Submitted: February 27, 2018
from the Circuit Court of Monroe County The Honorable Robert
A. Irons, Judge Criminal Case No. 14-F-2
R. Cassell, Esq. Cassell & Crewe, P.C. Wytheville,
Virginia Counsel for the Petitioner
Patrick Morrisey, Esq. Attorney General Gordon L. Mowen, II,
Esq. Assistant Attorney General Charleston, West Virginia
Counsel for the Respondent
BY THE COURT
"The granting of a continuance is a matter within the
sound discretion of the trial court, though subject to
review, and the refusal thereof is not ground for reversal
unless it is made to appear that the court abused its
discretion, and that its refusal has worked injury and
prejudice to the rights of the party in whose behalf the
motion was made." Syllabus Point 1, State v.
Jones, 84 W.Va. 85, 99 S.E. 271 (1919).
"Whether there has been an abuse of discretion in
denying a continuance must be decided on a case-by-case basis
in light of the factual circumstances presented, particularly
the reasons for the continuance that were presented to the
trial court at the time the request was denied."
Syllabus Point 3, State v. Bush, 163 W.Va. 168, 255
S.E.2d 539 (1979).
a jury trial, Petitioner Amber Lee Richardson
("Defendant Richardson") was convicted of two
felony counts-accessory to murder and conspiracy to commit
murder. The jury did not recommend mercy and Defendant
Richardson was sentenced to an incarceration term of life
without the possibility of parole. On appeal, Defendant
Richardson asserts that the trial court erred by (1) refusing
to grant a continuance; (2) refusing to grant relief for an
alleged discovery violation; (3) admitting gruesome
photographs of the victim; and (4) declining to instruct the
jury on the lesser included offenses of first degree murder.
After review, we affirm Defendant Richardson's
convictions and incarceration term of life without the
possibility of parole.
FACTUAL AND PROCEDURAL BACKGROUND
2013, Defendant Richardson's sister called the police and
reported that Defendant Richardson's husband, Danny Ray
Richardson ("decedent/husband"), was missing. The
police interviewed Defendant Richardson who eventually
admitted that she and her paramour, a tattoo artist named
Joshua Hubbard ("Mr. Hubbard"),  had devised a
plan to kill her husband. The plan was for Mr. Hubbard to
hide under a chicken coop near Defendant Richardson's
house and ambush the decedent when he arrived at the
property. Defendant Richardson gave Mr. Hubbard a
nine-millimeter pistol that he used to kill her husband.
Defendant Richardson admitted that on the day of the murder,
she asked her husband to go home to cook dinner for their
three young children in order to lure him onto the property
by himself. After interviewing Defendant Richardson, the
police searched her property and found her husband's body
in the woods near the couple's house.
the central issues in this appeal is whether the circuit
court erred by refusing to grant Defendant Richardson's
motion for a third continuance (the court continued the trial
twice at the request of Defendant Richardson). Therefore, we
begin with a detailed review of the procedural history.
January 2014, a Monroe County Grand Jury indicted Defendant
Richardson on two felony offenses related to her
husband's death: (1) "accessory to murder" in
violation of W.Va. Code §§ 61-2-1  and
61-11-6(a) , and (2) "conspiracy to commit a
felony offense: murder" in violation of W.Va. Code
§ 61-10-31 .
Richardson was arraigned on January 21, 2014, and entered a
not guilty plea. Her trial was scheduled for April 8, 2014.
The circuit court ordered that "discovery shall be
exchanged by February 18, 2014." The State filed its
initial discovery disclosure on February 6, 2014,
identifying thirty-five items it had provided to
counsel for Defendant Richardson, including
item 35(g) which consisted of "[c]ellular records for
the cellular telephones used by [the decedent] and [Defendant
State also disclosed and identified eleven items that were
located in the evidence room of the West Virginia State
Police that would be made available to counsel for Defendant
Richardson for "inspection and/or photographing" at
"the Union Detachment of the West Virginia State Police
or at the West Virginia State Police Forensic Laboratory in
Charleston, WV [sic]." These items included certain
cellular records recovered from phones belonging to the
decedent, Defendant Richardson and Mr. Hubbard, which were
described as follows: "46. One (1) CD labeled Case
#3013-292-1814 by the digital forensics unit, the Richardson
case report which contains all information recovered by the
Digital Forensics Unit in regards to the submitted
items." ("Item 46 CD"). In addition to
identifying the item 46 CD which contained all of the
information recovered from the cellular phones, the State
provided counsel for Defendant Richardson with a paper copy
of an 18-page report that included "all of the text
messages and phone calls that went to and from [Defendant]
Richardson's phone [during the time it alleged she and
Mr. Hubbard conspired] . . . between May 31st
 and June 3rd ." This 18-page
report was provided to counsel for Defendant Richardson on
February 6, 2014.
circuit court held a hearing on March 25, 2014. At this hearing,
counsel for Defendant Richardson requested that the trial be
continued because he "needed more time to review the
[discovery] materials provided by the State and to retain
experts to assist in the defense." The parties discussed
the need for a continuance as follows:
Defense Counsel: Your Honor . . . I have not had the time,
nor will I have the time between now and April 8 to go
through all of these documents with Amber Richardson. I need
like at least 60 days or something. I just got all this
stuff. I can't go through all of this with her between
now and then [April 8]. I got, you know - the schedule is
just unreal. I cannot get ready between now and April
. . .
Circuit Court: You've had since July.
Defense Counsel: I know. But I just got - I just got all of
the written - all these cell phone transcripts and CDs and
everything. I got, you know - I have to go through it all
with Ms. Richardson.
Circuit Court: What's the State's position on the
motion to continue the trial date?
Prosecutor: Your Honor, I just don't want there to be
some kind of collateral attack on the conviction cause [sic]
- I'm not going to oppose it strenuously, your Honor. If
it is a continuance, it needs to be a short continuance. And
I think we need to get some timelines. The Court should set
some timelines by saying, if you're going to get experts,
don't tell me you're going to do it - you have to do
it by this day or you don't get - you don't get any.
I think in fairness, they've had the discovery for one
month and one week. That's a short period of time for a
capital murder case. I understand that. I'm not going to
strenuously object to a continuance of the trial.
. . .
So I do want - if we're going to get - if we're going
to continue it, I wouldn't oppose a 60-day continuance.
But I think the Court should set a deadline for notifying me
and the Court of who the experts are going to be and that
they've been retained and everything's been provided
Defense Counsel: That's fine, your Honor. We can just set
a trial for the first of June.
circuit court granted Defendant Richardson's motion for a
continuance and rescheduled the trial for May 28, 2014.
circuit court held a status conference on April 21, 2014.
During this hearing, counsel for Defendant Richardson told
the court that after researching battered woman's
syndrome, he had determined that it was not a viable defense
in this case, and, therefore, he did not need to retain an
expert. Following this discussion, the circuit court and
counsel for Defendant Richardson engaged in the following
Circuit Court: Do you need another attorney to assist you in
handling the case? You indicated that there was a voluminous
amount of material to be reviewed.
Defense Counsel: Judge, if I was going to get the battered
woman's expert, I definitely needed somebody. But without
the battered woman's defense, that expert - Amber
[Defendant Richardson] and I can get through the material.
Circuit Court: You going to be ready for trial then on the
28th [of May]?
Defense Counsel: Yeah.
Circuit Court: I mean, I'm happy to appoint another
attorney to help you.
Defense Counsel: I don't think I need one right now.
23, 2014, five days before the trial was scheduled to begin,
counsel for Defendant Richardson filed a second motion for a
continuance, explaining that "counsel for Defendant is
currently on bed rest due to mono and is unable to work until
June 2, 2014." The circuit court granted this motion for
a continuance and rescheduled the trial on June 10, 2014.
6, 2014, four days before the trial was scheduled to begin,
counsel for Defendant Richardson filed a third motion for a
continuance. This motion provided that
the State served pretrial discovery to Defendant on [sic] 6th
day of February, 2014 which listed at number 35(g) a CD
purportedly containing phone conversations between Defendant
and Co-Defendant and others. That, upon information and
belief the West Virginia Crime Lab failed to copy said CD.
That, the information on this CD may contain ...