State v. Settle

State of West Virginia, Plaintiff Below, Respondent v. Joshua Michael Settle, Defendant Below, Petitioner

No. 19-0673

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 4, 2020

(Calhoun County 18-F-5)

MEMORANDUM DECISION

Petitioner Joshua Michael Settle, by counsel Robert F. Evans, appeals the July 1, 2019, sentencing order of the Circuit Court of Calhoun County. Respondent State of West Virginia, by counsel Mary Beth Niday, filed a response in support of the circuit court's order. Petitioner filed a reply.

The 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.

On April 19, 2017, at approximately 10:30 p.m., West Virginia State Trooper N.S. Stepp was conducting a stationary patrol in his marked Chevrolet Impala at the intersection of U.S. Route 33 and W.Va. Route 16 in Calhoun County. Trooper Stepp observed petitioner's blue 1996 Chevrolet Cavalier ("vehicle") travelling east on Route 33 and displaying a defective registration light.¹ Trooper Stepp activated his police lights to initiate a traffic stop on petitioner's vehicle.Petitioner activated his emergency lights but did not pull over. Petitioner turned on Route 16 and then abruptly turned onto Daniels Run Road and increased his speed. Petitioner crashed his vehicle, and the vehicle landed on its roof.

Trooper Stepp approached petitioner's crashed vehicle with his firearm drawn. Pursuant to Trooper Stepp's directives, petitioner attempted to crawl out of his vehicle. Trooper Stepp pulled petitioner out of the vehicle by forceful means, including the grabbing of petitioner's face, after petitioner reached back inside the vehicle. A struggle ensued between Trooper Stepp and petitioner after Trooper Stepp attempted to handcuff petitioner. Trooper Stepp used pepper spray and his baton to subdue petitioner. During the scuffle, petitioner ripped buttons and the lapel off the trooper's uniform. Petitioner further attempted to grab Trooper Stepp's firearm. Eventually, Trooper Stepp overpowered petitioner and took him into custody. Petitioner was taken for medical treatment following his arrest; photographs of his injuries are included in the appellate record and show petitioner bloody and wearing a neck brace.

On January 2, 2018, petitioner was indicted in the Circuit Court of Calhoun County in an eight-count indictment that included the following charges: (1) attempting to disarm a law enforcement officer, a felony; (2) obstructing an officer, a misdemeanor; (3) fleeing from an officer, a misdemeanor; (4) battery on an officer, a misdemeanor; (5) defective equipment, a misdemeanor; (6) driving while suspended, third offense, a misdemeanor; (7) possession of a controlled substance (marijuana), a misdemeanor; and (8) destruction of property, a misdemeanor.

The circuit court held petitioner's trial on these charges on March 5 and 6, 2019. The footage from Trooper Stepp's dashboard-mounted camera ("dashcam") was admitted into evidence and published to the jury.² Trooper Stepp testified.³ Petitioner did not testify. The circuit court included an instruction regarding self-defense in its charge to the jury, which reads as follows:

One of the questions to be determined by you in this case is whether or not [petitioner] acted in self-defense so as to justify his acts. Under the laws of this state, a person who is subject to an attempted unlawful arrest may use such reasonable force, proportioned to the injury attempted on him, as is necessary to effect his escape, but no more, and he cannot do this by using or offering to use a deadly weapon, if he has no reason to believe that he will receive greater injury than a mere unlawful arrest.

The circumstances under which [petitioner] acts must have been such as to produce in the mind of a reasonable prudent person, similarly situated, the reasonable belief that his arrest was unlawful, and that he must do what is requiredto escape. For purposes of making this determination, an "unlawful arrest" is physically detaining a person or depriving a person of his or her liberty, without proper legal authority.

If evidence of self-defense is present, the State must prove beyond a reasonable doubt that [petitioner] did not act in self-defense. If you find that the State has failed to prove beyond a reasonable doubt that [petitioner] did not act in self-defense, you must find [petitioner] not guilty. In other words, if you have a reasonable doubt as to whether or not [petitioner] acted in self-defense, your verdict must be not guilty.

Petitioner objected to the circuit court's definition of "unlawful arrest," i.e., "physically detaining a person or depriving a person of his or her liberty, without proper legal authority," asserting that it was too narrow. Petitioner argued that "excessive force used in the making of an arrest can also render that arrest to be without proper legal authority." The circuit court rejected that argument, finding that petitioner's position was "not the law."

Petitioner sought to clarify whether he could argue to the jury that Trooper Stepp "perpetuated an assault on [petitioner], and that even with probable cause to make an arrest for fleeing, [petitioner] had the right to defend himself against an unlawful assault." The State objected, arguing that the issue of whether criminal charges would be possible against Trooper Stepp was irrelevant to the determination of petitioner's guilt or innocence. The circuit court sustained the State's objection, finding that Trooper Stepp was "not on trial here." The circuit court ruled that petitioner was permitted to discuss the actions Trooper Stepp took to subdue petitioner and the amount of force Trooper Stepp used in doing so, but that petitioner could not accuse Trooper Stepp of a crime during closing arguments. Petitioner preserved his objections to the circuit court's rulings.

After the circuit court's charge and the parties' closing arguments, the jury, during their deliberations, asked to view the dashcam video again; the court complied with that request. Subsequently, the jury reached a verdict, finding petitioner guilty on all eight counts of the indictment. By sentencing order entered on July 1, 2019, the circuit court imposed the following sentences upon petitioner: (1) one to five years of incarceration for attempting to disarm a law enforcement officer, a felony; (2) one year of incarceration for obstructing an officer, a misdemeanor; (3) one year of incarceration and a fine of $500 for fleeing from an officer, a misdemeanor; (4) one year of incarceration for battery on an officer, a misdemeanor; (5) a fine of $100 for defective equipment, a misdemeanor; (6) ninety days of incarceration and a fine of $500 for driving while suspended, third offense, a misdemeanor; (7) six months of incarceration for possession of a controlled substance (marijuana), a misdemeanor; and (8) one year of incarceration for destruction of property, a misdemeanor. The circuit court ordered petitioner to serve his terms of incarceration consecutively.

It is from the circuit court's July 1, 2019, sentencing order that petitioner appeals. On appeal, petitioner questions whether the circuit court erred in denying his request to instruct the jury on the use of excessive force in an arrest. "As a general rule, the refusal to give a requestedjury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 2, State v. Wasanyi, 241 W. Va. 220, 821 S.E.2d 1 (2018) (quoting Syl. Pt. 1, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996)). In Syllabus Point 3 of Wasanyi, we further held that:

"[a] trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense." Syl. Pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

241 W. Va. at 221, 821 S.E.2d at 2.

The parties agree that the circuit court gave the proper instruction as set forth in the syllabus of State v. Gum, 68 W. Va. 105, 69 S.E. 463 (1910).⁴ Petitioner further concedes that Trooper Stepp had probable cause to arrest petitioner because he fled from Trooper Stepp. However, petitioner argues that the jury should have been instructed that Trooper Stepp's use of excessive force rendered an otherwise lawful arrest unlawful. The State counters that the two cases relied upon by petitioner for this proposition, Graham v. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985), are inapposite. We agree with the State.

Graha...