Derrick William Adamson, by counsel J. Brent Easton, appeals
following a jury trial resulting in convictions for first
degree murder, grand larceny, and possession of a stolen
vehicle. By order entered on January 5, 2017, the circuit
court sentenced petitioner to life in prison without the
possibility of parole for first-degree murder, one to ten
years for grand larceny, and one to five years for possession
of a stolen vehicle, with the sentences for grand larceny and
possession of a stolen vehicle to run concurrently to one
another, but consecutively to the life sentence for murder.
Respondent State of West Virginia, by counsel Mary M. Downey,
filed a 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 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.
and Procedural Background
2015, a Randolph County Grand Jury indicted petitioner for
the first degree murder of Donavan Nicholson, grand larceny,
possession of a stolen vehicle, and receiving or transferring
stolen goods. The circuit court commenced a jury trial
in October of 2016. The evidence at trial revealed that at
approximately 11:30 p.m. on April 20, 2015, two City of
Elkins police officers responded to a call from the
Mountaineer Mart convenience store regarding possible
gunshots. The officers spoke with the store manager, who
described two males who had been in the parking lot. The
officers left the scene to search for the men based on the
twelve minutes later, the officers encountered petitioner,
who matched the description given by the store manager, at a
nearby railroad station. The officers searched petitioner and
found a box of .25-caliber bullets, some of which were
missing. At this time, however, the officers received a call
regarding an unrelated burglary in process and left
petitioner. The officers returned to the Mountaineer Mart
about twenty minutes later and spoke with the manager again.
She informed the officers that the other male who had been
with petitioner earlier, Timothy Summerfield, was present.
Mr. Summerfield told the officers that he had had a short
conversation with petitioner at the Mountaineer Mart earlier,
during which petitioner pulled out a small pistol, fired at
him and missed, and then the pistol jammed. Mr. Summerfield
told the officers that petitioner then shook his hand, told
Mr. Summerfield "[i]t wasn't your day, " and
still at the Mountaineer Mart, the officers received a call
from a nearby GoMart convenience store regarding a stolen
vehicle. The officers viewed the surveillance video from the
GoMart and identified petitioner as the driver of the alleged
stolen vehicle, a 2006 Ford Five Hundred, gold in color. By
this time, it was in the early morning hours of April 21,
2015. The officers began a foot patrol of the area between
the GoMart and the Mountaineer Mart. At approximately 4:00
a.m., one of the officers discovered the body of Donavan
Nicholson behind the railroad station. He had been shot once
in the head. The officers located a .25-caliber bullet casing
near the body. The officers issued a "be on the
lookout" for the stolen car and petitioner.
about 11:36 a.m. on April 21, 2015, a West Virginia State
Police trooper located petitioner driving the stolen Ford
Five Hundred in Webster County and stopped the vehicle.
Petitioner was wearing body armor and had a .25-caliber
pistol in the vehicle. After backup for the trooper arrived
at approximately 11:45 a.m., the trooper read petitioner his
Miranda rights and placed him in the backseat of the
State Police cruiser. Petitioner then voluntarily gave a
recorded statement that lasted about eight minutes in which
petitioner indicated that he was worried about his
eleven-year-old daughter, whom he believed was missing and
had been killed. Petitioner then disclosed that he shot and
killed Mr. Nicholson because he believed he killed
petitioner's daughter. However, this was untrue;
petitioner's daughter was not missing and was alive.
Petitioner and Mr. Nicholson had no prior knowledge of one
another. The State Police then transported petitioner to a
magistrate, arriving at 12:55 p.m.
addition to the involved officers, the State presented the
testimony of Richard Foresi, a college student who
encountered petitioner walking through Elkins at
approximately 11:00 p.m. on April 20, 2015. Mr. Foresi did
not know petitioner. He described petitioner as behaving in a
"bizarre" manner; that "it was pretty clear
that there was definitely something - something wrong with
him[;]" and that petitioner "appeared to be under
the influence of something." Additionally, GoMart clerk
Teresa Miller testified that petitioner had been in the store
around 6:00 or 7:00 p.m. on April 20, 2015, and then again
around 10:00 p.m. She testified that petitioner did not
purchase anything, but asked to borrow a screwdriver and some
bandages. She described petitioner as "preoccupied"
and "suspicious of his surroundings."
trial, petitioner conceded that he shot and killed the
victim; however, he attempted to persuade the jury that he
was guilty of second degree murder. In his defense,
petitioner called Dr. Timothy Saar regarding his alleged
diminished capacity and its effect on petitioner's
ability to premeditate and deliberate the killing, necessary
elements for a first degree murder conviction. Dr. Saar
testified that petitioner had a history of substance-induced
psychosis, which led to his commitment to Sharpe Hospital in
Weston, West Virginia, in 2007. According to petitioner's
records, petitioner had also been treated at Ohio State
University Medical Center in 2011 and 2014 for "paranoid
and incoherent" behavior, during periods in which he had
consumed substances. Based on petitioner's mental health
history, his report of using methamphetamine and alcohol in
the days leading up to and including April 20 and 21, 2015,
and the fact that petitioner did not know Mr. Nicholson, Dr.
Saar concluded that petitioner lacked the ability to
premeditate and deliberate the killing. In rebuttal, the
State relied upon Dr. David Clayman, who acknowledged
petitioner's mental health records, but suspected
petitioner of malingering. Dr. Clayman concluded that
petitioner possessed the capacity to form intent and malice
at the time of the killing.
conclusion of the three-day trial, the jury found petitioner
guilty of first degree murder, grand larceny, and possession
of a stolen vehicle, and did not recommend mercy at
sentencing. The jury acquitted petitioner of receiving or
transferring stolen property. By order entered on December
23, 2016, the circuit court denied petitioner's motions
for judgment of acquittal and for a new trial. Subsequently,
the circuit court sentenced petitioner as set forth above.
This appeal followed.
appeal, petitioner raises the following six assignments of
error: (1) the circuit court denied petitioner a fair and
impartial jury panel because the court refused to question,
or permit counsel to question, prospective jurors regarding
their understanding of a mercy recommendation; (2) the State
presented insufficient evidence of premeditation and
deliberation; (3) the circuit court subjected petitioner to
multiple punishments in violation of double jeopardy and due
process principles by allowing the State to pursue both grand
larceny and possession of a stolen vehicle charges; (4) the
admission of petitioner's statement to law enforcement
violated the prompt presentment rule; (5) the circuit court
should have granted a mistrial based on prosecutor's
description of the killing as an "execution;" and
(6) the admission of the incident between Mr. Summerfield and
petitioner violated Rule 404(b) of the West Virginia Rules of
Evidence. We address petitioner's arguments in turn.
first assignment of error is that the circuit court refused
to question, or permit counsel to question, prospective
jurors regarding their understanding of a mercy
recommendation upon a guilty verdict of first degree murder.
Petitioner sought to inquire in voir dire whether the panel
fully understood that eligibility for parole after fifteen
years was not absolute, i.e., that it did not mean that
petitioner would automatically be released after fifteen
years if the jury recommended mercy. The circuit court
declined petitioner's request to delve into the details
of parole eligibility and instead made the following inquiry,
to which petitioner noted an objection:
Ladies and gentlemen, are any of you aware of any
conscientious objection you may have to returning a verdict
of first degree murder if, that is, the evidence that you
believe - the verdict that you believe is appropriate based
upon the evidence, if you realize that in doing so there may
be - you also have the opportunity to determine whether or
not mercy is recommended or whether no mercy is recommended.
With the idea that no mercy means the defendant could be
incarcerated for life. Mercy would indicate that he would
have the opportunity to be paroled. Do you understand that?
Do you think that there's - does anyone here believe that
they would have any conscientious objection to rendering a
verdict given those circumstances?
undisputed that no one on the panel voiced a concern.
However, petitioner contends that the court's inquiry did
not probe into whether the panel understood the parameters of
parole; that it was possible that a juror would believe that
mercy equated to petitioner's serving only fifteen years
then being released; and that it was possible that a juror
would refuse to recommend mercy based on the belief that
fifteen years is not a long enough sentence.
Court has held that "[i]n a criminal case, the inquiry
made of a jury on its voir dire is within the sound
discretion of the trial court and not subject to review,
except when the discretion is clearly abused." Syl. Pt.
2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d
541(1944), overruled on other ...