                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                  October 17, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-1049 (Mercer County 12-F-105)                                       OF WEST VIRGINIA


Jessica Persianni Roberts,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Jessica Persianni Roberts, by counsel David B. Kelley, appeals the July 29,
2013, order of the Circuit Court of Mercer County denying petitioner’s motion to set aside the
jury verdict and for a new trial following her convictions of first degree robbery and conspiracy.
The circuit court sentenced petitioner to a determinate term of thirty years in prison for first
degree robbery and an indeterminate term of one to five years in prison for conspiracy, to run
consecutively. Respondent State of West Virginia, by counsel Derek A. Knopp, filed a response.

        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.

                                              Facts

        On or about August 22, 2011, at approximately 11:30 p.m., petitioner’s husband, David
Roberts, entered a convenience store, known as the Pop Shop, in Bramwell, Mercer County.
Petitioner was parked about fifty yards away in a Lincoln Navigator. In the store at the time were
Candace Flanigan, the store clerk, and Andrew Bailey, her boyfriend. Petitioner’s husband
entered the store armed with a shotgun wearing a hoodie pulled around his face. He demanded
that Ms. Flanigan give him the money from the cash register. Petitioner’s husband took the
money from the register, and as he went to leave the store, Mr. Bailey drew a concealed handgun
and shot him multiple times. Petitioner’s husband fell to the ground in front of the store and
dropped the money.

       Shortly after the shots were fired, petitioner drove the Lincoln Navigator to the front of
the Pop Shop, and asked if she could take her husband to the hospital.1 Ms. Flanigan and Mr.

       1
         Flanigan testified that petitioner was a frequent customer of the Pop Shop, so she
recognized petitioner and the Lincoln Navigator.
                                                1

Bailey did not allow petitioner to remove her husband. Petitioner then began picking up some of
the money that her husband had dropped and left the scene.2 Petitioner’s husband died as a result
of his injuries. When Ms. Flanigan made the final count of the money after the robbery,
approximately $700 was missing.

        Petitioner was located the next morning at a friend’s house in McDowell County by
Deputy J.D. Gills of the Mercer County Sheriff’s Department. Deputy Gills transported
petitioner to the Welch detachment of the West Virginia State Police, where she received her
Miranda rights and gave an audio-recorded statement to Sergeant Christopher Smith.3

        Petitioner was indicted in February of 2012, and charged with first degree robbery,
conspiracy, and first degree murder.4 The circuit court held suppression hearings on March 21,
2013, and April 30, 2013, and suppressed petitioner’s statements to Deputy Gills, but ruled that
her statement to Sergeant Smith was admissible. Following a two-day jury trial, petitioner was
convicted of first degree robbery and conspiracy. Petitioner moved to set aside the verdict and
for a new trial, which the circuit court took under advisement at the time.

        Following a hearing, by order entered July 23, 2013, the circuit court denied petitioner’s
post-trial motions, ruling, in relevant part, that (1) there was sufficient evidence that petitioner’s
statement was voluntary; and (2) there was no evidence to justify a duress instruction regarding
petitioner’s mental state. The circuit court sentenced petitioner to a determinate term of thirty
years in prison for first degree robbery and an indeterminate term of one to five years in prison
for conspiracy, to run consecutively. This appeal followed.

                                             Discussion

       Petitioner raises seven assignments of error on appeal. First, she argues that the circuit
court erred by refusing to instruct the jury on duress. “As a general rule, 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). Forensic psychologist, Dr. Timothy Saar,
evaluated petitioner on behalf of the defense to assess her competency to stand trial. Through Dr.



       2
         The State introduced video surveillance of the area that showed petitioner pull up in the
Lincoln Navigator after the shots were fired and pick up money that was lying on the ground by
her husband’s body. Additionally, the shotgun used by petitioner’s husband belonged to
petitioner’s father.
       3
         In the statement given to Sergeant Smith, petitioner denied involvement in the robbery,
claiming that she arrived at the Pop Shop only after her husband had been shot. However,
petitioner reported to Dr. Timothy Saar, forensic psychologist and her expert witness at trial, that
she honked the horn in her vehicle to distract her husband or to make him return while he was in
the Pop Shop.
       4
           The murder charge was later dropped.


                                                  2

Saar, petitioner presented evidence that she endured severe domestic violence during her eleven-
year marriage. Based on what petitioner reported to him, Dr. Saar testified that while petitioner
waited in the car near the Pop Shop, she honked the car horn for her husband to return. At one
point, he came back angry and threatened her, and this is when eleven years of abuse came into
play, causing petitioner to go into “survival mode.” Based on this testimony, petitioner requested
a duress instruction. In Syllabus Point 1 of State v. Tanner, 171 W.Va. 529, 301 S.E.2d 160
(1982), this Court held as follows:

              In general, an act that would otherwise be a crime may be excused if it
       was done under compulsion or duress, because there is then no criminal intent.
       The compulsion or coercion that will excuse an otherwise criminal act must be
       present, imminent, and impending, and such as would induce a well-grounded
       apprehension of death or serious bodily harm if the criminal act is not done; it
       must be continuous; and there must be no reasonable opportunity to escape the
       compulsion without committing the crime. A threat of future injury is not enough.

        In the present case, the circuit court permitted extensive testimony regarding battered
woman’s syndrome, but refused to give a duress instruction. “This Court has long held that
‘[w]here [in a trial by jury] there is competent evidence tending to support a pertinent theory in
the case, it is the duty of the trial court to give an instruction presenting such theory when
requested to do so.’” State v. Headley, 210 W.Va. 524, 529, 558 S.E.2d 324, 329 (2001) (quoting
Syl. Pt. 7, State v. Alie, 82 W.Va. 601, 96 S.E. 1011 (1918)). However, “[i]nstructions must be
based upon the evidence and an instruction which is not supported by evidence should not be
given.” Syl. Pt. 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

        Petitioner’s argument “ignores that it is the compulsion, not the apprehension or fear,
which must be present, imminent, impending, and continuous in order to negate criminal intent.”
State v. Poling, 207 W.Va. 299, 305, 531 S.E.2d 678, 684 (2000). The evidence fails to support
her argument that her husband coerced her into becoming involved in the robbery. The only
evidence petitioner presented in this respect was the testimony of Dr. Saar based on his
evaluation of petitioner. Dr. Saar focused only on petitioner’s state of mind after she was sitting
in the car at the Pop Shop and honked the horn to distract her husband to get him to come back.5
This evidence is uncorroborated and is contradicted by petitioner’s statement to law
enforcement, wherein she stated that someone else drove her husband to the Pop Shop and by the
time she got there, her husband was lying on the ground having already been shot.

       Also, even though the circuit court did not give a duress instruction, it instructed the jury
on battered woman’s syndrome, allowing the jury to consider petitioner’s past abuse in
determining whether criminal intent existed. The circuit court also instructed the jury regarding
diminished capacity, allowing the jury to consider whether petitioner suffered from any mental
disease or defect that rendered her incapable of forming criminal intent. Petitioner has failed to
show how the lack of a duress instruction impaired her ability to give an effective defense as the



       5
         Petitioner did not testify. Mr. Bailey and Ms. Flanigan both testified that they did not
hear a car horn.
                                                 3

other instructions allowed the jury to consider her lack of criminal intent. Therefore, we find no
error in the circuit court’s refusal to give a duress instruction.

        Second, petitioner argues that the circuit court erred in refusing to suppress her statement
to Sergeant Smith. While petitioner admits to signing the paperwork necessary for Sergeant
Smith to do the interview, she contends that she was tired, confused, and asked to go home. Also,
she states that, despite being told she was free to leave, she did not believe that she could, and
offers the following excerpt from the taped interview as support for that belief: “And when I’ve
asked if I could leave before they told me I was being detained. To sit back down in the chair.
So, no, I haven’t been able to leave when I asked to.” Further, petitioner argues that she
questioned Sergeant Smith about getting a lawyer, but he continued with taking her statement.
Lastly, she argues that the statement should have been suppressed because she was in shock over
the death of her husband and under the influence of drugs.

       Upon our review, we disagree with petitioner. We have 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). “[L]egal conclusions made with
regard to suppression determinations are reviewed de novo.” Syl. Pt. 3, in part, State v. Stuart,
192 W.Va. 428, 452 S.E.2d 886 (1994).

        The recorded statement indicates that petitioner understood the rights she waived by
signing the Miranda form. Additionally, petitioner was informed that she could stop the
interview at any time as it was explained on the form. Sergeant Smith repeatedly told petitioner
that she did not have to talk to him at all. Construing the facts in the light most favorable to the
State, the circuit court did not err in denying petitioner’s motion to suppress.

        Petitioner’s third assignment of error is that the circuit court erred by allowing the
admission of information related to her prior arrests, which was included in her statement to
Sergeant Smith, despite an agreement that such information would not be included in the
testimony. During the statement, Sergeant Smith asked petitioner about her prior arrests in the
context of whether she understood her Miranda rights. He asked her if she had ever had those
rights read to her and petitioner said “when I was arrested, yes.” She then went on to say she had
had Miranda rights read to her twice, meaning she had been arrested twice previously. The
circuit court had previously ruled that evidence of petitioner’s prior arrests was inadmissible. At
a bench conference at the beginning of the playing of the recorded statement for the jury, the
State indicated that the references to prior arrests had been removed from the tape. However, the
references to petitioner’s prior arrests in the context of whether she understood her Miranda
rights were not removed and the jury heard them. Petitioner contends that these references
constituted improper admission of 404(b) evidence.

                                                 4

         We do not believe the inclusion of these vague references to prior arrests warrants a new
trial. First, without objection from petitioner, Deputy Gills testified that he had found arrest
records for both petitioner and her husband. Also, petitioner herself elicited testimony from her
expert regarding her drug use in support of her voluntary intoxication defense. Therefore, we do
not believe that the brief mention of her prior arrests in the context of Miranda warnings
prejudiced petitioner.

       In any event, if there was error, it was harmless. We have held as follows:

               Where improper evidence of a nonconstitutional nature is introduced by
       the State in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State's case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial
       minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining
       evidence is found to be insufficient, the error is not harmless; (3) if the remaining
       evidence is sufficient to support the conviction, an analysis must then be made to
       determine whether the error had any prejudicial effect on the jury.

Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). There were two eyewitnesses
and video surveillance showing petitioner driving up to the store and picking up money her
husband had dropped. Therefore, if one removes the evidence of petitioner’s prior arrests, there
was still sufficient evidence to sustain the convictions.

        Fourth, petitioner argues that the circuit court erred by allowing testimony about the
contents of her purse upon her arrest. Deputy Gills testified that petitioner’s purse was full of
needles. In addition, he testified that pictures of the inside of the store showed a display of
insect-repellant bracelets that had been knocked over. Deputy Gills testified that the same type of
bracelet was found in petitioner’s purse. However, petitioner argues that there was no evidence
that she was in the store on the day of the robbery; rather, there was evidence that she was a
frequent customer there, which explains the insect-repellant bracelet in her purse.

         Petitioner concedes that she did not object to the testimony about the content of her purse
at trial; therefore, she urges this Court to find that the admission of such evidence to be “plain
error.” In Syllabus Points 7 and 9 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we
held as follows:

               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.

               Assuming that an error is “plain,” the inquiry must proceed to its last step
       and a determination made as to whether it affects the substantial rights of the
       defendant. To affect substantial rights means the error was prejudicial. It must
       have affected the outcome of the proceedings in the circuit court, and the
       defendant rather than the prosecutor bears the burden of persuasion with respect
       to prejudice.

                                                  5

        Upon our review, we find no error in the admission of the contents of petitioner’s purse
as evidence. First, petitioner introduced evidence of her own drug use as part of her voluntary
intoxication defense, so it certainly was not plain error for the circuit court to allow testimony
that her purse was full of needles. Second, with respect to the insect-repellant bracelet, petitioner
was able to cross-examine Deputy Gills as to the possibility that the bracelet was purchased at
another time. In fact, petitioner introduced testimony from another witness, Tiffany Pannell, that
petitioner could have bought the bracelet at a different time and from a different store because
petitioner had given Pannell’s children the same type of bracelet. Petitioner fails to show how the
admission of this evidence was error, much less how it affected the outcome of the trial.

        Fifth, petitioner argues that the circuit court failed to question the jury venire for possible
bias or impartiality with respect to witness Andrew Bailey. During voir dire, the State pointed
out to the circuit court that there were no questions posed to the panel about a potential
relationship with Bailey, despite the fact that he was on the State’s witness list. There was no
objection from the defense. West Virginia Code § 56-6-16 provides as follows:

       No irregularity in any writ of venire facias, or in the drawing, summoning, or
       impaneling of jurors, shall be sufficient to set aside a verdict, unless objection
       specifically pointing out such irregularity was made before the swearing of the
       jury, or unless the party making the objection was injured by the irregularity.

       After the State brought the issue to the circuit court’s attention, there were no additional
questions from the court or either party.

       [W]e have recognized that “where there is a recognized statutory or common law
       basis for disqualification of a juror, a party must during voir dire avail himself of
       the opportunity to ask such disqualifying questions. Otherwise the party may be
       deemed not to have exercised reasonable diligence to ascertain the
       disqualification.” State v. Bongalis, 180 W.Va. at 591, 378 S.E.2d at 456.

               Further, under the ordinary diligence standard, it is not enough to show
       that the circuit court failed to ask the questions which likely would have revealed
       the disqualification. A party must ensure that the trial court examines the jury
       panel concerning a possible disqualification, or the party itself must ask the
       relevant questions.

Proudfoot v. Dan’s Marine Serv., Inc., 210 W.Va. 498, 504, 558 S.E.2d 298, 304 (2001).

       At trial, petitioner failed to question any of the potential jurors about possible bias
regarding Andrew Bailey. Moreover, on appeal, she fails to explain how such questioning would
have led to the disqualification of any of the jurors. Therefore, petitioner’s fifth assignment of
error must be rejected.

       Sixth, petitioner contends that she is entitled to a new trial as a result of the cumulative
error by the circuit court. “Where the record of a criminal trial shows that the cumulative effect
of numerous errors committed during the trial prevented the defendant from receiving a fair trial,

                                                  6

his conviction should be set aside, even though any one of such errors standing alone would be
harmless error.” Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). Because we
have found no error by the circuit court with respect to petitioner’s preceding five assignments of
error, we must reject her claim of cumulative error.

        Petitioner’s final assignment of error is that the circuit court imposed a disproportionate
sentence for her offenses. Petitioner does not dispute that she was at the scene of the crime, but
asserts that she was not a participant in the commission of the crime and did not deserve a thirty-
year prison sentence. As support, she points to Dr. Saar’s testimony that she was in “survival
mode” and did not have the capacity to appreciate the wrongfulness of her actions or to enter an
agreement with her husband to rob the store. She argues that her husband was the “prime mover”
in the crime, see State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), and that her actions in
no way contributed to the furtherance of the robbery.

       We do not agree that the circuit court imposed a disproportionate sentence. We have held
that

       [u]nder W.Va. Code, 61-2-12 [1961], a person convicted of aggravated robbery
       “shall be confined in the penitentiary not less than ten years.” This particular
       statute thus imposes a minimum, but not an expressly stated maximum, sentence
       of confinement for conviction of this offense. This Court and the federal courts
       have, though, held or recognized that the legislature, by not expressly fixing a
       maximum term, has impliedly authorized life imprisonment as the maximum
       penalty for aggravated robbery for the purpose of sentencing. State v. Turley, 177
       W.Va. 69, 71, 350 S.E.2d 696, 699 (1986), and the cases cited therein. An
       indeterminate sentence for aggravated robbery is invalid. State ex rel. Faircloth v.
       Catlett, 165 W.Va. 179, 180, 267 S.E.2d 736, 737 (1980), and the cases cited at
       note 1. On the other hand, beyond the statutory minimum of ten years, the
       legislature has chosen not to deprive trial courts of discretion to determine the
       appropriate determinate term for life or for a specific number of years as the
       sentence for aggravated robbery. State ex rel. Faircloth v. Catlett, 165 W.Va. 179,
       181, 267 S.E.2d 736, 737 (1980). Accord, State v. Cooper, 172 W.Va. 266, 270,
       304 S.E.2d 851, 854-55 (1983).

State v. Glover, 177 W.Va. 650, 658, 355 S.E.2d 631, 639 (1987). The test to determine if a
sentence is unconstitutionally disproportionate is two-pronged: “The first is subjective and asks
whether the sentence for the particular crime shocks the conscience of the court and society. If a
sentence is so offensive that it cannot pass a societal and judicial sense of justice, the inquiry
need not proceed further.” Cooper, 172 W.Va. at 272, 304 S.E.2d at 857. Second,

       [w]hen it cannot be said that a sentence shocks the conscience, a
       disproportionality challenge is guided by the objective test we spelled out in
       Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205
       (1981):




                                                7

               In determining whether a given sentence violates the
               proportionality principle found in Article III, Section 5 of the West
               Virginia Constitution, consideration is given to the nature of the
               offense, the legislative purpose behind the punishment, a
               comparison of the punishment with what would be inflicted in
               other jurisdictions, and a comparison with other offenses within the
               same jurisdiction.

Id. In the present case, the evidence demonstrated that petitioner drove her armed husband to the
Pop Shop, where he entered the store with a shotgun and demanded money. When he was shot in
the process, petitioner drove to the front of the store, took money that he had dropped, and left.
Accordingly, we cannot find that the sentence shocks the conscience.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 17, 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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