Appellant, we find that the affidavit still supports a finding of probable cause based upon its sufficient allegation of "facts which would lead a reasonably cautious person to believe the search will uncover evidence of a crime . . . ." Id. The inclusion of facts regarding Ms. Phillips' possible malevolence toward the Appellant does not invalidate the probable cause otherwise demonstrated by the affidavit.
III.
The Appellant also contends that no adequate jury instruction regarding the elements of "intent to deliver" was provided to the jury and that his conviction for possession with intent to deliver is invalid absent such instruction. The only instruction tangentially addressing that issue provided as follows:
It is the duty of the State to allege and prove criminal intent and
if from the whole evidence, the jury has a reasonable doubt as
to whether such intent existed, then you should find the
petitioner not guilty. Intent may be shown by inferences from
all the facts and circumstances in the case, including the actions
of the petitioner and , if from all this you are satisfied beyond a
reasonable doubt that the petitioner intended to do that which he
did or that which was the immediate and necessary consequence
of his act, you may find that intent has been shown.
Although no objection was raised at trial, the Appellant now maintains that his conviction
should be reversed on this issue because the inadequacy of the instruction resulted in jury
confusion. The Appellant asserts that failure to give a proper instruction on "intent to
deliver" was error, regardless of any failure to object at trial. Indeed, we explained in State
v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995), that the absence of a specific objection at
trial is not fatal to argument on appeal where the issue is so fundamental and prejudicial as
to constitute plain error. 194 W. Va. at ___, 459 S.E.2d at 129.
We have previously stated that we review a trial court's failure to give a requested instruction or the giving of a particular instruction under an abuse of discretion standard, but where a question is posed regarding whether the jury instructions failed to state the proper "legal standard," our review is plenary. State v. Guthrie, 194 W. Va. 657, ___, 461 S.E.2d 163, 177 (1995). In syllabus point four of Guthrie, we explained as follows:
A trial court's instructions to the jury must be a correct
statement of the law and supported by the evidence. Jury
instructions are reviewed by determining whether the charge,
reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not mislead by the law.
A jury instruction cannot be dissected on appeal; instead, the
entire instruction is looked at when determining its accuracy. A
trial court, therefore, has broad discretion in formulating its
charge to the jury, so long as the charge accurately reflects the
law. Deference is given to a trial court's discretion concerning
the specific wording of the instruction, and the precise extent
and character of any specific instruction will be reviewed only
for an abuse of discretion.
Id. at ___, 461 S.E.2d at 169-70.
We recognized in Miller that '[w]ithout [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts." 194 W. Va. at ___, 459 S.E.2d at 126 n.20. In Guthrie, we explained as follows:
The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make.
194 W. Va. at ___, 461 S.E.2d at 178.
Nevertheless, we expressly stated in Miller that counsel cannot remain silent in the trial court and then for the first time on appeal spring out an objection that if made in the trial court would have given the trial judge an opportunity to correct the alleged error. 194 W. Va. at ___, 459 S.E.2d at ___. Rule 30 of the West Virginia Rules of Criminal Procedure confirms our allegiance to the "raise or waive" rule. The one exception is "plain error." Thus, our review of the lack of a more specific instruction on intent is reviewed only for plain error. See State v. England, 180 W. Va. 342 , 376 S.E.2d 548 (1988).
As a general rule, our cases consistently have refused to recognize plain error, even
error of constitutional dimension, where the giving of an inadequate instruction did not
substantially impair the truth-finding function of the trial. See Syl. Pt. 2, State v.
Hutchinson, 176 W.Va. 172 , 342 S.E.2d 138 (1986). Indeed, in State v. Nicholas, 182 W.
Va. 199, 387 S.E.2d 104 (1989), a case involving the delivery of marijuana, we held that the
failure totally to instruct the jury on the element of intent had no impact on the truth-finding
function process and, therefore, was not plain error. 182 W. Va. at 203, 387 S.E.2d at 108.
As in Nicholas, we find that the alleged faulty instruction on intent does not rise to
the level of plain error.(5) In fact, we find the intent instruction given by the trial court to be
adequate in light of the absence of an objection or request for a more specific instruction.
Where a defendant's theory turns on lack of intent, jury instructions that accurately reflect
the intent required for the offense obviate the need for a more specific instruction on intent.
Because the specific instruction given on intent required the jury to acquit if the jury had "a
reasonable doubt as to whether such intent existed," any further instruction on intent was
unnecessary absent a specific request. The instruction given fairly and accurately explained
the relevant legal standard, and defense counsel had a full opportunity to argue his case to
the jury. In the absence of a specific request, our concern is not whether the jury instructions
describe in detail every aspect of legal behavior, but whether the jury instructions adequately
define what is illegal behavior. The jury was adequately instructed, and we find no
reversible error.
Affirmed.
1. 1The Appellant received one to five years for possession with intent to deliver marijuana, one to fifteen years for the cocaine violation, one to three years for the Valium violation, one to five years for the tylox violation, one to five years for the percocet violation, and one to five years for the luchem violation. The sentences on the last three counts were suspended with probation for a period of five years to commence upon completion of the Appellant's sentences in counts one, two, and three, effectively providing the Appellant with an indeterminate sentence of three to twenty-three years with probation.
2. The Appellant and Ms. Phillips had not resided together for the prior 14 months, and the child had not visited the Appellant since that separation.
3. The police located marijuana, one-half gram of cocaine, 55 Valiums for which the Appellant had a prescription, four percocets, two luchems, and 15 tylox pills. A police dog trained in drug detection located additional drugs in the Appellant's car.
4. As we explained in syllabus point one of State v. Walls, 170 W. Va. 419, 294 S.E.2d 272
(1982),
In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the United States Supreme Court held it
constitutionally permissible under certain conditions to attack a
search warrant affidavit. If such attack is successful, this will
result in voiding the search warrant and rendering the property
seized under such warrant inadmissible.
170 W. Va. at ___, 294 S.E.2d at 274.
5. 5The record is silent as to why counsel did not object or request a more specific instruction. It is conceivable, considering the circumstantial nature of the case, that counsel felt the chances of acquittal were better without a specific instruction on intent to deliver. As we stated in State v. Spence, 182 W. Va. 472, 388 S.E.2d 498 (1989), "[t]he plain error rule presupposes that the record is sufficiently developed to discern the error." 182 W. Va. at 481, 388 S.E.2d at 507. Here, we have no basis for knowing whether the counsel as a trial tactic waived the opportunity to request a more specific instruction.
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