State of West Virginia v. Donald Dunn, 237 W. Va. 155

Background

Donald Dunn confessed at trial to shooting his stepfather (killing him) and attempting to shoot his mother; jury convicted him of first-degree murder (life without mercy) and attempted murder (3–18 years consecutive).
Dunn had planned to stage a murder-suicide after dropping out of college; he loaded three rounds, killed his stepfather, then attempted to shoot his mother (gun jammed); mother initially told 911 she had killed her husband but later told police Dunn had done it.
Pretrial and trial disputes included late disclosure of over 400 recorded jail phone calls, Dunn’s recent surgery and pain medication, and asserted synthetic marijuana use around the offense.
Defense sought to introduce expert testimony about the effects of synthetic marijuana and to reference that testimony in opening; the court excluded such expert opinion at the unitary trial but offered a bifurcated mercy phase as the proper context.
Defense moved for continuance (to review recordings and because of medication) and for mistrial (alleging juror misconduct); court denied both. The court admitted jail phone calls after finding statutory notice and compliance.

Issues

Issue	Dunn's Argument	State's Argument	Held
Denial of continuance for late disclosure of jail calls	Denial prejudiced defense because over 400 calls were disclosed late	Disclosure was permitted; denial not prejudicial and continuance would significantly delay trial	No abuse of discretion; no actual prejudice shown from denial
Denial of continuance due to pain medication	Dunn argued medication impaired his ability to participate	State produced records/observations showing competence; court observed no impairment	Denial proper; no evidence of impairment or prejudice
Exclusion of expert testimony about synthetic marijuana effects	Dunn sought to show intoxication/diminished capacity or mitigation for mercy through Dr. Hudson	State: Dr. Hudson found no diminished capacity; such testimony would confuse jury and is not relevant to guilt in unitary trial; could be offered in mercy phase if bifurcated	Court reasonably excluded the evidence at unitary trial; Dunn waived bifurcation by not seeking it
Limiting opening statement regarding synthetic marijuana	Counsel wanted to tell jury Dunn would testify about synthetic marijuana	State objected because Dunn might not testify and no other witness would introduce it	Limitation within trial court’s discretion; no prejudice because Dunn testified and could present during closing
Admissibility of recorded jail telephone calls	Dunn claimed improper foundation and constitutional problems; some calls prejudicial	State showed statutory compliance and inmate notice; calls admissible	Admission affirmed; court found statutory notice and compliance
Motion for mistrial based on jurors talking in courtroom	Dunn argued juror exchange required mistrial as deliberations occurred outside jury room	State observed no misconduct; no showing of content or prejudice; no request to probe jurors made	Denial affirmed; mere conversation without evidence of prejudice not a manifest necessity for mistrial
Refusal to give mercy-instruction listing factors	Dunn asked Court to revisit precedent and give instruction	State relied on controlling precedent forbidding such instruction	Not adequately briefed; Court declined to overrule precedent (Miller)

Key Cases Cited

State v. Jones, 84 W. Va. 85, 99 S.E. 271 (1919) (continuance rulings lie within trial court discretion)
Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d 700 (1991) (admissibility of expert testimony reviewed for abuse of discretion)
Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991) (trial judge controls mode and order of examining witnesses under Rule 611(a))
State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989) (mistrial declaration is within trial court’s discretion)
State v. Joseph, 214 W. Va. 525, 590 S.E.2d 718 (2003) (recognizes diminished-capacity defense and discusses admissibility of expert proof on mental impairment)
State v. Berry, 227 W. Va. 221, 707 S.E.2d 831 (2011) (evidence admissible for mercy may be excluded at unitary guilt phase; bifurcation appropriate)
State v. McLaughlin, 226 W. Va. 229, 700 S.E.2d 289 (2010) (jury verdict in mercy phase must be unanimous)
State v. Miller, 178 W. Va. 618, 363 S.E.2d 504 (1987) (court should not give an instruction outlining factors for jury mercy decision)