                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    May 15, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0729 (Mingo County 13-F-67)                                         OF WEST VIRGINIA


Donald K. Medley,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Donald K. Medley, by counsel Susan J. Van Zant, appeals the Circuit Court of
Mingo County’s “Sentencing Order,” entered on June 10, 2014, following petitioner’s jury trial
convictions of first degree murder and concealment of a deceased human body. Respondent State
of West Virginia, by counsel Christopher S. Dodrill, 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

        The victim of petitioner’s offenses was Evelyn Farnum, with whom petitioner shared a
home in Mingo County. At the time of the offenses, petitioner was forty-five years old and the
victim was fifty-five years old. The evidence at trial was that on December 30, 2012, the victim
spent the day with her daughter, Andrea Ferris, at Ms. Ferris’ home doing various home
improvement projects. Ms. Ferris drove her mother home, dropped her off at about 10:00 p.m.,
and left around 10:30 p.m. After returning to her home, Ms. Ferris called her mother’s residence
and petitioner answered. Ms. Ferris asked to speak to her mother and petitioner stated that she
was “passed out.” Ms. Ferris asked petitioner to wake her up and petitioner stated that “she won’t
wake up.”
        The following day, petitioner went to Ms. Ferris’ residence and informed her that her
mother “took off last night” and that he did not know where she went. According to Ms. Ferris,
petitioner was shaking throughout the morning and drinking heavily, to the point that she asked
him to leave because he was cursing and scaring her young children. Petitioner left Ms. Ferris’
residence around 5:00 or 6:00 p.m.
       The next morning, January 1, 2013, Ms. Ferris went to her mother’s residence to check
on her because her vehicle was still not there. Ms. Ferris encountered petitioner sitting on the

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sofa “zoned out” with no lights or television on. She noticed that her mother’s purse, cell phone,
and cigarettes were still in her bedroom. Ms. Ferris left the residence and returned around noon
with her two aunts. Petitioner denied knowing anything about the victim’s whereabouts. At that
point, Ms. Ferris filed a missing persons report with the West Virginia State Police.
        On January 4, 2013, the police received a call from Jonathan and Jeffrey Harrison,
friends of petitioner and petitioner’s brother. The Harrisons told the police that they saw
petitioner push the victim’s Jeep into Laurel Lake near their residence. Petitioner’s brother, Greg
Medley, was at the Harrison’s residence and advised the police that petitioner had come there
and said he needed help getting rid of the victim’s body and to meet him at Laurel Lake. The
police recovered the Jeep from the lake with the victim’s body inside. Her autopsy revealed that
she died from manual strangulation with “additional evidence of assaultive injuries of the face
and head.”
        On January 5, 2013, petitioner gave a statement to the police and confessed to the
victim’s murder and concealment of her body. He stated that he and the victim had been arguing
and that the victim slapped him. Petitioner stated that he “just flew off . . . grabbed her neck an
[sic] choked her[.]” Petitioner also stated that he hit her in the head. Finally, he admitted that
once he realized she was dead he put her on the floor of her Jeep and pushed the Jeep into the
lake.
       Petitioner was indicted for first degree murder and concealment of a deceased human
body. Following a jury trial in May of 2014, he was convicted of both charges. By order entered
on June 10, 2014, the circuit court sentenced petitioner to life in prison with mercy for first
degree murder and one to five years in prison for concealment of a deceased human body, with
the two sentences to run consecutively. Petitioner now appeals to this Court.
                                                Discussion
        On appeal, petitioner raises nine assignments of error, which we condense into six
separate issues for our discussion. First, petitioner challenges the circuit court’s admission of his
statement to the police because he was questioned without the presence of an attorney. The
record reflects that petitioner signed a Miranda rights waiver form at 6:00 p.m. on January 5,
2013, and in doing so, waived his right to have an attorney present at that time. After seventeen
minutes of questioning by the police, petitioner stated that he no longer wished to talk and the
police ended the questioning. However, approximately two hours later, petitioner signed another
waiver form, and during the following ten minutes of questioning, confessed to the murder and
concealment of the victim’s body. Petitioner fails to demonstrate how his second Miranda rights
waiver was not voluntary, knowing, or intelligently made. Petitioner also argues that, because his
IQ is between 52 and 70, he was likely to give a false confession. However, he provides nothing
other than this conclusory statement to challenge the admission of his statement. Accordingly,
we see no basis to find that the circuit court erred in allowing the jury to hear petitioner’s
confession.

         Second, petitioner argues that there was insufficient evidence for the jury to convict him
of first degree murder because the State failed to prove malice or premeditation. He argues that,
because the medical examiner determined that the victim’s death was by strangulation, there was
insufficient time for the death to be premeditated. With respect to malice, or lack thereof, he
argues that Ms. Ferris testified that when she dropped her mother off at petitioner’s residence on
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December 30, 2012, nothing seemed wrong and there was no argument between the victim and
petitioner at that time.

       With respect to the sufficiency of the evidence, we have held as follows:

                The function of an appellate court when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence admitted at
       trial to determine whether such evidence, if believed, is sufficient to convince a
       reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the
       relevant inquiry is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found the essential
       elements of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Additionally, we held that

               [a] criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.

Syl. Pt. 3, id. “To warrant interference with a verdict of guilt on the ground of insufficiency of
the evidence, the court must be convinced that evidence was manifestly inadequate and that
consequent injustice has been done.” State v. Craft, 165 W.Va. 741, 748, 272 S.E.2d 46, 51
(1980). Regarding premeditation, we have stated that direct proof thereof is seldom possible and
that generally it can be proved only by circumstantial evidence. See State v. Blevins, 231 W.Va.
135, 152-53, 744 S.E.2d 245, 262-63 (2013).

        Upon our review, the record below does not support petitioner’s argument that the State
failed to establish premeditation or malice at trial. The jury heard that there had been trouble
between petitioner and the victim in the days leading to her death. In addition, the jury heard
petitioner’s statement to the police that they argued, it escalated, and that he strangled her to
death. Finally, petitioner’s brother testified that he watched petitioner push the Jeep into the lake.
The jury could infer from this evidence that petitioner had sufficient time to form the intent to
kill. Accordingly, we find that the evidence was sufficient to sustain the jury’s verdict.
        Third, petitioner argues that the circuit court gave conflicting instructions on the
definition of premeditation. Specifically, he argues that Instruction No. 2, which was offered by
the State after the jury requested the definition of premeditation during its deliberation, was
inconsistent with our holding in Guthrie and conflicted with the circuit court’s Instruction No. 7,
which was also given to the jury.

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       In Syllabus Points 5 and 6 of Guthrie, we held as follows:

       5.      Although premeditation and deliberation are not measured by any
       particular period of time, there must be some period between the formation of the
       intent to kill and the actual killing, which indicates the killing is by prior
       calculation and design. This means there must be an opportunity for some
       reflection on the intention to kill after it is formed.

       6.      In criminal cases where the State seeks a conviction of first degree murder
       based on premeditation and deliberation, a trial court should instruct the jury that
       murder in the first degree consists of an intentional, deliberate, and premeditated
       killing which means that the killing is done after a period of time for prior
       consideration. The duration of that period cannot be arbitrarily fixed. The time in
       which to form a deliberate and premeditated design varies as the minds and
       temperaments of people differ and according to the circumstances in which they
       may be placed. Any interval of time between the forming of the intent to kill and
       the execution of that intent, which is of sufficient duration for the accused to be
       fully conscious of what he intended, is sufficient to support a conviction for first
       degree murder. To the extent that State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70
       (1982), is inconsistent with our holding today, it is expressly overruled.

194 W.Va. at 664, 461 S.E.2d at 170.

        Petitioner concedes that the circuit court’s instruction on premeditation was proper, but
contends that it conflicted with State’s Instruction No. 2. We disagree. The State’s definition of
premeditation stated that “in order to constitute a ‘premeditated’ murder and intent to kill need
exist for only an instant.” As the State points out in its brief to this Court, the quoted language is
taken directly from Billotti v. Dodrill, 183 W.Va. 48, 394 S.E.2d 32 (1990), which is still good
law. Petitioner fails to demonstrate how the language from Billotti is inconsistent with the circuit
court’s instruction. Accordingly, we see no error with respect to the circuit court’s inclusion of
State’s Instruction No. 2. in its instructions to the jury.

        The fourth issue that petitioner raises on appeal is that the State withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). First, he contends that the State
failed to produce fingernail clippings that were taken from the victim’s body by the medical
examiner during the autopsy. Second, he contends that evidence of blood splatters from his and
the victim’s residence were never tested to determine if the blood belonged to petitioner or some
third person. Third, he contends that fingerprints taken from the victim’s vehicle were never
tested.

        Upon our review, we reject petitioner’s claimed Brady violations. In Syllabus Point 2 of
State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007), we held that

              [t]here are three components of a constitutional due process violation
       under [Brady v. Maryland] and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402

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       (1982): (1) the evidence at issue must be favorable to the defendant as
       exculpatory or impeachment evidence; (2) the evidence must have been
       suppressed by the State, either willfully or inadvertently; and (3) the evidence
       must have been material, i.e., it must have prejudiced the defense at trial.

Petitioner fails to establish any of the three requirements quoted above. He admits that he does
not know whether the undisclosed evidence mentioned above would have been exculpatory; he
cannot show that the State suppressed it; and he cannot show that the evidence was material such
that the nondisclosure prejudiced him at trial.

       Fifth, petitioner argues that the State failed to preserve the victim’s cellular telephone, the
contents of which were reviewed by the investigating officer. Petitioner states that the State
never produced the victim’s cell phone despite being ordered to do so by the circuit court. He
contends that he was not afforded the same opportunity to review the contents of the phone
because the phone was “lost.”

        Insofar as petitioner alleges that the failure to preserve the phone violates our holding in
State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995), we disagree.1 Assuming arguendo
that the phone would have been subject to disclosure under either the West Virginia Rules of
Criminal Procedure or case law and that the State had a duty to preserve the phone, the next
question is what consequences should flow from that breach. See Syl. Pt. 2, id. To this end, we
examine “(1) the degree of negligence or bad faith involved; (2) the importance of the missing
evidence considering the probative value and reliability of secondary or substitute evidence that
remains available; and (3) the sufficiency of the other evidence produced at the trial to sustain
the conviction.” Id., in part. Upon our review, we note that the circuit court conducted a pre-trial
hearing regarding the phone and learned from the victim’s daughter that, after reviewing the
contents of the phone with the police, the police returned the phone to her. According to the
daughter’s testimony, the phone “was a Walmart flip-phone; just one of them pre-paid pay-as­
you-go phones,” and that the last time it was used was weeks before the murder and there was
nothing relevant on the phone. The daughter further explained that poor cell service limited her
mother’s use of the phone. The police never catalogued the phone as potential evidence; it was
not introduced as evidence at trial; and it played no role in the State’s case against petitioner.
Accordingly, we see no error with regard to the State’s failure to preserve the victim’s cell
phone.

        Petitioner’s final assignment of error is that he was prejudiced by the cumulative effect of
the circuit court’s various errors. See Syl. Pt. 5, 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 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.”). Upon our review, petitioner fails to identify any error, let alone cumulative error
sufficient to demonstrate that he was denied a fair trial.

       1
         Petitioner does not cite or refer to Osakalumi in his brief; however, because Osakalumi
addresses the State’s failure to preserve evidence, it is necessary to address petitioner’s argument
within the context of the case.
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      For the foregoing reasons, we affirm.

                                                   Affirmed.

ISSUED: May 15, 2015

CONCURRED IN BY:

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




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