1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs.) No. 17-0951 (Cabell County 15-F-337)

Ronald Steven Carson Jr., Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Ronald Steven Carson Jr., by couns el A. Courtenay Crai g, appeals the Circuit Court of Cabell County’s September 26, 2017, order sentencing him following his convictions of driving under the influence causing the death of another person and ne gligent homicide. The State of West Virginia, by couns el Zachary Aaron Viglianco a nd Gordon L. Mowen II, filed a response in support of the circuit court’s or der and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in fai ling to offer a jury instruction on missing or lost evidence, failing to suppress his statement, and denying his right to a speedy trial.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On the evening of April 5, 2015, Kevin Perry was driving on Route 2 in Cabell County, West Virginia. Mr. Perry noticed a single headlight behind him, which he ascertained was from a motorcycle. Because Mr. Perry often rode motorc ycles himself and was aware of the potential visibility hazards, he was particularly attuned to the motorcyclist’s locati on. As he was traveling along Route 2, Mr. Perry noticed headlights to his right coming from a driveway located perpendicular to Route 2. Mr. Perry was concerne d for a moment that the car coming from the driveway was going to enter Route 2 right in front of him, but the car did stop at the end of the driveway, and Mr. Perry continued past it. As Mr. Perry checked on the motorcyclist from his rearview mirror, he saw the headlight disappear and heard a loud screech and impact. Mr. Perry immediately turned his car around and proceed ed back to the accident.

At the scene of the accident, Mr. Perry discove red the driver of the motorcycle, Justin Parsons, underneath the car that had turned out of the driveway, which was driven by petitioner. Mr. Perry instructed petitioner to turn his car off and exit it. Mr. Perry described petitioner’s response as slow and lethargic. Mr. Perry also attempted to locate a pulse on Mr. Parsons, but could not find one. Ultimately, Mr . Parsons died at the scene. 

### FILED
November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The first officer to arrive on the scene, Justin Cochran, similarly characterized petitioner’s behavior at the scene as “unusual” gi ven petitioner’s “slightly delayed” reaction to questions and “really calm” demeanor. Deputy Cochran administered a breathalyzer, which revealed that petitione r was not under the influence of al cohol. Another investigating officer, Michael Talbott, arrived at th e scene shortly after Deputy Coch ran, and described petitioner as

“withdrawn and slow.” Petitione r’s “very calm” demeanor stru ck Deputy Talbott as odd given the gravity of the situation, so he asked pe titioner whether he had consumed any alcohol. Petitioner responded that he had not had any alc ohol, “but that he had taken his medication,” which was reported to be three half-milligram tablets of Xanax. Petitioner was later arrested. 1

During the crash, the motorcycle’s headlight became detached from the handlebars, but remained attached to the bike by wires. At the scene following the cr ash, due to petitioner’s

statement that he did not see the bike’s headli ght before pulling out onto Route 2, the wires were cut and the headlight was taken into evidence.

Petitioner was indicted on August 12, 2015, on one count of driving under the influence causing the death of another person and one count of negligent homicide. Various pretrial motions were argued and proceedings held, and pe titioner’s trial eventua lly began on August 28, 2017. After a two-day trial, the jury found pe titioner guilty of both crimes charged. On September 26, 2017, the circuit court sentenced peti tioner to not less than two nor more than ten years of incarceration for his conviction of driving under the influenc e causing the death of another, but because the court found that the negligent homicide conviction “may be a lesser included” offense of driving under the influence cau sing the death of another, it did not impose a sentence for the negligent homicide conviction. It is from this order th at petitioner appeals.

Petitioner first assigns as error the circuit court’ s failure to instruct th e jury in accord with

State v. Osakalumi , 194 W.Va. 758, 461 S.E.2d 504 (1995). Pe titioner claims that the State should have preserved the entire motorcycle – not just the h eadlight – because the headlight

alone was insufficient to determ ine whether a malfunction in the light was “caused by anything from the battery connections to the wiring to the lamp itself. Th e lamp alone would not register answers to the other possible malfunctions.” Petiti oner asserts that in his initial conversations following the accident, he maintained that he did not see the headlight on the motorcycle, thereby alerting the State to the “importance of th e evidence.” Petitioner further claims that the failure to preserve the entire bike deprived hi m of the ability to prove his defense that the motorcycle’s light had malfunctioned and wa s not on at the time of the collision.

1 After his admission to consuming Xanax, but pr ior to his arrest, petitioner was placed in the back of a police cruiser for approximately fort y-five minutes and, later, instructed to undergo additional tests, including field sobriety tests. The circuit court granted petitioner’s motion to suppress evidence obtained following his placement in the cruiser, finding that this placement

amounted to a de facto arrest.3 We review the refusal to give a requested jury instruction under an abuse of discretion standard. Syl. Pt. 1, in part, State v. Hinkle , 200 W.Va. 280, 489 S.E.2d 257 (1996). “When assessing whether the trial cour t properly exercised that disc retion, a reviewing court must

examine the instructions as a whol e to determine if they sufficientl y cover the issues in the case and focus on the facts presented by the evidence.” Id. at 285, 489 S.E.2d at 262 (citations omitted). Where an instruction is requested bu t refused, reversible error occurs only if

(1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to th e jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant’s ability to effectively present a given defense.

Syl. Pt. 11, in part, State v. Derr , 192 W.Va. 165, 451 S.E.2d 731 (1994). Bu t, to be entitled to an instruction on the theory of his or her defense, there must be “a basis in evidence for the

instruction” and the instruction must ha ve “support in law.” Hinkle , 200 W.Va. at 285, 489

S.E.2d at 262.

In Osakalumi , we held that

[w]hen the State had or should have had evidence requested by a criminal defendant but the evidence no longer ex ists when the defendant seeks its production, a trial court must determine (1) whether the re quested material, if in the possession of the State at the time of the defendant’s request for it, would have been subject to disc losure under either West Virginia Rule of Criminal Procedure 16 or case law; (2) whether the State had a duty to preserve the material; and (3) if the State did have a duty to preserve the material, whether the duty was breached and what consequences s hould flow from the breach. In determining what consequences should flow from the State’s breach of its duty to preserve evidence, a trial court should consider (1 ) the degree of negligence or bad faith involved; (2) the importance of the mi ssing evidence considering the probative value and reliability of secondary or subs titute evidence that remains available; and (3) the sufficiency of the other evid ence produced at the trial to sustain the

conviction.

Id. at 759, 461 S.E.2d at 505, Syl. Pt. 2. We further not ed that one such consequence could be an instruction to the jury that, where the State “allo wed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.” Id.

, n.14 (citing Arizona v. Youngblood , 488 U.S. 51, 59-60 (1988)).

We find no abuse of discretion in the circuit court’s refusal to give an instruction akin to

that cited in Osakalumi . To start, petitioner fails to direct this Court to any request made for the4 motorcycle in issue. 2 Without a request for the evidence, a trial court need not determine whether the material was subject to disclosure, whether the State had a duty to preserve it, or, if such duty existed, whether it was breached and, if so, the consequences, including the requested instruction, that should flow from that breach. See id. at 759, 461 S.E.2d at 505, Syl. Pt. 2 (“When the State had or should have had evidence requested by a cr iminal defendant . . . .”) (emphasis added). Nevertheless, th e circuit court undertook this anal ysis, and we find no error in

the conclusions reached.

The circuit court first reasoned that ther e was no duty to pres erve the body of the motorcycle where the issue all along had been th e headlight. The court stat ed, “the headlight was available, has been available the whole time, and that still seems to be the evidence here.” Mr. Perry informed the investigating officers imme diately after the accident that Mr. Parsons’s headlight was on, and the only indication at that time that the headlight would be an issue was petitioner’s self-serving statemen t about not seeing the headlight. The headlight was, therefore, preserved and remained available throughout the proceedings below. As the circuit court noted, the State “preserved what [it] thought was the i ssue that the [petitioner] complained about.”

Despite finding no duty to preserve the body of the motorcycle, the circuit court gave petitioner the benefit of further analysis. The court continued that, even if one assumes the State had a duty to preserve the entire motorcycle, the St ate did not act in bad faith in breaching that duty because, as set forth above, it preserved the item with which petitioner took issue at the scene. Therefore, the court found th at instructing the jury “[t]hat it should be presumed that the evidence was adverse to the State and they were trying to make sure peopl e didn’t have it” did

not fit within the “spirit of [the Osakalumi ] case.”

In State v. Morris , we found no abuse of discretion in th e circuit court’s conclusion that the State had no duty to preserve a vehicle involved in a fatal acci dent where, at the time of the crash, there were injuries but not yet a fatality. 227 W.Va. 76, 83, 705 S.E.2d 583, 590 (2010).

The circuit court in Morris stated that “[p]olice routinely, routinely investigate accidents and if they were to take all th e cars into some sort of custody then they would ha ve a large inventory of smashed up vehicles indeed.” Id. Given the facts presented in the instant case, we likewise find

no abuse of discretion in the circ uit court’s conclusion that th e State did not have a duty to preserve the body of the motorcycle or in th e court’s conclusion that, assuming a duty to preserve the motorcycle existed, an Osakalumi instruction would not be appropriate. In sum,

there was no basis in law for an Osakalumi instruction. Hinkle , 200 W.Va. at 285, 489 S.E.2d at

262.

Petitioner’s second assignment of error concerns the circuit c ourt’s failure to suppress his statement to Deputy Talbott that he had taken his pr escription medication. Petitioner argues that

2 The State’s review of the reco rd revealed no request. Furthe r, the State supplemented the appendix to include petitioner’s “Omnibus Discovery Request,” which likewise included no request for the motorcycle.5 the statement should have been suppressed be cause he was in custody but not given his Miranda warnings. 3 Petitioner claims that the environment surrounding the accident was coercive and

amounted to a de facto arrest once his driver’s license and vehicle regi stration were held for longer than necessary to issue a ticket or warnin g. Further, petitioner notes that Deputy Cochran stated at the suppression hearing that petitioner was not free to leave from the moment he began his investigation.

In reviewing a ruling on a motion to suppress, we apply the following standard of review: “On appeal, legal conclusions made with regard to suppression determinations are reviewed de

novo . Factual determinations upon which these lega l conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility ar e accorded great deference.” Syl. Pt. 3, State v. Stuart

, 192 W.Va. 428, 452 S.E.2d 886 (1994). Further,

an appellate court should cons true all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s factual findings are

reviewed for clear error.

Syl. Pt. 1, in part, State v. Lacy , 196 W.Va. 104, 468 S.E.2d 719 (1996).

With respect to the ci rcumstances necessitating Miranda warnings, it is well-settled that “[t]wo elements must be present before Miranda warnings are required: first, the person must be in custody, and, second, he or she must be interrogated.” State v. Farley , 238 W.Va. 596, 607, 797 S.E.2d 573, 584 (2017) (citing State v. Honaker , 193 W.Va. 51, 60, 454 S.E.2d 96, 105 (1994)). “Custodial interrogation” occurs when law enforcement initiates questioning “after a person has been taken into custody or otherwis e deprived of his freed om of action in any significant way.” Id. (citing Miranda v. Arizona , 384 U.S. 436, 444 (1966)). We look to “whether a reasonable person in the suspect’s pos ition would have considered his or her freedom of action curtailed to a degree asso ciated with a formal arrest.” Id. at 601, 797 S.E.2d at 578, Syl. Pt. 3, in part (citation omitted). This is an objective analysis that “does not depend on the subjective view of either the person interroga ted or the officers who conduct the interrogation.”

Id. at 608, 797 S.E.2d at 585 (citation omitted).

In State v. Preece , 181 W.Va. 633, 383 S.E.2d 815 (1989) , we made clear that

[t]he Miranda safeguards were never intended to apply to the typical, “on-thescene” investigation which ordinarily doe s not create the type of coercive atmosphere that Miranda sought to eradicate: “Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . .

3 See Miranda v. Arizona , 384 U.S. 436 (1966).6 General on-the-scene questioning as to facts surrounding crime or other general questioning of citizens in th e fact-finding process is not affected by our holding.”

Id. at 638, 383 S.E.2d at 820 (quoting Miranda , 384 U.S. at 477).

Deputy Talbott, who took the statement from petitioner, testifie d at the suppression hearing that he arrived at the scene at approximately 9:40 p.m ., which was about eight minutes

after the accident occurred. U pon arrival, Deputy Talbott spoke with Deputy Cochran to determine what was known at that point, and th en approached petitioner, who was standing off the roadway close to his driveway, to ask what happened. Deputy Talbott stated that he spoke with petitioner a few times within the first ten mi nutes of his arrival, and that he did not know whether a crime had been committed when he approached petitioner. Petitioner recounted that he pulled out of his driveway, that he did not see a headlight or the motorcycle, and that a crash occurred. Petitioner also informed Deputy Talbott that he had not consumed any alcohol but had taken Xanax, for which he had a prescription.

We find no error in the circuit court’s denial of petitioner’s motion to suppress his statement regarding his Xanax consumption. Petitioner’s admission concerning the Xanax occurred in the early moments of the scene i nvestigation, and we have held that “[t]he Miranda safeguards were never intended to apply to . . . typical, ‘on-the-scene’ investigation[s].” Preece

, 181 W.Va. at 638, 383 S.E.2d at 820 (citation omitted).

Lastly, petitioner assigns as error the circuit court’s failure to try him within three terms of court or otherwise afford a speedy trial. Peti tioner states that he wa s arrested on April 5, 2015, indicted in August of 2015, and not tried until August 28, 2017. Petitioner concedes that he requested one continuance in December of 2015 into the January 2016 te rm, but that, without including that term, more than three regular terms of cour t passed without being tried.

This Court’s standard of review concerning a motion to dismiss an indictment is, generally, de novo . However, in addition to the de novo standard,

where the circuit court c onducts an evidentia ry hearing upon the motion, this Court’s “clearly erroneous” standard of review is invoked concerning the circuit court’s findings of fact.

Syl. Pt. 1, State v. Grimes , 226 W.Va. 411, 701 S.E.2d 449 (2009).

West Virginia Code § 62-3-21, the “three-term rule,” provides that

[e]very person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of co mpetent jurisdiction for trial, shall be forever discharged from prosecution for th e offense, if there be three regular terms of such court, afte r the presentment is made or the indictment is found against him, without a trial, unless th e failure to try him was caused by his insanity; or by the witnesses for the St ate being enticed or kept away, or prevented from attending by sickness or in evitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or7 failing to appear according to his recognizance , or of the inability of the jury to agree in their verdict[.]

Cabell County’s terms of court are set in Rule 2.06 of the West Virginia Trial Court Rules to commence “on the first Monday in January and May, and the second Tuesday in September.” Petitioner was indicted during the May 2015 term of court, and his trial commenced during the May 2017 term of court. Therefore, this Court’s review entails considerat ion of seven terms of

court. 4

We begin our review by noting that the term in which the indictment is returned is not counted for purposes of determining whether a viol ation of the three-term rule has occurred:

Under the provisions of Code, 62-3- 21, as amended, the three unexcused regular terms of court that must pass be fore an accused can be discharged from further prosecution are regular terms occurring subsequent to the ending of the

term at which the indictment was returned. The term at which the indictment was

returned can not be counted as one of the three terms.

Syl. Pt. 1, State ex rel. Spadafore v. Fox , 155 W.Va. 674, 186 S.E.2d 833 (1972). Petitioner concedes that he requested a continuance dur ing the September 2015 term. Thus, the May 2015 and September 2015 terms of court are excused terms of court fo r purposes of our calculation.

With respect to the remaining term s of court, we have held that

[a]ny term at which a defendant proc ures a continuance of a trial on his

own motion after an indictme nt is returned, or otherw ise prevents a trial from being held, is not counted as one of the three terms in favor of discharge from prosecution under the provisions of Code, 62-3-21, as amended.

Spadafore , 155 W.Va. at 674, 186 S.E.2d at 834, Syl. Pt . 2. A formal motion for continuance

need not be made. Id. at 679, 186 S.E.2d at 836. Rather, if a defendant “were a moving party in a proceeding which necessitated such continua nce, such term should not be counted.” Id. (citation omitted). In sum,

[w]e do not think that the language used in the statute, ‘on motion of the accused,’ means that the accused party must make a formal motion in the court in which the

4 The terms of court applicable to petitioner’s case are as fo llows: petitioner was indicted during the May 2015 term of court. The September 2015 term of court commenced on September 8, 2015. The January 2016 term of court commenced on January 4, 2016. The May 2016 term of court commenced on May 2, 2016. Th e September 2016 term of court commenced on September 13, 2016. The January 2017 term commenced on January 2, 2017. Finally, petitioner’s trial began on A ugust 28, 2017, during the May 201 7 term of court, which commenced on May 1, 2017.8 indictment is pending in order to charge him with the delay in bringing him to trial. If he instigates a proceeding whic h forces a continuance of the case at a particular term of court, he will not be permitted to take advantage of the delay

thus occasioned.

Id. (internal quotations and citation omitted).

Moreover, “[i]t is uniformly held in other ju risdictions that if th e delay in bringing the

accused to trial is attributable to the accused in any manner, the accused cannot take advantage of such delay and contend that he has been denied a speedy trial.” Id. (citations omitted). Finally, “where a court does not have time for the dispos ition of motions or pleas filed by the accused and a term passes as a result thereafter, such te rm cannot be counted as one of the three terms under the provisions of Code, 62-3-21, as amended.” Spadafore , 155 W.Va. at 679, 186 S.E.2d at 836 (citation omitted).

In the majority of the remaining terms for this Court’s consideration, petitioner initiated proceedings that caused the delay of which he now complains. After requesting a continuance during the September 2015 term of c ourt, petitioner stated his intention to f ile various motions

for the circuit court’s consideration. 5 In accordance with this repr esentation, petiti oner filed two motions to suppress and a motion to dismiss the i ndictment; however, petitioner did not file these motions until May 23, 2016 – afte r the January 2016 term of cour t had concluded and after the May 2016 term of court had commenced. Because pe titioner’s representati ons caused the delay during the January 2016 term of court, that term does not count as one of the three.

After petitioner filed his motions, the circui t court held a heari ng on June 21, 2016, at which multiple witnesses testified. Petitione r requested the opportunity to submit proposed findings of fact and conclusions of law, which request the circuit court granted. Petitioner submitted his proposed findings and conclusions on July 27, 2016, and the State submitted its own findings and conclusions on August 15, 2016. As the circuit court explained,

this . . . allowed approximately [twenty-ni ne] days for [it] to issue a ruling on [petitioner’s] motions and then commence a trial before the start of the September 2016 term[,] which began on September 13, 2016. However, [it] was called upon to meticulously review and consider th e undeniably complex factual and legal issues presented by the parties’ pleadings and the 241-page transcript from the June 21, 2016 hearing.

It is clear that the circuit court did not “have ti me for the disposition of mo tions or pleas filed by the accused” during the May 2016 term; accordingly, wh ere “a term passes as a result thereafter,

such term cannot be counted as one of the three terms under th e provisions of Code, 62-3-21, as

amended.” Id.

5 Petitioner’s motion to continue the trial date also sought “to continue his case generally as may be required.”9 The next term for consideration is the September 2016 term, during which the circuit court informed the parties of its rulings following the June 21, 2016, hearing and instructed them to schedule a status conference. No conduct on peti tioner’s part appears from the record to have contributed to any delay during this term; accord ingly, we count it toward the three-term limit.

During the next term – the January 2017 term – the circuit court held a status conference at which the State sought clarific ation of the circuit court’s rulings on the motions to suppress. Petitioner failed to appear for the status conference, however, and th e status conference had to be rescheduled. The parties agreed to reschedule it for June 6, 2017, which continued the case into the next term of court. Given petitioner’s fa ilure to appear at the status conference and subsequent agreement to continue the matter to the next term of court, we find that this term is

not an unexcused term.

The final term for consideration – th e May 2017 term – commenced on May 1, 2017.

This term counts toward the three-term calculati on, but petitioner was tried during this term of court. Accordingly, petitioner wa s tried during three terms of c ourt, and his rights under West Virginia Code § 62-3-21 were not violated.

Finally, although petitioner’s ar gument on appeal focuses on his right to a speedy trial under the legislative pronouncement of that standard found in West Virginia Code § 62-3-21, he also seemingly invokes his speedy trial right un der the Sixth Amendment to the United States Constitution. To the extent petitioner argues that ground as well, we reiterate our holding that “[i]f a conviction is validly obtained within the time set forth in the three-term rule, W.Va. Code 62-3-21 [1959], then that conviction is pres umptively constitutional under the speedy trial provisions of the Constitution of the United States , Amendment VI[.]” Syl. Pt. 3, State v.

Carrico , 189 W.Va. 40, 427 S.E.2d 474 (1993). Accordingl y, petitioner’s right to a speedy trial

was not violated under either the West Vi rginia or United States Constitution.

For the foregoing reasons, we affirm the circuit court’s September 26, 2017, sentencing

order.

Affirmed.

ISSUED : November 21, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

DISQUALIFIED:

Justice Paul T. Farrell sit ting by temporary assignment