                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                               June 18, 2020
                                                                             EDYTHE NASH GAISER, CLERK
vs.) No. 19-0511 (Fayette County 19-F-6)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Kenneth A. Batey Jr.,
Defendant Below, Petitioner



                              MEMORANDUM DECISION


       Petitioner Kenneth A. Batey Jr., by counsel Evan J. Dove, appeals the Circuit Court of
Fayette County’s May 2, 2019, sentencing order following his convictions for two counts of
attempted second-degree murder and two counts of wanton endangerment. Respondent State of
West Virginia, by counsel Scott E. Johnson, 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.

       On December 4, 2018, Ralph and Melanie Nady were driving in Oak Hill, West Virginia,
when they saw an individual—later identified as petitioner—make an obscene hand gesture
involving his middle finger at them. Mr. Nady turned his car around in a driveway “to see what
his problem was” when petitioner shot at them. Mr. Nady, while still driving, pursued petitioner
and observed him run into a gambling establishment. Detective Sergeant James R. Pack, of the
Oak Hill Police Department, was one of the officers who responded to a call reporting that shots
had been fired. Detective Pack arrested petitioner and retrieved a firearm from the establishment.

        Petitioner was indicted on two counts of attempted murder and two counts of wanton
endangerment involving a firearm on January 8, 2019. On February 26, 2019, the parties
appeared for a motions hearing, at which petitioner argued a previously filed motion to continue.
Petitioner explained that a continuance was necessary because he was “in the process of
obtaining medical records from two medical institutions [in] Greensboro, North Carolina.”
Petitioner stated that he intended to raise “a defense of deadly force, with deadly force[, and]
[w]e are trying to determine the mental state of the defendant, as it relates to said defensive

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law.”1 Petitioner represented that he was previously shot and, as a result of that shooting,
diagnosed with post-traumatic stress disorder. Petitioner also stated that he had “obtained and
[was] preparing to present to the State an expert witness from [the] National Rifle Association
[(“NRA”)] who is a concealed weapons and defensive handgun specialist.” Petitioner stated that
his handgun was “used in a defensive handgun situation” and that he “would like to present
expert testimony from an individual who is trained both in defensive handguns, instructs said
individuals and his court materials excepted [sic] by the law enforcement agencies of this
county.”

       The circuit court declined to permit petitioner to call the specialist from the NRA,
reasoning that

       [i]f [petitioner] has a self-defense argument, he can argue it to the jury. I don’t
       need a NRA expert coming in here and (inaudible) that he acted in self-defense or
       whatever. That would be the only reason to use him. Otherwise he’s not—can’t
       give testimony or evidence that is relevant to the material—elements to this
       defense.

The court also denied petitioner’s motion to continue, finding that he had “had adequate time to
find any medical records that might be available, in this case.”

        Petitioner’s trial began on March 14, 2019. The State called, among other witnesses,
Phillip Cochran, a firearm and tool mark examiner employed by the West Virginia State Police
Forensic Laboratory (“Crime Lab”). Petitioner objected to his testimony on the ground that the
State had not disclosed Mr. Cochran as a trial witness. The State indicated that it had submitted
Mr. Cochran’s report to petitioner as soon as the State received it, which was on approximately
March 5, 2019. Finding that Mr. Cochran’s report was on the State’s exhibit list, that petitioner
was aware of his report, and that Mr. Cochran’s anticipated testimony “will not come as any
surprise to you,” the court overruled petitioner’s objection.

        After the case was submitted to the jury and it had begun its deliberations, the jury
delivered a note to the court asking for the definition of “malice” and for the difference between
second-degree murder and involuntary manslaughter. The court instructed the jury that
involuntary manslaughter was not an option, and it gave the jury a copy of its instruction
defining malice and differentiating between second-degree murder and voluntary manslaughter.

        After reaching their verdict, the jurors returned to the courtroom. The court read the
jury’s verdict for Count I—guilty of attempted voluntary manslaughter—when the jurors began




       1
        Petitioner contended that, before he shot at the Nadys, he saw Mr. Nady holding a
weapon inside his car. Mr. Nady, in fact, had a pellet gun in the car.




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speaking out about the verdict.2 The court returned the verdict form to the jury, the jury resumed
deliberations, and then the jury returned to the courtroom with its corrected verdict form.
Petitioner was found guilty of the attempted second-degree murder of both Mr. Nady and Ms.
Nady, as well as guilty of wanton endangerment involving a firearm as to both Mr. and Ms.
Nady. The jury was polled, and each member confirmed that this was their verdict.

        On May 2, 2019, the court entered its sentencing and commitment order sentencing
petitioner to not less than one nor more than three years of incarceration for each attempted
second-degree murder conviction and to determinate five-year terms of incarceration for each
wanton endangerment involving a firearm conviction. It further ordered that these sentences run
consecutively to one another. This appeal followed.

       On appeal, petitioner raises five assignments of error. First, he argues that the circuit
court erred in denying his motion to continue trial to afford him time to obtain his medical
records. In support, petitioner relies on State v. Milam, 159 W. Va. 691, 226 S.E.2d 433 (1976),
where this Court reiterated “that it is an abuse of discretion to refuse a continuance to allow a
defendant to obtain evidence which is critical to his defense, the existence of which was
discovered only shortly before trial.” Id. at 700, 226 S.E.2d at 440 (citation omitted).

       As intimated from the portion of Milam quoted above, we review a court’s denial of a
motion to continue for an abuse of discretion: “In a criminal case, the granting or denial of a
motion for continuance rests in the sound discretion of the trial court and the refusal to grant
such continuance constitutes reversible error only where the discretion is abused.” Id. at 691, 226
S.E.2d at 436, syl. pt. 4. In Milam, in moving for a continuance, “[c]ounsel advised the court that
on the night before trial, during a conversation with the defendant, he had discovered that the
defendant had received protracted institutional psychiatric care at a facility in Buffalo, New
York.” Id. at 695, 226 S.E.2d at 437. We observed that this night-before-trial discovery was
apparently the first time counsel became aware of the treatment. Id. The trial court and counsel
contacted the psychiatric institution, which confirmed that the defendant had received care for
three years; however, the institution refused to provide specific information without proper
authorization. Id. The trial court declined to grant a continuance to obtain records, which we
found to be in error. Id. at 700-01, 226 S.E.2d at 440-41.

       In his brief on appeal, petitioner acknowledges that he had “more than a month to obtain”
the desired medical records before moving for a continuance, and we further note that another
two weeks passed between the pretrial hearing and trial during which petitioner could have
obtained the records. Petitioner did not argue to the circuit court that this was an insufficient
amount of time within which to gather the sought-after records, nor did he claim that the


       2
          After the court read “guilty of attempted voluntary manslaughter,” petitioner’s trial
transcript documents only that “(Jurors speak out about the reading of verdict).” No specifics are
given. After the jurors spoke out, the court said, “I’m going to send you back to the jury room
and go over the verdict form and make sure it’s what all twelve of [you] have agreed on.”




                                                3
treatment providers needed additional time to comply with a request for records.3 Moreover,
there was no eve-of-trial discovery on petitioner’s part, nor has petitioner argued that the
existence of these medical records became known only shortly before trial. As a result, Milam
does not compel a finding, nor do we find, that the court abused its discretion in denying
petitioner a continuance.

        In petitioner’s second assignment of error, he argues that the circuit court should have
allowed him to call the NRA expert in support of his self-defense claim to explain the nature of
defensive handgun scenarios and how people react in those situations. Petitioner asserts that the
court’s ruling precluding that testimony prejudiced his defense at trial, leaving him with only
“his own lay person’s perspective of defensive handgun situations.”

        When a circuit court excludes the testimony of an expert witness, we review for an abuse
of discretion. State v. McKinley, 234 W. Va. 143, 162, 764 S.E.2d 303, 322 (2014). Under Rule
702(a) of the West Virginia Rules of Evidence, “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.” The “essence” of this Rule “is that of
‘assisting’ the factfinder’s comprehension through expert testimony.” Sheely v. Pinion, 200 W.
Va. 472, 478, 490 S.E.2d 291, 297 (1997) (citing Tanner v. Rite Aid of W. Va., Inc., 194 W. Va.
643, 654 n.17, 461 S.E.2d 149, 160 n.17 (1995) (“Helpfulness to the jury . . . is the touchstone of
Rule 702.”)). Thus, a corollary to the Rule is that “[e]xpert opinion evidence concerning a matter
as to which the jury are as competent to form an accurate opinion as the witness, is
inadmissible.” Syl. Pt. 2, State v. Mitter, 168 W. Va. 531, 285 S.E.2d 376 (1981) (citation
omitted).

       Concerning self-defense, we have stated, generally, that

       a defendant who is not the aggressor and has reasonable grounds to believe, and
       actually does believe, that he is in imminent danger of death or serious bodily
       harm from which he could save himself only by using deadly force against his
       assailant has the right to employ deadly force in order to defend himself.

State v. W.J.B., 166 W. Va. 602, 606, 276 S.E.2d 550, 553 (1981) (citation omitted). The
question of whether a defendant acted in self-defense is within the jury’s province. State v.
Whittaker, 221 W. Va. 117, 127, 650 S.E.2d 216, 226 (2007).

        We find that the circuit court did not abuse its discretion in excluding the NRA
specialist’s testimony. Petitioner argues that, without the testimony, he was left with only “his
own lay person’s perspective of defensive handgun situations,” but this argument fails to explain
how the jury’s comprehension would have been assisted by the specialist’s testimony. We find,
instead, that the jury was as competent as the NRA specialist to form an opinion regarding


       3
           In fact, petitioner offered no reason for why he needed additional time to gather records.



                                                  4
whether petitioner reasonably believed he was in imminent danger of death or serious bodily
harm in his interaction with the Nadys. Further, the jury was the proper body to make this
determination; accordingly, the proposed testimony was inadmissible.

        Next, petitioner argues that the circuit court erred in allowing Mr. Cochran to testify
when he was not disclosed prior to the day of trial. Petitioner states that Mr. Cochran was a vital
witness through whom “virtually all of the physical evidence” against petitioner was admitted
and that the court’s decision to allow Mr. Cochran to testify prejudiced his defense and was a
violation of Rule 16 of the West Virginia Rules of Criminal Procedure.

       Courts are vested with “broad latitude” in selecting a remedy for a violation of Rule 16 of
the West Virginia Rules of Criminal Procedure, governing discovery. State ex rel. Rusen v. Hill,
193 W. Va. 133, 140, 454 S.E.2d 427, 434 (1994). And “[t]he scope of appellate review must
necessarily be an abuse of discretion standard.” Id. In determining whether a violation of Rule 16
prejudiced a defendant, we employ a two-pronged analysis: “(1) did the non-disclosure surprise
the defendant on a material fact, and (2) did it hamper the preparation and presentation of the
defendant’s case.” Id. at 135, 454 S.E.2d at 429, syl. pt. 2, in part.

       The court admitted Mr. Cochran’s testimony after noting that petitioner was aware of Mr.
Cochran’s report and, therefore, would not be surprised by his testimony. Petitioner does not
dispute this finding. Although he states in conclusory fashion that the court’s decision “highly
prejudiced” his defense, he provides no explanation or argument to support his assertion, nor
does he claim that the preparation or presentation of his case was hampered in any way.
Accordingly, he has demonstrated no error in the court’s decision to permit Mr. Cochran’s
testimony, and we find none.

        In petitioner’s fourth assignment of error, he argues that the State failed to establish a
proper chain of custody for nine pieces of evidence admitted against him. This evidence included
petitioner’s handgun, the magazine for the gun, one fired bullet, and six fired cartridge cases.
Petitioner states that Mr. Cochran, through whom these pieces of evidence were admitted, “could
not account for how many people had been in possession of the [evidence] before trial.”
Likewise, according to petitioner, Mason Hines, a forensic investigator with the Oak Hill Police
Department, could not account for how many people possessed this evidence at different points
prior to trial.

              Before a physical object connected with a crime may properly be admitted
       into evidence, it must be shown that the object is in substantially the same
       condition as when the crime was committed. Factors to be considered in making
       this determination are: (1) the nature of the article, (2) the circumstances
       surrounding its preservation and custody, and (3) the likelihood of intermeddlers
       tampering with it.

Syl. Pt. 1, State v. Davis, 164 W. Va. 783, 266 S.E.2d 909 (1980). “The preliminary issue of
whether a sufficient chain of custody has been shown to permit the admission of physical
evidence is for the trial court to resolve. Absent abuse of discretion, that decision will not be
disturbed on appeal.” Id. at 784, 266 S.E.2d at 910, syl. pt. 2.

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       We have also stated that

       [t]o allow introduction of physical evidence into a criminal trial, it is not
       necessary that every moment from the time evidence comes into the possession of
       a law enforcement agency until it is introduced at trial be accounted for by every
       person who could conceivably come in contact with the evidence during that
       period, nor is it necessary that every possibility of tampering be eliminated; it is
       only necessary that the trial judge, in his discretion, be satisfied that the evidence
       presented is genuine and, in reasonable probability, has not been tampered with.

Id. at 786-87, 266 S.E.2d at 911-12 (internal footnotes and citation omitted). Indeed, “[t]he mere
possibility or speculation that evidence could have been tampered with does not constitute
sufficient ground for exclusion.” Id. at 789, 266 S.E.2d at 913 (citation omitted). In instances

       [w]hen an object or article has passed through several hands while being analyzed
       or examined before being produced in court, it is not possible to establish its
       identity by a single witness, but if a complete chain of evidence is established,
       tracing the possession of the object or article to the final custodian, it may be
       properly introduced in evidence.

Syl. Pt. 8, State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017) (citation omitted). But “[w]hen
the proponent authenticates evidence by tracing a chain of custody, the mere possibility of a
break in that chain does not render the item inadmissible, but is an issue for the jury to consider
in determining the sufficiency of the proof.” Id. at 436, 796 S.E.2d at 223 (citation omitted).

        In the portion of the appendix record cited by petitioner to support his arguments relative
to Mr. Cochran, Mr. Cochran detailed the extensive protocols employed by the Crime Lab to
maintain a proper chain of custody. Petitioner’s counsel asked specifically, “Did you all keep
[an] accurate record of who had access to all those materials, at all times, twenty-four hours a
day?” Mr. Cochran answered, “Yes. We maintain a chain of custody for those items.” Counsel
also asked, “Can you guarantee that there were no other persons beyond the custodian and you
while it was in the building?” Mr. Cochran responded,

               Well, I mean, the laboratory has controlled access. So, the only people to
       have access to the vault area and the central evidence receiving area are the
       people that work for central evidence receiving. The only people that have access
       to our section in the laboratory are people that have a security pass for our section.

              So, the only people that have access to those areas are the people who
       have security access to gain access to those areas.

It is unclear how the cited portions of Mr. Cochran’s testimony amount to an affirmative
representation that he was unable to “account for how many people had been in possession of the
[evidence] prior to trial.” But, in any event, “[t]he mere possibility or speculation that evidence



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could have been tampered with does not constitute sufficient ground for exclusion.” Davis, 164
W. Va. at 789, 266 S.E.2d at 913 (citation omitted).

        During Mr. Hines’s testimony, petitioner’s counsel asked, “Do you have a knowledge or
perhaps have a record of who had access to [the evidence] at the State Police [Crime] Lab or is
that out of your control.” Mr. Hines said, “No, I do not.” As for who had access to the evidence
at the Oak Hill Police Department, however, Mr. Hines testified that only he and one other
officer, a lieutenant, had access. The evidence is secured by an electronic lock, which is opened
with a key fob. Mr. Hines testified that the key fob is on his person at all times, he takes it home
with him, and he has never lost it. Again, the testimony identified by petitioner provides nothing
more than the “mere possibility or speculation that evidence could have been tampered with,”
which is not a sufficient ground for exclusion.

       In Boyd, we rejected a challenge similar to that raised by petitioner:

       Mr. Wyche contends that the State’s witness at trial could not give assurances as
       to . . . whether [the sample] could have been tainted; therefore, the evidence
       should not have been admitted. We reject this. “When the proponent authenticates
       evidence by tracing a chain of custody, the mere possibility of a break in that
       chain does not render the item inadmissible, but is an issue for the jury to consider
       in determining the sufficiency of the proof.”

Id. at 436, 796 S.E.2d at 223 (citation omitted). Additionally, petitioner has not alleged that the
evidence was not genuine or that it had been tampered with in any manner. See State v.
McCartney, 228 W. Va. 315, 719 S.E.2d 785 (2011) (finding no abuse of discretion in the court’s
ruling admitting the gun into evidence where the firearms examiner identified the gun as that
received and tested by his office, he identified his initials on the gun evidencing receipt at the
firearms lab, and petitioner did not “allege or point to any evidence in the record to show that the
weapon introduced into evidence was not genuine or had been tampered with in any manner”).
Accordingly, we find no abuse of the circuit court’s discretion in its chain of custody
determination.

       In petitioner’s final assignment of error, he argues that the circuit court’s instruction on
attempted voluntary manslaughter was confusing.4 He claims that the jury’s request for the



       4
          Petitioner also asserts, in passing, that the circuit court’s instruction on attempted
second-degree murder was confusing, but he offers no argument in support; his arguments in
support of this assignment of error pertain only to the attempted voluntary manslaughter
instruction. “[C]asual mention of an issue in a brief is cursory treatment insufficient to preserve
the issue on appeal.” State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995)
(citation omitted). Moreover, a review of the appendix record reveals that petitioner did not
object to the court’s attempted second-degree murder instruction.


                                                                                    (continued . . .)
                                                 7
definition of malice and the difference between second-degree murder and involuntary
manslaughter evidenced confusion on the jury’s part, as did the issue with their initial verdict.

        Like petitioner’s other assignments of error, we review this claimed error for an abuse of
the circuit court’s discretion: “When called upon to review a trial court’s rejection or acceptance
of a specific jury instruction, this Court generally applies an abuse of discretion standard.” State
v. McGuire, 200 W. Va. 823, 828, 490 S.E.2d 912, 917 (1997) (citation omitted). Also,

       [i]n reviewing the adequacy of a trial court’s choice and selection of jury
       instructions, we accord the trial court much discretion and will not reverse
       provided that the instructions, taken as a whole, adequately state the controlling
       law. Furthermore, the trial court has broad discretion in determining the wording
       of the jury instructions. As long as the jury instructions given by the trial court
       adequately and accurately cover the substance of the requested instructions, there
       is no abuse.

State v. Derr, 192 W. Va. 165, 179, 451 S.E.2d 731, 745 (1994) (citation omitted).

        Here, the jury’s questions centered on the malice instruction, to which petitioner did not
object, and involuntary manslaughter, on which the court did not instruct. Petitioner fails to
explain how these questions indicate that the attempted voluntary manslaughter instruction was
confusing. Likewise, petitioner offers no explanation as to how the jury foreperson’s mistake in
completing the verdict form signals confusion regarding the instruction given. In fact, aside from
arguing, in essence, that the instruction was presumptively confusing because the jury had
questions about unrelated instructions and incorrectly completed the verdict form—a mistake the
jury immediately caught and corrected—petitioner offers no analysis of the challenged
instruction, nor does he quote it or identify the purportedly confusing elements. As a result,
petitioner has failed to demonstrate an abuse of the court’s discretion in giving the attempted
voluntary manslaughter instruction.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.




       When a litigant deems himself or herself aggrieved by what he or she considers to
       be an important occurrence in the course of a trial or an erroneous ruling by a trial
       court, he or she ordinarily must object then and there or forfeit any right to
       complain at a later time.

State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). For this additional reason,
we decline to consider petitioner’s claim concerning the attempted second-degree murder
instruction.



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ISSUED: June 18, 2020

CONCURRED IN BY:

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




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