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State v. Carson

Supreme Court of West Virginia

November 21, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Ronald Steven Carson Jr., Defendant Below, Petitioner

          Cabell County 15-F-337

          MEMORANDUM DECISION

         Petitioner Ronald Steven Carson Jr., by counsel A. Courtenay Craig, appeals the Circuit Court of Cabell County's September 26, 2017, order sentencing him following his convictions of driving under the influence causing the death of another person and negligent homicide. The State of West Virginia, by counsel Zachary Aaron Viglianco and Gordon L. Mowen II, filed a response in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in failing to offer a jury instruction on missing or lost evidence, failing to suppress his statement, and denying his right to a speedy trial.

         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.

         On the evening of April 5, 2015, Kevin Perry was driving on Route 2 in Cabell County, West Virginia. Mr. Perry noticed a single headlight behind him, which he ascertained was from a motorcycle. Because Mr. Perry often rode motorcycles himself and was aware of the potential visibility hazards, he was particularly attuned to the motorcyclist's location. As he was traveling along Route 2, Mr. Perry noticed headlights to his right coming from a driveway located perpendicular to Route 2. Mr. Perry was concerned for a moment that the car coming from the driveway was going to enter Route 2 right in front of him, but the car did stop at the end of the driveway, and Mr. Perry continued past it. As Mr. Perry checked on the motorcyclist from his rearview mirror, he saw the headlight disappear and heard a loud screech and impact. Mr. Perry immediately turned his car around and proceeded back to the accident.

         At the scene of the accident, Mr. Perry discovered the driver of the motorcycle, Justin Parsons, underneath the car that had turned out of the driveway, which was driven by petitioner. Mr. Perry instructed petitioner to turn his car off and exit it. Mr. Perry described petitioner's response as slow and lethargic. Mr. Perry also attempted to locate a pulse on Mr. Parsons, but could not find one. Ultimately, Mr. Parsons died at the scene.

         The first officer to arrive on the scene, Justin Cochran, similarly characterized petitioner's behavior at the scene as "unusual" given petitioner's "slightly delayed" reaction to questions and "really calm" demeanor. Deputy Cochran administered a breathalyzer, which revealed that petitioner was not under the influence of alcohol. Another investigating officer, Michael Talbott, arrived at the scene shortly after Deputy Cochran, and described petitioner as "withdrawn and slow." Petitioner's "very calm" demeanor struck Deputy Talbott as odd given the gravity of the situation, so he asked petitioner whether he had consumed any alcohol. Petitioner responded that he had not had any alcohol, "but that he had taken his medication," which was reported to be three half-milligram tablets of Xanax. Petitioner was later arrested.[1]

         During the crash, the motorcycle's headlight became detached from the handlebars, but remained attached to the bike by wires. At the scene following the crash, due to petitioner's statement that he did not see the bike's headlight before pulling out onto Route 2, the wires were cut and the headlight was taken into evidence.

         Petitioner was indicted on August 12, 2015, on one count of driving under the influence causing the death of another person and one count of negligent homicide. Various pretrial motions were argued and proceedings held, and petitioner's trial eventually began on August 28, 2017. After a two-day trial, the jury found petitioner guilty of both crimes charged. On September 26, 2017, the circuit court sentenced petitioner to not less than two nor more than ten years of incarceration for his conviction of driving under the influence causing the death of another, but because the court found that the negligent homicide conviction "may be a lesser included" offense of driving under the influence causing the death of another, it did not impose a sentence for the negligent homicide conviction. It is from this order that petitioner appeals.

         Petitioner first assigns as error the circuit court's failure to instruct the jury in accord with State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). Petitioner claims that the State should have preserved the entire motorcycle - not just the headlight - because the headlight alone was insufficient to determine whether a malfunction in the light was "caused by anything from the battery connections to the wiring to the lamp itself. The lamp alone would not register answers to the other possible malfunctions." Petitioner asserts that in his initial conversations following the accident, he maintained that he did not see the headlight on the motorcycle, thereby alerting the State to the "importance of the evidence." Petitioner further claims that the failure to preserve the entire bike deprived him of the ability to prove his defense that the motorcycle's light had malfunctioned and was not on at the time of the collision.

         We review the refusal to give a requested jury instruction under an abuse of discretion standard. Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). "When assessing whether the trial court properly exercised that discretion, a reviewing court must examine the instructions as a whole to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence." Id. at 285, 489 S.E.2d at 262 (citations omitted). Where an instruction is requested but refused, reversible error occurs only if

(1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.

Syl. Pt. 11, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). But, to be entitled to an instruction on the theory of his or her defense, there must be "a basis in evidence for the instruction" and the instruction must have "support in law." Hinkle, 200 W.Va. at 285, 489 S.E.2d at 262.

         In Osakalumi, we held that

[w]hen the State had or should have had evidence requested by a criminal defendant but the evidence no longer exists when the defendant seeks its production, a trial court must determine (1) whether the requested material, if in the possession of the State at the time of the defendant's request for it, would have been subject to disclosure under either West Virginia Rule of Criminal Procedure 16 or case law; (2) whether the State had a duty to preserve the material; and (3) if the State did have a duty to preserve the material, whether the duty was breached and what consequences should flow from the breach. In determining what consequences should flow from the State's breach of its duty to preserve evidence, a trial court should consider (1) the degree of negligence or bad faith involved; (2) the importance of the missing evidence considering the probative value and reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence produced at the trial to sustain the conviction.

Id. at 759, 461 S.E.2d at 505, Syl. Pt. 2. We further noted that one such consequence could be an instruction to the jury that, where the State "allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State's interest." Id., n.14 (citing Arizona v. Youngblood, 488 U.S. 51, 59-60 (1988)).

         We find no abuse of discretion in the circuit court's refusal to give an instruction akin to that cited in Osakalumi. To start, petitioner fails to direct this Court to any request made for the motorcycle in issue.[2] Without a request for the evidence, a trial court need not determine whether the material was subject to disclosure, whether the State had a duty to preserve it, or, if such duty existed, whether it was breached and, if so, the consequences, including the requested instruction, that should flow from that breach. See id. at 759, 461 S.E.2d at 505, Syl. Pt. 2 ("When the State had or should have had evidence requested by a criminal defendant . . . .") (emphasis added). Nevertheless, the circuit court undertook this analysis, and we find no error in the conclusions reached.

         The circuit court first reasoned that there was no duty to preserve the body of the motorcycle where the issue all along had been the headlight. The court stated, "the headlight was available, has been available the whole time, and that still seems to be the evidence here." Mr. Perry informed the investigating officers immediately after the accident that Mr. Parsons's headlight was on, and the only indication at that time that the headlight would be an issue was petitioner's self-serving statement about not seeing the headlight. The headlight was, therefore, preserved and remained available throughout the proceedings below. As the circuit court noted, the State "preserved what [it] thought was the issue that the [petitioner] complained about."

         Despite finding no duty to preserve the body of the motorcycle, the circuit court gave petitioner the benefit of further analysis. The court continued that, even if one assumes the State had a duty to preserve the entire motorcycle, the State did not act in bad faith in breaching that duty because, as set forth above, it preserved the item with which petitioner took issue at the scene. Therefore, the court found that instructing the jury "[t]hat it should be presumed that the evidence was adverse to the ...


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