State v. Blevins

231 W.Va. 135

744 S.E.2d 245

STATE of West Virginia, Plaintiff Below, Respondent

v.Terry Allen BLEVINS, Defendant Below, Petitioner.

No. 11–1014.

Supreme Court of Appeals of West Virginia.

Submitted March 26, 2013.

Decided May 20, 2013.

Recognized as Unconstitutional

West's Ann.W.Va.Code, 61–12–13

Syllabus by the Court

1. “In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

2. “ ‘ “Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt. 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).” Syl. Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

3. “Widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial.” Syl. Pt. 1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982).

4. “One of the inquiries on a motion for a change of venue should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt or innocence of the defendant.” Syl. Pt. 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

5. “ ‘To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.’ Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).” Syl. Pt. 2, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

6. “ ‘Where a person voluntarily and knowingly consents to a search of his premises, such a search may be conducted in the absence of a search warrant.’ Syllabus Point 1, State v. Basham, 159 W.Va. 404, 223 S.E.2d 53 (1976).” Syl. Pt. 1, State v. Hambrick, 177 W.Va. 26, 350 S.E.2d 537 (1986).

7. “In deciding if a consent to search is valid, the trial court must make a factual determination whether the consenting party possessed the requisite authority over or relationship to the premises to be searched to justify his allowing the police to conduct a search.” Syl. Pt. 3, State v. Hambrick, 177 W.Va. 26, 350 S.E.2d 537 (1986).

8. “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).

9. “ ‘Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.’ State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).” Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

10. “ ‘A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.’ State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).” Syl. Pt. 1, State v. Jones, 220 W.Va. 214, 640 S.E.2d 564 (2006).

11. “When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

12. “The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

13. “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 assessmentsthat the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

14. “When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt.” Syl. Pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

15. “Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. This means there must be an opportunity for some reflection on the intention to kill after it is formed.” Syl. Pt. 5, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

16. “In criminal cases where the State seeks a conviction of first degree murder based on premeditation and deliberation, a trial court should instruct the jury that murder in the first degree consists of an intentional, deliberate, and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder.” Syl. Pt. 6, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

17. “In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Syl. Pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).

18. “Most courts have concluded that a photographic array will not be deemed excessively suggestive as long as it contains some photographs that are fairly representative of the defendant's physical features. The fact that some of the photographs are dissimilar to the defendant's appearance will not taint the entire array.” Syl. Pt. 6, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

19. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

20. “Although it is a well-settled policy that the Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned errors, ...