State v. Evans

State of West Virginia, Plaintiff Below, Respondent v. Billy Edward Evans, Defendant Below, Petitioner

No. 18-1044

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 23, 2020

(Berkeley County 17-F-235)

MEMORANDUM DECISION

Petitioner Billy Edward Evans, by counsel Christian Riddell, appeals the sentencing order entered on October 19, 2018, in the Circuit Court of Berkeley County, that denied his post-trial motion for a new trial and sentenced him on his convictions of one count of attempted first-degree murder, six counts of malicious assault, and five counts of wanton endangerment with a firearm. The State of West Virginia, by counsel Andrea Nease Proper, filed a response in support of the circuit court's order. Petitioner submitted 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

On January 24, 2017, petitioner was inside a Sheetz convenience store located in Martinsburg, West Virginia, waiting for a cab. While he was standing by the window, Renzel Danforth ("the victim") walked inside. The two men were strangers to each other.

What happened as and after the victim entered the store was highly contested at trial. Petitioner claims that the victim believed that he (petitioner) was admiring his own reflection in the store window and said, "N****rs think they're pretty. These West Virginia n****rs think they're pretty, but n****rs ain't as pretty as me . . . light skin is not in style no more." According to petitioner, the two men exchanged more words, causing petitioner to become angry at the victim's mannerisms and responses. Petitioner claims that, in an effort to de-escalate the situation, he went outside the store to continue waiting for his cab. As the victim exited the store, the victim said to petitioner, "Are you still here? You was talking a lot of s**t in there. I've got something for you. You stay right there. I've got a nice piece of steel for you." Petitioner claims that he believed, based upon the victim's comments, that he was going to retrieve either a knife or a gun from his car. Petitioner testified that he followed the victim to his car for the purpose of taking whatever it was that the victim was going to retrieve. Petitioner saw the victim reach under his car's seat to grab the "piece of steel," at which point petitioner opened the victim's car door and reached for him in an effort to stop him. Petitioner testified that, although he was lawfully carrying a firearm, he had not drawn it and, in fact, could not have possibly done so because he had a cup of coffee in one hand while holding the handle on the victim's car door and reaching for the victim with the other hand.

According to petitioner, the victim retrieved a knife, got out of his car, and began stabbing at petitioner's head. Petitioner testified that although he was able to get a hold of the victim, he felt the victim puncture his body with the knife in various places, including his left shoulder, left arm, left hand and fingers, and penis. Petitioner testified that he felt his "adrenalines rushing" because he believed the victim was trying to kill him. Petitioner shot the victim six times and hit him in the head with the butt of his gun. Petitioner left the scene in a cab and was later apprehended by police.

The State's theory of the case differed significantly from petitioner's. The victim testified that he entered the store to purchase gas. While he was standing in line, he "looked through the window at my car and at myself and fixed my hair a bit . . . and then I saw [petitioner] staring at me, but I just turned around, because I just - to avoid looking at him." According to the victim, "I just faced the cashier and then [petitioner] began to question me and asking me if I'm all right. I didn't respond, and then I heard him say it again if I'm all right. I still didn't respond, and then he said 'because I have a gun and I will kill you now.'" In response, the victim tried to ignore him and "laugh[ed] it off." The victim paid for what he purchased, and walked outside. Petitioner then appeared to the victim's right and stated, "'that's your black car over there?'" According to the victim, petitioner "reached in his pants and right when he did that that's when I ran to my car." The victim then got into the driver's seat, looked behind him, and saw petitioner with his gun. The victim then reached under his seat and pulled out the knife he keeps there. He testified that he got out of the car to prevent his girlfriend, who was in the passenger's seat, from getting hurt. After petitioner shot the victim six times, the victim began stabbing at him in an effort to stop petitioner from shooting. Once petitioner ran out of ammunition, he began to hit the victim with the gun. The victim continued to stab petitioner, eventually fell to the ground, and was transported to the hospital.¹

Among the witnesses who testified at trial was Victor Hajnos, the assistant manager at Sheetz who was working when the altercation between petitioner and the victim took place. Mr. Hajnos testified that he observed the two men arguing, but never heard the victim threaten petitioner. In contrast, he heard petitioner tell the victim that if he "came outside that he was going to mess him up." Mr. Hajnos testified that, when he rang the victim up at the counter, he "asked him if he was all right and that . . . I could call the cops because I felt like something was wrong and I offered that to him." Mr. Hajnos warned the victim not to go outside. After the victim left the store, Mr. Hajnos watched petitioner run after him. Mr. Hajnos hit the panic alarm to summon law enforcement. Based upon his observations, Mr. Hajnos believed petitioner to be the aggressor.

On August 31, 2017, petitioner was indicted by a Berkeley County Grand Jury on one countof attempted murder, six counts of malicious assault, and five counts of wanton endangerment.² He was convicted by a jury on all twelve counts of the indictment.

Petitioner filed a post-trial motion for a new trial. New counsel was appointed and a renewed motion was filed. Following a hearing, the circuit court denied petitioner's motion and sentenced him to three to five years in prison for his attempted murder conviction; two to ten years for each of the malicious assault convictions; and a determinate term of five years for each of the wanton endangerment with a firearm convictions. All of petitioner's sentences were ordered to run consecutively. This appeal followed.

In his first assignment of error, petitioner argues that the circuit court committed reversible error by refusing to grant his motion for a continuance of his criminal trial in order to discharge his trial counsel, whom petitioner believed was not competently representing him. Petitioner contends that, on the first day of trial, he articulated numerous legitimate reasons why his trial counsel was ineffective, including that counsel refused to listen to him, was not prepared to try the case, did not "pay attention" to discovery, and refused to write things down. As further grounds for a continuance, petitioner argued that, because his trial counsel could be called to testify in the failure to appear case, see n.2., counsel had a conflict of interest that required he be discharged from representing petitioner in the criminal matter at issue. According to petitioner, the circuit court should have granted his request for a continuance so that he could obtain new counsel, and its failure to do so was reversible error.

We review the circuit court's denial of petitioner's request for a continuance for abuse of discretion.

"The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made." Syllabus point 1, State v. Jones, 84 W. Va. 85, 99 S.E. 271 (1919).

Syl. Pt. 1, State v. Dunn, 237 W. Va. 155, 786 S.E.2d 174 (2016).

We first address petitioner's claim that his trial counsel had a conflict of interest that required his discharge from the present matter because counsel could be called as a witness in the failure to appear case. See Syl. Pt. 5, Watson v. Black, 161 W. Va. 46, 239 S.E.2d 664 (1977) (holding that court-appointed counsel may be relieved for good cause, including a conflict of interest). The record reveals that, at a March 5, 2018, pretrial hearing, trial counsel had moved to withdraw on this very ground—that is, that he might be called as a witness in the failure to appear case. The court advised petitioner that it had other counsel standing by in the courtroom to appoint,if necessary, but cautioned that "it's very likely he's not going to be able to get ready for your case within a month, which means that we might be setting your case out again." After trial counsel and petitioner conferred during a brief recess, petitioner agreed that trial counsel would continue to represent him on the present charges. Nonetheless, petitioner now argues, as he did in connection with his motion to continue, that, at the March 5^th hearing, he did not understand that the trial would be continued if new counsel was appointed. Rather, petitioner claims, he agreed to continue with his trial counsel only because he believed that new counsel would not have adequate time to prepare for a trial that was scheduled to begin...