                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
                                                                                December 2, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

vs) No. 12-1535 (Kanawha County 11-F-606)                                      OF WEST VIRGINIA




Garland Murray,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Garland Murray, by counsel Kelli Hill and Nancy Hill, appeals his conviction
for nighttime burglary, kidnapping, and first degree murder on constitutional grounds. The
Circuit Court of Kanawha County entered petitioner’s sentencing order on December 4, 2012.
The State, by counsel Laura Young, filed a response to which petitioner replied.

        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.

        Late on the evening of April 20, 2010, petitioner’s brother entered the home of Gregory
and Ebony Poole without permission. Mrs. Poole was alone in the house. At the time, Mr. and
Mrs. Poole were on supervised release from federal prison for convictions relating to the sale of
illegal drugs. Petitioner’s brother forced Mrs. Poole outside. Once there, Mrs. Poole saw her
husband seated in the couple’s vehicle with a gun to his back. Holding the gun and seated inside
the car was petitioner Garland Murray. Mrs. Poole freed herself from petitioner’s brother and
fled the scene. Thereafter, petitioner, his brother, and Mr. Poole drove off. Soon thereafter, Mr.
Poole was seen being chased by one man while a second man walked away. Shots were fired.
Early the following morning, Mr. Poole’s lifeless body was found lying face down. He had been
shot three times, once in the face and twice in the back of the head.

        Both petitioner and his brother were indicted on ten counts including two burglary-related
counts, one count of the first degree murder of Mr. Poole (“decedent”), two counts of attempted
kidnapping (of decedent and Mrs. Poole), and five counts related to the manufacture and/or
intent to deliver illegal drugs.

       Petitioner was initially represented by Public Defender Justin Collin. However, petitioner
was dissatisfied with Mr. Collin’s representation and wrote a letter to the trial court in August of
2011 seeking the appointment of one of four other named attorneys. By order entered August 25,

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2011, the trial court appointed Attorneys Tim C. Carrico and L. Thompson Price, although
neither was named in petitioner’s letter.

        Petitioner’s October 29, 2011, trial was continued when petitioner’s brother pled guilty to
conspiracy to commit kidnapping. At his plea hearing, petitioner’s brother stated that he,
petitioner, and a third person planned to hold decedent until decedent would “take us to where he
was holding the drugs . . . .”

         Mr. Carrico sought to withdraw as petitioner’s counsel in December of 2012. Soon
thereafter, the trial court received a letter from petitioner asking for the appointment of new
counsel. Petitioner claimed that Mr. Carrico and Mr. Price had wrongfully agreed to continue his
trial date, failed to respond to his inquiries, and failed to timely prepare for trial. Petitioner asked
that Attorney Rico Moore be appointed as his new counsel.

        At a December 12, 2012, hearing on Mr. Carrico’s motion to withdraw, Mr. Price joined
the motion. Both attorneys claimed that petitioner did not trust them and that the attorney/client
relationship was not intact, operational, or functional. Mr. Carrico claimed that petitioner
essentially wanted face-to-face contact with counsel on a daily basis. Prior to ruling on the
motion to withdraw, the trial court told petitioner that, “These are two pretty good lawyers . . .
they will do whatever is necessary to work on your case and get it ready for trial.” The trial court
then denied counsel’s motion to withdraw, but agreed to move petitioner from Huttonsville
Correctional Center to the South Central Regional Jail so he would be more readily accessible to
his counsel. In response, petitioner said, “I would rather represent myself.” The trial court
replied, “I will not let you run this court. . . . If you want Mr. Rico Moore to represent you, fine.
Go hire him.” The court then said, “[Mr. Carrico and Mr. Price] will represent you, I am
confident, effectively and competently in court.”

        At a January 30, 2012, hearing, the trial court inquired if the conflicts between petitioner
and his counsel had been resolved. Both Mr. Carrico and petitioner answered, “Yes, Sir.”

       Prior to trial, petitioner’s counsel resolved petitioner’s drug-related counts by plea
agreement, proffered a notice of alibi, filed multiple motions to suppress evidence, and worked
with petitioner to prepare for trial.

         Petitioner’s trial commenced on May 7, 2012, and ended on May 14, 2012. Mrs. Poole
testified during the State’s case-in-chief. Petitioner claims that she was the lone eyewitness
testifying in support of the State’s case against him and that her credibility was demonstrably
untrustworthy. The State also entered evidence regarding text messages and cell phone calls
made on the night decedent was murdered between petitioner and his brother and between
petitioner’s brother and decedent. Although the State listed petitioner’s brother on its witness list,
it did not call him to testify at trial. The defense, over petitioner’s objection, also did not call
petitioner’s brother to testify. The jury found petitioner guilty of nighttime burglary, first degree
murder (with a recommendation of mercy), and attempted kidnapping.

       On June 11, 2012, the prosecutor filed a recidivist information against petitioner
regarding his prior convictions for felony robbery in May of 2000; malicious wounding,

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possession of a firearm, and wanton endangerment in January of 2004; and two counts of intent
to deliver cocaine in November of 2010. Petitioner was tried as a recidivist in December of 2012.
A jury found petitioner to be the person who had committed the crimes listed in the information.

         Petitioner was sentenced on December 4, 2012, to not less than one nor more than fifteen
years in prison for nighttime burglary; life in prison with the possibility of parole for murder; and
life in prison for attempted kidnapping. This sentence reflected an enhancement for petitioner’s
previous felony convictions and the finding that he was a recidivist.

       Petitioner now appeals his conviction.

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

        On appeal, petitioner raises seven assignments of error. Petitioner first argues that he was
denied his right to waive counsel and to self-represent pursuant to Article 3, Section 14, of the
West Virginia Constitution and the Sixth and Fourteenth Amendments to the United States
Constitution. See Syl. Pt. 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983) (The right
of self-representation is a correlative of the right to assistance of counsel.); Faretta v. California,
422 U.S. 806 (1975) (Criminal defendants have a constitutional right to refuse counsel and
represent themselves.). Specifically, petitioner argues that the trial court forced representation
upon him after he said, “I would rather represent myself.”

        Immediately after petitioner said, “I would rather represent myself[,]” he asked the trial
court to appoint new counsel. Further, when the trial court denied his request for new counsel,
petitioner agreed to give Mr. Carrico and Mr. Price another chance.1 A month later, when
petitioner was again in front of the trial court on a pretrial matter, he admitted to the court that
his issues with his counsel had been resolved and did not renew his request to self-represent. A
defendant has a right to self-represent, but he must voice that desire in a timely and unequivocal
manner. Syl. Pt. 8, in part, Sheppard at 660, 310 S.E.2d at 177. Because petitioner never
unequivocally asked to self-represent, the trial court’s decision to maintain the appointment of
Mr. Carrico and Mr. Price was within its discretion. Therefore, we find that the trial court did not
err.

       Petitioner next argues that he was denied his right to be present at all critical stages of the
proceedings against him, as conferred by the Sixth Amendment to the United States Constitution;

       1
        Petitioner was not entitled to the appointed counsel of his choice and could only reject
appointed counsel for good cause. Syl. Pt. 2, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664
(1977).
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Article 3, Section 14 of the West Virginia Constitution; West Virginia Code § 62-3-2; and Rule
43 of the West Virginia Rules of Criminal Procedure. Petitioner states that while he was in a
holding cell in the courthouse, the trial court, the prosecutor, and petitioner’s counsel answered
three questions2 posed by the jury during deliberations. In the first instance, the jury sought the
telephone numbers of petitioner, his brother, decedent, and his widow. Prior to answering this
question, the judge offered to bring petitioner to the courtroom. However, petitioner’s counsel
affirmatively stated the petitioner’s presence was not necessary. The trial court’s answer to the
question was that the jury would have to rely on the evidence presented at trial. The jury’s
second question related to the definition of kidnapping and attempted kidnapping. Although
petitioner’s counsel asked the trial court to reread its charge to the jury, the court chose instead to
give the written jury instructions to the jury. As for the third question, the jurors asked the court
how to correct a “miss-marked” verdict form. The court told the jurors to write “void” on all
existing verdict forms, and then provided new forms.

         The defendant’s absence at a critical stage of his proceeding is not reversible error where
there is no possibility of prejudice to the defendant. Syl. Pt. 3, State ex rel. Redman v. Hedrick,
185 W.Va. 709, 408 S.E.2d 659 (1991). In his brief on appeal, petitioner merely speculates that
the trial court would have answered the questions differently had he been present. In answering
the first two questions, the court merely directed the jurors’ attention to the evidence at trial, and
provided a written copy of the instructions they had heard in petitioner’s presence. As for the
third question, it was purely procedural and in no way relevant to the facts surrounding, or law
governing, petitioner’s case. Thus, there is nothing in the record tending to show prejudice
resulting from petitioner’s absence from the courtroom. As such, we find the court did not err.

         Petitioner’s third assignment of error is that the trial court erred by denying his
constitutional right to compulsory process for obtaining witnesses in his favor. Petitioner’s
brother was on the State’s witness list. However, the State did not call him. Thereafter, petitioner
asked his counsel to call his brother. Counsel refused, but noted petitioner’s objection for the
record. The State contends that if petitioner’s brother had been called to the stand, he could have
testified that (1) he conspired with petitioner to commit kidnapping (to hold the decedent until he
would take them to the location of the drugs); (2) petitioner tried to rob decedent and his wife;
(3) petitioner had a gun; (4) petitioner was holding a gun to decedent’s head as decedent drove
the car away; (5) decedent got away from petitioner; and (6) petitioner chased decedent while
shooting at him. The State also contends that if petitioner’s brother had attempted to exonerate
petitioner completely, petitioner’s brother would have been impeached on cross examination
with his plea hearing statement and by the testimony of at least one other witness.

        Petitioner’s right to compulsory process was not abridged. The record on appeal shows
that petitioner’s counsel made a tactical decision not to call petitioner’s brother as a witness for
the defense. Hence, in essence, petitioner’s complaint regards his counsel’s decision not to call
his brother to the stand. We have oft said, claims for ineffective assistance of counsel are best
presented in post-conviction petition for writ of habeas corpus:

       2
        The jury also asked two non-substantive questions regarding when they could leave for
the day and how long they had for lunch. Petitioner does not allege that he was prejudiced by
being absent for these procedural questions.
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               “It is the extremely rare case when this Court will find ineffective
       assistance of counsel when such a charge is raised as an assignment of error on a
       direct appeal. The prudent defense counsel first develops the record regarding
       ineffective assistance of counsel in a habeas corpus proceeding before the lower
       court, and may then appeal if such relief is denied. This Court may then have a
       fully developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.” Syl. Pt. 10, State v. Triplett, 187 W.Va.
       760, 421 S.E.2d 511 (1992).

Syl. Pt. 13, State v. Jessie, 225 W.Va. 21, 25, 689 S.E.2d 21, 25 (2009). Based on the record
before this Court, it is impossible for us to determine what motivated petitioner’s counsel’s
actions. As such, we express no opinion as to whether counsel was, or was not, ineffective at this
juncture.

       Petitioner’s fourth assignment of error is that the trial court violated Rules 404(a) and
404(b) of the West Virginia Rules of Evidence by allowing the State to introduce impermissible
character evidence at trial. In regard to Rule 404(a), petitioner’s complaint regards the State’s use
of his nickname, “CREAM,” and the testimony that the nickname was an acronym for “Cash
Rules Everything Around Me.” In regard to Rule 404(b), petitioner contends that the State
alleged that he was a drug dealer and a car thief.

               “The action of a trial court in admitting or excluding evidence in the
       exercise of its discretion will not be disturbed by the appellate court unless it
       appears that such action amounts to an abuse of discretion.” Syllabus Point 10,
       State v. Huffman, 141 W.Va. 55, 57, 87 S.E.2d 541, 544 (1955), overruled on
       other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893
       (1994).

Syl. Pt. 2, State v. Harris, 230 W.Va. 717, 742 S.E.2d 133 (2013). “‘A trial court’s evidentiary
rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse
of discretion standard.’ Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469
(1998).” Id. at Syl. Pt. 3.

        In regard to petitioner’s Rule 404(a) argument, we note that petitioner’s counsel never
objected to the State’s use of petitioner’s nickname. Therefore, we must analyze this assignment
of error under the plain error doctrine.

               To trigger application of the “plain error” doctrine, there must be (1) an
       error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects
       the fairness, integrity, or public reputation of the judicial proceedings.

Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

               An unpreserved error is deemed plain and affects substantial rights only if
       the reviewing court finds the lower court skewed the fundamental fairness or
       basic integrity of the proceedings in some major respect. In clear terms, the plain

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       error rule should be exercised only to avoid a miscarriage of justice. The
       discretionary authority of this Court invoked by lesser errors should be exercised
       sparingly and should be reserved for the correction of those few errors that
       seriously affect the fairness, integrity, or public reputation of the judicial
       proceedings.

Syl. Pt. 7, State v. LaRock, 196 W.Va. 294, 299, 470 S.E.2d 613, 618 (1996). Here, we find that
the State’s use of petitioner’s nickname did not skew the fundamental fairness or basic integrity
of petitioner’s trial. Consequently, we find that the trial court did not err.

        In regard to petitioner’s Rule 404(b) argument, the State argues that it did not
characterize petitioner as a car thief, but points out that a witness did testify that she saw a car
matching the description of petitioner’s car in front of her house and that Metro 911 told her the
car was stolen. The State also argues that it did not characterize petitioner as a drug dealer
although on three occasions the evidence showed that petitioner had purchased drugs from
decedent. The State contends that this evidence was intrinsic to the State’s theory of the case:
that petitioner knew decedent because he had purchased drugs from him, and was able, therefore,
to lure decedent out of his house under the pretext of a drug deal.

        This Court has consistently held that evidence which is “intrinsic” to the indicted charge
is not governed by Rule 404(b).

               In determining whether the admissibility of evidence of “other bad acts” is
       governed by Rule 404(b), we first must determine if the evidence is “intrinsic” or
       “extrinsic.” [] “‘Other act’ evidence is ‘intrinsic’ when the evidence of the other
       act and the evidence of the crime charged are ‘inextricably intertwined’ or both
       acts are part of a ‘single criminal episode’ or the other acts were ‘necessary
       preliminaries’ to the crime charged.” [] If the proffer fits in to the “intrinsic”
       category, evidence of other crimes should not be suppressed when those facts
       come in as res gestae—as part and parcel of the proof charged in the indictment . .
       . . Indeed, evidence admissible for one of the purposes specified in Rule 404(b)
       and res gestae not always is separated by a bright line. . . .

State v. LaRock, 196 W.Va. 294, 312 n.29, 470 S.E.2d 613, 631 n.29 (1996) (internal citations
omitted). Here, the evidence of which petitioner complains was clearly intrinsic to the State’s
case. As such, the trial court did not abuse it discretion in allowing the State to admit the
evidence regarding the car or petitioner’s drug purchases.

        Petitioner’s fifth assignment of error is that the trial court forced petitioner to accept
ineffective assistance of counsel in violation of his constitutional rights. Petitioner contends that
his counsel’s many errors proved that petitioner’s representation was constitutionally deficient
under an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668
(1984). However, as we noted above, such a complaint is best presented in a petition for post-
conviction habeas corpus relief.




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        Petitioner’s sixth assignment of error is that the trial court erred in allowing the admission
of hearsay evidence: text messages from the night of the murder between petitioner and his
brother and between petitioner’s brother and decedent. The State offers that the text messages
between petitioner and his brother fell within the hearsay exception to Rule of Evidence
801(d)(2)(e) (statements made by a conspirator in furtherance of the conspiracy). As for
decedent’s statements in the text messages, the State claims that they were admitted to show his
state of mind on the night he was murdered. Further, the State alleges that the text messages
between petitioner’s brother and decedent regarding a possible drug deal that night were not
admitted for the truth of the matter asserted, but to show that petitioner and his brother conspired
to lure decedent out of his house. The trial court granted the State’s motion and found that
decedent’s text messages were “not hearsay” and admissible under Rules of Evidence 803(1)
(present sense impression), and 803(3) (then existing mental, emotional, or physical condition).

        We concur with the circuit court’s application of the Rules of Evidence and, therefore,
find that the trial court did not abuse its discretion in admitting the text messages at trial.

         Petitioner last argues that the trial court erred by refusing to give a cautionary jury
instruction regarding the reliability of eyewitness testimony. Petitioner claims that eyewitness
testimony was at issue in this case because decedent’s wife was the only eyewitness who
identified petitioner, and her testimony was contradictory.

               The formulation of jury instructions is within the broad discretion of a
       circuit court, and a circuit court’s giving of an instruction is reviewed under an
       abuse of discretion standard. A verdict should not be disturbed based on the
       formulation of the language of the jury instructions so long as the instructions
       given as a whole are accurate and fair to both parties.

Syl. Pt. 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374
(1995). Further, “[a]s a general rule, the refusal to give a requested jury instruction is reviewed
for an abuse of discretion.” Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257
(1996). We find that the trial court did not abuse its discretion in refusing petitioner’s instruction
given that decedent’s wife had known both petitioner and his co-conspirator for a considerable
period of time.

       For the foregoing reasons, we affirm.
                                                                                           Affirmed.

ISSUED: December 2, 2013

CONCURRED IN BY:

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

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