State of West Virginia v. Ennis C. Payne II , 239 W. Va. 247 ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
FILED
October 19, 2016
No. 15-0289 released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
ENNIS C. PAYNE II,
Defendant Below, Petitioner
Appeal from the Circuit Court of Harrison County
Honorable James A. Matish, Judge
Criminal Action No. 13-F-112-3
AFFIRMED
Submitted: September 20, 2016
Filed: October 19, 2016
Jason T. Gain, Esq. Patrick Morrisey, Esq.
Gain Law Offices Attorney General
Bridgeport, West Virginia Shannon Frederick Kiser, Esq.
Landon Moyer, Esq. Assistant Attorney General
Cooper Law Offices Charleston, West Virginia
Bridgeport, West Virginia Counsel for the Respondent
Counsel for the Petitioner
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In contrast to a review of the circuit court’s factual findings, the ultimate
determination as to whether a search or seizure was reasonable under the Fourth Amendment
to the United States Constitution and Section 6 of Article III of the West Virginia
Constitution is a question of law that is reviewed de novo. . . . Thus, a circuit court’s denial
of a motion to suppress evidence will be affirmed unless it is unsupported by substantial
evidence, based on an erroneous interpretation of the law, or, based on the entire record, it
is clear that a mistake has been made.” Syl. Pt. 2, in part, State v. Lacy, 196 W.Va. 104, 468
S.E.2d 719 (1996).
2. “When reviewing a ruling on a motion to suppress, an appellate court should
construe all facts in the light most favorable to the State, as it was the prevailing party below.
Because of the highly fact-specific nature of a motion to suppress, particular deference is
given to the findings of the circuit court because it had the opportunity to observe the
witnesses and to hear testimony on the issues. Therefore, the circuit court’s factual findings
are reviewed for clear error.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719
(1996).
3. “‘Where a person voluntarily and knowingly consents to a search of his
premises, such a search may be conducted in the absence of a search warrant.’ Syllabus
i
Point 1, State v. Basham, 159 W.Va. 404, 223 S.E.2d 53 (1976).” Syl. Pt. 1, State v.
Hambrick, 177 W.Va. 26, 350 S.E.2d 537 (1986).
4. “The State and Federal Constitutions prohibit only unreasonable searches
and seizures and there are numerous situations in which a search and seizure warrant is not
needed, such as . . . property that has been abandoned, as well as searches and seizures made
that have been consented to.” Syl. Pt. 1, in part, State v. Angel, 154 W.Va. 615, 177 S.E.2d
562 (1970).
5. “‘The Fourth Amendment of the United States Constitution, and Article III,
Section 6 of the West Virginia Constitution protect an individual’s reasonable expectation
of privacy.’ Syl. Pt. 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).” Syl. Pt.
1, Wagner v. Hedrick, 181 W.Va. 482, 383 S.E.2d 286 (1989).
6. “Both the Fourth Amendment to the United States Constitution and Article
III, Section 6 of the West Virginia Constitution provide that no warrant shall issue except
upon probable cause supported by oath or affirmation.” Syl. Pt. 3, State v. Adkins, 176
W.Va. 613, 346 S.E.2d 762 (1986).
7. “Probable cause for the issuance of a search warrant exists if the facts and
circumstances provided to a magistrate in a written affidavit are sufficient to warrant the
ii
belief of a prudent person of reasonable caution that a crime has been committed and that the
specific fruits, instrumentalities, or contraband from that crime presently may be found at a
specific location. It is not enough that a magistrate believes a crime has been committed.
The magistrate also must have a reasonable belief that the place or person to be searched will
yield certain specific classes of items. There must be a nexus between the criminal activity
and the place or person searched and thing seized. The probable cause determination does
not depend solely upon individual facts; rather, it depends on the cumulative effect of the
facts in the totality of circumstances.” Syl. Pt. 3, State v. Lilly, 194 W.Va. 595, 461 S.E.2d
101 (1995).
8. “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).
9. “‘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.’
iii
Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).” Syl. Pt. 2, State v.
Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
10. “Widespread publicity, of itself, does not require change of venue, and
neither does proof that prejudice exists against an accused, unless it appears that the
prejudice against him is so great that he cannot get a fair trial.” Syl. Pt. 1, State v. Gangwer,
169 W.Va. 177, 286 S.E.2d 389 (1982).
11. “One of the inquiries on a motion for a change of venue should not be
whether the community remembered or heard the facts of the case, but whether the jurors had
such fixed opinions that they could not judge impartially the guilt or innocence of the
defendant.” Syl. Pt. 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
12. “Whether a change of venue is warranted rests in the sound discretion of
the trial court, and its ruling thereon will not be disturbed, unless it clearly appears that such
discretion has been abused.” Syl. Pt. 2, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389
(1982).
13. “A criminal defendant has the right under the Due Process Clause of our
State and Federal Constitutions not to be forced to trial in identifiable prison attire.” Syl. Pt.
2, in part, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).
iv
14. “A criminal defendant has the right, absent some necessity relating to
courtroom security or order, to be tried free of physical restraints.” Syl. Pt. 3, State v.
Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979).
v
LOUGHRY, Justice:
The petitioner, Ennis C. Payne II, appeals the January 29, 2015, order of the
Circuit Court of Harrison County through which he was sentenced to life imprisonment with
mercy for his first degree murder conviction to be followed by one to five years
imprisonment for his conspiracy to commit burglary conviction. Seeking to set aside his
convictions, the petitioner challenges the denial of his motions to suppress evidence and to
change venue; his appearance in the courtroom in jail attire and restraints during jury voir
dire; and cumulative error. Following a careful review of the briefs, the arguments of
counsel, the record submitted, and the applicable law, this Court finds no reversible error and
affirms the petitioner’s convictions.
I. Facts and Procedural Background1
In the early fall 2012, the petitioner and Darnell Bouie were arrested in
connection with the death of Jayar Poindexter. On May 7, 2013, a Harrison County grand
jury returned indictment No. 13-F-112-3 charging the petitioner2 with first degree murder in
1
The facts and procedural background as set forth herein have been gleaned from the
transcripts of the suppression hearings and trial.
2
Also charged in the indictment was Darnell Bouie. Bouie’s trial occurred in the
Spring of 2014. This Court affirmed Bouie’s felony-murder and conspiracy to commit
burglary convictions in State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606 (2015).
1
violation of West Virginia Code § 61-2-1 (2014)3 and conspiracy to commit burglary in
violation of West Virginia Code §§ 61-3-11 (2014)4 and §61-10-31 (2014).5 They were
tried separately.6 The petitioner’s trial occurred over the course of five days in November
2014 during which the State proceeded on a theory of felony-murder with the predicate
felony being the conspiracy to commit burglary. The State presented the testimony of thirty-
3
West Virginia Code § 61-2-1 provides, in part:
Murder by poison, lying in wait, imprisonment, starving,
or by any 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,
chapter sixty-a of this code, is murder of the first degree.
4
West Virginia Code § 61-3-11 provides, in part:
(a) Burglary shall be a felony and any person convicted thereof
shall be confined in the penitentiary not less than one nor more
than fifteen years. If any person shall, in the nighttime, break
and enter, or enter without breaking, or shall, in the daytime,
break and enter, the dwelling house, or an outhouse adjoining
thereto or occupied therewith, of another, with intent to commit
a crime therein, he shall be deemed guilty of burglary.
5
West Virginia Code § 61-10-31 provides, in part:
It shall be unlawful for two or more persons to conspire (1) to
commit any offense against the State if . . . one or more of such
persons does any act to effect the object of the conspiracy.
....
Any person who violates the provisions of this section by
conspiring to commit an offense against the State which is a
felony . . . shall be guilty of a felony.
6
See n.2, supra.
2
two witnesses and seventy-three of its exhibits were admitted into evidence.7 The petitioner
presented the testimony of one witness, and his five exhibits were admitted into evidence.
The petitioner did not testify.
The evidence at trial demonstrated that during the evening of January 12, 2010,
Darnell Bouie, Michael Thomas, and Michael Moran traveled to the Ordinary Bar in
Clarksburg, West Virginia. At approximately 12:51 a.m. on January 13, 2010, security
cameras in the area captured the petitioner, Ennis Payne, entering the same bar. At that time,
he was wearing a Pittsburgh Pirates “P” baseball hat and dark Timberland-type boots.
Around 3:00 a.m., the petitioner, Bouie, Moran, and Thomas left the Ordinary
Bar traveling in two vehicles, a car belonging to Thomas and a truck that Leonard Hickey
had loaned to Bouie that evening at the Ordinary Bar. Although Hickey had left the bar
earlier that evening, he later rejoined the group, after which the men traveled in the two
vehicles to the Quarry Apartments located on Overlook Drive in Clarksburg, West Virginia.
After arriving at the Quarry Apartments, where the victim resided, the petitioner and Bouie
exited the vehicles, while the other men waited inside the vehicles for their return. Moran
7
The State’s exhibits included various photographs of the crime scene, surveillance
videos, screen shots taken from surveillance videos, shoe castings taken at the crime scene,
the .25 caliber bullet taken from the victim, the .25 caliber casing found at the crime scene,
an ammunition magazine containing four .25 caliber cartridges, and other evidence, as
discussed infra.
3
testified that after waiting for some time, he exited Thomas’ car to see where the petitioner
and Bouie had gone but, after walking for only a few seconds, he saw the petitioner and
Bouie walking quickly back to the vehicles.
Jennifer Hall, the victim’s girlfriend at the time of his death, testified that she
had been asleep in bed on the night in question when she awoke to find the victim and
another person, whom she could not see, struggling at the bedroom window. She stated that
the victim stopped struggling and fell to the floor in a “frog-like” position.8 In an effort to
conceal herself, Ms. Hall hid on the floor near the bottom of the bed. Her call to 911 was
made at 3:30 a.m. that morning. She testified that she did not alter the crime scene or
anything else in the apartment prior to the arrival of the Clarksburg Police. The victim died
of a gunshot wound to his chest.9
Officers responded to the crime scene. Photographs and cast molds were taken
of footprints10 discovered in the snow leading both to and from the victim’s bedroom
8
Hall testified at trial that she could not recall either seeing a gun or hearing a gunshot.
9
One of the petitioner’s relatives testified that the petitioner came to see him a couple
of days after the murder; that the petitioner told him that he shot the victim in a “robbery
gone bad”; that he did not think anyone was home at the victim’s apartment; and that
someone “ended up dead.” When asked whether the petitioner had indicated the purpose of
the robbery, the relative stated, “Money, drugs, money, I don’t know.”
10
Surveillance video footage showed that Bouie was the only person in the group
wearing sneakers on the night in question. An expert witness for the State identified one of
(continued...)
4
window.11 Photographs were also taken of the victim’s bedroom window, which the officers
discovered half-raised with the screen “cut or torn.” A .25 caliber casing was recovered at
the scene. Later that day, a resident of the apartment complex informed police that he had
observed a Pittsburgh Pirates “P” baseball hat on the grounds of the apartment complex
around 7:30 a.m. that morning. The police recovered the hat. Surveillance video taken prior
to the crime on January 13, 2010, showed the petitioner near the Quarry Apartments wearing
a baseball cap.
The evidence at trial showed that after the petitioner and the other men left the
Quarry Apartments, they traveled to a nearby Go-Mart, where security cameras captured
their arrival at 3:35 a.m. The gas station video depicts the petitioner wearing what appears
to be dark boots and a jacket with white stripes, but without the Pittsburgh Pirates hat that
area surveillance cameras had captured him wearing earlier that evening. Thereafter, the
petitioner was dropped off at the home of his friend, Timothy Starks, where Starks resided
with his wife and children. The petitioner had been staying “off and on” in the first floor
10
(...continued)
the sets of footprints as belonging to a Nike tennis shoe.
11
The petitioner’s trial counsel stated during closing arguments that Moran killed the
victim, citing Moran’s ownership of footwear within one size of the petitioner’s shoe size and
similar to the footprints found outside the victim’s bedroom window. The petitioner’s
counsel also noted the possible presence–as documented in police photographs–of a cigarillo
filter on the victim’s exterior windowsill. Both Moran and the petitioner were known to
smoke cigarillos.
5
“living room area” of Starks’ home over a fairly short period of time, “crashing there when
he needed to.”12 Starks testified that when the petitioner arrived around 4:00 a.m. that
morning, the petitioner was carrying two guns. When Starks awoke later that morning, the
petitioner was gone without any indication as to whether he would return. The petitioner left
behind a cell phone and a Carhartt-type jacket13 slung over a chair in the foyer of the first
floor living area of Starks’ home.
On January 15, 2010, Clarksburg Police Officer Mike Fazzini14 went to Starks’
home15 to inquire as to the petitioner’s whereabouts. Starks did not know where the
petitioner was, but asked whether he should keep or dispose of the petitioner’s Carhartt
jacket that the petitioner had left behind on a chair in the foyer of Starks’ home. Fazzini told
Starks that he should “hang onto” the jacket and then contacted Detective Wygal, who came
to Starks’ residence. Thereafter, Starks signed a consent-to-search form for the first floor
living, kitchen, and downstairs bathroom of his home. Upon executing the search, Starks
12
This particular testimony was given by Starks during a suppression hearing.
13
This jacket is referred to as both a “Carhartt jacket” and a “Carhartt-type jacket.”
For ease of reference, we refer to it as either a “Carhartt jacket” or “jacket” for purposes of
this opinion.
14
Because nearly five years passed between the victim’s murder and the petitioner’s
trial, many officers with the Clarksburg Police Department had changed ranks or jobs. For
purposes of this opinion, we use their ranks and titles at the time of the victim’s murder.
15
The record indicates that Fazzini and Starks were friends, having known each other
since childhood.
6
confirmed that the Carhartt jacket on a chair in the foyer of the lower living area belonged
to the petitioner. Inside a jacket pocket, Fazzini found an ammunition magazine containing
four .25 caliber cartridges and court documents bearing the petitioner’s name. The officers
seized the jacket and its contents.
On January 24, 2010, Clarksburg Police Sergeant Joshua Cox, the lead
detective on the case, filed an Affidavit and Complaint for Search Warrant (hereinafter
“affidavit”) for a “white one story residence” located at 118 Anderson Street, Clarksburg,
West Virginia, which is where the petitioner resided.16 The items sought by Sergeant Cox
were a “black jacket with white stripes on the sleeve and white stripes around the collar,
boots or shoes, and any .25 caliber firearm, .25 caliber ammunition or container, knife, box
cutter, cell phone, pager, any clothing bearing blood stains and any gray shirts.” A circuit
court judge issued the search warrant and, during the execution of the warrant, officers
discovered and seized, among other items, two pairs of Timberland boots–one black pair
(size 10.5) and one tan pair (size 8.5)–and a pair of white Nike tennis shoes (size 9). During
trial, an expert for the State testified that the petitioner’s size 10.5 Timberland boots fit the
16
When questioned during a suppression hearing as to how he knew the petitioner’s
address, Sergeant Cox testified, as follows:
Q. How were you aware that 118 Anderson Street was, in fact,
the residence of the defendant?
A. Because I’ve known E.C. [Ennis Payne] practically all of my
life and also we - - I ran his driver’s license or his ID number
and it came back to 118 Anderson Street.
7
impression of the boot taken at the crime scene, although he could not determine whether the
petitioner’s boots actually made the impression given the absence of any individual features
in either the boots or the impression.
In November 2010, Sergeant Cox traveled to a federal correctional facility17
to execute a search warrant for the petitioner’s DNA18 and to ascertain the petitioner’s foot
size. Sergeant Cox advised the petitioner that his DNA was being obtained to compare it to
DNA recovered from the Pittsburgh Pirates hat found at the Quarry Apartments. The
petitioner admitted the hat belonged to him, but added that other persons also wore the hat.
While Sergeant Cox was measuring the petitioner’s foot, the petitioner volunteered that he
wore a “ten something.”
During pretrial hearings held on February 12 and 18, 2014, the trial court
received evidence on the petitioner’s motions to suppress the Carhartt jacket and the
ammunition magazine, which had been seized at Starks’ residence, as well as the evidence
seized during the execution of the search warrant at the petitioner’s home. Sergeant Cox
recited the evidence recovered at the crime scene, the images that had been captured on the
17
The petitioner was incarcerated in the facility on unrelated federal firearms charges.
18
Investigators wanted a sample of the petitioner’s DNA to compare with DNA that
was taken from the shoes seized at the petitioner’s home and from the Pittsburgh Pirates hat
recovered at the Quarry Apartments.
8
night in question by various surveillance cameras, and the evidence recovered through the
execution of the search warrant at the petitioner’s residence, including boots and tennis
shoes.19 Sergeant Cox testified that his affidavit seeking the search warrant for the
petitioner’s residence contained facts within his personal knowledge and was based upon
probable cause. Officer Fazzini and Detective Wygal testified regarding their search of the
first floor of Starks’ home with Starks’ written consent during which the petitioner’s Carhartt
jacket and the .25 caliber ammunition magazine were found. Starks’ testimony corroborated
that given by Fazzini and Wygal, including his consent to the search of his residence.
By order entered on May 16, 2014, the trial court denied the petitioner’s
motions to suppress. Regarding the evidence seized at Starks’ residence, the trial court found
that Starks had authority to consent to the search of the first floor of his home where the
petitioner had stayed and where the jacket and ammunition magazine were found. Regarding
the evidence seized from the petitioner’s residence, the trial court found that under the
totality of the circumstances, particularly the surveillance video that placed the petitioner
near the victim’s residence at the time he was murdered, there was sufficient information in
Sergeant Cox’s affidavit to support a finding of probable cause for the issuance of the search
warrant.
19
Sergeant Cox also described telephone communications made by the petitioner while
he was incarcerated at the North Central Regional Jail during which he threatened witnesses,
including Starks, who confirmed the threat during his testimony.
9
The record reflects that throughout this criminal proceeding, the petitioner
refused to appear in court for hearings and other proceedings, refused to leave his jail and/or
courthouse holding cell,20 refused to meet with his counsel, and made threats towards his
counsel and their families, as well as witnesses.21 He also previously threatened courtroom
security 22 when he indicated that if he did not get want he wanted, he would grab a deputy’s
20
During a pre-trial hearing held on May 27, 2014, the trial judge observed
Well, there has been a history of Mr. Payne . . . refusing to come
out of his cell, refusing to appear in court, and as the Court
recalls at least on one occasion, he battered an inmate, I hear, in
the holding facility when he was scheduled for a court
appearance in this case.
21
The petitioner repeatedly sought new counsel, which resulted in four attorneys being
removed from his case, new counsel being appointed, and five trial dates being continued.
The petitioner also filed several pro se motions requesting new counsel, claiming counsel had
a conflict of interest because he had threatened their lives and the lives of their families.
22
An example of the petitioner’s recalcitrance and disrespect is reflected in the
following exchange that took place during the May 27, 2014, pre-trial hearing after defense
counsel advised the trial court that the petitioner did not wish to proceed in court that day:
Judge: Any suggestions you [defense counsel] have to resolve
this matter?
Defense Counsel: . . . My primary concern is that Mr. Payne
receive a fair trial.
Judge: Well, that the Court’s concern and that’s been the
Court’s concern all along. And the Court’s advised Mr. Payne
previously on the record that he’s his own worst enemy, that he
needs to cooperate with his attorney.
Petitioner: Motherf--ker, I have been cooperating with my
Goddamn attorney.
Judge: Mr. Payne, you be quiet.
Petitioner: I ain’t got to hear that shit. I’ll say what the f--k I
want.
(continued...)
10
gun.23 Based on this history, the trial judge advised the petitioner, immediately before jury
voir dire began on November 3, 2014, as follows:
Mr. Payne, the Court is obviously concerned with some
of the actions that have taken place here, and some of the
comments that have been made by you. However, the Court is
going to do something that it hasn’t done before, and that is I’m
going to sign an order directing that in order to preserve your
fair - - your right to a fair trial and have you not appear in
orange or in leg shackles or handcuffs, I’m going to sign an
order directing that what’s known as locomotion restrictive
humane leg restraints be put on, and they be put on underneath
22
(...continued)
Judge: You be quiet.
Petitioner: Whatever.
Judge: You be quiet.
Petitioner: What are you going to do throw me in jail?
Judge: Sir, I told you to be quiet and I expect you to be quiet
and let your attorney talk.
Petitioner: You going to put me in jail?
Judge: I’ll address you in a minute.
Petitioner: Raising your voice don’t mean nothing. It just means
you lose control.
Judge: I am in control, sir.
Petitioner: You ain’t in control of nothing. You just talking
cause you got a pair of lips.
23
The petitioner articulated this threat during a telephone call that he made from the
regional jail. During the May 27, 2014, pre-trial hearing, Sergeant Graeber, the officer
charged with courtroom security, proffered the following opinion when the trial judge asked
whether he believed the petitioner posed a security risk:
Sgt. Graeber: I think it’s obviously a concern of mine and my
deputies knowing that he has nothing to lose at this point; that
if he’s made threats to grab a deputy’s weapon[,] it’s a danger
to everybody in this courtroom and the general public of
Harrison County who is visiting the building. There may be an
issue with safety concerns.
11
your street clothing so that the jury cannot see or have any idea
that those are being used.
However, in the event that you do not cooperate with
those devices being installed, or if you refuse to change in[to]
street clothes, then the Court will direct the bailiffs to bring you
to the courtroom for the jury trial in jail clothing and shackles
and handcuffs, which will remain on throughout the trial.
••••
So the choice is yours at this point in time. The Court’s
tried to accommodate you as much as what it can. But this case
is going to trial, and hopefully you’ll realize, as the Court’s told
you in the past, that the only person you’re going to be hurting
is yourself.
The petitioner was then placed in the custody of the bailiff to allow him to put on the humane
restraints and street clothes. Soon thereafter, the petitioner’s counsel reported to the trial
court that counsel had met with the petitioner, who refused to change into the street clothes
and the humane restraints that were made available to him. Counsel further stated that when
he advised the petitioner that he should do so, the petitioner responded that he “wo[uld]n’t
be up there for long,” which counsel interpreted as the petitioner’s intent “to try to create
some chaos” when he came into the courtroom. Upon receiving this information, the trial
judge stated, as follows:
The defendant has left this Court with no choice but based upon
his attitude, his demeanor, comments he’s made, and his actions,
refusing to come out of his cell on occasion, refusing to be
brought to hearings, refusing to meet with his counsel, and his
now refusal to change into street clothes. This is not the first
time that the defendant has done this with the case set for trial.
The Court is left with no choice but to have him brought to the
courtroom in his jail clothing with shackles and handcuffs . . . .
12
Thereafter, the petitioner was brought into the courtroom wearing jail attire, shackles, and
handcuffs, and the jury voir dire began. The trial judge admonished the jury venire with the
following instruction:
Ladies and gentlemen of the jury, you will note that the
defendant is in jailhouse clothing and handcuffs and shackles.
The reason for this is of no concern to you, and shall not be
considered by you for any reason in arriving at your verdict in
this case.
In fact, you shall not discuss this aspect of the case at any
time during your deliberations. The defendant is presumed under
the law to be innocent of all charges, and the only way the
defendant can be convicted of anything is if the State of West
Virginia produces sufficient evidence by the testimony of
witnesses and/or various exhibits to prove beyond a reasonable
doubt each and every element of the offenses charged. Then and
only then, may you find the defendant guilty of any offense.
Again, you are to make no reference nor speculate as to
why the defendant may be in custody at this time.
Do each of you understand and agree that you will give
no consideration to his appearance in this case in arriving at
your verdict if you are selected to serve on the jury for the trial
of this case?
The entire jury pool answered in the affirmative.
Several months prior to jury voir dire, the petitioner had filed a motion for a
change of venue due to pre-trial publicity.24 The State opposed the motion, asserting the
petitioner had failed to put forth any evidence, other than stories reported in local media, that
“there exists in this County a prejudice against [the petitioner] so great that he cannot obtain
24
The appendix record includes several news articles regarding the murder.
13
a fair and impartial trial in this County,” or that “a present hostile sentiment exists against
[the petitioner], extending throughout the entirety of Harrison County.” The trial court
deferred ruling on the motion until jury selection. During voir dire, when questioned
regarding their prior knowledge of the case, only two members of the jury pool indicated
they had some prior knowledge based on news coverage; both stated they had formed no
opinion of the case, nor could they recall specific information derived from the news
articles.25
Following the presentation of evidence, the jury returned its verdict finding the
petitioner guilty of first degree murder with a recommendation of mercy and conspiracy to
commit burglary. The petitioner directed his counsel not to file a post-trial motion for a new
trial.26 This appeal followed.
II. Standard of Review
25
One of these two jurors was selected to sit on the petitioner’s jury.
26
Notwithstanding the failure to move for a new trial, we find the errors assigned were
fully developed, carefully considered, and ruled upon by the trial court during pre-trial
proceedings below. Accordingly, we will address the same. See Syl. Pt. 4, State v. Jessie,
225 W.Va. 21, 689 S.E.2d 21 (2009) (“Although this Court has held that a defendant may
not assign an error for the first time on appeal that could have been presented initially for
review in a post-trial motion, failure to raise an issue in a post-trial motion will not prevent
this Court from entertaining that issue on appeal where it is clear that the trial court carefully
and completely considered that specific issue in a pre-trial motion.”).
14
The petitioner assigns errors that involve varying standards of review.
Accordingly, we will set forth those standards in our discussion of each issue as we proceed
to determine whether the petitioner is entitled to relief from his convictions.
III. Discussion
The petitioner seeks to overturn his convictions on grounds related to the denial
of his motions to suppress evidence and to change venue, as well as his appearance in
restraints and jail attire during jury voir dire. We address each of these assignments of error,
in turn, below.
A. Search and Seizure
The petitioner asserts the trial court erred by refusing to suppress the evidence
seized during the police search of Starks’ residence with Starks’ consent. Citing United
States v. Matlock, 415 U.S. 164 (1974), the petitioner argues that consent to search an item
of personal property can only be given by someone with “common authority” over, or other
sufficient relationship with, the item to be inspected, and that any notion that he abandoned
his jacket would eviscerate the principles announced in Matlock. Maintaining that Starks
was neither a user nor possessor of the jacket at the time it was searched, the petitioner
contends that while the police could observe the jacket and notice things in plain view, the
officers exceeded the scope of the consent search and trespassed upon his jacket by seizing
items from a pocket of the jacket, rendering such evidence inadmissible at trial.
15
Relying upon State v. Dorsey, 234 W.Va. 15, 762 S.E.2d 584 (2014), the State
asserts there was no error because an overnight guest has a privacy interest when staying in
another’s home against everyone but the host and those whom the host permits to enter his
or her home. The State asserts the petitioner abandoned any privacy interest he had in his
jacket by leaving it behind in a common area of Starks’ home with no indication that he ever
planned to return or to retrieve it. Thus, the State maintains that any expectation of privacy
the petitioner maintained in his jacket had already been forfeited by him at the time Starks
consented to the search of his residence.
In determining whether the seizure of the petitioner’s jacket and its contents
was constitutionally reasonable and whether the circuit court correctly denied the petitioner’s
motion to suppress the evidence recovered from the jacket, our standard of review is plenary:
In contrast to a review of the circuit court’s factual
findings, the ultimate determination as to whether a search or
seizure was reasonable under the Fourth Amendment to the
United States Constitution and Section 6 of Article III of the
West Virginia Constitution is a question of law that is reviewed
de novo. . . . Thus, a circuit court’s denial of a motion to
suppress evidence will be affirmed unless it is unsupported by
substantial evidence, based on an erroneous interpretation of the
law, or, based on the entire record, it is clear that a mistake has
been made.
Syl. Pt. 2, in part, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). We have also
observed that
[w]hen reviewing a ruling on a motion to suppress, an
appellate court should construe all facts in the light most
16
favorable to the State, as it was the prevailing party below.
Because of the highly fact-specific nature of a motion to
suppress, particular deference is given to the findings of the
circuit court because it had the opportunity to observe the
witnesses and to hear testimony on the issues. Therefore, the
circuit court’s factual findings are reviewed for clear error.
Id. at 107, 468 S.E.2d at 722, syl. pt. 1.
While the United States Supreme Court has recognized that an overnight guest
has a legitimate expectation of privacy in a host’s home, the Court also observed that “[f]rom
the overnight guest’s perspective, . . . his possessions will not be disturbed by anyone but his
host and those his host allows inside.” Minnesota v. Olson, 495 U.S. 91, 99 (1990)
(emphasis added). Courts have found, based on this observation in Olson, that an overnight
guest cannot challenge a search and seizure under the Fourth Amendment when their host
has consented to the police search. See, e.g., United States v. Isom, 588 F.2d 858 (2d
Cir.1978) (finding no violation of defendant’s Fourth Amendment rights where owner
consented to search of home in which defendant stayed intermittently); Wigley v. State, 44
S.W.3d 751, 754 (Ark. Ct. App. 2001) (finding defendant, as overnight guest in home, did
not have reasonable expectation of privacy because “an overnight guest has no reasonable
expectation of privacy when the host consents to the search”).
Here, Starks voluntarily consented to a police search of the first floor of his
home. “‘Where a person voluntarily and knowingly consents to a search of his premises,
17
such a search may be conducted in the absence of a search warrant.’ Syllabus Point 1, State
v. Basham, 159 W.Va. 404, 223 S.E.2d 53 (1976).” Syl. Pt. 1, State v. Hambrick, 177 W.Va.
26, 350 S.E.2d 537 (1986). Further, “[t]he State and Federal Constitutions prohibit only
unreasonable searches and seizures and there are numerous situations in which a search and
seizure warrant is not needed, such as . . . property that has been abandoned, as well as
searches and seizures made that have been consented to.” Syl. Pt. 1, in part, State v. Angel,
154 W.Va. 615, 177 S.E.2d 562 (1970).
Because “Fourth Amendment rights are personal rights [that] . . . may not be
vicariously asserted[,]”27 “we must begin our analysis by first determining whether the
petitioner has standing to make a claim for violation of his rights under the Fourth
Amendment and Section 6 of Article III of the West Virginia Constitution as a result of the
search and seizure of evidence from [Starks’] residence.” Dorsey, 234 W.Va. at 21, 762
S.E.2d at 590. “‘The Fourth Amendment of the United States Constitution, and Article III,
Section 6 of the West Virginia Constitution protect an individual’s reasonable expectation
of privacy.’ Syl. Pt. 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).” Syl. Pt.
1, Wagner v. Hedrick, 181 W.Va. 482, 383 S.E.2d 286 (1989). In this regard, we have
recognized that “[a] claim of protection under the Fourth Amendment and the right to
challenge the legality of a search depends not upon a person’s property right in the invaded
27
Alderman v. United States, 394 U.S. 165, 174 (1969).
18
place or article of personal property, but upon whether the person has a legitimate
expectation of privacy in the invaded place or thing.” Hedrick, 181 W.Va. at 487, 383
S.E.2d at 291 (citing Katz v. United States, 389 U.S. 347, 353 (1967)). Consequently, “if a
person is in such a position that he cannot reasonably expect privacy, a court may find that
an unreasonable Fourth Amendment search has not taken place.” Hedrick, 181 W.Va. at 487,
383 S.E.2d at 291.
With specific regard to the seizure of the petitioner’s jacket and its contents,
which he left behind in Starks’ home, we observe that
[t]he touchstone of Fourth Amendment analysis is whether a
person has a “constitutionally protected reasonable expectation
of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S. Ct.
507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). Katz
posits a two-part inquiry: first, has the individual manifested a
subjective expectation of privacy in the object of the challenged
search? Second, is society willing to recognize that expectation
as reasonable?
California v. Ciraolo, 476 U.S. 207, 211 (1986). Under this two-party inquiry, our analysis
does not turn on whether the petitioner retained an ownership interest in the jacket, but
whether he retained a reasonable expectation of privacy in the jacket and its contents.
Critically, the petitioner “b[ore] the burden of proving not only that the search of [his jacket]
was illegal, but also that he had a legitimate expectation of privacy in that [jacket].”
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); see also Rakas v. Illinois, 439 U.S. 128, 131
19
n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing that his
own Fourth amendment rights were violated by the challenged search and seizure.”).
Relying upon Matlock,28 the petitioner asserts that Starks could consent to the
search of his own home, but not to the search of the petitioner’s jacket. The petitioner relies
upon cases addressing whether a person could consent to the search of the interior of a closed
item that belonged to someone else, such as a briefcase found in the locked trunk of a
vehicle29 and a footlocker located in the defendant’s bedroom.30 However, the relevant
inquiry is not whether the pocket of the petitioner’s jacket is a closed “container,” but
whether the petitioner had a reasonable expectation of privacy in the jacket at the time of the
search and seizure. As we recently explained,
“one who asserts a Fourth Amendment violation must
demonstrate a ‘reasonable expectation of privacy’ in the subject
of the seizure. That expectation is to be measured both
subjectively and by an objective standard of reasonableness.”
Marano v. Holland, 179 W.Va. 156, 163, 366 S.E.2d 117, 124
(1988). Thus, an expectation of privacy is legitimate when an
individual demonstrates that he or she personally has an
expectation of privacy in the place searched, and also
demonstrates that the expectation is reasonable. Rakas v.
Illinois, 439 U.S. 128, 143-44, 99 S. Ct. 421, 58 L. Ed. 2d 387
(1978). In order for an expectation to be “reasonable” it must
have “a source outside of the Fourth Amendment, either by
reference to concepts of real or personal property law or to
28
United States v. Matlock, 415 U.S. 164 (1974).
29
United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir. 1994).
30
United States v. Block, 590 F.2d 535 (4th Cir. 1978).
20
understandings that are recognized and permitted by society.”
439 U.S. at 143-144 n.12, 99 S. Ct. 421. In other words, the
individual’s subjective expectation of privacy must be “one that
society is prepared to recognize as ‘reasonable.’” Id.
Dorsey, 234 W.Va. at 22, 762 S.E.2d at 591.
In determining whether the petitioner met his burden of proving that he had a
legitimate expectation of privacy in the jacket, we examine the evidence presented at the
suppression hearing31 through a “highly fact-specific” lens. Lacy, 196 W.Va. at 107, 468
S.E.2d at 722, syl. pt. 1, in part. Importantly, such facts are to be “construe[d] . . . in the light
most favorable to the State.” Lacy, 196 W.Va. at 107, 468 S.E.2d at 722, syl. pt. 1, in part.
Construing the facts of the case at bar in the light most favorable to the State,
we find the petitioner failed in his burden of proving that he had a reasonable expectation of
privacy in his jacket and, thus, lacks standing to challenge the search. The suppression
hearing evidence demonstrated that Starks bailed the petitioner out of jail at the end of
December of 2009,32 after which the petitioner “just kind of hung out” with the Starks family
31
See State v. Buzzard, 194 W.Va. 544, 552, 461 S.E.2d 50, 58 (1995) (“[T]here is no
authority . . . that upon appellate review, we should consider the . . . testimony at trial in
upholding the trial court’s ruling which arose out of the pre-trial suppression hearing”); State
v. Farley, 192 W.Va. 247, 253-54 n.7, 452 S.E.2d 50, 56-57 n.7 (1994) (“Because the
defendant did not renew his motion to suppress at trial, specifically after he had testified, he
is now foreclosed from using trial testimony to challenge the trial court’s ruling.”).
32
This was less than two weeks before the victim’s murder on January 13, 2010.
21
“a little bit,” sometimes staying at Starks’ house, or he might “stay with somebody else[,]”
“crashing” at Starks’ home “when he needed to.” The evidence also showed that the
petitioner arrived at Starks’ home during the early morning hours of January 13, 2010,
shortly after the murder. When Starks awoke later that same morning, the petitioner was
gone, having relinquished possession of his jacket by leaving it in the foyer of the home, a
common area. The petitioner gave Starks no indication as to whether he would ever return
to Starks’ home, and he left no instructions with regard to his jacket.
In short, the petitioner could not reasonably have expected that no one would
ever touch or handle his jacket that he had abandoned on a chair in the foyer of Starks’ home,
whether it be Starks, or his wife or children, or people Starks invites into his home, such as
Detective Wygal and Officer Fazzini. Other courts are in agreement that persons by their
acts and deeds can lose any expectation of privacy in personal items. See Brown v. United
States, 97 A.3d 92, 96 (D.C. 2014) (citing United States v. Boswell, 347 A.2d 270, 274 (D.C.
1975) (“‘The issue is not abandonment in the strict property-right sense but whether the
person prejudiced by the search had voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question.’”); Hill v. United States, 664 A.2d 347
(D.C. 1995) (finding defendants did not have legitimate expectation of privacy in apartment
where they “sometimes” stayed, where they had stayed previous night, and were good friends
with tenant); State v. Corbin, 957 N.E.2d 849 (Ohio Ct. App. 2011) (finding defendant had
no expectation of privacy in contents of bag he had abandoned in plain view at home of third-
22
party who consented to search of home where defendant was occasional overnight guest );
State v. Francisco, 26 P.3d 1008, 1012 (Wash. Ct. App. 2001) (upholding search and seizure
of gun at mother’s home and observing that “[defendant’s] intermittent use of his mother’s
house as a place to stay overnight, do laundry, and store clothes does not suggest that he had
authority to exclude anyone from the premises or that he could legitimately expect that items
he left there would remain undisturbed.”).
Under the specific facts and circumstances of the instant matter construed in
the light most favorable to the State, we find no error in the admission of the evidence seized
from Starks’ home. Accordingly, we affirm the trial court’s denial of the motion to suppress.
B. Probable Cause for Search Warrant
The petitioner asserts the trial court erred by denying his motion to suppress
the evidence seized from his residence at 118 Anderson Street because the affidavit seeking
the search warrant lacked a proper nexus between the criminal activity, the place searched,
and the items sought. The petitioner argues that the sufficiency of the affidavit for the
probable cause determination must be based solely on the facts within the four corners of the
affidavit. He contends Sergeant Cox’s affidavit contained no facts to connect 118 Anderson
Street to any of the items or activities described therein; used knowledge of an
uncorroborated hearsay informant regarding phone calls; contained a conclusory statement
that the Pittsburgh Pirates hat found at the scene belonged to the petitioner; and failed to state
23
where and when the petitioner was seen wearing the hat.33 For these reasons, the petitioner
argues that the evidence seized pursuant to the search warrant, including a pair of size 10.5
Timberland boots, should have been suppressed at trial.
The State responds that the trial court correctly ruled that the evidence seized
from within the petitioner’s home was admissible at trial. The State asserts that reviewing
courts should grant issuing courts deference when reviewing warrants for probable cause,
judging such warrants under the totality of the circumstances. Regarding the statement in
the affidavit that an individual said the petitioner endeavored to phone the victim on the night
of the murder, the State maintains a search warrant is not invalidated merely because it
contains a misrepresentation if, absent the misrepresentation, the balance of the affidavit
supports a finding of probable cause. Arguing there was probable cause for the warrant to
issue, the State cites the strong surveillance video evidence, as described in the affidavit, first
depicting the petitioner wearing the Pirates hat and later showing him without the hat,
combined with the fact that a Pirates hat was found at the crime scene. The State asserts that
the lack of specific locations in the affidavit as to where the petitioner was seen with or
without the hat “bears no weight as to probable cause.” The State also notes that the affidavit
stated the victim was murdered with a .25-caliber gun and that a .25-caliber gun magazine
33
Although the petitioner also asserts the affidavit was deficient because it described
the ammunition magazine seized from his jacket, we have already determined that the trial
court was correct in refusing to suppress this evidence.
24
was found in the petitioner’s jacket at a friend’s residence. Lastly, the State asserts the
affidavit sought “specific classes of items,” which the surveillance video evidence indicated
the petitioner possessed.
It is well-established that “[b]oth the Fourth Amendment to the United States
Constitution and Article III, Section 6 of the West Virginia Constitution provide that no
warrant shall issue except upon probable cause supported by oath or affirmation.” Syl. Pt.
3, State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986); see also W.Va.R.Crim.P. 41(c)
(“A warrant shall issue only on an affidavit or affidavits sworn to before the magistrate or
a judge of the circuit court and establishing the grounds for issuing the warrant. If the
magistrate or circuit judge is satisfied that grounds for the application exist, or that there is
probable cause to believe that they exist, that magistrate or circuit judge shall issue a warrant
identifying the property or person to be seized and naming or describing the person or place
to be searched. The finding of probable cause may be based upon hearsay evidence in whole
or in part.”).
In the instant matter, Sergeant Cox sought a warrant to search 118 Anderson
Street, Clarksburg, West Virginia, based on the following information set forth in his
affidavit:
25
On 01-13-10, around 0330 hrs, Jayar Poindexter was shot
and killed with a .25 caliber gun at the Overlook Apts34 in
Harrison County. According to an individual, EC Payne had
throughout the night attempted to make contact with the victim
by phone. EC Payne’s Pirate hat was located on the ground,
across from the victim’s residence. Surveillance video showed
around 0300 hours EC Payne was wearing the hat. At 0336 hrs,
EC Payne is observed at the Go Mart in Bridgeport without the
hat. During a search of the coat belonging to EC Payne at a
friend’s residence, Officers recovered a .25 auto magazine
containing bullets.
(Footnote added). In determining whether there was probable cause for the circuit court to
issue the search warrant based upon this affidavit, we are guided by the following principles:
Probable cause for the issuance of a search warrant exists
if the facts and circumstances provided to a magistrate in a
written affidavit are sufficient to warrant the belief of a prudent
person of reasonable caution that a crime has been committed
and that the specific fruits, instrumentalities, or contraband from
that crime presently may be found at a specific location. It is not
enough that a magistrate believes a crime has been committed.
The magistrate also must have a reasonable belief that the place
or person to be searched will yield certain specific classes of
items. There must be a nexus between the criminal activity and
the place or person searched and thing seized. The probable
cause determination does not depend solely upon individual
facts; rather, it depends on the cumulative effect of the facts in
the totality of circumstances.
Syl. Pt. 3, State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995). Further,
34
The Quarry Apartments are located on Overlook Drive. Throughout this criminal
proceeding, witnesses used the names “Overlook Apartments” and “Quarry Apartments” to
refer to the same apartment complex.
26
[i]n State v. Thomas, 187 W.Va. 686, 421 S.E.2d 227
(1992), we quoted approvingly the standard of review of the
sufficiency of a search warrant affidavit outlined by the United
States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103
S. Ct. 2317, 76 L. Ed. 2d 527 (1983):
[W]e have repeatedly said that after-the-fact
scrutiny by the courts of the sufficiency of an
affidavit should not take the form of de novo
review. A magistrate’s determination of probable
cause should be paid great deference by reviewing
courts. A grudging or negative attitude by
reviewing courts toward warrants, is inconsistent
with the Fourth Amendment’s strong preference
for searches conducted pursuant to a warrant;
courts should not invalidate warrant[s] by
interpreting affidavit[s] in a hypertechnical, rather
than a commonsense, manner.
State v. Corey, 233 W.Va. 297, 303-04, 758 S.E.2d 117, 123-24 (2014).
Applying these standards, we find Sergeant Cox’s affidavit established probable
cause for the circuit court to issue the search warrant. While the petitioner characterizes the
reference in the affidavit to the Pirates hat as being conclusory, the affidavit provides that this
hat was discovered on the ground near the victim’s apartment and that surveillance video
captured the petitioner wearing a Pirates hat shortly before the murder, but not wearing it
shortly after the murder. Further, even if we were to remove the statement concerning the
petitioner attempting to call the victim on the night of the murder, we find the balance of the
information in the affidavit was sufficient for the circuit court to find probable cause to issue
the warrant. As we have previously held, “[a] search warrant affidavit is not invalid even if
27
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). The
affidavit further provided that the victim was shot and killed with a .25 caliber gun and that
officers had recovered a .25 caliber ammunition magazine from the jacket the petitioner left
behind at a friend’s home. Based upon the “cumulative effect of the facts in the totality of
circumstances,”35 and viewing the facts in the light most favorable to the prosecution, we find
Sergeant Cox’s affidavit contained ample information establishing probable cause for the
circuit court’s issuance of the search warrant. Accordingly, we find no error in the trial
court’s denial of the petitioner’s motion to suppress the evidence seized during the execution
of the warrant.
C. Venue
The petitioner asserts the trial court erred by failing to grant his motion for a
change of venue, alleging that newspaper articles and extensive media coverage was so
prejudicial as to warrant either the removal of his trial to another county or a change of venire
by summoning potential jurors from another county. Noting that West Virginia Code § 62-3-
13 (2014) provides that “[a] court may, on the petition of the accused and for good cause
shown, order the venue of the trial of a criminal case in such court to be removed to some
35
Lilly, 194 W.Va. at 598, 461 S.E.2d at 104, syl. pt. 3, in part.
28
other county[,]” the petitioner asserts that “good cause shown” means the establishment of a
“present, hostile sentiment” against the accused throughout the county in which the offense
occurred, which precludes the defendant from receiving a fair trial. Although the petitioner
concedes that prejudicial pre-trial publicity alone is insufficient to require a change of venue
and that prejudice must be proven, he maintains that he suffered “substantial prejudice” due
to “extensive and voluminous” media coverage in the community.
The State responds that the trial court correctly denied the motion as there was
insufficient evidence to support a change of venue. Noting the burden of proof for any change
of venue motion rests with the movant, the State maintains that the decision on whether to
grant a change of venue should not be disturbed on appeal absent a clear abuse of discretion.
The State points out that during voir dire, only two potential jurors recalled hearing news of
the victim’s murder or of the petitioner’s arrest as a suspect; neither had formed an opinion
of the case based upon the news articles; and neither could recall specific information derived
from the news articles.
It has long been the law in this state that
“[t]o 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
29
ruling thereon will not be disturbed, unless it clearly appears that
the discretion aforesaid has been abused.” Syl. pt. 2, State v.
Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).
Syl. Pt. 2, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983). Importantly,
“[w]idespread publicity, of itself, does not require change of venue, and neither does proof
that prejudice exists against an accused, unless it appears that the prejudice against him is so
great that he cannot get a fair trial.” Syl. Pt. 1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d
389 (1982). Moreover, a change of venue will not be granted unless “a present hostile
sentiment against the accused, extending throughout the entire county in which he is brought
to trial[,]” is shown. Syl. Pt. 1, in part, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559
(1981) (quoting Syl. Pt. 1, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)).
Here, the trial court delayed ruling on the petitioner’s motion for a change of
venue until after jury voir dire, which ultimately proved unavailing to the petitioner. Indeed,
“[o]ne of the inquiries on a motion for a change of venue should not be whether the
community remembered or heard the facts of the case, but whether the jurors had such fixed
opinions that they could not judge impartially the guilt or innocence of the defendant.” Syl.
Pt. 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). As the State points out, only two
jurors had any recollection of news coverage of the matter and both indicated, unequivocally,
that they had no fixed opinions regarding the matter.
30
Although the petitioner asserts that prejudicial newspaper articles were
magnified by the low crime rate in his small community, the fact remains that even if he had
been able to establish that any prejudice existed against him, a change of venue would still
not have been warranted unless he could demonstrate that the “prejudice against him [was]
so great that he [could not] get a fair trial.” Gangwer, 169 W.Va. at 177, 286 S.E.2d at 391,
syl. pt. 1, in part. Jury voir dire simply did not demonstrate the prejudice about which the
petitioner speculated.
“Whether a change of venue is warranted rests in the sound discretion of the
trial court, and its ruling thereon will not be disturbed, unless it clearly appears that such
discretion has been abused.” Gangwer, 169 W.Va. at 177, 286 S.E.2d at 391, syl. pt. 2.
Based on the record before us, we find no abuse of discretion in the trial court’s decision that
a change of venue was not warranted in this matter.
D. Jail attire
The petitioner asserts the trial court deprived him of his constitutional right to
a presumption of innocence by compelling him to wear orange jail attire and to be restrained
in handcuffs and leg shackles in the presence of the jury during voir dire. Relying upon
Estelle v. Williams, 425 U.S. 501 (1976), the petitioner asserts that courts cannot compel
defendants to stand trial while dressed in “identifiable prison clothes . . . .” Id. at 512. The
31
petitioner contends the trial court erred by failing to permit him to be absent from jury
selection after he refused to wear the street attire that was provided to him.
While agreeing that a criminal defendant has a fundamental right not to be
forced to attend trial in identifiable prison attire, the State asserts that a criminal defendant
may waive a fundamental right protected by the Constitution, so long as the right was
knowingly and willingly waived. Maintaining that the petitioner’s repeated threats and
statements throughout pre-trial hearings suffice this standard, the State recounts the efforts
made by the trial judge and the petitioner’s counsel to have the petitioner to change into the
street attire provided to him. Because the petitioner refused to do so, the State asserts the
petitioner waived his right not to appear during voir dire in orange jail attire. We agree.
There is no question that “[a] criminal defendant has the right under the Due
Process Clause of our State and Federal Constitutions not to be forced to trial in identifiable
prison attire.” Syl. Pt. 2, in part, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d
805 (1979). Further, “‘[a] criminal defendant has the right, absent some necessity relating to
courtroom security or order, to be tried free of physical restraints.” Syl. Pt. 3, State v.
Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). In addressing this issue of constitutional
dimension, our review is plenary. See State v. Finley, 219 W.Va. 747, 749, 639 S.E.2d 839,
841 (2006) (addressing issue of defendant appearing at trial in jail attire and finding that “[t]he
issue . . . calls on us to examine a question of constitutional dimension and as such, ‘[w]here
32
the issue on an appeal from the circuit court is clearly a question of law . . . we apply a de
novo standard of review.’ Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138,
459 S.E.2d 415 (1995).”).
As indicated above, the record is replete with the petitioner’s threats to his
counsel, his counsel’s families, witnesses, and courtroom security; his insulting language
directed to the trial judge; his disruptive behavior; and finally his trial counsel’s stated belief
that the petitioner was going “to try to create some chaos” in the courtroom during jury voir
dire. The record indisputably demonstrates that the trial court went to great lengths to protect
the petitioner’s constitutional rights, while also assuring courtroom security, by offering and
making available passive restraints to be worn under the street clothes.36 The petitioner’s flat
out refusal to change into the street clothing and passive restraints prompted the trial judge
to find that “[t]he Court is left with no choice but to have him [the petitioner] brought to the
courtroom in his jail clothing with shackles and handcuffs.”
It is abundantly clear that every effort was made by the trial judge and defense
counsel to have the petitioner change into the street attire and the humane restraints. The
petitioner’s blatant refusal to do so leads us to the ineluctable conclusion that the petitioner
knowingly and intelligently waived his right not to wear jail attire. See State v. Eden, 163
36
The parties represent that the petitioner appeared throughout the remainder of his
trial in street clothing.
33
W.Va. 370, 378, 256 S.E.2d 868, 873 (1979) (“An accused may, by declaration and conduct,
waive a fundamental right protected by the Constitution, but it must be demonstrated that the
waiver was made knowingly and intelligently.”). Moreover, we find no merit in the
petitioner’s contention that he should have been absented from jury voir dire due to his refusal
to change into street clothing. Critically, the petitioner never asked to be absent from voir
dire. Had the trial court, sua sponte, refused to allow the petitioner to be in the courtroom in
jail attire during voir dire, the trial court would have denied the petitioner his constitutional
right to be present at a critical stage of his criminal proceedings. See Syl. Pt. 6, State v. Boyd,
160 W.Va. 234, 233 S.E.2d 710 (1977) (“The defendant has a right under Article III, Section
14 of the West Virginia Constitution to be present at all critical stages in the criminal
proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that
what transpired in his absence was harmless.”); see also W.Va. R.Crim. P. 43(a) (“The
defendant shall be present . . . at every state of the trial . . . .”). For these reasons, we find no
error in this regard.37
37
The petitioner also asserts that the cumulative effect of the errors he has alleged
deprived him of his constitutional right to a fair trial and warrants a reversal of his
convictions. See Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (“Where
the record of a criminal trial shows that the cumulative effect of numerous errors committed
during the trial prevented the defendant from receiving a fair trial, his conviction should be
set aside, even though any one of such errors standing alone would be harmless error.”).
Having failed to demonstrate any error in the proceedings below, there is no basis to invoke
the cumulative error doctrine.
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IV. Conclusion
For the reasons stated above, the petitioner’s conviction for first degree murder
and conspiracy to commit burglary are hereby affirmed.
Affirmed.
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