          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                   January 2013 Term
                                                                     FILED
                                                                  June 5, 2013
                                                                 released at 3:00 p.m.
                                      No. 11-0621                RORY L. PERRY II, CLERK
                                                               SUPREME COURT OF APPEALS
                                                                   OF WEST VIRGINIA




                            STATE OF WEST VIRGINIA,
                             Plaintiff Below, Respondent

                                           v.

                           CLAYTON EUGENE ROGERS,
                             Defendant Below, Petitioner



                   Appeal from the Circuit Court of Kanawha County
                        The Honorable Carrie Webster, Judge
                             Criminal Action No. 10-F-847

                                      AFFIRMED


                                Submitted: April 24, 2013
                                   Filed: June 5, 2013

Crystal L. Walden, Esq.                                Patrick Morrisey, Esq.
Deputy Public Defender                                 Attorney General
Office of the Public Defender                          Benjamin F. Yancey, III
Charleston, West Virginia                              Assistant Attorney General
Attorney for the Petitioner                            Charleston, West Virginia
                                                       Attorneys for the Respondent


The Opinion of the Court was delivered PER CURIAM.
                               SYLLABUS BY THE COURT


               1.     “On appeal, legal conclusions made with regard to suppression

determinations are reviewed de novo. Factual determinations upon which these legal

conclusions are based are reviewed under the clearly erroneous standard. In addition, factual

findings based, at least in part, on determinations of witness credibility are accorded great

deference.” Syl. Pt. 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).



               2.     “When 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).



               3.     “[A] circuit court’s denial of a motion to suppress evidence will be

affirmed unless it is unsupported by substantial evidence, based on an erroneous

interpretation of law, or, based on the entire record, it is clear that a mistake has been made.”

Syl. Pt. 2, in part, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).




                                                i
              4.     “Our prompt presentment rule contained in W. Va. Code, 62-1-5, and

Rule 5(a) of the West Virginia Rules of Criminal Procedure, is triggered when an accused

is placed under arrest. Furthermore, once a defendant is in police custody with sufficient

probable cause to warrant an arrest, the prompt presentment rule is also triggered.” Syl. Pt.

2, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).



              5.     “‘The delay in taking a defendant to a magistrate may be a critical factor

[in the totality of circumstances making a confession involuntary and hence inadmissable]

where it appears that the primary purpose of the delay was to obtain a confession from the

defendant.’ Syllabus Point 6, State v. Persinger, [169] W.Va. [121], 286 S.E.2d 261 (1982),

as amended.” Syl. Pt. 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984).



              6.     “Before disqualification of counsel can be ordered on grounds of

conflict arising from confidences presumably disclosed in the course of discussions regarding

a prospective attorney-client relationship, the court must satisfy itself from a review of the

available evidence, including affidavits and testimony of affected individuals, that

confidential information was in fact discussed.” Syl. Pt. 3, State ex rel. Youngblood v.

Sanders, 212 W.Va. 885, 575 S.E.2d 864 (2002).




              7.     “When the information that is the subject of a disqualification motion

                                              ii
predicated on prospective representation was ‘generally known’ or otherwise disclosed to

individuals other than prospective counsel, the information cannot serve as a basis for

disqualification under Rule 1.9 of the Rules of Professional Conduct.” Syl. Pt. 4, State ex

rel. Youngblood v. Sanders, 212 W.Va. 885, 575 S.E.2d 864 (2002).



              8.     “A judgment of conviction will not be set aside because of improper

remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused

or result in manifest injustice.” Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469

(1995).



              9.     “Four factors are taken into account in determining whether improper

prosecutorial comment is so damaging as to require reversal: (1) the degree to which the

prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2)

whether the remarks were isolated or extensive; (3) absent the remarks, the strength of

competent proof introduced to establish the guilt of the accused; and (4) whether the

comments were deliberately placed before the jury to divert attention to extraneous matters.”

Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).




                                             iii
Per Curiam:



              This case is before the Court upon the appeal of the Petitioner, Clayton Eugene

Rogers, from the April 7, 2011,1 sentencing order of the Circuit Court of Kanawha County,

West Virginia, wherein the Petitioner was sentenced to life in prison without mercy after a

jury convicted him of first degree murder without a recommendation of mercy. The

Petitioner argues that the trial court erred: 1) in determining that his statement was not taken

in violation of the prompt presentment statute, West Virginia Code § 62-1-5(a)(1) (2010);

2) in denying the Petitioner’s due process rights when it denied counsel’s motion to withdraw

based on an actual conflict of interest; and 3) in denying the Petitioner’s due process right

to a fair trial based upon the prosecutor’s improper, prejudicial closing argument. Having

carefully reviewed the parties’ briefs and arguments, the appendix record and all other

matters submitted to the Court, the decision of the circuit court is hereby affirmed.



                               I. Facts and Procedural History

              Keith Hubbard testified that on August 28, 2010, he, the victim, Laura Amos,

and the Petitioner were all drinking under a bridge in St. Albans, West Virginia. The

Petitioner and Ms. Amos had been in a relationship off and on for years. Mr. Hubbard stated



       1
         The notice of appeal was timely filed in this case by the Petitioner’s trial counsel.
There were several amended scheduling orders entered by the Court extending the time to
file briefs in this case.

                                               1
that the Petitioner and Ms. Amos got into an argument with one another due to another man,

Greg Lacy, supposedly proposing marriage to her. The Petitioner was angered by this

proposal and told Ms. Amos that he would kill her. Mr. Hubbard and Ms. Amos left the area

under the bridge and went to Mr. Lacy’s home that was also located in St. Albans. The two

spent the night at Mr. Lacy’s home.



              The next day, August 29, 2010, the Petitioner, Mr. Hubbard and another man,

Larry Means, were hanging out at an abandoned house on West Main Street in St. Albans

and had been drinking beer and vodka together throughout the day.2 Mr. Hubbard testified

that the Petitioner was still angry about the proposal made to the victim. Ms. Amos joined

them at the abandoned house. Everyone was sitting on the front porch of the house, drinking

alcohol in celebration of the Petitioner’s birthday. Mr. Lacy came by the abandoned home

and walked up to the porch. Mr. Lacy and the Petitioner argued about Mr. Lacy’s proposal

to Ms. Amos. Mr. Lacy left the house.



              Mr. Hubbard testified that about five minutes later, the Petitioner and Ms.

Amos got up and walked around the corner of the abandoned house. Mr. Hubbard and Mr.

Means remained on the porch of the abandoned house. Mr. Hubbard stated that about ten or

fifteen minutes later, he heard Ms. Amos scream his name three times. Mr. Hubbard ran


       2
       The Petitioner offered evidence of his intoxication in an attempt to show that he was
not capable of deliberation and premeditation.

                                             2
around to the side of the house to see what was happening, but he did not see anybody. He

stated that he did not know where the Petitioner and Ms. Amos had gone, so he went back

to the front porch.



              Mr. Hubbard testified that he and Mr. Means sat on the front porch for a while

until Rusty Martin came by the house and informed Mr. Hubbard that he was looking for a

house to rent. Mr. Hubbard told him that he should check out the house where they had been

sitting. When Mr. Hubbard and Mr. Martin started to enter the home, they saw Ms. Amos

lying on the floor in a pool of blood. She had been stabbed twice in the neck.3



              The police were called to the home. Upon their investigation at the scene,

including talking to Mr. Means, Mr. Martin and Mr. Hubbard, the police obtained an arrest

warrant for the Petitioner, who had fled the scene. The police searched for the Petitioner, but

did not find him until the next day.




              On August 30, 2010, pursuant to an arrest warrant, Captain Donald Scurlock




       3
        According to Mr. Hubbard, the Petitioner had shown him two “little pocket knives”
early in the day.

                                              3
of the Nitro Police Department4and Detective Sean Snuffer of the Kanawha County Sheriff’s

Office arrested the Petitioner around 3:15 p.m. near the home of the Petitioner’s friend,

Timothy Ward, in St. Albans. At approximately 3:18 p.m., while the Petitioner was being

transported to the Kanawha County Sheriff’s Office, he was advised of his Miranda5 rights

by Captain Scurlock.



              Upon arriving at the Sheriff’s department, at approximately 3:55 p.m., the

Petitioner was again read his Miranda rights by Detective Snuffer. The Petitioner signed a

waiver of rights form on which he circled and initialed on the form that he was willing to

make a statement to the law enforcement officers. The Petitioner was interviewed by Captain

Scurlock and Detective Snuffer. During the interview, the Petitioner admitted to

slicing/cutting the victim’s throat. He stated that he fled out the side door of the house and

into a wooded area behind the house. The Petitioner explained to the officers where he

discarded the knives. The interview concluded at approximately at 4:50 p.m.




              At the conclusion of the interview, Captain Scurlock and Detective Snuffer



       4
        At the time of the victim’s murder, Detective Scurlock was assigned to the Kanawha
County Bureau of Investigations, which is a multi-jurisdictional police unit responsible for
investigating crimes throughout Kanawha County.
       5
        See Miranda v. Arizona, 384 U.S. 436 (1966).

                                              4
indicated that they were going to begin processing the Petitioner by fingerprinting him,

photographing him and doing paperwork. At this time, Detective Snuffer advised the

Petitioner that he had the right to be promptly presented to a magistrate because he was under

arrest. The Petitioner, however, agreed to waive his right to prompt presentment and to take

the officers to where he had discarded the knives he used to murder the victim. The officers,

even after the Petitioner indicated he would waive his right to prompt presentment, told the

Petitioner that if at any time he changed his mind and wanted to be taken to the magistrate,

all he had to do was to let them know that and they would immediately bring him to the

magistrate. The Petitioner was allowed to speak to his daughter who came to the sheriff’s

office. He then was transported by the officers to the area where he stated he had discarded

the knives. The knives, however, were not found.



              The law enforcement officers returned to the sheriff’s office with the Petitioner

around 7:00 to 8:00 p.m. The undisputed evidence was that there was no magistrate on duty

in Kanawha County between 6:00 and 8:00 p.m. on this day. Detective Snuffer testified that

the Petitioner was taken to the magistrate at 8:00 p.m., when the magistrate came back on

duty.




              The Petitioner was indicted by a Kanawha County grand jury for first degree

murder. The Petitioner’s trial began on February 22, 2011, and ended on February 25, 2011.

                                              5
The jury convicted the Petitioner of first degree murder without a recommendation of mercy.

He thereafter was sentenced to life in prison without the possibility of parole. He now

appeals his conviction.



                                        III. Argument

                                   A. Prompt Presentment

              The first assignment of error6 raised by the Petitioner is that the trial court erred

in ruling that the Petitioner’s statement was not taken in violation of the prompt presentment

statute, West Virginia Code § 62-1-5(a)(1).7 The Petitioner argues that upon his arrest he

should have been taken directly to the magistrate. Because the Petitioner first was taken to

the sheriff’s office, he argues that his statement should have been suppressed by the trial




       6
        Because the standard of review is different for each assignment of error, it will be set
forth within the discussion of each assigned error.
       7
        West Virginia Code § 62-1-5(a)(1) provides:

                      An officer making an arrest under a warrant issued upon
              a complaint, or any person making an arrest without a warrant
              for an offense committed in his presence or as otherwise
              authorized by law, shall take the arrested person without
              unnecessary delay before a magistrate of the county where the
              arrest is made.

See also W. Va. R. Crim. P. 5(a) (providing that “[a]n officer making an arrest under a
warrant issued upon a complaint or any person making an arrest without a warrant shall take
the arrested person without unnecessary delay before a magistrate within the county where
the arrest is made”).

                                                6
court.8 See id. The State, however, argues that the Petitioner was transported to the

Kanawha County Sheriff’s Office because it was consistent with normal procedure to do so

and that there was no delay in promptly presenting the Petitioner to the magistrate for the

primary purpose of obtaining a confession.



             In reviewing a trial court’s ruling regarding a motion to suppress, we apply the

following standard of review:

                    On appeal, legal conclusions made with regard to
             suppression determinations are reviewed de novo. Factual
             determinations upon which these legal conclusions are based are
             reviewed under the clearly erroneous standard. In addition,
             factual findings based, at least in part, on determinations of
             witness credibility are accorded great deference.

Syl. Pt. 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994). This Court also held in

syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), that:

                     When 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.


Further, “a circuit court’s denial of a motion to suppress evidence will be affirmed unless

it is unsupported by substantial evidence, based on an erroneous interpretation of law, or,


      8
       The Petitioner does not challenge the voluntariness of his confession.

                                             7
based on the entire record, it is clear that a mistake has been made.” Id. at 107, 468 S.E.2d

722, Syl. Pt. 2, in part.



               As this Court has previously held,

                      [o]ur prompt presentment rule contained in W. Va. Code,
               62-1-5, and Rule 5(a) of the West Virginia Rules of Criminal
               Procedure, is triggered when an accused is placed under arrest.
               Furthermore, once a defendant is in police custody with
               sufficient probable cause to warrant an arrest, the prompt
               presentment rule is also triggered.

Syl. Pt. 2, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986). We have also

recognized, however, that “[c]ertain delays such as delays in the transportation of a defendant

to the police station, completion of booking and administrative procedures, recordation and

transcription of a statement, and the transportation of a defendant to the magistrate do not

offend the prompt presentment requirement.” State v. Sugg, 193 W.Va. 388, 395-96, 456

S.E.2d 469, 476-77 (1995) (citing State v. Ellsworth J.R., 175 W.Va. 64, 70, 331 S.E.2d 503,

508 (1985)) (footnote omitted).



               When a defendant’s statement to authorities is at issue, this Court has held:

                       “The delay in taking a defendant to a magistrate may be
               a critical factor [in the totality of circumstances making a
               confession involuntary and hence inadmissable] where it
               appears that the primary purpose of the delay was to obtain a
               confession from the defendant.” Syllabus Point 6, State v.
               Persinger, [169] W.Va. [121], 286 S.E.2d 261 (1982), as
               amended.


                                              8
Syl. Pt. 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984) (emphasis added).

Additionally, we have stated that

                “[o]ne of the primary purposes of a prompt presentment statute
                is to ensure that the police do not use the delay to extract a
                confession from a defendant through prolonged interrogation.”
                State v. Hutcheson, 177 W.Va. 391, 394, 352 S.E.2d 143, 146
                (1986). Thus, the focus is generally on the delay which
                precedes, and can therefore be used to induce, the confession.
                State v. Judy, 179 W.Va. 734, 372 S.E.2d 796 (1988); State v.
                Hutcheson, supra. As we stated in Syllabus Point 8 of State v.
                Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S.
                895, 109 S. Ct. 236, 102 L. Ed. 2d 226 (1988):

                       “ ‘Ordinarily the delay in taking an accused who
                       is under arrest to a magistrate after a confession
                       has been obtained from him does not vitiate the
                       confession under our prompt presentment rule.’
                       Syllabus Point 4, State v. Humphrey, 177 W.Va.
                       264, 351 S.E.2d 613 (1986).”

State v. Fortner, 182 W.Va. 345, 352, 387 S.E.2d 812, 819 (1989).



                This Court has also stated that “[t]he prompt presentment rule is not nullified

merely because the police read Miranda warnings to a suspect who is under arrest.” State

v. DeWeese, 213 W.Va. 339, 345, 582 S.E.2d 786, 792 (2003). We further explained,

however, that


                our prior cases do permit delay in bringing a suspect before a
                magistrate when the suspect wishes to make a statement. See
                Syl. pt. 3, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613
                (1986) (“The delay occasioned by reducing an oral confession
                to writing ordinarily does not count on the unreasonableness of
                the delay where a prompt presentment issue is involved.”).

                                               9
              However, our cases have never held that the police may
              purposefully delay taking a suspect before a magistrate in order
              to encourage the suspect to make a statement.

213 W.Va. at 345 n.10, 582 S.E.2d at 792 n.10.



              From a review of the suppression hearing transcript, as well as the audio and

video recordings in this case, Detective Snuffer testified that the primary purpose of taking

the Petitioner to the Kanawha County Sheriff’s Office was “part of our booking procedure.”

The detective stated that it was the department’s “normal procedure to interview people when

we arrest them.” The detective was definitive in his answer that “the time period spent

transporting him to the station was not for the purpose of trying to gain a confession from

him.” Detective Snuffer and Captain Scurlock were adamant that when a defendant who has

been arrested indicates that he or she is not willing to be interviewed, the individual is

promptly taken to the magistrate once the booking procedure is complete.



              Once the officers arrived at the sheriff’s office with the Petitioner, the

Petitioner was again read his Miranda rights and indicated on the form from which the rights

were read that he was willing to make a statement. The record is clear that at the end of the

fifty-five minute period in which the Petitioner was interviewed, the Petitioner was

repeatedly informed by Detective Snuffer of his right to prompt presentment before the

magistrate and the Petitioner agreed to waive his right to be taken directly to the magistrate

in order to take the officers to the area where he discarded the knives he used to kill the

                                             10
victim. The officers finished processing the Petitioner, then proceeded to the area where the

Petitioner said he discarded the knives. After searching for the knives and not finding them,

the officers returned with the Petitioner to the sheriff’s office. The Petitioner was taken to

the magistrate at 8:00 p.m. when the magistrate returned to duty.9



                Based upon our review of the record before the Court, the circuit court did not

err in its determination that the Petitioner’s statement to law enforcement should not be

suppressed because the prompt presentment statute had not been violated. See W. Va. Code

§ 62-1-5(a)(1).



                                     B. Conflict of Interest

                The Petitioner argues that the circuit court violated his due process rights when

it refused to grant his trial counsel’s10 motion to withdraw based on what the Petitioner’s

appellate counsel11 now terms an “actual conflict of interest.” The Petitioner argues that he

is entitled to representation by conflict-free counsel and that the trial court committed


       9
        Notwithstanding the Petitioner’s waiver of his right to prompt presentment, any delay
in taking the Petitioner to the magistrate that occurred when the officers transported the
Petitioner back to St. Albans to search for the knives came after the Petitioner confessed to
the crime, see Fortner, 182 W.Va. at 352, 387 S.E.2d at 819, and, therefore, will not vitiate
the confession under the prompt presentment statute.
       10
           The Petitioner was represented below by Jason D. Parmer.
       11
       The Petitioner’s appellate counsel, Crystal L. Walden, is also with the Kanawha
County Public Defender’s Office.

                                               11
reversible error in denying the motion to withdraw. The State argues that the trial court did

not err in denying the Petitioner’s counsel’s motion to withdraw due to a conflict of interest.



              Approximately three weeks prior to trial, the Petitioner’s counsel realized that

four of the State’s possible witnesses12 had been represented by other lawyers in the

Kanawha County Public Defender’s Office on impeachable felonies that were unrelated to

the Petitioner’s case.13 Upon learning that the Kanawha County Public Defender’s Office

had represented these witnesses in unrelated criminal matters, the Petitioner’s counsel met

with the management in the public defender’s office and was instructed to file a motion to



       12
         According to the Petitioner’s Motion to Withdraw, during the Petitioner’s counsel’s
“independent investigation of the witnesses’ criminal histories in an effort to uncover
convictions for crimes of dishonesty” to be used for impeachment, “it was discovered that
State witnesses David Edwards, Keith Hubbard, Daniel Ward and Timothy Ward . . . [were]
convicted of crimes of dishonesty and they were also represented by the Kanawha County
Public Defender’s Office in those cases.”
       13
         Diana Panucci, the managing attorney for the Kanawha County Public Defender’s
Office, testified at the hearing that the process in the office was that when a criminal
complaint was received, she would check their “database system” to determine if they had
represented any “previous victims, witnesses, . . . to see if anything triggers a conflict.”
According to Ms. Panucci, after she does an initial check for conflicts, which she indicated
was based upon the limitations of what was in the criminal complaint, it was then incumbent
upon the lawyer or the lawyer’s secretary to check again for potential conflicts once
discovery was received, usually after the arraignment.

        Even with Ms. Panucci’s explanation of how conflict checks were handled within the
office, it is unclear from the record before the Court how a conflicts check was not performed
on Mr. Hubbard until three weeks before trial, given that Mr. Hubbard was the Petitioner’s
friend and was identified by the Petitioner in his statement to police on the day he was
arrested.

                                              12
withdraw. The Petitioner’s counsel filed a one-page motion to withdraw, arguing that the

discovery of the prior representations

              gives rise to a conflict of interest under Rule 1.9 [of the West
              Virginia Rules of Professional Conduct]14 which prohibits use
              of information relating to a former representation to the
              disadvantage of the former client. Although the undersigned did
              not personally represent any of the aforementioned witnesses,
              Rule 1.1015 extends Rule 1.9’s prohibition to all lawyers
              associated with the Kanawha County Public Defender’s Office.

(Footnotes added); see generally Syl. Pt. 4, State ex rel. Verizon W. Va., Inc. v. Matish, ___

W. Va. ___740 S.E.2d 84 (2013) (“Rule 1.9(b) of the West Virginia Rules of Professional

Conduct has three primary objectives: (1) to safeguard the sanctity of the attorney-client

relationship and the confidential information that is shared by a client during the course of



       14
        West Virginia Rule of Profession Conduct 1.9 provides, in relevant part:

              A lawyer who has formerly represented a client in a matter shall
              not thereafter:
              (a) represent another person in the same or substantially related
              matter in which that person’s interests are materially adverse to
              the interests of the former client unless the former client
              consents after consultation; or
              (b) use information relating to the representation to the
              disadvantage of the former client except as Rule 1.6 or Rule 3.3
              would permit or require with respect to a client or when the
              information has become generally known.
       15
        West Virginia Rule of Professional Conduct 1.10 provides, in relevant part:

              (a) While lawyers are associated in a firm, none of them shall
              knowingly represent a client when any one of them practicing
              alone would be prohibited from doing so by Rules 1.7, 1.8(c),
              1.9 or 2.2.

                                             13
an attorney-client relationship; (2) to protect from disclosure the confidential information

revealed by a client to his/her attorney during the course of an attorney-client relationship;

and (3) to prohibit an attorney from using such confidential information adversely to his/her

former client.”).



              The focus at the hearing on the motion was on Keith Hubbard, who was a key

witness for the prosecution.16 Mr. Hubbard had two felony convictions for credit card

forgery and entering without breaking from 2004, in which matters he was counseled by a

different lawyer, not the Petitioner’s counsel, who worked for the public defender’s office.

Mr. Hubbard also had a more recent charge in 2010 for possession of a stolen vehicle; he was

again represented by a different attorney from the public defender’s office and had pled

guilty to that charge. Mr. Hubbard’s sentencing for that offense was still within the 120 day

time frame in which he could file a motion to reconsider the sentence.17



              The Petitioner’s counsel stated to the trial court that he had not represented any

of the potential witnesses involved in the Petitioner’s case. The attorney also told the court


       16
        At trial, Mr. Hubbard was the only witness of the four named in the Petitioner’s
motion to withdraw who actually testified on behalf of the prosecution.
       17
         There is no evidence in the record, nor was there any evidence presented before the
trial court, that indicates that Mr. Hubbard was promised anything for his testimony in the
instant case, such as a recommendation from the prosecution that a Rule 35(b) motion, should
one be filed, be granted by the court overseeing his previous conviction and sentencing
relating to the possession of the stolen vehicle charge.

                                              14
that he had not accessed any confidential information involving any of the public defender’s

prior clients at issue in the motion. Further, the attorney informed the trial court that the

extent of what he would use in cross-examination of Mr. Hubbard would be what was part

of the public record, i.e., complaints and criminal records.



               The trial court inquired of the Petitioner’s counsel as to whether he had

conferred with the Petitioner about the motion to withdraw and whether there was “anything

that the Court would need to place on the record regarding his [referring to the Petitioner]

position on this?” The Petitioner’s counsel responded:

                      Well, I have spoken to him about the matter and, of
               course, you know, I can’t speak for him, and I don’t know
               whether I should, but I think that he seems to be satisfied with
               what we’ve done so far in his representation. . . . I have
               spoken with Mr. Rogers about the situation. I think he
               understands, you know, the problem that we have, or the
               problem that’s presented itself. . . .
                      THE COURT:           So, Mr. Rogers, you feel that based
               on any conversation you had prior to this with your attorney and
               what you’ve heard today, you understand the nature of the
               motion that was filed here today?
                      MR. ROGERS:          (Defendant nods his head up and
               down affirmatively.)


The trial court proceeded to go through its options of either granting or denying the motion

to withdraw.     The court asked the Petitioner:      “Have you been satisfied with the

representation you’ve received thus far?” The Petitioner responded, “Yes, Ma’am.”




                                             15
               The trial court denied the motion to withdraw finding, in part, that “the benefit

that Mr. Rogers has had of representation and the knowledge that comes and familiarity that

comes with the representation you’ve provided, this Court finds extraordinarily important.”

Moreover, the court stated to the Petitioner and his counsel: “So I will respectfully deny the

motion, direct you to remain, I think, voluntarily so.” The Petitioner’s counsel voiced no

argument or objection to the trial court’s ruling denying his motion to withdraw, nor is there

any objection noted in the circuit court’s order.18




               In State ex rel. Blake v. Hatcher, 218 W.Va. 407, 624 S.E.2d 844 (2005), we

stated that:

               the United States Supreme Court found the trial court should be
               afforded considerable latitude in making its determination to
               disqualify a criminal defense attorney due to a conflict of
               interest. Wheat, 486 U.S. at 163-64, 108 S. Ct. at 1699-1700.
               Recognizing the trial court’s need for latitude, several courts
               have applied an abuse of discretion standard when reviewing
               decisions on disqualification motions. We agree that this is the
               appropriate standard of review.

Blake, 218 W.Va. at 417-18, 624 S.E.2d at 854-55 (citations omitted).



               This Court has recognized that “[w]here representation is affected by an actual



       18
         Indeed, the Petitioner’s trial counsel, who filed the original notice of intent to appeal
with this Court, did not assign as error the trial court’s ruling on the conflict of interest issue.

                                                16
conflict of interest, the defendant cannot be said to have received effective assistance of

counsel as required by the Sixth Amendment.” Blake, 218 W.Va. at 413-14, 624 S.E.2d at

850-51 (emphasis added); accord State ex rel. Humphries v. McBride, 220 W.Va. 362, 369,

647 S.E.2d 798, 805 (2007).



              Although in this case the attorney-client relationship was already well-

established between the Petitioner and his attorney before a potential conflict of interest was

discovered, for guidance on the conflict of interest issue raised, the Court turns to syllabus

point three of State ex rel. Youngblood v. Sanders, 212 W.Va. 885, 575 S.E.2d 864 (2002),

wherein we held that


                      [b]efore disqualification of counsel can be ordered on
              grounds of conflict arising from confidences presumably
              disclosed in the course of discussions regarding a prospective
              attorney-client relationship, the court must satisfy itself from a
              review of the available evidence, including affidavits and
              testimony of affected individuals, that confidential information
              was in fact discussed.

(Emphasis added); see Blake, 218 W.Va. at 414 n.4, 624 S.E.2d at 851 n.4 (“‘More than a

mere possibility of a conflict, however, most be shown. The Sixth Amendment is implicated

only when the representation of counsel is adversely affected by an actual conflict of

interest.’”) (quoting U.S. v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991)). Further, “[w]hen the

information that is the subject of a disqualification motion predicated on prospective

representation was ‘generally known’ or otherwise disclosed to individuals other than


                                              17
prospective counsel, the information cannot serve as a basis for disqualification under Rule

1.9 of the Rules of Professional Conduct.” Youngblood, 212 W.Va. at 886, 575 S.E.2d at

865, Syl. Pt. 4.



               While the Petitioner goes to great lengths in arguing that an actual conflict

existed below, the record simply does not support that claim. The Petitioner’s trial counsel

unequivocally stated at the hearing below that he had not represented Mr. Hubbard, or any

of the State’s witnesses who were clients of the Kanawha County Public Defender’s Office,

nor had he accessed any confidential information about Mr. Hubbard from the Kanawha

County Public Defender’s Office. Succinctly stated, the Petitioner’s counsel was not privy

to any confidential information arising out of the Kanawha County Public Defender’s

Office’s prior representations of Mr. Hubbard. He further stated to the trial court that the

information that he would use for impeachment purposes on the witness at issue was a matter

of public record.19



               Based upon our review of the facts of this case and the law concerning

disqualification of defense counsel, disqualifying the Petitioner’s trial counsel on the basis

of conflict of interest would have been inappropriate as there was no actual conflict and a



       19
       According to the record, when Mr. Hubbard testified during the Petitioner’s trial, it
was the State that brought out his prior convictions, not the Petitioner during cross-
examination.

                                             18
“mere possibility” of a conflict is insufficient to disqualify defense counsel.20 Blake, 218 W.

Va. at 414 n.4, 624 S.E.2d at 851 n.4. The circuit court, therefore, did not err in denying the

Petitioner’s counsel’s motion to withdraw.



              Further, notwithstanding the lack of an actual conflict of interest in this case,

this Court has also stated in State v. Reed, 223 W.Va. 312, 674 S.E.2d 18 (2009), cert.

denied, 558 U.S. 913 (2009), that “‘[a]n indigent criminal defendant may demand different

counsel for good cause, such as the existence of a conflict of interest or, if the potential

conflict is disclosed in a timely fashion, he may elect to waive his rights and keep the court

appointed counsel.’” Id. at 317, 674 S.E.2d at 23 (quoting State v. Reedy, 177 W.Va. 406,

411, 352 S.E.2d 158, 163 (1986)). In this case, the Petitioner’s counsel explained the

potential conflict of interest issue to the Petitioner and the trial court also inquired of the

Petitioner regarding the issue and the Petitioner stated that he was satisfied with the

representation he had received from his trial counsel. Additionally, there were no objections

to the trial court’s ruling denying the motion to withdraw either during the hearing or in the

court’s order. Consequently, the Petitioner can not agree to or express satisfaction with his

trial counsel’s representation below relative to the potential conflict of interest and then

complain about that representation to this Court. See State v. Johnson, 197 W.Va. 575, 582,



       20
        Further, because no actual conflict of interest existed in this case, we decline to
address the Petitioner’s arguments regarding imputed disqualification. See W. Va. R. Pro.
Cond. 1.10.

                                              19
476 S.E.2d 522, 529 (1996), superseded by rule on other grounds as recognized in State v.

Larry A.H., No. 11-1357, ___ W. Va. ___, ___ S.E.2d ___, 2013 WL 1500647 (W. Va.

filed April 11, 2013) (“A judgment will not be reversed for any error in the record introduced

by or invited by the party seeking reversal.” (internal quotations and citations omitted)); State

v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996) (“Having induced an error, a

party in a normal case may not at a later stage of the trial use the error to set aside its

immediate and adverse consequences.”). Consequently, we find that the alleged conflict of

interest claim was waived by the Petitioner.




                            C.    Prosecutor’s Closing Argument

              The Petitioner last asserts that the prosecutor’s closing arguments denied the

Petitioner his due process right to a fair trial. The Petitioner contends that the prosecutor

grossly misstated the law regarding first degree murder, referenced facts not in the record,

and made multiple assertions not supported by the evidence over the defense counsel’s

objections.21 The State, however, argues that the trial court did not err in denying the


       21
         The Petitioner argues that “[m]isrepresentation of elements of first degree murder
is something this same prosecutor [referring to the Kanawha County Prosecutor, Mark
Plants], who is the elected prosecutor of Kanawha County, has done in another high profile
murder case [referring to the Rhonda Stewart case].” See State v. Stewart, 228 W.Va. 406,
719 S.E.2d 876 (2011). The Petitioner further contends that “Mr. Plants has vowed to retry
                                                                               (continued...)

                                               20
Petitioner’s motion for a new trial on the basis of alleged prosecutorial misconduct due to the

prosecutor’s comments during closing argument.



              Before reviewing the prosecutor’s remarks, we note that prior to closing

arguments, the trial court instructed the jury that closing arguments were just

that–argument–not evidence.      Further, the trial court properly instructed the jury on

premeditation, as it pertains to the duration of time to form it, as well as how and when

voluntary intoxication reduces first-degree murder to second degree murder.22



              We first examine the prosecutor’s alleged misstatement of the law regarding

first degree murder. The Petitioner argues that the prosecutor misstated the law relating the

element of premeditation necessary for first degree murder by telling the jurors that “it only

takes a moment to plan ahead, it only takes a moment to premeditate . . . . He [the Petitioner]


       21
         (...continued)
Ms. Stewart in the media on multiple occasions, and has since began [sic] that process.” The
Petitioner also attaches a portion of the Rhonda Stewart transcript and a newspaper article
regarding the Rhonda Stewart case in the appendix record. The Rhonda Stewart case is not
before this Court and we caution counsel to refrain from including matters before this Court
that were not part of the record below. See W. Va. R.A.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.”); see also W.
Va. R.A.P. 6(f) (providing for the imposition of sanctions against attorneys “who
unreasonably and vexatiously increase the costs of litigation through the inclusion of
unnecssary material in the appendix or designated record.”).

       22
        The Petitioner raises no error regarding the instructions given by the trial court.

                                              21
premeditated it–it only takes a moment.”



               Specifically, during closing argument, the prosecutor stated:

               The gist of his argument that he just made was that it’s not first
               degree murder because he was so intoxicated he couldn’t plan
               ahead or he couldn’t premeditate what he did. Well, it only
               takes a moment to plan ahead, it only takes a moment to
               premeditate. And I will submit to you the evidence shows that
               when he opens those knives and approaches her, he’s thinking
               about killing her. What else would he be doing with the knives?
               And then you know how I know he intended to kill her? You
               intend the natural consequences of your actions. He
               premeditated it–it only takes a moment–and then he intended to
               kill her, ladies and gentlemen.

The Petitioner’s counsel did not object to what the Petitioner now characterizes as a

misstatement of the law regarding premeditation.



               While the Petitioner argues that “[t]he prosecutor’s improper misstatement of

the law is plain error,” we decline to invoke the plain error doctrine regarding alleged

misstatement of law made by the prosecutor. See Syl. Pt. 7, State v. Miller, 194 W. Va. 3,

459 S.E.2d 114 (1995) (“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.”). This Court held in

syllabus point five of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), that

                      [a]lthough premeditation and deliberation are not
               measured by any particular period of time, there must be some
               period between the formation of the intent to kill and the actual

                                                22
              killing, which indicates the killing is by prior calculation and
              design. This means there must be an opportunity for some
              reflection on the intention to kill after it is formed.

In light of the law enunciated in Guthrie, specifically that premeditation is not measured by

a particular period of time, we do not find that there was error in the prosecutor’s argument

regarding premeditation.



              Additionally, the Petitioner claims error stemming from several remarks about

the evidence presented during trial. We examine these remarks individually. The prosecutor

stated during his closing argument:

              I’ll submit to you after he plunged the knives in her neck, he
              stood there and the blood from that knife dripped on that floor.

The Petitioner’s counsel objected to this statement as not supported by the evidence and the

objection was sustained.



              The prosecutor also stated during his closing argument:

              He pulls the knives out–again, plenty of time to plan ahead–
              pulls the knives out, walks across the room, unfolds them–

The Petitioner’s counsel objected to this statement as not supported by the evidence and the

prosecutor was warned by the trial court to “make sure it comports with what the evidence

was.”



              The Petitioner also asserts that the following statement made by the prosecutor

                                             23
during his closing argument was not supported by the evidence:

              He hit right where he was aiming . . . . [H]e severed both
              carotid arteries.

The Petitioner’s counsel, after the prosecutor made this remark, stated: “The evidence was

not that both were severed. One was severed, the other one was not.” The trial court stated

that “[t]he jury will recall.” The prosecutor stated: “[t]he other–one was severed partial.”

The Petitioner’s counsel then commented: “It was incised.”



              Next, the Petitioner objected to the following comment made by the prosecutor:

              But I’ll submit to you that after he stabbed her, he reached out
              and cleaned his knife off on her shirt.23

The trial court ruled on the Petitioner’s objection as follows: “I’m going to let the jury recall

if–he’s making argument based on the evidence. The jury can figure out what the experts–”

The Petitioner’s counsel stated:

              But if the expert24 can’t say that, then I don’t know why he’s
              allowed to. Because the expert did not say that that’s where–
              you know that’s a pocket knife. He didn’t say that, because he
              couldn’t. . . .

(Footnote added). The trial court then noted the Petitioner’s objection and stated to the



       23
        The prosecutor was arguing that the stain on the shirt appeared to be in the shape of
a pocket knife.
       24
         The expert referred to was Detective Scurlock, who testified that there was a
“transfer stain” on the shirt worn by Ms. Amos which showed that a “bloody object” made
contact with the fabric of the shirt.

                                               24
prosecutor: “And you know where the line is.”



               Finally, the Petitioner argues that the following statement by the prosecutor

was intended to inflame the jury:

                      I humbly and respectfully request that you all find him
               guilty of first degree murder without mercy.

                     Ladies and gentlemen, he’ll get to enjoy three meals a
               day. Laura Amos won’t get to enjoy that.

The Petitioner’s counsel objected to this argument and his objection was sustained by the

trial court.



               “A judgment of conviction will not be set aside because of improper remarks

made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result

in manifest injustice.” Syl. Pt. 5, State v. Sugg, 193 W. Va. 388, 456 S.E.3d 469 (1995).

Additionally, in syllabus point six of Sugg, we held:

                       Four factors are taken into account in determining
               whether improper prosecutorial comment is so damaging as to
               require reversal: (1) the degree to which the prosecutor’s
               remarks have a tendency to mislead the jury and to prejudice the
               accused; (2) whether the remarks were isolated or extensive; (3)
               absent the remarks, the strength of competent proof introduced
               to establish the guilt of the accused; and (4) whether the
               comments were deliberately placed before the jury to divert
               attention to extraneous matters.

Id. at 393, 456 S.E.2d at 474, Syl. Pt.6.



                                             25
               Applying the Sugg factors to the instant case, the State concedes that the

prosecutor’s comments were “not in absolute keeping with the evidence and law.” We agree

with this concession; however, while “not in absolute keeping with the evidence and the

law,” the remarks, nonetheless, were argument that neither misled the jury nor prejudiced the

accused in light of the of the evidence in this case. Further, our review of the entire closing

argument reveals that the comments were isolated and not extensive. Moreover, without the

remarks, the evidence introduced at trial to establish the Petitioner’s guilt, including the

Petitioner’s confession to committing the murder, was overwhelming. Finally, the comments

were not deliberately placed before the jury to divert attention to extraneous matters. See id.

               Consequently, this Court finds that the trial court did not err in denying the

Petitioner’s motion for a new trial as the prosecutor’s remarks neither clearly prejudiced the

accused, nor resulted in manifest injustice. Id. at 393, 456 S.E.3d 474, Syl. Pt. 5.



                                       IV. Conclusion

               Based on the foregoing, the decision of the Circuit Court of Kanawha County

is affirmed.



                                                                                    Affirmed.




                                              26
