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State v. Arriaga

Supreme Court of Appeals of West Virginia

January 13, 2020

State of West Virginia, Plaintiff Below, Respondent
Anthony Raheem Arriaga, Defendant Below, Petitioner

          (Mingo County J17-F1).


         Petitioner Anthony Raheem Arriaga, by counsel Jane Moran, appeals the order of the Circuit Court of Mingo County, entered on January 18, 2018, sentencing him to consecutive terms of imprisonment for life, with mercy, upon his conviction of first-degree felony murder, one to five years upon his conviction of conspiracy to commit first-degree murder, and one to five years upon his conviction of conspiracy to commit first-degree robbery. Respondent State of West Virginia appears by counsel Patrick Morrisey and Scott E. Johnson.

         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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Officers from the Martin County, Kentucky, Sheriff's Department and the Mingo County, West Virginia, Sheriff's Department found the body of Bennett Hatfield in a brushy area near a creek bed at the Mountain View Cemetery in Maher, West Virginia, early one morning in May of 2016, after Mr. Hatfield had been missing for a full day. It was apparent that Mr. Hatfield had been shot, and officers collected several articles of evidence near his body, including a bloodied "hoodie" shirt and a toboggan, a cell phone, a semi-automatic handgun, and a spent bullet. While officers conducted their investigation, a nearby resident approached them and told them that a man who identified himself as Anthony Arriaga (and was clad only in underwear) arrived at his residence the day prior, offering forty dollars in exchange for transportation to Wayne County, West Virginia. The man accepted the offer, but declined Mr. Arriaga's request to take him to the cemetery before proceeding on to Wayne County.

         Officers located and arrested Mr. Arriaga at his Ohio residence on the evening of May 23, 2016. Upon arrest, Mr. Arriaga provided a statement to the Mingo County Sheriff's Department deputy who transported him from Ohio to West Virginia. The statement reflects that Mr. Arriaga drove through Mingo County prior to the murder with Brandon Fitzpatrick, intent on stealing an automobile. The two men arrived at Mountain View Cemetery, where they saw Mr. Hatfield placing flowers on a grave, and saw that Mr. Hatfield drove a vehicle that they believe could yield up to $15, 000 through illegal means. Mr. Arriaga stated that he and Mr. Fitzpatrick exited the Chevrolet Cavalier in which they had been traveling and Mr. Fitzpatrick chided him to "do it, do it, do it. We can't have any witnesses." Mr. Arriaga explained that he then shot the small pistol he was carrying several times, hitting Mr. Hatfield in the back. Mr. Fitzpatrick then drove away in the Cavalier in which the two had arrived, leaving Mr. Arriaga to take Mr. Hatfield's Denali or find other transportation. Mr. Arriaga identified the toboggan and hoodie found at the cemetery. In a later statement, Mr. Arriaga confirmed that he used a semi-automatic pistol in the shooting.

         Mr. Arriaga was indicted in the Circuit Court of Mingo County on one count of first-degree murder, one count of first-degree robbery, one count of conspiracy to commit first-degree murder, and one count of conspiracy to commit first-degree robbery. At trial, Mr. Arriaga testified on his own behalf and generally testified that he had faced many challenges in his life. His testimony concerning the criminal events was not consistent with the statements he earlier gave to police. He testified that Mr. Fitzpatrick was driving the car the day Mr. Hatfield was killed, and that he was not aware that Mr. Fitzpatrick planned to rob Mr. Hatfield when Mr. Fitzpatrick pulled the car into the cemetery. He testified that Mr. Fitzpatrick shot Mr. Hatfield and then ran to, and drove away in, the Cavalier. He also testified that Mr. Fitzpatrick was with his (Mr. Arriaga's) mother when Mr. Arriaga was arrested, and that Mr. Fitzpatrick had made threats against Mr. Arriaga's mother that induced Mr. Arriaga to take the blame for the Hatfield murder. Mr. Arriaga was convicted in a jury trial of felony murder, conspiracy to commit first-degree murder, and conspiracy to commit first-degree robbery. He was sentenced as described above.

         On appeal, petitioner asserts four assignments of error: first, that the evidence was insufficient to support the jury verdict; second, that the court gave "inadequate and confusing" instructions concerning the meaning of "attempt[;]" third, that the prosecuting attorney engaged in misconduct; and, fourth, that the circuit court erred in denying Mr. Arriaga's motion to suppress the statement that he gave to police.

         Mr. Arriaga's first assignment of error is premised on his assertion that there is no clear West Virginia law defining "robbery." The lack of clarity, he argues, impaired the jurors' ability to evaluate his intent in committing the crime underlying his felony-murder conviction or, absent the predicate offense, his specific intent in murdering Mr. Hatfield. Though Mr. Arriaga characterizes this assignment of error as one implicating the sufficiency of the evidence under which he was convicted, he does not discuss the evidence but instead argues that confusion in the law "fail[ed] to provide notice of the charges imposed on him which is his Constitutional right and his right to fundamental fairness of the proceedings against him. . . ." Based on the language used by petitioner, we construe the challenge as one to the indictment, and our review is de novo. See Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). We note, however, that

Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must raise any objection to an indictment prior to trial. Although a challenge to a defective indictment is never waived, this Court literally will construe an indictment in favor of validity where a defendant fails timely to challenge its sufficiency. Without objection, the indictment should be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted.

Miller, 197 W.Va. 592-93, 476 S.E.2d at 539-40, syl. pt. 2. Petitioner has not directed our attention to the preservation of this issue in the appendix record on appeal. Our consideration is thus limited to the question of whether a charge of robbery yields an indictment "so defective" that it fails to charge a cognizable crime. Though petitioner argues that the elements of robbery are uncertain in our state, that is not so. West Virginia Code § 61-2-12(a) (2010) criminalizes the act of robbery, but we have recognized that this statute does not actually define the crime. See State v. Harless, 168 W.Va. 707, 710, 285 S.E.2d 461, 464 (1981). For that reason, we have clarified that "[t]he elements of robbery, unaffected by the statute, are derived from the common law[.]" State v. England, 180 W.Va. 342, 347, 376 S.E.2d 548, 553 (1988). The prohibited conducted is explained: "At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods." Harless, 168 W.Va. at 707, 285 S.E.2d at 462, syl. pt. 1. We find our jurisprudence sufficient to have alerted petitioner of the elements of the crime underlying his felony murder conviction, and, thus, conclude that there is no error.

         In his second assignment of error, petitioner complains that the jury was inadequately instructed concerning the "attempt" to commit a crime. We agree with the State that petitioner failed to preserve this assignment of error with a timely objection to the jury charge. "The general rule is that a party may not assign as error the giving of an instruction unless he objects, stating distinctly the matters to which he objects and the grounds of his objection." Syl. Pt. 8, State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995) (citation omitted). Nevertheless, we find that "the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law." Syl. Pt. 4, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). There is no error.

         We turn to petitioner's third assignment of error, wherein he argues that the prosecuting attorney engaged in misconduct by failing to produce three cell phones taken from Mr. Fitzpatrick upon his arrest.[1] The State rightly points out that the circuit court gave, at the request of Mr. Arriaga and over the objection of the State, a "missing evidence" instruction. See Syl. Pt. 2, State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). It explained to the jury:

If you find that the State has lost, destroyed, or failed to preserve any evidence whose contents or quality are material to the issues in this case, then you may draw an inference unfavorable to the State which may in itself create a reasonable doubt as to the Defendant's guilt.

         Though petitioner asserts that this instruction was insufficient to address the prosecuting attorney's misconduct, we simply find no evidence of misconduct. Three cell phones have gone unaccounted. That fact alone does not impute bad behavior to the State. We find that the circuit court adequately ...

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