           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                                  January 2018 Term
                                  _______________                              FILED
                                                                            March 7, 2018
                                    No. 16-1064                            released at 3:00 p.m.
                                                                       EDYTHE NASH GAISER, CLERK

                                  _______________                      SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA


                             STATE OF WEST VIRGINIA, 

                                    Respondent 


                                          v.

                             AMBER LEE RICHARDSON, 

                                    Petitioner 


       ____________________________________________________________

                    Appeal from the Circuit Court of Monroe County 

                        The Honorable Robert A. Irons, Judge 

                              Criminal Case No. 14-F-2 


                                     AFFIRMED 


       ____________________________________________________________

                             Submitted: February 27, 2018 

                                Filed: March 7, 2018 


Paul R. Cassell, Esq.                          Patrick Morrisey, Esq.
Cassell & Crewe, P.C.                          Attorney General
Wytheville, Virginia                           Gordon L. Mowen, II, Esq.
Counsel for the Petitioner                     Assistant Attorney General
                                               Charleston, West Virginia
                                               Counsel for the Respondent



JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT 



             1.      “The granting of a continuance is a matter within the sound

discretion of the trial court, though subject to review, and the refusal thereof is not

ground for reversal unless it is made to appear that the court abused its discretion, and

that its refusal has worked injury and prejudice to the rights of the party in whose behalf

the motion was made.” Syllabus Point 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919).



              2.    “Whether there has been an abuse of discretion in denying a

continuance must be decided on a case-by-case basis in light of the factual circumstances

presented, particularly the reasons for the continuance that were presented to the trial

court at the time the request was denied.” Syllabus Point 3, State v. Bush, 163 W.Va. 168,

255 S.E.2d 539 (1979).
Justice Ketchum:

              Following a jury trial, Petitioner Amber Lee Richardson (“Defendant

Richardson”) was convicted of two felony counts—accessory to murder and conspiracy

to commit murder. The jury did not recommend mercy and Defendant Richardson was

sentenced to an incarceration term of life without the possibility of parole. On appeal,

Defendant Richardson asserts that the trial court erred by (1) refusing to grant a

continuance; (2) refusing to grant relief for an alleged discovery violation; (3) admitting

gruesome photographs of the victim; and (4) declining to instruct the jury on the lesser

included offenses of first degree murder.          After review, we affirm Defendant

Richardson’s convictions and incarceration term of life without the possibility of parole.

                I. FACTUAL AND PROCEDURAL BACKGROUND

              In June 2013, Defendant Richardson’s sister called the police and reported

that Defendant Richardson’s husband, Danny Ray Richardson (“decedent/husband”), was

missing. The police interviewed Defendant Richardson who eventually admitted that she

and her paramour, a tattoo artist named Joshua Hubbard (“Mr. Hubbard”),1 had devised a

plan to kill her husband. The plan was for Mr. Hubbard to hide under a chicken coop




       1
        Mr. Hubbard was tried separately and convicted of first degree murder without a
recommendation for mercy and conspiracy to commit a felony. He was sentenced to an
incarceration term of life without the possibility of parole. This Court affirmed his
convictions and sentence in State v. Hubbard, No. 14–1101, 2015 WL 7025873 (W.Va.
Nov. 10, 2015) (memorandum decision).



                                             1

near Defendant Richardson’s house and ambush the decedent when he arrived at the

property. Defendant Richardson gave Mr. Hubbard a nine-millimeter pistol that he used

to kill her husband. Defendant Richardson admitted that on the day of the murder, she

asked her husband to go home to cook dinner for their three young children in order to

lure him onto the property by himself. After interviewing Defendant Richardson, the

police searched her property and found her husband’s body in the woods near the

couple’s house.

              One of the central issues in this appeal is whether the circuit court erred by

refusing to grant Defendant Richardson’s motion for a third continuance (the court

continued the trial twice at the request of Defendant Richardson). Therefore, we begin

with a detailed review of the procedural history.

              In January 2014, a Monroe County Grand Jury indicted Defendant

Richardson on two felony offenses related to her husband’s death: (1) “accessory to

murder” in violation of W.Va. Code §§ 61-2-1 [1991] and 61-11-6(a) [2009], and (2)

“conspiracy to commit a felony offense: murder” in violation of W.Va. Code § 61-10-31

[1971].

              Defendant Richardson was arraigned on January 21, 2014, and entered a

not guilty plea. Her trial was scheduled for April 8, 2014. The circuit court ordered that

“discovery shall be exchanged by February 18, 2014.”            The State filed its initial




                                             2

discovery disclosure on February 6, 2014,2 identifying thirty-five items it had provided to

counsel3 for Defendant Richardson, including item 35(g) which consisted of “[c]ellular

records for the cellular telephones used by [the decedent] and [Defendant Richardson].”

               The State also disclosed and identified eleven items that were located in the

evidence room of the West Virginia State Police that would be made available to counsel

for Defendant Richardson for “inspection and/or photographing” at “the Union

Detachment of the West Virginia State Police or at the West Virginia State Police

Forensic Laboratory in Charleston, WV [sic].” These items included certain cellular

records recovered from phones belonging to the decedent, Defendant Richardson and Mr.

Hubbard, which were described as follows: “46. One (1) CD labeled Case #3013-292-

1814 by the digital forensics unit, the Richardson case report which contains all

information recovered by the Digital Forensics Unit in regards to the submitted items.”

(“Item 46 CD”). In addition to identifying the item 46 CD which contained all of the

information recovered from the cellular phones, the State provided counsel for Defendant

Richardson with a paper copy of an 18-page report that included “all of the text messages

and phone calls that went to and from [Defendant] Richardson’s phone [during the time it

alleged she and Mr. Hubbard conspired] . . . between May 31st [2013] and June 3rd


      2
         The State filed a supplemental discovery disclosure on February 18, 2014,
identifying four additional items.
      3
          Defendant Richardson was represented by Jeffrey S. Rodgers.



                                             3

[2013].” This 18-page report was provided to counsel for Defendant Richardson on

February 6, 2014.

             The circuit court held a hearing on March 25, 2014.4 At this hearing,

counsel for Defendant Richardson requested that the trial be continued because he

“needed more time to review the [discovery] materials provided by the State and to retain

experts to assist in the defense.” The parties discussed the need for a continuance as

follows:

                    Defense Counsel: Your Honor . . . I have not had the
             time, nor will I have the time between now and April 8 to go
             through all of these documents with Amber Richardson. I
             need like at least 60 days or something. I just got all this
             stuff. I can’t go through all of this with her between now and
             then [April 8]. I got, you know – the schedule is just unreal.
             I cannot get ready between now and April 8th.

                    ...

                    Circuit Court: You’ve had since July.

                     Defense Counsel: I know. But I just got – I just got
             all of the written – all these cell phone transcripts and CDs
             and everything. I got, you know – I have to go through it all
             with Ms. Richardson.

                   Circuit Court: What’s the State’s position on the
             motion to continue the trial date?


      4
         During this hearing, the court ruled that statements Defendant Richardson made
to the police during their investigation would be admissible at trial, and that Defendant
Richardson was competent to stand trial. On appeal, Defendant Richardson does not
contest either of these rulings.



                                           4

                     Prosecutor: Your Honor, I just don’t want there to be
              some kind of collateral attack on the conviction cause [sic] –
              I’m not going to oppose it strenuously, your Honor. If it is a
              continuance, it needs to be a short continuance. And I think
              we need to get some timelines. The Court should set some
              timelines by saying, if you’re going to get experts, don’t tell
              me you’re going to do it – you have to do it by this day or you
              don’t get – you don’t get any.

                     I think in fairness, they’ve had the discovery for one
              month and one week. That’s a short period of time for a
              capital murder case. I understand that. I’m not going to
              strenuously object to a continuance of the trial.
                     ...

                     So I do want – if we’re going to get – if we’re going to
              continue it, I wouldn’t oppose a 60-day continuance. But I
              think the Court should set a deadline for notifying me and the
              Court of who the experts are going to be and that they’ve
              been retained and everything’s been provided to them.

                      Defense Counsel: That’s fine, your Honor. We can
              just set a trial for the first of June.

The circuit court granted Defendant Richardson’s motion for a continuance and

rescheduled the trial for May 28, 2014.

              The circuit court held a status conference on April 21, 2014. During this

hearing, counsel for Defendant Richardson told the court that after researching battered

woman’s syndrome, he had determined that it was not a viable defense in this case, and,

therefore, he did not need to retain an expert. Following this discussion, the circuit court

and counsel for Defendant Richardson engaged in the following dialogue:

                    Circuit Court: Do you need another attorney to assist
              you in handling the case? You indicated that there was a
              voluminous amount of material to be reviewed.

                                             5

                     Defense Counsel: Judge, if I was going to get the
              battered woman’s expert, I definitely needed somebody. But
              without the battered woman’s defense, that expert – Amber
              [Defendant Richardson] and I can get through the material.

                    Circuit Court: You going to be ready for trial then on
                    th
              the 28 [of May]?

                     Defense Counsel: Yeah.

                     Circuit Court: I mean, I’m happy to appoint another
              attorney to help you.

                     Defense Counsel: I don’t think I need one right now.

              On May 23, 2014, five days before the trial was scheduled to begin, counsel

for Defendant Richardson filed a second motion for a continuance, explaining that

“counsel for Defendant is currently on bed rest due to mono and is unable to work until

June 2, 2014.” The circuit court granted this motion for a continuance and rescheduled

the trial on June 10, 2014.

              On June 6, 2014, four days before the trial was scheduled to begin, counsel

for Defendant Richardson filed a third motion for a continuance. This motion provided

that

              the State served pretrial discovery to Defendant on [sic] 6th
              day of February, 2014 which listed at number 35(g) a CD
              purportedly containing phone conversations between
              Defendant and Co-Defendant and others. That, upon
              information and belief the West Virginia Crime Lab failed to
              copy said CD. That, the information on this CD may contain
              exculpatory evidence that Defendant must review with
              counsel well in advance of trial.



                                            6

              The State filed a motion in opposition to the requested continuance, stating

that it was

              not in possession of any recorded phone conversations
              between Defendant and her co-defendant. The State . . . is
              unaware of the existence of any such recordings. Item 35
              listed in the State’s Initial Discovery Disclosure is a CD
              containing several different digital files. Item 35(g) . . . are
              cellular telephone records of the Defendant and the victim
              which were obtained from their cellular telephone service
              provider. These records were provided to the Defendant on
              February 6, 2014.

              Additionally, the State provided that in its initial discovery disclosure, it

identified the item 46 CD containing all of the digital files and information retrieved from

“the cellular telephones of [the victim], [Defendant] Amber Richardson and [Mr.]

Hubbard, along with a report summarizing the work done by the Digital Forensics lab.

The existence of Item number 46 listed in the State’s initial discovery disclosure was

disclosed to Defendant and her counsel on February 6, 2014.”

              As noted in the State’s initial discovery disclosure, the item 46 CD was

kept in the evidence room of the West Virginia State Police and was available for

inspection by defense counsel at that location.5 Additionally, according to the State, “the




       5
          According to the prosecutor, “a copy of the [CD] was not provided to the
defendant or to counsel for the State of West Virginia because the report itself states on
it, not to be copied or disseminated. So the State Police kept it in the evidence room at
the detachment.” It appears the “do not copy” label placed on the CD was the result of an
error due to the mistaken belief that the CD contained child pornography. Because it was
                                                                           (continued . . .)

                                             7

most relevant evidence contained within the material on Item 46 listed in the State’s

initial discovery disclosure are the deleted text messages and phone calls recovered from

the Defendant’s cellular telephone. A separate, [18-page] paper copy . . . listing the text

messages and phone calls was provided to the Defendant on February 6, 2014.” Finally,

the State asserted that the materials relating to the cellular phone records it intended to

rely on during trial were contained in the 18-page paper copy it provided to Defendant

Richardson on February 6, 2014.

             On June 9, 2014, the circuit court held a hearing on Defendant

Richardson’s motion to continue. At the beginning of this hearing, counsel for Defendant

Richardson stated “I know the court’s asked me before – I think I would like to ask if

[lawyer] Ms. [Martha] Fleshman could help me.” The only explanation defense counsel

provided in support of this request was as follows: “I know it sounds sexist, but Ms.

Richardson is a missus and Ms. Fleshman is a missus.” The circuit court asked Ms.

Fleshman if she would be willing to serve as co-counsel. After she replied in the

affirmative, the circuit court granted defense counsel’s request and appointed Ms.

Fleshman as additional counsel for Defendant Richardson.

              Regarding the third motion for a continuance, counsel for Defendant

Richardson stated that he had received the item 46 CD from the State on June 6, 2014,



later determined that the item 46 CD did not contain any child pornography, the
prosecutor eventually obtained it and provided it to counsel for Defendant Richardson.



                                            8
and that he needed additional time to review it. The State asserted that (1) the item 46

CD had been identified in the initial discovery disclosure on February 6, 2014; (2) the

contents of the item 46 CD had been described on February 6, 2014; (3) the location of

the item 46 CD was provided to counsel for Defendant Richardson on February 6, 2014;

and (4) counsel for Defendant Richardson was told explicitly that he could review the

item 46 CD on February 6, 2014. The State emphasized that that the relevant materials

contained on the item 46 CD—cellular phone records including the text messages

between Defendant Richardson, the victim and Mr. Hubbard—were provided to

Defendant Richardson on February 6, 2014, in an 18-page paper document.6

              The circuit court denied Defendant Richardson’s third motion for a

continuance. It explained its ruling as follows:

              The Defendant was made aware of the [item 46 CD] at issue
              on February 6, 2014. The [item 46 CD] has been held in
              evidence at the Union Detachment of the West Virginia State
              Police for the past four months, if not longer. Additionally, a
              paper copy of the text messages contained on the [item 46
              CD] was provided to the Defendant on February 6, 2014, and
              a copy of the [item 46 CD] itself was provided to Defendant’s
              counsel on June 6, 2014, after it was requested.




       6
          The prosecutor explained that “there’s probably 2500 pages on that CD [item 46]
of PDF files. But it’s all just technical information that came off the phone, contacts,
photographs, call logs, deleted text messages. That’s what’s on there. It’s a lot – a lot of
that is just computer gibberish, the path and all that, how it was saved.”



                                             9

             The trial began on June 10, 2014, and lasted for two days. The State’s first

witness was Sergeant Charles McKenzie, a West Virginia State Policeman. He testified

that he received a phone call on June 3, 2013, from Defendant Richardson’s sister,

Audrey Graham, who stated that she wanted to file a missing person’s complaint

regarding Defendant Richardson’s husband.         Sergeant McKenzie interviewed Ms.

Graham and Defendant Richardson’s father, both of whom “voiced some concerns about

. . . the fact that [Defendant Richardson] was not very clear as to when or why [her

husband] may have left. And then in addition, her father had made mention that he had

heard shots fired in the general area where [the decedent and Defendant Richardson]

were living.”     Further, according to Defendant Richardson’s father, Defendant

Richardson stated that her “nine-millimeter pistol was missing.”

             After receiving this information, Sergeant McKenzie went to Defendant

Richardson’s residence to interview her. Defendant Richardson stated that “she had no

idea who [her husband] left with, just the fact that she had received a text message from

him on Sunday evening stating that he was leaving, that someone was going to pick him

up. He would contact her at a later time to make arrangements to see the children.”

When asked about the missing pistol, Defendant Richardson told Sergeant McKenzie that

she found it and that it was in her bedroom. Sergeant McKenzie found the gun “lying on

the bed in pieces, taken down, taken apart.”       Defendant Richardson told Sergeant

McKenzie that her husband must have taken the gun apart. Defendant Richardson also




                                           10 

provided her husband’s cell phone to Sergeant McKenzie and explained that he must

have left it behind.

              Because Defendant Richardson’s story “didn’t seem to make all the sense

in the world to me through my experience [as an investigator],” Sergeant McKenzie

asked Defendant Richardson if she would come to the police station to further discuss her

husband’s absence.     Defendant Richardson agreed and they prepared to leave her

residence. As they were leaving the residence, Sergeant McKenzie stated

              I just happened to notice some clothing beside the back door,
              including some gloves, what appeared to be pants or shirts,
              boots. I asked [Defendant Richardson] if, you know – whose
              they are, why they were there. And she had told me . . . that
              they were [her husband’s] and they had been there for several
              weeks. I could tell by the condition that they were in that
              they had not been outside in the weather for several weeks.
              So, I went and photographed them, although I did not take
              them into my possession.

              Once arriving at the police station,7 Defendant Richardson admitted that she

and her husband had marital problems but she initially insisted that her husband had “just

left.” She also initially denied having an intimate relationship with Mr. Hubbard, stating

that she had not seen or talked to him in months.




       7
         Sergeant McKenzie began his interview with Defendant Richardson by
explaining her Miranda Rights and having her fill out a “Miranda Rights form,” which
she completed voluntarily. Defendant Richardson was not under arrest at this time.



                                            11 

              After Defendant Richardson denied having an intimate relationship with

Mr. Hubbard, another officer, Corporal Richards, came into the interview room.

According to Sergeant McKenzie, Corporal Richards “confronted her with the

information we’d received that [Mr. Hubbard] may’ve been on the mountain that

weekend.” Thereafter, according to Sergeant McKenzie, Defendant Richardson become

emotional and when asked again whether she knew what happened to her husband

              she said that they [she and Mr. Hubbard] had devised a plan
              over the previous two weeks . . . The plan was for [Defendant
              Richardson] to put out some clothing that Joshua Hubbard
              had left at their residence while he was staying there, put a
              sleeping bag out, place a nine-millimeter pistol that belonged
              to her in a specific area that they both knew. Then . . . that
              [Mr. Hubbard] would hide in the woods and, at some point,
              would ambush [the decedent], shooting him with that pistol
              and, thus, killing him. . . . Part of the plan was for . . . she and
              the children not to be around when it happened, for her to be
              at a friend’s house or just be gone.

              According to Sergeant McKenzie, Defendant Richardson stated that “she

wasn’t absolutely certain it [the plan] had been carried out . . . She did tell us that if it

happened, had happened, that it may’ve been around an old chicken coop, which was

about halfway up their driveway going to their house.”

              Upon receiving this information, Sergeant McKenzie ended the interview,

contacted a number of other police officers, and returned to Defendant Richardson’s

property to determine if a crime had been committed. When he arrived at the property,

Sergeant McKenzie noticed that the clothing, gloves, and boots that he had previously

seen by the back door were gone. He then told the other officers that Mr. Hubbard may


                                              12 

be in the area. As one officer searched the wooded area behind the chicken coop, he

observed a white male hiding in the woods. The officer told this person to stop. The

white male, who the police assumed was Mr. Hubbard, ran and escaped from the police.8

              The officers continued searching the property and located the body of the

decedent.   Sergeant McKenzie stated that the decedent’s body initially was located

behind the chicken coop “and then, it was obvious that he had been moved from that

location to deeper into the woods, maybe 75, 100, 150 yards away under an overturned

tree, where he had been covered with leaves, tree branches, debris to conceal his body.”

The officers found several nine-millimeter shell casings around this area.

              Dr. Nabila Haikal, the deputy chief medical examiner, testified that she

performed the autopsy on the decedent. She stated that the decedent died from a gunshot

wound to the head and that he had also suffered a blunt force injury to his head.

              The State also called Christopher Vance, a digital forensic analyst for the

West Virginia State Police. He testified that he analyzed and prepared reports on the

cellular phones belonging to Defendant Richardson, Mr. Hubbard, and the decedent. Mr.

Vance testified that Defendant Richardson and Mr. Hubbard were communicating with

each other between May 28, 2013, and June 1, 2013, the day of the murder. Following

Mr. Vance’s testimony, the State rested.


       8
         Mr. Hubbard was captured by the police the following day, he was found hiding
inside of a camper.



                                            13 

             Defendant Richardson was the sole witness to testify for the defense. She

stated that she married the decedent in 2006 and they had three children. Defendant

Richardson talked to Mr. Hubbard for the first time over the telephone on March 17,

2013. Defendant Richardson explained that she was introduced to Mr. Hubbard through

a mutual friend who handed her the telephone and said, “here, talk to him for a minute.”

The day after she spoke with Mr. Hubbard for the first time, Defendant Richardson drove

to Virginia, picked Mr. Hubbard up and brought him back to West Virginia so that he

could “do some tattoos for us, and he was supposed to stay two weeks . . . so he could do

the tattoos and then I was supposed to take him home.”

             Mr. Hubbard stayed at Defendant Richardson and the decedent’s residence

for six weeks while he was doing various tattoo work.9 During this time, Mr. Hubbard

and Defendant Richardson began a sexual relationship. In early May 2013, Defendant

Richardson, along with her three children, drove Mr. Hubbard back to Virginia. She and

the children stayed with Mr. Hubbard for two nights in Virginia before returning home.

After returning home, Defendant Richardson and Mr. Hubbard maintained their

relationship through phone calls and text messages. Defendant Richardson stated that she

wanted to get a divorce from her husband so that she could be with Mr. Hubbard.




      9
        During this time, Mr. Hubbard did tattoo work on the decedent, Defendant
Richardson, Defendant Richardson’s sister, and Defendant Richardson’s brother-in-law.



                                           14 

However, she testified that Mr. Hubbard “pushed for murder. He said that would be the

best way.”

             Defendant Richardson testified that Mr. Hubbard formed a plan to shoot the

decedent with her pistol.    After forming this plan, Defendant Richardson drove to

Virginia, with her three children, and brought Mr. Hubbard back to West Virginia on

May 31, 2013.     Mr. Hubbard stayed with a friend of Defendant Richardson’s that

evening. The decedent was not aware that Defendant Richardson returned to Virginia to

pick up Mr. Hubbard.

             Defendant Richardson testified that on the following day, June 1, 2013, she

left a sleeping bag, clothing and a pistol “in the shed behind the house” for Mr. Hubbard.

The plan was for Mr. Hubbard to retrieve those items, hide under the chicken coop, and

ambush the decedent when he returned home. Defendant Richardson admitted that she

sent Mr. Hubbard a text message prior to the murder that said “happy hunting.”

Defendant Richardson stated that she asked the decedent to go home to fix dinner for

their children as a pretext for Mr. Hubbard to commit the murder.10 She stated that after

the murder, Mr. Hubbard “sent me a text saying it’s done. Then he called me freaking

out and begging me to come back.”




      10
           During cross-examination, the prosecutor asked, “[Y]ou used them [the
children] to send their daddy to his death, didn’t you? Go fix our kids dinner.” Defendant
Richardson replied, “Yes.”



                                           15 

              During cross-examination, the prosecutor asked Defendant Richardson,

“You were an active involved participant in this plot, weren’t you?” She replied, “Yes,

I’m not denying that.” Similarly, the prosecutor asked, “And you plotted to kill your

husband?”    Defendant Richardson replied, “Correct.”        Defendant Richardson also

admitted that she and Mr. Hubbard had sexual relations in her residence on the night of

the murder, while the decedent’s body was “laying in the ground outside.”

              Following Defendant Richardson’s testimony, the defense rested. The jury

found Defendant Richardson guilty on both counts—accessory before the fact to first

degree murder and conspiracy to commit murder. The jury did not recommend mercy on

the charge of accessory before the fact to first degree murder. The circuit court sentenced

Defendant Richardson to an incarceration term of life without the possibility of parole.11

Thereafter, Defendant Richardson filed the present appeal.

                             II. STANDARD OF REVIEW

              Our standard of review is set forth in Syllabus Point 3 of State v. Vance,

207 W.Va. 640, 535 S.E.2d 484 (2000):

                     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


       11
         The circuit court sentenced Defendant Richardson to one to five years for the
conspiracy charge, to run concurrently with her other sentence.



                                            16 

              we review the circuit court’s underlying factual findings
              under a clearly erroneous standard. Questions of law are
              subject to a de novo review.


                                     III. ANALYSIS

              In this appeal, Defendant Richardson asserts the circuit court erred by (1)

refusing to grant a continuance; (2) refusing to grant relief for an alleged discovery

violation; (3) admitting gruesome photographs of the victim; and (4) declining to instruct

the jury on the lesser included offenses of first-degree murder.

                                     A. Continuance

              Defendant Richardson argues that the circuit court erred by refusing to

grant her trial counsel’s third request for a continuance. Defendant Richardson asserts

that “the trial court was clearly aware that defense counsel was not prepared to go trial.

Key evidence from [Defendant Richardson’s] cell phone and the cell phones of [Mr.

Hubbard] and the victim had never been reviewed.” Further, Defendant Richardson

argues that she was prejudiced by her trial counsel’s failure to review the cellular phone

records. She asserts, “[Defendant Richardson] testified at trial that there were additional

text messages confirming that she only wanted a divorce and did not want her husband to

be killed. Those messages were never offered into evidence because her trial counsel

was not given time to review the recovered records[.]”

              By contrast, the State argues that the circuit court correctly denied

Defendant Richardson’s third request for a continuance. The State asserts that the request

for a continuance arose from Defendant Richardson’s mistaken claim that certain

                                            17 

discovery—the item 46 CD—was only identified and provided to her counsel four days

before the trial.   The State counters that the item 46 CD was identified in the initial

discovery disclosure on February 6, 2014; the nature and contents of the item 46 CD were

described in detail on February 6, 2014; the location of the item 46 CD was provided to

counsel for Defendant Richardson on February 6, 2014; and counsel for Defendant

Richardson was told that he could review the item 46 CD on February 6, 2014. Further,

the State argues that the relevant materials contained on the item 46 CD—cellular phone

records including the text messages between Defendant Richardson, the victim and Mr.

Hubbard—were provided to Defendant Richardson on February 6, 2014, in an 18-page

paper document.

              This Court has held that the granting of a continuance is a matter within the

sound discretion of a trial court. In Syllabus Point 1 of State v. Jones, 84 W.Va. 85, 99

S.E. 271 (1919), we held:

                      The granting of a continuance is a matter within the
              sound discretion of the trial court, though subject to review,
              and the refusal thereof is not ground for reversal unless it is
              made to appear that the court abused its discretion, and that
              its refusal has worked injury and prejudice to the rights of the
              party in whose behalf the motion was made.

              Similarly, in Syllabus Point 3 of State v. Bush, 163 W.Va. 168, 255 S.E.2d

539 (1979), the Court explained “[w]hether there has been an abuse of discretion in

denying a continuance must be decided on a case-by-case basis in light of the factual




                                            18 

circumstances presented, particularly the reasons for the continuance that were presented

to the trial court at the time the request was denied.”12

              Our review reveals the circuit court did not abuse its discretion when it

denied Defendant Richardson’s third motion for continuance. First, we find no merit in

Defendant Richardson’s claim that her trial counsel lacked adequate time to review the

item 46 CD containing the digital cellular records.         Among the relevant factors to

consider when assessing whether counsel had an adequate opportunity to prepare for trial

are the time available for preparation, the degree of complexity of the case, the

availability of discovery from the prosecution, and the likelihood of prejudice resulting

from a denial of a motion to continue. See Syllabus Point 4, in part, State v. Bush.

              We find these factors weigh in favor of the State. First, the State disclosed

the item 46 CD to Defendant Richardson’s trial counsel approximately four months

before the trial. Further, the information the State relied on during the trial—cellular

phone records including the text messages between Defendant Richardson, the victim and

Mr. Hubbard—were provided to Defendant Richardson on February 6, 2014, in an 18-

page paper document. We find no support for Defendant Richardson’s position that a CD




       12
          Also, in Ungar v Sarafite, 376 U.S. 575, 589 (1964), the United States Supreme
Court observed that, “[t]here are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial
judge at the time the request is denied.”



                                              19 

that is identified, described, and made available for inspection four months before trial,

and well within the discovery deadline, did not afford defense counsel adequate time to

review this item. We also note that the trial was continued on two occasions, thus

affording defense counsel additional time to review the item 46 CD.

             Next, we consider the complexity of the case. Our review reveals that this

was a straightforward case—Defendant Richardson admitted that she was an active

participant in the plot to murder her husband. She made this admission both to Sergeant

McKenzie and during her trial testimony. All of the physical and medical evidence, as

well as testimony from the police who investigated the case and from Defendant

Richardson’s sister and father supported this conclusion. There were no text messages,

phone records or any other digital records that demonstrated Defendant Richardson was

not an active participant in the plot to murder her husband. Defendant Richardson has

not cited anything contained on the item 46 CD that suggests she “only wanted a divorce

and did not want to murder her husband.”

             Further, we disagree with Defendant Richardson’s argument that she

suffered prejudice because of the circuit court’s refusal to grant the third motion for a

continuance. Defendant Richardson argues to this Court that “additional text messages

confirming that she only wanted a divorce and did not want her husband to be killed”

were not offered into evidence because her trial counsel did not have adequate time to

review the item 46 CD. Again, this argument is unsupported by the record and by

Defendant Richardson’s trial testimony. We emphasize that on appeal to this Court,


                                           20 

Defendant Richardson has not cited any specific text message, phone call log, or any

digital data contained in the item 46 CD that supports her argument that additional text

messages demonstrate that she only wanted a divorce and did not want to kill her

husband.

              Next, Defendant Richardson’s own trial testimony contradicts the argument

that she only wanted a divorce and did not want her husband to be killed. While

Defendant Richardson testified that she initially told Mr. Hubbard she could divorce her

husband, she subsequently agreed with Mr. Hubbard’s suggestion that they murder him.

Defendant Richardson testified unequivocally that she was an active participant in the

plot to murder her husband. She described in detail the actions she willingly took to

complete this plan—after plotting with Mr. Hubbard, she drove to Virginia to pick him

up, brought him back to West Virginia, provided him with the gun used to kill her

husband, and asked her husband to return to their residence to fix dinner for their children

as a pretext for Mr. Hubbard to ambush and murder the decedent. Defendant Richardson

also told Sergeant McKenzie that she was an active participant in the plan to murder her

husband. Therefore, we find that the circuit court’s refusal to grant the third motion for a

continuance did not result in prejudice to Defendant Richardson.13




       13
         Defendant Richardson also argued that the circuit court erred by denying the
motion for a third continuance in light of its granting of defense counsel’s request for
appointment of co-counsel the day before trial. Defendant Richardson argues that the
request for co-counsel demonstrated that Defendant Richardson’s primary trial counsel
                                                                        (continued . . .)

                                            21 

was unprepared for trial. In support of this argument, Defendant Richardson cites a
number of examples of her trial counsel’s ineffectiveness. In Syllabus Point 10 of State
v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992), this Court held:

                     It is the extremely rare case when this Court will find
              ineffective assistance of counsel . . . on a direct appeal. The
              prudent defense counsel first develops the record regarding
              ineffective assistance of counsel in a habeas corpus
              proceeding before the lower court, and may then appeal if
              such relief is denied. This Court may then have a fully
              developed record on this issue upon which to more
              thoroughly review an ineffective assistance of counsel claim.

       Similarly, in State v. Miller, 194 W.Va. 3, 15, 459 S.E.2d 114, 126 (1995), we
explained that

              [t]he very nature of an ineffective assistance of counsel claim
              demonstrates the inappropriateness of review on direct
              appeal. To the extent that a defendant relies on strategic and
              judgment calls of his or her trial counsel to prove an
              ineffective assistance claim, the defendant is at a decided
              disadvantage. Lacking an adequate record, an appellate court
              simply is unable to determine the egregiousness of many of
              the claimed deficiencies.

       To the extent Defendant Richardson is asserting that her trial counsel’s
performance was ineffective, we decline to address an alleged ineffective assistance of
counsel claim in this direct appeal. The record has not been developed on this issue.
This is an issue that must be developed in a habeas corpus proceeding.

       Further, Defendant Richardson has not cited any authority for the proposition that
the appointment of co-counsel required the circuit court to continue the trial. In State v.
Phelps, 197 W.Va. 713, 725, 478 S.E.2d 563, 575 (1996), this Court noted that it had not
found any case law, statute, or rule “holding there is a federal or state constitutional right
to appointment of co-counsel[.]” Because of the unique facts surrounding the
appointment of co-counsel in the present case, we do not find that the circuit court abused
its discretion by denying the request for a third continuance. While co-counsel was
appointed on the day before trial, the circuit court had previously continued the trial on
                                                                             (continued . . .)

                                             22 

                                  B. Discovery Violation

              Defendant Richardson’s second assignment of error is that the circuit court

erred by refusing to grant a discovery violation against the State based on her assertion

that the State did not provide the item 46 CD to the defense in a timely fashion.

Defendant Richardson states that the discovery deadline was February 18, 2014, and

asserts that the item 46 CD was not provided to her until June 6, 2014, four days before

the trial.

              In support of her argument, Defendant Richardson relies on Syllabus Point

2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), wherein this Court held:

                     When a trial court grants a pre-trial discovery motion
              requiring the prosecution to disclose evidence in its
              possession, nondisclosure by the prosecution is fatal to its
              case where such nondisclosure is prejudicial.             The
              nondisclosure is prejudicial where the defense is surprised on
              a material issue and where the failure to make the disclosure
              hampers the preparation and presentation of the defendant’s
              case.

              We find Defendant Richardson’s reliance on this case is misplaced because

the State did not fail to disclose the existence of the item 46 CD. In the State’s February

6, 2014, initial discovery disclosure it identified the CD, described its contents in detail,

set forth the location of the CD, and alerted defense counsel where and how it could be



two occasions at the request of defense counsel. Further, defense counsel had previously
been offered and refused co-counsel and had assured the circuit court in April 2014 that
he would be prepared for trial.



                                             23
reviewed. Further, it provided an 18-page report listing the text messages from the item

46 CD it relied on during the trial to defense counsel on February 6, 2014, well within the

discovery deadline. Based on the foregoing, we find the circuit court did not err by

refusing to grant a discovery violation against the State.

                                 C. Gruesome Photographs

              Defendant Richardson’s third assignment of error is that the circuit court

erred by admitting “gruesome photographs” of the decedent taken by the medical

examiner’s office. Defendant Richardson asserts that the circuit court did not undertake

the proper analysis “pursuant to Rules 401-403 of the Rules of Evidence to determine the

admissibility” of the alleged gruesome photographs. Conversely, the State argues that the

circuit court did not err by admitting these photographs because (1) Defendant

Richardson did not raise a “gruesome photograph” objection during the trial, and (2) “it is

manifestly apparent that these photographs are not gruesome.”

              The State introduced four autopsy photographs of the victim’s injuries

during the medical examiner’s testimony. Defense counsel objected to the admission of

these photographs, explaining:

              [I]nasmuch as [Defendant Richardson] has given a full and
              complete statement of her involvement in this matter to the
              State Police . . . and the fact that Josh Hubbard’s involvement
              in [the decedent’s] death is uncontroverted, I just didn’t see
              any reason for them. We already have other pictures of [the
              decedent’s] body after death out there at the house in the
              woods. And so I was just going to ask the Court – I thought
              we’d pretty much established his manner of death and how it
              occurred. I just thought it seemed a little like overkill.


                                             24 

              It is clear that defense counsel did not object to the autopsy photographs on

the basis that they were “gruesome.” Thus, to the extent Defendant Richardson is

asserting that the circuit court erred by failing to conduct an analysis of whether the

photographs were gruesome, we find this argument fails because defense counsel did not

object on the basis that the photographs were “gruesome.”14 See State v. LaRock, 196

W.Va. 294, 316, 470 S.E.2d 613, 635 (1996) (“One of the most familiar procedural

rubrics in the administration of justice is the rule that the failure of a litigant to assert a

right in the trial court likely will result in the imposition of a procedural bar to an appeal

of that issue.”). Further, Defendant Richardson has not asserted that it was plain error for

the circuit court to admit these photographs.15 Based on the foregoing, we find the circuit

court did not abuse its discretion by admitting the autopsy photographs.




       14
         This Court held in Syllabus Point 8 of State v. Derr, 192 W.Va. 165, 451 S.E.2d
731 (1994), that “[t]he 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.”
       15
          This Court has held: “[t]o 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.” Syllabus
Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995); see also Syllabus Point 2,
State v. White, 231 W.Va. 270, 744 S.E.2d 668 (2013). We do not find that it was error
for the circuit court to admit the autopsy photographs. This Court has previously
addressed whether a particular photograph is gruesome. In State v. Waldron, 218 W.Va.
450, 458, 624 S.E.2d 887, 895 (2005), the Court explained

              it is within the discretion of a trial judge to admit photographs
              depicting trails of blood and the body of a shooting victim.
                                                                              (continued . . .)

                                              25 

                                  D. Jury Instructions

              Defendant Richardson asserts that the circuit court erred by denying

defense counsel’s request that the jury be instructed on second degree murder. Defendant

Richardson argues that she was entitled to this instruction because she “testified that her

will was overcome by [Mr.] Hubbard. Thus, to the extent that her criminal intent was at

issue, the jury should have been instructed as to second degree murder.”

              By contrast, the State asserts that there was no evidentiary basis to support

the giving of a second degree murder instruction. According to the State, there was




             See State v. Wheeler, 187 W.Va. 379, 419 S.E.2d 447 (1992).
             Moreover, in State v. Young, 173 W.Va. 1, 311 S.E.2d 118
             (1983), we recognized that a body of a victim after autopsy
             procedures may be gruesome; however, where the body has
             not undergone such procedures, the picture is not gruesome.
             Accord State v. Harper, 179 W.Va. 24, 365 S.E.2d 69 (1987).
             We have also relied on the amount of blood and gore in the
             picture, and in whether the body is pictured with unnatural
             facial positions or contortions in determining that the
             photograph is not gruesome and in determining whether a
             photograph is prejudicial. See State v. Parsons, 181 W.Va.
             56, 380 S.E.2d 223 (1989). Moreover, pictures that do not
             depict excessive blood and gore, but show puncture wounds
             are relevant to corroborate the State's testimony. See State v.
             Haddox, 166 W.Va. 630, 276 S.E.2d 788 (1981).

       In the present case, the photographs depict the decedent in a sterile environment
and provided a visual aid showing the injuries the medical examiner described in her
testimony. While the photographs show the injuries, we do not find that they are
necessarily “gruesome.” Therefore, we do not find it was error for the circuit court to
admit these photographs.



                                            26 

overwhelming evidence of premeditation and of Defendant Richardson’s criminal intent

“because she told the jury she planned to kill her husband. She admitted that she helped

[Mr.] Hubbard kill her husband. She admitted that she was an active participant in this

plot.”16

             Our standard of review for whether a jury has been properly instructed is

set forth in Syllabus Point 4 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

                    A trial court’s instructions to the jury must be a correct
             statement of the law and supported by the evidence. Jury
             instructions are reviewed by determining whether the charge,
             reviewed as a whole, sufficiently instructed the jury so they
             understood the issues involved and were not mislead by the
             law. A jury instruction cannot be dissected on appeal; instead,
             the entire instruction is looked at when determining its
             accuracy. A trial court, therefore, has broad discretion in
             formulating its charge to the jury, so long as the charge
             accurately reflects the law. Deference is given to a trial
             court’s discretion concerning the specific wording of the
             instruction, and the precise extent and character of any
             specific instruction will be reviewed only for an abuse of
             discretion.

             Additionally, a jury instruction must be based upon the evidence in the

case. “Instructions must be based upon the evidence and an instruction which is not


       16
          Justice Cleckley described the differences between the degrees of murder in
State v. Guthrie, 194 W.Va. 657, 675-76, 461 S.E.2d 163, 181-82 (1995), stating “there
must be some evidence that the defendant considered and weighed his decision to kill in
order for the State to establish premeditation and deliberation under our first degree
murder statute. This is what is meant by a ruthless, cold-blooded, calculating killing. Any
other intentional killing, by its spontaneous and nonreflective nature, is second degree
murder.” (Emphasis added).



                                            27 

supported by evidence should not be given.” Syllabus Point 4, State v. Collins, 154

W.Va. 771, 180 S.E.2d 54 (1971). “The question whether a defendant is entitled to an

instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a

legal one having to do with whether the lesser offense is by virtue of its legal elements or

definition included in the greater offense.” State v. Neider, 170 W.Va. 662, 664, 295

S.E.2d 902, 904 (1982). The State concedes that Defendant Richardson could satisfy the

first inquiry.

                 “The second inquiry is a factual one which involves a determination by the

trial court if there is evidence which would tend to prove such lesser included offense.”

Id. at 665, 295 S.E.2d at 905. Defendant Richardson’s trial testimony established plainly

and unequivocally that she plotted with Mr. Hubbard to murder her husband—she drove

to Virginia to pick Mr. Hubbard up, provided him with the gun used to kill her husband,

and asked her husband to return to their residence to fix dinner for their children as a

pretext for Mr. Hubbard to ambush and murder the decedent. Because there was no

evidence “which would tend to prove” the lesser included offense, i.e. that the killing was

spontaneous and of a non-reflective nature, we find the circuit court did not abuse its

discretion by declining to give the jury a second degree murder instruction.17




       17
          Defendant Richardson also asserted that “the multiple errors [committed by the
circuit court] warrant relief.” Our standard for reviewing a cumulative error argument
was set forth in Syllabus Point 5 of State v. Smith, 156 W.Va. 385, 193 S.E.2d 550
(1972): “Where the record of a criminal trial shows that the cumulative effect of
                                                                          (continued . . .)

                                              28 

                                  IV. CONCLUSION

             The circuit court’s order sentencing Defendant Richardson to an

incarceration term of life without the possibility of parole based upon her felony

convictions for accessory to murder and conspiracy to commit murder is affirmed.



                                                                              Affirmed.




numerous errors committed during the trial prevented the defendant from receiving a fair
trial, his conviction should be set aside, even though any one of such errors standing
alone would be harmless error.” Further, this Court has recognized that the cumulative
error doctrine “should be used sparingly” and only where the errors are apparent from the
record. Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 118, 459 S.E.2d
374, 395 (1995).

     After review, we find no merit in Defendant Richardson’s cumulative error
argument.



                                           29 

