Opinion
No. 19-0326
04-02-2021
STATE of West Virginia, Plaintiff Below, Respondent v. Kevin Travis COSTELLO, Defendant Below, Petitioner
Matthew Brummond, Justin M. Collin, Appellate Advocacy Division, Public Defender Services, Charleston, West Virginia, Attorney for the Petitioner. Patrick Morrisey, Attorney General, Andrea Nease Proper, Deputy Attorney General, Gordon L. Mowen, II, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.
Matthew Brummond, Justin M. Collin, Appellate Advocacy Division, Public Defender Services, Charleston, West Virginia, Attorney for the Petitioner.
Patrick Morrisey, Attorney General, Andrea Nease Proper, Deputy Attorney General, Gordon L. Mowen, II, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.
Jenkins, Chief Justice: Petitioner Kevin Travis Costello ("Mr. Costello") was convicted on one count of DUI causing serious bodily injury. After the jury returned a guilty verdict, the State filed a recidivist information pursuant to the provisions of West Virginia Code section 61-11-18 (eff. 2000) and section 61-11-19 (eff. 1943) and this State's body of recidivist caselaw. The recidivist information alleged that Mr. Costello had previously been convicted of two prior felony offenses: (1) possession of heroin with intent to distribute in Maryland and (2) distribution of crack cocaine in the United States District Court for the Northern District of West Virginia. The jury convicted Mr. Costello as charged in the information. Thereafter, the circuit court sentenced him to life in prison, with mercy. This appeal followed. In this appeal, Mr. Costello raises three issues. First, he alleges that a mistrial should have been granted following the testimony of his probation officer because the officer testified to an undisclosed oral statement. Second, Mr. Costello contends that the State provided insufficient evidence of his prior Maryland conviction. Third, he argues that his life sentence is disproportionate.
In his brief, Mr. Costello set forth four separate assignments of error: (1) The State violated the rules of discovery by introducing an undisclosed confession during trial; (2) The State presented insufficient evidence of Petitioner's Maryland conviction during the recidivist trial; (3) The trial court directed a verdict when it instructed the jury that Petitioner's prior convictions were felonies; and (4) Petitioner's life sentence is disproportionate. For clarity and brevity, Mr. Costello's assignments of error have been consolidated.
Having considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we find no error. Accordingly, for the reasons set forth below, Mr. Costello's conviction and sentence are affirmed.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 24, 2017, while driving on U.S. 340 in Jefferson County, West Virginia, Mr. Costello passed out, crossed the center line into oncoming traffic, hit an embankment, and then crashed into an oncoming vehicle. A two-year-old child, who was riding in the back seat of the oncoming vehicle, was seriously and permanently injured. Following the crash, witnesses observed Mr. Costello to be disoriented and speaking incoherently. According to the witnesses, when Mr. Costello got out of his vehicle, he was shirtless, his eyes were "droopy," and "his words were kind of jumbled." Once the responding officers arrived on scene, Mr. Costello was noted to be "stumbling," "mumbling," and "staggering." When the officers explained to him how to perform the field sobriety test, "[t]here were several times he was standing up falling asleep." Mr. Costello consented to a breath test that showed he had no alcohol in his system; however, he refused to submit to a blood draw. Mr. Costello was arrested and, during subsequent sobriety testing, fell asleep forty-two times.
After his arrest, Mr. Costello met with his probation officer because his suspected criminal conduct violated a number of terms relating to his probation. At the time of the crash, he had only recently been released from imprisonment and was on probation. During the meeting, Mr. Costello made the following written admissions to probation violations:
1) You did violate rule J of the rules and regulations governing your release on Probation in that on or about 07-24-17, you did use drugs to wit: Heroin;
2) You did violate rule [E] of the rules and regulations governing your release on Probation in that on or about 07-24-17, you did manifest behavior that threatened the safety of yourself or others, or that could result in your imprisonment; which caused you to be charged with DUI (narcotics) with felony serious bodily harm.
On January 16, 2018, Mr. Costello was indicted for DUI causing serious bodily harm. Prior to trial, Mr. Costello moved to exclude the written admissions on the ground that they were made during the course of a legal examination and were inadmissible. The circuit court disagreed with his reasoning and concluded that the admissions were voluntarily made as to his probation violations and were not the subject of a legal examination. The court further ruled that the first admission—that he used heroin—was admissible. However, the court ruled that Mr. Costello's admission to the second violation was inadmissible under West Virginia Rule of Evidence 403 because it "lack[ed] clarity and [was] ambiguously phrased in the disjunctive."
Mr. Costello's defense at trial was that he consumed the heroin after the accident occurred in order to dispose of the evidence. In contrast to Mr. Costello's theory, his probation officer testified, without giving prior notice to the State, that Mr. Costello gave an oral confession during their above-mentioned meeting. The probation officer testified that Mr. Costello confessed that he snorted heroin while driving home from work, blacked out, crashed into the victim's vehicle, and woke up sometime after the crash. Defense counsel did not object to the probation officer's testimony, and he did not move to strike it from the record of the proceedings. Rather, at the conclusion of this testimony, defense counsel requested a sidebar and then moved for a mistrial on the basis that the State improperly elicited this testimony in violation of the trial court's pretrial ruling on the admission of certain documentary evidence. The court denied the motion for a mistrial and stated:
I don't detect that what this witness said was in any way the same as what that portion of that document said. So I'm going to deny your motion ... as I recall what was redacted was not in any way what this witness just testified to regarding the snorting heroin, crossing bridge, blacking out, and waking after the car was flipped over ....
Following the close of the State's case, Mr. Costello renewed his motion for a mistrial on the same grounds as his earlier motion—that is, that the officer's testimony violated the court's prior ruling that Mr. Costello's statement that he violated Part E of the rules governing his early release from prison was inadmissible. The trial court again denied the motion and stated:
[The probation officer] testified that the defendant told him that he had ingested a substance, heroin, and that he recalls crossing the bridge and then the next thing he lost consciousness and woke when his car was upside down. The statement that was redacted says, and I quote, "You did violate Rule E of the rules and regulations governing your release on probation and that on or about 7-24-17 you did manifest behavior that threatened the safety of yourself or others, or that could result in imprisonment; which caused you to be charged with DUI, narcotics with felony serious bodily harm." I don't see those as even close to identical statements.
After the motion for mistrial was denied, Mr. Costello testified in his own defense. He admitted that he made a confession to his probation officer but claimed that he had been untruthful in order to shorten his jail sanction for violating his probation. At the close of all the evidence, Mr. Costello once again moved for a mistrial and also moved for acquittal. These motions were denied.
The jury convicted him of one count of DUI causing serious bodily injury, as alleged in the indictment. Mr. Costello moved for a new trial and later filed a supplemental motion for a new trial. At a hearing on the motion, he argued that the State's failure to disclose his confession was error, and that, had the confession been properly disclosed, he would have "[a]ltered [his] trial strategy in significant ways if that information had been presented ... before trial." Mr. Costello also argued that the circuit court should have held a pretrial hearing to determine if his confession was voluntary. The State countered that, during the prosecuting attorney's multiple conversations with Mr. Costello's probation officer prior to trial, he never once mentioned that he had given a full confession. The circuit court acknowledged that neither party was aware that the officer would testify about Mr. Costello's confession and, indeed, he did not accuse the State of intentionally withholding this evidence.
The court ultimately denied Mr. Costello's motion for a new trial and concluded that its pretrial ruling excluding his written statement did not include the oral confession he made to his probation officer and that, in fact, the motion to suppress sought to suppress Mr. Costello's statements only and, thus, could not be construed to encompass the officer's testimony about the confession that he consumed heroin before the accident. Regarding the voluntariness of the confession, the circuit court determined that no hearing was required because Mr. Costello failed to argue that the confession was involuntary.
In its order denying the motion for a new trial, the circuit court found that, "[a]t trial, [Mr.] Costello did not object to the admissibility of his oral confession based upon voluntariness, did not request a hearing on voluntariness, nor did [Mr.] Costello request any exclusion of the oral confession based on nondisclosure by the State prior to trial." Further, the court found that Mr. Costello
should have informed his attorney about his oral confession before trial so counsel 1) could have attempted to suppress his oral confession pretrial; and/or 2) been prepared at trial to address the confession through objections, motions, cross-examinations, proposed jury instructions, and associated argument. Any error resulting from such recalcitrance is one of defendant's own making.
Finally, the circuit court determined that even if Mr. Costello's "confession was involuntary and improperly admitted, the error was harmless beyond a reasonable doubt." Among other things, the circuit court noted that the evidence at trial included recorded jailhouse calls between (1) Mr. Costello and his mother and (2) Mr. Costello and his fiancée which, "even without [the probation officer's] testimony would, beyond a reasonable doubt, have resulted in [Mr.] Costello's conviction[.]"
The State thereafter filed a recidivist information in which it alleged that Mr. Costello previously had been convicted of two felony offenses: (1) possession of heroin with intent to distribute in Frederick County, Maryland, on May 14, 2012, and (2) distribution of crack cocaine in the United States District Court for the Northern District of West Virginia, on September 5, 2000. The jury convicted Mr. Costello as charged in the information. The circuit court sentenced him to life in prison, with mercy. This appeal followed.
II.
STANDARD OF REVIEW
Because Mr. Costello alleges multiple assignments of error to which we apply different standards of review, we set out each particular standard of review in connection with our discussion of each assigned error.
III.
DISCUSSION
In the case sub judice , Mr. Costello raises several alleged errors. First, he alleges that a mistrial should have been granted following the testimony of his probation officer because the officer testified to an undisclosed oral statement. Second, Mr. Costello contends that the State failed to prove his prior Maryland conviction beyond a reasonable doubt. In connection with his challenges to the sufficiency of the evidence, Mr. Costello also alleges that it was error for the trial court to rule, as a matter of law, that his prior convictions were felonies. Lastly, he argues that his life sentence under the recidivist statute, West Virginia Code section 61-11-18(c), is constitutionally disproportionate. We address each of these arguments in turn.
A. Denial of Motion for Mistrial
Mr. Costello alleges that the trial court erred in denying his motions for mistrial. Specifically, he argues that the trial court should have granted the motions for mistrial because the probation officer's undisclosed testimony at trial was an undue surprise that hampered the preparation and presentation of his case. We review this alleged error under an abuse of discretion standard. "The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court." Syl. pt. 8, State v. Davis , 182 W. Va. 482, 388 S.E.2d 508 (1989). Accord State v. Lowery , 222 W. Va. 284, 288, 664 S.E.2d 169, 173 (2008) ("The decision to grant or deny a motion for mistrial is reviewed under an abuse of discretion standard.").
1. Discovery Violation. According to Mr. Costello, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, the State was required to disclose the probation officer's proposed testimony—regarding Mr. Costello's oral confession—prior to trial in its disclosure. Mr. Costello contends that he had a right to rely upon his discovery requests and the absence of a confession in the State's discovery responses and disclosures. Mr. Costello further argues that because the probation officer's testimony was permitted, his defense—that he was sober when the accident occurred and that he consumed the heroin in an effort to dispose of it—was obliterated at trial due to the surprise. He asserts that the State had an ongoing obligation to supplement its discovery disclosure, and that in failing to disclose the oral confession, the State violated the discovery rules.
Rule 16 of the West Virginia Rules of Criminal Procedure states, in pertinent part:
Upon request of a defendant the state must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state; that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest in response to interrogation by any person then known to the defendant to be an agent of the state; and recorded testimony of the defendant before a grand jury which relates to the offense charged. The state must also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be an agent of the state if the state intends to use that statement at trial.
(Emphasis added).
The State rebuts this argument and contends that Mr. Costello's objections regarding discovery violations were not raised below in his motions for mistrial. As such, it is the State's position that this argument cannot be raised for the first time on appeal. According to the State, Mr. Costello sought a mistrial on two grounds: (1) the probation officer's testimony violated the trial court's in limine ruling that excluded one of Mr. Costello's written admissions; and (2) the trial court should have conducted a voluntariness hearing to determine whether Mr. Costello's oral confession was voluntary. Therefore, because the trial court was never asked to rule on whether a discovery violation occurred, it is improper for this Court to address this issue on appeal.
In general, a party who has not raised a particular issue or defense below may not raise it for the first time on appeal. "Indeed, if any principle is settled in this jurisdiction, it is that, absent the most extraordinary circumstances, legal theories not raised properly in the lower court cannot be broached for the first time on appeal. We have invoked this principle with a near religious fervor." State v. Miller , 197 W. Va. 588, 597, 476 S.E.2d 535, 544 (1996). This Court stated in State ex rel. Cooper v. Caperton , 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996) :
To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect. The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace.... The forfeiture rule that we apply today fosters worthwhile systemic ends[,] and courts will be the losers if we permit the rule to be easily evaded. It must be emphasized that the contours for appeal are shaped at the circuit court level by setting forth with particularity and at the appropriate time the legal ground upon which the parties intend to rely.
Moreover, it has been noted that
" ‘[o]ne of the most familiar procedural rubrics in the administration of justice is the rule that the failure of a litigant to assert a right in the trial court likely will result’ in the imposition of a procedural bar to an appeal of that issue." State v. Miller , 194 W. Va. 3, 17, 459 S.E.2d 114, 128 (1995), quoting United States v. Calverley , 37 F.3d 160, 162 (5th Cir. 1994) (en banc), cert. denied , 513 U.S. 1196, 115 S. Ct. 1266, 131 L.Ed.2d 145 (1995). Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights.... When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time.
State v. LaRock , 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996).
In the case sub judice , Mr. Costello did not take the necessary measures to preserve the issue of a discovery violation. Before the trial, the assistant prosecutor for Jefferson County interviewed the probation officer and inquired as to the details of his meeting with Mr. Costello. The probation officer noted that Mr. Costello provided a written confession in which he admitted to being in possession of heroin, but he did not disclose the existence of an oral confession. Likewise, Mr. Costello did not disclose to his counsel that he had made an oral confession to the probation officer. Thus, while Mr. Costello's counsel moved, in limine , to suppress the written confession, neither he nor the State's attorney had knowledge of the oral confession.
After the probation officer testified to Mr. Costello's oral confession during direct examination, Mr. Costello's counsel did not object, and he also did not move to strike the testimony. Similarly, his counsel did not object or move to strike the testimony during re-direct examination. Rather, Mr. Costello's counsel waited until the completion of the probation officer's testimony, and then requested a sidebar. During the sidebar, his "counsel sought a mistrial on the basis that such testimony was foreclosed by the [c]ourt's earlier ruling that one of the two written statements made by [Mr.] Costello was inadmissible." The motion for mistrial was denied because the oral confession was unknown to both parties and it was not part of the court's earlier analysis regarding the admissibility of the written statements. After the motion for mistrial was denied, Mr. Costello testified on his own behalf and admitted that he had made the oral confession as the probation officer described. Once again, post-trial, Mr. Costello filed a motion for a new trial and argued that the trial court erred in failing to grant a mistrial and in failing to conduct a hearing to determine whether his oral confession to the probation officer was voluntarily made.
From the record, it is apparent that Mr. Costello failed to preserve a discovery objection to the oral confession disclosed by the probation officer. Once the probation officer testified, Mr. Costello's counsel made no objection. More interestingly, Mr. Costello then chose to testify and conceded that he did make the confession. When his counsel did object to the testimony—in the motions for mistrial and motion for a new trial—his objections were never based on a violation of the discovery rules. Therefore, we find that the objection was waived because it was not raised below. Thus, we find that the circuit court did not err in denying Mr. Costello's motions for mistrial.
2. Harmless Error. Even assuming, arguendo , that Mr. Costello had properly preserved his discovery objection, his argument does not survive a harmless error analysis. When analyzing trial errors, this Court generally views them in two subcategories: (1) evidence introduced by the State which is claimed inadmissible; and (2) evidence offered by the defendant but rejected at trial.
When dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.
State v. Guthrie , 194 W. Va. 657, 684, 461 S.E.2d 163, 190 (1995).
As explained above, the admission into evidence of Mr. Costello's oral confession occurred during the State's direct examination of the probation officer. On appeal, Mr. Costello contends that the undisclosed statement violated discovery rules, contravened the court's prior ruling regarding his written statements, and "uprooted his defense: that he was sober when the accident occurred and subsequently swallowed the heroin to dispose of the drugs."
Our initial inquiry is whether the State's case, absent this testimony, proved the crime so that the jury would be convinced of Mr. Costello's guilt beyond a reasonable doubt. After reviewing the trial transcripts, we conclude that sufficient evidence was provided at trial—without the probation officer's testimony—for a jury to convict Mr. Costello. In particular, the jury heard testimony regarding recorded jail house phone calls between Mr. Costello and his fiancée, as well as with his mother, from which the jury could have reasonable concluded that Mr. Costello consumed the heroin prior to the accident. During the trial, Mr. Costello's fiancée testified about a conversation that she had with Mr. Costello after his arrest. In the recorded conversation, Mr. Costello admits—in code—that the accident likely occurred because he was impaired after using heroin:
Mr. Costello's Counsel: Do you – do you remember a conversation he had with you where he tried to use code to describe what had happened?
Fiancée: Yes.
Mr. Costello's Counsel: Talked about bubble gum?
Fiancée: Yes.
Mr. Costello's Counsel: I'm going to read that passage to you from that call, okay. I want you to tell me what your understanding of it was at that time. He says, "Can you read between the lines here? You listening?" And you say, "Yeah." He says, "It was an accident." You say, "I understand that." He says, "But I had one – I had a couple pieces of bubble gum, you hear me?" You call him an idiot.
Fiancée: Yes.
Mr. Costello's Counsel: He says, "That I chewed up. You listening?" You say, "Uh-huh." "It did that to me. That's where all of that came from, Babe. I deserve it one hundred percent."
Additionally, the jury heard testimony from eyewitnesses who testified that Mr. Costello exhibited behavior of being under the influence of drugs at the time of the accident. One of these witnesses was Beth Ann Gearheart—a recreation therapist who worked for twenty years in the addiction unit with individuals who were struggling with addictions. Ms. Gearheart was driving home from work and witnessed the automobile accident. After seeing a vehicle go airborne and land on its hood near her car, she exited her car and looked inside of the crashed vehicle. The man inside the vehicle was Mr. Costello. During her testimony, Ms. Gearheart was asked to describe his appearance as he exited his vehicle:
Ms. Gearheart: He was very disoriented. I asked him if he was okay. He said "What had happened?" His eyes were red. He smelled of alcohol. His eyes were glossy, very disoriented, and like, wouldn't even let me really take a look at him. He just wanted to kind of – he kept walking and pacing, and I would just keep following him and trying to get a look at him to make sure he was okay.
...
To me he appeared to be under the influence. I mean, just very disoriented. Didn't want you to bother him.
The next inquiry in the harmless error test is to examine the impact of the error on the jury verdict.
In any inquiry into the prejudicial impact of the error, we will be guided by whether the record reveals that the error was repeated or singled out for special emphasis in the State's argument. We will scrutinize the record to determine if the error became the subject of a special instruction to the jury, or produced question from the jury. Also of importance is the overall quality of the State's proof.
State v. Atkins , 163 W. Va. 502, 514-15, 261 S.E.2d 55, 62 (1979). We find that the admission of the probation officer's testimony was not error; however, even if it was erroneous, it did not have a prejudicial impact on the jury verdict. Although this statement—regarding an oral confession by Mr. Costello—was consistent with the State's theory of the case, the State presented ample evidence through other means such as eyewitness testimony and testimony from Mr. Costello's family and friends. Furthermore, on a closer examination of the trial transcript, it is clear that the State did not unnecessarily repeat or emphasize the probation officer's testimony. Rather, during closing, the State relied on the consistent testimony across a wide variety of witnesses—police officers, eyewitnesses, friends, and family—to convince the jury of Mr. Costello's guilt. Taking all of this evidence as a whole and excluding the probation officer's testimony regarding Mr. Costello's oral confession, we conclude that the jury would be convinced that the State proved its case beyond a reasonable doubt. Therefore, even if the probation officer's testimony was wrongfully admitted, we find it was harmless error. B. Sufficiency of the Evidence
Mr. Costello next contends that the State presented insufficient evidence of his prior Maryland conviction during the recidivist trial because it did not introduce a judgment order. Additionally, he argues that the trial court's ruling—that his prior convictions qualified as "crime[s] punishable by confinement in a penitentiary" as a matter of law—relieved the State of its burden of proof and improperly directed a verdict on the character of his convictions.
1. Evidence to Support Maryland Crime. First, Mr. Costello alleges that the State presented insufficient evidence of his Maryland conviction. When reviewing sufficiency of the evidence challenges, the standard is as follows:
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.
....
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 assessments that 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. pts. 1 and 3, State v. Guthrie , 194 W. Va. 657, 461 S.E.2d 163 (1995). We also have held that
[w]hen 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).
Mr. Costello alleges that the State failed to present sufficient evidence to prove his Maryland conviction beyond a reasonable doubt. In particular, he argues that the State should have produced an order adjudicating him guilty of a felony. As such, Mr. Costello contends that the State presented insufficient evidence and this Court should therefore vacate his life sentence and remand the case for a new sentencing hearing.
The State maintains that the sum total of the documents it presented conclusively, unequivocally, and sufficiently establishes that Mr. Costello was convicted of a crime—possession of heroin with intent to distribute—in Frederick County, Maryland and was sentenced to twenty-five years of imprisonment with ten of those years suspended. To establish Mr. Costello's Maryland conviction, the State produced docket sheets; documents generated the day of the arrest (complaint, commitment pending hearing, and initial appearance questionnaire); courtroom worksheets; probation/supervision order; a certified commitment order completed by the Circuit Court of Frederick County; Maryland sentencing guideline worksheet; and Mr. Costello's probation transfer request and approval. The State also elicited testimony from Mr. Costello's mother and girlfriend.
In State v. Guthrie , this Court stated that
[a]ppellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt. This standard is a strict one; a defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.
....
[W]hen reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, [ ] it does not matter how we might have interpreted or weighed the evidence. Our function 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.
194 W. Va. at 667-68, 461 S.E.2d at 173-74 (1995).
After reviewing the record, we find that the evidence presented at trial illustrates that Mr. Costello cannot meet the heavy burden as set forth in State v. Guthrie . While Mr. Costello offers a conclusory assertion that the evidence put forth to prove the Maryland conviction was insufficient because of the lack of a judgment order, he does not offer anything to demonstrate that the evidence that was presented was inadequate on its own. Although judgment orders are typically used as evidence in recidivist trials, "we may accept any adequate evidence, including circumstantial evidence, as support for the conviction." Id. at 668, 461 S.E.2d at 174. The State introduced sufficient evidence of the Maryland conviction, including a certified commitment order and witness testimony establishing, beyond a reasonable doubt, that Mr. Costello was convicted in that state of possession of heroin with intent to distribute and was sentenced to twenty-five years in prison. The commitment order, described above, in and of itself was sufficient evidence for a jury to find that petitioner had been convicted of that crime. However, the State did not stop there, but, rather, provided additional documentation as further evidence of the Maryland conviction: a certified sentencing worksheet from that case that was signed by the presiding judge and which noted Mr. Costello's conviction and sentence imposed; an initial appearance questionnaire relating to the case; and a transfer request. Mr. Costello's mother and girlfriend also testified that he had been convicted of a drug crime in Maryland. Accordingly, we find that, when taken as a whole, the evidence put forth by the State was sufficient to support a finding that Mr. Costello was convicted of the Maryland crime.
2. Prior Convictions Under West Virginia Code Section 61-11-18. Next, Mr. Costello alleges that the trial court erred when it improperly directed a verdict on the element of the character of his prior convictions. He contends that the State was required to prove every element of his crimes beyond a reasonable doubt and one element that must be proven during a recidivist trial is the correct character of a prior conviction—that is, whether the prior conviction was a felony or a misdemeanor. Mr. Costello maintains that by instructing the jury that the alleged prior convictions were, as a matter of law, felonies punishable by imprisonment, the State was relieved of its burden to prove the character of the prior offenses beyond a reasonable doubt.
The State asserts that the trial court correctly ruled that whether Mr. Costello's previous convictions fall within the parameters of West Virginia Code section 61-11-18 was a question of law. Further, the corresponding jury instruction—that the alleged prior convictions constituted "crimes punishable by confinement in a penitentiary"—was proper.
This Court has never decided the issue of whether, for purposes of a recidivist proceeding, a conviction for a certain crime qualifies as a crime punishable by confinement in a penitentiary is a question of law for the court or a question of fact for a jury. Other courts, however, have considered this question. The Supreme Court of Indiana examined this issue in Griffin v. State , 275 Ind. 107, 118-19, 415 N.E.2d 60, 67 (1981) and provided the following rationale:
Permitting the jury to determine whether Griffin's prior convictions, for theft and entering to commit a felony, were for felonies, would invite their independent judgment as to the fairness of the categorization of those offenses as felonies by the legislature. Whether the jury approves of the categorization of the offenses as felonies has no bearing on whether the accused has been convicted of those offenses. Thus, allowing the jury to make such a judgment would give that body the opportunity to move far outside its realm and consider totally irrelevant factors in deciding the defendant's status as a habitual offender. In addition, permitting the jury to determine whether a given offense is a felony would allow them to decide a pure question of law which has previously been settled by the legislature; given such an opportunity, the jury might possibly reach a different conclusion from that properly drawn by the legislature.
Accord United States v. Campbell , 94 F.3d 125 (4th Cir. 1996) ("Court of Appeals reviews district court's imposition of offense level increase under Sentencing Guidelines de novo, inasmuch as it involves interpretation of statute, which presents question of law."); State v. Brown , 452 So.2d 326, 329 (La. Ct. App. 4th Cir. 1984) ("All the jury was required to know was that the defendant had been convicted of a crime which would have been a felony under Louisiana law. That determination is a question of law, not fact, and thus was not required to be presented to the jury."); State v. Burgess , 216 N.C.App. 54, 56, 715 S.E.2d 867, 870 (2011) ("Whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law involving comparison of the elements of the out-of-state offense to those of the North Carolina offense."). In summary, "[t]he legislature never intended to leave the grade of any offense to the discretion of a jury." Benton v. Commonwealth , 89 Va. 570, 572, 16 S.E. 725, 725 (1893)
We agree with the conclusion of these jurisdictions. The key inquiry for a jury in a recidivist proceeding is the identity of the defendant. See State v. Barlow , 181 W. Va. 565, 571, 383 S.E.2d 530, 536 (1989) ("The defendant's identity in an habitual criminal proceeding is the key factual issue, and the burden is, of course, on the State to establish that the defendant is the same individual who was convicted previously"); State v. Vance , 164 W. Va. 216, 262 S.E.2d 423 (1980) ("Where the issue of identity is contested in an habitual criminal proceeding, the State must prove identity beyond a reasonable doubt."). Accord State v. McMannis , 161 W. Va. 437, 242 S.E.2d 571 (1978) ; State v. Lawson , 125 W. Va. 1, 22 S.E.2d 643 (1942). However, while the jury is responsible for making the factual determination of identity, it should not be tasked with deciding a purely legal question—whether a particular crime is a felony or misdemeanor. See Harrison v. Town of Eleanor , 191 W. Va. 611, 616, 447 S.E.2d 546, 551 (1994) ("Consequently, it is well-established that determinations involving questions of law are within the sole province of the court, while determinations of fact are within the province of the jury. Thus, the court must resolve questions of law and cannot delegate that responsibility to the jury. When a court permits a jury to make legal determinations, reversible error occurs here.").
Instructing a jury whether prior crimes are felonies or misdemeanors does not relieve the State of its burden in a recidivist proceeding. Rather, this inquiry involves a legal question regarding the interpretation of a statute which is within the purview of the judge; the jury is tasked with determining the factual issue of identity. We hold, therefore, that for purposes of a recidivist proceeding, whether a conviction for a certain crime qualifies as a crime punishable by confinement in a penitentiary is a question of law for the court. As such, in the case sub judice , we find that the trial court did not err when it instructed the jury that Mr. Costello's prior crimes constituted crimes punishable by confinement in a penitentiary under the law. C. Proportionality of Life Sentence
Mr. Costello's final assignment of error is that his life sentence is disproportionate. While he acknowledges that his triggering offense—DUI causing serious bodily injury—involved actual violence, he contends that his predicate felonies did not involve actual or threatened violence. This Court has held that sentencing orders are reviewed "under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands. Syllabus Point 1, in part, State v. Lucas , 201 W. Va. 271, 496 S.E.2d 221 (1997)." Syl. pt. 1, State v. James , 227 W. Va. 407, 710 S.E.2d 98 (2011). As we have further described, "[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. pt. 4, State v. Goodnight , 169 W. Va. 366, 287 S.E.2d 504 (1982).
Under West Virginia's recidivist statute, "[w]hen it is determined, as provided in section nineteen of this article, that such person shall have been twice before convicted in the United States for a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correctional facility for life." W. Va. Code § 61-11-18(c). Here, Mr. Costello argues that his recidivist life sentence violates the proportionality principle of the West Virginia Constitution because his prior crimes do not show a pattern of violence.
" Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: ‘Penalties shall be proportioned to the character and degree of the offence.’ " Syllabus Point 8, State v. Vance , , 262 S.E.2d 423 (1980).
Syl. pt. 3, Wanstreet v. Bordenkircher , 166 W. Va. 523, 276 S.E.2d 205 (1981). Furthermore, "[w]hile our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syl. pt. 4, id.
When evaluating whether a recidivist life sentence is constitutional, we examine the following:
The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5 [of the West Virginia Constitution], will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.
Syl. pt. 7, State v. Beck , 167 W.Va. 830, 831, 286 S.E.2d 234 (1981).
More recently, in State v. Hoyle , 242 W. Va. 599, 836 S.E.2d 817 (2019), this Court recognized the need for development in the approach we use to determine whether a recidivist life sentence is constitutionally proportionate. In Syllabus point 12 of Hoyle , we held that
[f]or purposes of a life recidivist conviction under West Virginia Code § 61-11-18(c), two of the three felony convictions considered must have involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such that harm results. If this threshold is not met, a life recidivist conviction is an unconstitutionally disproportionate punishment under Article III, Section 5 of the West Virginia Constitution.
Id. Thus, whether Mr. Costello's life sentence is constitutional in this matter turns on whether two of his felony convictions involved actual violence or, the potential for violence, or had a substantial impact upon the victim.
Applying the Hoyle test to the case sub judice , we find that Mr. Costello's recidivist life sentence should be upheld as constitutionally proportionate. First, it is unquestionable that Mr. Costello's triggering offense—DUI causing serious bodily injury—involved actual violence and had a substantial impact on the child victim who sustained permanent injuries as a result of the crash. Mr. Costello conceded this below and in this appeal. Therefore, we proceed to examine Mr. Costello's predicate offenses.
In September of 2000, Mr. Costello obtained his first felony conviction—distribution of crack cocaine—when he entered a plea agreement in the United States District Court for the Northern District of West Virginia. Pursuant to the plea agreement, he stipulated that, for sentencing purposes, his relevant conduct included 315 grams of cocaine base, three kilograms of marijuana, and eighty-seven grams of cocaine HCL.
Mr. Costello's second felony conviction arose from his December 30, 2011 arrest. He was arrested when the car in which he was traveling from Maryland to West Virginia was pulled over and he was found to be in possession of three bags of heroin. Mr. Costello entered a plea agreement and pled guilty to possession with intent to distribute heroin. He was originally sentenced to twenty-five years in prison with all but ten years suspended. However, his sentence was amended in 2015, and he was released on supervised probation.
Due to the nature of both of Mr. Costello's predicate drug convictions, we conclude that both involved the threat of violence. In State v. Norwood , 242 W. Va. 149, 832 S.E.2d 75 (2019), this Court looked at the nature of the drug at issue—heroin—in determining whether the crime carried an inherent risk of violence. The Court ultimately found that "heroin is illegal, and is a scourge that has saturated our State" 242 W. Va. at 158, 832 S.E.2d at 84, and, thus, "[t]he delivery and ultimate use of heroin carries with it an inherent risk of violence to a person." Id. See also State v. Gaskins , No. 18-0575, 2020 WL 3469894 (W. Va. June 25, 2020) (memorandum opinion) (likening cocaine to heroin, citing the "substantial impact on the victim of the crime ... due to [the drug's] often fatal nature to its users").
When discussing Mr. Costello's first felony, the trial court found:
Defendant Costello's first felony involved the distribution of over 400 grams of cocaine base/HCL in addition to 3,000 grams of marijuana. See United States v. Costello Plea Agreement, State's Exhibit 9B in Recidivist Trial (Doc. No. 410-13). This Court cannot ignore the substantial amount of cocaine involved in the crime nor the significant risk of serious bodily injury or death that the distribution of cocaine creates. Although not the current impetus of the overdose epidemic arising from opioid distribution, cocaine use can result in serious bodily injury or death.
....
Defendant's participation in the distribution of a large amount of a dangerous narcotic elevates the risk that recipients of the poison will suffer serious bodily injury or death from an overdose and enables end users to create additional danger to others, for example, by driving under the influence of the controlled substance. Although Defendant may not have specifically intended any bodily injury or death to arise from his drug-dealing, he nevertheless significantly elevated the danger to society by participating in the distribution of a large amount of a potentially lethal narcotic.
The trial court also commented on Mr. Costello's heroin conviction:
It is beyond cavil that the opioid epidemic has wreaked havoc on our society, ruining or extinguishing countless lives in the process. Instead of correcting his behavior after his first drug conviction and sentence, Defendant began distributing an even more dangerous drug. If nobody died from the heroin Defendant distributed into the community, it was the result of sheer fortuity.... [T]his Court finds Defendant's conviction for possession with intent to distribute heroin is a crime of violence for recidivist purposes.
When taking all of this information into consideration, we conclude that both of Mr. Costello's predicate felonies involved an inherent threat of violence.
Therefore, because his triggering offense involved actual violence, as well as significant, actual harm to another, and both of his predicate felonies involved the threat of violence, the Hoyle threshold is satisfied. Accordingly, we conclude that the sentence imposed by the trial court was not an unconstitutionally disproportionate punishment under Article III, Section 5 of the West Virginia Constitution.
IV.
CONCLUSION
For the reasons set forth above, we find no error and therefore affirm Mr. Costello's recidivist conviction and sentence.
Affirmed.
JUSTICE ARMSTEAD concurs in part and reserves the right to file a separate opinion.
JUSTICE WOOTON concurs in part and dissents in part and reserves the right to file a separate opinion.
Armstead, Justice, concurring:
I concur with the majority's decision affirming Petitioner's conviction and sentence. The Majority's well-reasoned opinion correctly affirms the Petitioner's conviction and properly rejects his contention that the circuit court's denial of his request for a mistrial constituted error. The opinion also correctly rejects Petitioner's claim that the State presented insufficient evidence of his prior Maryland conviction during the recidivist trial.
I write separately because, while I also agree with the majority's rejection of the Petitioner's argument that his life sentence under the recidivist statute is disproportionate, I would reach this conclusion on different grounds. The majority opinion, relying on State v. Hoyle , 242 W. Va. 599, 836 S.E.2d 817 (2019), concluded that "because [Petitioner's] triggering offense involved actual violence, as well as significant, actual harm to another, and both of his predicate felonies involved the threat of violence, the Hoyle threshold is satisfied." While I agree with this conclusion, I believe that the imposition of the recidivist life sentence is proper pursuant to the clear language of the recidivist statute, separate and apart from the test established in Hoyle .
Under West Virginia's recidivist statute, "[w]hen it is determined, as provided in section nineteen of this article, that such person shall have been twice before convicted in the United States for a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correctional facility for life." W. Va. Code § 61-11-18(c). This statute is clear and unambiguous. This Court has held that in deciding the meaning of a statutory provision, "[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." Appalachian Power Co. v. State Tax Dep't of W. Va. , 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995) ; see also Syl. Pt. 2, State v. Epperly , 135 W. Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.").
This statute was amended, effective June 5, 2020. See 2020 W. Va. Acts ch. 88. The 2000 version of the statute applies to this case.
I concur in the majority's analysis of the sufficiency of the recidivist evidence introduced and its conclusion that the character of the underlying offenses is an issue of law. I likewise concur in its conclusion that the nature of the underlying offenses satisfies the requirements of State v. Hoyle , 242 W. Va. 599, 836 S.E.2d 817 (2019). However, given my position that petitioner's conviction of the triggering third offense was erroneous, I would likewise set aside the recidivist conviction and remand for a new trial on the final offense.
Despite the plain language of this statute, this Court has issued a number of opinions imposing additional requirements that must be met for the imposition of a recidivist sentence. These additional requirements are not contained in the plain language of the statute. See State v. Lane , 241 W. Va. 532, 826 S.E.2d 657 (2019) (Armstead, J., dissenting). As I noted in my concurring opinion in State v. Ingram , No. 19-0016, 2020 WL 6798906 (W. Va. Nov. 19, 2020) (memorandum decision):
The majority decision in this case concludes that Petitioner's sentence must be upheld and I agree. It has based such holding primarily on Hoyle and, because the majority of the court adopted the standard set forth in Hoyle in 2019, I believe that the facts in this case meet the Hoyle standard. However, deference to the clear words of the statute provide the proper
support for the decision to uphold Petitioner's recidivist life sentence. Following Petitioner's convictions for delivery of cocaine and delivery of methamphetamine, the State filed a Recidivist Information and an Amended Recidivist Information alleging that Petitioner had previously been convicted of the following two felonies: non-aggravated robbery and attempt to commit third offense shoplifting. The Petitioner was found to be the same individual previously convicted of those crimes. Petitioner was convicted of three felonies and was properly sentenced pursuant to the clear language of the statute. Under the statute, these facts alone warrant imposition of the recidivist life sentence.
As in Ingram , I believe that the imposition of the recidivist life sentence in the present case is proper under the plain language of the recidivist statute. Accordingly, I concur in the Court's decision affirming Petitioner's sentence for the reasons stated in this opinion.
WOOTON, J., concurring, in part, and dissenting, in part:
While I concur with the majority's general analysis of the recidivist issues,1 I respectfully dissent to the majority's refusal to address the obvious prejudice to petitioner resulting from the State's use of an undisclosed confession in obtaining the third and recidivist-triggering offense. Hiding behind claims that this error was somehow unpreserved below—and unwilling to undertake a plain error analysis notwithstanding our clear authority to do so—the majority's opinion leaves the somewhat breathtaking conclusion that the State may use an undisclosed confession against a defendant, as long as the government agent to whom it was made withholds its existence from the prosecutor. In so doing, the majority implicitly sanctions and encourages non-disclosure of confessions and elevates technicalities over the fundamental rights of petitioner.
Petitioner was charged with DUI causing serious bodily injury upon allegations that he used heroin while driving, causing him to crash and seriously injure a young boy. At trial, petitioner's defense was that the crash was purely accidental and that he ingested heroin after the accident to dispose of it. Since petitioner was on probation at the time, he met with his probation officer after the accident. In its required pretrial disclosures, the State disclosed documents generated during the meeting including a document wherein petitioner admitted "us[ing] drugs to wit: Heroin" and "manifest[ing] behavior that threatened the safety of yourself or others, or that could result in your imprisonment; which caused you to be charged with DUI (narcotics) with felony serious bodily harm." Petitioner moved to suppress these written admissions and the trial court agreed that the second statement—admitting to behavior that "threatened [ ] safety" or "could result in [ ] imprisonment"—was inadmissible because it was phrased disjunctively and therefore ran afoul of West Virginia Rule of Evidence 403.
At no time did the State disclose the existence of any oral confession to petitioner's probation officer. In fact, the State represented that despite meeting with the probation officer on four separate occasions to discuss his testimony, he never mentioned a confession. However, at trial, the probation officer—in an admitted surprise to the State, defense counsel, and the court—testified that petitioner confessed to using heroin prior to the accident:
Said he was driving from work. I guess the heroin was called elephant or something to that effect. He was driving from work. He said he snorted the heroin. He remembers crossing the bridge. After he crossed the bridge, he said he blacked out. When he came to, the vehicle had turned over and that's when the accident happened.
The probation officer reiterated and confirmed the critical aspect of this confession—that petitioner used heroin before the accident—on cross and again on redirect:
Q. And he admitted to you that he snorted heroin before he crossed the bridge into West Virginia?
A. And blacked out afterwards, correct.
(footnote added). At the close of the probation officer's testimony, petitioner's counsel requested a sidebar and objected specifically to this testimony, moving for a mistrial as a result. The court stated that "I was not aware at the pretrial conference that this witness would make this statement as admission of what the defendant said[.]" Regardless, the court denied the motion for mistrial because it found that the confession did not fall within the ambit of its order excluding the written admission. Petitioner's counsel then renewed his motion for a mistrial at the close of the State's case, again, based on this surprise alleged confession. Following the verdict, petitioner's counsel yet again orally moved for a new trial on the basis of this undisclosed confession.
During both of these oral motions, counsel made clear that he objected to the admission of this statement but attempted to bootstrap the statement to the previously excluded written admission from the probation documents. Counsel later explained that he framed his initial objection in this manner was because he believed the court's ruling to include "any oral statements which would have been associated with that admission." However, the court disagreed that the statement fell within the contemplation of its order excluding the written statement, particularly given that no one knew about the confession at the time of the court's order.
Petitioner then filed a timely motion for a new trial where he again argued that the undisclosed confession fell within the scope of the written admission that was excluded by the court and otherwise surprised and prejudiced petitioner's defense. The State responded that the confession testified to by the probation officer was offered much "[t]o the State's surprise" and that it could "only speculate why [the probation officer] did not share this information." The State nevertheless maintained that the confession was clearly voluntary and was not excluded by the court's prior order regarding the written admission.
Importantly, during the hearing on petitioner's motion for a new trial, the parties and the court unmistakably focused exclusively on the State's failure to disclose this confession, the State's culpability in that failure, and the effect of petitioner's attempt to explain that confession during his case-in-chief. Petitioner's counsel argued "if the state didn't know about it, then that is a negligent failure to disclose discovery by the state because they should have interviewed their witness and had enough information to know what he was going to testify to." (Emphasis added). Counsel explained that his client was "depriv[ed] [ ] of material information" and explored the devastating impact of a "professional, you know, licensed, bonded state actor saying that they had received a full confession" on petitioner's defense. Counsel maintained that the probation officer's failure to advise the State of the alleged confession only to offer it unsolicited at trial was "misconduct by a state actor .... who intentionally suppressed a highly material statement" and that "[j]ust because [the prosecutor wasn't] ... suppressing the information doesn't mean the state didn't suppress the information." Counsel stated that "[e]verything might have changed regarding trial strategy if I had known that ... we had an actual confession given to a state actor. That changes everything, Your Honor."
Petitioner's counsel also argued more specifically that the failure to disclose stripped petitioner of an opportunity to seek a voluntariness hearing: "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syl. Pt. 5, State v. Starr , 158 W. Va. 905, 216 S.E.2d 242 (1975). He further attempted to disabuse the court of the notion that the testimony on record was sufficient to establish voluntariness because he was denied an opportunity to inquire of his client and prepare to examine the probation officer in that regard. The court appeared to consider having a post hoc voluntariness hearing, but simply denied the motion for new trial instead.
In response, the prosecutor conceded that the State "is required to disclose to the defendant a summary of any oral statement made to an agent of the state and the state is supposed to act with due diligence to try to find that." Although the State did not cite the Rule to the trial court, this concession is a clear reference to Rule 16 of the West Virginia Rules of Criminal Procedure containing this disclosure requirement. The prosecutor then recounted that, despite meeting with him four times, the probation officer was "shocking[ly]" obstructive on certain points and was "directly asked ... ‘what did he tell you about the accident?’ " and that the officer "said he either didn't know or couldn't remember [.]" (Emphasis added). The prosecutor further admitted that "I do recall even [petitioner's counsel] asking [ ] one time ‘are there any—is he going to say anything beyond the documents?’ And I told him no . I said ‘he just doesn't have a memory.’ " (Emphasis added).
Rule 16 of the West Virginia Rules of Criminal Procedure provides, in pertinent part:
(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon request of a defendant the state must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state; that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest in response to interrogation by any person then known to the defendant to be an agent of the state; and recorded testimony of the defendant before a grand jury which relates to the offense charged. The state must also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be an agent of the state if the state intends to use that statement at trial.
(emphasis added).
The trial court conceded the "odd twist" caused by the fact that the State was equally surprised by the alleged confession testimony and remarked that "I would have expected [the probation officer] to have recorded the fact that the statement was made and he didn't." The court noted that "given that the state didn't disclose it, the defendant is now in a bind[.]" Nonetheless, the trial court denied the motion for a new trial—without even addressing the disclosure obligations conceded by the State under Rule 16 or how the State's ignorance of the confession impacted the protections afforded petitioner under the Rule. Instead, the trial court focused on its belief that petitioner should have advised his counsel of the confession, allowing him to preemptively move for suppression, and his subsequent acknowledgment of the confession during his own case-in-chief, when he testified that he confessed to curry favor with the probation officer.
Petitioner testified that the probation officer told him that his probation violations would be handled more leniently if he simply confessed. The officer denied making any such statement.
Despite the record below being replete with discussion of the precise testimony and issue presented—petitioner's entitlement to notice of the State's use of an oral statement made to a state actor—the majority evades the issue entirely by finding that petitioner failed to adequately preserve the error. However, it is undisputed that petitioner's counsel 1) immediately moved for a mistrial on the basis of this undisclosed confession at the close of the probation officer's testimony; 2) renewed the motion for mistrial at the close of the State's case; and 3) orally and in writing moved for a new trial on that basis, thereafter engaging in a lengthy hearing wherein the court and parties argued specifically about the State's disclosure obligations and the resultant prejudice to petitioner. The majority nit-picks these patent attempts to raise and preserve this very specific issue, by suggesting counsel should have contemporaneously objected to and moved to strike the testimony and that counsel's stated opposition was not as precise as it should have been—all resulting in a failure to preserve the error.
However, this Court has found it unnecessary to parse the wording and timing of objections and motions to strike when a party is faced with inadmissible testimony in order to find that the issue was properly preserved for appeal. In State v. Walker , 207 W. Va. 415, 418, 533 S.E.2d 48, 51 (2000), the Court expressly rejected the majority's position herein, finding that where there was no contemporaneous objection to inadmissible testimony, a subsequent motion for mistrial was sufficient to obtain a ruling which was reviewable on appeal. The Court explained that "one of the justifications behind the requirement of contemporaneous objections is to give the trial court an opportunity to rule on an objection, before it is brought to this Court on appeal." Id . at 418, 533 S.E.2d at 51. The Court recognized that petitioner "did not make a contemporaneous objection to the prosecutor's cross examination of his post-Miranda silence. However, subsequent to the cross examination, Mr. Walker motioned [sic] the trial court for a mistrial resulting therefrom." Id . Because his motion for mistrial allowed him to obtain a "definitive ruling" on the issue, this Court found that it was preserved for appeal. Id . That is precisely what occurred in this case.
Moreover, the majority refuses to address the surprise introduction of a confession to an agent of the State through application of the plain error doctrine. Indeed, the majority ignores our clear legal precedent that the Court does not simply have the ability to notice plain error, it has an obligation to do so where the doctrine is satisfied. "To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995); see also W. Va. R. Crim. P. 52. ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). Plain error must be addressed where "the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect .... [and] to avoid a miscarriage of justice." Syl. Pt. 7, in part, State v. LaRock , 196 W. Va. 294, 470 S.E.2d 613 (1996). Moreover, this Court has observed that "where there is a serious criminal conviction ... it behooves the Court to conduct a plain error analysis on appeal, rather than dragging the proceedings out over many ensuing years." State v. Lively , 226 W. Va. 81, 93, 697 S.E.2d 117, 129 (2010). A previously undisclosed confession that surprises not only the defendant but also the prosecution, and most assuredly strikes right at the heart of a defendant's defense, would certainly appear to warrant this Court's consideration regardless of its ultimate determination.
Petitioner's failure to raise plain error provides the majority no excuse for ignoring this serious issue, which was squarely briefed by the parties. This Court has repeatedly stated that "this Court's application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule." State v. Myers , 204 W. Va. 449, 456, 513 S.E.2d 676, 683 (1998) ; see also State v. Deel , 237 W. Va. 600, 608, 788 S.E.2d 741, 749 (2016) ("Petitioner failed to object before the circuit court to any error concerning his constitutional rights ... and failed to argue the issue on appeal. These failures, however, do not ... preclude us from examining an issue under a plain error analysis."); State v. Lively , 226 W. Va. 81, 93, 697 S.E.2d 117, 129 (2010) ("Although the Defendant does not ask the Court to notice plain error, the Court can sua sponte apply the plain error doctrine if the record below is sufficient for such analysis."); State v. Rash , 226 W. Va. 35, 41, 697 S.E.2d 71, 77 (2010) ("Although assignment of error seven, the plain error rule, was likewise not raised in the Petition for Appeal, this Court has held that we may, in the interest of justice, consider this issue sua sponte .").
The majority plays coy with the error presented, suggesting that because neither petitioner nor the trial court fully captured the ostensibly controlling authority— Rule 16 —in the proceedings below, the error was not adequately preserved and therefore undeserving of review. However, the applicability of Rule 16 has been fleshed out and squarely presented to this Court; yet the majority declines an opportunity to aid in framing the issue and addressing it. Had it deigned to address the disclosure issue head-on, the only reasonable conclusion would be that petitioner was prejudiced in his defense and is entitled to a new trial.
It is well-understood that some of the most compelling evidence that can be introduced in a criminal trial is a confession—particularly to a known state actor such as a probation officer. Disclosure of statements of a defendant, whether full-blown confessions or not, are governed by Rule 16, requiring the State to produce written or recorded statements and "any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be an agent of the state if the state intends to use that statement at trial." (Emphasis added). The protections afforded to a defendant through pretrial discovery and disclosures are fundamental:
Discovery is one of the most important tools of a criminal defendant. The purpose of Rule 16(a), our basic discovery rule in criminal cases, is to protect a defendant's right to a fair trial. The degree to which that right suffers as a result of a discovery violation cannot be determined by simply asking would the nondisclosed information enhance or destroy the State's case. A significant inquiry is how would the timely access of that information have affected the success of a defendant's case.
State ex rel. Rusen v. Hill , 193 W. Va. 133, 139, 454 S.E.2d 427, 433 (1994).
The Court has made clear that "it is necessary in most criminal cases for the State to share its information with the defendant if a fair trial is to result." Id . at 139, 454 S.E.2d at 433. Accordingly, we have held that a petitioner is prejudiced by a Rule 16 discovery violation if "the non-disclosure surprise[d] the defendant on a material fact, and (2) ... hamper[ed] the preparation and presentation of the defendant's case." 193 W. Va. at 133, 454 S.E.2d at 427, Syl. Pt. 2, in part. There can be little doubt of both factors in this case. Unquestionably, everyone involved was surprised by the probation officer's testimony. More importantly, this undisclosed confession struck a fatal blow to defendant's stated defense. In fact, the significance of this confession raises the consideration of whether a trial would have even ensued had petitioner been apprised that the State intended to use it in its case-in-chief. See Id. at 139, 454 S.E.2d at 433 ("[C]omplete and reasonable discovery is normally in the best interest of the public ... [because] it may very well encourage plea negotiations."); see also United States v. Lewis , 511 F.2d 798, 802 (D.C. Cir. 1975) ("[A] principal purpose of discovery is to advise defense counsel what the defendant faces in standing trial; it permits a more accurate evaluation of the factors to be weighed in considering a disposition of the charges without trial. While we cannot know whether such disclosure would in this case have led to disposition without trial, we do know that such disclosure does result in such dispositions in many cases.").
I recognize that this case presents an anomaly that plainly confounded the trial court—the fact that the State itself did not know about the alleged confession and did not elicit the probation officer's testimony in that regard. The State argues strenuously that because it did not "intend" to use the confession at trial (because it did not know about it), no Rule 16 violation occurred. By emphasizing that it committed no wrongdoing in failing to disclose the confession, the State improperly extrapolates that into a conclusion that there was no trial error that prejudiced petitioner. This Court considered and dispensed with these arguments decades ago.
This Court has made clear that "[a] police investigator's knowledge of evidence in a criminal case is imputed to the prosecutor" for purposes of disclosure of exculpatory evidence under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Hatfield , 169 W.Va. 191, 286 S.E.2d 402 (1982). Syl. Pt. 1, in part, State v. Youngblood , 221 W. Va. 20, 650 S.E.2d 119 (2007). In Youngblood , the state failed to produce a note which provided impeachment evidence in response to a Rule 16 discovery request; during the investigation, a Trooper had directed a witness to throw it away. 221 W. Va. at 24, 650 S.E.2d at 12. The Court found that despite police investigators failing to advise the prosecutor of the existence of the note, the non-disclosure was imputed to the State and warranted a new trial. Id . at 33-34, 650 S.E.2d at 132-33.
To the extent the State distinguishes this particular evidence from Brady -level disclosure obligations because it was inculpatory rather than exculpatory , the Court has likewise already considered this issue. In State v. Hager , 176 W. Va. 313, 316, 342 S.E.2d 281, 284-85 (1986), overruled on other grounds by State v. Woodson , 181 W. Va. 325, 382 S.E.2d 519 (1989), the Court ordered a new trial due to the introduction of an undisclosed statement during rebuttal which the prosecution only first learned of at trial. The Court explained,
[T]his Court has consistently held that where a failure to make disclosure hampers the preparation and presentation of the defendant's case, such nondisclosure is fatal to the prosecution's case. See , syl. pt. 2, State v. Grimm , 165 W.Va. 547, 270 S.E.2d 173 (1980) ; syllabus, State v. Ellis, 176 W.Va. 316, 342 S.E.2d 285 (1986). Our holding in Grimm recognized that adequate preparation by the defense is a prerequisite to a fair trial. We cannot allow a failure by the prosecution, albeit unintentional, to prejudice the defendant's right to a fair trial.... In this case, the appellant was not advised of the evidence until the rebuttal stage of the trial. The evidence strongly rebutted Mr. Hager's self-defense argument, his key defense. It is quite probable that had defense counsel known of this statement, it would have tried the case differently.
Id . at 316, 342 S.E.2d at 284-85 (emphasis added); see also State v. Miller , 178 W. Va. 618, 626, 363 S.E.2d 504, 512 (1987) (finding error where undisclosed, incriminating oral statements were introduced yet trial court "utilized no sanctions to alleviate what was recognized as a prejudicial situation.").
Simply because the State did not deliberately solicit the testimony about the undisclosed confession does not make it any less of an unfair surprise to petitioner or any less prejudicial to his defense than it would be if the State knew about it and failed to disclose it under the Rule or a discovery order. As such, the disclosure is no less violative of the protections afforded by Rule 16. See Smith v. United States , 491 A.2d 1144, 1147 (D.C. 1985) (finding that "the integrity of the criminal process cannot be preserved" where defendant is not given "accurate[ ] and unambiguous[ ]" information in response to disclosure request). Had the majority undertaken an analysis of the Rule and a comprehensive review of the fairness and integrity of the proceedings, it undoubtedly would have concluded that petitioner succumbed to "trial by ambush"—whether that was the State's intention or not.
Preoccupied by the absence of perceived fault on the part of the prosecutor, the trial court focused on petitioner's own culpability in an effort to frame the issue, and it is here that the trial court most profoundly missed the mark. In denying the motion for a new trial, the trial court fixated on the fact that petitioner was surely the only one who knew about the confession and should have advised his counsel that he made it, thereby prompting counsel to "preemptively" move to suppress it. The court hypothetically weighed the competing interests of counsel in moving to suppress a confession revealed by his client and his duty of confidentiality. Petitioners’ counsel aptly responded, "Why would we object to the voluntariness of the statement that we have no reason to believe is in evidence, Your Honor?" Nonetheless, the trial court found that petitioner was obligated to tell his attorney about the alleged confession so that counsel could move to suppress or be prepared to counter it at trial, stating that "[a]ny error resulting from such recalcitrance is one of defendant's own making." However, this is a badly misguided view of our criminal procedural rules and caselaw. If one presumes that a defendant must surely "know" of all the evidence against him and, despite no indication from the State that it knows of it or intends to use it, he must take the initiative to preempt it and thereby incriminate himself, our entire system of pretrial discovery and disclosure is rendered meaningless. More importantly, placing this obligation on a defendant is plainly prohibited by the Fifth Amendment privilege against self-incrimination.
Further, this is an extraordinarily dangerous view that presumes the confession occurred . The trial court made this assumption despite the State's self-preserving insistence that it directly and repeatedly asked the probation officer what petitioner said about the accident and was told that he did not know or remember. Indeed, the idea that a government agent would suddenly remember on the stand that a defendant made an unequivocal confession, when he failed to recall it on four previous occasions when discussing his testimony is highly suspect. As such, the trial court's assignment of blame on petitioner is even more deeply flawed given the possibility that the confession never even occurred, thereby theoretically obliging a defendant to preemptively move to suppress a confession he never made.
Further, the trial court's focus on petitioner's subsequent admission to the "confession" for purposes of mitigating its effect sets a dangerous precedent: allowing a defendant to be "cornered" by inadmissible evidence in the hopes that he will concede to it in an attempt to save himself, and then using that concession to excuse the error. When surprised by the admission of the alleged confession and the trial court's refusal to declare a mistrial, petitioner and his counsel were faced with only two options which had to be determined instantaneously: admit to the confession, attempt to explain it, and incorporate it into his already-stated defense, or deny the confession. It is precisely the unfairness of this predicament that underscores the error: the trial court unfairly penalized petitioner for choosing the wrong defensive tactic—which he was required to choose at a moment's notice—and used it to rationalize that no error occurred in the first instance. The majority's refusal to address merely sanctions the trial court's badly skewed reasoning.
The majority's attempt at further demonstrating the harmlessness of this error is scarcely more persuasive. It points to two pieces of testimony as indicative of the "ample evidence" produced in support of petitioner's guilt, making the confession "harmless": 1) a "coded" phone call with his fiancée; and 2) testimony from an eyewitness about petitioner's appearance after the accident. However, the "coded" phone call is—at best—entirely consistent with petitioner's defense: that he consumed heroin at the accident scene. At no point in this "coded" phone call does he express with any clarity when he consumed it—ultimately the lone issue of consequence. Even less consequential is the testimony from the eyewitness, who testified that after having been involved in an auto accident where his car was airborne and landed on its hood, petitioner was "disoriented" and unconcerned with a stranger's attempt to "take a look at him." To suggest that this testimony is of such compelling nature as to make the surprise introduction of a confession to a State agent "harmless" defies credulity.
The obligations and operation of Rule 16 where vital, undisclosed evidence is unintentionally introduced into evidence is a question worthy of this Court's analysis. More importantly, regardless of the answer to that question, it is plain that the State's use of an undisclosed and highly problematic confession resulted in a trial that was fundamentally unfair. It is the obligation of this Court to carefully consider issues of such fundamental importance. Accordingly, while I concur in the majority's analysis of the recidivist proceedings, I respectfully dissent to its refusal to address the central, troubling error presented in this appeal and would award petitioner a new trial on his triggering recidivist offense, vacating the resulting recidivist conviction.