                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                     October 20, 2015
                                                                              RORY L. PERRY II, CLERK
vs) No. 14-0952 (McDowell County 10-F-50)                                   SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Luther Franklin Meadows,
Defendant Below, Petitioner

                              MEMORANDUM DECISION
        Petitioner Luther Franklin Meadows, by counsel R. Thomas Czarnik and Phillip
Scantlebury, appeals the Circuit Court of McDowell County’s September 15, 2014, order
resentencing him to a term of incarceration of fifteen years to life based on his conviction by a
jury in 2012 of one count of first-degree murder with a recommendation of mercy. The State of
West Virginia, by counsel Laura Young, filed a response in support of the circuit court’s order.
On appeal, petitioner argues that (1) the circuit court erred in improperly admitting evidence in
violation of Rule 404(b) of the West Virginia Rules of Evidence1 and in failing to grant a mistrial
based on the alleged Rule 404(b) violation; (2) his trial counsel was constitutionally ineffective;
and (3) cumulative error prevented him from receiving a fair trial.2

        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.

        The parties do not dispute the underlying facts of this case. On September 15, 2009,
petitioner drove to the home of Thomas Roberts (“victim”), which was a trailer owned by

       1
        We note that the West Virginia Rules of Evidence were amended as approved by this
Court’s June 2, 2014, Order and became effective on September 2, 2014. All references to Rule
404(b) herein are based on the rule as it existed during the pendency of this case.
       2
         In this appeal, petitioner raises six separate assignments of error, four of which relate to
the circuit court’s procedure for the admission of evidence, allegedly in violation of Rule 404(b)
of the West Virginia Rules of Evidence, and failure to grant a mistrial based on the prosecutor’s
presentation of this evidence to the jury during his opening statement. Notably, in his brief to this
Court, petitioner provides a single discussion addressing these four assignments of error, and the
State responds in the same fashion. As these four assignments of error are clearly related on the
Rule 404(b) issue, we address them together.


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petitioner, and fatally shot the victim in the head from a distance3 as he exited that home.
Petitioner then asked a neighbor to call 911, and he remained at the scene of crime until law
enforcement officers arrived. Shortly thereafter, officers arrived and arrested petitioner on the
charge of murder. According to the officers’ testimony at trial, at the time of petitioner’s arrest,
officers asked him about the gun used in the shooting, and he stated that he “had four more
subjects . . . to take care of, and, if [officers] wanted the weapon off him, come and get it.”
Officers then retrieved a handgun from petitioner’s pocket and took the same into evidence.
Following his arrest, petitioner was given a Miranda4 warning, and he signed a written waiver of
those rights. In his subsequent statement, petitioner relayed that he had shot the victim, and he
further described an incident occurring on September 4, 2009, wherein he entered the victim’s
home with the intent to murder him. During the incident on September 4, 2009, petitioner placed
a gun to the victim’s head while he slept, but petitioner did not shoot when he realized his
grandson was present. Petitioner was subsequently indicted on one count of first-degree murder
related to the shooting.

        In May of 2012, the circuit court held a plea hearing. Petitioner had agreed with the State
to enter a plea of guilty to voluntary manslaughter. Under the terms of the plea agreement, the
State would have recommended fifteen years in prison. However, during the hearing, petitioner
changed his mind about pleading guilty, and he moved for new counsel. The circuit court did not
accept the proposed plea agreement and granted petitioner’s motion for new counsel.

        In September of 2012, petitioner’s jury trial commenced. In his opening statement, the
prosecutor told the jury that petitioner deliberately and with premeditation killed the victim. As
evidence of deliberation and premeditation, the prosecutor cited petitioner’s statement in which
he confessed to the shooting and described previously entering the victim’s home with the intent
to murder him. Following the State’s opening statement, petitioner objected to the evidence of
petitioner’s actions of entering the victim’s home on September 4, 2009, as inadmissible under
Rule 404(b) and moved for a mistrial at that time. The circuit court found that the evidence at
issue did not fall under Rule 404(b), overruled the objection, and denied the motion for a
mistrial. Petitioner’s counsel chose not to give an opening statement.

        During its case-in-chief, the State presented evidence that the victim was living with
petitioner’s daughter. The evidence showed that petitioner was angry at the victim because he
had returned items petitioner had purchased for his grandson and kept the money from those
returned items for himself and that the victim had driven a vehicle petitioner provided for his
daughter. Witnesses testified that petitioner threatened the victim on the day of the shooting and
that petitioner referred to the victim as a “freeloading son of bitch” prior to the shooting. Without
objection, the circuit court admitted petitioner’s statement to officers following his arrest
wherein he admitted to the shooting and to be angry with the victim. In his case-in-chief,
petitioner testified in conformity with his statement. He further provided the detail that he shot
the victim from a distance. Petitioner also described the incident that occurred on September 4,
       3
        The exact distance between petitioner and the victim is unclear from the record on
appeal, but petitioner testified at trial that he shot the victim from a distance.
       4
           See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).


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2009, in the victim’s home. In its closing argument, the State argued that the jury should
consider petitioner’s actions prior to the murder in rendering its verdict. The jury returned a
verdict of guilty of one count of first-degree murder and recommended mercy. This appeal
followed.

        This Court has explained that “‘[r]ulings on the admissibility of evidence are largely
within a trial court’s sound discretion and should not be disturbed unless there has been an abuse
of discretion.’ State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983).” Syl. Pt. 1,
State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011) (internal citations omitted). With these
standards in mind, we now turn to petitioner’s assignments of error.

       On appeal, petitioner first assigns error to the circuit court’s admission of evidence,
which he claims violated Rule 404(b), that he entered the victim’s home on September 4, 2009,
with the intent to murder him but chose not to do so at that time.5 We have held that

               [w]here improper evidence of a nonconstitutional nature is introduced by
       the State in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State’s case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial
       minds of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining
       evidence is found to be insufficient, the error is not harmless; (3) if the remaining
       evidence is sufficient to support the conviction, an analysis must then be made to
       determine whether the error had any prejudicial effect on the jury.

Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). In this case, if we remove the
allegedly inadmissible Rule 404(b) evidence, the remaining evidence of petitioner’s actions was
sufficient to convince impartial minds of his guilt beyond a reasonable doubt. Petitioner was
located at the scene of the shooting with a handgun; he confessed in his statement to officers,
which was admitted into evidence without objection, that he shot the victim from a distance, as
the victim exited his home; and he testified at trial that he was angry with the victim and shot
him at a distance. Further, given the substantial evidence presented at trial without objection that
petitioner harbored anger towards the victim and acted upon that anger by shooting him, we find
no additional prejudicial effect on the jury from the admission of evidence of the September 4,


       5
           Rule 404(b) of the West Virginia Rules of Evidence provides as follows:

       Other crimes, wrongs, or acts.—Evidence of other crimes, wrongs, or acts is not
       admissible to prove the character of a person in order to show that he or she acted
       in conformity therewith. It may, however, be admissible for other purposes, such
       as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident, provided that upon request by the accused, the
       prosecution in a criminal case shall provide reasonable notice in advance of trial,
       or during trial if the court excuses pretrial notice on good cause shown, of the
       general nature of any such evidence it intends to introduce at trial.



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2009, incident. Therefore, even if the 404(b) evidence was admitted in error, that error was
harmless beyond a reasonable doubt, and we will not set aside the jury verdict on that ground.

        As to the circuit court’s denial of petitioner’s motion for a mistrial, we have held that
“[t]he decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is
a matter within the sound discretion of the trial court.” Syl. pt. 8, State v. Davis, 182 W.Va. 482,
388 S.E.2d 508 (1989). “A trial court is empowered to exercise this discretion only when there is
a ‘manifest necessity’ for discharging the jury before it has rendered its verdict.” State v.
Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983). In this case, petitioner moved for a
mistrial based on the prosecutor’s use of the allegedly inadmissible Rule 404(b) evidence in his
opening statement. However, the prosecutor also gave a statement of the remaining,
overwhelming evidence present in this case. Because the allegedly inadmissible Rule 404(b)
evidence was not prejudicial given the remaining evidence presented, we find no abuse of
discretion in the circuit court’s ruling. The manifest necessity to declare a mistrial did not exist in
this case.

        Petitioner’s next assignment of error is that he was provided constitutionally ineffective
assistance of trial counsel. We addressed this issue in Syllabus Point 10 of State v. Triplett, 187
W.Va. 760, 421 S.E.2d 511 (1992), as follows:

               It is the extremely rare case when this Court will find ineffective
       assistance of counsel when such a charge is raised as an assignment of error 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.

Upon our review of the briefing and record on appeal, we find that this issue is better suited for a
petition for writ of habeas corpus through which petitioner may more fully develop the record of
his allegations.

        Petitioner’s final assignment of error is that the cumulative effect of numerous errors
committed during his trial prevented him from receiving a fair trial. Cumulative error demands
attention “[w]here 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, [and the]
conviction should be set aside, even though any one of such errors standing alone would be
harmless error.” Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). However,
assuming the circuit court committed harmless error in admitting evidence in violation of Rule
404(b) as explained above, this single instance of harmless error in petitioner’s trial cannot be
said to amount to cumulative error depriving him of a fair trial. As petitioner has failed to prove
error committed at his trial, we find no occasion to set his conviction aside based on the
cumulative error doctrine.

       For the foregoing reasons, the circuit court’s September 15, 2014, order is hereby
affirmed.


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                                                                                        Affirmed.

ISSUED: October 20, 2015

CONCURRED IN BY:

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

DISSENTING AND WRITING SEPARATELY:

Justice Menis E. Ketchum


         I dissent. I understand that “[i]t is the extremely rare case when this Court will find
ineffective assistance of counsel when such a charge is raised as an assignment of error on a
direct appeal.” However, it is also the extremely rare case when counsel for a criminal defendant
fails to give an opening statement, fails to properly argue “heat of passion” or self-defense in a
murder case under these facts, calls only the defendant and the defendant’s grandson to testify on
his behalf, and has his law license annulled shortly after the trial. While petitioner likely would
not have avoided all culpability with a better defense, his attorney should have, at a minimum,
presented the jury with a case against the malice element of first- and second-degree murder. See
State v. Wilson, 95 W.Va. 525, 531, 121 S.E. 726, 729 (1924) (stating that “[t]he distinguishing
feature between murder and manslaughter is that murder comes from the wickedness of the
heart, and manslaughter, where voluntary, arises from the sudden heat of passion” due to gross
provocation); State v. Starkey, 161 W.Va. 517, 527 n.7, 244 S.E.2d 219, 225 n.7 (1978) (stating
that “[i]t is important to note that provocation is not a defense to the crime [of voluntary
manslaughter], but merely reduces the degree of culpability[.]” (Citations omitted).

        Moreover, petitioner claimed that the victim knocked him down several days before the
shooting and that, at the time of the incident, the victim was running and yelling at petitioner,
which prompted petitioner to shoot him. Given these claims, petitioner’s attorney should have
presented the jury with a proper “heat of passion” or self-defense argument. Therefore, I would
bring this case in for oral argument on the issue of whether petitioner’s trial counsel was per se
ineffective, based on the record before us.




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