                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                   FILED
Plaintiff Below, Respondent                                                     May 21, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0400 (Jefferson County 13-F-81)                                     OF WEST VIRGINIA


Carletta Antoinette Watson,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

         Petitioner Carletta Antoinette Watson, by counsel Nicholas Forrest Colvin, Esq., appeals
the March 7, 2014, order of the Circuit Court of Jefferson County denying her motion for judgment
of acquittal/motion for a new trial arising out of her conviction of first degree felony murder of
Dontrell Curry, first degree robbery, burglary, and conspiracy to commit both first degree burglary
and first degree robbery. Upon the jury’s failure to recommend mercy, petitioner was sentenced
to life in the penitentiary without the possibility of parole. The State, by counsel Brandon C. H.
Sims, Esq., filed a response to petitioner’s appeal.

       This Court has considered the parties’ briefs, oral argument, and the record on appeal.
Upon careful review, this Court finds no substantial question of law and, after consideration of the
applicable standards of review and the record presented, we find no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the West Virginia Rules of Appellate Procedure.

        Petitioner, originally from Baltimore, Maryland, and her girlfriend moved in with Rachel
Cooke (hereinafter “Ms. Cooke”), Ms. Cooke’s four children and Ms. Cooke’s boyfriend, Dontrell
Curry (hereinafter “Mr. Curry”), at the Apple Tree Gardens Apartments in Ranson, West Virginia,
in April, 2012. Shortly after petitioner and her girlfriend moved into Ms. Cooke’s apartment, Ms.
Cooke obtained a back child support check in the amount of approximately $6,000.00; petitioner
arranged for Ms. Cooke to have the check cashed in Frederick, Maryland. The check-cashing
service gave Ms. Cooke two pre-paid credit cards, three money orders, and cash. Shortly
thereafter, Ms. Cooke used “a lot” of the money and in fact gave petitioner $600 to “help her out to
get her back on her feet.”

        It appears undisputed that while residing at the Apple Tree Gardens Apartments petitioner
sold crack cocaine and that the complex was her “biggest moneymaker.”1 On April 24, 2012, Ms.
Cooke advised petitioner that the apartment was getting too “hot” and that they should go their

1
 Ms. Cooke testified, however, that petitioner refused to sell her drugs, rather, encouraging her to
get “clean.”

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separate ways. Petitioner returned her key to the apartment and Ms. Cooke maintained that they
parted on good terms.

       In the early morning hours of April 25, 2012, petitioner and two unknown, masked men
entered Ms. Cooke’s apartment; the gunmen held her and Mr. Curry at gunpoint while two of Ms.
Cooke’s children slept nearby. Ms. Cooke testified that she saw the “unmistakable” hair and
body shape of petitioner in the kitchen area of her apartment while being forced down the hallway
where the gunmen demanded the pre-paid credit cards and PIN numbers. Mr. Curry provided the
PIN numbers, but apparently moved to protect Ms. Cooke, whereupon he was shot twice by the
gunmen at close range and died as a result of his injuries. Ms. Cooke was shot in the arm, which
she was using to shield her face.

        Based upon the identification provided by Ms. Cooke, the police apprehended petitioner,
who gave a Mirandized statement denying that she participated in the crime. After extradition,
while represented by counsel, petitioner agreed to give another statement to police and identify the
gunmen in exchange for a surety bond. During this statement, petitioner admitted that she returned
to the apartment with the two gunmen, who had never been to West Virginia, “to get money” and
that she fled after the shooting, but met back up with the gunmen to travel back to Baltimore. She
admitted that while traveling back to Baltimore, she called the 1-866 numbers on the pre-paid
credit cards to check the balances. Petitioner gave no specific identities of the gunmen, giving
only vague descriptions and referencing one as “Midge.” Petitioner’s statement was corroborated
by cell phone records which tracked the movement of petitioner’s phone from Baltimore to
Ranson and back at or around the time of the murder, as well as confirmed the calls to the credit
card numbers.

        Petitioner was indicted on charges of felony murder, first degree robbery, first degree
burglary, and conspiracy to commit burglary and robbery. Petitioner moved to suppress use of
the two statements, arguing that she was essentially “duped” into providing them under the “false
promise” that the State would agree to a surety, instead of cash, bond. The State contended, and
the circuit court agreed, that petitioner had not provided the information agreed as a condition of
the surety bond and continued to deny modification of her bond, as well as the motion to suppress.
Also at pretrial, the State provided notice of intent to use evidence that petitioner was selling crack
cocaine from Ms. Cooke’s apartment, but argued that it was part of the res gestae of the crime and
therefore did not necessitate a hearing pursuant to West Virginia Rule of Evidence 404(b).

        At the close of the three-day trial, the jury returned a verdict of guilty of first degree felony
murder, first degree robbery, burglary, conspiracy to commit burglary and first degree robbery; the
same jury recommended no mercy to the circuit court. Petitioner moved for a judgment of
acquittal/new trial, which was denied, asserting the same errors she raises on appeal. The circuit
court sentenced petitioner to life in prison without mercy. This appeal followed.

                Generally,

                        [i]n reviewing challenges to findings and rulings made by a
                circuit court, we apply a two-pronged deferential standard of


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               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). Additional standards of review
as pertain to the specific assigned errors are incorporated below.

        Petitioner makes six assignments of error as follows: 1) the evidence was insufficient to
support a conviction; 2) the circuit court erred in admitting statements of petitioner; 3) the circuit
court erred by failing to hold a hearing pursuant to West Virginia Rule of Evidence 404(b); 4) the
evidence was insufficient to support a finding of “no mercy”; 5) the circuit court erred in refusing
to allow evidence of decedent’s alleged drug dealing; and 6) the circuit court improperly instructed
the jury. For the reasons set forth below, we conclude that there was no reversible error.

        Petitioner focuses most of her argument on her first assignment of error—insufficiency of
evidence. Petitioner contends that since Ms. Cooke gave her money from and access to the
pre-paid credit cards while she was living at the apartment, she had no incentive to orchestrate or
participate in a robbery. She argues heavily that since she “never pulled the trigger . . . did not
have a weapon of any kind . . . provided no instruction to the two masked men . . . [and] received
no proceeds from the offense,” she was “[a]t most . . . a witness to a crime with no duty to
interfere.”

               This Court has held that

                       [t]he function of an appellate court when reviewing the
               sufficiency of the evidence to support a criminal conviction is to
               examine the evidence admitted at trial to determine whether such
               evidence, if believed, is sufficient to convince a reasonable person
               of the defendant’s guilt beyond a reasonable doubt. Thus, the
               relevant inquiry is whether, after viewing the evidence in the light
               most favorable to the prosecution, any rational trier of fact could
               have found the essential elements of the crime proved beyond a
               reasonable doubt.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Obviously, petitioner’s
knowledge of Ms. Cooke’s possession of the pre-paid credit cards was the foundation upon which
this crime was orchestrated. There is no other connection between the two gunmen, who
petitioner said had never been to West Virginia, and Mr. Curry and Ms. Cooke other than
petitioner, who admitted she traveled from Baltimore with the gunmen and was present at the
scene. Petitioner admitted that after being ousted by Ms. Cooke, she returned to “get money” and
then called the 1-866 numbers on the pre-paid credit cards to check balances. It is fairly absurd to
characterize petitioner’s involvement in this matter as a mere “bystander.” Petitioner had a full
opportunity to argue the lack of motive to the jury, which, like the circuit court, plainly found it

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“implausible.” For these reasons, we find that the evidence presented was more than adequate to
support petitioner’s convictions.

        Petitioner next argues that her statements to law enforcement were “not voluntary and
coerced” and were therefore improperly admitted. Although petitioner mentions the initial
custodial statement wherein she denied participation in the crime,2 her focus appears to be the
second statement which was given in exchange for the State agreeing to convert her cash bond into
a surety bond. The agreement was memorialized in an Agreed Order which specifically stated

               The state will agree to a reduction in the Defendant’s bond amount
               from $100,000 cash only, to $100,000 Surety only, and in exchange
               the Defendant will waive his [sic] right to preliminary hearing.
               Further, the Defendant has agreed that she will be debrief [sic] by
               Ranson City Police; provide complete information about the
               incident, including the names of the other unknown males present in
               the home at the time of the incident, as well as the name of the actual
               shooter; and the Defendant will be supervised on bond by GPS
               monitoring.

(emphasis added). Petitioner argues that she was lured into providing this statement with the
promise of a surety bond, but then denied the benefit of her bargain because her statement was
deemed “unreliable” by the State. It is undisputed, however, that upon interview petitioner did
not provide an actual name of either of the two gunmen, providing only a street name of one of the
gunmen. Moreover, petitioner was represented by counsel while giving the interview. As a
result, the circuit court refused to modify her bond and permitted use of the statement at trial.

               This Court has held that

                      [w]hen reviewing a ruling on a motion to suppress, an
               appellate court should construe all facts in the light most favorable
               to the State, as it was the prevailing party below. Because of the
               highly fact-specific nature of a motion to suppress, particular
               deference is given to the findings of the circuit court because it had
               the opportunity to observe the witnesses and to hear testimony on
               the issues. Therefore, the circuit court's factual findings are
               reviewed for clear error.

Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). Moreover, “[w]hen evaluating the
voluntariness of a confession, a determination must be made as to whether the defendant
knowingly and intelligently waived his constitutional rights and whether the confession was the


2
  It is undisputed that petitioner was read her Miranda rights and signed a waiver of those rights
before this statement was given. See Miranda v. Arizona, 384 U.S. 436, (1966). Accordingly,
the circuit court found this statement voluntary and admissible.

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product of an essentially free and unconstrained choice by its maker.” Syl. Pt. 7, State v.
Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995).

        While this Court has recognized that “any inculpatory evidence obtained by way of
promises of leniency are not admissible against a defendant,” we decline to characterize the offer
of modification of a bond from cash to surety as a “promise[] of leniency.” State v. Hanson, 181
W.Va. 353, 359, 382 S.E.2d 547, 553 (1989) (quoting Myers v. Frazier, 173 W.Va. 658, 678 n.37,
319 S.E.2d 782, 803 n.37 (1984)). It is well-recognized that “[a] confession induced by a promise
of a collateral benefits, with no assurance of benefit to the accused with respect to the crime under
inquiry, generally will be deemed voluntary and admissible[.]” 23 C.J.S. Criminal Law § 1250.
See also U. S. v. Ferrara, 377 F.2d 16 (2nd Cir. 1967) (holding that statement was not involuntary
where agent told defendant if he cooperated, he was sure his bond would be reduced); State v.
Church, 315 S.E.2d 331, 333 (N. C. Ct. App. 1984) (recognizing that “‘any improper inducement
generating hope must promise relief from the criminal charge to which the confession relates, not
to any merely collateral advantage.’” (citations omitted)).

        The circuit court properly found that petitioner simply did not fulfill her end of the bargain
by refusing to provide the names of the gunmen; there was no “false promise” made by the State,
no offer of leniency, and therefore no coercion. In a similar vein, the circuit court further properly
rejected the petitioner’s argument that, since the State deemed the statement “unreliable,” it should
not be permitted to use it at trial. The State, however, did not contend that the statement was
unreliable, but rather, incomplete, as it did not include the names of the gunmen. Virtually all
aspects of the substance of petitioner’s statement were independently corroborated by witnesses
and cell phone records. We therefore find no error in admission of the statements.

      Petitioner next argues that evidence that she was a drug dealer was improperly admitted
under West Virginia Rule of Evidence 404(b) without a McGinnis3 hearing. The State argued,

3
    Syllabus Point 2 of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994) provides:

                         Where an offer of evidence is made under Rule 404(b) of the
                 West Virginia Rules of Evidence, the trial court, pursuant to Rule
                 104(a) of the West Virginia Rules of Evidence, is to determine its
                 admissibility. Before admitting the evidence, the trial court should
                 conduct an in camera hearing as stated in State v. Dolin, 176 W.Va.
                 688, 347 S.E.2d 208 (1986). After hearing the evidence and
                 arguments of counsel, the trial court must be satisfied by a
                 preponderance of the evidence that the acts or conduct occurred and
                 that the defendant committed the acts. If the trial court does not find
                 by a preponderance of the evidence that the acts or conduct was
                 committed or that the defendant was the actor, the evidence should
                 be excluded under Rule 404(b). If a sufficient showing has been
                 made, the trial court must then determine the relevancy of the
                 evidence under Rules 401 and 402 of the West Virginia Rules of
                 Evidence and conduct the balancing required under Rule 403 of the

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and the circuit court agreed, that petitioner’s status as a drug dealer was intrinsic evidence and
therefore not subject to a McGinnis hearing. This Court has recently reiterated that:

                 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.” See United States v. Williams,
                 900 F.2d 823, 825 (5th Cir. 1990): “‘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.” (Citations omitted). If the
                 proffer fits into 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.
                 See United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)
                 (stating evidence is admissible when it provides the context of the
                 crime, “is necessary to a ‘full presentation’ of the case, or is ...
                 appropriate in order ‘to complete the story of the crime on trial by
                 proving its immediate context or the “res gestae”’”). (Citations
                 omitted).

State v. Bowling, 232 W.Va. 529, 546-47, 753 S.E.2d 27, 44-45 (2013) (quoting State v. LaRock,
196 W.Va. 294, 312 n. 29, 470 S.E.2d 613, 631 n. 29 (1996)). Further, “[e]vents, declarations and
circumstances which are near in time, causally connected with, and illustrative of transactions
being investigated are generally considered res gestae and admissible at trial.” Syl. Pt. 3, State v.
Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa,
173 W.Va. 43, 311 S.E.2d 412 (1983).

        As the circuit court properly observed, petitioner’s status as a drug dealer was an integral
part of the State’s theory of the case, i.e. that having been kicked out of the apartment complex
which she claimed was her “biggest moneymaker,” she returned to rob Ms. Cooke of her pre-paid
credit cards. More importantly, however, petitioner herself admitted to dealing drugs and
advanced a defense which likewise made use of this fact, i.e. that she and Ms. Cooke were in a
mutually beneficial drug-dealing business venture and therefore petitioner had no motive to rob
her.4 We therefore find that petitioner’s drug dealing was part of the res gestae of the crime and

                 West Virginia Rules of Evidence. If the trial court is then satisfied
                 that the Rule 404(b) evidence is admissible, it should instruct the
                 jury on the limited purpose for which such evidence has been
                 admitted. A limiting instruction should be given at the time the
                 evidence is offered, and we recommend that it be repeated in the
                 trial court’s general charge to the jury at the conclusion of the
                 evidence.
4
    Petitioner’s counsel further made much of the fact that despite being a drug-dealer, petitioner

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therefore did not necessitate a hearing pursuant to West Virginia Rule of Evidence 404(b) and
McGinnis.

        Petitioner’s next assignment of error accuses the jury of being a “‘runaway jury’ bent on
ignoring the rules of evidence and the rule of Law to exact their own peculiar vision of Justice”
because it recommended no mercy. It is well-established that “under both statutory and case law,
the recommendation of mercy in a first degree murder case lies solely in the discretion of the jury.”
State v. Triplett, 187 W.Va. 760, 769, 421 S.E.2d 511, 520 (1992); see also State v. Miller, 178
W.Va. 618, 363 S.E.2d 504 (1987); W. Va. Code § 62-3-15 (1994).

        To whatever extent a “no mercy” recommendation may even be challenged on sufficiency
of the evidence, it is clear that the jury found that petitioner repaid Ms. Cooke for her loan of
money and a place to stay by returning in the dead of night with two armed gunmen to rob her
while two of her small children, whom petitioner had previously babysat, slept nearby. Both Mr.
Curry and Ms. Cooke were shot mere feet from where Ms. Cooke’s 9-year-old son was lying in
bed witnessing the entire occurrence.5 We therefore find no error in the jury’s recommendation
of no mercy.

        Petitioner next argues that the trial court erroneously precluded her from introducing
evidence that Mr. Curry, the murder victim, was a drug dealer. Petitioner asserts that if she were
permitted to introduce evidence of Mr. Curry’s drug dealing, that “it could have been adduced at
Trial that the reason for the shooting was . . . a killing between Dontrell Curry and out-of-towners
precipitated by drug dealing not on Carletta’s part.”

        This Court has held that “[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.” Syl. Pt. 4,
State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). The trial court here properly noted
that 1) there was no evidence presented to support petitioner’s claim that Mr. Curry was a drug
“dealer” as opposed to a drug “user”6; and 2) Mr. Curry’s status as a purported “drug dealer” was
irrelevant and prejudicial pursuant to West Virginia Rules of Evidence 401 and 403.7 Moreover,
petitioner proffered no evidence in support of his alleged theory that “out-of-towners” murdered
Mr. Curry as a result of his drug dealing. See State v. Anderson, 233 W.Va. 75, 754 S.E.2d 761
(2014) (upholding circuit court’s refusal to admit evidence that victim was a sex offender). We


would not sell drugs to Ms. Cooke, as ostensible evidence of their friendship and therefore, lack of
motive. See n.1, supra.
5
  Petitioner also had an extensive criminal history of felony convictions involving non-violent
offenses.
6
    Mr. Curry apparently had pending drug charges, but no convictions consistent with distribution.
7
 Petitioner does not argue that this evidence was admissible as a character trait of the victim for
purposes of establishing self-defense. See W.V.R.E. 404(a)(2).


                                                  7

therefore find no abuse of discretion in the circuit court’s refusal to permit petitioner to introduce
evidence of the victim’s alleged drug dealing.

        Finally, petitioner argues that the circuit court erred in using the term “co-conspirator” in
the felony murder instructions. Because petitioner was accused of being a principal in the second
degree, the instructions on the elements of felony murder made reference to her
“co-conspirator(s).” 8 Petitioner’s counsel preferred the use of the term “accomplices,” and
appears to argue that use of the term “co-conspirator” conflates the elements of felony murder with
the separate conspiracy charges.

       This Court has held that “the question of whether a jury was properly instructed is a
question of law, and the review is de novo.” Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489
S.E.2d 257 (1996). However,

                       [j]ury instructions are reviewed by determining whether the
               charge, reviewed as a whole, sufficiently instructed the jury so they
               understood the issues involved and were not mislead by the law. A
               jury instruction cannot be dissected on appeal; instead, the entire
               instruction is looked at when determining its accuracy. A trial court,
               therefore, has broad discretion in formulating its charge to the jury,
               so long as the charge accurately reflects the law. Deference is given
               to a trial court’s discretion concerning the specific wording of the
               instruction, and the precise extent and character of any specific
               instruction will be reviewed only for an abuse of discretion.

Syl. Pt. 4, in part, Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (emphasis added). The circuit court
correctly found that since petitioner was, in fact, charged with conspiracy, the use of the term
“co-conspirator” in the felony murder instructions was fair and in no way misleading.
Accordingly, we find no error in the circuit court’s instructions.




8
  The jury instructions are not included independently in the appendix record and the circuit
court’s reading of these particular instructions in the trial transcript is somewhat ineloquent and
confusing such as to foreclose a verbatim recreation of how the particular instruction was
structured. Regardless, petitioner takes issue only with the use of the term “co-conspirator”
therein.

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      For the foregoing reasons, the circuit court’s March 7, 2014, order is hereby affirmed.


                                                                                       Affirmed.


ISSUED: May 21, 2015

CONCURRED IN BY:

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




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