State of West Virginia v. Davide Laquan Hudson, Jr. ( 2023 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
June 13, 2023
State of West Virginia, EDYTHE NASH GAISER, CLERK
Plaintiff Below, Respondent SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-0203 (Raleigh County CC-41-2019-F-85)
Davide Laquan Hudson, Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner appeals the Circuit Court of Raleigh County’s March 1, 2022, sentencing order
entered following his convictions for first-degree murder, three counts of kidnapping, and
conspiracy, and the jury’s finding that he used or presented a firearm in the commission of a
felony. 1 Upon our review, finding no substantial question of law and no prejudicial error, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21(c).
At petitioner’s jury trial that resulted in these convictions, the evidence showed that
petitioner, Antonio Williams, Tyrique Pearl, and Jonthan Bird were together most of the day on
July 8, 2018. 2 While together, petitioner purchased ammunition for his revolver at Wal-Mart, and
later, close to midnight, Mr. Bird drove the men to a convenience store, where they saw a car
belonging to Amber Meadows. While pointing to Ms. Meadows’s car, petitioner remarked that she
had either robbed him of drugs or accompanied an individual who robbed him of drugs and,
consequently, owed him money. Ms. Meadows was with two friends at the convenience store,
Destiny Conkle and Arileah Lacy, and the four men and three women conversed in the convenience
store parking lot for approximately an hour. Eventually, the women decided to accompany the men
to a motel so that one or more of the women could obtain drugs from petitioner. Mr. Pearl rode
with the women, and the remaining men followed them in Mr. Bird’s car to the motel.
1
Petitioner appears by counsel Robert P. Dunlap II, and the State appears by Attorney
General Patrick Morrisey and Assistant Attorneys General Katherine M. Smith and Gail V.
Lipscomb.
2
Mr. Williams, Mr. Pearl, and Mr. Bird were indicted alongside petitioner, but each entered
into a plea agreement with the State. Mr. Williams pled guilty to one count each of kidnapping and
voluntary manslaughter (as a lesser included offense of first-degree murder) in exchange for the
dismissal of the remaining charges. Mr. Pearl and Mr. Bird each pled guilty to conspiracy in
exchange for the dismissal of the remaining charges.
1
According to Mr. Bird, as soon as the seven individuals entered their two-room motel
suite, petitioner “pulls out his gun and says, ‘Nobody is leaving until I say so.’” At petitioner’s
direction, chairs were positioned in front of the suite’s doors, and petitioner collected the women’s
cell phones. Petitioner proceeded to point his fully loaded revolver at the women. He later removed
all but one bullet from the cylinder so that, in Mr. Bird’s words, petitioner “could turn [the cylinder]
to a safe location, pull the hammer back, pull the trigger and it not fire[,] . . . sort of like Russian
Roulette.” Mr. Bird said the women were “terrified” and that petitioner terrorized the women with
his gun in this manner “[c]ountless” times. Mr. Bird also testified that petitioner took Mr. Bird’s
gun, which had a laser, and “started pointing the laser at everybody in the room, myself included,
saying, ‘You could die, you could die, you could die.’” Ms. Conkle likewise testified that petitioner
“played Russian Roulette with us over and over and over” and that he “put [the laser from Mr.
Bird’s gun] on us all the time.”
The men and women remained in the motel suite through the early morning hours of July
9, 2018. During a time when Ms. Conkle and Ms. Lacy had gone to the bathroom in the adjoining
room of the suite, petitioner began “frantically looking for his gun.” Ms. Meadows alerted
petitioner to its location. He reportedly grabbed it, looked at it, and said to Ms. Meadows, “You
could have got me.” Mr. Bird told petitioner, “No, she couldn’t have, there’s nothing in it,” having
forgotten that one bullet remained. Petitioner placed the gun to Ms. Meadows’s head and said,
“No, it’s not. No, it’s not. No, it’s not.” He then fired the gun, and Ms. Meadows dropped to the
floor. As everyone else ran from the suite, Mr. Pearl testified that petitioner tried to stop him,
saying, “We’ve got to finish the rest of them. . . . We’ve got to kill the rest of them.” Mr. Pearl left
with the other men, and Ms. Conkle drove herself and Ms. Lacy to a nearby restaurant where they
called 9-1-1.
Investigating officers recovered from the motel suite a Wal-Mart receipt for the purchase
of ammunition as well as a cardboard divider used in ammunition packaging. They also recovered
a beer can, which was analyzed and shown to contain petitioner’s DNA. Surveillance camera
footage from the convenience store at which the seven individuals socialized was shown to the
jury.
The jury found petitioner guilty of the first-degree murder of Ms. Meadows; of kidnapping
Ms. Meadows, Ms. Lacy, and Ms. Conkle; and of conspiracy. It recommended that no mercy attach
to petitioner’s sentences for murdering and kidnapping Ms. Meadows but that mercy attach to the
sentences imposed for kidnapping the other women. Finally, the jury made a finding that petitioner
used or presented a firearm during the commission of a felony. The court thereafter sentenced
petitioner in accordance with the jury’s recommendations and the statutorily prescribed terms of
incarceration. Petitioner now appeals, raising eight assignments of error.
Petitioner first argues that the circuit court erred in precluding him from introducing into
evidence certain photographs. Generally, this Court reviews a trial court’s evidentiary rulings for
an abuse of discretion, Syllabus Point 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469(1998); however, the circuit court here did not, in fact, preclude petitioner from admitting the
photographs into evidence. Instead, the court—on several occasions—detailed for petitioner the
proper evidentiary process for entering the photographs into evidence. Petitioner affirmed his
2
intention to follow that process and took steps in furtherance of adhering to that process, including
requesting that a necessary witness remain subject to re-call and later requesting that the witness
be instructed to leave the courtroom after she reentered, as she was still subject to a sequestration
order. Despite taking these steps, petitioner ultimately failed to re-call the necessary witness,
thereby abandoning pursuit of the photographs’ admission. Under these facts, petitioner waived
his right to admit the photographs and to claim error on the court’s part. 3 See Syl. Pt. 8, in part,
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (“When there has been a knowing and
intentional relinquishment or abandonment of a known right, there is no error . . . .”).
Next, petitioner claims error in the court’s refusal to admit evidence of Ms. Conkle’s charge
of theft of a firearm and Ms. Lacy’s charge of presentment of false information. 4 He argues that
these “witnesses’ testimony during trial was inconsistent with pending charges which would
impeach their credibility,” and he identifies the three requirements for admitting a witness’s prior
inconsistent statement set forth in State v. Blake, 197 W. Va. 700, 478 S.E.2d 550 (1996).
However, it is unclear what relief petitioner believes Blake affords him, as he has identified no
prior inconsistent statements of which the court precluded admission. Furthermore, petitioner’s
cross-examination of these witnesses touched on the charged crimes. Petitioner asked Ms. Conkle
if she would “pick up and remove someone’s firearm,” which she denied, 5 and he asked Ms. Lacy
if she would ever lie to a police officer. The State’s objection to the latter question was sustained,
but Ms. Lacy nevertheless continued, “I would not lie to a police officer about murder.” Petitioner,
accordingly, made use of these charges on cross-examination, and as it is unclear what more
3
We find, too, that petitioner waived two additional assignments of error. In one, he claims
that the court erred in allowing the State to elicit testimony regarding the men’s involvement in a
robbery on July 8, 2018, before meeting up with the women. Notably, petitioner also elicited
testimony on this subject during cross-examination, but, more importantly, he failed to object to
its introduction. We have long adhered to the raise or waive rule, which requires that a litigant
timely object lest any right to later assign error to the claimed objectionable conduct be forfeited.
State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). Similarly, petitioner failed to
object to the State’s closing argument, though he claims that those arguments were improper in
another assignment of error. “Failure to make timely and proper objection to remarks of counsel
made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise
the question thereafter either in the trial court or in the appellate court.” Syl. Pt. 2, State v. Adkins,
209 W. Va. 212, 544 S.E.2d 914 (2001) (quoting Syl. Pt. 6, Yuncke v. Welker, 128 W. Va. 299, 36
S.E.2d 410 (1945)).
4
Petitioner also claims error in the court’s refusal to admit evidence of a charge of child
neglect resulting in injury that Ms. Lacy faced. But at trial, petitioner raised only the prospect of
introducing evidence of Ms. Lacy’s presentment of false information charge. He said, “[W]e are
not going after the child abuse crime. . . . I was completely going to avoid the [child neglect causing
injury charge].” Accordingly, we will not entertain any claim that the court erred in failing to admit
evidence petitioner did not seek to admit.
5
In fact, petitioner went so far as to mark for identification the charging document, but he
never sought to move it into evidence. He also withdrew the later-asked question, “Have you ever
taken a firearm before?”
3
petitioner believes the court should have allowed, petitioner has failed to demonstrate that the court
abused its discretion. 6 See Rodoussakis, 204 W. Va. at 61, 511 S.E.2d at 472, Syl. Pt. 4.
Petitioner also asserts that plain error 7 occurred when Ms. Conkle and Ms. Lacy allegedly
overheard bench conferences addressing certain of the State’s objections and when the
investigating officer responded affirmatively to the State asking if the officer believed that
petitioner committed the crimes of kidnapping and murder. “To trigger application of the ‘plain
error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and
(4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Miller,
194 W. Va. at 7, 459 S.E.2d at 118, Syl. Pt. 7. We dispose of these claims by readily concluding
that petitioner’s substantial rights were not affected by either alleged issue. “Normally, to affect
substantial rights means that the error was prejudicial. It must have affected the outcome of the
proceedings in the circuit court.” Id. at 18, 459 S.E.2d at 129. The evidence against petitioner was
substantial, consisting of several eyewitness accounts, DNA evidence that placed him at the scene,
and physical evidence corroborative of the eyewitness accounts. He has not shown that, if Ms.
Conkle and Ms. Lacy overheard bench conferences, the outcome of his trial would have been
different. Nor has he shown that a different verdict would have obtained had the investigating
officer not testified that he believed petitioner kidnapped the three women and murdered Ms.
Meadows. 8 Indeed, the indictment charging petitioner with these crimes said as much.
Petitioner next claims that the State failed to disclose impeachment evidence as required
under Brady v. Maryland, 373 U.S. 83 (1963), and State v. Hatfield, 169 W. Va. 191, 286 S.E.2d
402 (1982). Specifically, the State failed to disclose that Ms. Conkle had been charged with theft
of a firearm and that Ms. Lacy had been charged with child neglect resulting in injury and
6
Although petitioner has failed to outline what more he sought to or could have asked these
witnesses, any error in failing to permit more extensive cross-examination on the pending charges
was harmless. The witnesses were questioned to some extent regarding these charges, so petitioner
was able to challenge their credibility; plus, the evidence against petitioner was overwhelming. As
a result, “it is highly probable [that any] error did not contribute to the judgment.” State v. Guthrie,
194 W. Va. 657, 684, 461 S.E.2d 163, 190 (1995) (citation omitted). Finally, to the extent
petitioner sought to admit the charging documents, Rule 608(b) prohibits the admission of
“extrinsic evidence . . . to attack or support the witness’s character for truthfulness,” with the
exception of a “criminal conviction under Rule 609.” (Emphasis added.) The charging documents
were therefore inadmissible as no convictions had been obtained.
7
Petitioner acknowledges his failure to object to these claimed errors and specifically
invokes the plain error doctrine. See W. Va. R. App. P. 10(c)(3) (“If the issue was not presented
to the lower tribunal, the assignment of error must be phrased in such a fashion as to alert . . . the
Supreme Court to the fact that plain error is asserted.”).
8
Nevertheless, we caution against eliciting such testimony. As we found in State v.
Bowling, testimony like that elicited here is not admissible because it does not assist the jury in
resolving a factual issue. 232 W. Va. 529, 551, 753 S.E.2d 27, 49 (2013) (citing W. Va. R. Evid.
701 & 702). Although we find that the error was harmless, the determinations encompassed within
the officer’s testimony are for the jury’s resolution. See id. at 551-52, 753 S.E.2d at 49-50.
4
presentment of false information. The State also failed to disclose that Ms. Lacy was under federal
investigation for providing false information on a form necessary for the purchase of a firearm.
That investigation culminated in Ms. Lacy’s arrest shortly after petitioner’s convictions. 9
There are three components of a constitutional due process violation under
Brady . . . and Hatfield[:] . . . (1) the evidence at issue must be favorable to the
defendant as exculpatory or impeachment evidence; (2) the evidence must have
been suppressed by the State, either willfully or inadvertently; and (3) the evidence
must have been material, i.e., it must have prejudiced the defense at trial.
Syl. Pt. 2, in part, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). All three
components must be established, State v. A.B., 247 W. Va. 495, ---, 881 S.E.2d 406, 419 (2022),
so petitioner’s failure to demonstrate that the allegedly withheld evidence was material is
dispositive of the claim. 10 “[E]vidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been different.”
State v. Peterson, 239 W. Va. 21, 29-30, 799 S.E.2d 98, 106-07 (2017) (quoting State v. Fortner,
182 W. Va. 345, 353, 387 S.E.2d 812, 820 (1989)). The withheld evidence is “evaluated in the
context of the entire record,” A.B., 247 W. Va. at ---, 881 S.E.2d at 419 (quoting United States v.
Agurs, 427 U.S. 97 (1976)), and a showing must be made that “the ‘favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in
the verdict.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Here, we have already
noted that petitioner made use of most of these charges during his cross-examination of Ms. Lacy
9
Petitioner also argues that the evidence regarding the investigation and arrest of Ms. Lacy
constitutes newly discovered evidence, usable “for impeachment purposes,” which entitles him to
a new trial. Typically, a new trial will be denied where the “sole object” of the claimed newly
discovered evidence is to impeach a witness, but if the evidence comes within certain rules, a new
trial will be granted. Syl. Pt. 2, State v. Stewart, 161 W. Va. 127, 239 S.E.2d 777 (1977) (setting
forth the rules within which newly discovered impeachment evidence must fall to warrant a new
trial). We need not belabor the claim because two of those rules speak to affidavits that petitioner
has not submitted. See id. Furthermore, the evidence “must be such as ought to produce,” here, a
not guilty verdict. Id. For the same later-explained reasons that the evidence is not material under
Brady, we find that it is not such as ought to produce a not guilty verdict.
10
We note further that evidence is “suppressed” under the second prong of Youngblood
when
the existence of the evidence was known, or reasonably should have been known,
to the government, the evidence was not otherwise available to the defendant
through the exercise of reasonable diligence, and the government either willfully or
inadvertently withheld the evidence until it was too late for the defense to make use
of it.
State v. Peterson, 239 W. Va. 21, 29, 799 S.E.2d 98, 106 (2017) (quoting Youngblood, 221 W. Va.
at 31 n.21, 650 S.E.2d at 130 n.21). Because most of the evidence that is the subject of this
assignment of error was available to petitioner through the exercise of reasonable diligence and,
in fact, used at trial, petitioner cannot show that that evidence was suppressed.
5
and Ms. Conkle, and we know that petitioner was nevertheless convicted. Given the wealth of
evidence in support of petitioner’s convictions—including from witnesses whose testimony
remains unchallenged and largely mirrors that of Ms. Conkle and Ms. Lacy—evidence of an
additional charge and investigation (to the extent this evidence would have been usable under the
Rules of Evidence) would not have cast the whole case “in such a different light as to undermine
confidence in the verdict.” Id.Lastly, in petitioner’s final assignment of error he asserts that his sentences are
disproportionate and disparate from those received by his codefendants. He argues that his
sentence shocks the conscience because he received four life sentences while his codefendants
received lesser sentences, and he asserts that he and his codefendants were similarly situated
because his codefendants participated in and were charged with the same crimes, are of ages
similar to petitioner, and have limited prior criminal histories.
Punishment may be constitutionally impermissible . . . if it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity, thereby violating West Virginia
Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate
to the character and degree of an offense.
Syl. Pt. 5, in part, State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983). And in evaluating
proportionality, “disparate sentences of co-defendants that are similarly situated may be
considered.” Id. at 271, 304 S.E.2d at 856. Petitioner and his codefendants are not similarly
situated. Petitioner was convicted of first-degree murder, three counts of kidnapping, and
conspiracy, whereas two codefendants were convicted only of conspiracy and the third was
convicted of conspiracy and voluntary manslaughter. Where there have been “guilty pleas and
subsequent convictions to two separate and distinct offenses by the appellant and the codefendant,”
we have found a disparate sentencing claim “untenable.” State v. Watkins, 214 W. Va. 477, 481,
590 S.E.2d 670, 674 (2003). Moreover, “[d]isparate sentences for codefendants are not per se
unconstitutional” as, at sentencing, courts may consider, among other factors, “each codefendant’s
respective involvement in the criminal transaction.” Syl. Pt. 2, in part, State v. Buck, 173 W. Va.
243, 314 S.E.2d 406 (1984). It was petitioner who sought to avenge an alleged drug theft, who
took the victims’ phones and announced that no one was to leave the motel suite, who primarily
terrorized the women with the guns, 11 and who murdered Ms. Meadows. Petitioner’s sentences are
not disproportionate.
For the foregoing reasons, we affirm.
Affirmed.
11
Evidence was adduced that Mr. Williams also pointed a gun at the victims, hence his
voluntary manslaughter conviction.
6
ISSUED: June 13, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
7