Jeremy Allen Marcum, by counsel Kerry A. Nessel and Timothy
P. Rosinsky, appeals the September 6, 2016, order of the
Circuit Court of Wayne County denying his requests for a new
trial and post-verdict judgment of acquittal following his
convictions for first-degree murder, malicious wounding,
conspiracy to commit murder, and conspiracy to commit
first-degree robbery. Respondent the State of West Virginia,
by counsel Erica N. Peterson, filed its response.
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. For these
reasons, a memorandum decision affirming the circuit
court's order is appropriate under Rule 21 of the Rules
of Appellate Procedure.
admitted to police that in the early morning hours of
November 12, 2014, he stabbed James "Red" Bundy to
death and stabbed and beat Mr. Bundy's wife, Myrtle
Bundy. Petitioner was arrested and gave a videotaped
statement confessing to the murder of Mr. Bundy and stabbing
of Ms. Bundy; the confession was given in the back of a
police cruiser outside of the police station. Thereafter,
petitioner was indicted for murder, malicious wounding,
conspiracy to commit murder, and conspiracy to commit
December 10, 2015, petitioner filed a motion to suppress his
videotaped statement to police, arguing that he was so
intoxicated that he could not knowingly and voluntarily waive
his right to remain silent. Following a hearing on the
motion, during which the circuit court heard testimony from
two officers and petitioner's mother, the circuit court
denied petitioner's motion by order entered on December
29, 2015. In that order, the circuit court found that around
the time of the statement petitioner was "walking
steadily, " was "quite eloquent, " and was
"under no apparent incapacity within the cruiser."
During a May 16, 2016, hearing, petitioner moved the circuit
court to allow him to edit or redact certain portions of the
videotaped statement he believed were irrelevant or
inadmissible. The State did not object to the removal of
certain utterances, so the circuit court ordered counsel to
meet in advance of trial to redact portions of the video. It
further stated that it would give the jury an instruction
indicating that the redactions were designed to remove
irrelevant material. Counsel agreed on the redactions, other
than petitioner's reaction to the question whether he
would "do it again if [he] had the chance."
Petitioner responded, "Hell yes." Petitioner filed
a motion in limine to exclude that response, and the circuit
court ruled from the bench that that portion of the video was
relevant because it came at the end of a statement in which
petitioner confessed to killing Mr. Bundy and referenced that
particular crime. The circuit court also found that the
prejudicial nature of that portion of the video was
outweighed by the relevancy as to the question of remorse.
18, 2016, petitioner filed a motion for the physical
appearance and testimony of two co-defendants who intended to
invoke their Fifth Amendment right against
self-incrimination. The circuit court heard argument on that
motion on June 2, 2016, during which counsel for those
co-defendants indicated that their clients would assert their
right to remain silent as to any potentially incriminating
issues. The circuit court granted that motion but limited the
State and the defense to ten questions of each witness in
order to prevent an endless line of questioning that would
amount to nothing more than a fishing expedition.
trial was held before a jury between June 6 and June 8, 2016.
During the trial, petitioner testified and admitted to
stabbing Mr. Bundy and severely stabbing and beating Mrs.
Bundy. However, he claimed that before the murder
co-defendant Melissa Gail Watts told him that Mr. Bundy had
groped her and that co-defendant Elijah Marcum told
petitioner that Mr. Bundy accused Elijah of stealing a
vehicle from Mr. Bundy. Petitioner claimed that his
co-defendants wanted him to "do something about
it." He testified that he went to the Bundy home with
the intention of confronting Mr. Bundy about the allegations
but that petitioner was startled by the fact that Mr. Bundy
was taller than petitioner and Mr. Bundy grabbed petitioner.
Petitioner then began stabbing Mr. Bundy with a knife; the
medical examiner's testimony was that Mr. Bundy was
stabbed nineteen times. Petitioner's co-defendants
invoked their Fifth Amendment rights against
self-incrimination when called to testify. The jury
ultimately found petitioner guilty of first-degree murder,
malicious wounding, conspiracy to commit murder, and
conspiracy to commit first-degree robbery. Petitioner was
sentenced to a term of life imprisonment without the
possibility of parole on the first-degree murder conviction.
Petitioner's sentences for malicious wounding, conspiracy
to commit murder, and conspiracy to commit first-degree
robbery were ordered to run concurrently with the life
sentence. Petitioner filed motions for a new trial and for
post-verdict judgment of acquittal. The circuit court heard
argument on those motions on August 30, 2016, and denied the
same by order entered September 6, 2016. Petitioner now
appeals from that order.
have previously stated,
[i]n reviewing challenges to findings and rulings made by a
circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and
we review the circuit court's underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535
S.E.2d 484 (2000). In addition, we have held that "[a]
motion for judgment of acquittal challenges the sufficiency
of the evidence." State v. Houston, 197 W.Va.
215, 229, 475 S.E.2d 307, 321 (1996) (citing Franklin D.
Cleckley, 2 Handbook on West Virginia Criminal
Procedure 292 (2d ed.1993)). As such, we note that
"[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. Pt. 3, State v.
Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470
S.E.2d 413 (1996).
instant case, petitioner sets forth four assignments of
error. First, he contends that the circuit court erred by
permitting the State to introduce his post-arrest video
statement when the video, hearing testimony, and trial
testimony clearly evidence the fact that petitioner was so
highly intoxicated that his statement could not be knowing
and voluntary. In his short argument, petitioner asserts that
a simple review of the video at issue establishes this fact
as a matter of law. We have recognized that "[a] claim
of intoxication may bear upon the voluntariness of a
defendant's confession, but, unless the degree of
intoxication is such that it is obvious that the defendant
lacked the capacity to voluntarily and intelligently waive
his rights, the confession will not be rendered
inadmissible." Syl. Pt. 1, State v. Hall, 174
W.Va. 599, 328 S.E.2d 206 (1985). Here, the circuit court
specifically found that around the time of the statement
petitioner was "walking steadily, " was "quite
eloquent, " and was "under no apparent incapacity
within the cruiser."
Court previously has held that "'[t]he trial court
has wide discretion as to the admission of confessions and
ordinarily this discretion will not be disturbed on
review.' Syllabus point 2, State v. Lamp, 163
W.Va. 93, 254 S.E.2d 697 (1979)." Syl. Pt. 2, State
v. Woods,169 W.Va. 767, 289 S.E.2d 500 (1982). We,
however, also ...