                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                              January 5, 2018
vs) No. 16-0740 (McDowell 15-F-124-S)                                         EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Donald Sidney Bailey,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Donald Sidney Bailey, by counsel David G. Thompson, appeals his conviction
of two counts of first degree murder, one count of arson in the third degree, and one count of
felony conspiracy. Respondent State of West Virginia, by counsel Gordon L. Mowen, II,
responds in support of the circuit court’s order.1

        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 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.

        In the early morning hours of October 19, 2014, a passerby came upon a pickup truck that
was ablaze on the side of the road. Fire fighters arrived at the scene within minutes. Soon
thereafter, law enforcement, crime scene investigators, and personnel from the State Fire
Marshal’s Office arrived to process the scene. There, they discovered the burned bodies of two
men in the truck who were later identified as Clinton Mullins (“Mullins”) and Brandon Church
(“Church”). The investigators took photos of the scene and the victims’ bodies, and found five
spent shell casings near the burned truck.

       That same day, the investigators interviewed workers at nearby stores who claimed they
saw a blue van in the area the day before. As the investigators stood along the roadway, a blue
van passed them traveling in the direction of the burned truck. The investigators waved the van
over. Inside the van were petitioner Donald Sidney Bailey; his wife, Sheila Bailey; and the
couple’s friend, April Justice. The police transported petitioner’s wife to the police station where
she waived her Miranda rights and gave a statement. Petitioner’s wife stated that throughout the
day and evening of October 18, 2014, six people (the “group”), including herself, her husband


       1
         Petitioner’s counsel filed an appendix record. The Court later granted petitioner’s
motion to supplement the appendix record. The Court also granted Respondent-State’s motion to
supplement the appendix record with fifty-two exhibits.
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(petitioner), her two teenage daughters, and her friends Troy and April Justice, had been drinking
alcohol at an area known as Orchard Branch.

        April Justice later testified to the events of October 18 and 19, 2014, as follows: On
October 18, 2014, the group gathered at a local park to visit and drink. As it was getting dark, the
group ran low on alcohol, so they rode in petitioner’s blue van to a local convenience store to
buy alcohol. Thereafter, they went to another convenience store to buy ice. At both stores, the
group ran into Mullins and Church (or “the victims”), who decided to join the group. Mullins and
Church, who were in Church’s truck, followed the group to Orchard Branch, where the party
resumed. The group, now including Mullins and Church, partied and drank together for a few
hours. Everyone was “pretty well drunk.” At some point, Troy Justice became angry and “red”
and ripped off his shirt. Soon thereafter, the party broke up. The group of six left together in the
blue van, followed by Mullins and Church in Church’s truck. It was raining and the windshield
wipers in the van were “messed up” so petitioner’s wife, who was driving the van, pulled over
and stopped on the side of the road. Mullins and Church, who were not far behind, pulled in
behind the parked van. Troy Justice and petitioner got out of the van and walked back to the
truck. She (April Justice) saw that petitioner was holding a gun behind his back. Mullins and
Church remained in their truck. She did not hear any argument, but did hear gunshots. Petitioner
and Troy Justice came back to the van and they drove to the Justices’ trailer. There, the group
discussed what to do next. Around 1:00 a.m. on the morning of October 19, 2014, the group
drove back to the truck with a gasoline can. Petitioner and Troy Justice “hollered” at Mullins and
Church, and asked if they were okay. There was no response. Petitioner and Troy Justice then
“walked over there. Gas was threw [sic], a lighter was lit. The truck was on fire.”

        On October 20, 2014, petitioner voluntarily went to the police department, waived his
Miranda rights, and gave various statements regarding the events of October 18 and 19, 2014.
Petitioner initially said Troy Justice shot the victims. However, in later recorded statements,
petitioner claimed the following: While the group, Mullins, and Church were drinking at Orchard
Branch, Troy Justice became angry when someone said something about his wife, April Justice.
Troy Justice ripped off his shirt. The party then broke up. The group left in the blue van: Mullins
and Church followed in Church’s truck. The truck’s lights were flashing at the van. Troy Justice
got out of the van first and went back toward the truck. Petitioner and his wife also got out of the
van. Mullins was yelling that he would “F--k whoever he wanted to f--k” apparently concerning
petitioner’s stepdaughters. Petitioner replied that Mullins could not “f--k his girls.” Mullins,
whose door was open, reached to get his gun. Troy Justice “hollered about a gun.” Petitioner said
he shot somewhere between Mullins’s knees and the truck’s floor to scare Mullins or to stop him
from getting his gun. Petitioner did not remember shooting Church, who was not involved in the
argument. Petitioner claimed he did not intend to kill anyone. Petitioner, his wife, and Troy
Justice got back in the van. The group went to the Justices’ trailer where Mr. Justice got a gas
can. The group left the van there and drove back to the victims’ truck in the Justices’ Suburban.
Troy Justice threw gasoline on the truck and then lit it on fire.

       On February 24, 2015, a McDowell County grand jury indicted petitioner, his wife, and
Troy Justice for the first degree murder of Mullins, the first degree murder of Church, third
degree arson, and conspiracy. The grand jury indicted petitioner’s wife and Troy Justice on the
same charges, plus one count of accessory after the fact of murder.

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       Petitioner’s five-day trial commenced on June 8, 2016. The State called thirty witnesses
including the following:

       A.S.2, one of petitioner’s minor stepdaughters, testified as follows: At Orchard Branch,
Mullins fired a gun up in the air. Sometime later, Troy Justice became angry and the group
decided to leave. The group drove away followed by Church and Mullins. The van pulled over
and Church and Mullins pulled in behind them. From the van, she saw petitioner, who had a gun,
walk over to the truck and started shooting at it. Afterwards, the group left, but they later
returned and set the truck on fire.

        Dr. Allen Mock, the State’s Chief Medical Examiner, testified by deposition that
Church’s death was caused by a gunshot wound to the chest, further complicated by thermal
burns; and that the manner of death was ruled a homicide. Dr. Jimmie Smith, the State’s First
Deputy Chief Medical Examiner, testified that Mullins had been shot twice in the chest, that the
trajectory of the shots indicated Mullins had been seated on the passenger side of the truck when
he was shot, Mullins died of gunshot wounds to the chest, and the manner of death was ruled a
homicide.

       During petitioner’s case-in-chief, his counsel called three witnesses: First, forensic
chemist Robert S. White opined as to petitioner’s and the victims’ states of intoxication.

       Second, forensic psychiatrist Pogos Voskanian, M.D. testified to a reasonable degree of
medical certainty that petitioner was suffering from various conditions, including a severe
alcohol use disorder, and that due to petitioner’s degree of intoxication on the night of the
shooting, he was incapable of acting with intent or premeditation and was suffering from
diminished capacity.

        Finally, petitioner testified in his own defense. Petitioner’s testimony mirrored his
recorded statement to the police. However, he added the following: He had been drinking beer
throughout the day and into the evening of October 18, 2014. He had known Mullins for years
and they were good friends. He had known Church from the day Church was born. At Orchard
Park, he was drinking beer, moonshine, and mixed drinks. At some point, Mullins got a gun out
of his truck and fired it once or twice into the air. When Troy Justice ripped off his shirt, “[i]t
went from being all friendly to going all bad.” At the scene of the shooting, Troy Justice got out
of the van first, petitioner’s wife got out next, and then petitioner exited the van. Troy Justice
walked to the passenger side of Church’s truck where Mullins was sitting. The passenger side
door was open and Troy Justice was standing near Mullins and arguing with him. Petitioner
heard Troy Justice say, “Gun.” He thought he saw a gun. He took his gun from his pocket and
fired into the truck. He always carried a loaded gun. He was not aiming for anyone’s heart. He



       2
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
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quickly left the area because he believed Mullins or Church would shoot him. Thereafter, Troy
Justice set the van on fire.

        On July 15, 2016, the jury, following twenty-nine minutes of deliberation, found
petitioner guilty of the first degree murder of Mullins, the first-degree murder of Church, third
degree arson, and felony conspiracy. The jury did not recommend mercy on the murder
convictions.

        On July 29, 2016, the circuit court denied petitioner’s motions for a new trial and a post-
verdict judgment of acquittal, and sentenced petitioner to two terms of life in prison without the
possibility of parole for the murders, not less than one nor more than three years in prison for
third degree arson, and not less than one nor more than five years in prison for felony conspiracy,
all sentences to be served consecutively. Petitioner now appeals.

               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).

       Petitioner raises four assignments of error on appeal. Petitioner first argues that the circuit
court erred in failing to declare a mistrial upon the prosecutor’s use of the word “murder” to
describe the manner of the victims’ deaths. A circuit court’s decision to grant or deny a motion
for a mistrial is reviewed under an abuse of discretion standard. State v. Thornton, 228 W.Va.
449, 459, 720 S.E.2d 572, 582 (2011).

         Pretrial, petitioner’s counsel filed various motions in limine, including a motion to
preclude the State from saying at trial that the victims had been “murdered.” The circuit court
instructed the prosecutor to use the word “homicide” at trial. At trial, State Police Sgt. Robert
Richards testified that he participated in the investigation of petitioner’s case. The State then
asked Sgt. Richards the following question on direct: “In October of 2014, specifically the 20th
of October, 2014, did you . . . assist the troopers here in an investigation that – of an alleged
murder?” Sgt. Richards replied, “Yes, sir.” Petitioner’s counsel objected and moved for an
immediate mistrial on the ground that the State had used the word “murder,” as opposed to the
word “homicide,” in violation of the circuit court’s pretrial order. The State responded, “I didn’t
use that term. I said “alleged.” The circuit court replied that the State said, “‘alleged murder.’
Well, at any rate, the motion for a mistrial is denied and overruled.”

        The circuit court did not abuse its discretion in denying petitioner’s motion of a mistrial
due to the State’s use of the term “alleged murder” at trial. The State’s question, which was
addressed to an officer who investigated petitioner’s alleged crimes, was foundational and went
to the type of investigation the officer was called to perform, i.e., an “alleged murder”
investigation. Clearly, in asking the question, the State was not intimating that petitioner

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“murdered” the victims. Thus, the use of the word “murder” did not violate the circuit court’s
pretrial order. Accordingly, we find no error.

        Petitioner’s second assignment of error is that the circuit court erred in allowing the State
to introduce into evidence at trial post-mortem photographs of the victims, which he claims were
repugnant and gruesome. Petitioner avers that the photographs may have so incensed the jury
that they disregarded petitioner’s evidence, including his self-defense evidence. Petitioner
highlights that Rule 403 of the West Virginia Rules of Evidence requires a trial court to “exclude
relevant evidence if its probative value is substantially outweighed by danger of . . . unfair
prejudice.”

        “The admissibility of photographs over a gruesome objection must be determined on a
case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence.”
Syl. Pt. 5, State v. Greenfield, 237 W.Va. 773, 791 S.E.2d 403 (2016) (quoting Syl. Pt. 8, State v.
Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)). Additionally,

               Rule 401 of the West Virginia Rules of Evidence requires the trial court to
       determine the relevancy of the exhibit on the basis of whether the photograph is
       probative as to a fact of consequence in the case. The trial court then must
       consider whether the probative value of the exhibit is substantially outweighed by
       the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As
       to the balancing under Rule 403, the trial court enjoys broad discretion. The Rule
       403 balancing test is essentially a matter of trial conduct, and the trial court's
       discretion will not be overturned absent a showing of clear abuse.” Syl. Pt. 10,
       State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

Syl. Pt. 6, Greenfield, 237 W.Va. at 776, 791 S.E.2d at 407.

        The lengthy record on appeal reveals that, prior to trial, the circuit court addressed each
of the sixty-five photographs advanced by the State on multiple occasions. At those hearings and
in accordance with Derr/Greenfield, the circuit court determined the relevancy of each
photograph by determining whether the image portrayed was probative to a fact of consequence
in the case. The circuit court then determined whether any of the relevant photographs found
were more probative than prejudicial. In so doing, the circuit court granted petitioner’s motion to
exclude thirteen of the sixty-five photos.

        On appeal, petitioner specifically mentions only two photographs entered into evidence at
trial. The first of those photographs shows the burned remains of Mullins and Church in the
truck; the other photograph shows Church’s burned leg inside a boot. The State maintains it used
these photographs at trial to support its theory that the victims were shot and then burned; to
show petitioner’s intent to kill the victims; to establish the cause of death; to assist the expert
who performed the autopsy in testifying; and to identify Church’s body. With regard to the
photograph of the boot on Church’s burned leg, the circuit court found it was both relevant to
Church’s identity and his position in the burned truck. The circuit court found that the image of
the burned bodies, which showed the bullet wounds in the victims’ chests, was relevant to
petitioner’s claim that he shot towards the floor of the truck and did not intend to kill the victims.

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The circuit court also found that each photograph was more probative than prejudicial, and not
substantially outweighed by the factors listed in Rule 403 of the West Virginia Rules of
Evidence, i.e., “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”

         Having reviewed the photographs, the transcripts of the relevant pretrial hearings and the
trial, the relevant orders, and the parties’ arguments, we find that the circuit court did not abuse
its broad discretion in admitting the photographs of which petitioner complains. We concur with
the trial court’s finding that the photographs were relevant in light of the State’s purpose for
presenting each. We also find that the photographs, although gruesome, are not more prejudicial
than probative on the issue raised by each. Therefore, absent a clear abuse of discretion, we
reject this assignment of error.

        Petitioner next argues that he is a victim of jury misconduct given that the jury
deliberated for less than thirty minutes, before finding him guilty. Petitioner avers that the jury
could not have fully considered petitioner’s defenses in that time period.

        A claim of juror misconduct implicates matters either intrinsic or extrinsic to the jury’s
deliberative process. E.g., State v. Scotchel, 168 W.Va. 545, 550, 285 S.E.2d 384, 388 (1981). A
petitioner may seek to impeach the jury’s verdict by establishing that the jury engaged in
extrinsic misconduct, but ordinarily may not seek to set aside the verdict by demonstrating that
the jury engaged in intrinsic misconduct. Id. at 545, 285 S.E.2d at 385-86, syl. pts 2 and 3. “[A]
challenge to a jury’s verdict that is based solely upon the length of the deliberations constitutes
an intrinsic challenge that we will not entertain.” State v. Jenner, 236 W.Va. 406, 417, 780
S.E.2d 762, 773 (2015). Moreover, “[t]he length of jury deliberations is necessarily
indeterminate []” and “could signify that the jury found overwhelming evidence of guilt not
justifying the possibility of parole.” Id. Accord State v. Mayle, No. 13–0437, 2014 WL 2782126,
at * 4 (W.Va. June 19, 2014) (memorandum decision) (recognizing that length of jury
deliberations constitutes intrinsic challenge to verdict and finding “no reason to deviate from this
longstanding law”). Consequently, because petitioner raises a claim of alleged intrinsic jury
misconduct, we find this assignment of error fails as a matter of law.

         In petitioner’s fourth and final assignment of error, he alleges cumulative error. There can
be no cumulative error without multiple errors. State v. Knuckles, 196 W.Va. 416, 425, 473
S.E.2d 131, 140 (1996). (“Cumulative error analysis should evaluate only the effect of matters
determined to be error, not the cumulative effect of non-errors.”). Because we have found no
error, the cumulative error doctrine does not apply. Thus, we reject this assignment of error.

       Accordingly, for the foregoing reasons, we affirm petitioner’s convictions.


                                                                                          Affirmed.

ISSUED: January 5, 2018




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CONCURRED IN BY:

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




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