STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED Plaintiff Below, Respondent November 20, 2015 

RORY L. PERRY II, CLERK vs) No. 14-1180 (Mingo County 13-F-98) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

James Messer,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner James Messer, by counsel Karen S. Hatfield, appeals from the October 23, 

2014, Sentencing Order entered by the Circuit Court of Mingo County following petitioner’s 

convictions of two counts of burglary, one count of second degree robbery, and one count of 

conspiracy. The Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a 

response. Petitioner filed a reply. 

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. 

Factual Background 

In April of 2013, petitioner was indicted for the burglary of the residence of Ronnie 

Glenn and Leigh Ann Richardson (Count 1); conspiracy with co-defendant, Danny Colegrove, 

for the burglary of the Richardson residence (Count 2); first degree robbery of William and 

Vicky Evans (Count 3); burglary of the Evans residence (Count 4); and conspiracy with 

Colegrove for the burglary of the Evans residence (Count 5). The case proceeded to a jury trial in 

August of 2014. 

The State’s theory at trial was that on December 7, 2012, petitioner and Colegrove met 

and proceeded together to the Richardson residence. Upon arriving there, petitioner and 

Colegrove broke into the residence through a rear door. The State alleged that the two men stole 

guns from a gun cabinet and pills from the bottom drawer of the gun cabinet. Colegrove suffered 

lacerations to his hand as a result of breaking the glass on the gun cabinet and required treatment 

at a local hospital. On the way to the hospital, the two men stopped at the residence of 

Colegrove’s grandfather and spoke with the grandfather about moving some items from their 

vehicle into the grandfather’s vehicle. Petitioner then moved some guns into the grandfather’s 

vehicle before proceeding to the hospital, which was approximately twenty-five minutes away. 

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Once at the hospital, the two men were questioned by Corporal Edwin Lee Williams of 

the Mingo County Sheriff’s Department, who had already begun investigating the burglary of the 

Richardson residence. After Colegrove received treatment for his hand, petitioner and Colegrove 

left the hospital at approximately 11:21 p.m. 

The State alleged that at approximately 12:00 p.m. on December 8, 2012, the two men 

arrived at the Evans residence, which is adjacent to Colegrove’s grandfather’s residence. The 

State alleged that petitioner and Colegrove, wearing ski masks, robbed Mr. and Mrs. Evans and 

Mrs. Evans’s mother. Petitioner and Colegrove bound Mrs. Evans’ and her mother’s hands with 

tape, forced Mr. Evans to lie on the floor, and forced Mr. Evans, at gunpoint, to reveal the 

combination to his safe. Mr. Evans later identified the handgun as the same type of gun (a 

revolver) stolen from the Richardson residence. Additionally, Mr. Evans, having lived next to 

Colegrove’s grandfather, was able to identify Colegrove’s voice during the robbery. Mr. Evans 

could not readily identify petitioner as the other assailant, but indicated that Colegrove referred 

to him as “J.” 

Corporal Williams testified that he received a call about a break-in at the Richardson 

residence on December 7, 2012, at approximately 8:00 p.m. Upon inspecting the residence, he 

identified that the rear door had been pried open or kicked in; that someone had taken pills and 

several guns, including two shotguns, a rifle, and a .38-special revolver;1 and that the glass on the 

gun cabinet had been broken and there was blood on the carpet below. Corporal Williams 

notified dispatch and asked that he be advised of anyone reporting to a local hospital with 

lacerations. Soon thereafter, upon being notified by dispatch, Corporal Williams traveled to 

Appalachian Regional Hospital and spoke with Colegrove, petitioner, and petitioner’s girlfriend. 

Corporal Williams left the hospital after about fifteen minutes. 

Around midnight, Corporal Williams received a call about the incident at the Evans 

residence, which is located approximately twenty minutes from the hospital.2 Corporal Williams 

took statements from Mr. and Mrs. Evans, wherein Mr. Evans indicated that he recognized 

Colegrove as one of the perpetrators because he was able to recognize Colegrove’s voice; that 

the pair of assailants took approximately $1,500 in cash and assorted jewelry; and that the 

assailants gained access to the safe by threatening to “blow his head off” if he did not provide the 

correct combination. 

1 Mr. Richardson testified that he had purchased the pistol from petitioner and that 

petitioner would have known the location of the gun cabinet in the residence. 

2 Petitioner contended during cross-examination of Corporal Williams that Colegrove’s 

medical records proved it was impossible that the pair could travel to the Evans residence in such 

a short time frame. Petitioner argued that the records indicated that they left the hospital at 11:48 

p.m., meaning they could not have committed a robbery twenty minutes away at midnight. 

However, the State countered that the records actually indicated that the trio left the hospital at 

11:21 p.m., and that the 11:48 p.m. time was purely a dispositional status time to complete the 

report. 

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Corporal Williams testified that, upon contacting Colegrove’s grandfather, he learned that 

Colegrove and petitioner had placed guns in the back of the grandfather’s vehicle. Soon 

thereafter, Corporal Williams received a call from Colegrove, who asked if he could “work out a 

deal.” Corporal Williams then met Colegrove, who gave a statement identifying himself and 

petitioner as the perpetrators of the Richardson burglary. 

The State called Colegrove to testify as a hostile witness. Colegrove’s trial testimony 

differed from his statement to Corporal Williams. Colegrove testified that he and petitioner were 

good friends; that he and petitioner went to the Richardson residence to buy drugs; that he let 

himself in after realizing no one was home; and that petitioner remained in the vehicle. Over 

petitioner’s objection, the circuit court permitted the State to play the video of Colegrove’s 

statement to Corporal Williams for the jury. Despite the inconsistencies between his statement 

and his trial testimony, Colegrove continued to refuse to implicate petitioner in any of the crimes 

charged, stating that he falsely implicated petitioner in his statement due to a “falling out” or 

“altercation” the two had had involving a woman. 

After hearing testimony from Mr. and Mrs. Richardson regarding the items stolen from 

their residence and their estimated values, the State called Mr. Evans to testify. Mr. Evans 

testified that he knew Colegrove and could identify his voice during the robbery, despite the fact 

that both assailants were wearing ski masks, gloves, and jackets. Mr. Evans testified that 

Colegrove referred to the other assailant as “J.” He identified the pistol used in the crime as 

resembling a .38 revolver. He added that the assailants duct-taped his hands along with his wife’s 

and mother-in-law’s hands before leaving the residence. Mrs. Evans testified consistent with her 

husband and identified “J” as being slightly taller than five feet five inches with dark eyes. 

The State rested its case, and petitioner moved for a judgment of acquittal on the basis of 

insufficient evidence, which the circuit court denied. Petitioner then rested his case and renewed 

his motion for judgment of acquittal, which the court denied. The jury deliberated for 

approximately an hour before finding petitioner guilty on Counts 1, 3, 4, and 5. As to the 

robbery, the jury found petitioner guilty of second degree robbery, rather than first degree 

robbery as charged in the indictment. Finally, the jury acquitted petitioner on Count 2, 

conspiracy for the burglary of the Richardson residence. 

By order entered on October 23, 2014, the circuit court sentenced petitioner to one to 

fifteen years in prison for each count of burglary and five to eighteen years in prison for second 

degree robbery, with all three counts to run consecutively. The court sentenced petitioner to one 

to five years in prison for conspiracy, to run concurrently with the first burglary count. Petitioner 

now appeals to this Court. 

Discussion 

Petitioner raises twenty-two assignments of error on appeal. First, he contends that the 

circuit court violated his constitutional right to a speedy trial by continuing his trial without just 

cause. Petitioner states that he remained incarcerated from his arrest on December 20, 2012, to 

his trial in August of 2014, and that neither the State nor he requested a continuance. Petitioner 

contends that, because of the delay, the transcript of the Evans’s 911 call became unavailable and 

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it would have established a clear timeline that showed that it was impossible for petitioner to 

have committed the robbery. 

Article III, Section 14 of the West Virginia Constitution requires that an accused have a 

trial “without unreasonable delay.” In syllabus point six of State v. Elswick, 225 W.Va. 285, 693 

S.E.2d 38 (2010), this Court held as follows: 

“A determination of whether a defendant has been denied a trial without 

unreasonable delay requires consideration of four factors: (1) the length of the 

delay; (2) the reasons for the delay; (3) the defendant’s assertion of his rights; and 

(4) prejudice to the defendant. The balancing of the conduct of the defendant 

against the conduct of the State should be made on a case-by-case basis and no 

one factor is either necessary or sufficient to support a finding that the defendant 

has been denied a speedy trial.” Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 

S.E.2d 829 (1982). 

In the present case, petitioner was indicted on April 24, 2013, and the matter proceeded to 

a jury trial on August 5 and 6, 2014. He was appointed counsel three times. Attorney Jerry Lyall 

was originally appointed the day following petitioner’s indictment, and filed a motion to 

withdraw on October 25, 2013, which was granted. It appears that Attorney Lyall and petitioner 

had a disagreement regarding the presentation of a plea offer, which petitioner characterized as 

Attorney Lyall trying to “set him up.” The circuit court then appointed Attorney Diana CarterWeidel on November 7, 2013, who later identified a conflict and was permitted to withdraw on 

January 24, 2014. Petitioner’s current counsel, Attorney Karen S. Hatfield, was then appointed 

and took the case to trial. 

Accordingly, any delay in the case was due to the withdrawal of petitioner’s first two 

attorneys, not to any failures by the State or the court. As for the alleged prejudice, petitioner 

fails to demonstrate how the transcripts of the 911 tapes would support his position that he could 

not have committed the robbery at the Evans residence. Therefore, we see no violation of 

petitioner’s right to a speedy trial. 

In his second assignment of error, petitioner argues that there was a conflict of interest 

because Attorney Diana Carter-Weidel, who had been appointed to represent him for a short 

period, also represented Colegrove. Petitioner states that his and Colegrove’s interests were 

adverse given Colegrove’s statement to the police implicating petitioner in the crimes, and, thus, 

petitioner received ineffective assistance of counsel from Attorney Carter-Weidel. 

We have held that “[t]he joint representation by counsel of two or more accused, jointly 

indicted and tried is not improper per se; and, one who claims ineffective assistance of counsel 

by reason of conflict of interest in the joint representation must demonstrate that the conflict is 

actual and not merely theoretical or speculative.” Syl. Pt. 3, State ex rel. Postelwaite v. Bechtold, 

158 W.Va. 479, 212 S.E.2d 69 (1975). “In a case of joint representation, once an actual conflict 

is found which affects the adequacy of representation, ineffective assistance of counsel is 

deemed to occur and the defendant need not demonstrate prejudice.” Syl. Pt. 4, Cole v. White, 

180 W.Va. 393, 376 S.E.2d 599 (1988). 

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In this case, Attorney Carter-Weidel was petitioner’s appointed counsel for only about a 

month before the potential conflict was discovered and petitioner was informed that she could 

not represent him. Petitioner fails to allege that Attorney Carter-Weidel actually communicated 

with him, worked on his case, or appeared on his behalf during this short period. Therefore, 

petitioner cannot demonstrate that a conflict of interest that “affect[ed] the adequacy of 

representation” as required by Cole to show ineffective assistance of counsel. We, accordingly, 

reject petitioner’s second assignment of error. 

Third, petitioner argues that the circuit court refused to remove an allegedly biased juror 

for cause as he requested, but dismissed two jurors that the State wanted dismissed. We have 

articulated the standard of review of this issue as follows: 

In reviewing the qualifications of a jury to serve in a criminal case, we follow a 

three-step process. Our review is plenary as to legal questions such as the 

statutory qualifications for jurors; clearly erroneous as to whether the facts 

support the grounds relied upon for disqualification; and an abuse of discretion as 

to the reasonableness of the procedure employed and the ruling on 

disqualification by the trial court. 

State v. Miller, 197 W.Va. 588, 600-01, 476 S.E.2d 535, 547-48 (1996). In syllabus point four of 

Miller, we further held: 

The relevant test for determining whether a juror is biased is whether the 

juror had such a fixed opinion that he or she could not judge impartially the guilt 

of the defendant. Even though a juror swears that he or she could set aside any 

opinion he or she might hold and decide the case on the evidence, a juror's 

protestation of impartiality should not be credited if the other facts in the record 

indicate to the contrary. 

Additionally, 

“[w]hen a prospective juror makes a clear statement of bias during voir 

dire, the prospective juror is automatically disqualified and must be removed from 

the jury panel for cause. However, when a juror makes an inconclusive or vague 

statement that only indicates the possibility of bias or prejudice, the prospective 

juror must be questioned further by the trial court and/or counsel to determine if 

actual bias or prejudice exists. Likewise, an initial response by a prospective juror 

to a broad or general question during voir dire will not, in and of itself, be 

sufficient to determine whether a bias or prejudice exists. In such a situation, 

further inquiry by the trial court is required. Nonetheless, the trial court should 

exercise caution that such further voir dire questions to a prospective juror should 

be couched in neutral language intended to elicit the prospective juror's true 

feelings, beliefs, and thoughts—and not in language that suggests a specific 

response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the 

circumstances must be considered, and where there is a probability of bias the 

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prospective juror must be removed from the panel by the trial court for cause.” 

Syllabus point 8, State v. Newcomb, 223 W.Va. 843, 679 S.E.2d 675 (2009). 

Syl. Pt. 2, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013). 

The record reveals that the circuit court struck two jurors for cause because of their close 

relationship with petitioner’s trial counsel. As a result of this relationship, these two jurors stated 

that they would be uncomfortable rendering a verdict for the State. Petitioner sought to remove a 

juror who stated that he had a working relationship with the prosecutor fifteen years before the 

trial but who had not kept in contact with him since then. Contrary to the two jurors removed by 

the court, this juror expressed no concern over his ability to render a fair verdict, and the circuit 

court refused to strike him for cause. Based upon our review of the record, we see no error by the 

circuit court in it rulings on the parties’ respective motions to strike certain jurors. 

Petitioner’s fourth and twelfth assignments of error similarly contend that the jury’s 

verdict was contrary to the manifest weight of the evidence because the only evidence 

implicating petitioner was Colegrove’s “false” statement. He argues that none of the alleged 

victims could implicate him in the crimes charged. This Court has long held that 

[t]he 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 have 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. 

In this case, the jury was free to place more weight on Colegrove’s pretrial statement to 

the police clearly implicating petitioner than his completely inconsistent trial testimony that 

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attempted to exonerate him. However, even excluding Colegrove’s pretrial statement, the trial 

evidence suggested that petitioner was with Colegrove on the night of the crimes; that only 

petitioner knew the location of the gun cabinet in the Richardson residence; and that petitioner 

assisted in moving the guns into his grandfather’s vehicle. As for the robbery, Mrs. Evans 

testified that Colegrove referred to his accomplice as “J” and her description of the accomplice’s 

height and build matched that of petitioner. Additionally, the evidence suggested that the 

revolver used in the robbery was the same one stolen from the Richardson residence. Upon our 

review of the record and being mindful of the deference afforded to all inferences and credibility 

assessments made by the jury, we find that the evidence, albeit circumstantial, was sufficient to 

sustain petitioner’s convictions. 

In his fifth and twentieth assignments of error, petitioner contends that the circuit court 

failed to suppress State’s evidence that was not timely disclosed. Petitioner states that he was 

provided the State’s witness list only five calendar days before the trial; that the State never 

disclosed an exhibit list until the start of trial, but was allowed to introduce its exhibits anyway; 

and that the State did not timely disclose Colegrove’s Crime Information Bureau (“CIB”) report, 

his plea deal, or his prior statements to police. Petitioner argues that these late disclosures 

hindered his ability to adequately prepare his defense. 

“The traditional appellate standard for determining prejudice for discovery violations 

under Rule 16 of the West Virginia Rules of Criminal Procedure involves 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.” Syl. Pt. 2, State ex rel. Rusen v. 

Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994). In the present case, the State admittedly had 

difficulty providing its witness list and witness CIB reports to petitioner in advance of trial. 

However, our review reveals that petitioner was provided the information at trial, and despite his 

assertions, was able to extensively use the documents in his defense. Specifically, petitioner 

exhaustively attacked Corporal William’s investigation, identifying information relating to 

petitioner, and Colegrove’s credibility and reasoning for initially implicating petitioner. 

Accordingly, we cannot find that petitioner’s defense was hampered such as to warrant a new 

trial. 

Sixth, petitioner argues that the valuation evidence of the stolen items lacked any basis 

and should have been excluded. Essentially, petitioner claims that the circuit court allowed the 

victims to testify to the value of the items stolen from their residences without requiring the State 

to first prove that the victims owned said items. Petitioner’s argument defies common sense. The 

victims testified to owning or possessing the items that were stolen and the costs they paid to 

purchase those items. Upon our review, we find that the victims’ testimony that they owned the 

stolen items was a sufficient basis for the circuit court to permit evidence of the value of the 

items. 

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In his seventh assignment of error, petitioner argues that the circuit court committed plain 

error3 when it permitted a tainted and suggestive identification of petitioner to be presented to the 

jury. The testimony about which petitioner complains came from Mrs. Evans, who testified that 

one of the robbers referred to his accomplice as “J,” and that “J” was a little taller than five foot 

five inches tall, with really dark brown eyes, and a “a little voice you won’t forget.” Petitioner 

contends that this testimony was unfairly prejudicial because Mrs. Evans never included such a 

description in her statement to the police at the time of the incident, but rather, mentioned it for 

the first time at trial. However, as respondent correctly states, Mrs. Evens never identified 

petitioner at trial; she testified to the facts of the robbery and to the characteristics of the 

accomplice as she perceived him. She never pointed to petitioner and testified that he was the 

one with Colegrove during the robbery. As such, we must reject petitioner’s argument. 

Petitioner’s eighth assignment of error is that the jury should not have been permitted to 

view the video of Colegrove’s statement to the police. Petitioner argues that the video was overly 

prejudicial and not warranted because Colegrove admitted on the stand that his testimony 

differed from his previous statement. Additionally, petitioner argues that the statement was made 

in a coercive atmosphere, as Colegrove was in a vehicle with two police officers who were 

asking him leading questions. 

“A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are 

subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 

W.Va. 58, 511 S.E.2d 469 (1998). In syllabus point seven of Rodoussakis, we further held that 

[a] videotaped interview containing a prior inconsistent statement of a 

witness who claims to have been under duress when making such statement or 

coerced into making such statement is admissible into evidence if: (1) the contents 

thereon will assist the jury in deciding the witness' credibility with respect to 

whether the witness was under duress when making such statement or coerced 

into making such statement; (2) the trial court instructs the jury that the 

videotaped interview is to be considered only for purposes of deciding the 

witness' credibility on the issue of duress or coercion and not as substantive 

evidence; and (3) the probative value of the videotaped interview is not 

outweighed by the danger of unfair prejudice. 

(Citation omitted). In the present case, we must first note that petitioner did not object to the 

substance of Colegrove’s statement being submitted to the jury; rather, his objection targeted the 

statement being submitted to the jury in the form of a video. Respondent states that Colegrove 

pled guilty to crimes associated with the Richardson burglary and the Evans robbery in exchange 

for his testimony in petitioner’s trial. However, once on the stand, Colegrove chose to remove 

3 “To 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.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 

(1995). 

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petitioner from every aspect of the crimes. The State then used Colegrove’s prior statement to 

impeach his trial testimony in order to attack his credibility, and at the conclusion of the 

evidence, the circuit court gave a general instruction regarding impeachment of witnesses. 

Accordingly, the circuit court did not abuse its discretion in allowing the video of Colegrove’s 

statement to be submitted to the jury. 

Ninth, petitioner argues that the State committed prosecutorial misconduct by 

withholding exculpatory evidence in the form of Colegrove’s medical records showing the exact 

time that Colegrove and petitioner left the hospital and the transcript of the 911 operator’s call to 

Corporal Williams informing him of the Evans burglary and robbery. Petitioner contends that 

these items would have demonstrated that it was impossible for the two men to have traveled 

from the hospital to the Evans’ residence in time to have committed the crimes there. Petitioner 

states that he did not receive Colegrove’s medical records until the day prior to the start of trial, 

and never received the transcript of the 911 call because Mingo County 911 destroys all 

transcripts after one year. 

The following three critical components must be considered when determining whether 

the State has withheld exculpatory evidence such as to violate an accused’s due process rights 

under Brady v. Maryland, 373 U.S. 83 (1963) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 

402 (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. 

Syl. Pt. 2, in part, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007). 

We find that petitioner’s argument fails under the first Brady component; that is, the 

evidence is not exculpatory or impeachment evidence. According to the hospital records, 

Colegrove’s treating physician noted Colegrove and petitioner left the hospital at 11:21 p.m. on 

the night of the crimes. In contrast, the final disposition of the report states that Colegrove was 

discharged and the report finalized at 11:48 p.m. The hospital records were provided to petitioner 

and introduced at trial, and he was able to use the records to build his argument for an alternate 

timeline in which he and Colegrove did not leave until the later time, making it nearly impossible 

for the two to have committed the crimes. However, petitioner’s argument fails to acknowledge 

that the records created an issue of fact for the jury to decide, i.e., whether the two left at 11:21 

p.m. or 11:48 p.m., and the jury did not accept petitioner’s theory of the later time. Therefore, the 

records did not exculpate petitioner. 

As for the transcript of the 911 call, we likewise find that the evidence fails under the 

Brady test above because it is speculative as to whether it was exculpatory; it was not suppressed 

by the State; and there is no indication that the evidence would have been material at trial. 

Petitioner’s quarrels with his initially-appointed counsel resulted in a large amount of time 

between the indictment and the appointment of his eventual trial counsel. During this time, there 

is no indication that the 911 transcript was requested by petitioner or was relevant to the State’s 

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investigation such that the State would preserve it. Petitioner relies on mere speculation that the 

transcript would serve to prove his theory that he could not have committed the crimes at the 

Evans residence. Therefore, we find no violation of Brady and reject petitioner’s ninth 

assignment of error. 

In his tenth assignment of error, petitioner contends that Corporal Williams should not 

have been permitted to testify because he had no connection to the chain of evidence, was biased 

against petitioner, and conducted an incomplete investigation. “The question of the competency 

of a witness to testify is left largely to the discretion of the trial court and its judgment will not be 

disturbed unless shown to have been plainly abused resulting in manifest error.” Syl. Pt. 8, State 

v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974). Even though Corporal Williams was not the 

officer who presented the case to the grand jury, contrary to petitioner’s assertions, he was 

intimately involved in the investigation of the crimes at issue. Additionally, petitioner crossexamined Corporal Williams based on petitioner’s perceived deficiencies in his police report. 

Accordingly, we find that the circuit court did not abuse its discretion in permitting Corporal 

Williams to testify. 

Petitioner’s eleventh assignment of error is that the circuit court committed plain error by 

allowing William and Vicky Evans to provide confusing and highly prejudicial testimony. 

Specifically, petitioner takes issue with the fact that neither Mr. nor Mrs. Evans could positively 

identify petitioner as one of the perpetrators, but rather, they believed petitioner was involved in 

the crimes solely because of their faith in the investigation by the police. 

Respondent counters that petitioner’s argument is “alarmingly without merit.” We agree. 

“Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit 

relevant evidence, but to exclude evidence whose probative value is substantially outweighed by 

the danger of unfair prejudice to the defendant.” Syl. Pt. 4, Gable v. Kroger Co., 186 W.Va. 62, 

410 S.E.2d 701 (1991). In the present, case both Mr. and Mrs. Williams testified to the details of 

a traumatic robbery, during which they were bound with tape and robbed at gunpoint. In addition 

to identifying the items stolen, they identified Colegrove as one of the perpetrators based upon 

their familiarity with his voice, and added that he referred to his accomplice as “J,” whose height 

and build matched that of petitioner. No doubt, their testimony was unfavorable to petitioner. 

However, upon our review, we cannot conclude that the probative value of Mr. and Mrs. Evans’s 

testimony was outweighed by its prejudice. 

Petitioner’s next argues that the circuit court erred by (1) allowing leading questions 

during the State’s direct examinations of its witnesses and (2) allowing inadmissible hearsay to 

be admitted into evidence. “The allowance of leading questions rests largely in the discretion of 

the trial court, and absent an abuse of such discretion, the trial court's ruling will not be 

disturbed.” Syl. Pt. 6, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982). Our review of 

the record reveals the circuit court sustained many of petitioner’s objections to the State using 

leading questions. However, the court allowed leading questions during the State’s examination 

of Colegrove and his grandfather. Importantly for our analysis, the State called Colegrove as an 

adverse witness, in which leading questions are permitted. See Syl. Pt. 1, State v. Perolis, 183 

W.Va. 686, 398 S.E.2d 512 (1990) (“When a party calls a hostile witness, an adverse witness, or 

a witness identified with an adverse party, interrogation may be by leading questions.”). As for 

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the examination of Colegrove’s grandfather, the record reveals that, at times, he was nonresponsive during the State’s questioning. Therefore, the State was required to reformulate, 

restructure, and, sometimes lead, the witness in order to elicit his testimony. As the State argues 

in its brief, the record suggests that this witness’s difficulty could have been age-related. 

Regardless, petitioner fails to convince us that these leading questions resulted in an abuse of 

discretion by the circuit court. 

As for the admission of improper hearsay evidence, petitioner argues that the victims 

were permitted to testify that their belief that petitioner was involved in the crimes was based on 

what they had been told by police, and that petitioner was convicted based on pure hearsay. We 

disagree. We have held that 

[g]enerally, out-of-court statements made by someone other than the 

declarant while testifying are not admissible unless: 1) the statement is not being 

offered for the truth of the matter asserted, but for some other purpose such as 

motive, intent, state-of-mind, identification or reasonableness of the party's 

action; 2) the statement is not hearsay under the rules; or 3) the statement is 

hearsay but falls within an exception provided for in the rules. 

Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990). Upon our review, we cannot 

conclude that the court erred by allowing this testimony. For one, this testimony was elicited by 

petitioner in cross-examination to attack the basis for the victim’s belief that petitioner was 

involved in the crimes. He attempted to benefit from its admission and now attempts to paint 

such admission as reversible error. Therefore, we reject petitioner’s argument that he was 

prejudiced by the admission of hearsay evidence. 

Petitioner’s fourteenth assignment of error is that the circuit court allowed the State to 

introduce a photograph of a gun cabinet, the video of Colegrove’s statement, and an audio 

recording of another telephone statement made by Colegrove to the police, all without a proper 

foundation. We reject petitioner’s argument and find no error. With respect to the photo of the 

gun cabinet, both Colegrove and Mr. Richardson corroborated that the photo was a truthful 

representation of the cabinet which was the subject of the theft. With respect to the recorded 

statements of Colegrove, petitioner fails to articulate how the recordings were not properly 

authenticated and identified prior to their use by the State; rather, he reiterates his previous 

argument that the recordings were improperly used to impeach Colegrove. 

As his fifteenth assignment of error, petitioner argues that it was plain error to allow 

Colegrove to testify in orange prison attire. We have held that “[a] criminal defendant has no 

constitutional right to have his witnesses appear at trial without physical restraints or in civilian 

attire.” Syl. Pt. 3, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), In 

syllabus point four of State v. Allah Jamaal W., 209 W.Va. 1, 543 S.E.2d 282 (2000), we further 

held that 

[t]he trial judge should not permit an incarcerated defense witness to 

appear at trial in the distinctive attire of a prisoner. However, the burden is upon 

the defendant to timely move that an incarcerated witness be permitted to testify 

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at trial in civilian clothes. If the trial judge denies the motion, the judge must set 

forth on the record the reasons for denying said motion. 

In the present case, there is no indication that petitioner moved for Colegrove to testify in 

civilian clothing, or that he objected to Colegrove’s prison attire at trial. Additionally, at trial, 

petitioner attacked Colegrove’s credibility, his motives for allegedly lying about petitioner, his 

prior criminal actions, and his plea deal with the State, thereby making his status as a convicted 

criminal known to the jury, independent of his prison garb. Therefore, we find that Colegrove’s 

appearance in prison attire did not “seriously affect[] the fairness, integrity, or public reputation 

of the judicial proceedings.” See Syl. Pt. 7, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 

(1995) (setting forth the elements required for a defendant to invoke the plain error doctrine). 

Petitioner’s sixteenth assignment of error is that the circuit court committed plain error by 

ending the first day of trial early because the State failed to ensure that Colegrove was available 

to testify that day. Petitioner states that the State’s conduct forced the second day of trial, which 

included jury deliberations, to last into the late evening hours. Respondent explains that 

Colegrove refused to testify at petitioner’s trial unless his counsel was present, and his counsel 

was not available on the first day of trial. So, Colegrove was called to testify on the second day 

and final day of trial. Upon our review, we cannot agree with petitioner’s unsupported 

speculation that the delay was a tactic by the State to ensure that, after such a long day, the jury 

would be anxious to reach a quick verdict. We acknowledge that the circuit court reprimanded 

the State for not ensuring Colegrove’s availability as planned, but we see no prejudice or error 

warranting relief for petitioner. See Miller, supra. 

Next, petitioner contends that the State committed prosecutorial misconduct by failing to 

disclose its inducements to Colegrove in exchange for his testimony against petitioner. Petitioner 

contends that Colegrove was charged with driving on a revoked license in the weeks prior to the 

December 2012, crimes at issue in this case, and the State dismissed those charges in January 

2013, as evidenced by Colegrove’s CIB report. 

“The prosecution must disclose any and all inducements given to its witnesses in 

exchange for their testimony at the defendant's trial.” Syl. Pt. 2, State v. James, 186 W.Va. 173, 

411 S.E.2d 692 (1991). In the present case, the reason for and nature of the dismissal of 

Colegrove’s traffic charges is unclear. Petitioner contends that the timing suggests that the 

charges were dismissed in exchange for Colegrove’s testimony. Respondent contends that it’s 

more likely that the charges were procedurally dismissed upon their joinder with Colegrove’s 

felony proceedings for the burglary and robbery charges, and that petitioner is mischaracterizing 

the dismissal as an inducement. However, what is clear, and what is most important, is that 

Colegrove affirmatively testified that he was made no promises related to the traffic charges in 

exchange for his testimony in petitioner’s trial. Therefore, we do not find that the State failed to 

disclose its inducements to Colegrove with respect to his traffic charges, as required by James, as 

it is not clear that there were any inducements made relating to those charges. 

In his eighteenth assignment of error, petitioner asserts that the circuit court erred in 

denying his motions for judgment of acquittal because there was a lack of evidence to support his 

convictions. We disagree. We have long held that 

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[u]pon motion to direct a verdict for the defendant, the evidence is to be 

viewed in light most favorable to prosecution. It is not necessary in appraising its 

sufficiency that the trial court or reviewing court be convinced beyond a 

reasonable doubt of the guilt of the defendant; the question is whether there is 

substantial evidence upon which a jury might justifiably find the defendant guilty 

beyond a reasonable doubt. 

Syl. Pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974) (citation omitted). For the same 

reasons we rejected petitioner’s fourth assignment of error, above, we reject his claim that he 

was entitled to a judgment of acquittal. Colegrove implicated petitioner as his accomplice. The 

jury heard him recant that statement, but chose, as was its right, to disregard his testimony 

exonerating petitioner. However, even disregarding Colegrove’s statement, there was substantial 

evidence presented by the State upon which the jury could find petitioner guilty. Therefore, we 

find no error in the denial of petitioner’s motions for judgment of acquittal. 

Petitioner’s nineteenth assignment of error is that the circuit court erred in denying his 

motion for a new trial. “Although the ruling of a trial court in granting or denying a motion for a 

new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal 

when it is clear that the trial court has acted under some misapprehension of the law or the 

evidence.” Syl. Pt. 1, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011) (citations omitted). 

In White, we further held that “[w]e 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 we review the circuit court's underlying factual findings under a clearly erroneous standard. 

Questions of law are subject to a de novo review.” Syl. Pt. 2, in part (citations omitted). 

In the present case, petitioner failed to state in his brief how the denial of his motion was 

an abuse of discretion, or how the circuit court’s findings were clearly erroneous. In fact, his 

argument in support of this assignment of error fails to contain any analysis. Accordingly, we 

reject petitioner’s argument. See, in part, W.Va.R.App.P. 10(c)(7) (“The argument must contain 

appropriate and specific citations to the record on appeal, including citations that pinpoint when 

and how the issues in the assignments of error were presented to the lower tribunal. The Court 

may disregard errors that are not adequately supported by specific references to the record on 

appeal.”). 

In his next assignment of error, petitioner argues that it was plain error for the State to 

“force” Mr. and Mrs. Richardson to testify against petitioner, despite their requests to have the 

charges against him dismissed and their admission that they could not identify him as a 

perpetrator. The victims in the present case all testified to the crimes committed against them, 

including Mr. and Mrs. Richardson. At trial, according to petitioner, they opined that there was 

no evidence that petitioner broke into their home, aside from what the police had told them. As 

respondent correctly points out, petitioner’s argument has no basis in the law, and, therefore, we 

reject it. 

Petitioner’s final assignment of error is that he was denied a fair trial as a result of 

cumulative effect of the circuit court’s numerous errors. We have held that “[w]here the record 

of a criminal trial shows that the cumulative effect of numerous errors committed during the trial 

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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.” Syl. Pt. 5, State v. Smith, 

156 W.Va. 385, 193 S.E.2d 550 (1972). Respondent counters that petitioner’s appeal appears to 

be “an amalgamation of every objection made during [p]etitioner’s trial and several additional 

errors not properly raised during trial.” Our review of this matter reveals no error by the circuit 

court, let alone numerous errors, the cumulative effect of which denied petitioner a fair trial. 

For the foregoing reasons, we affirm the Circuit Court of Mingo County’s “Sentencing 

Order,” entered on October 23, 2014. 

Affirmed. 

ISSUED: November 20, 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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