State of West Virginia v. Antwyn D. Gibbs and State of West Virginia v. Kevin Goodman, Jr.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
March 9, 2017
No. 16-0044
released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
ANTWYN D. GIBBS,
Defendant Below, Petitioner
Appeal from the Circuit Court of Fayette County
Honorable Paul M. Blake, Jr., Judge
Criminal Action No. 15-F-64
AFFIRMED
AND
No. 15-1193
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
KEVIN GOODMAN, JR.,
Defendant Below, Petitioner
Appeal from the Circuit Court of Fayette County
Honorable Paul M. Blake, Jr., Judge
Criminal Action No. 15-F-66
AFFIRMED
Submitted: February 7, 2017
Filed: March 9, 2017
Steven K. Mancini, Esq. Brian D. Parsons, Esq.
Beckley, West Virginia Chief Assistant Prosecuting Attorney
Counsel for the Petitioner Fayette County
Antwyn D. Gibbs Fayetteville, West Virginia
Counsel for the Respondent
Crystal Walden, Esq.
Director Appellate Advocacy Division
Public Defender Services
Charleston, West Virginia
Counsel for the Petitioner
Kevin Goodman, Jr.
CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. When an accused, who is being tried jointly for a felony offense with co­
defendants, seeks to avoid the sharing of six peremptory challenges, as provided under West
Virginia Code § 62-3-8 (2014), he or she must file a motion expressly requesting additional
peremptory challenges in accordance with Rule 24(b)(2) of the West Virginia Rules of
Criminal Procedure. The trial court’s ruling on a Rule 24(b)(2) motion shall be at its sole
discretion.
2. “This Court will not reverse a denial of a motion to sever properly joined
defendants unless the [petitioner] demonstrates an abuse of discretion resulting in clear
prejudice.” Syl. Pt. 3, State v. Boyd, Nos. 15-0878 and 15-0894, __ W.Va. __, __ S.E.2d __,
2017 WL 372177 (Jan. 19, 2017).
3. “A trial court should grant a severance under Rule 14(b) of the West
Virginia Rules of Criminal Procedure only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants or prevent the jury from making
a reliable judgment about guilt or innocence.” Syl. Pt. 5, State v. Boyd, Nos. 15-0878 and
15-0894, __ W.Va. __, __ S.E.2d __, 2017 WL 372177 (Jan. 19, 2017).
4. “A defendant is not entitled to relief from prejudicial joinder pursuant to
i
Rule 14 of the West Virginia Rules of Criminal Procedure[] when evidence of each of the
crimes charged would be admissible in a separate trial for the other.” Syl. Pt. 2, State v.
Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998).
5. “‘A trial court’s evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State
v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 1, State v. Timothy C., 237
W.Va. 435, 787 S.E.2d 888 (2016).
6. “Punishment may be constitutionally impermissible, although not cruel or
unusual in its method, 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, State v. Cooper, 172
W.Va. 266, 304 S.E.2d 851 (1983).
7. “‘In determining whether a given sentence violates the proportionality
principle found in Article III, Section 5 of the West Virginia Constitution, consideration is
given to the nature of the offense, the legislative purpose behind the punishment, a
comparison of the punishment with what would be inflicted in other jurisdictions, and a
ii
comparison with other offenses within the same jurisdiction.’ Syllabus point 5, Wanstreet
v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).” Syl. Pt. 2, State v. Adams, 211
W.Va. 231, 565 S.E.2d 353 (2002).
iii
LOUGHRY, Chief Justice:
Through these consolidated appeals, the petitioners, Antwyn D. Gibbs and
Kevin Goodman, Jr., each seek a reversal of their convictions and sentencing from final
orders entered by the Circuit Court of Fayette County. Following a joint jury trial, the
petitioners were convicted of first degree robbery in violation of West Virginia Code § 61-2­
12(a) (2014), entry of a dwelling in violation of West Virginia Code § 61-3-11(b) (2014), and
conspiracy to commit a felony in violation of West Virginia Code § 61-10-31 (2014). Both
were sentenced to consecutive terms of incarceration of one to five years for conspiracy,
which was enhanced to two to five years for petitioner Gibbs pursuant to a recidivist
conviction;1 one to ten years for entry of a dwelling; and fifty years for first degree robbery.
Petitioner Gibbs challenges the sufficiency of the evidence to convict him of first degree
robbery. Petitioner Goodman challenges (1) the proportionality of his sentencing, and (2)
the trial court’s denial of his motion to sever his trial, which he asserts resulted in the
admission of irrelevant and prejudicial evidence. Both Gibbs and Goodman maintain that
the trial court abused its discretion in denying their respective motions to sever their trials
without addressing one of several bases for their motions: that they did not want the six
peremptory jury challenges to which each would be entitled if tried separately to be reduced
through sharing those challenges in a joint trial. Following a careful review of the briefs, the
1
See infra note 23.
1
arguments of counsel, the appendix record submitted, and the applicable law, this Court finds
no reversible error and affirms the petitioners’ convictions and sentencing.
I. Facts and Procedural Background2
On May 12, 2015, a Fayette County grand jury returned an indictment jointly
charging Kevin Goodman, Jr., Antwyn Gibbs, Radee Hill, Kentrell Goodman,3 and Rashod
Wicker4 with the felony offenses of first degree robbery, entry of a dwelling, grand larceny,
and conspiracy to commit these felonies. Kentrell G. and Wicker entered into plea
agreements with the State pursuant to which each pled guilty to first degree robbery with all
remaining charges being dismissed.5
2
The facts and procedural background as set forth herein have been gleaned from the
appendix record, including hearing and trial transcripts.
3
For purposes of this opinion, petitioner Kevin Goodman, Jr., will be referred to
individually as either “petitioner Goodman” or “Goodman;” Kentrell Goodman will be
referred to as “Kentrell G.;” and jointly they will be referred to as “the Goodmans.”
4
Trial testimony revealed that all of these men knew each other prior to the instant
criminal conduct. Hill grew up with Gibbs; the Goodmans are brothers; Wicker and the
Goodmans are cousins; and petitioner Goodman dated Hill’s cousin.
5
Their respective plea agreements provided that the State would recommend youthful
offender treatment under West Virginia Code §§ 25-4-1 to -12 (2013). Although not
required under their plea agreements, Kentrell G. and Wicker each agreed to testify for the
State at the trial of their co-defendants.
2
Prior to trial, the petitioners and Hill each filed a motion under Rule 14(b) of
the West Virginia Rules of Criminal Procedure seeking to sever his trial from that of his co­
defendants. Following hearings on these motions, and through its order entered on August
31, 2015, the trial court denied all motions to sever.
The three-day joint trial of the petitioners and Hill began on September 9, 2015.
The State’s evidence included the testimony of eleven witnesses and numerous exhibits,
including physical evidence of the crimes. Each of the defendants testified in his own
defense, denying any culpability in the crimes, and petitioner Goodman also presented the
testimony of an alibi witness.
The evidence at trial revealed that between midnight and 1:00 a.m. on January
9, 2015, Hill, Wicker, Kentrell G., and the petitioners departed South Carolina, traveling to
Oak Hill, West Virginia, for the purpose of robbing Andrew Gunn. Kentrell G., who grew
up in Oak Hill, was close friends with Gunn and knew that Gunn kept a safe containing
approximately $10,000 in his bedroom in the home of his grandparents, Linda and Edward6
Knight. Kentrell G. conveyed this information to his brother, petitioner Goodman, who
responded, “Let’s go get money.” The men traveled to Oak Hill in a car belonging to
6
Mrs. Knight testified that her husband’s name was “Elwood” but that he goes by the
name “Charles.” Mr. Knight testified that his name is “Edward.”
3
Kentrell G.’s girlfriend, Lindsey Hess. Wicker, who was the sole person in the group with
a valid driver’s license, was the driver.
Upon their arrival in Oak Hill around 7:30 or 8:00 a.m. on January 9, 2015,
Wicker parked the car near a wooded area fifty to sixty feet from the Knights’ residence.
Wicker, who has cerebral palsy, remained with the car. Mrs. Knight testified that she had
let her dogs outside earlier that morning but had not fully closed the door to her home when
she brought them back inside. Then, as she was sitting on the couch getting ready to do her
granddaughter’s hair for school,7 she happened to look over and saw a rifle or shotgun easing
into her home through the door. Thereafter, four men, who had the majority of their faces
covered but who appeared to be black,8 entered her home. According to Mrs. Knight, in
addition to one man having a “long gun,” another man had a pistol. Andrew Gunn described
these weapons as a .38 special and a 12-gauge shotgun during his testimony.
Although Mrs. Knight was “really scared” for herself and her grandchildren,
she refused to get on her knees as one of the men told her to do and, instead, remained seated
7
The perpetrators apparently thought there would either be no one or very few persons
in the Knight home that morning; however, they were unaware that there was a school delay
due to snow. There was also a delay in the start of the Day Report Center, where Andrew
Gunn would otherwise have been at that time, as part of his home incarceration.
8
The record reflects that all five co-defendants are black.
4
on the couch.9 Her eighteen-year-old disabled grandson got on his knees and laid his head
in her lap as he cried, while her five-year-old granddaughter was “squashed down” behind
her on the couch, so afraid that she urinated on herself. When Mrs. Knight asked the men
if she could get a heart pill because she was having chest pain, the man with the long gun told
her “no.”10
Trial testimony revealed that two of the four men went immediately to Gunn’s
bedroom, while the two armed men remained in the front of the home. Gunn made an in-
court identification of petitioner Goodman as one of the men in the front of the house. Gunn
further described that from his seated position in the living room, he looked down the
hallway to his bedroom, where he observed two men11 throw his crossbow, two pairs of his
athletic shoes, and his safe containing approximately $10,000 out of his bedroom window
9
Mrs. Knight testified that she was unable to get on her knees due to arthritis and a
sciatic nerve problem.
10
Mr. Knight testified similarly regarding the morning in question. As he came out
of his bedroom to get a cup of coffee, he saw a shotgun and a handgun pointed at him by men
with “cowboy masks” covering their faces. He stated that when the men told him to get on
the floor, he felt like his heart stopped, but replied that he only got on the floor for the Lord.
He then returned to his bedroom where he heard men going through Gunn’s adjacent
bedroom.
11
When asked for the names of the two men who were in his bedroom, Gunn replied:
“I don’t - - I don’t remember names very well.”
5
to Kentrell G.12 After being in the Knights’ home approximately fifteen minutes, the
perpetrators fled. Mrs. Knight immediately telephoned the Oak Hill police and reported the
crime.
Oak Hill police officers responded to the scene and interviewed those present.
Soon thereafter, the officers received a tip that the Goodmans were possibly involved in the
robbery and that they lived in or near Newberry, South Carolina.13 Two Oak Hill police
officers then traveled to South Carolina where search warrants were obtained through the
assistance of local law enforcement officers. In executing the warrants, the officers searched
the residence of Benita Wicker,14 who is co-defendant Rashod Wicker’s mother and the
Goodmans’ paternal aunt. At that time, Kentrell G. and his girlfriend, Lindsey Hess, were
residing in Ms. Wicker’s home; petitioner Goodman frequently stayed there, sleeping on the
living room couch; and Rashod Wicker also lived there. The officers recovered Gunn’s
crossbow and athletic shoes from inside Ms. Wicker’s home, and his safe was found in Ms.
12
Gunn testified that Kentrell G. was his “buddy” with whom he had grown up; that
he did not “want to be here [testifying at trial]”; and that he “just want[ed] [][his] stuff back.”
Gunn’s testimony that Kentrell G. was outside the Knights’ home, while four men were
inside it, is inconsistent with all other testimony at trial, but for that of Kentrell G., who also
testified that he remained outside the Knights’ home.
13
It appears from testimony at trial that this information was received from the
Goodmans’ mother, who was concerned that if her sons continued to engage in criminal
conduct, either or both would be hurt or killed.
14
Ms. Wicker’s home was located in Little Mountain, South Carolina. Her home is
referred to in the record as “Aunt Benita’s” and as “Boyd’s Place.”
6
Wicker’s yard. These items were admitted into evidence at trial through the testimony of
Garrett Lominack, Lieutenant of Investigations for the Newberry County Sheriff’s Office in
Newberry, South Carolina, and were identified by other witnesses, including Mrs. Knight and
Gunn, as the items that had been stolen. The State also presented the testimony of other law
enforcement officers concerning the results of their criminal investigation in this matter,
including the statements given by Kentrell G. and Rashod Wicker in which they implicated
themselves, Hill, and the petitioners in the robbery.15
During Kentrell G.’s trial testimony, he described the manner in which the
decision was made to travel to West Virginia to steal the money in Gunn’s safe; how he and
his brother, petitioner Goodman, decided to use Ms. Hess’s vehicle for that purpose; how the
other men became involved; and how they went about executing the robbery. He testified
that Gibbs was carrying the shotgun as the men approached the Knights’ residence; that
Gibbs and Hill were the first to enter the Knights’ residence; and that he remained outside
the residence, pointing the other men to the window of Gunn’s bedroom where the safe was
located.16 He identified the safe, crossbow, and athletic shoes as the items that were stolen
from the Knights’ residence and stated that he carried the crossbow and athletic shoes to the
car where Wicker was waiting, while the petitioners carried the safe. Kentrell G. further
15
Other incriminating evidence at trial included cell phones, cell phone communication
records, guns, and spent and unspent ammunition.
16
See supra note 12.
7
testified that after the stolen items and the weapons were placed into the trunk of the car, he
and the other men got into the car, and they returned to South Carolina that same day.
Kentrell G.’s girlfriend, Ms. Hess, testified that while she, Kentrell G., and
petitioner Goodman were all in Aunt Benita’s house during the evening of January 8, 2015,
she overheard Kentrell G. and petitioner Goodman planning to rob Andrew Gunn and heard
petitioner Goodman tell Kentrell G. that he could get guns and knew people who could help.
Later, during the early hours of January 9, 2015, Ms. Hess realized her car was gone from
the Wicker residence. Ms. Hess also confirmed the text messages she exchanged with
petitioner Goodman’s girlfriend, Courtney Curry, around 1:00 a.m. on January 9, 2015. Ms.
Curry texted, inquiring as to petitioner Goodman’s whereabouts. Ms. Hess texted a reply
that petitioner Goodman was in West Virginia. Sometime around midday on January 9,
2015, Ms. Hess saw that her car, Kentrell G., petitioner Goodman, Wicker, and Gunn’s safe
were all at Ms Wicker’s house. Ms. Hess testified that a day or two later, petitioner
Goodman purchased a carseat for Kentrell G.,17 and a television and gaming system were
purchased for the bedroom she shared with Kentrell G. in Ms. Wicker’s home.18
17
Ms. Hess was pregnant at the time with Kentrell G.’s baby.
18
It is unclear from the appendix record whether Kentrell G. or petitioner Goodman
purchased these items.
8
Rashod Wicker’s testimony was consistent with that given by other State’s
witnesses. He testified that Kentrell G. told him that because he had a driver’s license, they
needed him to drive them to West Virginia to get some money and that they would be using
Ms. Hess’s car. He described how he, Kentrell G., Hill, and the petitioners traveled to Oak
Hill and where he parked the car in relation to the Knights’ residence. He further described
seeing petitioner Gibbs retrieve a long gun from the trunk of the car,19 after which the
petitioners, Kentrell G., and Hill headed into the woods towards the Knights’ residence.
Approximately fifteen minutes later, Wicker saw all four men running back towards the car,
with petitioner Goodman carrying the safe and Kentrell G. carrying the crossbow and athletic
shoes, all of which were thrown into the trunk.
Evidence at trial demonstrated that upon their return to South Carolina that
same day, Wicker was dropped off at the home of his mother, Ms. Wicker. Kentrell G.
testified that he and the other men then drove to Gibbs’s residence where the safe was opened
in the backyard by petitioner Goodman firing a shotgun at the lock.20 The men divided the
19
Wicker testified that he did not see a handgun.
20
An expert for the State testified at trial that pieces of plastic recovered by law
enforcement from the yard of Gibbs’ residence were matched to the safe recovered at Ms.
Wicker’s residence.
9
cash taken from the safe21 and then placed the safe back into the trunk of Ms. Hess’s vehicle,
which the Goodmans drove to Ms. Wicker’s home.
The petitioners and Hill each testified in their own defense, denying any
involvement in the crimes. Petitioner Goodman also presented the testimony of an alibi
witness, Courtney Curry, who stated that Goodman was with her in South Carolina, as early
as 8:30 a.m. on January 9, 2015.
At the conclusion of all the evidence, the jury returned its verdict finding
Gibbs, Goodman, and Hill guilty of first degree robbery, entry of a dwelling, and
conspiracy.22 All three co-defendants were sentenced to terms of incarceration of one to five
years for conspiracy, which was enhanced to two to five years for Gibbs in light of his
recidivist conviction;23 one to ten years for the entry of a dwelling; and fifty years for first
21
Wicker testified that although he was not present when the cash was divided at
petitioner Gibbs’s residence, Kentrell G. later gave him $2,000, half of which he then gave
to his mother.
22
The grand larceny charge was dismissed against each defendant on the State’s
motion during trial.
23
The State filed a recidivist information against Gibbs. He proceeded to trial on the
information, and the jury returned a verdict finding Gibbs had been previously convicted of
robbery in South Carolina.
10
degree robbery. The sentences were ordered to be served consecutively. The instant appeals
followed.24
II. Standard of Review
The petitioners have asserted various assignments of error that require different
standards of review. Accordingly, we will set forth those standards within our discussion of
each issue as we proceed to determine whether the petitioners are entitled to relief from their
convictions.
III. Discussion
These appeals were consolidated for appellate review because they arise out
of the same criminal conduct. We will address the assignments of error raised by the
petitioners, in turn, below.
A. Denial of Motions to Sever and Peremptory Challenges
The petitioners both assert that the trial court abused its discretion in denying
their motions to sever their trials without addressing one of the bases in their motions: that
24
Co-defendant Radee Hill’s conviction and sentencing were affirmed in State v. Hill,
No. 16-0138, 2016 WL 6678997 (W.Va. Nov. 14, 2016) (memorandum decision).
11
they did not want a reduction in the six peremptory challenges25 to which they would each
be entitled if tried separately.26 The petitioners assert “per se” prejudice in this regard,
adding that a trial court has discretion to allow additional peremptory challenges under West
Virginia Rule of Criminal Procedure 24(b)(2)(B). They argue that the trial court’s failure to
address peremptory challenges in denying their motions to sever was itself an abuse of
discretion. The State responds that the trial court did not abuse its discretion and took the
appropriate factors into consideration in denying the motions to sever.
A criminal defendant’s use of peremptory challenges in a joint trial is governed
by West Virginia Code § 62-3-8 (2014), which provides, in part, as follows:
Persons indicted and tried jointly, for a felony, shall be
allowed to strike from the panel of jurors not more than six
thereof, and only such as they all agree upon shall be stricken
therefrom; and if they cannot agree upon the names to be so
stricken off, the prosecuting attorney shall strike therefrom a
sufficient number of names to reduce the panel to twelve.
As this statute makes clear, defendants who are tried jointly share a total of six peremptory
challenges. Notwithstanding West Virginia Code § 62-3-8, a trial court has discretion to
award additional peremptory challenges under Rule 24 of the West Virginia Rule of Criminal
25
See U.S. v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (“[W]e have long
recognized, as well, that such [peremptory] challenges are auxiliary; unlike the right to an
impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal
constitutional dimension”).
26
See W.Va. Code § 62-3-3 (2014) (providing an accused in felony case with six
peremptory challenges); W.Va. R. Crim. P. 24(b)(1)(A) (same)).
12
Procedure, which provides, in relevant part, as follows:
(b) Peremptory Challenges. —
••••
(2) Relief from Limitations. — (A) For Cause. — For good
cause shown, the court may grant such additional challenges as
it, in its discretion, believes necessary and proper.
(B) Multiple defendants. — If there is more than one defendant
the court may allow the parties additional challenges and permit
them to be exercised separately or jointly.
(C) Time for making motion. — A motion for relief under
subdivision (b)(2) of this rule shall be filed at least one week in
advance of the first scheduled trial date or within such other
time as may be ordered by the circuit court.
Although the petitioners’ assertion that Rule 24 is the paramount authority regarding
peremptory challenges is accurate,27 critically, neither petitioner filed a pretrial motion under
Rule 24(b) seeking additional peremptory challenges.28 Rule 24(b)(2)(C) provides in
mandatory terms that such a motion “shall be filed” within the time frame set forth therein.
Accordingly, we now hold that when an accused, who is being tried jointly for a felony
offense with co-defendants, seeks to avoid the sharing of six peremptory challenges, as
provided under West Virginia Code § 62-3-8 (2014), he or she must file a motion expressly
27
See Syl. Pt. 5, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999) (“The West
Virginia Rules of Criminal Procedure are the paramount authority controlling criminal
proceedings before the circuit courts of this jurisdiction; any statutory or common-law
procedural rule that conflicts with these Rules is presumptively without force or effect.”).
28
A question arose during jury voir dire regarding the number of peremptory
challenges the co-defendants would have in selecting an alternate juror. The question was
mooted by the trial court’s decision to proceed without an alternate juror.
13
requesting additional peremptory challenges in accordance with Rule 24(b)(2) of the West
Virginia Rules of Criminal Procedure. The trial court’s ruling on a Rule 24(b)(2) motion
shall be at its sole discretion.
In the case at bar, the petitioners never sought an award of additional
peremptory challenges, either through a pre-trial motion filed under Rule 24(b)(2) or orally
during jury voir dire at trial. Consequently, they raise their peremptory challenge issue in the
context of the trial court’s denial of their motions to sever their trials filed under West
Virginia Rule of Criminal Procedure 14(b).
Rule 14(b) provides, in part, that “[i]f the joinder of defendants in an
indictment, an information, or a consolidation for trial appears to prejudice a defendant or
the State, the Court may sever the defendants’ trials, or provide whatever other relief that
justice requires.” W.Va. R. Crim. P. 14(b) (emphasis added.). In other words, it is within the
trial court’s discretion as to whether to grant a motion to sever the trials of jointly indicted
defendants. We recently emphasized a trial court’s discretion in this regard.
14
In State v. Boyd, Nos. 15-0878 and 15-0894, __ W.Va. __, __ S.E.2d __, 2017
WL 372177 (Jan. 19, 2017),29 we held that “[t]his Court will not reverse a denial of a motion
to sever properly joined defendants unless the [petitioner] demonstrates an abuse of
discretion resulting in clear prejudice.” Boyd, __W.Va. at __, __ S.E.2d at __, 2017 WL
372177, *1, syl. pt. 3. In the case at bar, the trial court denied the petitioners’ motions to
sever, noting the “cost of separate trials to tax payers and judicial economy.”30 The trial court
found that the defendants’ positions were “not inherently inconsistent, such that a joint trial
would prevent any defendant from asserting a proper defense.” The lower court also
considered the “undue burden” that would be placed on “the cooperating witnesses” if there
were multiple trials. Recognizing the permissibility of joint trials under Rule 14(b) of the
West Virginia Rules of Criminal Procedure, “unless prejudice to the defendants can be
shown,” the trial court found there was no evidence that “any prejudice would inure to the
detriment of any defendant with a unitary trial.” We agree with the trial court’s sound
reasoning in this regard.
29
Although our new syllabus points in Boyd emphasize the discretion provided to trial
courts under West Virginia Rule of Criminal Procedure Rule 14, to the extent they constitute
new points of law, they are applicable to the case a bar. See Syl. Pt. 3, State v. Gangwer, 168
W.Va. 190, 283 S.E.2d 839 (1981) (“In the absence of any substantial countervailing factors,
where a new rule of criminal law is made of a nonconstitutional nature, it will be applied
retroactively only to those cases in litigation or on appeal where the same legal point has
been preserved.”).
30
See Zafiro v. U.S., 506 U.S. 534, 540 (1993) (citation omitted) (finding rules of
criminal procedure allowing for co-defendants to be tried jointly “are designed ‘to promote
economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can
be achieved without substantial prejudice to the right of the defendants to a fair trial.’”).
15
As discussed, the petitioners challenge the trial court’s denial of their motions
to sever because their joint trial required them to share peremptory strikes, as provided under
West Virginia Code § 62-3-8. Critically, they have not indicated any disagreement amongst
themselves in the exercise of their shared peremptory challenges during jury voir dire.
Moreover, during oral argument, the State represented to this Court that defense counsel
worked in concert during jury voir dire in utilizing their peremptory challenges, and the
petitioners did not indicate anything to the contrary on rebuttal. Accordingly, in the absence
of either a motion filed under West Virginia Rule of Criminal Procedure 24(b)(2), an oral
request during jury voir dire for additional peremptory challenges, or any evidence that the
composition of the petitioners’ jury was unfair, we find there has been no demonstration of
an abuse of discretion in the trial court’s denial of the petitioners’ motions to sever resulting
in clear prejudice.
B. Denial of Motion to Sever
Petitioner Goodman also asserts the trial court abused its discretion in denying
his motion to sever because the joint trial led to the admission of evidence that was irrelevant,
as to him, and which connected only petitioner Gibbs to the crimes charged. The evidence
he cites includes the police photographs of the yard at Gibbs’s residence; the items law
enforcement recovered from Gibbs’s yard, including shotgun shell casings and wadding, a
gun, pieces of the safe, and Gibbs’s cell phone; and the stolen crossbow, athletic shoes, and
16
safe seized from Ms. Wicker’s residence. Arguing further, Goodman states that even if this
evidence were relevant, its probative value was outweighed by its prejudicial effect.
Conversely, the State maintains the trial court was within its discretion to order a joint trial;
that the evidence was virtually the same for all of the co-defendants, having arisen from the
same criminal enterprise; and that petitioner Goodman has not shown actual prejudice. The
State further argues that any error in this regard was harmless given the testimony of Kentrell
G. and Wicker, which implicated petitioner Goodman in the crimes and was sufficient to
convict.
We recently held that
[a] trial court should grant a severance under Rule 14(b)
of the West Virginia Rules of Criminal Procedure only if there
is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants or prevent the jury from
making a reliable judgment about guilt or innocence.
Boyd, __ W.Va. at __, __ S.E.2d at __, 2017 WL 372177, *1, syl. pt. 5. Moreover, “[a]
defendant is not entitled to relief from prejudicial joinder pursuant to Rule 14 of the West
Virginia Rules of Criminal Procedure[] when evidence of each of the crimes charged would
be admissible in a separate trial for the other.” Syl. Pt. 2, State v. Milburn, 204 W.Va. 203,
511 S.E.2d 828 (1998); see also State v. Grantham, No. 12-1293, 2013 WL 6152080, *3
(W.Va. Nov. 22, 2013) (memorandum decision) (“The evidence against both co-defendants
was inextricably intertwined and arose from the same act or transaction, and the
17
co-defendants did not put on conflicting defenses.”); State v. Cross, No. 13-0260, 2013 WL
5966968, *4 (W.Va. Nov. 8, 2013) (memorandum decision) (“The circuit court properly
found that the evidence against petitioner and his co-defendant was inextricably intertwined,
arose from the same act or transaction, and required the presentation of identical evidence
by the State.”). Finally, “‘[a] trial court’s evidentiary rulings, as well as its application of the
Rules of Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4,
State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 1, State v. Timothy
C., 237 W.Va. 435, 787 S.E.2d 888 (2016).
Although petitioner Goodman contends that certain evidence would not have
been admissible had he been tried separately, our review of the trial transcript reveals that
the State’s evidence arose out of the same criminal enterprise and was relevant to all of the
co-defendants. The evidence recovered from Gibbs’s yard, i.e., the shotgun wadding and
shells and pieces of plastic from Gunn’s safe, all related to the opening of the safe. Kentrell
G. testified that petitioner Goodman carried the safe from the Knights’ home to the getaway
vehicle31 and later opened the safe by firing a shotgun at it in Gibbs’s yard. Further, the items
taken during the robbery were recovered by law enforcement at Ms. Wicker’s home, which
is where petitioner Goodman frequently stayed; where he was the evening before the robbery,
planning the same with his brother, Kentrell G; and where he was around noon the day of the
31
Rashod Wicker testified similarly.
18
robbery, when Ms. Hess’s car was returned and the stolen items were brought into Ms.
Wicker’s home. Moreover, Andrew Gunn made an in-courtroom identification of petitioner
Goodman as one of the robbers, and Ms. Hess’s testimony was highly incriminating to
petitioner Goodman, as well. In short, even if the State’s physical evidence were excluded
in a separate trial, the testimony of Gunn, Hess, the Knights, and, in particular, that of co­
defendants Kentrell G. and Wicker, would be sufficient to convict petitioner Goodman.
Accordingly, there being no clear prejudice to petitioner Goodman, we find no abuse of
discretion in the trial court’s denial of his motion to sever.
C. Insufficiency of the Evidence
Petitioner Gibbs argues that the robbery count in his indictment and the jury
instruction on robbery should have included the words “bodily fear” and, if they had, then
the State’s evidence would have been insufficient to convict him32 because Andrew Gunn
32
We have long held that
[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
(continued...)
19
testified that he was not afraid during the robbery.33 Critically, however, petitioner Gibbs
failed to challenge either the indictment34 or the jury instruction35 on robbery below.
32
(...continued)
only when the record contains no evidence, regardless of how it
is weighed, from which the jury could find guilt beyond a
reasonable doubt.
Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
33
Andrew Gunn was the named victim in the robbery count of the indictment.
34
See Syl. Pt. 1, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996) (“Rule
12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must
raise any objection to an indictment prior to trial. Although a challenge to a defective
indictment is never waived, this Court literally will construe an indictment in favor of
validity where a defendant fails timely to challenge its sufficiency. Without objection, the
indictment should be upheld unless it is so defective that it does not, by any reasonable
construction, charge an offense under West Virginia law or for which the defendant was
convicted.”).
35
Rule 30 of the West Virginia Rules of Criminal Procedure provides, in part, that
[n]o party may assign as error the giving or the refusal to give an
instruction or the giving of any portion of the charge unless that
party objects thereto before the arguments to the jury are begun,
stating distinctly the matter to which that party objects and the
grounds of the objection; but the court or any appellate court
may, in the interest of justice, notice plain error in the giving or
refusal to give an instruction, whether or not it has been made
the subject of objection.
Assuming, arguendo, that the jury instruction on robbery was flawed, Goodman would not
be entitled to relief under the plain error doctrine. In State v. England, 180 W.Va. 342, 376
S.E.2d 548 (1988), we held:
Where an instruction is given which improperly defines
the crime of aggravated [first degree] robbery, but there is
(continued...)
20
Nonetheless, even if such challenges had been raised, they would have been unavailing.
Petitioner Gibbs correctly notes that the words “bodily fear” appear in West
Virginia Code § 62-9-6 (2014), which sets forth a form indictment for robbery:
An indictment for robbery shall be sufficient if it be in form,
tenor or effect as follows . . . :
That A .........., on the .......... day of .........., nineteen
.........., in the said county of .........., being armed with a
dangerous and deadly weapon (if not armed, leave out allegation
of being armed), in and upon one B .......... an assault did
feloniously make, and him, the said B .......... did then and there
feloniously put in bodily fear, and (here set out the articles of
money stolen, as the case may be), all the property of the said B
.........., and lawfully in his control and custody, from the person
of the said B .........., and against his will, then and there
feloniously and violently did steal, take and carry away, against
the peace and dignity of the State.
(Emphasis added). Unlike West Virginia Code § 62-9-6, which was enacted in 1931 and has
never been amended since, the robbery statute, West Virginia Code § 61-2-12, has been
amended over the years and currently provides, in relevant part, as follows:
(a) Any person who commits or attempts to commit robbery by:
35
(...continued)
substantial evidence introduced proving such robbery, and the
defendant admits a robbery occurred and relies solely on an alibi
defense, such instructional error when not objected to at trial
will not be subject to the plain error doctrine.
Id., 180 W.Va. at 344-45, 376 S.E.2d at 550-51, syl. pt. 5. Here, there was substantial
evidence proving the robbery. Further, petitioner Gibbs did not deny that the robbery
occurred; instead, he simply testified that he did not participate in it.
21
(1) Committing violence to the person, including, but not limited
to, partial strangulation or suffocation or by striking or beating;
or (2) uses the threat of deadly force by the presenting of a
firearm or other deadly weapon, is guilty of robbery in the first
degree and, upon conviction thereof, shall be imprisoned in a
state correctional facility not less than ten years.
Id.36 As is apparent, the words “bodily fear” do not appear in the statutory elements for first
degree robbery. We previously explained that
[a]t common law, the definition of robbery was (1) the
unlawful taking and carrying away, (2) of money or goods, (3)
from the person of another or in his presence, (4) by force or
putting him in fear, (5) with intent to steal the money or goods.
(Internal citations omitted). Thus, at common law, robbery
could be accomplished either by actual physical force or
violence inflicted on the victim or by intimidating the victim by
placing him in fear of bodily injury. (Internal citations omitted).
708 (1940). There were no degrees or grades of common law
robbery.
W.Va. Code, 61-2-12, enacted in 1931, divides robbery
into two separate classes and calls for different penalties: (1)
robbery by violence or by the use of a dangerous weapon, and
(2) all other robberies. By dividing robbery into these two
categories, our legislature joined a number of other legislatures
in recognizing a greater culpability and more severe punishment
36
When last amended in 2000, the Legislature largely rewrote and reorganized West
Virginia Code § 61-2-12. Accordingly, what this Court previously referred to as aggravated
robbery is now first degree robbery. See Boxley v. Paugh, No. 14-1006, 2015 WL 3691332,
*1 (W.Va. June 15, 2015) (memorandum decision) (“In March of 1999, petitioner was
convicted, by jury, of one count of fleeing an officer and one count of aggravated robbery,
now first-degree robbery.”); State v. Mayo, No. 13-1003, 2014 WL 6634229, *3 (W.Va. Nov.
24, 2014) (memorandum decision) (“[State v.] Ross [184 W.Va. 579, 402 S.E.2d 248 (1990)]
concerned a constitutional challenge to a sentence for aggravated robbery, now first degree
robbery.”).
22
for a robbery committed by violent means than for a robbery
committed by nonviolent means. (Internal citation omitted).
State v. Harless, 168 W.Va. 707, 709-10, 285 S.E.2d 461, 463-64 (1981) (footnotes omitted).
With specific regard to the absence of the words “bodily fear” in the indictment and in the
jury instruction on robbery,
[w]e previously noted that under the common law
definition robbery could be committed by two general means.
The first was by force and violence to the person, in which event
there is no necessity to prove that the victim was placed in fear
of bodily injury, since the actual force on the victim can be
presumed to have engendered fear. (Internal citations omitted).
The second common law means of committing robbery
was through intimidation, that is, by placing the victim in fear,
usually of bodily injury. It is this second category under the
common law definition which encompasses our nonaggravated
[second degree] form of statutory robbery. Therefore, the
distinguishing feature of a nonaggravated [second degree]
robbery is that it is accomplished, not through violence to the
victim or the threat or presentation of firearms or other deadly
weapon or instrumentality, but through intimidation that induces
fear of bodily injury in the victim. In the case of an aggravated
[first degree] robbery, fear of bodily injury is not an essential
element of the crime, since the actual physical force or violence
or threat or presentation of firearms or other deadly weapon or
instrumentality can be presumed to have created fear of bodily
injury.
Id., 168 W.Va. at 712, 285 S.E.2d at 465 (footnotes omitted) (emphasis added). Dispositive
of the issue before us, we also stated in Harless that
[a]n appropriate charging portion of an instruction for
“aggravated” robbery would be:
“Aggravated robbery is defined as the unlawful
23
taking and carrying away of money or goods from
the person of another, or in his presence, by the
use of force or violence on the victim or through
the use of a dangerous or deadly weapon or
instrumentality, and with the intent to steal such
property.”
Id., 168 W.Va. at 712 n.8, 285 S.E.2d at 465 n.8. In short,
[a] plain reading of subsections (a) and (b) of W.Va.
Code, § 61-2-12 shows that the Legislature has more or less
codified the common law definition of robbery and graded the
degrees of robbery according to the level of violence involved,
with First Degree encompassing the more dangerous and violent
forms of robbery (the common law equivalent of “robbery by
force”) and Second Degree encompassing the less dangerous
forms of robbery (the common law equivalent of “robbery by
fear”).
In this appeal, the defendant was charged with First
Degree Robbery. First Degree Robbery required that the State
prove beyond a reasonable doubt that the offense alleged was
committed with “violence to the person” or that the offense was
committed with a “threat of deadly force by the presenting of a
firearm or other deadly weapon.” W.Va. Code, § 61-2-12 (a)[.]
State v. Hatley, 223 W.Va. 747, 753-54, 679 S.E.2d 579, 585-86 (2009) (Ketchum, J.,
concurring).
Based on the above, the robbery count in the subjct indictment was sufficient
to charge first degree robbery in violation West Virginia Code § 61-2-12(a). See Syl. Pt. 3,
State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983) (“An indictment for a statutory offense
is sufficient if, in charging the offense, it substantially follows the language of the statute,
24
fully informs the accused of the particular offense with which he is charged and enables the
court to determine the statute on which the charge is based.”).37 Inasmuch as “bodily fear”
is not an element of first degree robbery under West Virginia Code § 61-2-12(a), those words
had no place in either the indictment or the jury instruction.38
Under West Virginia Code § 61-2-12(a), the State had to prove beyond a
reasonable doubt that the robbery was committed with either “violence to the person” or with
a “threat of deadly force by the presenting of a firearm or other deadly weapon[.]” Absent
his unavailing argument regarding “bodily fear,” petitioner Gibbs does not assert that the
37
The robbery count in the indictment charged in pertinent part, as follows:
ANTWYN D. GIBBS, KENTRELL GOODMAN, KEVIN
GOODMAN, JR., RADEE M. HILL and RASHOLD C.
WICKER, on or about the 9th day of January, 2015 . . .
committed the offense of “robbery in the first degree” in that
they, by the threat of deadly force by the presentment of a
firearm, in and upon one Andrew Gunn, an assault did
feloniously make, and one . . . crossbow, one pair Jordan
Columbia 11 shoes, one pair Jordan Infrared 6 shoes and/or one
safe containing United States Currency, of the property of the
said Andrew Gunn, and lawfully in the control and custody of
the said Andrew Gunn, from the person of or from the presence
of Andrew Gunn and against his will, then and there feloniously
and violently did steal, take and carry away the same, with intent
to permanently deprive the owner thereof, against the peace and
dignity of the State. W.Va. Code § 62-2-12(a).
38
As indicated previously, West Virginia Code § 62-9-6, which sets forth suggested
language for a robbery indictment, has not been amended since its enactment in 1931. The
Legislature may want to amend West Virginia Code § 62-9-6 to bring it into conformity with
its prior amendments to West Virginia Code § 61-2-12.
25
State’s evidence was otherwise insufficient to convict him of first degree robbery. Indeed,
it is abundantly clear that under Guthrie, 194 W.Va. 657, 461 S.E.2d 163,39 the State’s
evidence at trial was sufficient for the jury to find beyond a reasonable doubt that petitioner
Gibbs committed the first degree robbery of Andrew Gunn by unlawfully carrying away
goods belonging to Gunn through the threat of deadly force by presenting firearms.
Accordingly, we find that petitioner Gibbs is not entitled to relief from his robbery conviction
on this basis.
D. Sentencing
Petitioner Goodman asserts that his sentence of fifty years incarceration for
first degree robbery is disproportionate to his crime in violation of Article III, Section 5 of
the West Virginia Constitution.40 This Court “reviews sentencing orders . . . under a
deferential abuse of discretion standard, unless the order violates statutory or constitutional
commands.” Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).
We begin our analysis by acknowledging the broad discretion given to trial
courts under West Virginia Code § 61-2-12(a), which provides only a minimum sentence of
39
See supra note 32.
40
Article III, section 5 of the West Virginia Constitution provides, in relevant part, as
follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted. Penalties shall be proportioned to the character and degree of
the offence.”
26
ten years without proscribing a maximum number of years.41 See State ex rel. Faircloth v.
Catlett, 165 W.Va. 179, 181, 267 S.E.2d 736, 737 (1980) (“It [armed robbery] is punishable
by a term of not less than ten years, which may be any number of years from ten to life. The
Legislature chose not to deprive trial courts of discretion to determine the appropriate
specific number of years of punishment for armed robbery, beyond ten.”). Notwithstanding
this broad discretion, we employ two tests in determining whether a sentence is
constitutionally disproportionate to the crime: one is subjective and the other objective.
Under the subjective test,
[p]unishment may be constitutionally impermissible, although
not cruel or unusual in its method, 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.
41
The trial court recounted various factors it considered before sentencing petitioner
Goodman, including his chronic unemployment; his denial of any responsibility for the
crime; his criminal history, including a prior burglary conviction in Fayette County, West
Virginia; his degree of culpability because the evidence demonstrated that he and his brother
Kentrell G. were the “main players” in the crime; and an LS/CMI score that placed him in
the very high risk category to re-offend with a “99% chance of recidivating.” See State v.
Wilson, 237 W.Va. 288, __ n.8, 787 S.E.2d 559, 563 n.8 (2016) (“The LS/CMI is an
assessment system that measures an[] offender’s risk and need factors for purposes such as
sentencing.”). The trial court also observed that the involvement of firearms during the
robbery presented a high degree of danger and potential for harm to the persons in the home
at the time, including Mrs. Knight, who has a heart condition, and her five-year-old
granddaughter, who was extremely frightened.
27
Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). Conceding that his
argument fails the subjective test, Petitioner Goodman focuses his proportionality challenge
on our objective test, which provides that
“[i]n determining whether a given sentence violates the
proportionality principle found in Article III, Section 5 of the
West Virginia Constitution, consideration is given to the nature
of the offense, the legislative purpose behind the punishment, a
comparison of the punishment with what would be inflicted in
other jurisdictions, and a comparison with other offenses within
the same jurisdiction.” Syllabus point 5, Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).
Syl. Pt. 2, State v. Adams, 211 W.Va. 231, 565 S.E.2d 353 (2002). Essentially conceding the
first two factors of the objective test,42 petitioner Goodman concentrates his arguments on
42
In State v. Mann, 205 W.Va. 303, 518 S.E.2d 60 (1999), this Court considered the
nature of the offense of robbery and the legislative purpose behind sentencing for that
offense, i.e., the first two factors under the objective test for proportionality, stating as
follows:
This Court has recognized that the Legislature, by not expressly
fixing a maximum term, has impliedly authorized life
imprisonment as the maximum penalty for aggravated [first
dgree] robbery. The Legislature has chosen not to deprive trial
courts of discretion to determine the appropriate determinate
term for life or for a specific number of years above the statutory
minimum as the sentence for aggravated robbery. This
legislatively created statutory minimum/discretionary maximum
sentencing scheme for aggravated robbery serves two purposes.
First, it gives recognition to the seriousness of the offense by
imposing a minimum sentence below which a trial court may not
go. Second, the open-ended maximum sentencing discretion
allows trial courts to consider the weight of aggravating and
mitigating factors in each particular case.
(continued...)
28
the third and forth factors: a comparison of the punishment with what would be imposed in
other jurisdictions and a comparison with other offenses within this jurisdiction.43 We
readily dispose of these factors by relying upon our recent decision affirming co-defendant
Radee Hill’s sentence of fifty years incarceration for his first degree robbery conviction.44
In addressing Hill’s challenge, we found his sentence to be proportional to the
crime committed under the objective test, stating as follows:
In comparing the length of petitioner’s sentence with
what would be inflicted in other jurisdictions, this Court has
previously recognized that other jurisdictions permit long prison
42
(...continued)
Mann, 205 W.Va. at 315-16, 518 S.E.2d at 72-73 (internal citations and footnote omitted).
43
Petitioner Goodman states that during his sentencing hearing, he reminded the trial
court that the maximum penalty for second degree murder is forty years, which he offers in
support of having raised the issue of proportionality below. See W.Va. Code § 61-2-3 (2014)
(“Murder of the second degree shall be punished by a definite term of imprisonment in the
penitentiary which is not less than ten nor more than forty years.”). Goodman argues that,
at a minimum, his case should be remanded for re-sentencing because the trial court did not
make findings regarding proportionality. Although Goodman relies upon Crawford v.
Ballard, No. 11-0783, 2011 WL 8193068 (W.Va. Nov. 28, 2011) (memorandum decision),
for his argument, that case involved the circuit court’s denial of a petition for a writ of habeas
corpus, which raised proportionality in sentencing as one of the bases for habeas relief. In
short, even if we were to assume that Goodman adequately raised the issue of proportionality
below, our discussion in Crawford would not require us to remand this case for the purpose
of the trial court making findings regarding proportionality.
44
As indicated previously, petitioners Goodman and Gibbs, as well as co-defendant
Hill, each received the same sentences for their robbery convictions.
29
sentences for first-degree robbery. See id.45 at 235, 565 S.E.2d
at 357 (citing State v. Boag, 453 P.2d 508 (Ariz. 1969)
(imposing seventy-five to ninety-nine-year sentence); State v.
Victorian, 332 So. 2d 220 (La. 1976) (imposing forty-five-year
sentence); State v. Hoskins, 522 So. 2d 1235 (La. Ct. App. 1988)
(imposing ninety-nine-year sentence); People v. Murph, 463
N.W.2d 156 (Mich. Ct. App. 1990) (imposing two forty-six-year
sentences); State v. Morris, 661 S.W.2d 84 (Mo. Ct. App. 1983)
(imposing life sentence); Robinson v. State, 743 P.2d 1088
(Okla. Crim. App. 1987) (imposing 100-year sentence)).46
45
State v. Adams, 211 W.Va. 231, 565 S.E.2d 353 (2002).
46
In State ex rel. Ballard v. Painter, 213 W.Va. 290, 582 S.E.2d 737 (2003), this Court
addressed the defendant’s claim that his sentence was disproportionate to his crime. In
applying the objective test, we stated, in part, as follows:
(B) Comparing sentences. Mr. Ballard concedes that the
sentence imposed [fifty years imprisonment for aiding and
abetting armed robbery] is not disproportionate with sentences
imposed in other jurisdictions . . . . See, e.g., State v. Boag, 104
Ariz. 362, 453 P.2d 508 (1969) (75 to 99 year sentence); People
v. Isitt, 55 Cal. App. 3d 23, 127 Cal. Rptr. 279 (1976) (life
sentence); State v. Hoskins, 522 So. 2d 1235 (La. Ct. App. 1988)
(99 year sentence); People v. Murph, 185 Mich.App. 476, 463
N.W.2d 156 (1990) (two 40 to 60 year sentences); State v.
Morris, 661 S.W.2d 84 (Mo. Ct. App. 1983) (life sentence);
Robinson v. State, 743 P.2d 1088 (Okla. Crim. App. 1987) (100
year sentence).
Ballard, 213 W.Va. at 294, 582 S.E.2d at 741. Additional examples of sentences imposed
in other jurisdictions were cited in State v. Glover, 177 W.Va. 650, 355 S.E.2d 631 (1987):
Robbery has always been regarded as a crime of the
gravest character. State v. Newman, 108 W.Va. 642, 646, 152
S.E. 195, 196 (1930). Other jurisdictions agree. See, e.g., . . .
State v. Victorian, 332 So. 2d 220, 221-22 (La. 1976) (45 years
without possibility of parole is not “cruel, excessive or unusual
punishment” for armed robbery, under statute authorizing
(continued...)
30
Hill, 2016 WL 6678997, *2-3 (footnotes added). Regarding Hill’s sentence in comparison
with other offenses within this jurisdiction, we stated:
Lastly, comparing the punishment with other offenses
within this jurisdiction, this Court has rejected proportionality
challenges in many cases involving first-degree robbery, even
where the sentences imposed have exceeded petitioner’s.
Adams, 211 W.Va. at 235, 565 S.E.2d at 357 (citing State v.
Williams, 205 W.Va. 552, 519 S.E.2d 835 (1999) (upholding
fifty-year sentence for attempted aggravated robbery); State v.
Phillips, 199 W.Va. 507, 485 S.E.2d 676 (1997) (upholding
140-year sentence for two counts of aggravated robbery and one
count of kidnapping); State v. Ross, 184 W.Va. 579, 402 S.E.2d
248 (1990) (upholding 100-year sentence for attempted
aggravated robbery); State v. Spence, 182 W.Va. 472, 388
S.E.2d 498 (1989) (upholding sixty-year sentence for aggravated
robbery); State v. England, 180 W.Va. 342, 376 S.E.2d 548
(1988) (upholding life sentence for aggravated robbery); State
v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987) (upholding
sixty-year sentence for aggravated robbery); State v. Glover, 177
W.Va. 650, 355 S.E.2d 631 (1987) (upholding seventy-five-year
sentence for aggravated robbery)).47
46
(...continued)
between 5 and 99 years without possibility of parole); Garrett
v. State, 486 S.W.2d 272, 274 (Mo. 1972) (99 years for first
degree robbery, with a prior felony, is not excessive
punishment).
Glover, 177 W.Va. at 659, 355 S.E.2d at 640.
47
See also State v. Richardson, No.14-0382, 2016 WL 5030312 (W.Va. Sept. 16,
2016) (memorandum decision) (addressing proportionality challenge and finding no error in
100-year sentence for first degree robbery); State v. Chapman, No. 14-0442, 2015 WL
2382559 (W.Va. May 18, 2015) (memorandum decision) (finding eighty-year sentence for
first degree robbery was not disproportionate to crime).
31
In Adams, this Court upheld a ninety-year sentence for
first-degree robbery. 211 W.Va. 231, 565 S.E.2d 353. That
sentence was upheld in spite of the fact that neither a deadly
weapon nor extreme violence was used during the commission
of the crime. Id. at 232, 565 S.E.2d at 354. In the instant case,
petitioner’s sentence was only slightly more than half of Mr.
Adams’s, and petitioner used a gun in the commission of this
crime to intimidate and scare vulnerable victims. Thus, we find
that petitioner’s sentence is not disproportionate to the crime
committed.
Hill, 2016 WL 6678997, *2-3 (footnote added). For the same reasons we articulated in co­
defendant Hill’s appeal, we find petitioner Goodman’s sentence of fifty years incarceration
for first degree robbery is not disproportionate to the crime committed.
IV. Conclusion
For the reasons stated above, the convictions and sentencing of petitioners
Antwyn D. Gibbs (Case No. 16-0044) and Kevin Goodman, Jr. (Case No. 15-1193) are
hereby affirmed.
Affirmed.
32