                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                    May 26, 2020
vs.) No. 19-0501 (Jefferson County CC-19-2019-F-27)                               EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Mark W. Carter Jr.,
Defendant Below, Petitioner


                               MEMORANDUM DECISION


       Petitioner Mark W. Carter Jr., by counsel Sherman L. Lambert Sr., appeals the Circuit
Court of Jefferson County’s May 24, 2019, sentencing order following his convictions for felony
murder, conspiracy, and leaving the scene of an accident involving death. Respondent State of
West Virginia, by counsel Holly M. Flanigan, 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.

        Petitioner and Shannon Mills stole drugs from Christina Crawford at Ms. Crawford’s home
on August 15, 2018. Petitioner got into the driver’s seat of Benjamin DeVoe’s truck, Ms. Mills
entered the passenger side, and Mr. DeVoe was in the truck’s bed. Seeking to prevent their
getaway, Ms. Crawford latched onto the front passenger door before Ms. Mills could shut it.
Petitioner sped away and took a sharp turn, throwing Ms. Crawford from the truck and causing her
to strike her head on the pavement. Petitioner continued his escape without stopping to check on
or render aid to Ms. Crawford. Fifteen days later, Ms. Crawford died from a brain injury sustained
as a result of this incident.

        Petitioner was indicted on January 16, 2019, on one count each of first-degree murder,
first-degree robbery, felony conspiracy, and leaving the scene of an accident involving death. His
trial began on March 19, 2019, which was bifurcated into guilt and mercy phases. Before the jury’s
deliberations on guilt, the circuit court instructed the jury that it was to “draw no inference as to
his guilt or innocence [from petitioner’s decision to exercise his right not to testify]. You should
entirely disregard and not discuss it.” The jury found petitioner guilty of first-degree murder
(felony murder), felony conspiracy, and leaving the scene of an accident involving death.



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        Following its findings on guilt, the jury considered the issue of mercy. The jury was
instructed on mercy, and the court’s instructions given following the guilt phase were again
provided to the jury. During the jury’s deliberations, it submitted a note to the circuit court. The
court, stating that the note presented “a most interesting dilemma,” reported, “Because the
defendant did not testify at the mercy phase and now the jury would like to know why he deserves
mercy.” Counsel and the court considered the issue, and petitioner’s counsel consulted with
petitioner. Petitioner elected not to testify, and the court determined that he “knowingly and
intelligently has waived his right to make any additional allocution.” The jury continued its
deliberations and ultimately recommended that petitioner be sentenced to life in prison, with
mercy.

        Petitioner thereafter filed a “Motion for Judgment of Acquittal and/or New Trial,” arguing
that the jury’s note evidenced that it “made an adverse inference from the defendant exercising the
Fifth Amendment during trial.” Petitioner also claimed that the State used perjured testimony from
Mr. DeVoe and Caylin Valentine, who was with Ms. Crawford when her drugs were taken and
followed the vehicle driven by petitioner, therefore witnessing the incident that caused her death.
With regard to this alleged error, petitioner argued simply, “The knowing use of perjured testimony
violates due process, impeaches the verdict, and undermines the integrity of the judicial system.
[The witness’s] testimony poisoned the well and denied the defendant a fair trial.”1 The court
denied petitioner’s motion on April 5, 2019.

        On May 24, 2019, the court entered its sentencing order memorializing petitioner’s
sentence of life imprisonment, with mercy, for his murder conviction; not less than one nor more
than five years for his conspiracy conviction; and not less than two nor more than five years for
his leaving the scene of an accident involving death conviction.2 This appeal, challenging the
court’s denial of his motion for judgment of acquittal and/or a new trial, followed.

                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. In his first three, he separately assigns
as error the State’s alleged presentation of false testimony from Mr. DeVoe, Mr. Valentine, and
Jennifer Jenkins. Ms. Jenkins lived with Ms. Crawford and was present for the events culminating
in Ms. Crawford’s death.


        1
         Petitioner raised two other grounds in his motion, but he does not challenge the circuit
court’s denial of them on appeal.
        2
       The sentence imposed for the leaving the scene of an accident conviction was enhanced
under West Virginia Code § 61-11-18(a).
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         Petitioner has failed to preserve these alleged errors for appeal for numerous reasons. First,
petitioner did not challenge Ms. Jenkins’s testimony in his motion for a new trial before the circuit
court. “Our general rule is that nonjurisdictional questions not raised at the circuit court level, but
raised for the first time on appeal, will not be considered.” Barney v. Auvil, 195 W. Va. 733, 741,
466 S.E.2d 801, 809 (1995). And, his challenges below to Mr. DeVoe’s and Mr. Valentine’s
testimony amounted to nothing more than a conclusory statement that perjured testimony was
admitted. “To preserve an issue for appellate review, a party must articulate it with such sufficient
distinctiveness to alert a circuit court to the nature of the claimed defect.” State ex rel. Cooper v.
Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996). Lastly, before this Court, petitioner
has failed to fashion “an argument exhibiting clearly the points of fact and law presented, the
standard of review applicable, and citing the authorities relied on,” as required by Rule 10(c)(7) of
the West Virginia Rules of Appellate Procedure. Rather, petitioner merely quotes trial testimony
from Mr. DeVoe, Mr. Valentine, and Ms. Jenkins given at petitioner’s trial and testimony from
those witnesses given at Ms. Mills’s trial.3 Petitioner offers no explanation as to how the testimony
given at petitioner’s trial was false or even how it was materially different from that given at Ms.
Mills’s trial, let alone structure an argument demonstrating that the prosecutor knew or should
have known that the testimony was false or that the purportedly false testimony had a material
effect on the jury verdict. See Syl. Pt. 2, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701
S.E.2d 97 (2009) (specifying what a defendant must show to obtain a new trial on a claim that the
prosecutor presented false testimony at trial). Because petitioner’s assignments of error regarding
Mr. DeVoe’s, Mr. Valentine’s, and Ms. Jenkins’s testimony are inadequately briefed due to his
failure to structure arguments applying the law, we decline to address them. See State v. Sites, 241
W. Va. 430, 442, 825 S.E.2d 758, 770 (2019) (declining to address an assignment of error that
failed to structure an argument applying applicable law).

       In petitioner’s final assignment of error, he argues that the jury’s solicitation of an
expression of remorse from him violated his right against self-incrimination under the Fifth
Amendment to the United States Constitution and Article III, Section 5 of the West Virginia
Constitution.

        As with petitioner’s other assignments of error, he merely makes conclusory allegations of
juror misconduct and substantial prejudice without actually structuring an argument applying the
applicable law. He identifies no law to support his claim that a question from the jury constitutes
misconduct or a violation of his constitutional rights, and he points to no evidence or basis to
believe that the jury disregarded the circuit court’s instructions regarding petitioner’s decision not
to testify.4 Due to these deficiencies in petitioner’s brief, we likewise decline to address this
assignment of error.

       For the foregoing reasons, we affirm.

       3
           We note, additionally, that Ms. Mills was tried several months after petitioner, and her
trial transcript was not made a part of the record below. See W. Va. R. App. P. 6(a) (“The record
consists of the papers and exhibits filed in the proceedings in the lower tribunal, the official
transcript or recording of proceedings, if any, and the docket entries of the lower tribunal.”).
       4
           Notably, the jury recommended mercy in any event.
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                                  Affirmed.

ISSUED: May 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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