Carlos A. Tilley, by counsel Jason E. Wingfield, appeals the
order of the Circuit Court of Marion County, entered on
January 23, 2017, sentencing him to a term of life
imprisonment in the state penitentiary, with the possibility
of parole, upon his conviction of delivery of a controlled
substance within one-thousand feet of a school, and to a
concurrent term of one to five years of imprisonment in the
state penitentiary upon his conviction of conspiracy to
commit a felony. Petitioner's life sentence resulted from
application of the recidivist enhancement statute, West
Virginia Code § 61-11-18. Respondent State of West
Virginia appears by counsel Sarah B. Massey.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
of 2015, a confidential informant for the Fairmont Police
Department told a drug task force officer that she could
purchase crack cocaine from Nathaniel Williams at his
residence, which was within one-thousand feet of West
Fairmont Middle School. Police obtained an order for
electronic interception from a magistrate judge pursuant to
West Virginia Code § 62-1F-4 to allow recording
equipment to be placed on the informant, and arranged a
controlled buy on the same date. The confidential informant
telephoned Mr. Williams, but Mr. Williams did not answer that
call. Police then searched the informant, equipped her with
video recording equipment, and sent her into Mr.
Williams's apartment with fifty dollars. Mr. Williams was
not there, but six other individuals, including Kishon
Yeagins and petitioner, were present. The informant asked if
anyone in the apartment could provide her fifty dollars'
worth of crack cocaine. One individual, later identified by
the informant as petitioner, took the informant's cash,
left the room, and returned with two small, blue bags of
crack cocaine, which he handed to her. Based on those events
("the controlled buy" or "the controlled
purchase"), officers obtained a search warrant for the
apartment and performed a search, but petitioner was not at
the residence. Later, officers stopped Mr. Yeagins and
petitioner in a car, wherein they found 27 small, blue bags
of crack cocaine on Mr. Yeagins. Both men were arrested. Officers
later located a hotel where Mr. Yeagins and petitioner rented
a room, and determined that cash from the controlled buy was
used to pay for the room.
was indicted on one count of delivery of a controlled
substance within one-thousand feet of a school and one count
of conspiracy to commit a felony. Petitioner filed a motion
to suppress the recording obtained from the informant on the
ground that the video was not time-stamped, and it was thus
not clear that the electronic interception warrant was
obtained prior to the informant's entry into the home.
Petitioner also argued that Mr. Williams, the tenant of the
target residence, was not home when the informant entered,
and therefore did not give his consent for entry. Petitioner
later filed a second motion to suppress, seeking the
exclusion of the evidence obtained in the execution of the
search warrant. The circuit court conducted a hearing at
which Det. Lt. Douglas Yost of the Fairmont Police Department
testified that it is standard practice to obtain an
electronic interception warrant prior to engaging a
controlled buy, and he believed standard protocol was
followed in this situation. The circuit court denied the
motions to suppress.
circuit court conducted a jury trial in March of 2016. In
addition to the testimony establishing the circumstances
surrounding the controlled buy as described above, the State
offered the testimony of Mr. Williams, at whose residence the
buy occurred. Mr. Williams testified that he is a drug addict
who allowed his friend Terris Lee to bring individuals to his
home to sell crack cocaine, and that petitioner and Mr.
Yeagins "appeared" at his home at Mr. Lee's
behest up to a week before the controlled purchase.
was convicted of both counts in the indictment. He filed a
motion for judgment of acquittal or, alternatively, for a new
trial, on the grounds that the State never established that
petitioner was in possession of the crack cocaine and that
the State failed to establish a conspiracy. The motion was
the trial, the State filed a recidivist information, alleging
the defendant was the same person who had been twice before
convicted in the United States of crimes punishable by
confinement in a penitentiary, and the court conducted a
trial on that issue. A probation officer testified, relating
petitioner's lengthy criminal history. The State also
introduced, over the objection of petitioner, judgment orders
from the United States District Court for the Eastern
District of Pennsylvania and from the First Judicial District
Court of Pennsylvania certifying petitioner's prior
criminal convictions. The jury found petitioner guilty of
recidivism, and petitioner was sentenced as described above.
appeal, petitioner asserts five assignments of error. He
argues that the circuit court erred in: 1) denying his motion
to suppress the recorded evidence of the controlled purchase
because the electronic interception warrant was insufficient;
2) allowing uncorroborated testimony from his co-conspirator
without giving a curative instruction; 3) allowing a
probation officer to testify about statements made by
petitioner, thereby violating petitioner's Fifth
Amendment rights; 4) admitting the judgment orders in support
of petitioner's recidivist conviction; and 5) sentencing
petitioner using the recidivist enhancement without requiring
the State to prove that the predicate offenses were
punishable by confinement in a penitentiary. Petitioner's
assignments of error concern the circuit court's
evidentiary rulings. Thus, unless stated otherwise below, we
review pursuant to the following standard: "The action
of a trial court in admitting or excluding evidence in the
exercise of its discretion will not be disturbed by the
appellate court unless it appears that such action amounts to
an abuse of discretion." Syllabus point 10, State v.
Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955),
overruled on other grounds by State ex rel. R.L. v.
Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).
first are called upon to determine the validity of the
warrant that led to the recorded evidence used at trial and
the court's subsequent denial of petitioner's motions
to suppress the evidence derived therefrom. "'[A]
circuit court's denial of a motion to suppress evidence
will be affirmed unless it is unsupported by substantial
evidence, based on an erroneous interpretation of the law,
or, based on the entire record, it is clear that a mistake
has been made.' Syl. Pt. 2, State v. Lacy, 196
W.Va. 104, 468 S.E.2d 719 (1996)." Syl. Pt. 2, in part,
State v. Kimble, 233 W.Va. 428, 759 S.E.2d 171
(2014). In Lacy, we elucidated:
When reviewing a ruling on a motion to suppress, an appellate
court should construe all facts in the light most favorable
to the State, as it was the prevailing party below. Because
of the highly fact-specific nature of a motion to suppress,
particular deference is given to the findings of the circuit
court because it had the opportunity to observe the witnesses
and to hear testimony on the issues. Therefore, the circuit
court's factual findings are reviewed for clear error.
State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101
(1995). In contrast to a review of the circuit court's
factual findings, the ultimate determination as to whether a
search or seizure was reasonable under the Fourth Amendment
to the United States Constitution and Section 6 of Article
III of the West Virginia Constitution is a question of law
that is reviewed de novo. State v. Stuart,
192 W.Va. 428, 452 S.E.2d 886 (1994).
Lacy, 196 W.Va. at 109, 468 S.E.2d at 724.
proceeding to the substantive issue, we must address a
jurisdictional concern. The State argues that petitioner, a
non-resident of the dwelling that was the subject of the
search warrant, had no expectation of privacy in Mr.
Williams's home, and thus has no standing to challenge to
the warrant. The State disputes that petitioner
produced evidence that he lived or slept at Mr.
Williams's home, and particularly notes that petitioner
and Mr. Yeagins had already rented a hotel room when
arrested. Petitioner, on the other hand, argues that he was
more than a "casual visitor" in Mr. Williams's
apartment and hence is entitled to challenge the evidence
pursuant to syllabus point 1 of State v. Adkins, 176
W.Va. 613, 346 S.E.2d 762 (1986)("A defendant who is
more than a casual visitor to an apartment or dwelling in
which illegal drugs have been seized has the right under the
Fourth Amendment to the United States Constitution and
Article III, Section 6 of the West Virginia Constitution to
challenge the search and seizure of illegal drugs which he is
accused of possessing.") We clarified this principle in
State v. Dorsey, 234 W.Va. 15, 24, 762 S.E.2d 584,
593 (2014), wherein we explained that continued presence
alone is insufficient to establish standing because, "a
guest in a home must be welcomed by his host at the time of
the government intrusion in order to have a reasonable
expectation of privacy." The State argues that
Dorsey is particularly germane because Mr.
Williams's cocaine dependence was tantamount to coercion
by Mr. Lee, who supplied him with drugs, and Mr. Lee's
associates, including petitioner, were therefore not
"welcomed" in the Williams home.
burden of establishing standing to raise a Fourth Amendment
challenge rests with the defendant. See United States v.
Salvucci, 448 U.S. 83, 86-95, 100 S.Ct. 2547 (1980);
Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct.
421 (1978). Petitioner offered no evidence concerning his
stay at Mr. Williams's residence, and the only evidence
about that arrangement was offered through the testimony of
Mr. Williams. Importantly, Mr. Williams testified that he did
not know petitioner's name at the time of the controlled
buy, though either petitioner or Mr. Yeagins had been
"there" about a week prior to the arrest, and the
other joined the former two or three days later. Their
appearance in his home was occasioned by Mr. Williams's
arrangement with Mr. Lee, who periodically left people at Mr.
Williams's home for the sole purpose of selling
narcotics. Mr. Williams testified that Mr. Lee would
"[j]ust give [him] a little coke for letting them work
out of [his] house." There is no evidence in the
appendix record on appeal that petitioner ...