State v. Chic

State of West Virginia, Plaintiff Below, Respondent v. Juan Xavier Chic, Defendant Below, Petitioner

No. 20-0208

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 23, 2021

(Kanawha County 18-F-568)

MEMORANDUM DECISION

Petitioner Juan Xavier Chic, by counsel Joseph A. Curia III, appeals the Circuit Court of Kanawha County's February 7, 2020, order sentencing him to concurrent terms of incarceration of life without mercy for his first-degree murder conviction, ten years for his use or presentment of a firearm during the commission of a felony conviction, and three years for his prohibited person in possession of a concealed firearm conviction. Respondent State of West Virginia, by counsel Lara K. Bissett, filed a response. Petitioner filed a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Andre Leonard was gunned down in his uncle's driveway on August 15, 2018. In the days following Mr. Leonard's murder, petitioner's girlfriend, Breanna Hall, gave three statements to the police. In the first two, both given on August 16, 2018, Ms. Hall stated that petitioner drove her to meet Mr. Leonard, who was the father of her children, at Mr. Leonard's uncle's home to pick up money from Mr. Leonard to purchase back-to-school clothes for their children. She said that when she and petitioner arrived, another vehicle was parked at the home, so petitioner backed the silver Chrysler he was driving into the driveway, and she exited the vehicle to approach Mr. Leonard. She stated that Mr. Leonard spoke to the occupant of the other vehicle before walking toward her. As she and Mr. Leonard got closer to one another, gunshots rang out, which she believed came from behind the home. She told police that petitioner grabbed Ms. Hall, threw her into the car, and drove away. Ms. Hall indicated that their vehicle was struck by bullets, and because they did not know whether they were also targets, they parked the car behind a nearby restaurant out of plain view. Throughout her statements, Ms. Hall maintained that she did not know who shot Mr. Leonard.

As detailed in a criminal complaint, during these initial interviews, Ms. Hall "became agitated and aggressively spr[u]ng up into [an interviewing officer's] face, t[ook] an aggressive stance and thereafter ma[de] physical contact with [the interviewing officer]." She was, accordingly, arrested for obstructing an officer. In a search that followed that arrest, officers discovered a controlled substance, so she was also charged with possession of a controlled substance. The officer further detailed that Ms. Hall had "a loaded .38 caliber S&W revolver" in her purse, which she had acknowledged owning in her interview. Ms. Hall eventually pled guilty to the obstructing charge and was sentenced to time served, which amounted to eleven days. In exchange for that guilty plea, the State dismissed her possession charge.

On August 26, 2018, following her release from jail, Ms. Hall gave a third statement to the police, implicating petitioner in Mr. Leonard's murder. Ms. Hall's account of the events leading up to her and petitioner's arrival at Mr. Leonard's uncle's house did not change. But, at the point she and Mr. Leonard were walking toward one another at Mr. Leonard's uncle's house, Ms. Hall stated that petitioner

hops out of the car . . . [a]nd he had like some type of blue—it looked like a sheet or something in like one hand. I don't know what—I mean, from the sheet it looked like a gun. Okay? Like, under it. I could tell by like the figure.

She claimed that petitioner then started firing and that she "ducked down to the ground . . . and kinda like crawled to the passenger side of the door." She said petitioner yelled at her to get in the car, and he then drove off. As they were driving away, Ms. Hall said she heard two gunshots, which sounded like they hit the car. She stated petitioner "rolled the window down and it seemed like he mighta shot backwards." Petitioner reportedly threatened to kill Ms. Hall and her family if she told anyone about the shooting.

Torrion Betts, who was identified as the other individual present in the driveway at Mr. Leonard's uncle's home, gave a statement to the police on August 16, 2018. Mr. Betts explained that he drove his brother's white Nissan to Mr. Leonard's uncle's home on August 15, 2018, so that Mr. Leonard could repay money Mr. Betts had previously loaned him. Mr. Betts recalled that, while at Mr. Leonard's uncle's house, another vehicle backed into the driveway. Mr. Betts described the car and the driver, but he did not know petitioner or identify him by name. Mr. Betts stated that Mr. Leonard walked from his car toward Ms. Hall. Mr. Betts said, "the next thing you know I hear three shots," and he claimed he "automatically looked in the rearview mirror and turned around." He said he saw Mr. Leonard fall to the ground, stating, "I seen him shoot [Mr. Leonard] one more time." Mr. Betts said that the shooter "[t]hen looked at me and by that time I'm looking at him face to face and he just POP! POP! POP! POP! He just finished a whole clip on me so the first thing I did was got down then I sped off." Mr. Betts did not believe that Mr. Leonard was able to fire any shots. "I think it caught him by surprise," Mr. Betts surmised. Mr. Betts described the shooter's gun as being two-toned, chrome with a black bottom. Mr. Betts was not shot, but the car he was driving was.

Mr. Betts's brother and owner of the car Mr. Betts drove to Mr. Leonard's also gave a statement to the police and allowed them to search his vehicle. Mr. Betts's brother informed policethat Mr. Betts owned a 9 millimeter Springfield pistol but stated that "at the time [of Mr. Leonard's murder] it was at the house."

On November 16, 2018, petitioner was indicted on one count of first-degree murder, one count of the use or presentment of a firearm during the commission of a felony, and one count of being a prohibited person in possession of a concealed firearm. All three charges stemmed from the shooting death of Mr. Leonard.

Petitioner moved to dismiss his first-degree murder charge and use of a firearm during the commission of a felony charge. Petitioner asserted that the investigating officers did not attempt to locate, test, or preserve Mr. Betts's pistol. And, after interviewing Ms. Hall, officers seized her two cell phones. One, an iPhone, was returned after it was reportedly "unable to be accessed." Petitioner argued that the State had an obligation under Rule 16(a)(1)(C) of the West Virginia Rules of Criminal Procedure to produce the requested discovery, and that he specifically requested "any information related to Mr. Torrion Betts' firearm[,] . . . including any results of tests or examinations, all results of scientific tests or physical examinations performed, documents and tangible objects material to the preparation of his defense, and the contents of all cellphones seized in this matter." Petitioner also argued that the State had a duty to preserve the evidence under State v. Osakalumi, 194 W. Va. 758, 461 S.E.2d 504 (1995). Petitioner argued that, because the State had failed to produce the requested discovery and had failed to preserve the evidence, he was unable to inspect the gun and phone to obtain potentially exculpatory evidence, and dismissal of his first-degree murder charge and use of a firearm during the commission of a felony charge was warranted. Alternatively, petitioner argued that he was entitled to an adverse inference jury instruction.

Petitioner's motion was apparently denied, and he proceeded to trial on all three counts on December 2, 2019.¹ Sergeant Brian Hammontree of the West Virginia State Police ("WVSP") testified that he responded to the scene of Mr. Leonard's murder after receiving a report that shots had been fired. Sgt. Hammontree found Mr. Leonard face down in a pool of his own blood with some cash, a .40-caliber Glock gun, and a small baggie believed to contain cannabis. Sgt. Hammontree recovered six .40 caliber shell casings and four .357 Sig shell casings from the scene, and the WVSP secured the vehicles driven by Mr. Betts and petitioner. Sgt. Hammontree testified that Mr. Leonard was shot six times; that the vehicle driven by Mr. Betts was struck five times; that a neighbor's garage door was struck at least once; and that the vehicle driven by petitioner was struck twice.

Ms. Hall testified. Generally, her testimony was consistent with her third statement to the police. Ms. Hall also testified that she was unaware petitioner had a gun with him when they went to Mr. Leonard's uncle's home and that she and petitioner did not talk about anything specific after pulling into the driveway and waiting for Mr. Leonard to finish talking to Mr. Betts.

Ms. Hall was questioned about her initial statements to the police. She attributed her initial dishonesty to a "fear[] of retaliation or what somebody could have done to me if I would have saidsomething immediately." Ms. Hall was also questioned regarding calls she made while incarcerated following her first two statements to the police. Portions of recordings of those calls were played for the jury. In one call Ms. Hall made to a friend, Ms. Hall told her friend that she "didn't do this. . . . And [petitioner] didn't do this either." In another call between Ms. Hall and her sister, Ms. Hall's sister informed Ms. Hall,

I don't care what you think you're doing or what you—how you feel about him [petitioner] or whatever, really, he is going down regardless.

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