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State v. Strawser

Supreme Court of West Virginia

November 17, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
John Wayne Strawser, Jr., Defendant Below, Petitioner

         Preston County 15-F-58

          MEMORANDUM DECISION

         Petitioner John Wayne Strawser, Jr., by counsel Belinda A. Haynie, appeals the Circuit Court of Preston County's October 7, 2016, order denying his motion for judgment of acquittal, or in the alternative, for a new trial. A jury convicted petitioner of first degree murder and fleeing in a vehicle with reckless indifference, for which petitioner received a sentence of life in prison without the possibility of parole. Respondent State of West Virginia, by counsel Zachary A. Viglianco and Gordon L. Mowen, II, filed a response in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Factual and Procedural Background

         In October of 2015, a Preston County grand jury returned a three-count indictment charging petitioner with (1) first degree murder of his former girlfriend, Amy Lou Buckingham, (2) fleeing in a vehicle with reckless indifference, and (3) fleeing in a vehicle causing injury to a law enforcement officer. The third count was dismissed before trial. The remaining charges proceeded to a jury trial in August of 2016, and the jury convicted petitioner of first degree murder and did not recommend that he receive mercy. The jury also convicted petitioner of fleeing in a vehicle with reckless indifference. By Order entered on October 11, 2016, the circuit court sentenced petitioner to life in prison without the possibility of parole for the murder conviction and a consecutive prison term of one to five years for the fleeing conviction.

         The evidence at trial was that, on April 16, 2015, petitioner visited the home where Ms. Buckingham resided in Tunnelton, West Virginia. Ms. Buckingham's father, son, and sister were at the residence at the time. Petitioner and Ms. Buckingham had ended their relationship at some point between December of 2014 and April of 2015, and Ms. Buckingham had begun dating another man.

         The evidence revealed that petitioner entered the home and quickly exited. Ms. Buckingham followed him outside where the two argued in the driveway. Ms. Buckingham's father, son, and sister similarly testified to hearing a gunshot. When they exited the home, they discovered that Ms. Buckingham had been shot and claimed that petitioner drove off in a dark-colored Subaru. There were no eyewitnesses to the shooting. The medical evidence at trial was that Ms. Buckingham died of a single gunshot fired at close range, which pierced her breastbone and passed through her body. The physician who performed the victim's autopsy opined that the weapon used in the killing was not a small-caliber weapon, but also not a high-powered rifle.

         Ms. Buckingham's sister called 911 and advised the dispatcher that petitioner had just shot the victim. The police responded to the call, located petitioner in his vehicle, and initiated a traffic stop. However, petitioner sped off after the officers attempted to have him exit the vehicle and eventually crashed in a field. Petitioner turned himself in the following day at his residence as police were executing a search warrant. Petitioner's clothing was wet and he was covered in pine needles. Petitioner gave a voluntary statement in which he denied shooting the victim. In his defense, petitioner presented the testimony of a neighbor of Ms. Buckingham, who testified that he heard a gunshot and heard the victim's father say "they shot her." Petitioner did not testify.

         When petitioner was arrested after returning to his residence, State Police Trooper J.T. Gallaher searched petitioner and obtained his cell phone. Trooper Gallagher then, without a warrant, removed the phone's SIM card, placed the card into his computer, and viewed some of the data on the phone. Six months later, Trooper Gallaher obtained a warrant to search the contents of petitioner's phone. His search revealed multiple hostile text messages from petitioner to Ms. Buckingham on the day of the shooting, as well as pictures of different pistols, including a .44 caliber Rossi Ranch handgun.

         During the search of petitioner's residence, the police located a 9 millimeter pistol and one fired .44 caliber Magnum cartridge. Petitioner's neighbor assisted the police in recovering a .44 caliber Rossi Ranch handgun that had been placed in a swampy area about a one-fourth of a mile from petitioner's residence. The neighbor informed the police that he and petitioner often hid things at the site where this gun was recovered. In his statement to the police, petitioner admitted to owning the 9 millimeter pistol, but denied owning a .44 caliber pistol. He claimed that he had the fired .44 cartridge because he often purchased empty shell casings for his 9 millimeter because they can be reloaded, which is less expensive than purchasing new ammunition. He claimed that the .44 caliber casing was included when he purchased 9 millimeter casings at an auction.

         Phillip Cochran, West Virginia State Police forensic firearm examiner, examined the .44 caliber Rossi Ranch pistol and the spent .44 caliber casing. He testified that the gun was functional and that, according to toolmark analysis, the recovered cartridge had been fired from that gun. Comparing the gunshot residue on the victim's sweater and laboratory testing, Mr. Cochran testified that, if the .44 Rossi Ranch pistol was the murder weapon, it was fired less than 84 inches from the victim.

         Petitioner filed multiple pretrial motions that are relevant to the instant appeal. First, petitioner sought a change of venue and requested funds to conduct research regarding pretrial publicity and whether a hostile sentiment against him existed in the area. Petitioner had a pending murder charge in Pennsylvania, which petitioner argued increased the media coverage and bias against him with respect to the Preston County charges. The circuit court allowed petitioner to engage Orion Strategies, the research and polling firm of his choice, to conduct a social media survey. Orion Strategies conducted the research and compiled a report, in which it concluded that the West Virginia criminal proceedings had received less coverage than the Pennsylvania proceedings, but that both cases had generated publicity. The report found, however, that the social media attention primarily related to memorial pages that the victim's family had established, that those who interacted with those pages likely knew the victim or her family, and, thus, would likely not be juror candidates for that reason. The circuit court declined to grant a change of venue, but ruled that it would make an individual determination of juror bias during voir dire.

         The circuit court denied petitioner's request for additional funding to conduct a community survey to determine if a hostile sentiment against petitioner existed. The circuit court permitted the prosecuting attorney and defense counsel to conduct individual voir dire of potential jurors and granted every strike for cause that petitioner requested. Of the jurors who ultimately deliberated, all indicated that they could be fair and impartial and none indicated that they were aware of the Pennsylvania charges. However, on the last day of trial, an alternate juror reported to the circuit court that a houseguest, who knew the alternate juror was sitting on petitioner's jury, told the alternate juror of petitioner's Pennsylvania charges. The circuit court questioned the alternate, and the alternate denied that she told anyone on the jury what she had learned. The circuit court excused the alternate. Petitioner then moved for a mistrial, which the circuit court denied.

         Petitioner also filed a motion to suppress evidence obtained from the search of his cell phone. The State conceded, and the circuit court agreed, that Trooper Gallaher's warrantless removal of the SIM card from the phone and viewing of data shortly after placing petitioner under arrest was unconstitutional. However, the circuit court went on to rule that the contents of the phone were nonetheless admissible under the "independent source" doctrine. The circuit court concluded that the subsequent search of the phone's contents, which was conducted pursuant to a warrant, produced admissible evidence. The circuit court found that the warrant, obtained six months after the arrest, did not rely upon the brief "unconstitutional peek" by Trooper Gallaher. Rather, Trooper Gallaher's application for the warrant relied upon other information lawfully obtained during the investigation.

         Finally, petitioner sought to exclude evidence of the .44 Rossi Ranch handgun and handgun comparisons on the basis that the evidence was more prejudicial than probative and otherwise irrelevant. The circuit court denied petitioner's motion. The State admitted this evidence at trial through the testimony of Phillip Cochran that (1) the spent .44 caliber casing was fired from the .44 caliber Rossi Ranch handgun that was located in a swamp with the assistance of petitioner's neighbor, and (2) that, if that gun was used in the murder, it was fired from within 84 inches of the victim. Mr. Cochran also testified to his laboratory testing, which involved firing the Rossi Ranch handgun to replicate the amount of gunshot residue that was found on the victim. The results were corroborated by the physician testimony that the gun used in the murder was not small caliber, but also not a high-caliber rifle.

         The circuit court ruled that evidence of the forensic testing and distance determination regarding the gun was an applied science involving technical knowledge, rather than scientific knowledge, and, therefore, was admissible without the preliminary hearing required for scientific testimony. The circuit court also acknowledged that the .44 caliber Rossi Ranch handgun recovered from the swamp was not specifically identified as the murder weapon and the fired .44 caliber cartridge was not identified as the cartridge fired at the victim. However, the circuit court found that the location where the police recovered the gun suggested a connection to petitioner, and, thus, ruled that the .44 Rossi Ranch handgun was admissible evidence as it was more probative than prejudicial.

         Following the jury's guilty verdict, petitioner filed a motion for judgment of acquittal, or in the alternative, for a new trial. With respect to petitioner's motion for a judgment of acquittal under Rule 29 of the West Virginia Rules of Criminal Procedure, petitioner contended the evidence was insufficient to sustain his convictions. The circuit court noted a defendant's "heavy burden"[1] to obtain reversal of a jury's verdict and that "evidentiary conflicts and credibility questions [are to be resolved] in the prosecution's favor."[2] With these standards in mind, and recognizing that circumstantial evidence satisfies the State's evidentiary standard, ...


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