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, ...