*** SupCo calendar for 3/15 issue

Argument Docket
Tuesday, March 30

1. Jerry Goldizen and Bill Goldizen v. Grant County Nursing Home - 34888 - Plaintiffs appeal from the circuit court's order granting summary judgment in favor of defendant given plaintiffs' failure to timely name an expert witness pursuant to the requirements of W.Va. Code §55-7B-7 (2008) in this medical malpractice case involving death. Plaintiffs contend that the circuit court erred in denying their motion to vacate the scheduling order and grant a continuance of the trial and in sanctioning plaintiffs for their failure to comply with a Rule 16 scheduling order, all of which resulted in the erroneous entry of summary judgment in favor of defendant. Plaintiffs seek a reversal and a remand for further proceedings to allow the matter to proceed to trial.

2. State of West Virginia v. Keith D. Payne - 34771 - Keith D. Payne appeals the sentence he received for his convictions of domestic battery and misdemeanor obstructing an officer, both misdemeanors. He argues that the court erred by considering evidence outside of the record and the pre-sentence report when sentencing him to consecutive one year jail sentences for each offense. - Dismissed.

3. Eric R. Cain v. West Virginia Division of Motor Vehicles - 35013 - The DMV Commissioner appeals the circuit court's order which reversed the Commissioner's Final Order Revoking respondent's driver's license. The DMV argues that the court erred in finding that the arresting officer lacked a reasonable suspicion that a crime had been committed, that the exclusionary rule should not apply to DMV cases, and that the court erred in finding that there had been an improper shifting of the burden of proof.

4. State of West Virginia v. Billy Ray McLaughlin - 34860 - Defendant appeals the questions of law certified by the circuit court in this action while on remand to the circuit court for a new trial solely on the question of whether defendant should receive a recommendation of mercy. Defendant asks that this Court accept and rule upon these certified questions which, with one exception, were decided adversely to defendant.

CERTIFIED QUESTIONS: QUESTION 1: Whether or not Chapter 62 Article 3 section 15 of the West Virginia Code unconstitutionally shifts the burden of persuasion on the issue of mercy to the defendant in the penalty phase of a case? Specifically, the language of the statute indicates; [sic] "if a person indicted for murder pleads guilty to murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of Article Twelve, Chapter Sixty Two of this code, shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said Article Twelve. (W.Va. Code 62-3-15).

THE COURT'S ANSWER TO QUESTION 1 is yes, if the language of the statute permits the burden of proving mercy to shift to the Defendant or permits less than a unanimous verdict of the jury on the issue of mercy.

QUESTION 2: Is it required that the jury, which determined guilt, be the same jury that determines the issue in a first degree murder case given the language of W.Va. Code 62-3-15 that provides: "if the jury find in their verdict that ...[the accused] is guilty of murder in the first degree...the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such a person shall be eligible for parole[.]"? (Emphasis added).

THE COURT'S ANSWER TO QUESTION 2 is no.

QUESTION 3: Is the prosecution limited in the mercy stage of a bifurcated trial to the presentation of evidence introduced in the guilt stage of trial and rebuttal of evidence presented by the defendant?

THE COURT'S ANSWER TO QUESTION 3: This Court finds that the answer to this question depends in part on the determination on how the first two questions are answered. With respect to Question 3, it is this Court's position that since the burden is on the State, (based on the answer to Question 1), the State would be required to present its case first.

5. In Re: Isaiah A. - 35031- Guardian ad litem appeals circuit court order declining to terminate Mother's parental rights and placing young child in permanent foster care.

Argument Docket
Wednesday, March 31

1. SER Max Paul Kitchen v. Howard Painter, Warden - 34713 - Max Paul Kitchen appeals the circuit court's denial of his omnibus petition for post-conviction habeas corpus. He was previously convicted of first degree murder without a recommendation of mercy and conspiracy to commit malicious assault. He asserts ineffective assistance of counsel, erroneous admission of evidence, failure to instruct regarding improper prosecutorial comments, failure to disqualify two jurors for cause, and cumulative error.

2. Michelle Isaacs v. Daniel P. Bonner - 35284 - Plaintiffs appeal an adverse decision of the circuit court following a bench trial in this action for statutory liquidated damages and attorney's fees under the Wage Payment and Collection Act. Plaintiff seeks a reversal, an order directing defendant to pay liquidated damages, a remand for a determination of attorney's fees, a reversal of the decision finding plaintiff liable to defendant for fraud, a reversal of the award of punitive damages and attorney's fees in favor of defendant, and a remand for further consideration.

3. SER Richmond American Homes of WV, Inc., et al. V. Hon. David Sanders, Judge - 35440 - Petitioner in State of West Virginia ex rel. Richmond American Homes of West Virginia, Inc., and M.D.C. Holdings, Inc. v. The Honorable David H. Sanders, No. 091796, seeks a writ of prohibition to challenge an order which strikes the answers and defenses of petitioner and enters default judgment against petitioners.

4. In Re: Faith C., Sophia S. and Madelyn S. - 35452 - Petitioners/Children, through the GAL, appeal the court's decision to not terminate parental rights, but to grant an improvement period instead.

5. SER Charles E. Walls v. Circuit Court of Logan County - 35451 - Petitioner seeks to compel the lower court to rule on his petition for writ of habeas corpus and his motion for production of transcripts. - To be presented on briefs only without oral argument.