State of West Virginia v. Kevin Travis Costello ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
FILED
April 2, 2021
No. 19-0326 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
V.
KEVIN TRAVIS COSTELLO,
Defendant Below, Petitioner
_________________________________________________________
Appeal from the Circuit Court of Jefferson County
The Honorable David Hammer, Judge
Civil Action No. 18-F-15
AFFIRMED
_________________________________________________________
Submitted: February 9, 2021
Filed: April 2, 2021
Matthew Brummond Patrick Morrisey
Justin M. Collin Attorney General
Appellate Advocacy Division Andrea Nease Proper
Public Defender Services Deputy Attorney General
Charleston, West Virginia Gordon L. Mowen, II
Attorney for the Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
CHIEF JUSTICE JENKINS delivered the Opinion of the Court.
JUSTICE ARMSTEAD concurs in part and reserves the right to file a separate
opinion.
JUSTICE WOOTON concurs in part and dissents in part and reserves the right to
file a separate opinion.
SYLLABUS BY THE COURT
1. “The decision to declare a mistrial, discharge the jury, and order a new
trial in a criminal case is a matter within the sound discretion of the trial court.” Syllabus
point 8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989).
2. “The 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.” Syllabus point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163(1995).
3. “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
i
which the jury could find guilt beyond a reasonable doubt. To the extent that our prior
cases are inconsistent, they are expressly overruled.” Syllabus point 3, State v. Guthrie,
194 W. Va. 657, 461 S.E.2d 163 (1995).
4. “When a criminal defendant undertakes a sufficiency challenge, all
the evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of
vantage, and the viewer must accept all reasonable inferences from it that are consistent
with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts
and credibility questions in the prosecution’s favor; moreover, as among competing
inferences of which two or more are plausible, the judge must choose the inference that
best fits the prosecution’s theory of guilt.” Syllabus point 2, State v. LaRock, 196 W. Va.
294, 470 S.E.2d 613 (1996).
5. For purposes of a recidivist proceeding, whether a conviction for a
certain crime qualifies as a crime punishable by confinement in a penitentiary is a question
of law for the court.
6. “The appropriateness of a life recidivist sentence under our
constitutional proportionality provision found in Article III, Section 5 [of the West Virginia
Constitution], will be analyzed as follows: We give initial emphasis to the nature of the
final offense which triggers the recidivist life sentence, although consideration is also given
to the other underlying convictions. The primary analysis of these offenses is to determine
ii
if they involve actual or threatened violence to the person since crimes of this nature have
traditionally carried the more serious penalties and therefore justify application of the
recidivist statute.” Syllabus Point 7, State v. Beck, 167 W.Va. 830, 831, 286 S.E.2d 234(1981).
7. “For purposes of a life recidivist conviction under West Virginia Code
§ 61-11-18(c), two of the three felony convictions considered must have involved either
(1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such
that harm results. If this threshold is not met, a life recidivist conviction is an
unconstitutionally disproportionate punishment under Article III, Section 5 of the West
Virginia Constitution.” Syllabus point 12, State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817(2019).
iii
Jenkins, Chief Justice:
Petitioner Kevin Travis Costello (“Mr. Costello”) was convicted on one
count of DUI causing serious bodily injury. After the jury returned a guilty verdict, the
State filed a recidivist information pursuant to the provisions of West Virginia Code section
61-11-18 (eff. 2000) and section 61-11-19 (eff. 1943) and this State’s body of recidivist
caselaw. The recidivist information alleged that Mr. Costello had previously been
convicted of two prior felony offenses: (1) possession of heroin with intent to distribute in
Maryland and (2) distribution of crack cocaine in the United States District Court for the
Northern District of West Virginia. The jury convicted Mr. Costello as charged in the
information. Thereafter, the circuit court sentenced him to life in prison, with mercy. This
appeal followed.
In this appeal, Mr. Costello raises three issues. 1 First, he alleges that a
mistrial should have been granted following the testimony of his probation officer because
the officer testified to an undisclosed oral statement. Second, Mr. Costello contends that
the State provided insufficient evidence of his prior Maryland conviction. Third, he argues
that his life sentence is disproportionate.
1
In his brief, Mr. Costello set forth four separate assignments of error:
(1) The State violated the rules of discovery by introducing an undisclosed confession
during trial; (2) The State presented insufficient evidence of Petitioner’s Maryland
conviction during the recidivist trial; (3) The trial court directed a verdict when it instructed
the jury that Petitioner’s prior convictions were felonies; and (4) Petitioner’s life sentence
is disproportionate. For clarity and brevity, Mr. Costello’s assignments of error have been
consolidated.
1
Having considered the briefs submitted on appeal, the appendix record, the
parties’ oral arguments, and the applicable legal authority, we find no error. Accordingly,
for the reasons set forth below, Mr. Costello’s conviction and sentence are affirmed.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 24, 2017, while driving on U.S. 340 in Jefferson County, West
Virginia, Mr. Costello passed out, crossed the center line into oncoming traffic, hit an
embankment, and then crashed into an oncoming vehicle. A two-year-old child, who was
riding in the back seat of the oncoming vehicle, was seriously and permanently injured.
Following the crash, witnesses observed Mr. Costello to be disoriented and speaking
incoherently. According to the witnesses, when Mr. Costello got out of his vehicle, he was
shirtless, his eyes were “droopy,” and “his words were kind of jumbled.” Once the
responding officers arrived on scene, Mr. Costello was noted to be “stumbling,”
“mumbling,” and “staggering.” When the officers explained to him how to perform the
field sobriety test, “[t]here were several times he was standing up falling asleep.” Mr.
Costello consented to a breath test that showed he had no alcohol in his system; however,
he refused to submit to a blood draw. Mr. Costello was arrested and, during subsequent
sobriety testing, fell asleep forty-two times.
After his arrest, Mr. Costello met with his probation officer because his
suspected criminal conduct violated a number of terms relating to his probation. At the
2
time of the crash, he had only recently been released from imprisonment and was on
probation. During the meeting, Mr. Costello made the following written admissions to
probation violations:
1) You did violate rule J of the rules and regulations governing
your release on Probation in that on or about 07-24-17, you did
use drugs to wit: Heroin;
2) You did violate rule [E] of the rules and regulations
governing your release on Probation in that on or about 07-24-
17, you did manifest behavior that threatened the safety of
yourself or others, or that could result in your imprisonment;
which caused you to be charged with DUI (narcotics) with
felony serious bodily harm.
On January 16, 2018, Mr. Costello was indicted for DUI causing serious
bodily harm. Prior to trial, Mr. Costello moved to exclude the written admissions on the
ground that they were made during the course of a legal examination and were
inadmissible. The circuit court disagreed with his reasoning and concluded that the
admissions were voluntarily made as to his probation violations and were not the subject
of a legal examination. The court further ruled that the first admission—that he used
heroin—was admissible. However, the court ruled that Mr. Costello’s admission to the
second violation was inadmissible under West Virginia Rule of Evidence 403 because it
“lack[ed] clarity and [was] ambiguously phrased in the disjunctive.”
Mr. Costello’s defense at trial was that he consumed the heroin after the
accident occurred in order to dispose of the evidence. In contrast to Mr. Costello’s theory,
3
his probation officer testified, without giving prior notice to the State, that Mr. Costello
gave an oral confession during their above-mentioned meeting. The probation officer
testified that Mr. Costello confessed that he snorted heroin while driving home from work,
blacked out, crashed into the victim’s vehicle, and woke up sometime after the crash.
Defense counsel did not object to the probation officer’s testimony, and he did not move
to strike it from the record of the proceedings. Rather, at the conclusion of this testimony,
defense counsel requested a sidebar and then moved for a mistrial on the basis that the State
improperly elicited this testimony in violation of the trial court’s pretrial ruling on the
admission of certain documentary evidence. The court denied the motion for a mistrial and
stated:
I don’t detect that what this witness said was in any way the
same as what that portion of that document said. So I’m going
to deny your motion . . . as I recall what was redacted was not
in any way what this witness just testified to regarding the
snorting heroin, crossing bridge, blacking out, and waking after
the car was flipped over . . . .
Following the close of the State’s case, Mr. Costello renewed his motion for
a mistrial on the same grounds as his earlier motion—that is, that the officer’s testimony
violated the court’s prior ruling that Mr. Costello’s statement that he violated Part E of the
rules governing his early release from prison was inadmissible. The trial court again denied
the motion and stated:
[The probation officer] testified that the defendant told him that
he had ingested a substance, heroin, and that he recalls crossing
the bridge and then the next thing he lost consciousness and
4
woke when his car was upside down. The statement that was
redacted says, and I quote, “You did violate Rule E of the rules
and regulations governing your release on probation and that
on or about 7-24-17 you did manifest behavior that threatened
the safety of yourself or others, or that could result in
imprisonment; which caused you to be charged with DUI,
narcotics with felony serious bodily harm.” I don’t see those as
even close to identical statements.
After the motion for mistrial was denied, Mr. Costello testified in his own
defense. He admitted that he made a confession to his probation officer but claimed that
he had been untruthful in order to shorten his jail sanction for violating his probation. At
the close of all the evidence, Mr. Costello once again moved for a mistrial and also moved
for acquittal. These motions were denied.
The jury convicted him of one count of DUI causing serious bodily injury,
as alleged in the indictment. Mr. Costello moved for a new trial and later filed a
supplemental motion for a new trial. At a hearing on the motion, he argued that the State’s
failure to disclose his confession was error, and that, had the confession been properly
disclosed, he would have “[a]ltered [his] trial strategy in significant ways if that
information had been presented . . . before trial.” Mr. Costello also argued that the circuit
court should have held a pretrial hearing to determine if his confession was voluntary. The
State countered that, during the prosecuting attorney’s multiple conversations with Mr.
Costello’s probation officer prior to trial, he never once mentioned that he had given a full
confession. The circuit court acknowledged that neither party was aware that the officer
5
would testify about Mr. Costello’s confession and, indeed, he did not accuse the State of
intentionally withholding this evidence.
The court ultimately denied Mr. Costello’s motion for a new trial and
concluded that its pretrial ruling excluding his written statement did not include the oral
confession he made to his probation officer and that, in fact, the motion to suppress sought
to suppress Mr. Costello’s statements only and, thus, could not be construed to encompass
the officer’s testimony about the confession that he consumed heroin before the accident.
Regarding the voluntariness of the confession, the circuit court determined that no hearing
was required because Mr. Costello failed to argue that the confession was involuntary.
In its order denying the motion for a new trial, the circuit court found that,
“[a]t trial, [Mr.] Costello did not object to the admissibility of his oral confession based
upon voluntariness, did not request a hearing on voluntariness, nor did [Mr.] Costello
request any exclusion of the oral confession based on nondisclosure by the State prior to
trial.” Further, the court found that Mr. Costello
should have informed his attorney about his oral confession
before trial so counsel 1) could have attempted to suppress his
oral confession pretrial; and/or 2) been prepared at trial to
address the confession through objections, motions, cross-
examinations, proposed jury instructions, and associated
argument. Any error resulting from such recalcitrance is one of
defendant’s own making.
6
Finally, the circuit court determined that even if Mr. Costello’s “confession
was involuntary and improperly admitted, the error was harmless beyond a reasonable
doubt.” Among other things, the circuit court noted that the evidence at trial included
recorded jailhouse calls between (1) Mr. Costello and his mother and (2) Mr. Costello and
his fiancée which, “even without [the probation officer’s] testimony would, beyond a
reasonable doubt, have resulted in [Mr.] Costello’s conviction[.]”
The State thereafter filed a recidivist information in which it alleged that
Mr. Costello previously had been convicted of two felony offenses: (1) possession of
heroin with intent to distribute in Frederick County, Maryland, on May 14, 2012, and (2)
distribution of crack cocaine in the United States District Court for the Northern District
of West Virginia, on September 5, 2000. The jury convicted Mr. Costello as charged in
the information. The circuit court sentenced him to life in prison, with mercy. This appeal
followed.
II.
STANDARD OF REVIEW
Because Mr. Costello alleges multiple assignments of error to which we
apply different standards of review, we set out each particular standard of review in
connection with our discussion of each assigned error.
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III.
DISCUSSION
In the case sub judice, Mr. Costello raises several alleged errors. First, he
alleges that a mistrial should have been granted following the testimony of his probation
officer because the officer testified to an undisclosed oral statement. Second, Mr. Costello
contends that the State failed to prove his prior Maryland conviction beyond a reasonable
doubt. In connection with his challenges to the sufficiency of the evidence, Mr. Costello
also alleges that it was error for the trial court to rule, as a matter of law, that his prior
convictions were felonies. Lastly, he argues that his life sentence under the recidivist
statute, West Virginia Code section 61-11-18(c), is constitutionally disproportionate. We
address each of these arguments in turn.
A. Denial of Motion for Mistrial
Mr. Costello alleges that the trial court erred in denying his motions for
mistrial. Specifically, he argues that the trial court should have granted the motions for
mistrial because the probation officer’s undisclosed testimony at trial was an undue
surprise that hampered the preparation and presentation of his case. We review this alleged
error under an abuse of discretion standard. “The decision to declare a mistrial, discharge
the jury, and order a new trial in a criminal case is a matter within the sound discretion of
the trial court.” Syl. pt. 8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989). Accord
8
State v. Lowery, 222 W. Va. 284, 288, 664 S.E.2d 169, 173 (2008) (“The decision to grant
or deny a motion for mistrial is reviewed under an abuse of discretion standard.”).
1. Discovery Violation. According to Mr. Costello, pursuant to Rule
16 2 of the West Virginia Rules of Criminal Procedure, the State was required to disclose
the probation officer’s proposed testimony—regarding Mr. Costello’s oral confession—
prior to trial in its disclosure. Mr. Costello contends that he had a right to rely upon his
discovery requests and the absence of a confession in the State’s discovery responses and
disclosures. Mr. Costello further argues that because the probation officer’s testimony was
2
Rule 16 of the West Virginia Rules of Criminal Procedure states, in
pertinent part:
Upon request of a defendant the state must disclose to
the defendant and make available for inspection, copying, or
photographing: any relevant written or recorded statements
made by the defendant, or copies thereof, within the
possession, custody or control of the state, the existence of
which is known, or by the exercise of due diligence may
become known, to the attorney for the state; that portion of any
written record containing the substance of any relevant oral
statement made by the defendant, whether before or after arrest
in response to interrogation by any person then known to the
defendant to be an agent of the state; and recorded testimony
of the defendant before a grand jury which relates to the
offense charged. The state must also disclose to the defendant
the substance of any other relevant oral statement made by the
defendant whether before or after arrest in response to
interrogation by any person then known by the defendant to be
an agent of the state if the state intends to use that statement at
trial.
(Emphasis added).
9
permitted, his defense—that he was sober when the accident occurred and that he
consumed the heroin in an effort to dispose of it—was obliterated at trial due to the surprise.
He asserts that the State had an ongoing obligation to supplement its discovery disclosure,
and that in failing to disclose the oral confession, the State violated the discovery rules.
The State rebuts this argument and contends that Mr. Costello’s objections
regarding discovery violations were not raised below in his motions for mistrial. As such,
it is the State’s position that this argument cannot be raised for the first time on appeal.
According to the State, Mr. Costello sought a mistrial on two grounds: (1) the probation
officer’s testimony violated the trial court’s in limine ruling that excluded one of Mr.
Costello’s written admissions; and (2) the trial court should have conducted a voluntariness
hearing to determine whether Mr. Costello’s oral confession was voluntary. Therefore,
because the trial court was never asked to rule on whether a discovery violation occurred,
it is improper for this Court to address this issue on appeal.
In general, a party who has not raised a particular issue or defense below may
not raise it for the first time on appeal. “Indeed, if any principle is settled in this jurisdiction,
it is that, absent the most extraordinary circumstances, legal theories not raised properly in
the lower court cannot be broached for the first time on appeal. We have invoked this
principle with a near religious fervor.” State v. Miller, 197 W. Va. 588, 597, 476 S.E.2d
535, 544 (1996). This Court stated in State ex rel. Cooper v. Caperton, 196 W. Va. 208,
216, 470 S.E.2d 162, 170 (1996):
10
To preserve an issue for appellate review, a party must
articulate it with such sufficient distinctiveness to alert a circuit
court to the nature of the claimed defect. The rule in West
Virginia is that parties must speak clearly in the circuit court,
on pain that, if they forget their lines, they will likely be bound
forever to hold their peace. . . . The forfeiture rule that we
apply today fosters worthwhile systemic ends[,] and courts will
be the losers if we permit the rule to be easily evaded. It must
be emphasized that the contours for appeal are shaped at the
circuit court level by setting forth with particularity and at the
appropriate time the legal ground upon which the parties intend
to rely.
Moreover, it has been noted that
“‘[o]ne of the most familiar procedural rubrics in the
administration of justice is the rule that the failure of a litigant
to assert a right in the trial court likely will result’ in the
imposition of a procedural bar to an appeal of that issue.”
Miller, 194 W. Va. at 17, 459 S.E.2d at 128, quoting United
States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc),
cert. denied, 513 U.S. 1196, 115 S. Ct. 1266, 131 L.Ed.2d 145(1995). Our cases consistently have demonstrated that, in
general, the law ministers to the vigilant, not to those who sleep
on their rights. . . . When a litigant deems himself or herself
aggrieved by what he or she considers to be an important
occurrence in the course of a trial or an erroneous ruling by a
trial court, he or she ordinarily must object then and there or
forfeit any right to complain at a later time.
State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996).
In the case sub judice, Mr. Costello did not take the necessary measures to
preserve the issue of a discovery violation. Before the trial, the assistant prosecutor for
Jefferson County interviewed the probation officer and inquired as to the details of his
meeting with Mr. Costello. The probation officer noted that Mr. Costello provided a
written confession in which he admitted to being in possession of heroin, but he did not
11
disclose the existence of an oral confession. Likewise, Mr. Costello did not disclose to his
counsel that he had made an oral confession to the probation officer. Thus, while Mr.
Costello’s counsel moved, in limine, to suppress the written confession, neither he nor the
State’s attorney had knowledge of the oral confession.
After the probation officer testified to Mr. Costello’s oral confession during
direct examination, Mr. Costello’s counsel did not object, and he also did not move to strike
the testimony. Similarly, his counsel did not object or move to strike the testimony during
re-direct examination. Rather, Mr. Costello’s counsel waited until the completion of the
probation officer’s testimony, and then requested a sidebar. During the sidebar, his
“counsel sought a mistrial on the basis that such testimony was foreclosed by the [c]ourt’s
earlier ruling that one of the two written statements made by [Mr.] Costello was
inadmissible.” The motion for mistrial was denied because the oral confession was
unknown to both parties and it was not part of the court’s earlier analysis regarding the
admissibility of the written statements. After the motion for mistrial was denied, Mr.
Costello testified on his own behalf and admitted that he had made the oral confession as
the probation officer described. Once again, post-trial, Mr. Costello filed a motion for a
new trial and argued that the trial court erred in failing to grant a mistrial and in failing to
conduct a hearing to determine whether his oral confession to the probation officer was
voluntarily made.
12
From the record, it is apparent that Mr. Costello failed to preserve a discovery
objection to the oral confession disclosed by the probation officer. Once the probation
officer testified, Mr. Costello’s counsel made no objection. More interestingly, Mr.
Costello then chose to testify and conceded that he did make the confession. When his
counsel did object to the testimony—in the motions for mistrial and motion for a new
trial—his objections were never based on a violation of the discovery rules. Therefore,
we find that the objection was waived because it was not raised below. Thus, we find that
the circuit court did not err in denying Mr. Costello’s motions for mistrial.
2. Harmless Error. Even assuming, arguendo, that Mr. Costello had
properly preserved his discovery objection, his argument does not survive a harmless error
analysis. When analyzing trial errors, this Court generally views them in two
subcategories: (1) evidence introduced by the State which is claimed inadmissible; and (2)
evidence offered by the defendant but rejected at trial.
When dealing with the wrongful admission of evidence, we
have stated that the appropriate test for harmlessness
articulated by this Court is whether we can say with fair
assurance, after stripping the erroneous evidence from the
whole, that the remaining evidence was independently
sufficient to support the verdict and the jury was not
substantially swayed by the error.
State v. Guthrie, 194 W. Va. 657, 684, 461 S.E.2d 163, 190 (1995).
As explained above, the admission into evidence of Mr. Costello’s oral
confession occurred during the State’s direct examination of the probation officer. On
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appeal, Mr. Costello contends that the undisclosed statement violated discovery rules,
contravened the court’s prior ruling regarding his written statements, and “uprooted his
defense: that he was sober when the accident occurred and subsequently swallowed the
heroin to dispose of the drugs.”
Our initial inquiry is whether the State’s case, absent this testimony, proved
the crime so that the jury would be convinced of Mr. Costello’s guilt beyond a reasonable
doubt. After reviewing the trial transcripts, we conclude that sufficient evidence was
provided at trial—without the probation officer’s testimony—for a jury to convict Mr.
Costello. In particular, the jury heard testimony regarding recorded jail house phone calls
between Mr. Costello and his fiancée, as well as with his mother, from which the jury could
have reasonable concluded that Mr. Costello consumed the heroin prior to the accident.
During the trial, Mr. Costello’s fiancée testified about a conversation that she
had with Mr. Costello after his arrest. In the recorded conversation, Mr. Costello admits—
in code—that the accident likely occurred because he was impaired after using heroin:
Mr. Costello’s Counsel: Do you – do you remember a
conversation he had with you where he tried to use code to
describe what had happened?
Fiancée: Yes.
Mr. Costello’s Counsel: Talked about bubble gum?
Fiancée: Yes.
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Mr. Costello’s Counsel: I’m going to read that passage to you
from that call, okay. I want you to tell me what your
understanding of it was at that time. He says, “Can you read
between the lines here? You listening?” And you say, “Yeah.”
He says, “It was an accident.” You say, “I understand that.”
He says, “But I had one – I had a couple pieces of bubble gum,
you hear me?” You call him an idiot.
Fiancée: Yes.
Mr. Costello’s Counsel: He says, “That I chewed up. You
listening?” You say, “Uh-huh.” “It did that to me. That’s
where all of that came from, Babe. I deserve it one hundred
percent.”
Additionally, the jury heard testimony from eyewitnesses who testified that
Mr. Costello exhibited behavior of being under the influence of drugs at the time of the
accident. One of these witnesses was Beth Ann Gearheart—a recreation therapist who
worked for twenty years in the addiction unit with individuals who were struggling with
addictions. Ms. Gearheart was driving home from work and witnessed the automobile
accident. After seeing a vehicle go airborne and land on its hood near her car, she exited
her car and looked inside of the crashed vehicle. The man inside the vehicle was Mr.
Costello. During her testimony, Ms. Gearheart was asked to describe his appearance as he
exited his vehicle:
Ms. Gearheart: He was very disoriented. I asked him if he was
okay. He said “What had happened?” His eyes were red. He
smelled of alcohol. His eyes were glossy, very disoriented, and
like, wouldn’t even let me really take a look at him. He just
wanted to kind of – he kept walking and pacing, and I would
just keep following him and trying to get a look at him to make
sure he was okay.
...
15
To me he appeared to be under the influence. I mean, just very
disoriented. Didn’t want you to bother him.
The next inquiry in the harmless error test is to examine the impact of the
error on the jury verdict.
In any inquiry into the prejudicial impact of the error, we will
be guided by whether the record reveals that the error was
repeated or singled out for special emphasis in the State’s
argument. We will scrutinize the record to determine if the
error became the subject of a special instruction to the jury, or
produced question from the jury. Also of importance is the
overall quality of the State’s proof.
Atkins, 163 W. Va. at 514-15, 261 S.E.2d at 62. We find that the admission of the probation
officer’s testimony was not error; however, even if it was erroneous, it did not have a
prejudicial impact on the jury verdict. Although this statement—regarding an oral
confession by Mr. Costello—was consistent with the State’s theory of the case, the State
presented ample evidence through other means such as eyewitness testimony and testimony
from Mr. Costello’s family and friends. Furthermore, on a closer examination of the trial
transcript, it is clear that the State did not unnecessarily repeat or emphasize the probation
officer’s testimony. Rather, during closing, the State relied on the consistent testimony
across a wide variety of witnesses—police officers, eyewitnesses, friends, and family—to
convince the jury of Mr. Costello’s guilt. Taking all of this evidence as a whole and
excluding the probation officer’s testimony regarding Mr. Costello’s oral confession, we
conclude that the jury would be convinced that the State proved its case beyond a
reasonable doubt. Therefore, even if the probation officer’s testimony was wrongfully
admitted, we find it was harmless error.
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B. Sufficiency of the Evidence
Mr. Costello next contends that the State presented insufficient evidence of
his prior Maryland conviction during the recidivist trial because it did not introduce a
judgment order. Additionally, he argues that the trial court’s ruling—that his prior
convictions qualified as “crime[s] punishable by confinement in a penitentiary” as a matter
of law—relieved the State of its burden of proof and improperly directed a verdict on the
character of his convictions.
1. Evidence to Support Maryland Crime. First, Mr. Costello alleges that
the State presented insufficient evidence of his Maryland conviction. When reviewing
sufficiency of the evidence challenges, the standard is as follows:
The 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.
....
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
17
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. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Syl. pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We also have
held that
[w]hen a criminal defendant undertakes a sufficiency
challenge, all the evidence, direct and circumstantial, must be
viewed from the prosecutor’s coign of vantage, and the viewer
must accept all reasonable inferences from it that are consistent
with the verdict. This rule requires the trial court judge to
resolve all evidentiary conflicts and credibility questions in the
prosecution’s favor; moreover, as among competing inferences
of which two or more are plausible, the judge must choose the
inference that best fits the prosecution’s theory of guilt.
Syl. pt. 2, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
Mr. Costello alleges that the State failed to present sufficient evidence to
prove his Maryland conviction beyond a reasonable doubt. In particular, he argues that the
State should have produced an order adjudicating him guilty of a felony. As such, Mr.
Costello contends that the State presented insufficient evidence and this Court should
therefore vacate his life sentence and remand the case for a new sentencing hearing.
The State maintains that the sum total of the documents it presented
conclusively, unequivocally, and sufficiently establishes that Mr. Costello was convicted
of a crime—possession of heroin with intent to distribute—in Frederick County, Maryland
and was sentenced to twenty-five years of imprisonment with ten of those years suspended.
18
To establish Mr. Costello’s Maryland conviction, the State produced docket sheets;
documents generated the day of the arrest (complaint, commitment pending hearing, and
initial appearance questionnaire); courtroom worksheets; probation/supervision order; a
certified commitment order completed by the Circuit Court of Frederick County; Maryland
sentencing guideline worksheet; and Mr. Costello’s probation transfer request and
approval. The State also elicited testimony from Mr. Costello’s mother and girlfriend.
In State v. Guthrie, this Court stated that
[a]ppellate courts can reverse only if no rational jury could
have found the defendant guilty beyond a reasonable doubt.
This standard is a strict one; a defendant must meet a heavy
burden to gain reversal because a jury verdict will not be
overturned lightly.
....
[W]hen reviewing a conviction, we may accept any adequate
evidence, including circumstantial evidence, as support for the
conviction. It is possible that we, as an appellate court, may
have reached a different result if we had sat as jurors.
However, [ ] it does not matter how we might have interpreted
or weighed the evidence. Our function 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.
194 W. Va. at 667-68, 461 S.E.2d at 173-74 (1995).
19
After reviewing the record, we find that the evidence presented at trial
illustrates that Mr. Costello cannot meet the heavy burden as set forth in State v. Guthrie.
While Mr. Costello offers a conclusory assertion that the evidence put forth to prove the
Maryland conviction was insufficient because of the lack of a judgment order, he does not
offer anything to demonstrate that the evidence that was presented was inadequate on its
own. Although judgment orders are typically used as evidence in recidivist trials, “we may
accept any adequate evidence, including circumstantial evidence, as support for the
conviction.” Id. at 668, 461 S.E.2d at 174. The State introduced sufficient evidence of the
Maryland conviction, including a certified commitment order and witness testimony
establishing, beyond a reasonable doubt, that Mr. Costello was convicted in that state of
possession of heroin with intent to distribute and was sentenced to twenty-five years in
prison. The commitment order, described above, in and of itself was sufficient evidence
for a jury to find that petitioner had been convicted of that crime. However, the State did
not stop there, but, rather, provided additional documentation as further evidence of the
Maryland conviction: a certified sentencing worksheet from that case that was signed by
the presiding judge and which noted Mr. Costello’s conviction and sentence imposed; an
initial appearance questionnaire relating to the case; and a transfer request. Mr. Costello’s
mother and girlfriend also testified that he had been convicted of a drug crime in Maryland.
Accordingly, we find that, when taken as a whole, the evidence put forth by the State was
sufficient to support a finding that Mr. Costello was convicted of the Maryland crime.
20
2. Prior Convictions Under West Virginia Code Section 61-11-18.
Next, Mr. Costello alleges that the trial court erred when it improperly directed a verdict
on the element of the character of his prior convictions. He contends that the State was
required to prove every element of his crimes beyond a reasonable doubt and one element
that must be proven during a recidivist trial is the correct character of a prior conviction—
that is, whether the prior conviction was a felony or a misdemeanor. Mr. Costello maintains
that by instructing the jury that the alleged prior convictions were, as a matter of law,
felonies punishable by imprisonment, the State was relieved of its burden to prove the
character of the prior offenses beyond a reasonable doubt.
The State asserts that the trial court correctly ruled that whether Mr.
Costello’s previous convictions fall within the parameters of West Virginia Code section
61-11-18 was a question of law. Further, the corresponding jury instruction—that the
alleged prior convictions constituted “crimes punishable by confinement in a
penitentiary”—was proper.
This Court has never decided the issue of whether, for purposes of a recidivist
proceeding, a conviction for a certain crime qualifies as a crime punishable by confinement
in a penitentiary is a question of law for the court or a question of fact for a jury. Other
courts, however, have considered this question. The Supreme Court of Indiana examined
this issue in Griffin v. State, 275 Ind. 107, 118-19, 415 N.E.2d 60, 67 (1981) and provided
the following rationale:
21
Permitting the jury to determine whether Griffin’s prior
convictions, for theft and entering to commit a felony, were for
felonies, would invite their independent judgment as to the
fairness of the categorization of those offenses as felonies by
the legislature. Whether the jury approves of the
categorization of the offenses as felonies has no bearing on
whether the accused has been convicted of those offenses.
Thus, allowing the jury to make such a judgment would give
that body the opportunity to move far outside its realm and
consider totally irrelevant factors in deciding the defendant’s
status as a habitual offender. In addition, permitting the jury
to determine whether a given offense is a felony would allow
them to decide a pure question of law which has previously
been settled by the legislature; given such an opportunity, the
jury might possibly reach a different conclusion from that
properly drawn by the legislature.
Accord United States v. Campbell, 94 F.3d 125 (4th Cir. 1996) (“Court of Appeals reviews
district court’s imposition of offense level increase under Sentencing Guidelines de novo,
inasmuch as it involves interpretation of statute, which presents question of law.”); State v.
Brown, 452 So.2d 326, 329 (La. Ct. App. 1984) (“All the jury was required to know was
that the defendant had been convicted of a crime which would have been a felony under
Louisiana law. That determination is a question of law, not fact, and thus was not required
to be presented to the jury.”); State v. Burgess, 216 N.C.App. 54, 56, 715 S.E.2d 867, 870
(2011) (“Whether an out-of-state offense is substantially similar to a North Carolina
offense is a question of law involving comparison of the elements of the out-of-state
offense to those of the North Carolina offense.”). In summary, “[t]he legislature never
intended to leave the grade of any offense to the discretion of a jury.” Benton v.
Commonwealth, 89 Va. 570, 572, 16 S.E. 725, 725 (1893)
22
We agree with the conclusion of these jurisdictions. The key inquiry for a
jury in a recidivist proceeding is the identity of the defendant. See State v. Barlow, 181
W. Va. 565, 571, 383 S.E.2d 530, 536 (1989) (“The defendant’s identity in an habitual
criminal proceeding is the key factual issue, and the burden is, of course, on the State to
establish that the defendant is the same individual who was convicted previously”); State
v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980) (“Where the issue of identity is contested
in an habitual criminal proceeding, the State must prove identity beyond a reasonable
doubt.”). Accord State v. McMannis, 161 W. Va. 437, 242 S.E.2d 571 (1978); State v.
Lawson, 125 W. Va. 1, 22 S.E.2d 643 (1942). However, while the jury is responsible for
making the factual determination of identity, it should not be tasked with deciding a purely
legal question—whether a particular crime is a felony or misdemeanor. See Harrison v.
Town of Eleanor, 191 W. Va. 611, 616, 447 S.E.2d 546, 551 (1994) (“Consequently, it is
well-established that determinations involving questions of law are within the sole province
of the court, while determinations of fact are within the province of the jury. Thus, the court
must resolve questions of law and cannot delegate that responsibility to the jury. When a
court permits a jury to make legal determinations, reversible error occurs here.”).
Instructing a jury whether prior crimes are felonies or misdemeanors does
not relieve the State of its burden in a recidivist proceeding. Rather, this inquiry involves
a legal question regarding the interpretation of a statute which is within the purview of the
judge; the jury is tasked with determining the factual issue of identity. We hold, therefore,
that for purposes of a recidivist proceeding, whether a conviction for a certain crime
23
qualifies as a crime punishable by confinement in a penitentiary is a question of law for the
court. As such, in the case sub judice, we find that the trial court did not err when it
instructed the jury that Mr. Costello’s prior crimes constituted crimes punishable by
confinement in a penitentiary under the law.
C. Proportionality of Life Sentence
Mr. Costello’s final assignment of error is that his life sentence is
disproportionate. While he acknowledges that his triggering offense—DUI causing serious
bodily injury—involved actual violence, he contends that his predicate felonies did not
involve actual or threatened violence. This Court has held that sentencing orders are
reviewed “under a deferential abuse of discretion standard, unless the order violates
statutory or constitutional commands. Syllabus Point 1, in part, State v. Lucas, 201 W. Va.
271, 496 S.E.2d 221 (1997).” Syl. pt. 1, State v. James, 227 W. Va. 407, 710 S.E.2d 98(2011). As we have further described, “[s]entences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor, are not subject to appellate
review.” Syl. pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
Under West Virginia’s recidivist statute, “[w]hen it is determined, as
provided in section nineteen of this article, that such person shall have been twice before
convicted in the United States for a crime punishable by confinement in a penitentiary, the
person shall be sentenced to be confined in the state correctional facility for life.” W. Va.
Code § 61-11-18(c). Here, Mr. Costello argues that his recidivist life sentence violates the
24
proportionality principle of the West Virginia Constitution because his prior crimes do not
show a pattern of violence.
“Article III, Section 5 of the West Virginia Constitution,
which contains the cruel and unusual punishment counterpart
to the Eighth Amendment of the United States Constitution,
has an express statement of the proportionality principle:
‘Penalties shall be proportioned to the character and degree of
the offence.’” Syllabus Point 8, State v. Vance, [164 W. Va.
216], 262 S.E.2d 423 (1980).
Syl. pt. 3, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
Furthermore, “[w]hile our constitutional proportionality standards theoretically can apply
to any criminal sentence, they are basically applicable to those sentences where there is
either no fixed maximum set by statute or where there is a life recidivist sentence.” Syl.
pt. 4, id.When evaluating whether a recidivist life sentence is constitutional, we
examine the following:
The appropriateness of a life recidivist sentence under
our constitutional proportionality provision found in Article
III, Section 5 [of the West Virginia Constitution], will be
analyzed as follows: We give initial emphasis to the nature of
the final offense which triggers the recidivist life sentence,
although consideration is also given to the other underlying
convictions. The primary analysis of these offenses is to
determine if they involve actual or threatened violence to the
person since crimes of this nature have traditionally carried the
more serious penalties and therefore justify application of the
recidivist statute.
Syl. pt. 7, State v. Beck, 167 W.Va. 830, 831, 286 S.E.2d 234 (1981).
25
More recently, in State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019),
this Court recognized the need for development in the approach we use to determine
whether a recidivist life sentence is constitutionally proportionate. In Syllabus point 12 of
Hoyle, we held that
[f]or purposes of a life recidivist conviction under West
Virginia Code § 61-11-18(c), two of the three felony
convictions considered must have involved either (1) actual
violence, (2) a threat of violence, or (3) substantial impact upon
the victim such that harm results. If this threshold is not met,
a life recidivist conviction is an unconstitutionally
disproportionate punishment under Article III, Section 5 of the
West Virginia Constitution.
Id. Thus, whether Mr. Costello’s life sentence is constitutional in this matter turns on
whether two of his felony convictions involved actual violence or, the potential for
violence, or had a substantial impact upon the victim.
Applying the Hoyle test to the case sub judice, we find that Mr. Costello’s
recidivist life sentence should be upheld as constitutionally proportionate. First, it is
unquestionable that Mr. Costello’s triggering offense—DUI causing serious bodily
injury—involved actual violence and had a substantial impact on the child victim who
sustained permanent injuries as a result of the crash. Mr. Costello conceded this below and
in this appeal. Therefore, we proceed to examine Mr. Costello’s predicate offenses.
In September of 2000, Mr. Costello obtained his first felony conviction—
distribution of crack cocaine—when he entered a plea agreement in the United States
26
District Court for the Northern District of West Virginia. Pursuant to the plea agreement,
he stipulated that, for sentencing purposes, his relevant conduct included 315 grams of
cocaine base, three kilograms of marijuana, and eighty-seven grams of cocaine HCL.
Mr. Costello’s second felony conviction arose from his December 30, 2011
arrest. He was arrested when the car in which he was traveling from Maryland to West
Virginia was pulled over and he was found to be in possession of three bags of heroin.
Mr. Costello entered a plea agreement and pled guilty to possession with intent to
distribute heroin. He was originally sentenced to twenty-five years in prison with all but
ten years suspended. However, his sentence was amended in 2015, and he was released
on supervised probation.
Due to the nature of both of Mr. Costello’s predicate drug convictions, we
conclude that both involved the threat of violence. In State v. Norwood, 242 W. Va. 149,
832 S.E.2d 75 (2019), this Court looked at the nature of the drug at issue—heroin—in
determining whether the crime carried an inherent risk of violence. The Court ultimately
found that “heroin is illegal, and is a scourge that has saturated our State” 242 W. Va. at
158, 832 S.E.2d at 84, and, thus, “[t]he delivery and ultimate use of heroin carries with it
an inherent risk of violence to a person.” Id. See also State v. Gaskins, No. 18-0575, 2020
WL 3469894 (W. Va. June 25, 2020) (memorandum opinion) (likening cocaine to heroin,
citing the “substantial impact on the victim of the crime . . . due to [the drug’s] often fatal
nature to its users”).
27
When discussing Mr. Costello’s first felony, the trial court found:
Defendant Costello’s first felony involved the distribution of
over 400 grams of cocaine base/HCL in addition to 3,000
grams of marijuana. See United States v. Costello Plea
Agreement, State’s Exhibit 9B in Recidivist Trial (Doc. No.
410-13). This Court cannot ignore the substantial amount of
cocaine involved in the crime nor the significant risk of serious
bodily injury or death that the distribution of cocaine creates.
Although not the current impetus of the overdose epidemic
arising from opioid distribution, cocaine use can result in
serious bodily injury or death.
....
Defendant’s participation in the distribution of a large amount
of a dangerous narcotic elevates the risk that recipients of the
poison will suffer serious bodily injury or death from an
overdose and enables end users to create additional danger to
others, for example, by driving under the influence of the
controlled substance. Although Defendant may not have
specifically intended any bodily injury or death to arise from
his drug-dealing, he nevertheless significantly elevated the
danger to society by participating in the distribution of a large
amount of a potentially lethal narcotic.
The trial court also commented on Mr. Costello’s heroin conviction:
It is beyond cavil that the opioid epidemic has wreaked havoc
on our society, ruining or extinguishing countless lives in the
process. Instead of correcting his behavior after his first drug
conviction and sentence, Defendant began distributing an even
more dangerous drug. If nobody died from the heroin
Defendant distributed into the community, it was the result of
sheer fortuity. . . . [T]his Court finds Defendant’s conviction
for possession with intent to distribute heroin is a crime of
violence for recidivist purposes.
When taking all of this information into consideration, we conclude that both of Mr.
Costello’s predicate felonies involved an inherent threat of violence.
28
Therefore, because his triggering offense involved actual violence, as well as
significant, actual harm to another, and both of his predicate felonies involved the threat of
violence, the Hoyle threshold is satisfied. Accordingly, we conclude that the sentence
imposed by the trial court was not an unconstitutionally disproportionate punishment under
Article III, Section 5 of the West Virginia Constitution.
IV.
CONCLUSION
For the reasons set forth above, we find no error and therefore affirm Mr.
Costello’s recidivist conviction and sentence.
Affirmed.
29