State of West Virginia v. Wesley S. Malcomb, 19-1193

Malcomb and Melissa McNemar ended a long-term relationship; dispute arose over possession of a Ford Explorer she had parked for a turn‑over arranged with the sheriff’s office. Deputy Mealey advised a 10–15 minute wait to avoid confrontation.
Malcomb returned almost immediately; when Shane Pierce approached to hand keys, Malcomb produced a gun, struck Pierce in the head with it while saying “I’m going to shoot you,” and pointed the gun at Pierce and McNemar. A surveillance video captured much of the encounter.
A loaded Glock .40 magazine was recovered from Malcomb’s vehicle; no firearm was recovered at the scene. Malcomb initially denied then later confessed to having a firearm.
Indicted on two counts of wanton endangerment involving a firearm and one count of assault; convicted on both wanton‑endangerment counts and acquitted of assault. Sentenced to one year on each count (concurrent), then suspended and converted to home incarceration.
At trial Malcomb asserted self‑defense; his trial counsel submitted the self‑defense jury instruction the defense now challenges and jointly stipulated to redactions of portions of 9‑1‑1 recordings that the State moved to suppress.
On appeal Malcomb raised (1) error in the self‑defense instruction, (2) error in redacting 9‑1‑1 recordings, and (3) ineffective assistance of counsel based on the instruction and the stipulation. The Supreme Court of Appeals of West Virginia affirmed.

Issue	State's Argument	Malcomb's Argument	Held
Self‑defense jury instruction	The instruction was submitted by Malcomb and thus any error was waived/invited; no relief.	Instruction omitted/modified proportionality element, so it was clearly erroneous.	Waived/invited error; no relief.
Suppression/redaction of 9‑1‑1 calls	Portions were irrelevant and inadmissible impeachment; redactions were agreed and appropriate.	Redaction removed relevant evidence and prejudiced Malcomb.	Counsel stipulated to redactions; failure to object forecloses review (no plain‑error claim).
Ineffective assistance of counsel on direct appeal	Trial counsel’s strategic choices (instruction, stipulation) are presumptively reasonable; claim cannot be resolved on direct appeal without trial counsel’s explanation.	Counsel was deficient for submitting flawed instruction and stipulating to redactions; reasonable probability of different outcome.	Denied: Strickland standard applies; on direct appeal record lacks trial counsel testimony to assess motive/strategy, so IAC not established.

Lease v. Brown, 196 W. Va. 485, 473 S.E.2d 906 (W. Va. 1996) (submission of a jury instruction by a party waives or invites any error arising from that instruction)
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (W. Va. 1995) (explaining Strickland standard in West Virginia and limits of resolving IAC claims on direct appeal)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
Lewis v. Ames, 242 W. Va. 405, 836 S.E.2d 56 (W. Va. 2019) (reiterating waiver/invited error principles where defendant offered the instruction)
State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (W. Va. 1996) (standard of review for suppression rulings; factual findings reviewed for clear error)
State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (W. Va. 1994) (legal conclusions on suppression reviewed de novo; factual findings for clear error)
State v. Varlas, 243 W. Va. 447, 844 S.E.2d 688 (W. Va. 2020) (sentencing orders reviewed for abuse of discretion unless statutory or constitutional violation)