                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                     FILED
                                                                           November 17, 2017
vs) No. 16-0692 (Fayette County 16-F-20)                                     EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Todd Booth,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Todd Booth, by counsel E. Scott Stanton, appeals the June 22, 2016,
“Sentencing and Commitment Order” entered in the Circuit Court of Fayette County following
his conviction by a jury of conspiracy to commit a felony, malicious assault, and robbery in the
first degree. The State of West Virginia, by counsel Zachary Aaron Viglianco, filed a response in
support of the circuit court’s order.

        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.

        Petitioner and his co-defendants, Robert Patrick and Kristina Lambert, were indicted on
January 12, 2016, on charges of conspiracy, malicious assault, first degree robbery, and burglary
in connection with the beating and robbery of 74-year-old Bobby Wright (“the victim”) on
August 8, 2015. Approximately two weeks earlier, the victim met petitioner and Patrick at the
vehicle repair shop where they worked in Beckley, West Virginia. The victim hired them to
repair his vehicle. After the repairs were completed at the victim’s home in Mount Hope, the
victim paid the pair, at which time they were able to see that the victim was carrying $500 to
$800 in cash.

         On the evening of the attack, petitioner, Patrick, and Lambert drove to the victim’s home.
The victim, who was sitting in his living room, saw someone walk by the window. The victim
testified that he got up “[a]nd I’d already knowed [sic] them a little bit, so I went out on the
porch and went to talking to them.” He then allowed Lambert to enter the home to use the
bathroom. After Lambert returned to the car to get cigarettes, petitioner and Patrick attacked the
victim, hitting him hard enough on the head to cause him to lose consciousness. The victim felt
one of the men reach into his pocket and steal his wallet. According to Lambert, when the men
returned to the car, they threw a wallet into the backseat and showed her their hands, which she
described as “red.” Lambert testified that the men then stated that the victim would not be

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waking up for a while.

         At trial, Fayette County Deputy Adam Roberts, who answered the victim’s 9-1-1 call on
the evening of the attack, testified that, although the victim did not know the names of his
attackers, “[h]e stated that he had met them at Greg Lilly Auto Sales in Beckley[,]” and that he
had previously hired them to perform work on his vehicle. Detective William Kevin Willis
testified that receipts and video surveillance of several stores in the area revealed that Lambert
used the victim’s credit card on the evening of the attack and that petitioner was seen in several
of the videos alongside Lambert.

        As a result of the attack, the victim suffered a fractured orbital bone, another skull
fracture, and intracranial bleeding that resulted in a subdural hematoma. The attack also had a
severe, degenerative impact on the victim’s health, causing his memory and cognitive function to
worsen and resulting in treatment for post-traumatic stress disorder (“PTSD”), depression, and
anxiety.

        On February 25, 2016, the State filed a motion under Rule 15 of the West Virginia Rules
of Criminal Procedure to take the evidentiary video deposition of the victim on the ground that
his “health is continuing to deteriorate and his ability to physically participate in the trial of this
matter [set for April 7, 2016,] seems less and less likely.” Following a hearing, and over
petitioner’s objection, the circuit court granted the State’s motion.

         On March 10, 2016, just prior to the scheduled video deposition of the victim, petitioner
filed with the circuit court a waiver of his right to be present at the victim’s video deposition.
However, the State objected on the ground that the victim, who had not previously identified
petitioner as one of his attackers, would be given the opportunity to identify the petitioner for the
first time during the deposition. The State advised the court that it needed the victim to make the
identification in order to prove its case. Based upon the State’s objection, the circuit court
refused to accept petitioner’s waiver.

         A video deposition of the victim was thereafter conducted in the courtroom and with the
circuit judge presiding. During the course of the deposition, the victim recounted the attack and
identified petitioner and Patrick, both of whom were present,1 as his attackers. Counsel for
petitioner and his co-defendants cross-examined the victim.

        Immediately following the victim’s Rule 15 deposition, the circuit court conducted a
hearing on the motions to sever previously filed by petitioner and Patrick. The court denied the
motions. Prior to petitioner’s trial, petitioner’s co-defendants entered into plea agreements with
the State.
        On March 18, 2016, petitioner filed a motion to suppress the victim’s identification of
him at trial. Following a hearing, the circuit court denied the motion.

       On April 7, 2016, the State filed a motion in limine to allow the victim’s video deposition

       1
         Co-defendant Lambert could not be located and was not present; however, her counsel
was in attendance.
                                                  2

to be played at trial on the ground that, since the time the deposition was taken, the victim’s
“mental and cognitive condition has deteriorated to the point that it is the opinion of his treating
health care providers that he not testify in person at the trial in this matter. . . . and that forcing
[him] to testify will cause further damage to his health and well-being.” Following a hearing, the
circuit court granted the motion.

       A two-day jury trial was conducted beginning on April 18, 2017. Petitioner was
convicted of conspiracy, for which he was sentenced to one to five years of incarceration;
malicious assault, for which he was sentenced to two to ten years; and first degree robbery, for
which he was sentenced to fifty years.2 The sentences were ordered to be served consecutively to
each other and to the sentence he was then currently serving for a prior conviction for daytime
burglary in Monroe County, West Virginia.3 This appeal followed.

        Petitioner’s first assignment of error involves the taking and use of the victim’s video
deposition. Petitioner argues (1) that there was insufficient evidence that the victim was in such
ill health that a video deposition under Rule 15 of the Rules of Criminal Procedure was
warranted or that he could not thereafter appear at trial to testify; (2) that petitioner should have
been permitted to waive his presence at the deposition; and (3) that the victim’s identification of
petitioner at the deposition should have been suppressed. We will address each of these
arguments in turn.

       Under Rule 15(a),

       [w]henever due to exceptional circumstances of the case it is in the interest of
       justice that the testimony of a prospective witness of a party be taken and
       preserved for use at trial, the court may upon motion of such party and notice to
       the parties order that testimony of such witness be taken by deposition. . . .

Id. in relevant part. See Syl. Pt. 1, State ex rel. Spaulding v. Watt, 186 W. Va. 125, 411 S.E.2d
450 (1991) (holding that “Rule 15 of the West Virginia Rules of Criminal Procedure permits a
deposition to be compelled in a criminal case only under very limited conditions, i.e., where, due
to exceptional circumstances, the deposition is necessary, in the interest of justice, to preserve
the deponent’s testimony for use at trial.”). Petitioner argues that the State failed to show that
“exceptional circumstances” existed in this case to warrant the taking of the victim’s video
deposition under Rule 15.

        The decision whether to permit a deposition under Rule 15 rests with the sound discretion
of the trial judge. See State v. Ferrell, 174 W. Va. 697, 699, 329 S.E.2d 62, 65 (1985). We find
no error. Given the victim’s advanced age and the fact that, based upon submitted medical
records, his physical and mental health were deteriorating following the serious injuries
sustained from the attack, the circuit court determined that, in the interest of justice, the victim’s
testimony should be preserved in a video deposition. We cannot say that the court abused its
       2
           The burglary charge was previously dismissed.
       3
        At the time petitioner was arrested on the charges in the present case, he was on parole
on the Monroe County charge. See discussion infra.
                                                  3

discretion in so finding and in thus permitting the taking of the victim’s deposition.

        With regard to the court’s subsequent ruling that permitted the State to use the victim’s
deposition at trial in lieu of his live testimony, we likewise find no error. Attached to its motion
in limine to allow the use of the victim’s deposition at trial, the State submitted a letter from the
victim’s health care provider that opined that the victim should not be required to testify at trial.
In the provider’s opinion, “the stress that [testifying] would produce would exacerbate [the
victim’s] anxiety and PTSD symptoms again to the point that he would not be able to function
without the support of another person.” He further opined that “the combination of the blunt
force head trauma along with the stress of having to deal with the legal proceedings over that
[sic] past nine months combined to worsen his cognitive function.”

       Under Rule 15(e) of the West Virginia Rules of Criminal, “[a]t the trial or upon any
hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence,
may be used as substantive evidence if the witness is unavailable, as unavailability is defined in
Rule 804(a) of the West Virginia Rules of Evidence. . . .” Id. in relevant part. Rule 804(a)(4)
provides that “[a] declarant is considered to be unavailable as a witness if the declarant . . .
cannot be present or testify at the trial or hearing because of death or a then-existing infirmity,
physical illness, or mental illness[.]”

         This Court has recognized that a circuit court’s “‘decision to actually admit [a] deposition
as evidence is reviewed for an abuse of discretion.’ United States v. Martinez, 198 Fed.Appx.
704, 711 (10th Cir.2006).” State v. Reed, 223 W. Va. 312, 316, 674 S.E.2d 18, 22 (2009). See Id.
(“‘The determination of admissibility of deposition testimony based on the unavailability of the
witness is a matter left to the discretion of the trial judge.’ United States v. Campbell, 845 F.2d
1374, 1378 (6th Cir.1988).”). The circuit court concluded that, based upon the medical records
submitted with the State’s motion in limine, and also upon the State’s representation that the
victim, as of the April 14, 2016, hearing date, was no longer ambulatory, the victim was
unavailable to testify. Having previously observed the victim while he was being deposed, the
court specifically noted that “[h]e appeared to be frail[,]” that the records show that “he was
almost beaten to death[,]” and that “he has continued to deteriorate[.]” The court determined the
victim to be “unavailable for the trial in this matter because of his declining physical and mental
health, and a lot of that is – appears to be as a result of the beating that was inflicted on him on
this particular day.” Importantly, the court recognized that the victim was cross-examined during
his deposition and that “all counsel really did a good job pointing out areas that were favorable to
their clients in the testimony.”

        The Court finds that the circuit court carefully considered the circumstances presented,
including that the victim was no longer ambulatory, that his cognitive function had worsened in
recent months, and the opinion of his health care provider that testifying at trial would only
exacerbate his already declining health. The circuit court also emphasized that petitioner’s
counsel, along with counsel for his co-defendants, ably cross-examined the victim during the
course of the deposition. Given the foregoing, we cannot say that the circuit court abused its
discretion in admitting the victim’s deposition at trial.

       Next, we address petitioner’s argument that the circuit court erred in refusing to allow
him to waive his presence at the victim’s deposition. Under Rule 15(b),

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       [t]he party at whose instance a deposition is to be taken shall give to every party
       reasonable written notice of the time and place for taking the deposition. The
       notice shall state the name and address of each person to be examined. . . . The
       officer having custody of a defendant shall be notified of the time and place set
       for the examination and shall, unless the defendant waives in writing the right to
       be present, produce the defendant at the examination and keep him or her in the
       presence of the witness during the examination. . . .

Id., in part. (Emphasis added). Petitioner argues that, under Rule 15(b), he had the right to waive
his attendance at the victim’s deposition.

        We find no error. The circuit court was presented with the unique fact that the State
represented to the court that its case rested, at least in part, on the testimony of an elderly victim
who was in declining health primarily due to the physical assault giving rise to the charges at
issue. The purpose of the deposition was to preserve the victim’s testimony and to obtain a
positive identification of petitioner and Patrick as his attackers in the unfortunate event the
victim would be unable to testify at trial. Petitioner’s absence would have clearly frustrated that
purpose. Therefore, under such unique facts, the circuit court did not abuse its discretion in
refusing to accept petitioner’s waiver of his right to be present.

        Petitioner next argues that the circuit court erred in refusing to suppress the victim’s
identification of petitioner during the deposition. Petitioner argues that, until the deposition, the
victim could not recall the names of either petitioner or Patrick nor could the victim identify
either of the men out of a photographic line-up. Petitioner contends that the circumstances
surrounding the positive identification at the deposition were overly suggestive because
petitioner stood out while wearing orange prison attire and shackles4 and, as such, the
identification was unreliable and, therefore, inadmissible. In so arguing, petitioner relies on the
test of Neil v. Biggers, 409 U.S. 188 (1972), adopted by this Court in syllabus point three of State
v. Casdorph, 159 W. Va. 909, 230 S.E.2d 476 (1976), abrogated on other grounds by State v.
Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982), which held, in relevant part, that “whether an
out-of-court identification of a defendant is so tainted as to require suppression of an in-court
identification” requires that a court “look to the totality of the circumstances and determine
whether the identification was reliable,” even where “the confrontation procedure was
suggestive, with due regard given to such factors as the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’
prior description of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the confrontation.”

        We find petitioner’s reliance on Casdorph to be misplaced as the victim’s identification
of petitioner was not the type of out-of-court identification contemplated under
Biggers/Casdorph. In this case, the victim identified petitioner and Patrick as his attackers during
his Rule 15 deposition, which was subsequently admitted into evidence in lieu of the victim’s
live trial testimony. After identifying them, counsel for petitioner and his co-defendants
vigorously cross-examined the victim regarding the fact that he did not previously know their
       4
          The video of the victim’s deposition was edited such that the jury never saw petitioner
or his co-defendant, Patrick, the latter of whom was wearing street clothes.
                                                  5

names, that he gave confusing descriptions of the two men to police, and that he could not pick
them out of a photographic array shortly after the attack. The victim’s testimony was heard by
the jury, as was the evidence that, when the two men arrived at his home on the evening of the
attack, the victim recognized them as the same men whom he met two weeks earlier at Greg
Lilly Auto Sales and hired to fix his vehicle, and who spent time at his home fixing the vehicle.
The jury also heard testimony from Deputy Roberts who answered the victim’s 9-1-1 call and
who was told by the victim that he met his attackers at the auto shop and that they had repaired
his vehicle. Further, Kristina Lambert, petitioner’s co-defendant, placed petitioner at the scene
and video surveillance at area stores after the attack showed petitioner at Lambert’s side as she
purchased items using the victim’s credit card.

         It is clear that “‘[i]n the trial of a criminal prosecution, where guilt or innocence depends
on conflicting evidence, the weight and credibility of the testimony of any witness is for jury
determination.’ Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952).” Syl.
Pt. 2, State v. Smith, 225 W. Va. 706, 696 S.E.2d 8 (2010). See Syl. Pt. 2, State v. Bailey, 151 W.
Va. 796, 155 S.E.2d 850 (1967) (“The jury is the trier of the facts and in performing that duty it
is the sole judge as to the weight of the evidence and the credibility of the witnesses.”). Given
that it was the jury’s role to determine the credibility and reliability of the victim’s testimony—
including his identification of petitioner as one of his attackers—we find that the circuit court did
not err in denying petitioner’s motion to suppress the identification at trial.

        In his next assignment of error, petitioner argues that the circuit court erred in failing to
grant his motion to sever5 prior to the taking of the victim’s deposition. Petitioner states, without
further explanation, that the court erred in (1) allowing the victim’s deposition to proceed
without first addressing the motions to sever filed by petitioner and his co-defendants, and (2)
allowing the victim to be deposed “with three lawyers participating and cross-examining [him].”

        This Court has held that it “will not reverse a denial of a motion to sever properly joined
defendants unless the petitioner demonstrates an abuse of discretion resulting in clear prejudice.”
Syl. Pt. 3, in relevant part, State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017). Indeed, “a
defendant bears a heavy burden in gaining severance, and must pinpoint clear and substantial
prejudice resulting in an unfair trial.” Id. at 431, 796 S.E.2d at 218 (quoting United States v.
Tutis, 167 F.Supp.3d 683, 692 (D.N.J. 2016)). Here, petitioner’s argument is substantively sparse
and fails to indicate how he was prejudiced by the court’s actions. In fact, given that both of
petitioner’s co-defendants entered into plea agreements prior to trial and that petitioner was tried
alone, “petitioner clearly did not suffer any prejudice as a result of a joint trial, [thus,] this issue
is moot.” State v. Jordan, No. 16-0072, 2016 WL 6819053, at *2 (W. Va. Nov. 18, 2016)
(memorandum decision).

       In his final assignment of error, petitioner argues that the circuit court erred in failing to
give him credit for “all time served” between his arrest and sentencing. Petitioner was arrested in

       5
          See Rule 14(b) of the West Virginia Rules of Criminal Procedure, which states, in part,
that “[i]f the joinder of defendants in an indictment, an information, or a consolidation for trial
appears to prejudice a defendant or the State, the Court may sever the defendant’s trials, or
provide whatever other relief that justice requires.”


                                                   6

the State of Virginia on August 19, 2015. At the time of his arrest, he was on parole for a prior
criminal conviction in Monroe County. He was returned to West Virginia and incarcerated. On
October 2, 2015, petitioner’s parole was revoked upon his admission that he violated it by
traveling to Virginia. Upon sentencing in the instant matter, the circuit court ordered that
petitioner’s sentences for his convictions in this case be served consecutively to each other and to
the sentence he is currently serving from Monroe County. The court also directed that petitioner
“be credited with time served (August 19, 2015 through October 2, 2015) with the West Virginia
Regional Jail Authority while awaiting disposition of this matter.” On appeal, petitioner argues
that the circuit court should have awarded him credit for the time served from the date of his
arrest until his sentencing on the charges for which he was convicted herein.

        It is well established that petitioner is entitled to credit for the time he spent incarcerated
while awaiting trial. See Syl. Pt. 6, State v. McClain, 211 W. Va. 61, 561 S.E.2d 783 (2002)
(holding that “[t]he Double Jeopardy and Equal Protection Clauses of the West Virginia
Constitution require that credit for time spent in jail before conviction shall be credited against
all terms of incarceration to a correctional facility imposed in a criminal case as a punishment
upon conviction when the underlying offense is bailable.”). However, we have also held that “a
criminal defendant is not entitled to have credit for time served applied to all overlapping,
unrelated charges, if credit was properly applied to at least one of those charges.” State v.
Greene, No. 15-0402, 2016 WL 3463468, at *4 (W. Va. June 21, 2016) (memorandum decision).
See State v. Wears, 222 W. Va. 439, 665 S.E.2d 273 (2008) (denying credit for time served
between State’s voluntary dismissal of an indictment and defendant’s reindictment because he
remained in custody serving time on unrelated charges).

         In this case, petitioner was arrested on August 19, 2015, and incarcerated. On October 2,
2015, he admitted violating his parole on a prior unrelated conviction and his parole was
revoked. Petitioner remained incarcerated both for his parole revocation on the unrelated
conviction and on the charges now at issue. Upon his conviction on the charges herein, the
circuit court granted petitioner credit for time served for the period of August 19, 2015 (the date
of his arrest), through October 2, 2015 (the date his parole on the unrelated conviction was
revoked). Our law is clear that, under these facts, petitioner is not entitled to additional credit for
time served up through the date of sentencing on the current charges. See Wears, 222 W. Va. at
445, 665 S.E.2d at 279; Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986) (holding that
presentence credit time served on one sentence is not available where criminal defendant is
already incarcerated on another conviction). “To give [petitioner] credit for time again under [the
current charges], as he now asks this Court to do, would constitute the functional equivalent of
permitting him to serve the consecutive sentences in a concurrent manner which is contrary to . .
. the . . . sentencing order.” State ex rel. McCabe v. Seifert, 220 W. Va. 79, 83 n.7, 640 S.E.2d
142, 146 n.7 (2006). Thus, we find that petitioner was properly given credit for all time served
on the charges for which he was convicted herein.


       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: November 17, 2017

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CONCURRED IN BY:

Chief Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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