State of West Virginia v. Lansdowne ( 2022 )

FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-1004 (Jefferson County CC-19-2020-F-5)
Elliott D. Lansdowne,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Elliott D. Lansdowne, by counsel B. Craig Manford, appeals the November 16,
2020, order of the Circuit Court of Jefferson County sentencing petitioner to consecutive sentences
of life in the penitentiary without the possibility of parole for first-degree murder and ten years in
the penitentiary for use or presentation of a firearm during the commission of a felony. Respondent
State of West Virginia, by counsel Patrick Morrisey and Andrea Nease Proper, filed a response in
support of the circuit court’s order.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
On August 24, 2019, petitioner shot and killed Taylor Ann Pond (“the victim”) through her
closed exterior apartment door. The victim and petitioner were both twenty-eight years old at the
time of the shooting. In January of 2020, petitioner was indicted on one count of first-degree
murder and one count of use or presentation of a firearm during the commission of a felony.
In advance of his trial, petitioner filed two motions: a motion to suppress and a motion to
continue the trial. In the first motion, petitioner sought to suppress the recorded interview he gave
to Officers Alissa Meeks and Jason Newlin of the Charles Town Police Department on August 25,
2019. Petitioner argued that the interview contained inculpatory custodial statements, asserting
that
the interrogation tactics employed by the State fomented both hope and despair in
the mind of [petitioner]; misrepresentations or mistaken statements of law [were]
made by law enforcement to [petitioner] [that] affected the voluntariness of his
1
statement; and promises and benefits were held out to [petitioner] to induce his
confession, all in violation of law.
Specifically, petitioner took issue with the following portions of the interview:
MEEKS: What this comes down to is how much time you want to do, okay?
....
PETITIONER: I’m not coming home.
MEEKS: Well, that’s up to you.
NEWLIN: It hasn’t been decided yet, bud.
....
MEEKS: I can’t make you promises, I can’t tell you how its going to turn
out, but I can tell you now because I’ve seen it happen, okay, what they do, they
take your criminal history, I don’t think you’re classified as a career criminal. I
think you’re classified as making some bad mistakes, okay, because I’ve seen a
whole lot of criminal histories[.]
....
MEEKS: It’s a first time. Okay. Because I’m going to tell you right now, if
I’m sitting there on that bench and I see a young man come to me and I have two
people, okay, and I have a young man who comes to me and he says I f**ked up,
okay, I didn’t mean for it to happen like that but I f**ked up. He owns it. He takes
responsibility for it. He has that backbone. It’s not what he intended to do but he’s
owning it like a man. I’m going to respect that guy a whole lot more than another
one that comes to me and says I didn’t do it, I didn’t have any involvement with it,
I’m going to wash my hands of it and I’m, going to eat the full time. I don’t care
what that sentence is. I’m going to respect that. I think you deserve respect and I
want you to have that utmost --
....
PETITIONER: I haven’t admitted nothing. . . Or denied anything.
NEWLIN: But you kind of haven’t helped yourself either, you know what
I’m getting at?
....
PETITIONER: For felony crimes do you, like -- good time is, like 50
2
percent of the time or 65 or something.
MEEKS: I can tell you what they do. They can give you credit for
responsibility because you know what, a lot of times, like, the one that I was telling
you about that just got married in prison, that was the federal, and they give you a
reduction of sentence based on acceptance of responsibility because what they will
do is -- I don’t think that you would be classified as a career criminal. You’ve got
a couple felonies. They’re not felonies like I’ve dealt with in the past so what they
do is score those based on -- and I’m just being straight with you, I’m telling you
based on your history, okay, because that’s how I operate. They score those, you
will be given a factor and a level number, and then they reduce it from there. They
reduce it from -- what they do is called it basically, like a PSI report, they do
background and they determine a factor and then they can lower that number based
on acceptance of responsibility. They can lower that number based on how soon
you take a plea agreement. They can lower that number based on a lot of factors
and that’s legit, that’s how it works, okay? So you’ve got stacked up in your head
that it’s some life sentence, but I’m going to tell you what, that woman in there --
listen.
Respondent filed a response to the motion in which it asserted that, under the totality of the
circumstances, petitioner’s inculpatory statements were voluntary and not coerced.
In the motion to continue, petitioner asked the trial court to continue his trial for ninety
days over concerns that the COVID-19 pandemic might prevent him from receiving a fair trial.
More specifically, he stated, “[Petitioner] is fearful that once a jury is empaneled and sits through
two to three days[’] worth of trial they will undoubtedly rush through their deliberations in an
effort to distance themselves from others and possible contact with the virus.” The motion also
asserted:
[C]ounsel finished a 2 and one-half [day] jury trial on September 4, 2020, in
Berkeley County, at which time the jury only deliberated for an hour before
reaching a verdict in the case, which was, by the way, guilty on four counts and not
guilty on two counts. Of course, counsel cannot cite the [c]ourt to any empirical
data or evidence that juries in the Covid-19 climate tend to rush their deliberations
but it is obviously a real concern and not just an attempt to stall the proceedings
unnecessarily.
Respondent filed a response asking the trial court to deny the motion. In support of its position,
respondent stated that Jefferson County was not experiencing a surge in COVID-19 cases and that
there was no evidence COVID-19 would influence the jury’s deliberations.
The trial court considered both of petitioner’s motions during a pretrial hearing. By order
entered on September 17, 2020, the trial court denied both of petitioner’s motions. Regarding the
motion to suppress, the trial court indicated that it reviewed the entirety of petitioner’s interview
with Officers Meeks and Newlin, finding “by a preponderance of the evidence that the totality of
the circumstances show that [petitioner]’s statement was made knowingly and voluntarily, after
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having been read his Miranda rights.” The order went on to state:
Initially the [c]ourt finds that [petitioner] is clearly intelligent, as he appeared to be
engaging in a give-and-take with the officers with his goal being the determination
of what evidence they had against him before he eventually showed his cards and
gave his side of the shooting. Next, [petitioner]’s criminal history and [petitioner]’s
statements make[] clear that he is very familiar with the criminal justice system.
Upon review the [c]ourt finds[] no promises were made by the officers to
[petitioner] during the interview. Finally, the [c]ourt finds that three (3) to four (4)
hours length of the recorded interview is not unduly long. Especially when
considering the thirty to forty-five minutes at the beginning of the video and thirty
minutes at the end that were dead time.
The trial court further found that “[n]either the discussion about a baby nor Det. Meeks’ discussion
about federal sentencing procedures produced despair of the kind raised by [petitioner] in the case
law cited to the [c]ourt.”
Regarding the motion to continue, the trial court concluded that “COVID-19 is not a
sufficient ground for a continuance at this time given the current situation and the success of other
recent trials in Jefferson and Berkeley counties.”
Petitioner’s trial began on September 21, 2020, with jury selection. During voir dire,
petitioner’s counsel asked:
Is any member of the panel so uncomfortable due to the current COVID-19
pandemic that they would be unable to fulfill [their] duties . . . being in close
proximity to other potential jurors despite all the precautions we’re taking now and
will take during the trial itself? Anybody so uncomfortable with that they couldn’t
do that? Couldn’t actually, you know, you got picked on the jury and you go back
and you deliberate, you would be able to express your opinions? You wouldn’t rush
things, like, let’s get out of here, we’ve been together too long. You would really
be able to give everybody a fair shake?
The trial court then explained to the potential jurors that the trial would take place in the “historical
courtroom,” that the courtroom would become the jury room during breaks, that the jury would be
permitted to spread out in the courtroom to conduct deliberations, and that physical distancing
would be possible. None of the potential jurors indicated that they would be unwilling or unable
to serve on the jury due to the COVID-19 pandemic. After the jury was selected, the trial court
advised the jurors:
So we’ve taken a courtroom and made adaptations to it to meet the requirements
that face us due to COVID and [to] make sure that everybody is safe and if there’s
anything that happens along the way that is of any concern to you or that you think
we can do better, just simply let the bailiff Mr. Pittinger know that and we will
accept your recommendation and try to make whatever accommodations we can do
and make sure everybody feels safe throughout the process . . . .
4
Opening statements and the presentation of evidence commenced the next day.
The State presented evidence through the testimony of numerous witnesses and exhibits.
Petitioner presented no evidence during his case-in-chief. Petitioner’s defense, as argued to the
jury by his counsel, was that the shooting occurred accidentally when a wreath hanging from the
victim’s exterior apartment door struck petitioner’s hand.
The testimony revealed that the victim shared a second-floor apartment in Charles Town,
West Virginia, with Andrea Jodeit. On the evening of the shooting, Ms. Jodeit and her friend,
Angel Workman, were in the apartment together with the victim. Just before the shooting, the
victim left the apartment and went downstairs to smoke a cigarette. According to Ms. Workman,
as the victim returned to the apartment, the victim was talking to someone. Ms. Workman testified:
[The victim] came through the door. She kept the door cracked but she was talking
to somebody. She sounded a little agitated, a little upset, and next thing I know I
hear, “Elliott, get that gun out of here,” and immediately afterwards she quickly
shut the door, threw her weight into it, and maybe, like a second later the shot went
off through the door.
Ms. Jodeit gave similar testimony, telling the jury that the victim “came back to the apartment and
I just heard her say, ‘Elliott, get out of here with that gun,’ and then she shut the door and the gun
went off.” The victim had been shot in the head. Both Ms. Jodeit and Ms. Workman witnessed the
shooting. Ms. Jodeit immediately locked the exterior door, and she and Ms. Workman retreated to
the bathroom to call 911. At the time of the shooting, a wreath was hanging on the exterior door
to the apartment. The wreath was approximately eighteen inches wide and six inches deep. Ms.
Jodeit testified that petitioner and the victim had, at one point in the past, been intimate.
Upon arriving at the apartment, officers took statements from individuals at the scene,
including Ms. Jodeit, Ms. Workman, and neighbors. The officers determined that petitioner may
have been involved in the shooting. Through the early morning hours of August 25, 2019, the
officers took numerous photographs of the apartment and collected evidence, which included a
shell casing. The officers did not collect the wreath from the door.
On August 25, 2019, petitioner was located by police and placed under arrest. At the time,
petitioner was at his parents’ home in Frederick County, Maryland. Officers executed a search
warrant, recovering a Ruger 9 millimeter P9 semi-automatic pistol and ammunition from
petitioner’s parents’ home.
Following his arrest, petitioner was interviewed by Officers Meeks and Newlin at the
Frederick County Sheriff’s Office. The interview was recorded, and Officer Meeks questioned
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petitioner for approximately two hours and eleven minutes. 1 The officers began the interview by
advising petitioner of his Miranda rights and went through various legal forms with petitioner.
Officer Meeks described petitioner’s demeanor during the interview as “calm,” “collected,” and
“not nervous whatsoever.” Officer Meeks testified that, during the interview, petitioner admitted
to shooting the victim with the Ruger pistol and that at no point did petitioner claim that the
shooting was an accident, that the gun accidently fired, or that he did not intend to shoot the victim.
Officer Meeks further testified that petitioner made no reference to the wreath on the victim’s
apartment door. A thirty-five-minute segment of the interview was played for the jury.
During the interview, petitioner told the officers that he was in a relationship with two
women at the time of the shooting, one of whom lived in the same apartment building as the victim,
and he acknowledged a prior sexual relationship with the victim. According to petitioner, on the
day of the shooting, he had visited that girlfriend and was frustrated by the experience. He
encountered the victim outside the building where she had been smoking a cigarette. He was cold,
and the victim retrieved his hoodie from the building. He told the officers:
[W]hen she bring me my hoodie out she had it in her hand like this. I looked at it
like this. Didn’t even look at her. I looked at it and was, like, just pointed to the seat
next to me.
....
. . . It was such a dick move. I could have just grabbed the sweater -- if I just
grabbed the sweater and said thank you, none of this would have happened. She
threw the hoodie at me, like, threw it at me, like, not hard, you know what I’m
saying, but just, like, (inaudible), you know.
He then said, “Something triggered me.” He followed the victim as she proceeded back to her
apartment and told her, “You ever throw something at me again, I’m going to put a bullet in
between your eyes.” Petitioner stated, “She told me I wasn’t going to do shit.” He explained to the
officers, “That set me off again.” He proceeded up the stairs, pulled out his gun, and cocked it. He
told the officers that the victim said, “[P]ut that gun away, you ain’t going to do shit,” prompting
him to point the gun at her face. He then said that she shut her apartment door on his face.
When Officer Meeks asked petitioner what he was thinking, he said:
I wasn’t. At that time because the gun was already -- you know, it was
already at head range. You know, like, I wasn’t thinking. My body just react -- I
just reacted. I wasn’t thinking at all. I was probably thinking all the way up to the
point that until I had my hand like this. Once it was like this, I didn’t think.
1
Officer Meeks testified that the total length of the recording of the interview was about
three hours and forty-five minutes but that she was only in the room with petitioner for about two
hours and eleven minutes.
6
He then told the officers, “I think I wanted somebody to hurt as much as I did.” When Officer
Meeks asked him whether he wanted to shoot the victim, he replied, “Yeah, I did. I did want that
bullet to hit her. I’m not going to lie to you.”
Police officers later returned to the victim’s apartment to collect additional evidence,
including the exterior door. Again, the wreath was not collected from the door. Both Officers
Meeks and Newlin testified that they did not collect the wreath because they did not believe it held
evidentiary value. Officer Meeks testified, “[Petitioner] never brought [the wreath] up in our
extensive interview. He never made mention of it. He never indicated there was anything on the
door. It didn’t stick out in his mind and, therefore, thus we decided to take the door as the primary
piece.”
Additional investigation into the Ruger pistol was performed. Officer Newlin testified that
he contacted the manufacturer of the pistol and that “[t]hey responded to me and said that there
were no recalls, defects, or anything of the nature that would cause that gun to fire with anything
other than physically pulling the trigger.” Respondent’s firearm and toolmark expert testified that
the Ruger pistol was subjected to impact testing and that, for it to fire, a finger or some object
would have needed to pull the trigger. The expert further testified that “the shot into the entrance
hole on the exterior of the door was fired at a distance somewhere greater than contact but less
than 24 inches.” When asked whether the wreath would have changed his conclusions with regard
to his distance determination, the expert responded, “No, it would not have.”
Before the case was submitted to the jury, petitioner requested that the trial court give an
involuntary manslaughter instruction based on his theory that the gun accidently fired when the
wreath struck his hand. The trial court denied the request, finding that no evidence had been
produced to support petitioner’s theory and that, without such evidence, petitioner was not entitled
to the instruction.
After deliberating upon the verdict for approximately forty-eight minutes, the jury found
petitioner guilty of first-degree murder and use or presentation of a firearm during the commission
of a felony. The jury returned the next day to decide whether to recommend mercy. 2 Following
the presentation of additional evidence by respondent, the jury deliberated upon its
recommendation for thirty-four minutes, ultimately deciding not to recommend mercy. The trial
court entered an order of conviction on September 24, 2020.
On October 3, 2020, petitioner filed a motion requesting either a new trial or judgment of
acquittal. In the motion, petitioner argued that given the jury’s short deliberation times, the jury
decided the case based on sympathy or passion, rather than an objective review of the evidence,
and that the trial court should have directed a verdict in favor of petitioner because no rational jury
could have concluded beyond a reasonable doubt that petitioner intentionally tried to kill the
victim. Respondent filed a response to the motion, arguing that the motion should be denied.
By order entered on November 13, 2020, the trial court denied the motion. With regard to
2
Before trial, respondent filed a motion to bifurcate the trial to allow for a separate mercy
phase, if applicable. The trial court granted the motion over petitioner’s objection.
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petitioner’s argument concerning the length of the jury’s deliberations, the trial court said:
[Petitioner] then speculates, without any evidentiary support, as to the reason for
the length of the deliberations. However, this is the type of intrinsic challenge that
[State v. ]Scotchel[, 168 W. Va. 545, 285 S.E.2d 384 (1981),] and [State v. ]Jenner[,
236 W. Va. 406, 780 S.E.2d 762 (2015),] specifically preclude. Additionally, when
viewing the argument on its merit, [petitioner] invites the [c]ourt to speculate on
the cause for such deliberation because there is no actual evidence presented by
[petitioner] to show jury misconduct. The [c]ourt considering this an intrinsic
matter and, mindful that even if it were not there is a requirement clear and
convincing evidence must be presented proving extrinsic misconduct, declines [to]
engage in such speculation.
Regarding petitioner’s argument that the jury could not have rationally concluded that
petitioner intentionally killed the victim, the trial court found that the argument could be
summarized as a challenge to the sufficiency of the evidence. The trial court concluded that,
“[v]iewing the evidence in the light most favorable to the prosecution, there [was] sufficient
evidence such that a reasonable jury could find that [] [petitioner] willfully, deliberately,
intentionally and maliciously, with premeditation and deliberation did kill [the victim].”
On November 16, 2020, the trial court entered a sentencing order sentencing petitioner to
consecutive sentences of life in the penitentiary without the possibility of parole for first-degree
murder and ten years in the penitentiary for use or presentation of a firearm during the commission
of a felony. Petitioner now appeals his conviction, arguing that he is entitled to judgment of
acquittal or a new trial.
On appeal, petitioner asserts four assignments of error. In his first assignment of error, he
contends that the jury reached its verdict in an unreasonably short period of time, which he argues
indicates that the jury’s decision was not based upon the evidence but was instead “the product of
sympathy, passion[,] or extrinsic fear of being exposed to Covid-19.” We observe that petitioner
raised this issue in his post-trial motion requesting a new trial. We apply the following standard in
reviewing a trial court’s order denying a motion for a new trial:
In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).
We have previously said that “the mere allegation of juror misconduct is insufficient to
warrant a new trial.” State v. Trail, 236 W. Va. 167, 175, 778 S.E.2d 616, 624 (2015).
“‘Misconduct on the part of the jury as grounds for a new trial is not presumed but must be fully
proved by the moving party.’ 58 Am. Jr. 2d New Trial § 143, at 195 (2012) (footnote omitted).”
8
Trail, 236 W. Va. at 175, 778 S.E.2d at 624. In Syllabus Point 1 of State v. Scotchel, 168 W. Va.
545, 285 S.E.2d 384 (1981), we held that “[a] jury verdict may not ordinarily be impeached based
on matters that occur during the jury’s deliberative process which matters relate to the manner or
means the jury uses to arrive at its verdict.” We further held that “[c]ourts recognize that a jury
verdict may be impeached for matters of misconduct extrinsic to the jury’s deliberative process.”
Id. at 545, 285 S.E.2d at 385, Syl. Pt. 2 (emphasis added). In State v. Jenner, 236 W. Va. 406, 780
S.E.2d 762 (2015), we stated that “a challenge to the length of jury deliberations constitutes an
intrinsic challenge to a verdict that we will not entertain.” Id. at 417, 780 S.E.2d at 773 (emphasis
added).
In this instance, petitioner claims that the length of the jury’s deliberations indicates
misconduct and that COVID-19 acted as an extrinsic influence on the jury. We disagree with
petitioner. First, petitioner has presented only a mere allegation of misconduct based solely on the
length of the jury’s deliberations. As we explained in Trail, the mere allegation of misconduct is
insufficient to warrant a new trial. Petitioner has presented no proof, such as an affidavit from a
juror, stating that COVID-19 affected the jury’s deliberations. Rather, the trial transcript suggests
that the jury was not influenced by COVID-19; it shows that potential jurors were informed of the
protocols that would be employed to protect them from COVID-19 and no juror indicated that the
protocols were inadequate, despite being invited to do so by the trial court. The length of the jury’s
deliberations, without more, does not indicate that the jury engaged in misconduct. As we made
clear in Jenner, “[t]he length of jury deliberations is necessarily indeterminate. The brief period of
deliberations . . . could signify that the jury found overwhelming evidence of guilt[.]” 236 W. Va.
at 417, 780 S.E.2d at 773.
Regardless, any influence on the jury by COVID-19 would have been intrinsic to the jury’s
deliberations. Scotchel illustrates this point. In Scotchel, the defendant possessed an affidavit from
a juror—referred to in that case as the “impeaching juror”—in which the impeaching juror affirmed
that she wanted “to get the entire deliberations over as quickly as possible” because a fellow juror
appeared ill. 168 W. Va. at 553, 285 S.E.2d at 390. The impeaching juror also stated that she was
upset that the fellow “juror could not leave the jury room.” Id. The Court determined that the issues
raised by the impeaching juror were not impeachable by her affidavit because “the matter [] inheres
in the jury’s deliberative process.” Id. In other words, the alleged misconduct—that the impeaching
juror wanted to complete deliberations as quickly as possible because a fellow juror appeared ill—
constituted an intrinsic challenge to the jury’s verdict.
In applying our reasoning in Scotchel to petitioner’s case, we conclude that even if
petitioner possessed some proof above and beyond his mere allegation that COVID-19 affected
the jury’s deliberations, such as an affidavit from a juror stating that the deliberations were rushed
over concerns of being exposed to COVID-19, petitioner would not be entitled to a new trial
because the alleged misconduct would constitute an intrinsic challenge to the jury’s verdict. Thus,
petitioner’s attempt to impeach the jury’s verdict on this intrinsic matter fails under Scotchel and
Jenner. Accordingly, we conclude that the circuit court did not abuse its discretion in determining
9
that petitioner was not entitled to a new trial on his claim that the length of the jury’s deliberations
indicates the jury engaged in misconduct. 3
In his second assignment of error, petitioner argues that the trial court “committed plain
and prejudicial error by denying [his] motion to suppress” the August 25, 2019, recorded interview.
He asserts that the interview should have been suppressed because the process and tactics
employed by Officers Meeks and Newlin in obtaining petitioner’s inculpatory statements were
“designed to take [] [p]etitioner on an emotional roller coaster fomenting both hope and despair”
and because the officers made misstatements of law.
We have held that “‘“‘[a] trial court’s decision regarding the voluntariness of a confession
will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.’
Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).” Syl. pt. 7, State v.
Hickman, 175 W.Va. 709, 338 S.E.2d 188 (1985).’ Syllabus Point 2, State v. Stewart, 180 W.Va.
173, 375 S.E.2d 805 (1988).” Syl. Pt. 1, State v. Farley, 192 W. Va. 247, 452 S.E. 2d 50 (1994).
We have further held that
[t]his Court is constitutionally obligated to give plenary, independent, and
de novo review to the ultimate question of whether a particular confession is
voluntary and whether the lower court applied the correct legal standard in making
its determination. The holdings of prior West Virginia cases suggesting deference
in this area continue, but that deference is limited to factual findings as opposed to
legal conclusions.
Id. at 250, 452 S.E.2d at 53, Syl. Pt. 2. Accordingly, pursuant to these holdings, petitioner’s claim
that his statements were involuntary will be reviewed de novo, and we will give deference to the
trial court’s findings of fact. In reviewing the trial court’s ruling on petitioner’s motion to suppress,
we are mindful that we must “construe all facts in the light most favorable to the State, as it was
the prevailing party below.” Syl. Pt. 3, in part, State v. Jones, 220 W. Va. 214, 640 S.E.2d 564(2006).
We have held that, when the State expresses its intent to use a defendant’s prior inculpatory
statements against him at trial, “[t]he burden is on the State to prove by a preponderance of the
evidence that [the] extrajudicial inculpatory statements were made voluntarily before the
statements can be admitted into evidence against one charged with or suspected of the commission
of a crime.” Syl. Pt. 1, State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995). “Whether an
3
Petitioner also alleges that “it can be undoubtedly assumed that [the jury] based their
decision . . . [upon] their own heated passions provoked by [respondent] in its closing arguments.”
Because petitioner has failed to develop this specific argument by setting forth “appropriate and
specific citations to the record on appeal, including citations that pinpoint when and how the issue[]
. . . [was] presented to the lower tribunal,” we decline to address this argument. W. Va. R.A.P.
10(c)(7); see also State, Dep’t of Health & Human Res., Child Advocate Office v. Robert Morris
N., 195 W. Va. 759, 765, 466 S. E.2d 827, 833 (1995) (“[A] skeletal ‘argument’, really nothing
more than an assertion, does not preserve a claim.” (quoting United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991))).
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extrajudicial inculpatory statement is voluntary or the result of coercive police activity is a legal
question to be determined from a review of the totality of the circumstances.” Id. at 523, 457 S.E.2d
at 460, Syl. Pt. 2. We have explained that,
[i]n examining the totality of the circumstances, a court must consider a myriad of
factors, including the defendant’s age, intelligence, background and experience
with the criminal justice system, the purpose and flagrancy of any police
misconduct, [] the length of the interview[,] . . . [and the] moral and psychological
pressures to confess emanating from official sources.
Id. at 527, 457 S.E.2d at 464; see also State v. Sugg, 193 W. Va. 388, 397, 456 S.E.2d 469, 478
(1995) (recognizing that “all the circumstances surrounding the interrogation” should be
considered, including a suspect’s “age, experience, education, background, and intelligence”);
State v. Persinger, 169 W. Va. 121, 129, 286 S.E.2d 261, 267 (1982) (“[T]he voluntariness of a
confession is an inquiry that must be gauged by the totality of the circumstances under which it
was given including the background, experience and conduct of the accused.”). “No one factor is
determinative.” Farley, 192 W. Va. at 250, 452 S.E.2d at 53, Syl. Pt. 7, in part.
Ultimately, “[w]hen evaluating the voluntariness of a confession, a determination must be
made as to whether the defendant knowingly and intelligently waived his constitutional rights and
whether the confession was the product of an essentially free and unconstrained choice by its
maker.” Bradshaw, 193 W. Va. at 523, 457 S.E.2d at 460, Syl. Pt. 7. Regarding a claim that
misrepresentations by police officers warrants suppressing a statement, we have held that
“‘[m]isrepresentations made to a defendant or other deceptive practices by police officers will not
necessarily invalidate a confession unless they are shown to have affected its voluntariness or
reliability.’ Syllabus Point 6, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988).” Farley,
192 W. Va. at 250, 452 S.E.2d at 53, Syl. Pt. 6.
In applying our controlling precedent to this matter, we find no merit to petitioner’s
argument that the inculpatory statements he made to the officers were involuntary. Petitioner did
not argue in his brief that the trial court’s findings of fact—that petitioner was read his Miranda
rights, that he was intelligent, that he was very familiar with the criminal justice system, and that
the length of the interview was not unduly long—were plainly wrong or against the clear weight
of the evidence. As these findings are uncontested in this appeal and are otherwise supported by
the appendix record, we conclude that the trial court’s findings were not plainly wrong or against
the clear weight of the evidence. In addition, we find that petitioner was twenty-eight years old at
the time of the shooting—a decade over the age of majority. Although petitioner argues that the
discussion concerning federal sentencing procedures affected the voluntariness of his statements
to the officers, we find that the discussion was not extensive, and petitioner did not make
inculpatory statements directly following the discussion, indicating that the discussion did not
entice petitioner to make his inculpatory statements. Additionally, we find that Officer Meeks’s
implication that petitioner might not spend the rest of his life in prison if he took responsibility for
his actions did not constitute a misrepresentation in that, if petitioner had entered a plea of guilty
to first-degree murder, the trial court may have ultimately looked favorably upon any such
cooperation and ordered that petitioner receive mercy. See W. Va. Code § 62-3-15, in part (“[I]f
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the accused pleads guilty of murder of the first degree, the court may, in its discretion, provide that
such person shall be eligible for parole[.]”).
In light of these findings, we conclude that the interview was not calculated to foment both
hope and despair in petitioner to the extent that his statements were rendered involuntary. Under
the totality of the circumstances, we conclude, as did the circuit court, that the statements made by
petitioner during the interview were voluntary and that they were not the result of coercive police
activity. Consequently, we determine that the trial court did not err in denying petitioner’s motion
to suppress.
In petitioner’s third assignment of error, he claims that the trial court “committed plain and
prejudicial error by refusing to give [his] jury instruction for involuntary manslaughter.” In support
of this contention, petitioner argues that he was entitled to an involuntary manslaughter instruction
because “there was ample evidence presented to support his theory of the case and his argument
that the sudden slamming of the door with the lo[o]se wreath hanging on it, into his hand, which
was holding and wielding the gun, caused the unintentional discharge of his gun.”
We note that the entirety of petitioner’s argument as to this assignment of error is
comprised of only five sentences. In those five sentences, petitioner does not provide the applicable
standard of review, nor does he provide a single citation to the appendix record, such as a citation
pinpointing when and how this issue was presented to the trial court. Furthermore, petitioner’s
only citation to legal authority—a case defining the offense of involuntary manslaughter—
provides this Court with no guidance in determining whether petitioner was indeed entitled to the
requested instruction.
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that a petitioner’s
brief
contain an argument exhibiting clearly the points of fact and law presented, the
standard of review applicable, and citing the authorities relied on . . . . The argument
must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
Additionally, we have said that “[a]lthough we liberally construe briefs in determining issues
presented for review, issues which are . . . mentioned only in passing but [which] are not supported
with pertinent authority, are not considered on appeal.” Meadows v. Mutter, 243 W. Va. 211, 230,
842 S.E.2d 764, 783 (2020) (quoting State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621
(1996)). Because the discussion accompanying petitioner’s third assignment of error is not
adequately supported by specific references to the record on appeal and pertinent authority, we
decline to address it.
Finally, in petitioner’s fourth assignment of error, he argues that the trial court erred by
denying his motion for acquittal on the ground that the jury’s verdict was contrary to the evidence
presented. Petitioner argues that, under State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995),
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“[n]o rational jury could conclude beyond a reasonable doubt that [] [p]etitoner intentionally tried
to kill the victim.” He asserts that, at trial, he “clearly demonstrated that the slamming of the door
and wreath into [] [p]etitioner’s right hand, in which he held the firearm, caused the demise of the
decedent.” He further states that “[t]he door slamming into his hand was an unexpected intervening
cause requiring [] [p]etitioner to re-evaluate his decision to kill, if it ever existed in the first instance
for first[-]degree murder to attach.” In summary, petitioner argues that the evidence was
insufficient to support his conviction.
Again, petitioner has failed to include the applicable standard of review or a single citation
to the appendix record in this argument; however, petitioner has included citations to relevant law
such that we may proceed to consider the issue. As this issue was first raised below in petitioner’s
post-trial motion for judgment of acquittal, we review the issue de novo. See State v. Juntilla, 227
W. Va. 492, 497, 711 S.E.2d 562, 567 (2011) (“The Court applies a de novo standard of review to
the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence.” (citing
LaRock, 196 W. Va. at 304, 470 S.E.2d at 623). We have held that
[t]he function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime proved beyond a reasonable doubt.
Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 1. We have further held,
A criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
an appellate court. Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt.
Id. at Syl. Pt. 3, in part.
In applying Guthrie to this assignment of error, we conclude that petitioner is entitled to
no relief. In his statements to police, petitioner was clear that the victim had “triggered” him and
“set [him] off.” He told police he threatened to shoot the victim in response to the behavior that he
claimed set him off, that he pointed the gun at her face, and that when he shot the victim, he
“want[ed] that bullet to hit her.” Additionally, the testimony of Officer Newlin revealed that “there
were no recalls, defects, or anything of the nature that would cause that gun to fire with anything
other than physically pulling the trigger.” Respondent’s firearm and toolmark expert also testified
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that for the gun to have fired, a finger or some object would have needed to pull the trigger. We
determine that, after viewing this evidence in the light most favorable to the prosecution, the jury
could have found the essential elements of the crimes with which petitioner was charged proved
beyond a reasonable doubt. Therefore, we conclude that the trial court did not err in denying
petitioner’s motion for judgment of acquittal.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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