753 S.E.2d 761
W. Va.2013Background
- In January 2011 Brandon Flack and three accomplices planned to burglarize his uncle’s house; during the entry Matthew Flack (a 17‑year‑old relative) retrieved a handgun and was shot and killed by accomplice Jasman Montgomery. Flack was wounded.
- The accomplices drove Flack to the hospital, claimed a drive‑by shooting, and police found two handguns and ski masks in the car; Montgomery later pled guilty to first‑degree murder and testified for the State at Flack’s trial.
- Flack was indicted for first‑degree murder, first‑degree robbery, burglary (later dismissed as lesser‑included), and conspiracy; the jury convicted on murder, robbery, and conspiracy; sentences were imposed consecutively.
- At trial defense objected that the venire lacked African‑American jurors; the court found the jury pool was drawn from neutral DMV and voter lists and overruled the objection.
- Defense did not request a limiting instruction when Montgomery testified that he pled guilty, and did not object to Dr. Kaplan’s testimony about the autopsy (Kaplan had not performed the autopsy but signed the report); Flack moved for a new trial raising those and jury‑selection claims, which the trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Limiting instruction for accomplice’s guilty plea | State: no sua sponte duty to instruct; trial tactics may counsel against instruction | Flack: trial court must sua sponte give Caudill limiting instruction when accomplice testifies about his guilty plea; plain error on failure | Court: trial court must give limiting instruction only upon defendant’s request; failure without request is not reversible absent plain error; Flack waived and plain error not shown |
| Fair‑cross‑section of jury venire | State: jury pool randomly drawn from DMV and voter rolls; race‑neutral process | Flack: venire/ pool had virtually no African‑Americans (1 excluded for relation) contrary to county demographics; systematic exclusion | Court: Flack failed to prove underrepresentation or systematic exclusion per Hobbs; no violation shown |
| Compliance with statutory jury‑pool procedures | State: uses statewide, statutorily prescribed lists | Flack: county did not comply with statutory requirements for jury assembly | Court: record shows no constitutional or statutory flaw; defendant did not meet burden to show noncompliance |
| Confrontation Clause re: medical testimony | Flack: Dr. Kaplan’s testimony about autopsy (he did not perform) violated Confrontation Clause | State: no objection at trial; issue not argued as plain error by Flack | Court: reviewed under plain‑error standard but found any Confrontation error harmless beyond reasonable doubt because Montgomery admitted the shooting and Kaplan’s testimony did not implicate Flack |
Key Cases Cited
- State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748 (1982) (accomplice may testify about his guilty plea but limiting instruction required to prevent use of plea as proof of defendant’s guilt)
- State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981) (three‑part test for prima facie fair‑cross‑section claim: distinctive group, underrepresentation, systematic exclusion)
- United States v. DeLucca, 630 F.2d 294 (5th Cir. 1980) (failure to give curative instruction sua sponte normally not reversible absent aggravating circumstances)
- United States v. Davis, 838 F.2d 909 (7th Cir. 1988) (district court should normally limit use of accomplice’s plea evidence but omission not ordinarily plain error)
- State v. Frazier, 229 W.Va. 724, 735 S.E.2d 727 (2012) (Confrontation Clause violation where medical examiner testified as surrogate for pathologist who prepared autopsy)
- State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011) (appellate standard: new‑trial rulings reviewed for abuse of discretion; factual findings for clear error)