1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs.) No. 20

- 0322 ( Nicholas County 17

- F

- 64 )

Drexel M. Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Drexel M., by counsel Steven Nanners , appeals the Circuit Court of Nicholas County’s March 9, 2020, sentencing order following his convictions for six counts of first

- degree

sexual abuse and six counts of sexual abuse by a guardian or custodian

. 1 The State of West Virginia, by counsel Holly M. Flanigan , f iled a response in support of the circuit court’s order. 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 considerat ion 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

I. Factual and Procedural Background

Petitioner was initially indicted by a Nicholas County grand jury in May of 2002, and he was charged with one count of first

- degree sexual assault of J.B.

, one count of first

- degree sexual

abuse of J.B

. , and nine counts of first

- degree sexual abuse of F.B

. 2 In November of 2002, the

circuit court dismissed the 2002 indictment

, without prejudice

, after petitioner successfully challenged the admissibility of his statement to law enforcement. As to the statement, the circuit court found that law enforcement took petitioner’s statement in violation of his Sixth Amendment

1 Consistent with our long

- standing practice in cases with sensitive facts , we use initials where necessary to protect the identities of those involved. See In re K.H.

, 235 W. Va. 254,

773 S.E.2d 20 (2015) ; In re Jeffrey R.L.

, 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward

Charles L.

, 183 W. Va. 641, 398 S.E.2d 123 (1990)

.

2 Case No. 02

- F

- 36

. 

### FILED

June 23 , 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 right to counsel. When the St ate noted that the suppressed statement “was a big basis of our indictment[,]” the circuit court dismissed the indictment without prejudice.

Petitioner was indicted again in May of 2017 . As to J.B., petitioner was indicted on one count of first

- degree s exual assault, one count of first

- degree sexual abuse, and one count of sexual abuse by a parent, guardian, or custodian. As to F.B., petitioner was charged with four counts of

first

- degree sexual abuse and four counts of sexual abuse by a parent, guardian , or custodian.

During the 2017 grand jury proceedings

, Deputy Jared Bennett was asked by a member of the grand jury about why it had taken so long for presentment of the indictment since the crimes alleged had occurred so long ago

. Deputy Bennett replie d :

H e [the defendant] was interviewed by Deputy Paul O’Dell and Tpr. Mankins back

in 2000. His attorney got up and left during the interview, which attorneys can’t do

that

- - so, when he left, they threw out his statement that he had given them, and the case was dismissed without prejudice, which that means that it can be brought back any time, but what I think is

– It just, you know, kind of fell under the

– wayside and was forgotten

– so that’s

– that’s why the case was never taken to trial.

Petiti oner moved to dismiss the 2017 charges , arguing that the delay between the 2002

dismissal and the 2017 indictment violated the three

- term rule. The circuit court denied petitioner’s motion finding that there was no violation of the three

- term rule.

A n unsigned memorand um from the prosecuting attorney in the 2002 case was revealed during a discovery conference on the 2017 charges

, which provided that the victims ’ mother had initiated charges of molestation or abuse against four men. Two of these individu als died prior to petitioner’s trial on the 2017 indictment . Additionally, two other individuals who allegedly

overheard the victims’ mother say that she intended to extort money from petitioner in 2002

, died

before the trial on the 2017 charges.

Petitioner was tried in 2020 , and the jury found him guilty of six counts of first

- degree sexual abuse and six counts of sexual abuse by a g uardian or custodian. Petitioner filed a post

- trial motion and again raised the issue of a speedy trial violation. After considering the motion, the circuit court reaffirmed its ruling that no speedy trial violation occurred in petitioner’s case.

The cir cuit court entered its sentencing order on March 9, 2020

. Petitioner then filed this appeal.

II. Standard of Review

In challenging his convictions and claiming entitlement to a new trial, petitioner raises twenty assignments of error. Our general standard of review is as follows:3 Syl. Pt. 3, State v. Vance , 207 W. Va . 640, 535 S.E.2d 484 (2000). Where specific standards are necessary to address petitioner’s assignments of error, they are provided below.

III. Discussion

Of petitioner’s twenty assignments of error, his first four concern the circuit court’s denial

of his motion to dismiss the indictment , and the remainder concern various trial and post

- trial rulings

. In arguing that the court erred in denying his motion to dismiss the indictment, p etitioner

first argues that t he circuit court ’s failure to dismiss the 2017 indictment resulted in a violation of his right to a speedy trial. Respondent maintains that petitioner’s speedy trial rights were not implicated where the initial indictment was dismisse d

. Upon a review of the record and our jurisprudenc e on this issue, we agree with respondent.

West Virginia Code § 62

- 3

- 21 provides :

Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged fr om prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses

for the Stat e being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the in ability of the jury to agree in their verdict; and every person charged with a misdemeanor before a justice of the peace, city police judge, or any other inferior tribunal, and who has therein been found guilty and has appealed his conviction of guilt and sentence to a court of record, shall be forever discharged from further prosecution for the offense set forth in the warrant against him, if after his having appealed such conviction and sentence, there be three regular terms of such court without a trial, unless the failure to try him was for one of the causes hereinabove set forth relating to proceedings on indictment

.

Thus, a person who is charged with a felony shall be discharged from prosecution for th at felony if three terms of court pass without tri al after the presentment or indictment. While the prosecution is required to provide a trial without unreasonable delay, the accused may not count in his favor “any term of the court which occurred in part during the time he was without jurisdiction of the

court.” State v. Foddrell , 165 W. Va. 540, 545, 269 S.E.2d 854, 858 (1980) (citation omitted)

. In reviewing challenges to findings and rulings made by a circuit court, we apply a two

- pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to th e 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.4 Excluding the terms of court where there were no charges pending against petitioner comports with the purpose of the speedy trial provision. As the United States Supreme Court has explained, “the Speedy Trial Clause’s core concern is impairment of liberty.” United S tates v. Loud

Hawk , 474 U.S. 302, 312 (1986).

The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused whil e released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

United States v. MacDonald , 456 U.S. 1

, 8 (1982). “Once criminal charges are dismissed, the speedy trial guarantee is no longer app licable.” Id.

Petitioner relies on State v. Carrico , 189 W. Va. 40, 427 S.E.2d 474 (1993)

, and State v. Crawford , 83 W. Va. 556, 98 S.E. 615 (1919), in support of his assertion that dismissal of the 2002

indictment did not toll or restart the running of the three terms of court as contemplated by West Virginia Code § 62

- 3

- 21 . However, Carrico and Crawford are both nolle prosequi cases, and therefore are fundamentally different than the case presently before this Court. 3 Here, u nlike Crawford and Carrico , the State did not enter a nolle prosequi following petitioner’s 2002 charges

. Instead, the State dismissed petitioner’s 2002 case for cause , thereby terminating the criminal prosecution and restoring petitioner’s personal liberty. 4 S ince the initial indictment was dismissed,

the 2002 indictment is not included in a speedy trial analysis. Accordingly , we find that the circuit court did not err when it ruled that petitioner’s speedy trial rights were not violated.

Next, petitioner maintains that he was prejudiced by the preindictment delay and the circuit

court abused its discretion and when it faile d to dismiss the 2017 indictment

. Petitioner maintains

that t he prosecuting attorney can offer no reason why he was not indicted between November 2002

and 2017

, noting that no evidence of consequence was gathered during th e fifteen

- year delay and

3 In Crawford , the State entered a nolle prosequi in the third term of court following t he indictment to avoid operation of the three

- term rule. The State then re

- indicted petitioner after the three terms of court had lapsed and obtained a conviction. In that matter, the C ourt rejected the prosecution’s manipulation of the three

- term rule in an effort to keep Mr. Crawford in jeopardy

and reversed the conviction. In Carrico , the State also exerted control over the speedy trial time clock by entering a nollo prosequi , to buy time after the circuit court refused to grant a motion to

continue. The State later re

- indicted the defendant and obtained a conviction in the third term after the original indictment.

4 Petitioner’s reliance on State ex rel. Webb v. Wilson, 182 W. Va. 538, 390 S.E.2d 9 (1990)

, is also misplaced as that case is distinguishable from the instant matter . In Webb, the indictment was dismissed after three unexcused terms of court had expired. The State then sought to re

- indict

on the same offenses. In Webb , the defendant brought a w rit of p rohibition and this Court explained

that the State was barred from re

- indicting petitioner for the same offenses , pursuant to West Virginia Code § 62

- 3

- 21

.5 that several witnesses died during the period of preindictment delay

. Respondent contends that the circuit court properly and repeatedly found that this claim was meritless because pet itioner failed to show actual prejudice from the delay in prosecution. In this regard, we agree with respondent.

We have held that

[i] n determining whether preindictment delay violates the Due Process

Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting p rejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the

government ’s decision to prosecute after substantial delay violates fundamental notions of justice or the community ’ s sense of fair pl ay.

Syl. Pt. 3, in part

, State ex rel. Knotts v. Facemire , 223 W. Va. 594, 678 S.E.2d 847 (2009)

.

Further, in Knotts , we held that

[ t ] o demonstrate that preindictment delay violates the Due Process Clause

of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution , a defendant must introduce substantial evidence of actual prejudice which proves he was meaningfully impaired in his ability to defend against the state ’ s charges to such an extent that the disposition of the criminal proceeding was or will be likely affected.

Knotts at S yl. P t. 4

.

In accordance with Knotts , a defendant must m ake a threshold showing of actual prejudice

as a result of preindictment delay before a balancing of the interests is required. Petitioner argues that he was prejudiced by the delay where two of the individuals who were accused of molestation by the victims’ mother died prior to the trial on his 2017 indictment and he was robbed of “[a]ny impeachment evidence these deceased witnesses could have provided

. ” 5 However, petitioner’s passi ng reference to “impeachment evidence” does not show prejudice, much less actual prejudice

. Although t wo of these individuals were deceased prior to the trial

, petitioner makes no other mention of how this prejudiced him. Such vague and conclusory allegati ons of prejudice were

disavowed by this Court in State v. Cook , 228 W. Va. 563, 568, 723 S.E.2d 338, 393 (2010), where

we noted:

5 These individuals were identified in a memorand um from the prosecuting attorney’s file

. Additionally, petitioner maintains that although the circuit court entered an order in the 2002 case requiring that individuals who resided in the home at the time of the alleged acts be deposed , these depositions wer e not taken prior to the dismissal of the 2002 indictment. Petitioner claims that due to the delay, the whereabouts of some of these witnesses are now unknown and another witness is now suffering from dementia.6 Vague and conclusory allegations of prejudice, as we made clear in Facemire , are simply not sufficient. Not only must the cont emplated testimony of a missing or deceased witness be demonstrated with ample specificity, but the impact of that missing testimony on the defense must be shown. To rely upon presumption or inference, as Appellant does here, by representing as fact that h is mother would have been able to contradict the evidence offered by the State against him while offering little in the way of specifics regarding her expected testimony is clearly insufficient under our holding in Facemire . The degree of specificity requi red to establish actual prejudice is that which will solidly demonstrate how a defendant

has been “ meaningful[ly] impair[ed] ” in conducting his defense.

Petitioner also argues that evidence to impeach F.B., J.B.

, and their mother

, was lost with

the deaths of two witnesses , who may have overheard the mother say that she intended to extort money from petitioner in 2002. Although these two witnesses were no longer available, another

individual testif ied at length to hearing the same i nformation . Thus, petitioner cannot show that he was prejudiced by the absence of these two witnesses

.

P etitioner also maintains that he cannot locate witnesses who were not deposed in the 2002

case . Additionally, he claims that files or statements that were taken by his counsel in 2002 were no longer available

. As to these witnesses

, we note that a few of the witnesses provided testimony

under oath in connection with t he 2002 indictment, and were subject to cross

- examination. Thus, this testimony could be admissible pursuant to West Virginia Rule of Evidence 804(b)(1).
Moreover, the circuit court found that petitioner did not demonstrate that he made serious attempts

to locate the other witnesses and show that the information f rom the witnesses was not available

from other sources. Consistent with our established precedent, p etitioner bears the burden of showing that preindictment delay violated his due process rights by introducing substantial evidence of actual prejudice that proves he was meaningfully impaired in his ability to defend against the State’s charges. Here, he has failed to meet this burden , and therefore this assignment

of error fails

.

Next, p etitioner contends that Deputy Bennett contaminated the grand jury proceedings

, prejudiced petitioner

, and that the circuit court abused its discretion when it failed to dismiss the 2017 indictment after Deputy Bennett gave the testimony concerning petitioner’s statement quoted

above before the grand jury

, despite the Sta te’s agreement that it would not offer evidence of his previously suppressed statement at trial. Respondent maintains that a lthough the 2002 indictment was predicated on petitioner’s statement, the 2017 indictment was based entirely on the disclosures

of F.B. and J.B

. , not petitioner’s statement . In this proceeding, petitioner’s statement was
mentioned only in response to a question from the grand jury. Moreover, respondent maintains that the 2017 indictment was facially valid and therefore not subject to attack. We agree with respondent.

In West Virginia, “the validity of an indictment is not affected by the character of the evidence introduced before the grand jury, an indictment va lid on its face is not subject to challenge by a motion to quash on the ground the grand jury considered inadequate or incompetent evidence in returning the indictment.” State v. Carter , 232 W. Va. 97, 101, 750 S.E.2d 650, 654 (2013).7 Moreover, circuit cou rts do not routinely peek behind the veil of an indictment to assess the evidence presented to the grand jury, doing so only where fraud exists . Specifically, this court has held that “[e] xcept for willful, intentional fraud the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency. ” Syl. Pt. 2, State ex rel. Pinson v. Maynard , 181 W. Va.

662 , 383 S.E.2d at 84 4 (1989) (citation omitted)

.

Based upon our review of the record, the 2017 indictment was facially valid and therefore not subject to attack. Moreover, there was no willful or intentional fraud. Thus, we refuse to peek behind the veil of the indictment, and this assignment of error fails.

In petitioner’s final challenge to the court’s denial of his motion to dismiss the indictment,

he maintains that t he court erred by failing to recognize the law of the case 6 established during the

2002 case , arguing that the 2002 indictment was dismissed “based upon the fraudulently obtained and suppressed statement ” and , therefore, the court should have extended th e ru l ing to require

dismissal of the 2017 indictment

. Respond ent counters that the law of the case has no application

herein. We agree with respondent

, as petitioner mischaracterized what transpired at the grand jury proceedings

, and the suppressed statement was not used to obtain the indictment

. Thus, this assignment of error fails.

Moving to his assignments of error concerning the court’s trial rulings

, p etitioner maintains

that the circuit court erred when it denied hi s motion for an in camera hearing on the morning of

trial , which he sought for the purpose of questioning the alleged victims, their mother

, and their

aunt

. Respondent counters that th e circuit court’s ruling was appropriate because petitioner was simply a ttempting to re

- litigate the “possibility of false allegations” made by the victims of sexual misconduct against people other than petitioner. 7 Respondent notes that p etitioner has not pointed to any legal authority that would require an in camera hearing

, nor has he indicated how an in camera hearing would alter the circuit court’s ruling on this issue

. We agree with respondent.

6 We have stated that

The law of the case doctrine “generally prohibits reconsideration of issues which have been decided in a prior appeal in the same case, provided that there has been no material changes in the facts since the prior appeal, such issues may not be relitigated in the trial court or re

- examined in a second appeal.” 5 Am.Jur.2d Appellate Review § 605 at 300 (1995) (footnotes omitted).

State ex rel. Frazier & Oxley, L.C. v. Cummings , 214 W. Va. 802, 808, 591 S.E.2d 728, 734 (2003).

7 The State moved in limine to preclude petitioner from presenting th is evidence and cross

examining witnesses with it. The court granted the motion, relying primarily on Rule 404(b) of the West Virginia Rules of Evidence, which provides that, with a few enu merated exceptions, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”8 We have stated that “[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). As to thi s assignment of error, West Virginia’s r ape s hield statute , West Virginia Code § 61

- 8B

- 11, was enacted to protect victims of

sexual assault. This Court has specifically held that

[e] vidence that the alleged victim of a sexual offense has made statements about being the victim of sexual misconduct, other than the statements that the alleged victim has made about the defendant and that are at issue in the state ’ s case against the defendant, is evidence of the alleged victim ’ s “sexual conduct” and is within the scope of West Virginia ’ s rape shield law, W.Va.Code, 61

– 8B

– 11 [1986]

and West Virginia Rules of Evidence 404(a)(3) [1994], unless the defendant establishes to the satisfaction of the trial judge outside of the presence of the jury

that there is a strong probability that the alleged victim ’ s other statements are false.

Syl. Pt. 1, State v. Quinn , 200 W. Va. 432, 490 S.E.2d 34 (1997).

Here, the circuit court ruled that petitioner failed to offer strong and substantial proof of actual falsity and, even if he had, Rule 404(b) precluded the cross

- examination of the victims

. 8
Because p etitioner does not mention or address the circuit court’s findings and conclusions that

the evidence would constitute inadmissible character evidence , he has failed to demonstrate that the court abused its discretion in deeming the evidence inadmissible

.

Although the circuit court twice ruled on the admissibility of this evidence, petitioner sought an in camera hearing on the morning of trial to relitigate t he “possibility of false allegations” made by F.B. and J.B. The circuit court refused this request, stating “[w]e already had a hearing on this. I’ve already entered an Order, and I made findings of f act and conclusions of law, and I

held that evidence is not admissibl e under Barbe 9 and Rule 404(b). ” Upon review of the record

, the circuit court did not abuse its discretion with respect to this ruling. Accordingly, this assignment of error fails.

Petitioner next argues the court improperly limited the scope of petitioner’s cross

examination of Sgt. Bennett, the victims’ mother, the victims, and the victims’ former babysitter

. As to Sgt. Bennett, petitioner claims that he wanted to “ferret out whether the alleged victims.

. .

8 Petitioner also claims that the circuit co urt erroneously preclud ed his counsel from questioning the victims’ babysitter

, who babysat the victims around the time of the acts alleged in

the indictment

, with respect to the victims ’ reputation for truthfulness. Importantly, respondent

notes that petitioner voiced no objection to this ruling below and therefore this issue is not properly

before this C ourt. We agree with respondent. Inasmuch as this issue is not properly before this Court, we decline to address it

. See State v. Miller , 194 W. Va. 3 , 1 7 , 459 S.E.2d 114, 128 (1995) (“‘One of the most familiar procedural rubrics in the administration of justice is the rule that the failure of a litigant to assert a right in the trial court likely will result’ in the imposition of a procedural bar to an appeal of that issue.”) (citation omitted).

9 Barbe v. McBride , 521 F.3d 443 (4 th Cir. 2008)

.9 had falsely accused other adult male relatives or show the investigation was negligent and incomplete.” Petitioner’s briefing on this issue was inadequate and failed to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure , which requires that

[t]he brief must contain an argument exhibiting clearly the points of fact and law presented, the standard of review applicable, and citing the authorities relied on . . . 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.

(Emphasis added) . Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate Procedure, the Court noted that “[b]riefs that lack citation of authority [or] fail to structure an argument applying applicabl e law” are not in compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the argument presented and do not ‘contain appropriate and specific citations to the . . . record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with

this Court’s rules. Nowhere in petitioner’s discussion does he point to how the issues were presented to the circuit court (therefore it is unclear if this was preserved for appellate review) , if petitioner objected, or how the circuit court ruled on the objection. Even if petitioner preserved the issue for appellate review, he has failed to show that the circuit court abused its discretion in limiting the scope of petitioner’s cross

- examinati on. Therefore , we decline to address this assignment of error on appeal.

Next, petitioner maintains that t he court erred in precluding petitioner from inquiring of the alleged victims’ mother; the victims themselves; and the victims’ aunt concerning prior false accusations of sexual misconduct against other male relatives. As to this assignment of error, petitioner’s contention is skeletal, consist ing of no citation to the record, no citation to when or how the issue was raised or ruled upon, no argument, and no legal analysis. Although petitioner makes the conclusory statement that “the door to inquiry was opened,” he offers no factual support

what soever from any part of the record. For the same reason that petitioner’s previous assignment of error fails, this assignment of error fails.

Next, petitioner claims that t he court erred in refusing to allow his counsel to cross

examine the victims, J.B. and F.B., with handwritten statement s taken from them by the child protective services worker attendant to the 2002 indic tment

. Upon our review of the record

, however, it appears that petitioner attempted to utilize a document th at had not been authenticated regarding an interview of J.B. nineteen years earlier. Moreover, after the circuit court sustained the State’s objection, petitioner did not raise an objection to the circuit court’s ruling . T hus

, petitioner waived his right t o raise the issue on appeal

. See Miller , 194 W. Va. at 18, 459 S.E.2d

at 12 9

.

P etitioner also claims that the circuit court abused its discretion by refusing to allow

counsel to make an in camera inquiry about a disturbance that occurred outside the courtroom on the second day of trial when a witness was testifying. Petitioner claim s that the disturbance was a10 possible violation of the sequestration order and Rule 615 of the West Virginia Rules of Evidence

, regarding sequestration of witnesses, and , accordingly, he sought to take testimony as to who said

what to whom. 10 Despite petitioner’s reliance on Rule 615, this argument is not properly before

th is C ourt because the record does not reflect that petitio ner raised the Rule 615 argument below. See State v. Shrewsbury , 213 W. Va. 327, 334, 582 S.E.2d 774, 781 (2003) (“To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit

court to the na ture of the claimed defect.”) (citation omitted).

Next, petitioner claims that the circuit court erred when it included the phrase the “truth of

the matter ” twelve different times in the jury charge , maintaining that the court placed improper and unconstitutional emphasis on the instruction. He suggests that the circuit court defined “beyond a reasonable doubt” to include an element of “truth.” Respondent maintains this

contention is conclusory and meritless

. Petitioner’s brief is deficient as to this assignment of error

as he does not point to an objection ( if one was raised )

, how the circuit court resolved the objection, why the circuit court’s decision was erroneous

, nor any relevant authority to support his argument

. We have repeatedly noted that “ [j] udges are not like pigs, hunting for truffles buried in briefs .” State, Dep ’ t of Health and Human Res. ex rel. Robert Michael B. v. Robert Morris N. , 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (quoting United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ). Inasmuch as petitioner has failed to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure , we decline to address this assignment of error on appeal

.

Petitioner also argues that two of the jurors , Juror Harper and Juror Dillon, should have

been removed from the jury panel for cause and that the circuit court’s refusal to do so violated petitioner’s due process right to an impartial jury . Respondent maintains that the circuit court did not err with respect to its decision not to strike these juror s and that petitioner’s brief does not comport with the appellate rules governing petitioner’s appeal . Upon a review of the record, we agree with respondent.

As to J uror Harper, petitioner’s brief contains no citations to the record, c ites no relevant

au thority, and makes no arguments applying this authority. Accordingly, we decline to consider the merits of petitioner’s assignment of error as to Juror Harper due to his failure to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure

.

As to Juror Dillon, petitioner maintains that she should have been struck for cause because the juror previously worked with a trial witness (“Witness Clutter”) at a hospital as a medical record transcriptionist and could have transcribed notes from the emergency room examination of

the victims . Notably, however

, Juror Dillon stated under oath that she did not have access to patient files, rarely saw notes taken by W itness Clutter in the emergency room, and that her past employment with W itness Clutter would not affect her ability to be fair and impartial in the case.

10 Petitioner relies on S yllabus P oint 3 of State v. Omechinski , 196 W. Va. 41, 468 S.E.2d 173 (1996), where this Court held that “[a] circumvention of Rule 615 of the West Virginia Rules of Evidence occurs where witnesses indirectly defeat its purpose by discussing with other witnesses who are subject to recall testi mony they have given and events occurring in the

courtroom.”11 The circuit court denied petitioner’s motion to strike for cause, finding that “ [Juror Dillon] indicated that she can be fair and impartial and not biased towards any party, the Sta te or the defendant.” Petitioner ultimately removed Ms. Dillon with a peremptory strike. Although petitioner’s brief does not comply with Rule 10 on this issue, he cannot prevail on the merits of this assignment of error because he removed the juror with a peremptory strike and did not show prejudice. Syl. Pt. 6, in part, State v. Benny W ., 242 W. Va. 618, 837 S.E.2d 679 (2019) ( “ A trial court’s failure to remove a biased juror from a jury panel . . . does not violate a criminal defendant’s right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike . In

order to o b tain a new trial for having use d a peremptory strike to remove a biased juror from a jury panel, a criminal defendant must show prejudice.” ) (Citation omitted.)

Next, petitioner argues that he should receive a new trial due to prejudice that resulted from the testimony of Trooper Danie l White regarding “other victims” and his “other investigations

, ” even though these did not necessarily implicate petitioner. Respondent counters that this assignment of error is not only inadequately briefed, but it also ignores the corrective measures

ta ken by the court such as the circuit court’s unequivocal instruction to the jury “to disregard the testimony of Daniel White in its entirety. You are not to consider the testimony of Trp. White during the deliberations in any manner or for any purpose.” 11 Given this corrective measure, the circuit court denied petitioner’s post

- trial motion for relief. Respondent maintains that petitioner

has not only failed to acknowledge the rulings, but has also not demonstrated how the rulings were

erroneous or insuffic ient. We agree , and, therefore , this assignment of error fails.

Petitioner’s final three assignments of error assert that the circuit court improperly denied his motion for a directed verdict at the close of the State’s evidence; improperly denied his post

verdict motion for judgment of acquittal; and cumulative error. As to these issues, petitioner’s

submissions fail to comply with Rule 10(c) of the West Virginia Rules of Appellate Procedure. Each of these “assignments of error” is comprised of only a one

- sentence assertion. P etitioner does not identify where and how t hese issues were dealt with by the circuit court . He does not cite any facts or legal authorities and fails to assert an argument. The final assignment of error is essentially

the same. Just a s we found with other of petitioner’s inadequately briefed assig nments of error, “[a] skeletal ‘argument’, really nothing more than an assertion, does not preserve a claim....Judges are not like pigs, hunting for truffles buried in briefs.” Robert Morris N. , 195 W. Va. at 765, 466

S.E.2d at 833 ( citation omitted ). Thus, we refuse to address these arguments on appeal.

IV. Conclusion

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 23 , 2021

11 Prior to this instruction, the circuit court granted petitioner’s motion for a limiting instruction regarding Trooper White’s testimony.12 CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

DISSENTING :

Justice William R. Wooton

Wooton, Justice, dissenting:

I respectfully dissent. I would have put this case on the Rule 20 docket in order to permit full briefing and oral argument on the substantial constitutional issue presented here: whether the

fifteen

- year pre

- indictment delay denied petitioner his right to a speedy trial. In this regard, we have held that “[t]he right to a trial without unreasonable delay is basic in the administration of criminal justice and is guaranteed by both the state and federal constitution. U.S. Const. Amend. VI; W.Va. Const., Art. 3, § 14.” Syl. Pt. 1, State v. Foddrell , 171 W. Va. 54, 297 S.E.2d 829 (1982); see also State v. Jessie , 225 W. Va. 21, 28, 689 S.E.2d 21, 28 (2009) (clarifying that even where no Sixth Amendment violation is found, a substantial delay “causing preju dice to the defendant by way of loss of witnesses or other evidence” implicates Fifth Amendment due process

concerns.

Petitioner alleges that in the fifteen years that elapsed between his first indictment, which was dismissed, and his second indictment , several key witnesses died or developed dementia. I believe that this Court needs to do a “deep dive” into the record to determine how critical those witnesses may have been to the petitioner’s defense against the charges. Accordingly, I respectfully d issent.