                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                        March 7, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0555 (Pocahontas County 12-F-40)                                     OF WEST VIRGINIA



Julian N. Waddell,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Julian N. Waddell, by counsel Joshua L. Edwards, appeals the Circuit Court of
Pocahontas County’s May 14, 2013, sentencing order following petitioner’s convictions of
malicious assault and child abuse by a parent resulting in bodily injury. The circuit court denied
petitioner’s motion for new trial and sentenced him to concurrent terms of two to ten years and
one to five years in the penitentiary, respectively, for his convictions. The State of West Virginia,
by counsel Laura Young, filed a response.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                                               Facts

       Following a jury trial in March of 2013, petitioner was convicted of the felony offenses
of malicious assault and child abuse by a parent resulting in bodily injury.1 The victims were


       1
        Petitioner’s indictment alleged four offenses: malicious wounding, domestic battery,
child abuse, and child neglect creating risk of injury. The State did not pursue the domestic
battery and child neglect charges at trial. West Virginia Code § 61-2-9(a) defines, in part,
malicious assault as follows:

       If any person maliciously shoot, stab, cut or wound any person, or by any means
       cause him bodily injury with intent to maim, disfigure, disable or kill, he shall,
       except where it is otherwise provided, be guilty of a felony and, upon conviction,
       shall be punished by confinement in the penitentiary not less than two nor more
       than ten years.


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petitioner’s live-in girlfriend, Miranda M., and the couple’s six-year-old daughter, C.W. The
evidence at trial revealed that on January 5, 2012, petitioner came home from work angry and
began drinking. Miranda testified that the more he drank, the angrier he became, and they began
to argue. The petitioner then left the residence, and Miranda stayed with the two children, C.W.
and H.W., who was three years old at the time.

        According to Miranda’s testimony, petitioner returned three or four hours later and began
to beat her. Miranda testified that petitioner struck her several times, causing a laceration over
her eye that required stitches, knots on her forehead, sore ribs, and a sore hip. She was able to
run away when another person intervened. The evidence also revealed that petitioner threatened
to kill Miranda during the attack. As for the child abuse charge, Miranda testified that C.W. was
injured when the child attempted to shield Miranda from her father’s attack, and petitioner struck
the child.2

        Law enforcement responded to the scene and observed Miranda bleeding around her
forehead and nose. Additionally, law enforcement took pictures of Miranda’s and C.W.’s
injuries, which were admitted into evidence and shown to the jury. At the close of evidence, the
circuit court denied petitioner’s motion for acquittal and proceeded to instruct the jury, to which
there were no objections relevant to this appeal.

         However, the State’s closing argument gave rise to an objection by petitioner. During his
initial closing argument, the assistant prosecuting attorney began by referencing Jesus Christ,
stating,

       He was the one who had an answer for about everything. And remember when the
       Pharisees were tested [sic] Christ, they were setting him up to try to figure out
       how to commit him and have him do what they needed done with him. And one
       of the tests were, you know, they talked about in the Old Testament of all the



The record reflects that the parties and the circuit court used the terms “malicious wounding” and
“malicious assault” interchangeably.

      With respect to child abuse by a parent resulting in bodily injury, West Virginia Code §
61-8D-3(a) states:

       If any parent, guardian or custodian shall abuse a child and by such abuse cause
       such child bodily injury as such term is defined in section one [§ 61-8B-1], article
       eight-b of this chapter, then such parent, guardian or custodian shall be guilty of a
       felony and, upon conviction thereof, shall be fined not less than one hundred nor
       more than one thousand dollars and committed to the custody of the division of
       corrections for not less than one nor more than five years, or in the discretion of
       the court, be confined in the county or regional jail for not more than one year.
       2
         Miranda testified that she believed the blow to C.W. was intended for her, Miranda, and
not for C.W.
                                                2
       things you couldn’t eat. You know you couldn’t eat the clove of hoofed animals
       and stuff like that.

               And they had Christ pinned down where he had to make an answer and his
       answer was it’s not what man puts in his mouth that condemns him; it’s what
       comes out. And you can see where this case is going I’m sure. That mouths [sic]
       is the big issue that the Defense can argue that he didn’t maliciously intend what
       he did with that woman.

       In his rebuttal closing argument, the assistant prosecutor began by stating, “Again, what
would Jesus say? What comes out of a man’s mouth that damns -- ” At that point, defense
counsel objected and the parties had a discussion at the bench, the content of which is not
included in the transcript. Defense counsel objected again when the assistant prosecutor told the
jury “You are the conscious [sic] of the community. You represent this County.” The court
overruled the objection.

        In addition, prior to trial, petitioner raised issues with respect to disqualification of the
elected prosecuting attorney, discovery, and jury selection. The case was tried by an assistant
prosecuting attorney. With respect to disqualification of the prosecuting attorney, petitioner
moved for the appointment of a special prosecutor due to the fact that the elected prosecuting
attorney, Eugene Simmons, prior to assuming his role as prosecutor, had represented Miranda in
the abuse and neglect proceeding stemming from the incident giving rise to petitioner’s present
charges.3 Additionally, petitioner asserted that Mr. Simmons had previously represented the
children in a civil matter as a guardian ad litem. Based on the representations of the assistant
prosecuting attorney assigned to the case that he had no knowledge of the abuse and neglect
proceeding and his denial of any conflict of interest, the circuit court declined to disqualify the
entire prosecutor’s office and appoint a special prosecutor.

        With respect to discovery, petitioner moved for exclusion of Miranda’s medical records
on the basis that he received them only one business day prior to the start of trial. In response,
the State contended that it turned over the records the same day it received them, which was one
day before trial. The court granted petitioner’s requested relief and prohibited the State from
using the records at trial. However, despite the ruling in his favor, petitioner relied upon the
records during cross-examination, and the court allowed the State to use them in its redirect
examination. The records showed that Miranda arrived at the hospital by ambulance, had a
laceration over her eyebrow, multiple abrasions, tenderness to her collarbone, shoulder, clavicle,
hip, and a hematoma and swelling to her left eye.

       Lastly, during jury selection, four jurors raised their hand when petitioner’s counsel
posed the question, “Raise your hand if you agree with me about this, Okay? If a man is accused

       3
         The record is sparse on this issue, but it appears that both Miranda and petitioner
stipulated to abuse and neglect as a result of the incident on January 5, 2012. During the
sentencing hearing, the circuit court acknowledged that petitioner alleged he was angry that day
as a result of Miranda having a needle in her arm when he came home from work, which led to
the assault.
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of committing a crime, I expect him to get upon the stand and deny it.” The circuit court stopped
petitioner’s counsel from eliciting more detailed responses from the jurors, ruling that such a
question was improper and that the jury had indicated that they will abide by the instructions,
including whether a defendant has to testify or not.

        Petitioner filed his motion for new trial and an addendum thereto alleging he was
prejudiced by the late disclosure of the medical records; that voir dire was improperly limited;
that the State failed to meet its burden of proof; and that the State improperly injected religion
into the case. The court denied the motion, sentenced petitioner, and this appeal followed.

                                            Discussion

        Petitioner raises five assignments of error in his appeal. First, he argues that the State
violated his State and federal constitutional rights by injecting religion into its closing argument
and by telling the jury that they are the conscience of the county. As support, he cites to Syllabus
Point 9 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), wherein the Court held:

       Appellate courts give strict scrutiny to cases involving the alleged wrongful
       injection of race, gender, or religion in criminal cases. Where these issues are
       wrongfully injected, reversal is usually the result. Where race, gender, or religion
       is a relevant factor in the case, its admission is not prohibited unless the probative
       value of the evidence is substantially outweighed by the danger of unfair
       prejudice.

Petitioner contends that the references created a moral imperative for the jury to convict him and
prevented the jury from carefully distinguishing between the crimes of malicious assault and
unlawful assault.

        We disagree with petitioner’s characterization of the State’s closing argument as
invoking the strict scrutiny required by Guthrie. While perhaps unnecessary to reference Jesus
Christ in its closing argument, based on our review of the transcript, we believe the State was
merely making the point that the jury should pay attention to what petitioner said during the
attack to determine if malice existed. By no means was the reference to Jesus Christ or to the
jury being the conscience of the community intended to cause the jury to forget the law and
convict on emotion, as was the reasoning behind Guthrie.

        The grounds for setting aside a verdict on the basis of improper remarks by the State are
set forth in Syllabus Points 5 and 6 of State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995):

       5. 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.

       6. 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

                                                 4
       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.

        Applying the factors above, we see no reason to reverse based on the State’s closing
argument. We believe that the remarks in the present case referred to Jesus Christ as a historical
figure and not an appeal to sympathy or emotion. The remarks were intended to cause the jury to
focus on the petitioner’s words during the attack to establish that he acted with malice. Given the
ample evidence of guilt in this case, and noting that petitioner does not argue sufficiency of the
evidence in this appeal, the remarks do not warrant reversal of the convictions. See State v.
McCraken, 218 W.Va. 190, 624 S.E.2d 537 (2005) (holding that not all references to religion in
argument require reversal of a conviction.)

        Second, petitioner argues that the circuit court should not have permitted the assistant
prosecuting attorney to remain on the case given that the elected prosecuting attorney had
previously represented the victim in the abuse and neglect proceeding stemming from the same
event that led to petitioner’s criminal charges. Petitioner argues that this situation invokes Rule
1.9 of the West Virginia Rules of Professional Conduct, which states:

       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.

Petitioner presumes that the prosecutor would have had confidential briefings with Miranda in
the abuse and neglect proceeding that he would be prevented from disclosing in the criminal
case, even if they presented potential impeachment material of Miranda. Petitioner asserts that
the elected prosecutor’s recusal disqualifies his whole office, and it was error to allow the
assistant to remain on the case.

        However, contrary to petitioner’s argument, from the limited record before this Court it is
not clear that the elected prosecutor would have been disqualified from handling the criminal
case, despite his decision to recuse himself. In the present case, the elected prosecutor would not
have been representing a client in a subsequent proceeding whose interests were adverse to the
State’s interests, in fact, they may have been the same interests. Additionally, at the hearing on
the request for disqualification, petitioner’s counsel surmised incorrectly that the assistant
planned to use confidential materials from the abuse and neglect case against the petitioner. The
present case is different because the prosecutor had not previously represented the petitioner, but
rather the witness accusing him of a crime. Therefore, we do not find error in the circuit court
permitting the assistant prosecuting attorney to remain on petitioner’s case under the facts

                                                5
presented here.

       In his third assignment of error, petitioner argues that reversal is warranted by the late
disclosure of Miranda’s medical records. He contends that the record was covered by his
omnibus discovery request made at the time of his arraignment in which he requested “all such
evidence that is in its possession, known to it or through the exercise of reasonable diligence
would become known to it.” See Rule 16, W.V.R.Crim.P.; State v. Roy, 194 W.Va. 276, 460
S.E.2d 277 (1995).

        However, it is well-settled that the due process requirement is not as broad as statutory or
other discovery rules; the constitution only requires disclosure of exculpatory or impeachment
material favorable to the defendant and material to the case. United States v. Agurs, 427 U.S. 97
(1976); State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982). Petitioner fails to convince this
Court that the records are exculpatory.4 Additionally, he received the precise relief from the
circuit court that he requested – exclusion of the record. It was petitioner who then used the
records in cross-examination, opening the door to their use by the State on redirect. Accordingly,
we cannot find error with respect to the circuit court’s handling of Miranda’s medical records.

         Fourth, petitioner argues that reversal is warranted by the circuit court’s limitation on his
questions during voir dire. We note that voir dire is generally within the sound discretion of the
circuit court, and not subject to review, save for an abuse of discretion. See State v. Linkous, 194
W.Va. 287, 460 S.E.2d 288 (1995). The record in this case reveals that the circuit court did not
limit petitioner’s questioning on all fronts. To the contrary, petitioner was permitted to inquire as
to the jurors’ attitudes toward domestic violence, membership in organizations, donations to
charities for abused children, special sensitivities to abused children, and the use and abuse of
alcohol. It was when the questions turned to testifying that the circuit court intervened to explain
that such topics would be covered by the court’s instructions. And, petitioner was given the
opportunity to rephrase his question, but chose not to. We do not believe the circuit court abused
its discretion by limiting voir dire in the manner it did. See State v. Wilson, 157 W.Va. 1036, 207
S.E.2d 174 (1974) (finding no error in the refusal to ask jurors if they believed defendant to be
guilty because an indictment was returned against him, but in any event, any error was cured by
a proper instruction).

        Last, petitioner argues that a new trial is warranted by the cumulative effect of the circuit
court’s errors below. In Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E.2d 616
(1992), we held:
        “Where the record of a criminal trial shows that the cumulative effect of
        numerous errors committed during the trial prevented the defendant from
        receiving a fair trial, his conviction should be set aside, even though any one of

       4
         Petitioner asserts that the records are exculpatory because they show Miranda did not
receive any serious injury. Whether a laceration over one’s eye is “serious” may be debatable.
However, more importantly, whether her injuries are deemed “serious” is irrelevant under West
Virginia Code § 61-2-9. The evidence showed that he “cut” or “wounded” Miranda with the
intent to “maim, disfigure or kill” her.


                                                  6
       such errors standing alone would be harmless error.” Syl. pt. 5, State v. Smith, 156
       W.Va. 385, 193 S.E.2d 550 (1972).

        Our review of the record in this matter does not show “numerous errors” that prevented
petitioner from receiving a fair trial. The primary issue at trial was whether Miranda was
“wounded” and whether petitioner acted with malice. In this respect, the jury heard evidence of
Miranda’s injuries and that petitioner threatened to kill Miranda throughout the attack. We find
that the jury was properly instructed as to the offenses charged. Therefore, we do not believe
reversal of petitioner’s convictions is warranted.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: March 7, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum

       This case presents another example of a West Virginia prosecutor expounding upon the
teachings of Jesus and the Old Testament in closing argument. Our law is clear that prosecutors
cannot inject religion into closing argument. Evidently, the majority held it was proper argument
because Jesus is a historical figure.

       If this type of argument by prosecutors is proper then we should adopt a new syllabus
holding that the defendant’s lawyer can argue in closing that:

       1. Jesus would give him/her another chance, or, at least, probation. See Matthew 7:12;

       2. Jesus loved and forgave sinners. See John 5:1-15; and

       3. Only those jurors without sin may cast a stone in judgment of the defendant. See John
8:7.

       I dissent.




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