State of West Virginia v. Mishell Rose Fidler ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Petitioner Below, Respondent January 27, 2017
RORY L. PERRY II, CLERK
vs) No. 15-1196 (Webster County 15-F-15) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Mishell Rose Fidler,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Mishell Rose Fidler, by counsel Scott E. Johnson, appeals her convictions on
charges of conspiracy to deliver a controlled substance and possession with intent to deliver a
controlled substance in the Circuit Court of Webster County. The State of West Virginia, by
counsel Benjamin F. Yancey, III, filed a response. Petitioner submitted a reply brief.
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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In January of 2015, petitioner resided in an apartment with her co-defendant, Alan Jordan
(“co-defendant”), in Webster County, West Virginia. On January 16, 2015, the co-defendant
filled his prescription for Ritalin, a Schedule II narcotic drug. The following day, State Police
Officer Trooper Bostic and Chief Allen Cogar of the Cowen Police Department met with a
confidential informant (“CI”) for the purpose of purchasing controlled substances. Trooper
Bostic gave the CI $101 in bills that had been photographed and recorded. That same day, the CI
entered petitioner’s apartment and met with petitioner and her co-defendant. While inside the
apartment, the CI purchased ten Ritalin pills. The CI then returned to Trooper Bostic, and gave
him the pills.
Thereafter, Trooper Bostic and Chief Cogar went to petitioner’s apartment and knocked
on the door. Trooper Bostic informed petitioner and her co-defendant that he believed drug
activity was taking place in the apartment and that he wanted to speak with them. The officers
were granted entry into the apartment, and patted down petitioner and the co-defendant for
officer safety. It was during this pat-down that Trooper Bostic found the $101 in the waistband
of petitioner’s pants. After the pat-down, the officers obtained a written consent to search the
apartment from petitioner. Inside the apartment, the officers found a pill bottle for Ritalin with
the co-defendant’s name on it. The pills were similar to those provided to the CI.
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Petitioner was indicted by the Webster County Grand Jury in May of 2015, and charged
with delivery of a controlled substance, conspiracy to deliver a controlled substance, and
possession with intent to deliver a controlled substance. In pretrial motions, petitioner moved to
suppress the introduction of the currency found during the officer’s search. Following a pretrial
hearing, the trial court found that the currency was discovered pursuant to “a permissible safety
frisk by officers,” and ruled that the evidence was admissible.
The trial court conducted individual voir dire of twenty potential jurors. During the voir
dire, the trial court granted four challenges for cause, and called four additional members to the
jury panel. The trial court then conducted general voir dire of the additional members, and
permitted the State and petitioner’s counsel to inquire of the panel. Petitioner’s counsel asked,
[A]nd to the new members, do you have any reason why, or any reason at all, that
you could not sit on this case here today, that may go into tomorrow? You will be
able to listen to the evidence—and anything that may cause you not to be able to
devote your full attention to this case?
In response, one new potential juror raised his hand.1 Although petitioner’s counsel then
requested individual voir dire of that juror, the court denied the request. The parties then
conducted their peremptory challenges. The juror who raised his hand served on the jury panel.
Following voir dire, petitioner’s counsel objected on the record that he should have been
granted individual voir dire of the juror who raised his hand. The trial court responded,
Well, first of all, voir dire [is] solely in the discretion of the Court. Second of all,
you requested – I gave you individual voir dire in regards to the initial panel. In
my opinion, the four new members of the panel, did not give any answer to my –
in my opinion, that warranted any individual voir dire. And your objections are
noted.
At trial, petitioner’s co-defendant and the CI testified that petitioner gave the drugs to the
CI. The co-defendant also testified that petitioner told the CI that petitioner and her co-defendant
had Ritalin pills, and that petitioner personally gave the Ritalin to the CI. Trooper Bostic testified
to the $101found on petitioner’s person. Petitioner did not testify or call any witnesses at trial.
The trial court thereafter granted petitioner’s Motion for Judgment of Acquittal as to the offense
of delivery of a controlled substance. The jury found petitioner guilty of the offenses of
conspiracy to deliver and possession with intent to deliver a controlled substance, and petitioner
was sentenced to two consecutive terms of one to five years in the penitentiary. Petitioner now
appeals her convictions.
Petitioner first argues that the trial court erred in preventing individual voir dire of the
juror who, petitioner claims, indicated that he could not “fully pay attention” at trial. Petitioner
1
The record does not identify the juror who raised his hand. It is clear that he is one of
two male jurors who were re-seated after the initial jurors were dismissed. Both jurors ultimately
served on the jury panel.
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argues that when a juror may not be capable of devoting full attention to a case, the juror is
unqualified and should be struck for cause. Petitioner thus asserts that when there is a question of
whether a juror can properly focus on a case and be attentive to the law and instructions, it is the
trial court’s duty to either strike the juror or to engage in a thorough and searching voir dire to
determine if the juror can devote his or her undivided attention to the case. Regarding voir dire,
this Court has held,
“‘In a criminal case, the inquiry made of a jury on its voir dire is within
the sound discretion of the trial court and not subject to review, except when the
discretion is clearly abused.’ Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30
S.E.2d 541 (1944).” Syl. Pt. 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219
(1987).
Syl. Pt. 2, State v. Anderson, 233 W. Va. 75, 754 S.E.2d 761 (2014). In addition, we have held
that,
[t]he object of jury selection is to secure jurors who are not only free from
improper prejudice and bias, but who are also free from the suspicion of improper
prejudice or bias. Voir dire ferrets out biases and prejudices to create a jury panel,
before the exercise of preemptory strikes, free of the taint of reasonably suspected
prejudice or bias. Trial courts have an obligation to strike biased or prejudiced
jurors for cause.
O'Dell v. Miller, 211 W. Va. 285, 288, 565 S.E.2d 407, 410 (2002).
Upon our review of the record, we find that petitioner has failed to show that the trial
court abused its discretion in preventing further voir dire of the juror. The object of jury selection
is to secure jurors who are free from improper prejudice or bias. Here, petitioner’s counsel was
permitted the opportunity to conduct a voir dire examination. As a part of that examination
counsel asked a compound question: (1) was there any reason that a juror could not sit on the
case that may last longer than one day, and (2) would the juror be able to listen to the evidence. It
is not clear from the record which part of the question triggered the subject juror to raise his
hand. The trial lasted one day. Petitioner does not contend that he suspected that the subject juror
harbored improper bias or prejudice, or that further voir dire would ferret out the same. See id.
Thus, we cannot conclude that the trial court clearly abused its discretion in denying petitioner
the opportunity to conduct additional voir dire.
Petitioner next asserts that the trial court erred in admitting the $101 in currency seized
from petitioner’s person. “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) (emphasis added).
In addition, we have held that,
[w]hen 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
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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, 107, 468 S.E.2d 719, 722 (1996).
Syl. Pt. 2, State v. Payne, ___ W.Va. ___, ___ S.E.2d. ___, No. 15-0289, 2016 WL 6135396, at
*1 (W. Va. Oct. 19, 2016).
The trial court found that the currency seized from petitioner was discovered as a result
of a permissible safety frisk. Giving proper deference to the findings of the circuit court, we find
no error. Based upon the information available to officers at the time of the frisk, it is clear that
the officer acted lawfully in conducting the safety frisk. We have held that “[a] brief
investigative stop is . . . permissible whenever the police officer has a reasonable suspicion
grounded in specific and articulable facts that the person he stopped has been or is about to be
involved in a crime.” State v. Choat, 178 W. Va. 607, 611, 363 S.E.2d 493, 497 (1987). “‘[I]n
determining whether the officer acted reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific
reasonable inferences which he is entitled to draw from the facts in light of his experience.’
Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).” State v. Matthew David
S., 205 W. Va. 392, 396, 518 S.E.2d 396, 400 (1999). Further,
[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an
object whose contour or mass makes its identity immediately apparent, there has
been no invasion of the suspect’s privacy beyond that already authorized by the
officer’s search for weapons; if the object is contraband, its warrantless seizure
would be justified by the same practical considerations that inhere in the plain-
view context.
Id. (citing Minnesota v. Dickerson, 508 U.S. 366 (1993). Here, the officer’s search of petitioner’s
person and seizure of the currency were non-intrusive means that were “necessary in the
circumstances to ensure the suspect . . . [was] not armed.” David, 205 W. Va. at 397, 518 S.E.2d
at 401. Accordingly, viewed in the light most favorable to the State, we find that the trial court
did not err in admitting this evidence at trial.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 27, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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DISSENTING:
Justice Robin Jean Davis
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