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Summaries of all January 2007 TOPICS
opinions posted - corrected Civil
Criminal
Summaries of all 62 opinions Family
issued in the January 2007 term of OPINION LINKS
court are now posted. The Opinions Home
summaries are in three groups. Recent Opinions
Issue 91, posted on March 2, 2007, Current Term List
contains summaries of the first ten Sept 2005 List
opinions of the term. Issue #92, January 2005 List
posted August 22, contains Sept 2004 List
summaries of 45 opinions. Finally, Jan 2004 List
Issue #93, posted August 28, Sept 2003 List
contains seven opinion summaries Jan 2003 List
that were inadvertently omitted Jan 2002 Term Summaries
from Issue #92. Sept 2002 Term
Summaries
The opinion summaries are also Subscribe to E-Mail
available on three general category Opinion Summary List
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September 11th, with a Motion
Docket and Argument Docket. COURT RULES
Most of the dockets and briefs are Links to Rules
now posted on the September Links to Forms
calendar page. CONFERENCE and
ARGUMENT
[Permanent Link] Google It! Calendar
Live Webcast
CRIMINAL :: Improper comment LINKS TO LAST 50
on defendant's silence was plain POSTS in this
error CATEGORY
STATE v. BRIAN DANIEL Summaries of all January
MURRAY, No. 33193 (Per 2007 opinions posted -
Curiam)(Davis, C.J., dissenting) corrected
(Maynard, J., dissenting) CRIMINAL :: Improper
(Benjamin, J., concurring)(June 5, comment on defendant's
2007). Defendant appealed silence was plain error
following jury conviction in the CRIMINAL,
Circuit Court of Morgan County ATTORNEYS :: Conflict
for the offenses of failing to render of interest and ineffective
aid at an automobile accident assistance of counsel
involving death and failure to CRIMINAL, EVIDENCE
maintain control of his vehicle. :: Late disclosure of
Applying plain error analysis to rebuttal witness merited
conclude that the prosecution mistrial
improperly commented on the CRIMINAL, EVIDENCE
defendant's failure to testify. :: Failure to provide pre-
trial notice of 404(b)
[Permanent Link] Google It! material, dismissed
charges as 404(b) material
CRIMINAL, EVIDENCE
:: Trial court improperly
Wednesday, August 22, 2007 questioned witnesses
CRIMINAL, EVIDENCE
:: Imputed knowledge of
CRIMINAL, ATTORNEYS :: Brady material
Conflict of interest and ineffective CRIMINAL, MOTOR
assistance of counsel VEHICLES :: Driving
privilege suspension
STATE EX REL. CARROLL applies to operating an
EUGENE HUMPHRIES v. ATV
THOMAS MCBRIDE, WARDEN, CRIMINAL,
No. 33103 (Per Curiam)(April 19, PROCEDURE :: Moot
2007). Petitioner appealed an order because sentence
of the Circuit Court of Greenbrier discharged
County that denied his petition for CRIMINAL,
a writ of habeas corpus. Petitioner PROCEDURE ::
was convicted by a jury on July 30, Compelled testimony
1999, of one count of felony when witness is to invoke
offense of accessory before the fact Fifth Amendment
CRIMINAL :: Sentence
to murder of the first degree, and properly corrected
one count of the felony offense of CRIMINAL :: Probation
conspiracy to commit murder. revocation affirmed
Reversing and remanding for a new CRIMINAL :: Actual or
trial, in light of the conflict of constructive possession of
interest of defense counsel and drug-making materials or
ineffective assistance of counsel equipment
with regard to several issues CRIMINAL :: Jury
throughout trial, as well as a Sixth instruction on attempt
Amendment violation at trial. properly refused
CRIMINAL :: Child
[Permanent Link] Google It! neglect resulting in death
conviction affirmed
CRIMINAL, EVIDENCE :: Late CRIMINAL :: Voluntary
disclosure of rebuttal witness manslaughter conviction
merited mistrial affirmed
CRIMINAL :: Incorrect
STATE v. JULIAN R. SMITH, jury instruction on element
No. 33171 (Per Curiam)(Maynard, of intent
J., dissenting)(Albright, J., Opinion summary Issue
concurring)(June 13, 2007). #92
Reversing conviction of the offense First opinions of January
of aggravated robbery following a term summarized
jury trial in the Circuit Court of CRIMINAL,
Kanawha County. Holding that a EVIDENCE,
witness, disclosed after the CONSTITUTIONAL ::
defendant testified, who recanted Warrantless surveillance in
an undisclosed pretrial statement the home violates West
that supported the defendant's Virginia Constitution
defense of alibi, was prejudicial. CRIMINAL :: No speedy
Holding that "manifest necessity trial violation
for a mistrial is demonstrated in the CRIMINAL :: Negligent
record in the following respects: homicide and violations of
(1) the State failed to provide traffic statutes
notice of the rebuttal witness CRIMINAL :: Witness as
whose testimony was elicited to bailiff didnít violate due
contradict Smith's alibi defense; (2) process, judge questioning
the State advised Smith that it was witness wasn't plain error
unaware of any evidence favorable CRIMINAL ::
to Smith and, further, failed to Conditional immunity
disclose to Smith the pretrial offer was not plea
statement of the rebuttal witness agreement
which initially had supported Final September opinions
Smith's alibi defense; and (3) summarized, three cases
although stating to the Circuit
held over
Court that no formal plea CRIMINAL :: Prompt
agreement had been made with the presentment rule violated,
rebuttal witness, the State failed to statements suppressed
disclose that the witness had been
offered the possibility of entering a
plea to unaggravated robbery in
exchange for his truthful testimony View this page as XML
at trial." [RSS 0.92]:
.
[Permanent Link] Google It!
CRIMINAL, EVIDENCE ::
Failure to provide pre-trial notice This page is based upon a
of 404(b) material, dismissed modified version of the
charges as 404(b) material jenett.radio.simplicity.1.3R
theme for Radio Userland.
STATE v. JEREMIAH DAVID
MONGOLD, No. 33222 (DAVIS,
C.J.)(Starcher, J., concurring in
part and dissenting in part)(June 6,
2007). Affirming a conviction for
death of a child by parent, guardian
or custodian by child abuse,
obtained following a jury trial in
the Circuit Court of Hampshire
County. Holding that the trial court
did not err in admitting related
incident evidence that was not
disclosed prior to trial, in light of
the fact that the evidence was used
to rebut defendant's character
testimony. Setting forth a good
cause standard for failure to
disclose in syllabus point 3: "Rule
404(b) of the West Virginia Rules
of Evidence requires the
prosecution in a criminal case to
disclose evidence of other crimes,
wrongs or acts prior to trial if such
disclosure has been requested by
the accused; however, upon
reasonable notice such evidence
may be disclosed for the first time
during trial upon a showing of
good cause for failure to provide
the requested pretrial notice."
Further holding in syllabus point 4
that dismissal or acquittal of a
charge does not prohibit its use as
404(b) material.
CRIMINAL, EVIDENCE :: Trial

court improperly questioned
witnesses
STATE v. GERALD
THOMPSON, JR., No. 33097
(STARCHER, J.)(May 15, 2007).
Defendant appealed a Clay County
jury conviction for "attempting to
operate or operating a clandestine
drug lab." Reversing the conviction
in light of the prejudice created by
the repeated questioning of
witnesses by the trial judge. Setting
forth standards for evaluating
whether a judge's partiality became
a factor in the determination of the
jury so that the defendant did not
receive a fair trial.
Imputed knowledge of Brady
material
STATE v. DENVER A.
YOUNGBLOOD, JR., No. 31765
(DAVIS, C.J.)(Maynard, J.,
dissenting)(Starcher, J.,
concurring)(Benjamin, J.,
dissenting)(May 10, 2007). On
remand from the Supreme Court of
the United States, reversing a jury
conviction obtained in the Circuit
Court of Morgan County. Holding
that a prosecutor's duty to disclose
Brady material includes disclosure
of evidence that is known only to a
police investigator and not to the
prosecutor. Further clarifying the
three components of a
constitutional due process violation
under Brady, and holding that the
failure to disclose constituted a due
process violation. Remanded for
new trial.
CRIMINAL, MOTOR
VEHICLES :: Driving privilege
suspension applies to operating an
ATV
STATE ex rel. SERGENT v.

NIBERT, et al., No. 33327
(ALBRIGHT, J.)(June 6, 2007).
Granting a writ of prohibition
sought by the prosecuting attorney
of Roane County to prevent
dismissal of an indictment for
driving with a revoked license.
Clarifying that administrative
license suspension or revocation
involves loss of both the license
and privilege to operate a motor
vehicle on public highways, and
holding, in syllabus point 3 that
"An individual who operates an all-
terrain vehicle on a public highway
of this state may be prosecuted for
committing the offense of driving
while suspended or revoked under
the provisions of West Virginia
Code 17B-4-3 (2004)."
CRIMINAL, PROCEDURE ::
Moot because sentence discharged
STATE v. BRYAN ANTHONY
MERRITT,, No. 33105 (Per
Curiam)(April 19, 2007). Merritt
appealed an order of the Circuit
Court of Wood County that denied
his petition for modification of
sentence. Dismissed as moot in
light of discharge of the 45-day
sentence, and the absence of
sufficient collateral consequences
or great public interest that would
justify relief. The underlying issue
[^] whether the magistrate and
circuit courts erred in not granting
Merritt a stay [^] is of unique
concern to Merritt.
Compelled testimony when witness
is to invoke Fifth Amendment
STATE v. ANTHONY RAY

WHITT, No. 33039 (ALBRIGHT,
J.)(Maynard, J., dissenting)
(Benjamin, J., concurring)(April 6,
2007). Anthony Ray Whitt
appealed his McDowell County
conviction for second degree
murder. Holding that the circuit
court erred by refusing to permit a
co-defendant to be called to the
stand who indicated her intention,
through counsel, to invoke the Fifth
Amendment if called to testify.
Setting forth guidelines for
establishing a violation of the right
to compulsory process afforded
criminal defendants in article III,
section 14 of the West Virginia
Constitution, and further setting
forth guidelines regarding the
exception to the general rule
against not allowing a witness to
take the stand solely to invoke the
Fifth Amendment privilege against
self-incrimination, providing that
the circuit court has discretion to
permit such compulsory process in
certain circumstances. Remanded
for a new trial.
CRIMINAL :: Sentence properly

corrected
STATE ex rel. CORNELL F.

DAYE v. McBRIDE, Warden,
Nos. 33100 & 33101
(STARCHER, J.)(June 27, 2007).
Appellant sought review of an
order of the Circuit Court of
Raleigh County in a habeas corpus
proceeding, arguing that the circuit
court improperly corrected a
sentence in order to permit
enhancement. Holding, in syllabus
point 5, that: "When any person is
convicted of an offense under the
Uniform Controlled Substances
Act (W.Va Code, Chapter 60A)
and is subject to confinement in the
state correctional facility therefor
and it is further determined, as
provided in W.Va. Code, 61-11-19
(1943), that such person has been
before convicted in the United
States of a crime or crimes,
including crimes under the
Uniform Controlled Substances
Act (W.Va. Code, Chapter 60A),
punishable by confinement in a
penitentiary, the court shall
sentence the person to confinement
in the state correctional facility
pursuant to the provisions of W.Va.
Code, 61-11-18 (2000),
notwithstanding the second or
subsequent offense provisions of
W.Va. Code, 60A-4-408 (1971)."
Holding that the circuit court
properly corrected the illegal
sentence originally imposed, and
rejecting the appellant's argument
that the enhancement provisions of
the Uniform Controlled Substances
Act should take precedence over
the general habitual criminal
offender statue. Remanded for
appointment of counsel and further
proceedings regarding remaining
assignments of error.
CRIMINAL :: Probation
revocation affirmed
STATE v. JAMES K. HOSBY,

No. 33247 (Per Curiam)(June 7,
2007). Affirming an order of the
Circuit Court of Jefferson County
that revoked probation and ordered
appellant to serve the remainder of
a one-year jail sentence received
after a guilty plea to the
misdemeanor offense of failure to
pay child support. Holding that the
circuit court properly determined
that the appellant failed to follow
the conditions of probation.
CRIMINAL :: Actual or
constructive possession of drug-
making materials or equipment
STATE v. MICHAEL
CUMMINGS, No. 33223
(BENJAMIN, J.)(Starcher, J.,
concurring)(Maynard, J.,
dissenting)(Albright, J.,
concurring)(June 6, 2007).
Reversing felony convictions for
attempting to operate a clandestine
drug lab and conspiracy to attempt
to operate a clandestine drug lab
the Circuit Court of Roane County.
Rejecting the State's argument that
both intent and possession could be
inferred from the circumstances,
which involved evidence that the
appellant was operating a vehicle,
which was not owned by him, and
which contained cold medicine and
matches in the rear passenger area.
Holding, in syllabus point 6, that:
"In order to sustain a conviction for
violation of W. Va. Code 60A-4-
411 (2003), by assembling any
chemicals or equipment for the
purpose of manufacturing
methamphetamine, the State must
prove beyond a reasonable doubt
that the defendant had actual or
constructive possession over the
chemicals and/or equipment. In
order to establish constructive
possession where the defendant is
present in a vehicle wherein such
materials are found, the State must
prove beyond a reasonable doubt
that the defendant had knowledge
of the presence of the chemicals
and/or equipment to be used for the
purposes of manufacturing
methamphetamine and that such
items were subject to the
defendant's dominion and control."
CRIMINAL :: Jury instruction on

attempt properly refused
STATE v. ERIC DELBERT JETT,

No. 33198 (Per Curiam)(May 17,
2007). Defendant appealed a
Kanawha County Circuit Court
conviction and sentence for
operating or attempting to operate a
clandestine drug laboratory under
West Virginia Code 60A-4-411.
Affirming the conviction, and
holding that the circuit court
properly refused to give
defendant's requested jury
instruction defining the term
"attempt."
CRIMINAL :: Child neglect

resulting in death conviction
affirmed
STATE v. ADONIS RAY

THOMPSON, No. 33206 (Per
Curiam)(May 11, 2007). Defendant
appealed Circuit Court of Kanawha
County jury conviction for child
neglect causing death, after his
two-year old died from
hyperthermia after being left in an
infant car seat in defendant's car
over four hours on a day when
outside temperatures reached in
excess of eighty degrees. Holding
that it was not plain error for the
trial court not to instruct the jury on
the defense of unconsciousness or
automatism, and further holding
that the evidence was sufficient to
support the conviction.
CRIMINAL :: Voluntary
manslaughter conviction affirmed
STATE v. VALERIE
WHITTAKER, No. 33037 (Per
Curiam)(Maynard, J., concurring)
(Starcher, J., dissenting)(Albright,
J., dissenting)(April 5, 2007).
Defendant appealed her Mercer
County jury conviction for
voluntary manslaughter. Holding
that the circuit court properly
refused to grant a judgment of
acquittal based upon self-defense;
that the circuit court properly
limited the testimony of certain
defense witnesses; and that the
circuit court properly handled other
evidentiary matters, including
admitting a statement made by the
defendant.
CRIMINAL :: Incorrect jury

instruction on element of intent
STATE v. WADE C. DAVIS, No.

33191 (Per Curiam)(Maynard, J.,
dissenting)(Benjamin, J.,
dissenting)(April 5, 2007).
Defendant appealed Circuit Court
of Kanawha County jury
conviction and sentence for second
degree murder. Reversing and
remanding for new trial, and
holding that the circuit court erred
in failing to properly instruct the
jury that "intent" is an element of
second degree murder, after the
jury specifically inquired as to the
difference between second degree
murder and involuntary
manslaughter.
Opinion summary Issue #92

Today I'll be posting the contents
of Issue #92 of the opinion
summary service. The most recent
issue covers the last 45 opinions
issued in the January 2007 term of
court.
Friday, March 2, 2007
First opinions of January term

summarized
Summaries of the first ten opinions

issued this term were posted today,
and will be e-mailed to subscribers
as Issue #91. The opinions include
State v. Mullens, held over from
the prior term of court. The next
argument docket will be held
March 13th< of College WVU the
at> [Permanent Link] Google It!
CRIMINAL, EVIDENCE,
CONSTITUTIONAL ::
Warrantless surveillance in the
home violates West Virginia
Constitution
STATE v. EDDIE MULLENS, No.

33073 (DAVIS, C.J.)(Starcher, J.,
concurring)(Maynard, J.,
dissenting)(Albright, J.,
concurring)(Benjamin, J.,
dissenting)(February 28, 2007).
Reversing an order of the Circuit
Court of Boone County that denied
a motion to suppress, where the
defendant entered a conditional
guilty plea and preserved the issue
for appeal. After extensive review
of state and federal authorities,
holding that the West Virginia
Constitution affords greater
protection than the Fourth
Amendment of the United States
Constitution from warrantless
electronic surveillance in the home.
Holding, in syllabus point 2 that:
"It is a violation of West Virginia
Constitution article III, section 6
for the police to invade the privacy
and sanctity of a person's home by
employing an informant to
surreptitiously use an electronic
surveillance device to record
matters occurring in that person's
home without first obtaining a duly
authorized court order pursuant to
W. Va. Code 62-1D-11 (1987)
(Repl. Vol. 2005). To the extent
that STATE v. THOMPSON, 176
W. Va. 300, 342 S.E.2d 268
(1986), holds differently, it is
overruled." Further holding, in
syllabus point 4: "Article III,
section 6 of the West Virginia
Constitution prohibits the police
from sending an informant into the
home of another person under the
auspices of the one- party consent
to electronic surveillance
provisions of W. Va. Code 62-1D-
3(b)(2) (1987) (Repl. Vol. 2005)
where the police have not obtained
prior authorization to do so
pursuant to W. Va. Code § 62-1D-
11 (1987) (Repl. Vol. 2005)."
CRIMINAL :: No speedy trial

violation
SER KEITH O'DELL MCCOURT
v. HON. JACK ALSOP, JUDGE,
No. 33213 (Per Curiam)(Albright,
J., concurring in part and dissenting
in part)(February 22, 2007).
Petitioner sought to prohibit
prosecution of a 1994 indictment,
where petitioner was not arrested
until 2006. Denying the writ, and
holding that there was no speedy
trial violation where the defendant
never appeared for arraignment,
where the State consistently
obtained bench warrants and where
the record fails to show any
evidence that the State was aware
of the defendant's whereabouts.
CRIMINAL :: Negligent homicide

and violations of traffic statutes
STATE v. MARJORIE VIRGINIA

GREEN, No. 33200 (ALBRIGHT,
J.)(February 21, 2007). Defendant
appealed her jury convictions in the
Circuit Court of Hardy County on
two counts of negligent homicide,
arising from a vehicle accident that
resulted in two deaths. Reversing
the convictions and clarifying the
standard set forth in STATE v.
VOLLMER, 163 W.Va. 711, 259
S.E.2d 837 (1979), and holding, in
syllabus point 5 that: "A conviction
for negligent homicide must not be
premised solely upon the violation
of a traffic statute unless the
underlying act which constitutes
the violation or accompanying
circumstances evidence a reckless
disregard for the safety of others,
characterized by negligence so
gross, wanton, and culpable as to
show a reckless disregard for
human life."
CRIMINAL :: Witness as bailiff

didnít violate due process, judge
questioning witness wasn't plain
error
STATE v. ALLEN D. WAUGH,

No. 32773 (Per Curiam)(February
16, 2007). Petitioner appealed a
murder upon a jury trial in the
Circuit Court of Mason County.
Affirming the conviction, and
holding that under the
circumstances of the case, a bailiff
who also acted as a prosecution
witness did not violate due process,
because the deputy's testimony was
not that of a key witness at trial.
Further concluding that questioning
of a witness by the trial judge
exceeded the scope of permissible
questioning authorized by Rule
614(b), but did not rise to the level
of plain error.
CRIMINAL :: Conditional
immunity offer was not plea
agreement
STATE ex rel. STEPHANIE SUE

GIBSON v. HON. JOHN S.
HRKO, JUDGE, et al., No. 33203
(Per Curiam)(February 15, 2007).
Denying a writ of prohibition
sought by a criminal defendant to
compel the circuit court of
Wyoming County to accept a plea
agreement. After reviewing the
circumstances of the case, holding
that no plea agreement was ever
reached, and that the circuit court
nevertheless had discretion to reject
any agreement that may have been
reached, and that if an agreement
had been reached, the conditional
offer of immunity discussed by the
parties was never brought to
fruition.
Friday, December 15, 2006
Final September opinions

summarized, three cases held over
Issue 90 of the Opinion Summary

service is posted, covering the final
24 opinions issued for cases argued
in the September 2006 term. The
opinions in the following three
cases argued this term will be held
over until next term, when the
opinions will issue in due course.
The cases are listed below, along
with a link to the day the case was
argued, where briefs are available.
 STATE v. MULLENS, No.

33073 (constitutionality of
warrantless audio and video
recordings obtained by
undercover police
informant while in
defendant's home)
 HAINES v. KIMBLE, No.
32844 (appeal from refusal
to remove executor of an
estate, argued on rehearing)
 JACKSON v. PUTNMAN
COUNTY BD. of ED., et
al., No. 33038 (plaintiff
appeals summary judgment
for defendant where
plaintiff asserts that the
school board was negligent
in failing to provide
transportation for her son to
an off-campus school event;
her son was killed in an
accident while riding in a
private vehicle on the way
back from the event)
CRIMINAL :: Prompt
presentment rule violated,
statements suppressed
STATE v. RONNIE ALLEN

RUSH, No. 33035 (Per Curiam)
(Maynard, J., dissenting)
(Benjamin, J., concurring)
(November 30, 2006). Defendant
appealed the transfer of his case to
adult status by the Circuit Court of
Calhoun County and his ensuing
convictions on two counts of
manslaughter and one count each
of first degree robbery, burglary,
and conspiracy to commit burglary.
Granting mixed relief, and
affirming the circuit court's transfer
decision. Reversing the circuit
court's decision with regard to the
admission of certain statements
obtained. Holding that the totality
of the circumstances, in light of the
appellant's juvenile status and
mental impairment, demonstrate
that the significant period of delay
in taking the appellant before a
judicial officer was for the
improper purpose of eliciting a
confession. Remanding for new
trial.
CRIMINAL :: Post-arrest
statements properly admitted
STATE OF W. VA. v. ROGER

ERIC JONES, No. 33072 (Per
Curiam)(November 29, 2006).
Petitioner was convicted for First
Degree Murder and sentenced by
the Circuit Court of Roane County
to life in prison with no possibility
of parole. Affirming the conviction
and sentence, and rejecting
argument that because questioning
pertained to more than one crime
but only one set of Miranda
warnings were given, the post-
arrest statements were improperly
admitted. Further holding that no
evidence of coercion was
presented.
CRIMINAL :: Exigent
circumstances is jury question; one
act is one count of brandishing
STATE v. MICHAEL LEE

KENDALL, No. 32689 (Per
Curiam)(Starcher, J., dissenting)
(November 29, 2006). Petitioner
appealed his convictions upon jury
trial in the Circuit Court of Gilmer
County for burglary and for three
counts of brandishing a firearm.
Reversing, and holding that the
jury, rather than the circuit court,
should have decided the question
of whether exigent circumstances
existed for the defendant, a city
police officer, to enter the home.
Further holding that, despite the
presence of multiple witnesses, one
act of brandishing should produce a
conviction for only one act of
brandishing. Remanding for new
trial.
CRIMINAL :: Faulty indictment

for robbery
STATE v. ERNEST J. JOHNSON,

No. 32978 (Per Curiam)(Starcher,
J., concurring)(November 29,
2006). Ernest J. Johnson appealed
an order of the Circuit Court of
Cabell County entered upon
robbery and sentence as an habitual
offender to life with mercy.
Vacating the robbery conviction, in
light of the fact that the defendant
was wrongly charged with first
degree robbery, where no firearm
or other weapon was presented.
Holding that the lack of objection
to the indictment did not act as a
waiver, because the indictment was
so defective as not to charge an
offense.
CRIMINAL, ATTORNEYS ::
Custodial interrogation, requests
for counsel, presentence credits
STATE v. KEVIN RAY

MIDDLETON, No. 33048
(DAVIS, C.J.)(Starcher, J.,
dissenting)(Albright, J., dissenting)
(Maynard, J., concurring)
(November 29, 2006). Kevin Ray
Middleton appealed his conviction
and sentence imposed by the
Circuit Court of Kanawha County
for one count of sexual abuse by a
parent, guardian or custodian and
one count of first degree sexual
abuse. Affirming, and rejecting
arguments that statements made to
authorities were improperly
admitted. Outlining the factors to
be considered by the trial court in
determining whether a custodial
interrogation exists for purposes of
requiring MIRANDA warnings.
Also setting forth two important
holdings with regard to whether the
defendant must be informed of the
presence of counsel while being
interrogated in a noncustodial
setting. See, syllabus point 3: "A
police officer may continue to
question a suspect in a
noncustodial setting, even though
the suspect has made a request for
counsel during the interrogation, so
long as the officer's continued
questioning does not render
statements made by the suspect
involuntary." Syllabus point 4: "If,
during the course of noncustodial
interrogation of a suspect, the
police are made aware that legal
counsel has been retained for the
suspect, the police are under no
obligation to inform the suspect
that counsel has been retained."
Finally, clarifying the manner in
which presentence credits should
be applied, "against the aggregated
maximum term of the consecutive
sentences." Syllabus point 6.
Reciprocal discovery in magistrate
court jury trials
STATE OF W. VA. v. MICHAEL

DAVID DOONAN, No. 33052
(DAVIS, C.J.)(Maynard, J.,
dissenting)(December 1, 2006).
Defendant, who was convicted of
First Offense DUI by Magistrate
Court, appealed an order of the
Circuit Court of Wood County
finding that the errors he cited were
harmless, denying his appeal from
conviction and sentencing him to
serve 48 hours in jail. Reversing,
and concurring with the State's
confession of error as to
defendant's assertion that the
magistrate court erred by
precluding his expert from
testifying on the basis that the
expert was not disclosed to the
State. Holding, in syllabus point 5
that: "Until an appropriate rule is
adopted in the Rules of Criminal
Procedure for Magistrate Courts,
the provisions of Rule 16 of the
West Virginia Rules of Criminal
Procedure shall govern the
procedures and requirements for
discovery in criminal cases which
are to be heard on their merits in
magistrate courts." Although the
defendant made a request for
discovery from the State, the State
did not comply, and therefore
under the reciprocal discovery
principles in Rule 16, the defendant
was under no obligation to disclose
his expert. Therefore, the
magistrate court erred in excluding
the expert's testimony. Providing
further guidance for remand
regarding admission of an illegible
printout. Remanding for new trial.
Preservation of crime scene
STATE v. BRUSIE "DON"

LANHAM, No. 33092 (Per
Petitioner appealed an order of the
Circuit Court of Ritchie County
that denied the defendant's motion
for a new trial following a jury
conviction of felony-murder.
Petitioner was sentenced to life in
prison without the possibility of
parole. Affirming, and rejecting the
petitioner's argument that the State
improperly destroyed exculpatory
evidence when it returned the
mobile home where the shootings
took place to the family before
defense counsel could examine the
physical evidence. Holding that the
circuit court did not err, in light of
the fact that the conviction was for
felony murder, the weight of
eyewitness testimony, the 911 tape,
and other evidence presented at
trial, the absence of assertions that
any critical piece of evidence was
improperly preserved, and the
efforts made by the State to collect
all necessary evidentiary samples
before the trailer was returned.
CRIMINAL, EVIDENCE,
JURY :: Statements by juror as
extrinsic evidence
STATE v. TONY FRANKLIN

DAUGHERTY, SR., No. 33075
(Per Curiam)(Starcher, J.,
concurring in part and dissenting in
part)(November 29, 2006).
Petitioner appealed an order of the
Circuit Court of Summers County
denying a Motion for a New Trial
after conviction, following a jury
trial, on four counts of sexual abuse
by a parent, guardian or custodian.
Affirming, and holding that
statements by a juror about fear of
possible retaliation related to the
mental process of the jury and
therefore could not form the basis
for a new trial under Rule of
Evidence 606(b).
EVIDENCE, HABEAS
CORPUS :: Testimony by a judge
FREDERICO HATCHER v.
THOMAS McBRIDE, WARDEN,
No. 32977 (STARCHER, J.)
(November 21, 2006). Frederico
Hatcher appealed an order of the
Circuit Court of Cabell County that
denied his petition for post-
conviction habeas corpus. He was
previously convicted of felony
murder without a recommendation
of mercy. Holding that the
assertion of evidentiary error with
regard to admission of character
testimony by a circuit judge was
not cognizable in a habeas corpus
proceeding. Holding further that
testimony by judges should be
discouraged, and setting forth
guidelines to be followed in the
future, including an appropriate
balancing test, cautionary
instructions, and other limitations.
HABEAS CORPUS :: Appeal

involving parolee dismissed as
moot
STATE EX REL. ROBERT L.

MCCABE v. EVELYN SEIFERT,
WARDEN, No. 32976 (Per
Curiam)(Albright, J., dissenting)
(Starcher, J., disqualified)
(Mazzone, Judge, by temporary
assignment)(November 29, 2006).
Petitioner, who is now released on
parole, appealed an order of the
Circuit Court of Monongalia
County denying his petition for a
writ of habeas corpus. Holding that
the appeal must be dismissed as
moot, where limited issues remain,
where the petitioner is on parole
and does not make a substantive
challenge to the conditions of his
parole, with leave to file a motion
in circuit court for correction of
sentence.
Tuesday, November 21, 2006
CRIMINAL, PROCEDURE :: Jail

clothing in penalty phase
STATE OF W. VA. v. JEFFREY

L. FINLEY, No. 32961
(ALBRIGHT, J.)(Davis, C.J. and
Maynard, J., dissenting)(Benjamin,
J., concurring)(November 16,
2006). Jeffrey L. Finley appealed
his conviction following a jury trial
in the Circuit Court of Cabell
County for first degree murder
without a recommendation of
mercy and two counts of second
degree sexual assault. Granting
mixed relief and affirming the
conviction, but reversing the
judgment at the penalty phase.
Holding that it was a denial of due
process to compel the defendant to
appear in prison clothing at the
penalty phase of a bifurcated
murder trial, and setting forth
guidelines for circuit courts to
follow in the future.
CRIMINAL, HABEAS
CORPUS :: Various errors rejected
SER JOHN MCLAURIN v.

THOMAS MCBRIDE, WARDEN,
No. 32983 (Per Curiam)(November
15, 2006). John McLaurin appealed
an order of the Circuit Court of
Kanawha County that denied of a
petition for writ of habeas corpus.
Affirming, and rejecting various
assignments of error.
Friday, October 27, 2006
CRIMINAL, PROCEDURE,
JUVENILES :: Indictment and jury
challenges waived
STATE v. TOMMY Y., Jr., No.

33055 (DAVIS, C.J.)(Starcher, J.,
concurring)(October 27, 2006).
Petitioner, T. Y., Jr., a juvenile,
appealed an order of the Circuit
Court of Clay County upon
convictions for the offense of
assault on a school employee and
brandishing. Affirming the
convictions, and holding that the
Rules of Criminal Procedure are
applicable to juvenile delinquency
proceedings, to the extent not
inconsistent with applicable
statutes. Also holding that
challenges to charging instruments
must be made prior to trial or be
waived, absent jurisdictional
grounds, and that failure to
challenge lack of venue acted as a
waiver in this case. Finally holding,
in syllabus point 5, that: "When a
defendant has knowledge of
grounds or reason for a challenge
for cause, but fails to challenge a
prospective juror for cause or fails
to timely assert such a challenge
prior to the jury being sworn, the
defendant may not raise the issue
of a trial court[base ']s failure to
strike the juror for cause on direct
appeal."
Thursday, October 5, 2006
CRIMINAL :: Statutory terms

clarified
STATE v. NORMA JEAN

SAUNDERS, No. 33034
(ALBRIGHT, J.)(October 5, 2006).
Norma Jean Saunders appealed her
conviction upon conditional guilty
plea in the Circuit Court of
Kanawha County of one count of a
felony violation of the Solid Waste
Management Act, W.Va. Code 22-
15-15(b)(4). She operated a landfill
and received a cease and desist
order for various violations from
the West Virginia Department of
Environmental Protection. Her
conviction arose out of her failure
to abide by the terms of the order.
She was sentenced to six months
probation and ordered to pay a fine.
On appeal she argued that the
indictment failed to allege an
essential element of felony offense
in that the indictment charged her
with violating an enhancement
statute that requires a prerequisite
conviction before a felony can be
imposed. Holding, in syllabus point
1, that: "While a prior conviction
under the Solid Waste Management
Act can be grounds for a felony
conviction under West Virginia
Code 22-15-15(b)(4) (2002), a
prior conviction is not an essential
element of the offense because the
Legislature expressly framed the
elements of the offense in the
disjunctive." Finally holding in
syllabus point 2, that: "Within the
meaning of West Virginia Code
22-15-15 (2002), the term
'willfully' connotes conduct that
was intentionally engaged in that
had as its consequences the
violation of the law, while the term
'knowingly' requires the additional
element of demonstrating that the
actor was consciously aware when
engaging in the illegal conduct that
such conduct was in violation of
the law."

Tuesday, September 26, 2006
January 2006 Term Opinion

Summaries posted
Today I posted summaries of all

seventy opinions issued by the
Court during the January 2006 term
of court. No opinions have been
issued thus far in the current term.
CRIMINAL :: Detainers and

probation revocation
STATE v. GARY INSCORE, No.

32855 (STARCHER, J.)(June 26,
2006). Affirming an order of the
Circuit Court of Mercer County
that revoked probation and
imposed the original sentence,
where the revocation hearing took
place after the defendant's original
probation term had expired,
because the defendant had been
incarcerated in Virginia on other
charges. Holding that neither the
Interstate Agreement on Detainers
nor the three-term rule contained in
W. Va. Code 62-3-21 have any
application to probation revocation
proceedings. Setting forth
guidelines for the exercise of
reasonable diligence in such
circumstances, including issuance
of bench warrants and bringing the
defendant before the West Virginia
court for a probation revocation
hearing within a reasonable time
following conclusion of sentence in
another state.
Statements from unavailable
witnesses
STATE v. JAMES ALLEN

MECHLING, No. 32873
(STARCHER, J.)(Maynard, J.,
concurring in part and dissenting in
part)(Benjamin, J., concurring)
(June 30, 2006). Reversing a
misdemeanor conviction for
domestic battery. The conviction
was obtained following a bench
trial at which the victim did not
testify, but the officer who
responded to the scene testified to
statements the victim had made to
him. In light of recent United
States Supreme Court decisions
holding that the Sixth Amendment
right of confrontation is violated
when "testimonial" statements are
admitted as evidence where there
has been no opportunity for cross
examination, reversing the
conviction, and clarifying West
Virginia law to follow new
precedent.
Bolstering victim credibility
through evidence of religious belief
was plain error
STATE v. MATTHEW BOLEN,

No. 32887 (Per Curiam)(Maynard,
J., dissenting)(June 16, 2006).
Reversing a conviction obtained in
the Circuit Court of Cabell County
for two counts of first degree
sexual assault. Holding that the
circuit court committed plain error
in allowing the State to offer
evidence of the victim's religious
beliefs in order to bolster the
victim's credibility. Remanded for
retrial.
CRIMINAL, EVIDENCE :: Rule

404(b) error
STATE v. DAMIEN RICKETTS,

No. 32896 (Per Curiam)(June 8,
2006). Reversing a conviction for
misdemeanor battery. Holding that
admission of testimony regarding a
prior conviction for felony delivery
of a controlled substance was error,
where the circuit court had ruled
pre-trial that the evidence was
inadmissible, no character issue
was raised by the defendant and the
state inquired anyway, whereupon
the defendant's objection was
overruled and the jury was later
instructed to disregard.
Inconsistent defenses,
corroborative evidence
STATE v. EARL RAY McCOY,

No. 32860 (DAVIS, C.J.)(May 24,
2006). Reversing a conviction for
first degree murder, without mercy,
the Circuit Court of Lincoln
County. Holding that the circuit
court erred in preventing the
defendant from asserting the
defense of self-defense and the
defense of insanity, solely on the
basis that self-defense was
inconsistent with the insanity
defense. Further holding, in
syllabus point 3, that: "The
admissibility of corroborative
evidence is largely within the trial
court's discretion. However, a trial
court abuses that discretion when it
excludes the testimony of witnesses
who would corroborate relevant
facts, the veracity of which has
been challenged by the prosecutor,
when those facts have been relied
upon by the defendant's expert in
rendering an opinion pertaining to
the defendant's defense."
Remanding for a new trial.
CRIMINAL, FAMILY,
PROCEDURE :: Prosecution for
non-payment of support
STATE EX REL. SHEPHARD v.

HOLLAND, et al., No. 32903 (Per
Curiam). Denying a writ of
prohibition sought to prevent
further proceedings in a felony
prosecution for non-payment of
child support. Rejecting the
defendant's contention that the
indictment was insufficient, and
further denying relief in light of the
Court's resolution of the related
civil appeal, HAYHURST v.
SHEPARD, No. 32902
(STARCHER, J.)(June 16, 2006),
which brought finality to the
amounts owed.

CRIMINAL, HABEAS
CORPUS :: Possibility of good
time discharge prior to parole
eligibility is not unconstitutional
STATE EX REL. JAMES

WILLIAM GORDON, v.
MCBRIDE, WARDEN, MOCC,
No. 32768 (Per Curiam)(April 11,
2006). Affirming a decision of the
Circuit Court of Wood County to
deny habeas corpus relief, albeit on
different grounds than articulated
by the circuit court. Holding that
the possibility of good time
discharge prior to a parole
eligibility date does not violate
principles of due process and equal
protection.
Interstate Agreement on Detainers
PETHEL V. McBRIDE, No. 32784

(BENJAMIN, J.)(Starcher, J., and
Albright, J., dissenting)(Maynard,
J., concurring)(June 8, 2006).
Court of Ohio County that granted
habeas corpus relief and set aside
multiple convictions because of a
violation of the Interstate
Agreement on Detainers (IAD).
Holding that the IAD is not a
jurisdictional statute, and an IAD
violation does not deprive a trial
court of jurisdiction over criminal
charges, nor is an IAD violation
cognizable in post-conviction
habeas corpus proceedings.
Moreover, a guilty plea waives all
rights under the IAD. Further
addressing the guidelines for
dismissal due to IAD violations
and other matters.
CRIMINAL PROCEDURE ::
Extradition when state charges
pending
STATE EX REL. PAMELA JEAN

GAMES-NEELY v. HON. DAVID
H. SANDERS, JUDGE OF THE
CIRCUIT COURT OF
BERKELEY COUNTY, AND
JASON ERIC VANMETRE, No.
32875 (DAVIS, C. J.)(Starcher, J.,
dissenting)(Maynard, J.,
concurring)(February 17, 2006).
Issuing a moulded writ of
prohibition, and holding that a
prosecuting attorney has discretion
to prevent extradition before a
defendant has been tried and
discharged or convicted and
punished in this state. Affirming
the 90-day aggregate limit on
fugitive warrant.
CRIMINAL PROCEDURE,
HABEAS CORPUS :: Final
adjudication of ineffective
assistance allegations
STATE v. CHRISTOPHER FRYE,

No. 32786 (Albright, J.)(February
17, 2006). Affirming an order of
the Circuit Court of Logan County
that imposed a one to ten year
sentence following a conviction for
grand larceny. Holding that the
record is not properly developed to
permit review of allegations of
ineffective assistance of counsel
during voir dire and at trial.
Clarifying that the allegation of
ineffective assistance is not
procedurally barred for purposes of
future habeas corpus proceedings
where, as here, there is no final
adjudication on the merits of the
issue.
HABEAS CORPUS, CRIMINAL

PROCEDURE :: Habeas review of
post-Zain serology claims
IN THE MATTER OF:

RENEWED INVESTIGATION
OF THE STATE POLICE CRIME
LABORATORY, SEROLOGY
DIVISION, No. 32885
(MAYNARD, J.)(June 16, 2006).
Adopting, as moulded, findings of
a special judge appointed to
oversee a renewed investigation of
the Serology Division of the State
Police Crime Laboratory. Adotping
the report to the extent that it finds
insufficient evidence of intentional
misconduct by assistant serologists
to warrant invalidation of serology
evidence and systematic review of
each case in which serology
evidence was offered. However, in
light of the frequent and recurring
errors identified in the work of
assistant serologists, setting forth a
special habeas corpus procedure to
be utilized by those prisoners
against whom serologists, other
than Fred Zain, offered evidence.
HABEAS CORPUS,
PROCEDURE :: Abuse of process,
limiting access to the courts
MATHENA, et al. v. HAINES,
No. 32769 (STARCHER, J.)
(Maynard, J., concurring in part
and dissenting in part)(June 26,
2006). Granting mixed relief from
orders of the Circuit Court of
Randolph County relating to claims
regarding prison conditions and
medical care issues, including
orders enjoining one inmate from
filing any communication to the
circuit court or the circuit clerk
unless such communications were
signed by an attorney licensed to
practice law in West Virginia.
Holding that Article III section 17
of the West Virginia Constitution
gives prisoners a constitutional
right to meaningful access to courts
subject to reasonable limitations
imposed to protect courts from
abuse. Setting forth specific
guidelines for circuit courts to
follow if it becomes necessary to
consider issuing an order limiting
access to the courts. Affirming the
circuit court's dismissal of the
underlying allegations relating to
prison conditions as having been
previously and finally adjudicated.
JUVENILES, STATE FUNDS ::

Payment for diagnostic evaluation
at Medicaid rate
IN RE: BOBBY LEE B., No.

32771 (Per Curiam)(February 21,
2006). Reversing an order of the
Circuit Court of Randolph County
that required DHHR to pay the sum
of $1,000 for a four-hour sexual
offender evaluation. Holding that
W. Va. Code 49-7-33 is clear and
unambiguous in requiring that such
services shall be paid according to
the Medicaid rate in juvenile
delinquency cases.
MOTOR VEHICLES,
ADMINISTRATIVE,
PROCEDURE :: Time delay
presumptively prejudicial
PETRY v STUMP, COMM'R, No.

32886 (Per Curiam)(May 24,
Circuit Court of Kanawha County
that refused to grant extraordinary
relief in a case where an original
revocation hearing was held in
February 1999, no decision was
issued, the record of the hearing
was lost by the agency through no
fault of Mr. Petry, and the
Commissioner sought to schedule a
second hearing in March 2005.
Holding that the time delay was
presumptively prejudicial, and that
the appellant's due process rights
were violated. Revocation
proceedings dismissed.
MOTOR VEHICLES,
ADMINISTRATIVE
PROCEDURE :: Improper delay in
revocation hearing, expenses
DAVID v. COMM'R, WEST

VIRGINIA DIVISION OF
MOTOR VEHICLES, No. 32859
(STARCHER, J.)(Benjamin, J.,
concurring)(May 12, 2006).
Court of Kanawha County that
refused a request for extraordinary
relief in connection with a license
revocation hearing . Holding in
syllabus point 2 that: "Where the
West Virginia Department of
Motor Vehicles has improperly
delayed a driver's license
revocation proceeding held
pursuant to W.Va. Code, 17C-5A-2
[2004] and thereby denied due
process of law to a licensee, a party
who has incurred substantial
expenses as a result of the improper
delay and denial may recover the
party's expenses so incurred from
the Department in order to place
the party in the position in which
he or she would have been absent
the improper delay and denial by
the Department."
MOTOR VEHICLES,
ADMINISTRATIVE
PROCEDURE :: Directives to
DMV about internal procedure
unenforceable
STATE EX REL. CICCHIRILLO,

V. HON. JACK ALSOP, JUDGE
OF THE CIRCUIT COURT OF
BRAXTON COUNTY; LONNIE
D. ROSE AND RITA M.
TONKIN, No. 32876
(MAYNARD, J.)(April 7, 2006).
Granting a writ of prohibition to
prevent the enforcement of portions
of an order of the Circuit Court of
Braxton County in two
consolidated cases that challenged
a DMV license revocation. The
circuit court concluded, after
hearing testimony on the issue by
the hearing examiner and
administrative counsel, that a DMV
practice of having administrative
counsel re-write decisions by a
hearing examiner denied the
petitioner's due process rights. The
circuit court further ordered the
DMV to promulgate rules and
follow certain practices regarding
the preparation and review of
recommendations by hearing
examiners. Holding that the circuit
court exceeded its legitimate
powers by imposing directives
upon the agency, and that the
circuit court was limited to
affirming, remanding, reversing,
vacating or modifying the agency's
disposition of a contested cases, as
required by West Virginia Code
29A-5-4.
MOTOR VEHICLES,
ADMINISTRATIVE,
EVIDENCE :: Statement of
arresting officer
CROUCH v. WEST VIRGINIA

DIV. MOTOR VEHICLES, No.
32843 (DAVIS, C.J.)(May 24,
Circuit Court of Raleigh County
that reversed an administrative
license revocation, where the
arresting officer's testimony did not
clearly establish jurisdiction.
Holding that the Statement of
Arresting Officer, as a required
agency document, is admissible
under W. Va. Code 29A-5-2(b),
and is an acceptable means to
demonstrate jurisdiction to make an
arrest. Although the statement is
admissible, its accuracy is still
subject to challenge in a revocation
hearing.
WILLS & ESTATES :: Removal

of fiduciary
***IMPORTANT NOTE*** In the

case set forth below, the Court on
May 11th granted a petition for
rehearing, which means that the
original opinion becomes a nullity,
and the case will be re-briefed and
re-argued. The opinion summary
and link to the opinion are included
for reference purposes only. The
case is set for re-argument on
October 25, 2006.
LINDA J. HAINES, M.D., v.
PAMELA K. KIMBLE,
EXECUTRIX OF THE ESTATE
OF RALPH W. HAINES, No.
32844 (Per Curiam)(Starcher, J.,
and Benjamin, J., dissenting)
(March 17, 2006). Reversing an
order of the Circuit Court of
Hampshire County (Henning,
Judge, by special assignment), that
affirmed the county commission's
refusal to remove the executrix of
an estate. REHEARING
GRANTED MAY 11th, 2006 (3-2)
(DAVIS, C.J. AND MAYNARD,
J., would refuse).
Tuesday, May 30, 2006
Test
Upstreaming test. [Permanent
Link] Google It!
Thursday, January 26, 2006
Opinion Summary Issue #84

Posted
Issue #84 of the West Virginia

Supreme Court Opinion
Summaries was posted today,
covering the final 31 opinions filed
in late 2005.
CRIMINAL :: Duty to retreat

instruction should have been given
STATE v. LARRY DINGER, No.

32694 (Per Curiam)(December 1,
Circuit Court of Monroe County
that denied a motion for new trial
following a conviction of voluntary
manslaughter. Holding that the
circuit court erred in failing to give
a jury instruction on the duty to
retreat that was requested by the
defendant -- the instruction was
supported by the facts, and was
neither duplicative nor irrelevant.
Remanded for new trial.
CRIMINAL :: Pre-arrest
statements
STATE v. TERRI LYNN

SINGLETON, No. 32673 (Per
Affirming guilty verdict returned in
the Circuit Court of Raleigh
County for the offense of
conspiracy to possess a controlled
substance with intent to distribute.
Rejecting allegations that pre-arrest
statements were improperly
admitted, and that the appellant
was in custody during the
interrogation without first being
properly Mirandized.
CRIMINAL,
CONSTITUTIONAL ::
Kidnapping sentence enhancement
STATE v. CHESDON JAMES

HAUGHT, No. 32583
(MAYNARD, J.)(Starcher, J.,
dissenting)(December 1, 2005).
Affirming sentence imposed in the
County following a guilty verdict
of the offenses of domestic battery
and kidnapping. Holding, in
syllabus point 2, that: "Our
kidnapping statute, W.Va. Code
61-2-14a (1999), does not provide
for the enhancement of a
defendant's sentence beyond the
statutory maximum based on
additional facts found by the trial
judge in violation of the
constitutional right to a trial by jury
as interpreted by the United States
Supreme Court in Blakely v.
Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403
(2004)."
Larceny indictment adequate;
evidentiary issue not preserved
STATE v. MATTHEW S.
FLANDERS, No. 32290 (Per
Curiam)(December 1, 2005).
Affirming convictions for three
counts of breaking and entering a
building other than a dwelling, two
counts of larceny, one count of
possession of a controlled
substance with intent to deliver and
five counts of conspiracy,
following a jury trial in the Circuit
Court of Roane County. Holding
that the indictment for larceny was
sufficient, under the principles
announced in STATE EX REL.
DAY v. SILVER, 210 W.Va. 175,
556 S.E.2d 820 (2001). Further
holding that objection to admission
of a written witness statement
was not properly preserved for
appeal -- although an objection was
made during an in camera hearing,
the objection was not renewed
when that statement was admitted
as evidence before the jury.
Self-representation
STATE v. FRANCIS ANTHONY

SANDOR, III, No. 32663
(STARCHER, J.)(December 1,
2005). Affirming a conviction for
misdemeanor battery, imposed
following a bench trial in the
County, on appeal from a
magistrate court conviction.
Reviewing the judge's decision to
allow the defendant to exercise his
right to self-representation under an
abuse of discretion standard, and
concluding that the record as a
whole demonstrates that the
defendant knowingly and
intelligently chose to exercise his
right to self-representation.
Holding, in syllabus point 7, that:
"When an accused chooses to
proceed without the assistance of
counsel, the preferred procedure is
for the trial court to warn the
accused of the dangers and
disadvantages of self-
representation and to make
inquiries to assess whether the
accused's choice is knowing,
intelligent and voluntary. In the
absence of such a colloquy, a
conviction may be sustained only if
the totality of the record
demonstrates that the accused
actually understood his right to
counsel, understood the difficulties
of self-representation, and still
knowingly and intelligently chose
to exercise the right to self-
representation."
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CRIMINAL, EVIDENCE :: Trial

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STATE ex rel. SERGENT v.

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STATE v. ANTHONY RAY

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CRIMINAL :: Sentence properly

STATE ex rel. CORNELL F.

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STATE v. JAMES K. HOSBY,

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CRIMINAL :: Jury instruction on

STATE v. ERIC DELBERT JETT,

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CRIMINAL :: Child neglect

STATE v. ADONIS RAY

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CRIMINAL :: Incorrect jury

STATE v. WADE C. DAVIS, No.

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Opinion summary Issue #92

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Friday, March 2, 2007

First opinions of January term

Summaries of the first ten opinions

STATE v. EDDIE MULLENS, No.

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CRIMINAL :: No speedy trial

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CRIMINAL :: Negligent homicide

STATE v. MARJORIE VIRGINIA

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CRIMINAL :: Witness as bailiff

STATE v. ALLEN D. WAUGH,

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STATE ex rel. STEPHANIE SUE

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Friday, December 15, 2006

Final September opinions

Issue 90 of the Opinion Summary

 STATE v. MULLENS, No.

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STATE v. RONNIE ALLEN

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STATE OF W. VA. v. ROGER

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STATE v. MICHAEL LEE

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CRIMINAL :: Faulty indictment

STATE v. ERNEST J. JOHNSON,

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IMPORTANT NOTE In the