                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                     November 21, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0277 (Jefferson County 12-F-101)                                      OF WEST VIRGINIA


Merle Stanley Johnson,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
       Petitioner Merle Stanley Johnson, by counsel Robert C. Stone Jr., appeals the February 6,
2014, order denying his post-trial motions following his convictions for the felony offense of
driving under the influence causing the death of another and the misdemeanor offenses of
negligent homicide, failure to maintain control of a vehicle, and failure to drive on the right side
of the roadway. Respondent the State of West Virginia, by counsel Brandon C.H. Sims and
Hassan S. Rasheed, filed a response to which petitioner submitted a reply.

        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.

        On January 22, 2012, petitioner was involved in a two vehicle accident in Jefferson
County shortly after 7:00 p.m. Apart from the drivers of the vehicles, there were no other
witnesses to the accident. According to Sergeant Sell of the Jefferson County Sheriff’s
Department, petitioner’s vehicle traveled across the eastbound lane and the left side of
petitioner’s vehicle left the roadway for over 150 feet. He then turned back onto the road,
colliding head on with Mr. James L. Fletcher’s vehicle. Both petitioner and the driver of the
other vehicle, Mr. Fletcher, were transported to Jefferson Memorial Hospital. However, Mr.
Fletcher died as a result of the accident. While at the hospital, petitioner advised the investigating
officer, Deputy Douglas H. Fletcher, that he had swerved to avoid a deer. Petitioner admitted to
the deputy that he had consumed a “couple of beers” at a business called the Tap House. Deputy
Fletcher obtained a search warrant for petitioner’s medical records at Jefferson Memorial
Hospital, which revealed a blood serum result for alcohol of .240%. A four-count indictment was
returned against petitioner, charging petitioner with feloniously driving under the influence
causing death (Count I), negligent homicide (Count II), failure to maintain control (Count III),
and failure to drive on the right side of the highway (Count IV).

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        Following a three-day jury trial, petitioner was found guilty on all counts. By order
entered January 31, 2014, petitioner was sentenced to a term of incarceration of not less than two
nor more than ten years for driving under the influence causing the death of another and
negligent homicide. He was also fined $200 for his convictions for failure to maintain control of
a vehicle and failure to drive on the right side of the roadway. Petitioner filed a motion for a new
trial or judgment of acquittal, which motion was denied by order entered February 6, 2014.
Petitioner appeals from that order.

               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). Based upon our review of the
record before this Court, we find that the circuit court did not abuse its discretion in denying
petitioner’s motion for a new trial or for judgment of acquittal.

        On appeal, petitioner asserts six assignments of error: (1) the circuit court erred by failing
to grant petitioner’s motion for judgment of acquittal as to Counts I and II of the indictment; (2)
the circuit court erred by ruling that the State could offer into evidence at trial of the blood
alcohol serum result attributed to petitioner; (3) the circuit court erred by failing to award
petitioner a new trial where the State failed to notify petitioner prior to the direct examination of
witness Laura Piercy, a lab employee, that Ms. Piercy had advised the State that she received
only one order for alcohol serum testing on January 22, 2012; (4) the circuit court erred by
failing to require the State to make an election as to Count I or Count II of the indictment by
permitting the jury to deliberate on both counts and by refusing to give negligent homicide and
reckless driving as lesser included offense instructions for Count I; (5) the circuit court erred by
granting the State’s motion in limine prohibiting petitioner from offering evidence at trial
regarding the decedent’s cell phone records; and (6) the circuit court erred by refusing to grant
petitioner’s motions to suppress his statement and medical records.

         Petitioner’s first assignment of error is that the circuit court erred by denying his motion
for judgment of acquittal as to Counts I and II of the indictment. At the close of the State’s case­
in-chief, petitioner moved for a judgment of acquittal for these counts, but the motion was denied
by the circuit court. Petitioner argues that the circuit court erred by concluding that the State had
made a prima facie case of reckless disregard for the safety of others. He contends that both the
State’s expert and his expert testified that petitioner’s vehicle appeared to be under control when
it left the roadway based on the tire track left in the snow, and neither expert testified that
petitioner was traveling at an unsafe speed. He also points to testimony that the area of the
accident may be a deer “choke point.”1 Petitioner asserts that the evidence at trial indicated that

       1
         A deer “choke point” is a natural or man-made feature that causes deer to consolidate in
one area, often at the edges of forests or clearings, leading to a natural funnel effect.

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petitioner’s vehicle was not exceeding the speed limit and was not being driven in an erratic or
reckless manner but that petitioner swerved to avoid a deer, causing him to run off the road for
approximately two and a half seconds before hitting Mr. Fletcher’s vehicle.

      “A motion for judgment of acquittal challenges the sufficiency of the evidence.” State v.
Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996) (citing Franklin D. Cleckley, 2
Handbook on West Virginia Criminal Procedure 292 (2d ed.1993)). In addition,

               “[a] criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011); Syl. Pt. 7, State v. White,
228 W.Va. 530, 722 S.E.2d 566 (2011). In this case, petitioner has failed to carry that burden.
The evidence admitted at trial established that petitioner’s blood alcohol content was above the
legal limit, petitioner consumed alcohol shortly before the accident, and petitioner swerved off
the left side of the road before reentering the roadway where he struck Mr. Fletcher’s car, leading
to his death. When the evidence is viewed in the light most favorable to the State, we find that
the circuit court did not err in denying petitioner’s motion for judgment of acquittal or the
subsequent motion for a new trial on this ground.

        Petitioner next argues that the circuit court erred by ruling that the State could offer into
evidence at trial a blood alcohol serum result attributed to petitioner. Petitioner filed a motion in
limine/motion to suppress the results of a blood serum test attributed to petitioner based on what
he claims was an insufficient chain of custody.2 He contends that the only documentation
provided by the State in advance of the trial regarding the serum blood analysis was a computer
printout indicating a blood alcohol serum result of .240%. Petitioner addresses the testimony of
several witnesses who essentially stated that paramedic Wendy Bowman drew petitioner’s blood,
an unknown person labeled vials with petitioner’s name, a doctor ordered that the samples be
tested, and vials labeled with petitioner’s name were tested to obtain the .240% result.
Petitioner’s expert, Richard McGarry, a forensic toxicologist, testified that he had concerns since
Ms. Bowman did not label the specimens when they were collected and that there was no
guarantee that the blood identified as petitioner’s actually came from petitioner.

       2
          According to the record, the blood sample tested by the lab was destroyed by the
hospital pursuant to their normal procedures.
                                              3

        “A trial court’s ruling on a motion in limine is reviewed on appeal for an abuse of
discretion.” Syl. Pt. 1, McKenzie v. Carroll Intern. Corp., 216 W.Va. 686, 610 S.E.2d 341
(2004). In State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995), this Court explained
the two-tier standard of review of a circuit court's ruling on a motion to suppress:

       [W]e first review a circuit court's findings of fact when ruling on a motion to
       suppress evidence under the clearly erroneous standard. Second, we review de
       novo questions of law and the circuit court's ultimate conclusion as to the
       constitutionality of the law enforcement action. Under the clearly erroneous
       standard, a circuit court's decision ordinarily will be affirmed unless it is
       unsupported by substantial evidence; based on an erroneous interpretation of
       applicable law; or, in light of the entire record, this Court is left with a firm and
       definite conviction that a mistake has been made. See State v. Stuart, 192 W.Va.
       428, 452 S.E.2d 886, 891 (1994). When we review the denial of a motion to
       suppress, we consider the evidence in the light most favorable to the prosecution.

(Footnotes omitted). In the instant matter, the circuit court held a hearing on petitioner’s motion,
including considering testimony from a number of witnesses. While the State was unable to
produce the nurse who received the blood vials from Ms. Bowman and labeled the same, the
circuit court determined that the blood samples tested in the lab were the blood samples taken
from petitioner by Ms. Bowman at the scene of the accident. As fully addressed below, Ms.
Piercy testified that the blood serum attributed to petitioner was the only one she tested for blood
alcohol serum during her shift on January 22, 2012. Based upon the record before this Court, we
cannot find that the circuit court abused its discretion or that it was clearly erroneous in finding
that the State could present evidence of this blood serum attributed to petitioner to the jury for
consideration. This conclusion is bolstered by the fact that petitioner had the opportunity to
question witnesses at trial regarding the chain of custody.

        In a related assignment of error, petitioner contends that the trial court erred by failing to
award petitioner a new trial where the State failed to notify petitioner prior to Ms. Piercy’s direct
examination that Ms. Piercy had advised the State that she received only one order for alcohol
serum testing on January 22, 2012. Petitioner served a subpoena duces tecum on the director of
the lab at Jefferson Memorial Hospital requesting all information regarding the testing performed
upon the blood specimen attributed to petitioner. As a result, he received a computer printout
related specifically to the testing performed on the blood serum attributed to petitioner. During a
break during trial, Laura Davis, counsel for Mr. Fletcher’s family in the civil litigation related to
this accident, inquired of Ms. Piercy and her supervisor about other blood alcohol serum testing
performed during Ms. Piercy’s shift on January 22, 2012. The lab records were reviewed, and
Ms. Davis was informed that only petitioner’s blood was tested by Ms. Piercy that evening for
blood alcohol serum. Ms. Davis relayed that information to the State, and at the close of Ms.
Piercy’s direct examination, the State asked her the same question. Petitioner argues that he was
entitled to this information prior to Ms. Piercy’s testimony and that the State’s failure to disclose
the same constituted a violation of Rule 16 of the West Virginia Rules of Criminal Procedure.
However, petitioner admits that his counsel did not object or move for a mistrial at any point
prior to the jury’s verdict. In addition, he does not explicitly argue on appeal that the circuit

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court’s decision to allow the testimony was plain error, instead focusing on the State’s alleged
failure to disclose this information. Therefore, this Court will focus on the alleged discovery
violation.

       Rule 16(a)(1)(D) of the West Virginia Rules of Criminal Procedure provides that

       [u]pon request of the defendant the state shall permit the defendant to inspect and
       copy or photograph any results or reports of physical or mental examinations, and
       of scientific tests or experiments, or copies thereof, which are within the
       possession, custody or control of the state, the existence of which is known, or by
       the exercise of due diligence may become known, to the attorney for the state, and
       which are material to the preparation of the defense or are intended for use by the
       state as evidence in chief at the trial.

(Emphasis added). According to the record before this Court, it does not appear that any records
were within the State’s possession to support Ms. Piercy’s testimony at issue, and no such
records were entered into evidence during trial. With regard to another portion of that rule, Rule
16(a)(1)(F), it appears that the State did not violate that rule, as petitioner was aware of Ms.
Piercy’s identity. Instead, the record shows that the State became aware of the information
related to other testing performed at the hospital very shortly before Ms. Piercy testified.
Petitioner had the opportunity to speak with Ms. Piercy or others from the lab prior to trial as
part of the investigation. However, it appears that petitioner failed to exercise that option.
Therefore, we find that the circuit court did not abuse its discretion in denying petitioner’s
motion for new trial on this ground.

        Petitioner’s fourth assignment of error is that the trial court erred by failing to require the
State to make an election as to Count I or Count II of the indictment by permitting the jury to
deliberate on both counts and by refusing to give instructions for negligent homicide and reckless
driving as lesser included offenses for Count I. Petitioner argues that it is clear he could not have
committed the essential elements of DUI causing death (Count I) without first committing the
essential elements of negligent homicide (Count II) and reckless driving.3 Therefore, he claims


       3
         Petitioner’s argument before the circuit court focused on negligent homicide as a lesser
included offense of DUI causing death. However, petitioner did submit a jury instruction that
included reckless driving as a lesser included offense of DUI causing death. However, petitioner
was not charged with reckless driving, and reckless driving includes a finding that a person acted
in willful or wanton disregard for the safety of persons or property; this element is not included
in the elements of DUI causing death. “This Court has always applied the strict elements test as
set forth in syllabus point one of Louk to determine whether a lesser included instruction is
warranted. See State v. Noll, 223 W.Va. 6, 672 S.E.2d 142 (2008)[.]” State v. Wilkerson, 230
W.Va. 366, 370-71, 738 S.E.2d 32, 36-37 (2013) (citing State v. Louk, 169 W.Va. 24, 285 S.E.2d
432 (1981) overruled on other grounds by State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244
(1994)). “‘An offense is not a lesser included offense if it requires the inclusion of an element not
required in the greater offense.’ Syl. Pt. 1, [Louk at 24, 285 S.E.2d at 433] . . . .” Syl. Pt. 4, in
part, Wilkerson, 230 W.Va. at 367, 738 S.E.2d at 33. Therefore, we find that the circuit court did
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that it was error for the circuit court not to require the State to make an election as to Counts I
and II, to deny petitioner’s request for lesser included offense instructions for negligent homicide
and reckless driving on Count I, and to permit the jury to deliberate on both DUI causing death
and negligent homicide.

         “‘[T]he granting of a motion to force the State to elect rests within the discretion of the
trial court, and such decision will not be reversed unless there is a clear abuse of discretion.’ Syl.
pt. 3, State v. Walker, 188 W.Va. 661, 425 S.E.2d 616 (1992).” State v. Hughes, 225 W.Va. 218,
225-26, 691 S.E.2d 813, 820-21 (2010). While a defendant has the right to ask for an election,
the circuit court need not order the election unless the defendant can make a strong,
particularized showing of how he will be prejudiced if the prosecutor does not elect. Walker 188
W.Va. at 666, 425 S.E.2d at 621.

               “The question of whether a defendant is entitled to an instruction on a
       lesser included offense involves a two-part inquiry. The first inquiry is a legal one
       having to do with whether the lesser offense is by virtue of its legal elements or
       definition included in the greater offense. The second inquiry is a factual one
       which involves a determination by the trial court of whether there is evidence
       which would tend to prove such lesser included offense. State v. Neider, 170
       W.Va. 662, 295 S.E.2d 902 (1982).” Syl. Pt. 1, State v. Jones, 174 W.Va. 700,
       329 S.E.2d 65 (1985).

Syl. Pt. 3, Wilkerson, 230 W.Va. at 367, 738 S.E.2d at 33. Following argument on this issue, the
circuit court acknowledged it believed that negligent homicide would be a lesser included
offense of DUI causing death but went on to state that it thought

       it would be so messy to explain how that would work in a single instruction or
       even in a single verdict form that, frankly, [the circuit court] believe[d] that . . . in
       the event that the jury were to find guilt on the greater of Count 1 and guilt on
       Count 2, then the [c]ourt would be obligated to recognize that Count 2 would be a
       lesser included offense because it would contain all but missing one additional
       element that the conviction would then be only for the greater and the lesser
       included offense would simply not be able to stand. So any penalty phase would
       proceed on the felony.

Therefore, while the circuit court allowed the jury to consider both charges separately, it imposed
sentence based on petitioner’s conviction for DUI causing death, essentially ignoring the finding
of guilt for negligent homicide for sentencing purposes. Therefore, to the extent the circuit court
may have erred in allowing the jury to consider Counts I and II separately, the same is harmless
error. See Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

      Petitioner’s fifth assignment of error is that the circuit court erred by granting the State’s
motion in limine prohibiting petitioner from offering evidence at trial regarding Mr. Fletcher’s

not err in refusing to instruct the jury as to the elements of reckless driving as a lesser included
offense of DUI causing death.
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cell phone records. Petitioner subpoenaed Mr. Fletcher’s cell phone records, and the documents
provided include both calling and data information. Petitioner argues that the records were both
relevant and material to petitioner’s defense because the records indicate that Mr. Fletcher was in
the process of sending and receiving a volume of data around the time of the accident. As set
forth above, we review the circuit court’s ruling granting the State’s motion in limine for an
abuse of discretion. Syl. Pt. 1, McKenzie, 216 W.Va. at 687, 610 S.E.2d at 342. Based upon our
review of the record before this Court, we find that the circuit court did not abuse its discretion in
granting the State’s motion in limine relative to Mr. Fletcher’s cell phone records. The circuit
court found that the cell phone records were not relevant, so they were not admissible. Rule 401
of the West Virginia Rules of Evidence states that evidence is relevant if it has a tendency to
make a fact more or less probable than it would be without the evidence and the fact is of
consequence in determining the action. In this case, there was no evidence or suggestion that Mr.
Fletcher left his proper lane of travel. Instead, it was uncontradicted that petitioner left the
roadway on the left side, swerved back onto the roadway, and hit Mr. Fletcher’s vehicle in Mr.
Fletcher’s lane of travel. Thus, whether Mr. Fletcher was using his cell phone for calls or to send
and receive data does not make any element of the charged offenses more or less probable than it
would be without the evidence.

         Petitioner’s sixth and final assignment of error is that the circuit court erred by refusing to
grant petitioner’s motions to suppress his statement and medical records. He contends that
Deputy Fletcher testified that when he spoke with petitioner at Jefferson Memorial Hospital,
petitioner was getting ready to be transported to another hospital. Petitioner told the deputy that
he swerved to miss a deer and that he had consumed a few beers at the Tap House earlier that
day. Deputy Fletcher also testified that petitioner was on the gurney, appeared to be coherent,
and did not have any difficulty understanding him or responding to his questions. He further
testified that when he got close to petitioner, he detected the odor of alcohol. However, he did
not attempt to administer any field sobriety tests. Petitioner is critical of the fact that the deputy
did not record the statement, was unsure whether he took notes, and did not advise petitioner of
his rights. It is well-settled in West Virginia that “[t]he State must prove, at least by a
preponderance of the evidence, that confessions or statements of an accused which amount to
admissions of part or all of an offense were voluntary before such may be admitted into the
evidence of a criminal case.” State v. Blackburn, 233 W.Va. 362, __, 758 S.E.2d 566, 572 (2014)
(quoting State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975)). However, as we previously set
forth, “[i]t is clear that the Miranda safeguards were never intended to apply to the typical ‘on­
the-scene’ investigation. . . . Thus, the determination of whether a person was subjected to
custodial interrogation for purposes of Miranda requires a consideration of the totality of the
circumstances.” Damron v. Haines, 223 W.Va. 135, 141, 672 S.E.2d 271, 277 (2008) (citing
Miranda v. Arizona, 384 U.S. 436 (1966)).

               The factors to be considered by the trial court in making a determination
       of whether a custodial interrogation environment exists, while not all-inclusive,
       include: the location and length of questioning; the nature of the questioning as it
       relates to the suspected offense; the number of police officers present; the use or
       absence of force or physical restraint by the police officers; the suspect's verbal


                                                   7

       and nonverbal responses to the police officers; and the length of time between the
       questioning and formal arrest.

Syl. Pt. 2, State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006) (overruled on other grounds
in State v. Eibola, 226 W.Va. 698, 704 S.E.2d 698 (2010)). It appears from the record that
petitioner was questioned for a short period of time at the hospital, Deputy Fletcher was the only
officer present during the brief questioning, the officer did not exercise physical force or
restraint, and petitioner was not arrested for a substantial amount of time after speaking with
Deputy Fletcher. Based upon these factors, we find that the circuit court was not clearly
erroneous when it denied petitioner’s motion to suppress petitioner’s statement to Deputy
Fletcher.

        Petitioner also contends that the search warrant affidavit for petitioner’s medical records
did not set forth sufficient probable cause upon which the magistrate could have issued a search
warrant. He points to one paragraph in that affidavit and asserts that it does not contain any
reference to the deputy’s belief that petitioner may have been under the influence of an alcoholic
beverage. He, therefore, contends that there was no probable cause in the affidavit to justify the
issuance of the warrant. Petitioner’s limited view of the affidavit ignores the remainder of that
document, which evidences the fact that Deputy Fletcher believed, based on his experience
dealing with offenses of driving under the influence, there was evidence consistent with driving
under the influence causing death on the part of petitioner. Thus, we again find that the circuit
court did not abuse its discretion in denying petitioner’s motion to suppress his medical records
on this ground.

       For the foregoing reasons, we affirm.
                                                                                        Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

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




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