STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
June 15, 2023
State of West Virginia, released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Respondent, Plaintiff below, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-0082 (Mineral County 19-F-78)
Tammy Gray,
Petitioner, Defendant below.
MEMORANDUM DECISION
The petitioner Tammy Gray (“the petitioner”)1 appeals from her conviction in the
Circuit Court of Mineral County, West Virginia, on five counts of burglary, grand larceny,
conspiracy, and destruction of property, all charges arising from the theft of items from a
home and outbuildings located in the Ellifritz Addition of Fountain, West Virginia. The
petitioner contends that her convictions should be reversed because the circuit court
severed her trial from that of her codefendant during a hearing at which neither she nor her
counsel was present; that her convictions of both conspiracy to commit burglary and
conspiracy to commit larceny violated the double jeopardy clause of article III, section 5
of the West Virginia Constitution; and that the circuit court erred in denying her motion to
suppress evidence that was seized from her home and vehicle.
Upon careful review of the parties’ briefs and arguments, the appendix record, and
the applicable law, we affirm, in part, reverse, in part, and remand for further proceedings
consistent with this opinion.2
1
The petitioner is represented by Jeremy B. Cooper. The State is represented by
Patrick Morrisey, Attorney General, Lindsay S. See, Solicitor General, and Mary Beth
Niday, Assistant Attorney General.
2
A memorandum decision addressing the merits of this case is appropriate. See W.
Va. R. App. P. 21(a).
1
The relevant facts are as follows. On July 21, 2019, an anonymous telephone call
was made to 911, informing authorities that a white 2009 Chevrolet Impala 3 had been
parked along the roadway in front of a home and outbuildings in the Ellifritz Addition
owned by James and Jean Nutter (“the Nutters”) for approximately five hours, from 11:00
a.m. to almost 4:00 p.m. The caller stated that the petitioner was sitting in the car during
this time period. Lt. Chris Leatherman, Capt. J.J. Wingler, and Dep. Logan Talley of the
Mineral County Sheriff’s Department responded. When they arrived at the scene the
Impala was gone, but the officers noticed “a lot of stuff out in the parking area” that
“appeared to be stacked out in the driveway . . . to be picked up later[.]” The officers further
noticed that the front door to the residence was damaged and had obviously been forced
open.
After the officers did a walk-through of the home and outbuildings in order to clear
the scene, Capt. Wingler remained to inventory the property strewn around the parking
area and to determine what items, if any, were missing from the Nutters’ home and/or their
outbuildings. Lt. Leatherman and Dep. Talley drove to the petitioner’s home, where they
observed a white 2009 Chevrolet Impala parked in the driveway, “jammed full of items[.]”
Although no one responded to the officers’ knock, neighbors advised them that petitioner
and another individual had just entered the residence. The officers, who were in possession
of two existing search warrants for the petitioner’s residence – search warrants that had
been issued in connection with investigations into two other recent burglaries 4 ̶ knocked
again and, receiving no response, entered through the unlocked door.
Inside the petitioner’s home the officers observed that both the petitioner and a male
companion, later identified as Clinton Knotts (“Mr. Knotts”), were asleep on the couch,
the petitioner in a prone position and Mr. Knotts in a seated position with a trail camera
resting on his lap. When the petitioner and Mr. Knotts woke up, the officers patted them
down for their (the officers’) protection and discovered several pieces of jewelry in Mr.
Knotts’ pocket: rings and a locket necklace. Both the trail camera and the jewelry were
later identified by the Nutters as belonging to them.
Because the officers weren’t clear as to whether their existing warrants gave them
authority to search the Impala for evidence relevant to the Nutter burglary, they secured
the vehicle with evidence tape, had it towed to police headquarters, and obtained a search
warrant the following day. This search warrant listed the property to be seized as jewelry,
3
Information contained in the appendix record indicates that some area residents
had a specific reason to be suspicious about this particular vehicle’s presence in their
neighborhood; however, none of this information was introduced into evidence at the trial.
4
The petitioner was a suspect in both of the earlier burglaries because neighbors
had noticed her car, a 2009 white Impala, at the scenes. See supra note 1.
2
hunting equipment, items used for the assembly or manufacture of a garden pond,
landscaping equipment or supplies, a hose, and “any other item that was stolen from the
[Nutter]residence[.]” In this regard, because the Nutters were out of town and thus
unavailable at that point to provide a more comprehensive list of what had been stolen, the
police listed these categories of items based on logical inference from information then
known to them: Mr. Knotts’ possession of jewelry and a trail camera, and items strewn
around the driveway of the Nutters’ property which pointed to the perpetrators’ interest in
landscaping projects.
The petitioner and Mr. Knotts were transported to the police station, where the
petitioner gave a statement5 alleging that Mr. Knotts was the principal actor in the events
that had taken place that day. According to the petitioner, Mr. Knotts was the one who
actually burgled the Nutters’ home and outbuildings while she remained in the car, sleeping
and/or playing games on her phone. She claimed to be unaware that Mr. Knotts had entered
the house but admitted that she was aware he had entered the outbuildings. She further
admitted she assisted Mr. Knotts in loading items into her vehicle, after which she returned
to her home, where the officers later found both her and Mr. Knotts asleep on the couch. 6
The petitioner was indicted on one count of burglary, W. Va. Code § 61-3-11(a)
(2020); one count of grand larceny, id. § 61-3-13(a) (2020); two counts of conspiracy to
commit a felony, id. § 61-10-31 (2020), including one count of conspiracy to commit
burglary, and one count of conspiracy to commit grand larceny; and one count of
destruction of property, id. § 61-3-30(a) (2020).
During pre-trial proceedings, the circuit court held an evidentiary hearing on the
petitioner’s motion to suppress all of the evidence gathered by the police pursuant to the
three search warrants discussed supra.7 Counsel argued that none of these warrants
described the property to be seized with the particularity mandated by article III, section 6
of the West Virginia Constitution.8 After hearing the testimony of the witnesses and the
argument of counsel, the court disagreed, finding that all three warrants were “fine” and
5
The statement itself was not entered into evidence at the trial; however, Lt.
Leatherman testified as to its contents, without objection.
6
Although the petitioner’s house could not be seen from the Nutters’ house, it was
located in the same neighborhood and was no more than a two-minute drive away.
7
The docket sheet for the petitioner’s case does not reflect that a motion to suppress
was ever filed. However, that such a motion was made in some form or fashion is evident
from the fact that the circuit court held a hearing on it.
8
See discussion infra.
3
that “there’s only so many ways I can describe a blue box, a blue tote, or a green garden
hose.”
Although the appendix record does not disclose when the circuit court ordered the
petitioner to be tried jointly with Mr. Knotts, who had been indicted on identical charges,
it is clear that at some point joinder was ordered pursuant to Rule 13 of the West Virginia
Rules of Criminal Procedure.9 There was no objection thereto until the morning of trial,
when the prosecutor moved to sever Mr. Knotts’ trial from the petitioner’s trial on the
ground that admission of the petitioner’s statement at trial – a statement that incriminated
Mr. Knotts as well as the petitioner – would present a confrontation issue under Bruton v.
United States, 391 U.S. 123 (1968).10
Neither the petitioner nor her counsel was present when the severance motion was
made and granted. The petitioner states that counsel first learned of it after the fact, when
he arrived at the courthouse for trial, and there is no indication in the record that he lodged
an objection to the severance, moved for a continuance, or requested any other form of
relief. Rather, the petitioner’s trial proceeded as scheduled.
Following jury selection and opening statements, the State called four witnesses:
the three police officers involved in the investigation and Mrs. Nutter, one of the victims.11
Although the petitioner’s statement was not admitted into evidence, it was briefly
summarized by Lt. Leatherman during his testimony as follows: after being duly cautioned
as to her rights, the petitioner stated that her only involvement in the charged offenses was
to drive Mr. Knotts to the Nutters’ home, after which she waited in the car, variously
9
West Virginia Rule of Criminal Procedure 13 provides, in relevant part, that
[t]he court may order two or more indictments or informations
or both to be tried together if the offenses, and the defendants
if there is more than one, could have been joined in a single
indictment or information, except that the court may not order
a joint trial of more than one defendant in a felony case if a
defendant or the state objects.
10
See Bruton, 391 U.S. at 126 (holding that “because of the substantial risk that the
jury, despite instructions to the contrary, looked to the incriminating extrajudicial
statements in determining petitioner’s guilt, admission of [co-defendant’s] confession in
this joint trial violated petitioner’s right of cross-examination secured by the Confrontation
Clause of the Sixth Amendment[,]” overruling Delli Paoli v. United States, 352 U.S. 232
(1957)).
11
The petitioner did not challenge the sufficiency of the evidence at the conclusion
of the State’s case. See text infra.
4
napping and playing games on her phone while Mr. Knotts broke into the home and the
outbuildings. The petitioner admitted that she did assist in loading the stolen goods into her
car, and transporting them back to her home, where she left the car – still “crammed with
stuff” – in her driveway and went into her home to await Mr. Knotts’ return. Significantly,
the petitioner did not object to Lt. Leatherman’s testimony concerning the statement – a
statement she had never moved to suppress, even after an inquiry from the circuit court as
to her intentions in this regard.12
In their respective testimonies, the three police officers described the jewelry and
trail camera that had been on Mr. Knotts’ person when the officers entered the petitioner’s
home, as well as the items seized from the petitioner’s vehicle pursuant to the search
warrant obtained the day after the incident at the Nutter home.13 The only items of physical
evidence admitted at trial were photographs of the Nutter residence, photographs of the
items seized pursuant to the search warrant, the property receipt for those items, and the
petitioner’s signed Miranda14 rights form.
Following the testimony of the State’s final witness, Mrs. Nutter, both parties rested
and, after closing arguments and the court’s instructions, the jury retired to deliberate. The
petitioner was convicted on all five counts in the indictment and received an effective
12
During a pre-trial suppression hearing on the petitioner’s challenges to the search
warrants, the circuit court inquired as to whether the petitioner was seeking to suppress her
statement to the police, as follows:
THE COURT: All right. So what do you want me to do?
Are we going to try to suppress [the statement] or what?
[DEFENSE COUNSEL]: No, Your Honor, I don’t have
a motion to suppress.
13
The relevant items were described on the property receipt as an old metal gas can,
silver and blue in color; a bag of peat moss; a Thinco Industries 15-gallon sprayer; a large
blue bucket with rope handles; a Summit tree stand, aluminum with a camouflage seat; a
blue milk crate with landscape edging and a green tarp in it; a Warner six-foot aluminum
stepladder; a folding chair with a case; a Garrett Ace metal detector; a green extension
cord; two pieces of plastic pipe; a black plastic garden pond liner with a plant; a partial jug
of Bitefighter torch fuel; a submersible water pump, designed for use in the garden pond;
a solar outdoor landscape light kit; a solar outdoor light shaped like a butterfly; a solar
outdoor light shaped like a hummingbird; a partial bag of Dr. T’s snack [sic] repellant; a
partial bottle of Smart pond algaecide; a metal flower pot with a hanging hook; and a black
bungee strap.
14
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
sentence of three to twenty-five years in the penitentiary. Specifically, her sentence on the
burglary charge (one to fifteen years) and her sentences on the two conspiracy charges (one
to five years each) were set to run consecutively, while her sentence on the grand larceny
charge (one to five years) and her sentence on the destruction of property charge (one year
in the regional jail) were set to run concurrently with the aforesaid sentences. This appeal
followed.
A. Right to be Present at a Critical Stage of the Proceeding
In the petitioner’s first assignment of error, she claims that she was denied her right
to be present during what she argues was a critical stage of the criminal proceeding against
her: the hearing on the State’s motion to sever Mr. Knotts’ trial from the petitioner’s trial.
It is undisputed that neither the petitioner nor her counsel received notice of this hearing,
and that neither learned of it until after the fact, when they arrived at the courthouse on the
morning trial was set to begin.
The petitioner argues that her absence from this hearing, either personally or by
counsel, was constitutional error, and that prejudice is therefore conclusively presumed. In
this regard, she cites Van v. Jones, 475 F.3d 292 (6th Cir. 2007) for the proposition that
“[t]he [Supreme Court of the United States] has uniformly found constitutional error
without any showing of prejudice when counsel was either totally absent, or prevented
from assisting the accused during a critical stage of the proceeding.” Id. at 305 n.25.
Alternatively, the petitioner argues that in the event this Court finds the error, although
constitutional, to be subject to a harmless error analysis, she is still entitled to reversal of
her conviction for two reasons: first, in the absence of her codefendant, Bruton15 did not
come into play and her statement therefore became admissible at trial; and second, her
counsel, who had prepared for a joint trial right up to the morning of trial, was suddenly
forced to proceed to a single defendant trial.
This Court has held that
[a] defendant is constitutionally guaranteed the right to be
present at any stage of the criminal proceeding that is critical
to its outcome, if his or her presence would contribute to the
fairness of the procedure. We held in Syllabus point 6 of State
v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977), that “[t]he
defendant has a right under Article III, Section 14 of the West
Virginia Constitution to be present at all critical stages in the
criminal proceeding; and when he is not, the State is required
to prove beyond a reasonable doubt that what transpired in his
15
See supra note 8.
6
absence was harmless.” See also Kentucky v. Stincer, 482 U.S.
730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987). We
also have held that “[a] critical stage of a criminal proceeding
is where the defendant’s right to a fair trial will be affected.”
Syl. pt. 2, State v. Tiller, 168 W. Va. 522, 285 S.E.2d 371
(1981).
State v. Tex B.S., 236 W. Va. 261, 264, 778 S.E.2d 710, 713 (2015). In this case, although
the State acknowledges the rule first articulated in Boyd, it argues that it is not applicable.
Because there is no constitutional right to be tried jointly with one’s codefendant, the State
reasons, a hearing on a motion to sever the codefendant’s trial is not a “critical stage” within
the meaning of the case law. In contrast, the petitioner argues that there is no support for
the proposition that a critical stage must concern an issue of constitutional magnitude;
rather, “[a] critical stage of a criminal proceeding is where the defendant’s right to a fair
trial will be affected.” State v. Sites, 241 W. Va. 430, 444, 825 S.E.2d 758, 772 (2019)
(citing Syl. Pt. 2, State v. Tiller, 168 W. Va. 522, 285 S.E.2d 371 (1981)).
As a threshold matter, we must consider whether this issue was properly preserved
for appellate review because, as set forth supra, there is no indication in the record that
after the petitioner’s counsel learned of the severance16 he lodged an objection with the
circuit court, moved for a continuance, or requested any other form of relief from the court
in regard to this ruling at any point during the trial or even in a post-trial motion. See, e.g.,
State v. Miller, 194 W.Va. 3, 17, 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)). In her brief, the petitioner states that “[f]or all we
know, the [p]etitioner did object upon learning of the severance[,]” and alleges that
[t]he Circuit Court was derelict in failing to make any record
on the manner in which it informed the Petitioner of its ruling
(if it ever even explicitly did so, rather than allowing trial
counsel to come to his own conclusions implicitly) between the
end of the severance hearing and the beginning of jury
selection.
16
As previously mentioned supra, the petitioner states that her counsel learned of
the severance from Mr. Knotts’ counsel upon her counsel’s arrival at the courthouse on the
morning of trial.
7
This argument wholly misses the mark. If counsel learns from any source of an occurrence
that will prejudice his or her client, it is incumbent upon counsel, not the court, to raise the
issue on the record and seek a ruling thereon. Accordingly, we decline petitioner’s
invitation to speculate (“for all we know . . .”) as to what counsel did or didn’t do, and find
that the issue, raised in the first instance on appeal, may only be reviewed for plain error.17
This Court’s precedents have uniformly held that
“‘“‘The plain error doctrine of W. Va. R Crim. P. 52(b),
whereby the court may take notice of plain errors or defects
affecting substantial rights although they were not brought to
the attention of the court, is to be used sparingly and only in
those circumstances in which a miscarriage of justice would
otherwise result.’ Syllabus Point 2, State v. Hatala, 176 W. Va.
435, 345 S.E.2d 310 (1986).” Syl. Pt. 4, State v. Grubbs, 178
W. Va. 811, 364 S.E.2d 824 (1987).’ Syl. Pt. 3, State ex rel.
Games-Neely v. Yoder, 237 W. Va. 301, 787 S.E.2d 572
(2016).”
Syl. Pt. 3, State v. Wilson, 244 W. Va. 370, 853 S.E.2d 610 (2020). In this regard, the test
for plain error is a rigorous one:
“‘“‘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 proceeding.’ Syl.
Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).”
Syl. Pt. 4, State ex rel. Games-Neely v. Yoder, 237 W. Va. 301,
787 S.E.2d 572 (2016).’
Wilson, 244 W. Va. at 372, 853 S.E.2d at 612, Syl. Pt. 4.
17
The petitioner has not sought plain error review, even as a fallback position,
contending that any failure to object on her counsel’s part was the fault of the circuit court.
Nonetheless, “‘[t]his Court’s application of the plain error rule in a criminal prosecution is
not dependent upon a defendant asking the Court to invoke the rule. We may, sua sponte,
in the interest of justice, notice plain error.’ Syllabus point 1, State v. Myers, 204 W. Va.
449, 513 S.E.2d 676 (1998).” Syl. Pt. 1, State v. McDonald, No. 21-0796, 2023 WL
2945044, __ W. Va. __, __ S.E.2d __ (W. Va. Apr. 14, 2023).
8
We find it unnecessary to determine whether the hearing on the State’s motion to
sever Mr. Knotts’ trial from the petitioner’s trial was a critical stage in the proceeding, 18 a
question relevant to the first three prongs of the plain error analysis, because there is not a
scintilla of evidence in the record to support a finding that the petitioner’s absence from
that hearing “seriously affect[ed] the fairness, integrity, or public reputation of the judicial
proceeding.” Wilson, 244 W. Va. at 372, 853 S.E.2d at 612, Syl. Pt. 4, in part. The petitioner
first argues that the severance of Mr. Knotts’ trial was fundamentally unfair because in his
absence, the petitioner’s statement became admissible in evidence. However, the petitioner
clearly and unequivocally waived her right to appellate review of this issue, including plain
error review, when in response to the circuit court’s inquiry as to whether counsel was
going to move to suppress the statement, he specifically declined: “No, your honor, I don’t
have a motion to suppress.” See State v. Crabtree, 198 W. Va. 620, 630, 482 S.E.2d 605
615 (1996) (“[T]he first inquiry under [Rule 52(b) of the West Virginia Rules of Criminal
Procedure] is whether there has in fact been error at all. . . . [D]eviation from a rule of law
is error unless there is a waiver. Waiver . . . is the ‘“intentional relinquishment or
abandonment of a known right.”’ . . . [W]hen there has been such a knowing waiver, there
is no error and the inquiry as to the effect of the deviation from a rule of law need not be
determined.”) (citing Miller, 194 W. Va. at 18, 459 S.E.2d at 129) (emphasis added)).19
Further, and critically, the petitioner does not even suggest, let alone argue, any legal basis
on which the petitioner’s statement could be deemed inadmissible in evidence against her.
Additionally, the petitioner argues that her exclusion, and that of her counsel, from
the severance hearing was prejudicial because counsel was forced to go to trial in the
absence of any notice that Mr. Knotts’ trial had been severed from the petitioner’s trial.
However, the petitioner failed to object to the severance when her counsel learned of it, did
18
See Tiller, 168 W. Va. at 522, 285 S.E.2d at 371, Syl. Pt. 2.
19
It could be argued that at the time counsel declined to make a motion to suppress
he reasonably believed the statement would be excluded from evidence pursuant to Bruton
in what was anticipated to be a joint trial. See supra note 10. However, counsel never made
this (or any other) argument after learning that Mr. Knotts’ trial had been severed; rather,
when Lt. Leatherman testified at trial as to the content of the petitioner’s extrajudicial
statement, counsel did not object. Thus, assuming, arguendo, that counsel could somehow
have resuscitated this otherwise dead issue by objecting to the admission of the petitioner’s
statement at trial, his failure to object constituted a forfeiture. See Miller, 194 W. Va. at 18,
459 S.E.2d at 129. And in any event, it has been held that “if a defendant waives a right
(which is waivable), he cannot later raise an objection on the grounds that the failure to
provide him with the waived right is error.” United States v. David, 83 F.3d 638, 641 n.5
(4th Cir. 1996) (cited with approval in Crabtree, 198 W. Va. at 616, 482 S.E.2d at 631).
9
not articulate any specifics as to how counsel’s trial preparation or overall trial strategy
were affected by the severance, and did not move for a continuance in order to prepare or
re-strategize. In a similar vein, the petitioner’s argument on appeal is wholly conclusory;
she alleges that the severance prejudiced her but gives this Court no information as to what
the prejudice was and how it affected her trial strategy – if at all. It is not for an appellate
court to fill in the blanks of a silent record and a silent brief; this Court will not speculate
as to the existence of prejudice where none was articulated below or on appeal. See In re
Christina L., 194 W. Va. 446, 454, 460 S.E.2d 692, 700 (1995) (“This Court will not
speculate as to what the arguments of counsel would have been or as to their potential effect
on the circuit court.”).
In light of the foregoing, we find that the petitioner has failed to establish that her
exclusion from the hearing on the State’s motion to sever the codefendants’ case from her
own constituted plain error which “seriously affects the fairness, integrity, or public
reputation of the judicial proceeding.” Wilson, 244 W. Va. at 372, 853 S.E.2d at 612, Syl.
Pt. 4, in part. We therefore afford the petitioner no relief on the basis of this assignment of
error.
B. Double Jeopardy
The petitioner’s second assignment of error is that she was improperly convicted of
two counts of conspiracy to commit a felony – specifically, Count II, conspiracy to commit
burglary, and Count IV, conspiracy to commit grand larceny – in a case where the evidence
demonstrated the existence of only one agreement. The gist of that single agreement, the
petitioner argues, was set forth in the text of Count I, the burglary charge, which alleged
that the burglary was committed “with the intent to steal items” from the “residence and
outbuilding.” Thus, the petitioner argues, the scope of the conspiracy to commit grand
larceny, Count IV, was wholly subsumed within the conspiracy to commit burglary, Count
II.
As was the case with respect to the petitioner’s first assignment of error, our initial
inquiry is whether this issue was properly preserved for appellate review. In this regard,
the petitioner candidly acknowledges that the issue was not raised in pre-trial proceedings,
at trial, or in a post-trial motion. She argues that this Court should nonetheless consider the
issue on plain error review because it is “the sort of clear and obvious error that necessitates
relief,” that trial counsel’s failure to preserve the issue for appellate review “would almost
certainly result in collateral relief in an ineffective assistance of counsel claim,” and that
the prejudice is obvious because the circuit court set the sentences on the two conspiracy
counts to run consecutive to each other.
We agree that resolution of this issue is governed by this Court’s established test for
plain error, set forth supra in detail. See id., 244 W. Va. at 372, 853 S.E.2d at 612, Syl. Pts.
3 & 4. The petitioner frames the issue solely as one involving the double jeopardy clause
10
of the West Virginia Constitution20 which “prohibits multiple punishments for the same
offense[.]”21 Thus, our inquiry in this case is whether Ms. Gray received multiple
punishments for the same offense.
AN ERROR. As stated, the first issue to be determined on plain error review is
whether the circuit court committed error in sentencing Ms. Gray for two separate
conspiracies. See id., 244 W. Va. at 372, 853 S.E.2d at 612, Syl. Pt. 4.
In West Virginia, “a conspiracy to commit one or more substantive crimes does not
mean an accused may be charged with conspiracy to commit each separate crime.” State v.
Johnson, 179 W. Va. 619, 630-31, 371 S.E.2d 340, 351-52 (1988). As we explained in
Johnson, “[t]he double jeopardy clause of the Fifth Amendment prohibits the prosecution
of a single conspiracy as two or more conspiracies under a general conspiracy statute
merely because two separate substantive crimes have been committed.” Id. at 622, 371
S.E.2d at 343, Syl. Pt. 7 (regarding the Fifth Amendment of the United States Constitution).
The court should examine the totality of the circumstances to determine “whether single or
multiple conspiracy agreements exist.” Id. at 630, 371 S.E.2d at 351. The factors we have
set forth for courts to consider “under a totality of circumstances test” are
(1) time; (2) persons acting as co-conspirators; (3) the statutory
offenses charged in the indictments; (4) the overt acts charged
by the government or any other description of the offenses
charged which indicate the nature and the scope of the activity
which the government sought to punish in each case; and (5)
places where the events alleged as part of the conspiracy took
place.
Id. at 622, 371 S.E.2d at 343, Syl. Pt. 8, in part. The prohibition on the prosecution of the
multiple conspiracies, with only one agreement, also prohibits multiple conspiracy
convictions and sentences on only one agreement. See State v. Judy, 179 W. Va. 734, 737,
372 S.E.2d 796, 799 (1988) (concluding that “as a matter of law that the defendant’s
multiple conspiracy convictions were improper under Johnson”).
20
Article III, section 5 of the West Virginia Constitution provides, in relevant part,
that “nor shall any person, in any criminal case . . . be twice put in jeopardy of life or liberty
for the same offense.”
21
Syl. Pt. 2, in part, State v. Kent, 223 W. Va. 520, 678 S.E.2d 26 (2009) (holding
that double jeopardy clause “prohibits multiple punishments for the same offense”).
11
Applying these Johnson factors to the evidence adduced at trial, we first note that
the evidence of any agreement between the petitioner and Mr. Knotts was wholly
circumstantial; the petitioner’s statement was silent on this point, and there was no
evidence as to any conversations between the two bearing directly upon their intentions.22
As a threshold matter, it is well established in our case law that a conspiracy may
be proved by circumstantial evidence. See, e.g., State v. Bouie, 235 W. Va. 709, 722, 776
S.E.2d 606, 619 (2015) (“Lacking any witness who could testify concerning
communications between Bouie and Payne, the prosecution was obliged to demonstrate
their agreement by resort to circumstantial evidence. The requisite level of certainty as to
an agreement of any sort could be established by showing that both men were present when
– as the physical evidence suggested – one of them began to cut the screen out of
Poindexter’s window to gain access to the apartment.”). In the instant case, the State had
ample circumstantial evidence to support the existence of an agreement to steal items from
the Nutters’ home and/or outbuildings: the fact that the petitioner and Mr. Knotts went
together to the Nutters’ property in the petitioner’s 2009 white Impala; that the petitioner
waited patiently for hours while Mr. Knotts entered the outbuilding and broke into the
house; that the petitioner helped Mr. Knotts load the stolen goods into her vehicle; and that
the petitioner took that vehicle, packed with items taken from the Nutters’ property, back
to her home. However, in light of the totality of the circumstances, our review of the record
discloses no evidence, circumstantial or otherwise, from which it could reasonably be
found that the petitioner and Mr. Knotts entered into two separate conspiracies, one to
commit burglary and another to commit grand larceny. On this point, our analysis in
Johnson is dispositive:
In the present case, we conclude as a matter of law that only
one conspiracy case was shown by the evidence. Viewing the
evidence in the light most favorable to the State, only one
agreement was proven – an agreement to rob the store. The fact
that the act of robbing the store constituted two distinct crimes,
breaking and entering and larceny, cannot transform one
agreement into two agreements under the conspiracy statute.
The totality of circumstances test would show the time, persons
acting as co-conspirators, and the place where the events
22
The only conversations referenced in the petitioner’s statement had to do with Mr.
Knotts’ request, after he and the petitioner had arrived at the Nutters’ property, that the
petitioner return home and empty a trailer which was attached to the Impala. Mr. Knotts
was annoyed when the petitioner returned without the trailer, as his intentions had
apparently been for her to empty it at her home and then bring it back. Her failure to do so
was the reason the Nutters’ property ended up being crammed into the car.
12
alleged as a part of the conspiracy took place were substantially
the same. The statutory substantive offenses charged were the
same as the overt acts charged in the two conspiracy charges,
i.e., (1) breaking and entering and (2) larceny. Consequently,
the defendant’s conviction of two conspiracy offenses
constituted a violation of the foregoing established double
jeopardy principles.
179 W. Va. at 630-31, 371 S.E.2d at 351-52 (emphasis added). Thus, we conclude that the
first prong of the plain error test is satisfied: The circuit court violated the prohibition
against double jeopardy and erred by sentencing Ms. Gray for two conspiracies, when the
evidence only showed one agreement, thus punishing her twice for a single crime.
AN ERROR THAT IS PLAIN. Under the facts and circumstances of this case, this
prong of the plain error test requires little discussion. See id. There are few principles more
firmly established in our jurisprudence than this: an individual can only be sentenced once
for a single crime. Where, as here, the State failed to present any evidence that the petitioner
and Mr. Knotts entered into more than one agreement, we conclude that the second prong
of the plain error test, id., is satisfied; the circuit court’s error in sentencing Ms. Gray twice
for the same crime was plain.
AN ERROR THAT AFFECTS SUBSTANTIAL RIGHTS. As a corollary to the
jurisprudential principle set forth in the preceding discussion, every defendant in a criminal
case has the right, secured by article III, section 5 of the West Virginia Constitution, not to
“be twice put in jeopardy of life or liberty for the same offense,” which is exactly what
happened when the court imposed consecutive sentences on the two conspiracy counts. See
text infra. Thus, we easily conclude that the third prong of the plain error test is satisfied;
the circuit court’s error in sentencing Ms. Gray twice for the same crime affected the
petitioner’s constitutional rights and was thus substantial error beyond question. See
Wilson, 244 W. Va. at 372, 853 S.E.2d at 612, Syl. Pt. 4.
AN ERROR THAT SERIOUSLY AFFECTS THE FAIRNESS, INTEGRITY, OR PUBLIC
REPUTATION OF THE JUDICIAL PROCEEDING. The petitioner claims that in a case where
the evidence at trial proved the existence of only one agreement between coconspirators,
not only her convictions on two counts of conspiracy but also the circuit court’s imposition
of consecutive sentences thereon violated her rights under article III, section 5 of the West
Virginia Constitution, which prohibits being “twice put in jeopardy of life or liberty for the
same offense.” See supra note 19. We agree. Under the facts and circumstances of this
case, both our jurisprudence and that of the United States Supreme Court support this
conclusion. See Johnson, 179 W. Va. at 622, 371 S.E.2d at 343, Syl. Pt. 7 (“The double
jeopardy clause of the Fifth Amendment prohibits the prosecution of a single conspiracy
as two or more conspiracies under a general conspiracy statute merely because two separate
substantive crimes have been committed.”) (emphasis added); see also State v. Buracker,
13
No. 18-0831, 2020 WL 261741, at *3 (W. Va. Jan. 17, 2020) (memorandum decision)
(acknowledging syllabus point seven of Johnson as governing law but distinguishing that
case because the proof in Buracker was sufficient to establish that “on at least two
occasions, on two different days, two separate conspiracies occurred and resulted in two
distinct drug sale transactions.”). Further, with respect to the consecutive sentences
imposed by the circuit court on the petitioner’s convictions for conspiracy to commit
burglary (Count II) and conspiracy to commit grand larceny (Count IV), the seminal case
is Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1873), wherein the United States Supreme
Court wrote that “the Constitution was designed as much to prevent the criminal from being
twice punished for the same offense as from being twice tried for it.”) (emphasis added).
In State v. John H. B., No. 18-0905, 2019 WL 5092948, at *4 (W. Va. Oct. 11, 2019)
(memorandum decision), this Court noted its wholehearted agreement, citing Ex parte
Lange for the sweeping proposition that “[i]f there is anything settled in the jurisprudence
of England and America, it is that no man [or woman] can be twice lawfully punished for
the same offence.” Id. at *4.
In light of the foregoing authorities, we can, again, easily conclude that the fourth
prong of the plain error test is satisfied. See Wilson, 244 W. Va. at 372, 853 S.E.2d at 612,
Syl. Pt. 4. Because the petitioner was prosecuted, convicted, and punished on two counts
of conspiracy, but the evidence at trial demonstrated the existence of only one agreement
between the conspirators, it is clear that the violation of the petitioner’s double jeopardy
rights – rights “settled in the jurisprudence of England and America” – affected the fairness,
integrity, or public reputation of the judicial proceeding. See John H.B., 2019 WL
5092948, at *4.
For all of these reasons, we reverse the circuit court insofar as it sentenced the
petitioner on two counts of conspiracy, and instruct the circuit court, on remand, to vacate
one of the petitioner’s conspiracy convictions, render a judgment of not guilty on that
charge, and resentence the petitioner accordingly.
C. Search and Seizure
In the petitioner’s final assignment of error, she alleges that the circuit court erred
in denying her motion to suppress the evidence gathered by police pursuant to all three of
their search warrants: the two in their possession at the time they entered the petitioner’s
home, and the warrant they secured the following day to search her vehicle. Our standard
of review is two-faceted. This Court has held that
“‘[w]hen reviewing a ruling on a motion to suppress, an
appellate court should construe 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
14
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, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719
(1996).”
Syl. Pt. 2, State v. Payne, 239 W. Va. 247, 800 S.E.2d 833 (2016). On the other hand,
“‘[i]n contrast to a review of the circuit court’s factual
findings, the ultimate determination as to whether a search or
seizure was reasonable under the Fourth Amendment to the
United States Constitution and Section 6 of Article III of the
West Virginia Constitution is a question of law that is reviewed
de novo. . . . Thus, a circuit court’s denial of a motion to
suppress evidence will be affirmed unless it is unsupported by
substantial evidence, based on an erroneous interpretation of
the law, or, based on the entire record, it is clear that a mistake
has been made.’ Syl. Pt. 2, in part, State v. Lacy, 196 W.Va.
104, 468 S.E.2d 719 (1996).”
Payne, 239 W. Va. at 249, 800 S.E.2d at 835, Syl. Pt. 1.
It is important to emphasize that the petitioner’s sole argument with respect to all
three search warrants is that they failed to describe the items to be seized with the
particularity required by article III, section 6 of the West Virginia Constitution, which
provides:
The rights of the citizens to be secure in their houses, persons,
papers and effects, against unreasonable searches and seizures,
shall not be violated. No warrant shall issue except upon
probable cause, supported by oath or affirmation, particularly
describing the place to be searched, or the person or things to
be seized.
More specifically, the petitioner contends that because the warrants contained “generic
terms” describing “items common [sic] found in any home[]” (such as “jewelry” or
“landscaping supplies”), they had the effect of allowing “an expansive seizure in the nature
of a general search.” See, e.g., State v. Lacy, 196 W. Va. 104, 111, 468 S.E.2d 719, 726
(1996) (“When a warrant is the authority for the search, the executing officer must act
within the confines of the warrant. More pertinent to this case, the police may not use an
initially lawful search as a pretext and means to conduct a broad warrantless search.”). For
this reason, the petitioner argues, the circuit court erred in its “decision to allow in all of
the seized items[.]”
15
We find that the petitioner’s argument fails for several reasons. First, with respect
to the first two warrants, the petitioner’s suppression issue is wholly theoretical. None of
the items described in these warrants had anything to do with the burglary of the Nutters’
home; indeed, none of them were even mentioned at the petitioner’s trial, let alone admitted
into evidence. The only relevance of the initial warrants is that they gave the officers the
right to enter the petitioner’s home when their attempt to do a “knock and talk”23 failed. In
this regard, the petitioner does not argue that the officers’ entry into the home was unlawful
because the warrants lacked particularity, or that it was otherwise unlawful for any other
reason. Further, the petitioner does not contest that the trail camera was found in plain
view, on Mr. Knotts’ lap, when the officers entered the petitioner’s home, or that the pat-
down search of Mr. Knotts, which yielded the jewelry stolen from the Nutters’ home, was
lawful.
Additionally, with respect to the third search warrant for the petitioner’s vehicle,
there is no support in our precedents for the proposition that items commonly found in
homes must be described in a search warrant with some enhanced layer of particularity,
i.e., with some additional descriptors. To the contrary, the law requires only that
[i]n determining whether a specific warrant meets the
particularity requirement, a circuit court must inquire whether
an executing officer reading the description in the warrant
would reasonably know what items are to be seized. In
circumstances where detailed particularity is impossible,
generic language is permissible if it particularizes the types of
items to be seized.
Lacy, 196 W. Va. at 107, 468 S.E.2d at 722, Syl. Pt. 3, in part (emphasis added). We find
that the listing of categories of items in the third warrant is sufficient to meet these
requirements. The categories were developed by the officers based on the types of items
stacked in the Nutters’ driveway in plain view and/or found on Mr. Knotts’ person during
a protective pat-down, and thus the officers “reasonably knew” what items they were
looking for. On the facts and circumstances of this case, we cannot say that the circuit
23
See Gable v. Gable, 245 W. Va. 213, 227 n.10, 858 S.E.2d 838, 852 n.10 (2021)
(“Called the ‘knock and talk’ rule, courts hold that any individual, including a law
enforcement officer without a warrant, has an implicit license to approach the front door
of a residence to knock and make inquiries. See, e.g., State v. Dorsey, 234 W. Va. 15, 19,
762 S.E.2d 584, 588 (2014). However, regardless of whether the person knocking is a
private citizen or a police officer, the homeowner has no obligation to open the door or
speak to the person knocking”).
16
court’s findings to this effect were clearly erroneous. Id; see also Payne, 239 W. Va. at
247, 800 S.E.2d at 719.
In summary, we find that any alleged lack of particularity in the first and second
warrants is irrelevant, as no evidence seized pursuant to those warrants was entered into
evidence at the petitioner’s trial and the petitioner does not contest the officers’ authority
to enter her home. Further, the circuit court’s finding that the description of items to be
seized in the third warrant was constitutionally sufficient was based on supportable factual
findings and was legally sound. The petitioner is not entitled to relief on the basis of this
assignment of error.
IV. Conclusion
For the foregoing reasons, the judgment of the circuit court is affirmed, in
part, reversed, in part, and remanded with instructions for the court to vacate one of
petitioner’s conspiracy convictions, render a judgment of not guilty on that charge, and
resentence the petitioner accordingly.
ISSUED: June 15, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
17