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State v. Richardson

Supreme Court of West Virginia

March 7, 2018


          Submitted: February 27, 2018

         Appeal from the Circuit Court of Monroe County The Honorable Robert A. Irons, Judge Criminal Case No. 14-F-2

          Paul 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


         1. "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).

         2. "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).


         Following 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.


         In June 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"), [1] 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.

         One of 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.

         In 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 [1991] and 61-11-6(a) [2009], and (2) "conspiracy to commit a felony offense: murder" in violation of W.Va. Code § 61-10-31 [1971].

         Defendant 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, [2] identifying thirty-five items it had provided to counsel[3] for Defendant Richardson, including item 35(g) which consisted of "[c]ellular records for the cellular telephones used by [the decedent] and [Defendant Richardson]."

         The 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 [2013] and June 3rd [2013]." This 18-page report was provided to counsel for Defendant Richardson on February 6, 2014.

         The circuit court held a hearing on March 25, 2014.[4] 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 8th.
. . .
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 to them.
Defense Counsel: That's fine, your Honor. We can just set a trial for the first of June.

         The circuit court granted Defendant Richardson's motion for a continuance and rescheduled the trial for May 28, 2014.

         The 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 dialogue:

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.

         On May 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.

         On June 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 ...

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