WEST VIRGINIA RECORD

Argument Docket
Tuesday, April 11

LAWS PROGRAMS
Supreme Court Chamber
Charleston
10 A.M.

1. State of W. Va. v. Matthew Bolen - 32887

Legal Background: This is an appeal of a criminal case. At trial, before the defendant in a criminal case can be convicted of an offense, the jury must be satisfied of the defendant's guilt beyond a reasonable doubt. A mere preponderance of the evidence does not warrant the jury in finding the defendant guilty. The defendant raises two assignments of error. He argues it was plain error for the trial court to permit the State to offer evidence of the alleged victim's religious beliefs and for the prosecutor to speak of the victim's religious beliefs in the opening statement and closing argument. On appeal, the defendant requests reversal of the convictions and sentence, with directions for acquittal or a new trial.

Procedural History: The defendant, Matthew Bolen, was found guilty by a jury of first degree sexual assault in violation of W. Va. Code '61-8b-3. He was sentenced to two concurrent terms of 15-25 years. At the time of the offenses in 1992 and 1993, the defendant was 16 years old and the victim was 7 years old. At the trial of this matter, in 2002, the prosecutor spoke of the victim's religious beliefs in both the opening statement and the closing argument. The victim testified at the trial and offered evidence of his religious beliefs.
Appellant's Argument: On appeal, the appellant argues that the defendant was deprived of a fair and impartial trial. He argues that permitting the State to interject the victim's religious beliefs into the opening statement and closing argument, together with offering evidence of the victim's religious beliefs through his own testimony bolstered the victim's credibility and affected the weight given the evidence. This evidence of the victim's religious beliefs, defendant argues, was improper.

Appellee's Argument: The State responds by stating that the references and evidence of the victim's religious beliefs were not offered for the purpose of proving credibility of the witness. There was a lapse of time of several years between the time of the offenses and time of the indictment and subsequent trial in this matter. The State argues that evidence of the victim's religious beliefs was used to explain why he did not disclose the assaults. Taken in their context, appellee argues the comments and testimony were properly admitted at the trial.

Discussion Terms: Right to a Fair Trial, Witness Credibility, Role of Prosecutor

2. Helen L. Porter, et al. v. Grant County Board of Education - 32866

Legal Background: This case is before the Court on two certified questions from the Circuit Court of Grant County regarding immunity of the Grant County Board of Education under the West Virginia Tort Claims and Insurance Reform Act or the public duty doctrine in this personal injury case. The following certified questions are presented to the Court:
1. Does W.Va. Code ' 29-12A-5(a)(6) immunize the Grant County Board of Education from liability in a civil action in which it is alleged that, on a date on which the Grant County Board of Education cancelled school due to inclement weather, but went forward with a high school basketball game held during evening hours at the Petersburg High School Gymnasium, an individual attending the game slipped and fell on snow and ice located on the school's grounds? Circuit Court's Answer: No.

2. Does the Public Duty Doctrine operate to protect the Grant County Board of Education from liability in a civil action in which it is alleged that, on a date on which the Grant County Board of Education canceled school due to inclement weather, but went forward with a high school basketball game held during evening hours at the Petersburg High School Gymnasium, an individual attending the game slipped and fell on snow and ice located on the school's grounds? Circuit Court's Answer: No.

Procedural History: This case was initiated in circuit court by Helen L. Porter and Eston Porter against the Grant County Board of Education. Mrs. Porter slipped and fell on the sidewalk leading to the gymnasium at Petersburg High School on January 21, 2000. She was going to the school that evening to attend a basketball game. Earlier that same day, due to snow, the Grant County Superintendent of Schools cancelled classes county-wide. The basketball game was not cancelled. Mr. and Mrs. Porter allege in their complaint that the Grant County Board of Education was negligent in failing to remove snow and ice from the sidewalks and negligent in failing to cancel an athletic event after closing school that same day due to weather. The Board of Education moved to dismiss the complaint in circuit court based on immunity under W. Va. Code '29-12A-5(a)(6). The circuit court entered an order certifying the questions to this Court. The Court granted the petition of the Grant County Board of Education to review the certified questions as presented.

Appellant's Argument: The Grant County Board of Education argues that W. Va. Code '29-12A-5(a)(6) provides immunity from liability to such political subdivisions from liability for all losses resulting from snow or ice conditions on any public place to due weather conditions where there is no affirmative act by it that caused the condition. Additionally, the Grant County Board of Education argues that the public duty doctrine operates to protect it from liability. Therefore, the Board believes the answers to the questions as provided by the circuit court are erroneous.

Appellee's Argument: The Porters' argue that W. Va. Code '29-12A-5(a)(6) does not provide immunity under the facts and circumstances presented in this case because the Board cancelled school on the date of the incident but went forward with a high school basketball game that same evening.

Discussion Terms: Procedure, Certified Question, Immunity

3. State of W. Va. v. Earl Ray McCoy, Jr. - 32860

Legal Background: This is an appeal of a criminal case tried in the Circuit Court of Lincoln County. The defendant was convicted of first degree murder and sentenced to life in prison with a recommendation of mercy. At trial the jury must be satisfied of the defendant's guilt beyond a reasonable doubt before the defendant can be convicted of an offense. Appellant, Earl Ray McCoy, Jr., requests this Court to reverse the decision below and remand the case for a new trial.
Procedural History: Emmitt Brooks was shot and killed on September 28, 2002. After a trial by jury, Earl Ray McCoy, Jr., was found guilty of first degree murder in the death of Emmitt Brooks and was sentenced to life in prison with a recommendation of mercy. This was not the first altercation between these men. On March 2, 1996, Emmitt Brooks shot Earl Ray McCoy, Jr., and thereafter the men were involved in several fracases.

Appellant's Argument: The defendant raises several assignments of error on appeal. He argues that the circuit court erred by denying fact witnesses' testimony in support of his insanity defense and eyewitness accounts of attacks upon the petitioner by the victim in this case, Emmitt Brooks. He also argues the circuit court erred in denying him the defense of self‑defense by denying eyewitness testimony of the victim having shotguns and shells in his possession at the time of the shooting, and certain evidentiary issues. The defendant asks this Court to reverse the judgment of the circuit court and remand the case for a new trial.

Appellee's Argument: The State contends that the defendant's conviction should be affirmed, as none of the assignments of error raised by the defendant are reversible errors. The State argues that the defendant was able to distinguish right from wrong at the time of the shooting despite any post-traumatic stress disorder. Any insanity defense, the State argues, is not supported by the facts of this case. Further, the State argues, the defendant did not have a self-defense case based upon the evidence presented at trial and therefore the defendant was not entitled to a jury instruction on self-defense.

Discussion Terms: Insanity Defense, Self-Defense

4. Donna M. Richmond v. Barry A. Levin, M.D. - 32877

Legal Background: This is an appeal of a civil case from a non-unanimous jury verdict in a medical malpractice action. The trial was held in the Circuit Court of Raleigh County before a twelve-person jury pursuant to the West Virginia Medical Professional Liability Act, specifically W. Va. Code '55-7B-6d. At trial, the twelve member jury deliberated and returned a verdict in favor of the defendant, Dr. Levin, by a vote of 9-3.

Procedural History: This appeal is brought by Donna M. Richmond. Ms. Richmond filed a medical malpractice complaint against Dr. Levin as a result of treatment she received after breaking her left arm. The case proceeded to trial and the jury, made up of twelve members, pursuant to W. Va. Code '55-7B-6d deliberated for two days. They returned a non-unanimous verdict, by a vote of 9-3, finding that Dr. Levin did not breach the standard of care in his treatment of Ms. Richmond. The circuit court subsequently denied plaintiff's Motion for Judgment as a Matter of Law. It is from this order that the appellant asks this Court to reverse the decision of the lower court and remand this case for a new trial.

Appellant's Argument: Counsel for Donna Richmond argues that the West Virginia Medical Professional Liability Act is unconstitutional in that it provides for a twelve-person jury and allows for a non-unanimous verdict, contrary to the rules and procedures of this Court. She argues this is a violation of the separation of powers. Based on these constitutional grounds, and relying on the Court's holding in the case of Louk v. Cormier, ___ W. Va. ___, 622 S.E.2d 788 (2005) appellant argues that the circuit court order must be reversed and the case remanded for a new trial.

Appellee's Argument: Counsel for Dr. Levin argues that at no time during or after the trial while this matter was pending in circuit court did Ms. Richmond object to the size of the jury or the manner in which their result was reached. Appellee asks this Court to affirm the decision of the circuit court.

Discussion Terms: Right to Jury Trial, Separation of Powers

Argument Docket
Wednesday, April 12

LAWS PROGRAMS
Supreme Court Chamber
Charleston
9 A.M.

1. State of W. Va. v. Gary Inscore - 32855

Legal Background: This case involves the interplay between several different types of law, including state and federal constitutional law, judicial decisions of both the United States Supreme Court and West Virginia Supreme Court, as well as a federal compact between the states. The central issue is whether the State of West Virginia acted properly in revoking probation of an individual after his term of probation had expired.

Procedural History: On October 12, 1999, a Mercer County grand jury returned a 13-count indictment against Mr. Inscore for breaking and entering, grand larceny, and petit larceny, arising from break-ins at several local businesses. The next day, Mr. Inscore was indicted for nine counts relating to purchases with a false credit card. He pled guilty to three of the counts, and was sentenced to one to ten years, but the sentence was suspended, and the circuit court sent Mr. Inscore to the Anthony Center program for youthful offenders. Mr. Inscore successfully completed the program in March of 2001, and was sentenced to a three year term of probation, with several specific conditions. In May of 2001, Mr. Inscore was arrested in Tazewell, Virginia on felony bad check charges. In February 2002, a Mercer County probation officer filed a petition for revocation of probation in Mercer County Circuit Court, and arrest warrants subsequently issued. In June 2002, Mr. Inscore was found guilty of the felony charges in Tazewell Virginia, and was later given an eight-year sentence, with five years suspended. In late October 2002, the Mercer County prosecutor sent a letter requesting a detainer, which was acknowledged by the Virginia correctional officials on October 31, 2002. Ultimately, in September 2004, the Mercer County Circuit Court appointed counsel for Mr. Inscore following his arrest, and set a probation revocation hearing. On October 13, 2004, the court revoked probation and imposed the original sentence. Mr. Inscore appeals from that order.

Appellant's Argument: The essence of Mr. Inscore's argument is that the State failed to comply with notice provisions of the Interstate Agreement on Detainers, and failed to bring him to face charges in West Virginia within the time permitted by law. Mr. Inscore argues that his original term of probation in West Virginia would have expired in March 2004, and therefore it was improper to revoke his probation after the term had expired.

Appellee's Argument: In response, the State argues that the United States Supreme Court has held that the Interstate Agreement on Detainers does not apply to probation revocation proceedings. In addition, both the United States Supreme Court and the West Virginia Supreme Court have held that fewer due process rights apply at probation revocation proceedings than apply at full criminal trials. The State further argues that all the prerequisites for revocation in this circumstance were met: Mr. Inscore was charged during the probation period; and the State exercised due diligence in attempting to notify Mr. Inscore of the probation violation charges. Finally, the State argues that the appellate record should be supplemented with documents that allegedly show that Mr. Inscore received actual notice of the probation violation charges.

Discussion Terms: Due Process, Right to Speedy Trial, Primacy of Federal Law, Interstate Agreement on Detainers, Probation

2. Charles Hawkins, et al. v. United States Sports Association, Inc., et al. - 32869

Legal Background: Appellants, Charles and Sheila Hawkins, appeal an adverse summary judgment ruling by the circuit court that dismissed United States Sports Association, Inc. from their lawsuit.

Procedural History: Charles Hawkins filed suit in the Circuit Court of Marion County for injuries he sustained to his right knee while playing in a softball tournament. The complaint was filed by him and his wife, Sheila, against defendants, United States Sports Association, Inc., the City of Fairmont, Marion County Softball Association, Marion County Softball Association, and Marion County Board of Education. The plaintiffs settled the case with the Marion County Board of Education. The remaining defendants filed a motion for summary judgment which was granted by the circuit court, dismissing them from the case. It is from this final order that the appellants ask this court for review.

Appellant's Argument: Mr. Hawkins injured his right knee while sliding into first base during a softball tournament he was participating in at Windmill Park in Fairmont, Marion County, West Virginia. He alleges that these remaining defendants were negligent and breached the duty of care owed to him as a player, resulting in the injury. His knee allegedly struck a piece of pvc pipe protruding from the ground when he slid into first base.

Appellee's Argument: United States Sports Association, Inc., Marion County Slow Pitch Softball Association and the City of Fairmont argue they had no knowledge of the installation or existence of the buried pvc pipe and deny any liability for the injury. They assert that their duty to inspect the field was met by adequately preparing the field for play and did not include any subterranean exploration. They ask the Court to affirm the circuit court's order of dismissal.

Discussion Terms: Duty of Care, Negligence, Summary Judgment

3. State of W. Va. v. James Allen Mechling - 32873

Legal Background: This is an appeal from a conviction for the misdemeanor offense of domestic battery, with a sentence of six months, imposed following a bench trial in the Circuit Court of Monongalia County. The elements of the offense of domestic battery are set forth in West Virginia Code 61-2-28(a), which states:

Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.

Procedural History: Mr. Mechling was originally charged and convicted of the offense of domestic battery in magistrate court. He filed an appeal, which was heard de novo, at a bench trial in the circuit court. The State presented three witnesses: a witness who observed parts of the incident, and two sheriff's deputies who were called to the scene. The victim did not appear at trial or testify. The defendant elected not to testify at trial.

Appellant's Argument: The appellant argues that certain testimony provided by the sheriff's deputies was improper hearsay that should not have been admitted as evidence at trial. Absent this improper evidence, the appellant argues that there was insufficient evidence to sustain a conviction. Relying on a recent United States Supreme Court decision, Crawford v. Washington, 541 U.S. 36 (2004), the appellant argues that the deputies' testimony was improper testimonial hearsay. By allowing the deputies to provide hearsay testimony about what the victim said when the victim herself neither testified nor showed her unavailability the appellant argues that the circuit court violated his constitutional right to confront his accuser, as outlined in Crawford.

Appellee's Argument: The State argues that the deputies' testimony was properly admitted under a traditional exception to the hearsay rule covering excited utterances, defined by the rule as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Therefore, the State argues that the deputies' testimony was not the type of testimonial evidence that was at issue in Crawford. Moreover, the State contends, even assuming the testimony was improperly admitted, the error was harmless in light of the other evidence presented at trial that supports a finding of guilt, including the testimony of the eyewitness and the deputies' personal observations of the demeanor and condition of the victim when they arrived.

Discussion Terms: Confrontation Clause, Rules of Evidence, Hearsay, Hearsay Exceptions

4. Jackie L. Crouch v. WV Division of Motor Vehicles - 32843

Legal Background: This is an appeal of a civil case by the Department of Motor Vehicles. The Department of Motor Vehicles appeals the circuit court's order that reversed the Commissioner's final order revoking the driver's license of Jackie L. Crouch. The circuit court's reversal was on the basis that the State failed to establish jurisdiction in the underlying administrative hearing before the Commissioner.

Procedural History: Jackie L. Crouch was arrested for driving under the influence on June 6, 2003 in Mabscott, Raleigh County, West Virginia. The arresting officer failed to appear at the hearing on the charge before the magistrate court. The criminal case was dismissed upon motion of counsel for Ms. Crouch. Thereafter, the Department of Motor Vehicles issued an order revoking the license of Ms. Crouch. She contested the revocation and the Department of Motor Vehicles held an administrative hearing where the Commissioner revoked the driver's license of Ms. Crouch. Ms. Crouch filed an appeal of that revocation to the circuit court and was successful in having the circuit court reverse the decision of the Commissioner. It is from the circuit court order that the Department of Motor Vehicles asks this Court to review the case.

Appellant's Argument: The Department of Motor Vehicles argues that the circuit court erred in finding that jurisdiction was not established by the State, when the evidence in the record, the Statement of Arresting Officer clearly states that the arrest took place in Mabscott, Raleigh County. Additionally, the Department argues the circuit court erred in finding that the town police officer's authority is confined to the town limits of Mabscott.

Appellee's Argument: Counsel for Ms. Crouch contends that the State did not produce any evidence at the administrative hearing to establish that Ms. Crouch committed any offense in the town of Mabscott. Appellee raises due process arguments, including that the Statement of Arresting Officer cannot be admitted as the sole evidence in support of establishing jurisdiction. Without admissible evidence, appellee contends there was no reliable, admissible evidence to establish jurisdiction and the case was properly dismissed.

Discussion Terms: Jurisdiction, Due Process, Administrative Law