State of West Virginia vs. Wesley S. Malcomb

Charleston, WV - Criminal defense attorney represented Wesley Shawn Malcomb with two counts of wanton endangerment involving a firearm charges.

Petitioner and Melissa McNemar had been in a long-term relationship, during which time

petitioner drove a Ford Explorer. After the relationship ended, petitioner wanted to keep the

vehicle, though it was in Ms. McNemar's possession. On April 7, 2013, Ms. McNemar called the

Harrison County Sheriff's Department to request help making arrangements to return the Explorer

to petitioner. Deputy Zach Mealey instructed her to park the vehicle at the Spelter Fire Department

and leave the key under the mat. He also instructed petitioner to wait for ten to fifteen minutes

after the vehicle was dropped off before accessing it to drive home "so there wouldn't be any

confrontation between the two.” Ms. McNemar's friend, Shane Pierce, drove separately to the fire

department so that he could drive Ms. McNemar home afterward.1



1 According to petitioner, after the plan was in place but before they went to the fire

department, Mr. Pierce called petitioner and threatened to kill him or put him in the hospital.

Petitioner claims that he contacted Deputy Mealey to report the threats and asked to file a

complaint, but the deputy refused to take the complaint.

FILED

June 23, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

Instead of waiting the ten to fifteen minutes after the Explorer was parked at the fire

department, petitioner waited less than a minute before pulling into the parking lot. Mr. Pierce

walked over to petitioner's car to hand him the keys, at which time petitioner pulled a gun on Mr.

Pierce. Ms. McNemar yelled to petitioner to put the gun down, but petitioner struck Mr. Pierce in

the head with it, repeatedly saying, "I'm going to shoot you.” Petitioner also began waving the gun

around, pointing it at both Mr. Pierce and Ms. McNemar. There is a dispute as to whether petitioner

tried to run over Mr. Pierce with his truck, at which time Mr. Pierce threw a rock at petitioner

while petitioner was seated inside his truck. At that point, Ms. McNemar called 9-1-1. The

responding deputy obtained surveillance footage from the Spelter Fire Department parking lot,

which showed most of the encounter at issue. When petitioner was apprehended, a loaded Glock

.40 caliber magazine was recovered from his vehicle, but no gun was found. He initially denied

having a firearm during the encounter but later confessed.

Petitioner was indicted on two counts of wanton endangerment involving a firearm and one

count of assault. The indictment charged him with pointing a firearm at and threatening to shoot

Mr. Pierce, pointing a firearm at Ms. McNemar, and assaulting Mr. Pierce by attempting to strike

Mr. Pierce with his vehicle.

The State moved to suppress and redact a portion of the 9-1-1 recording, arguing that it

was irrelevant and constituted inadmissible impeachment evidence. Specifically, it sought to

exclude statements petitioner made from an unrelated event in which petitioner told the Harrison

County Sheriff's Department that one of the victims "ha[d] been arrested a lot of times,” was "a

big troublemaker,” and "spent a year in jail and everything else.” In an additional motion, the State

sought to exclude Ms. McNemar's statement made during a separate 9-1-1 call, in which she stated

that she previously "g[o]t [petitioner] on domestic violence.” In support of that motion, the State

argued that Ms. McNemar's prior domestic violence complaint against petitioner was irrelevant.

Petitioner also moved to suppress Ms. McNemar's statement made during the 9-1-1 call. The

circuit court held a hearing on those motions on October 7, 2013, during which petitioner's counsel

represented to the court that the State had provided a redacted version of the 9-1-1 calls and the

parties were in agreement with regard to those redactions. "So we can jointly agree to dismiss

[those motions] I believe.” The State immediately clarified

to make sure everything is on the record. I agree with everything [petitioner's

counsel] said, but just to ensure the parties and the [c]ourt understand what I believe

to be the agreement. There are two portions of the 911 call that the State had moved

to redact. One is – pertains to Mr. Malcomb's statements . . . in which Mr

Malcolm[sic] stated that one of the victims was, quote, unquote, "a big trouble

maker, had been arrested a lot of times, and served a year in jail.” I move to redact

that and that has been redacted from the copy I gave to [petitioner's counsel]. The

State believes that [is] impeachment evidence and irrelevant to the case at hand. In

addition, one of the victims had stated that, quote, "I had to get him” – meaning

Mr. Malcomb – "on domestic violence.” Which again is irrelevant to the case at

hand.

Petitioner's counsel did not present any objection or opposition to the State's representations.3

Petitioner filed a notice of affirmative defense: self-defense. In that notice, petitioner stated

that he drew his pistol and pointed it at Mr. Pierce in response to Mr. Pierce picking up and

preparing to throw a cinder block brick at petitioner while in petitioner's immediate proximity,

placing petitioner in fear of imminent danger, death, or serious bodily harm. Petitioner submitted

a self-defense instruction to the circuit court, and the circuit court gave that instruction to the jury.

Petitioner's jury trial was held in October of 2013, and petitioner was convicted of both

counts of wanton endangerment involving a firearm but acquitted of assault. He then filed a motion

for post-verdict judgment of acquittal, arguing there was insufficient evidence to support wanton

endangerment involving a firearm; that motion was denied by the circuit court. Petitioner was

sentenced to one year of incarceration for each conviction, said sentences to run concurrently.

However, the circuit court suspended those sentences and placed petitioner on home incarceration

as a form of alternative sentence. On April 8, 2019, petitioner filed a renewed motion for postverdict judgment of acquittal or, in the alternative, to reconsider his sentence. Thereafter, on

November 27, 2019, petitioner was resentenced for purposes of appeal. Petitioner appeals from

that order.

At the outset, we note that

"'[t]he Supreme Court of Appeals reviews sentencing orders . . . under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.' Syllabus Point 1, in part, State v. Lucas, 201 W. Va. 271,

496 S.E.2d 221 (1997).” Syllabus Point 2, State v. Georgius, 225 W. Va. 716, 696

S.E.2d 18 (2010).

Syl. Pt. 1, State v. Varlas, 243 W. Va. 447, 844 S.E.2d 688 (2020).

On appeal, petitioner sets forth three assignments of error. He first argues that the circuit

court committed reversible error by submitting an improper and prejudicial self-defense instruction

at trial. Specifically, he contends that the circuit court's self-defense instruction was clearly

erroneous because it failed to communicate all requisite elements fairly. He claims that the

instruction omitted or grossly modified the element of proportionality to the danger perceived.

However, as petitioner admits later in his brief, his trial attorney submitted the very instruction of

which he complains. As we have found,

petitioner waived any error regarding this jury instruction. As we

stated in Lease v. Brown, 196 W.Va. 485, 473 S.E.2d 906 (1996),

when a defendant submits the instruction, "any error stemming from

its inclusion in the case has either been waived or deemed

'invited error.' ” Id. at 488, 473 S.E.2d at 909 (internal citation

omitted). Moreover, "[n]o party may assign as error the giving or

the refusal to give an instruction . . . unless that party objects thereto

before the arguments to the jury are begun, stating distinctly the

matter to which that party objects and the grounds of the

objection[.]” W.Va. R. Crim. P. 30, in part.4

Lewis, 235 W. Va. 694, 703 n.24, 776 S.E.2d 591, 600 n.24 (2015). This waiver

was the direct result of the jury instruction at issue being offered by [p]etitioner . .

. .

Lewis v. Ames, 242 W. Va. 405, 410, 836 S.E.2d 56, 61 (2019). In addition, petitioner's complaint

relates not to an element of the crime charged but an element of a defense asserted by petitioner

during trial. We agree with the State that even if the instruction were incorrect and petitioner had

not invited it, petitioner may have benefitted from the error because any alleged omission made it

easier for petitioner to establish self-defense. Therefore, we find that petitioner is not entitled to

relief based on the circuit court giving his requested instruction regarding his claim of self-defense.

Next, petitioner asserts that the circuit court committed reversible error when it granted the

State's motion to suppress and redact portions of 9-1-1 recordings due to irrelevancy and

inadmissible impeachment evidence. On October 1, 2013, the State moved to suppress petitioner's

recorded statements with law enforcement that were made prior to the incident in which he stated

that Mr. Pierce had been arrested a number of times and was a "troublemaker.” The State argued

that the statements were irrelevant under Rule 401 of the West Virginia Rules of Evidence and

inadmissible under Rule 609(a)(2) of the West Virginia Rules of Evidence. Petitioner admits that

his counsel, "never challenged the State's motion to suppress and stipulated to having [p]etitioner's

statements redacted.” Accordingly, on October 15, 2013, the circuit court entered an order granting

the State's motion to suppress and redact portions of the 9-1-1 recordings and ordered the parties

to stipulate to the admissibility of a redacted recording of the 9-1-1 calls if there was no objection

to the redactions.

We have held that "[o]n appeal, legal conclusions made with regard to suppression

determinations are reviewed de novo. Factual determinations upon which these legal conclusions

are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at

least in part, on determinations of witness credibility are accorded great deference.” Syl. Pt. 3, State

v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994). Additionally, we have held:

When 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 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). However, as this Court has

consistently held, "[c]ounsel's failure to object forecloses appellate review of this issue, unless the

circuit court's alleged error was plain error. State v. Miller, 194 W. Va. 3, 17, 459 S.E.2d 114, 128

(1995).” State v. Jeremy S., 243 W. Va. 523, 530, 847 S.E.2d 125, 132 (2020). Here,

petitioner's counsel not only failed to oppose the State's motion to suppress but actually stipulated 5

to the redactions at issue.2 Thus, we find that petitioner is not entitled to relief on this ground.

Finally, petitioner argues that his convictions should be reversed because a sufficient record

exists on direct appeal to establish by a preponderance of the evidence that his defense counsel

was ineffective at trial. He contends that his trial counsel was deficient and objectively ineffective

by allowing an incomplete jury instruction on the self-defense doctrine at trial. Without citing to

the record, he asserts that "upon review of the record, there is a reasonable probability that, but for

defense counsel's unprofessional error in managing the self-defense doctrine at trial, the result of

the trial would have been different.” He is also critical of his counsel's stipulation to the redaction

of the 9-1-1 recordings.



In West Virginia, claims of ineffective assistance of counsel are governed by the two-prong

standard set forth in Strickland v. Washington, 466 U.S. 668, 669 (1984): "(1) Counsel's

performance was deficient under an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings

would have been different.” Miller, 194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 5, in part.

In reviewing counsel's performance, courts must apply an objective

standard and determine whether, in light of all the circumstances, the identified acts

or omissions were outside the broad range of professionally competent assistance

while at the same time refraining from engaging in hindsight or second-guessing of

trial counsel's strategic decisions. Thus, a reviewing court asks whether a

reasonable lawyer would have acted, under the circumstances, as defense counsel

acted in the case at issue.

Id. at Syl. Pt. 6.

"When assessing whether counsel's performance was deficient, we 'must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance[.]'” Id. at 15, 459 S.E.2d at 126 (citation omitted). Further, to demonstrate prejudice, "a

defendant must prove there is a 'reasonable probability' that, absent the errors, the jury would have

reached a different result.” Id. As a result, petitioner "bears a difficult burden because

constitutionally accepted performance is not defined narrowly and encompasses a 'wide

range.'” Id. at 16, 459 S.E.2d at 127. However, "[i]n cases involving ineffective assistance on

direct appeals, intelligent review is rendered impossible because the most significant witness, the

trial attorney, has not been given the opportunity to explain the motive and reason behind his or

her trial behavior.” Id. at 14-15, 459 S.E.2d at 125-26.

3 That is the case here. Without testimony

2 Petitioner does not allege that the circuit court committed plain error by granting the

motion to suppress.

3 In addition, Syllabus Point 6 of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995)

provides:

(Continued . . .)6

from trial counsel, under the facts of this case, this Court is unable to determine whether petitioner

received effective assistance of counsel.

For these reasons, we find that petitioner is not entitled to relief from the sentence imposed.