State v. Combs

875 S.E.2d 139

STATE of West Virginia, Plaintiff Below, Respondent

v.Oscar Ross COMBS, Sr., Defendant Below, Petitioner

No. 21-0249

Supreme Court of Appeals of West Virginia.

Submitted: March 16, 2022

Filed: June 2, 2022

Timothy P. Lupardus, Esq., Lupardus Law Office, Pineville, West Virginia, Attorney for Petitioner

Patrick Morrisey, Esq., Attorney General, Karen C. Villanueva-Matkovich, Esq., Deputy Attorney General, Lara K. Bissett, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent

HUTCHISON, Chief Justice:

The petitioner, Oscar Ross Combs, Sr., was convicted of first-degree murder in the Circuit Court of Wyoming County on September 29, 2017, and he was sentenced to life in prison without mercy by order entered on April 11, 2018. The petitioner appealed his conviction to this Court in 2018 asserting the following assignments of error: (1) improper admission of Rule 404(b) evidence;¹ (2) improper instruction to the jury on prior bad acts; (3) improper admission of evidence showing that the petitioner refused a polygraph examination; (4) the cumulative effect of errors one through three rendered the trial unfair; (5) the chain of custody was broken and any evidence relying upon that chain should have been excluded; (6) violation of his constitutional right to a speedy trial; and (7) insufficiency of the evidence to support the conviction. Upon review, we found that the appendix record submitted with the appeal was incomplete and did not allow for a determination of whether the petitioner's right to a speedy trial had been violated. Accordingly, by memorandum decision entered on May 22, 2020, we remanded the case with directions for the circuit court to conduct a hearing to determine the reasons for the delay in commencing the petitioner's trial. State v. Combs , No. 18-0445, 2020 WL 2614649 (W. Va. May 22, 2020) (memorandum decision). Upon remand, the circuit court held a hearing and then entered an order on February 24, 2021, finding that all continuances that were granted prior to the petitioner's trial, with one exception, had been agreed upon by the parties, and, therefore, the petitioner's right to a speedy trial was not violated.

In this appeal, the petitioner continues to maintain that he was denied a speedy trial, arguing that the circuit court's ruling upon remand was error. He also reasserts his assignments of error pertaining to his trial as set forth in his 2018 petition for appeal.² Having considered the parties’ briefs and oral arguments, the submitted appendix record, and the pertinent authorities, we find that the petitioner was afforded a speedy trial, but the circuit court erred in its determination that evidence regarding the petitioner's conviction for another murder was admissible at his trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Accordingly, we reverse the petitioner's conviction and sentencing orders and remand this case for a new trial.

I. Facts and Procedural Background

The victim, Teresa Ford, disappeared on May 13, 2013. On that day, Ms. Ford told a friend, William Cottle, that she was going to meet the petitioner to sell him her van. The next day, the petitioner told Mr. Cottle that Ms. Ford had "left town in a red car." In the days immediately following Ms. Ford's disappearance, the petitioner was observed driving her van. He later sold the vehicle to a used car dealer.

Several weeks after Ms. Ford's disappearance, the petitioner was interviewed by law enforcement. Prior to the interview, the petitioner had offered to take a polygraph examination, but after a disagreement with someone at the testing center, he left and never took the test. In the petitioner's recorded interview with the police, he mentioned the fact that he had offered to take a polygraph test shortly after Ms. Ford disappeared. The petitioner also told the police during that interview that Ms. Ford had spent the night with him before selling him her van and that she left town the next day.³

Later in 2013, the petitioner became a suspect in the robbery and homicide of James Butler in Mercer County. Based on information provided by the petitioner's son, Oscar Ross Combs, Jr. ("Junior"), the police executed a search warrant on the petitioner's home on November 11, 2013. During their search, the police discovered a large blood stain on the petitioner's mattress. Subsequent forensic testing determined that the blood belonged to Ms. Ford. On the day the police executed the search warrant, they also interviewed the petitioner again, and he confessed that he and Junior had robbed and killed Mr. Butler.

In April 2014, the police obtained another warrant to conduct a broader search of the petitioner's home and the surrounding property. During this search, skeletal remains were discovered in a shallow grave. The remains were later identified as those of Ms. Ford.

In February 2015, the petitioner was tried and convicted in Mercer County of first-degree murder, first-degree robbery, and conspiracy for his role in killing Mr. Butler. The petitioner is serving a sentence of life without mercy plus eighty years for his convictions arising out of Mr. Butler's murder. See State v. Combs , No. 15-0405, 2016 WL 3304115 (W. Va. June 8, 2016) (memorandum decision) (affirming petitioner's convictions in Mercer County).

The petitioner was indicted for the murder of Ms. Ford on May 4, 2015, and his trial began on September 18, 2017. During the petitioner's nine-day trial, the State was allowed to introduce evidence pursuant to Rule 404(b) of the Rules of Evidence regarding his convictions for the first-degree robbery and murder of Mr. Butler. Specifically, the trial court allowed the petitioner's Mercer County conviction order to be read to the jury and permitted three witnesses, including Junior, to testify about the facts surrounding Mr. Butler's murder. In addition, the State played the petitioner's recorded statement to the police for the jury, during which he indicated that he was going to take a polygraph and then changed his mind. Although forty witnesses testified on behalf of the State, the exact cause of Ms. Ford's death was never established due to the condition of her remains. At the end of trial, the petitioner was convicted by the jury of first-degree murder without a recommendation of mercy.

II. Standard of Review

The petitioner first argues that his prosecution was barred because he was not afforded a speedy trial, and, therefore, his indictment should have been dismissed.

"This Court's standard of review concerning a motion to dismiss an indictment is, generally, de novo. However, in addition to the de novo standard, where the circuit court conducts an evidentiary hearing upon the motion, this Court's ‘clearly erroneous’ standard of review is invoked concerning the circuit court's findings of fact." Syl. Pt. 1, State v. Grimes , 226 W. Va. 411, 701 S.E.2d 449 (2009).

Syl. Pt. 1, State v. Holden , 243 W. Va. 275, 843 S.E.2d 527 (2020).

The petitioner's other assignments of error pertain to his trial. Upon review, we have determined that the only assignment of error necessary for us to consider is the petitioner's assertion that the circuit court erred by allowing the State to admit evidence at trial under Rule 404(b) of the Rules of Evidence. It is well-established that "[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). When Rule 404(b) evidence is at issue, we employ a specific three-step analysis. As this Court has previously explained:

"[T]he standard of review for a trial court's admission of evidence pursuant to Rule 404(b) involves a three-step analysis. First, we review for clear error the trial court's factual determination that there is sufficient evidence to show the other acts occurred. Second, we review de novo whether the trial court correctly found the evidence was admissible for a legitimate purpose. Third, we review for an abuse of discretion the trial court's conclusion that the ‘other acts’ evidence is more probative than prejudicial under Rule 403." State v. Jonathan B. , 230 W.Va. 229, 236, 737 S.E.2d 257, 264 (2012) (quoting State v. LaRock , 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996) ).

State v. Timothy C. , 237 W. Va. 435, 443, 787 S.E.2d 888, 896 (2016). With these standards in mind, we consider the petitioner's assignments of error.

III. Discussion

The petitioner first contends that he was denied a speedy trial because he was indicted for Ms. Ford's murder in May 2015, but was not given a trial until September 2017, which was seven terms of court later. West Virginia Code § 62-3-21 (1959) provides:

Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the State being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict; and every person charged with a misdemeanor before a justice of the peace, city police judge, or any other inferior tribunal, and who has therein been found guilty and has appealed his conviction of guilt and sentence to a court of record, shall be forever discharged from further prosecution for the offense set forth in the warrant against him, if after his having appealed such conviction and sentence, there be three regular terms of such court without

...