Rory Perry: Topics-CriminalInformation about recent WV Supreme Court cases and opinions involving criminal matters.CRIMINAL :: Numerous errors rejected, second degree murder- February 1, 2008 STATE v. ERIC ALLEN FOSTER, No. 33323 (Per Curiam)(Benjamin, J., disqualified)(Moats, Judge, by temporary assignment)(November 19, 2007)(Rehearing denied, January 10, 2008). Affirming an order of the Circuit Court of Nicholas County imposing two consecutive forty-year sentences upon jury conviction for two counts of second degree murder. Rejecting assertions that there was insufficient evidence of intent. Further holding that certain jury instructions and selection of certain jurors did not..http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1334 CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived- February 1, 2008 STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden, No. 33244 (Per Curiam)(November 9, 2007). Affirming an order of the Circuit Court of Cabell County that denied a post-conviction habeas corpus petition. Holding that the 212 year sentence for a single count of aggravated robbery was within statutory limits and that the circuit court properly took into account the defendant's extensive and escalating criminal history. Deeming the defendant's skeletal argument regarding ineffective assistance.http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1333 CRIMINAL :: Negligent homicide- February 1, 2008 STATE ex rel. NELSON, Prosecuting Attorney v. FRYE, No. 33499 (Per Curiam)(November 8, 2007). Denying a writ of prohibition sought to prevent dismissal of negligent homicide charges following a logging truck accident that resulted in the death of another driver. Holding that where the evidence showed that the truck driver was in excess of the recommended speed, but not over the speed limit, there was insufficient evidence of reckless disregard to sustain the charges.http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1332 CRIMINAL :: Incest, sexual assault, double jeopardy- February 1, 2008 STATE v. JONATHON FREEMONT RAY, No. 33324 (BENJAMIN, J.)(Starcher, J., concurring)(Albright, J., concurring)(November 8, 2007). Affirming sentences upon multiple convictions for sexual assault, incest and other sex-based offenses imposed by the Circuit Court of Preston County. Rejecting defendant's assertion that consanguinity is an element of the offense of incest, and holding that the statutory definition of incest is met where the victims were stepchildren of the defendant's biological...http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1331 CRIMINAL :: Sufficient evidence to support sexual abuse by custodian- February 1, 2008 STATE v. KENNETH RAY COLLLINS, No. 33300 (Per Curiam). Affirming a conviction and sentence imposed by the Circuit Court of Mingo County upon conviction for one count of sexual abuse in the third degree and one count of sexual abuse by a parent, guardian or custodian. Holding that the record ñ- including evidence that the defendant "controlled and supervised the eleven year old girl on numerous, albeit temporary, occasions when he would take her away from home to go riding on his...http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1330 CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived- February 1, 2008 STATE v. DANIEL B. BINGMAN, No. 33299 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(October 26, 2007). Affirming a conviction and sentence imposed by the Circuit Court of Gilmer County upon conviction for one count of petit larceny in violation of W. Va. Code 61-3-13(b). The indictment for grand larceny occurred more than one year after the offense. Holding that defense counsel failed to object to jury instructions on the lesser-included offense, thereby waiving any statute.http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1329 CRIMINAL :: Assessment of jury costs on defense counsel reversed- February 1, 2008 STATE EX REL. TERRON GODFREY v. ROWE, No. 33444 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(October 16, 2007). Granting a moulded writ of prohibition to prevent enforcement of an order imposing jury costs on defense counsel following a mistrial. Holding that the trial court properly rejected defendant's assertion that the second trial was barred by double jeopardy. Further denying as premature relief sought in relation to a motion to join counts of a subsequent...http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1328 CRIMINAL :: No prejudice in trial court amending indictment- February 1, 2008 STATE v. RICHARD ALLEN HAINES, No. 33304 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Hampshire County that imposed sentence upon a jury conviction for one count of felony delivery of a Schedule II controlled substance. Rejecting appellant's contention that the trial court erred in amending the indictment, which had erroneously identified methamphetamine as a Schedule I controlled substance. Holding that the trial court properly concluded that the amendment was..http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1327 CRIMINAL :: Sufficient evidence to sustain murder conviction- February 1, 2008 STATE v. THOMAS JOSEPH MACPHEE, No. 33297 (Per Curiam)(Maynard, J., concurring)(October 12, 2007). Affirming an order of the Circuit Court of McDowell County that imposed a life sentence with mercy following a jury conviction for felony murder. Rejecting appellant's argument that he was merely an accessory after the fact. Holding that the evidence was sufficient to sustain the conviction.http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1326 CRIMINAL, HABEAS CORPUS, ATTORNEYS :: Ineffective assistance of counsel in mercy phase- February 1, 2008 STATE EX REL. SHANE SHELTON v. PAINTER, Warden, No. 33322 (Per Curiam)(Maynard, J., concurring in part and dissenting in part)(Benjamin, J., concurring in part and dissenting in part)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Ohio County that denied a post-conviction habeas corpus petition after conducting an evidentiary hearing. After testifying at trial and admitting that he shot the victim, Shelton was convicted of first degree murder without mercy. ...http://www.state.wv.us/wvsca/Clerk/Topics/Criminal/2008/02/01.html#a1325 |