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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk/recent/
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March 2, 2007 Issue #91
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This issue covers the first 10 opinions filed in the January 2007 term of court, including one opinion (STATE v. MULLENS) in a case held over from the previous term of court.

The next argument docket will be held at the WVU College of Law on March 13th.


Best regards,

Rory Perry
Clerk of Court

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ABUSE & NEGLECT :: Termination affirmed

IN RE: AUSTIN G. AND BREONA R., No. 33134 (Per Curiam)(February 21, 2007). Father appealed an order of the Circuit Court of Mingo County that terminated his parental rights, arguing that termination was not justified and arguing that the circuit court erred in denying post-termination visitation. Affirming the circuit court's decision on both points.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33134.htm


CRIMINAL, EVIDENCE, CONSTITUTIONAL :: Warrantless surveillance in the home violates West Virginia Constitution

STATE v. EDDIE MULLENS, No. 33073 (DAVIS, C.J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., dissenting)(February 28, 2007). Reversing an order of the Circuit Court of Boone County that denied a motion to suppress, where the defendant entered a conditional guilty plea and preserved the issue for appeal. After extensive review of state and federal authorities, holding that the West Virginia Constitution affords greater protection than the Fourth Amendment of the United States Constitution from warrantless electronic surveillance in the home. Holding, in syllabus point 2 that: "It is a violation of West Virginia Constitution article III, section 6 for the police to invade the privacy and sanctity of a person's home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person's home without first obtaining a duly authorized court order pursuant to W. Va. Code 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that STATE v. THOMPSON, 176 W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled." Further holding, in syllabus point 4: "Article III, section 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one- party consent to electronic surveillance provisions of W. Va. Code 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005)."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33073.htm


CRIMINAL :: No speedy trial violation

SER KEITH O'DELL MCCOURT v. HON. JACK ALSOP, JUDGE, No. 33213 (Per Curiam)(Albright, J., concurring in part and dissenting in part)(February 22, 2007). Petitioner sought to prohibit prosecution of a 1994 indictment, where petitioner was not arrested until 2006. Denying the writ, and holding that there was no speedy trial violation where the defendant never appeared for arraignment, where the State consistently obtained bench warrants and where the record fails to show any evidence that the State was aware of the defendant's whereabouts.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33213.htm


CRIMINAL :: Negligent homicide and violations of traffic statutes

STATE v. MARJORIE VIRGINIA GREEN, No. 33200 (ALBRIGHT, J.)(February 21, 2007). Defendant appealed her jury convictions in the Circuit Court of Hardy County on two counts of negligent homicide, arising from a vehicle accident that resulted in two deaths. Reversing the convictions and clarifying the standard set forth in STATE v. VOLLMER, 163 W.Va. 711, 259 S.E.2d 837 (1979), and holding, in syllabus point 5 that: "A conviction for negligent homicide must not be premised solely upon the violation of a traffic statute unless the underlying act which constitutes the violation or accompanying circumstances evidence a reckless disregard for the safety of others, characterized by negligence so gross, wanton, and culpable as to show a reckless disregard for human life."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33200.htm


CRIMINAL :: Witness as bailiff didn't violate due process, judge questioning witness wasn't plain error

STATE v. ALLEN D. WAUGH, No. 32773 (Per Curiam)(February 16, 2007). Petitioner appealed a conviction for second degree murder upon a jury trial in the Circuit Court of Mason County. Affirming the conviction, and holding that under the circumstances of the case, a bailiff who also acted as a prosecution witness did not violate due process, because the deputy's testimony was not that of a key witness at trial. Further concluding that questioning of a witness by the trial judge exceeded the scope of permissible questioning authorized by Rule 614(b), but did not rise to the level of plain error.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/32773.htm


CRIMINAL :: Conditional immunity offer was not plea agreement

STATE ex rel. STEPHANIE SUE GIBSON v. HON. JOHN S. HRKO, JUDGE, et al., No. 33203 (Per Curiam)(February 15, 2007). Denying a writ of prohibition sought by a criminal defendant to compel the circuit court of Wyoming County to accept a plea agreement. After reviewing the circumstances of the case, holding that no plea agreement was ever reached, and that the circuit court nevertheless had discretion to reject any agreement that may have been reached, and that if an agreement had been reached, the conditional offer of immunity discussed by the parties was never brought to fruition.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33203.htm


HOSPITALS :: Open meetings of governing bodies

R. E. HAMRICK, JR., M.D. v. CHARLESTON AREA MEDICAL CENTER, INC., No. 33107 (STARCHER, J.)(March 1, 2007). R. Edward Hamrick, Jr., M.D. appealed an order of the Circuit Court of Kanawha County that granted summary judgment in favor of the hospital, and held that under the Open Hospital Proceedings Act, the only governing body of CAMC is the Board of Trustees, and therefore is the only hospital body subject to the statute's open meetings requirement. Reversing, and holding that the Act was also intended to cover other governing bodies such as the Medical Staff Executive Committee. Holding, in syllabus point 2: "The application of the term 'governing body' in the Open Hospital Proceedings Act, W.Va. Code, 16-5G-2(3) [1999], is not limited to a single, ultimate, or 'top' decision-making body in a hospital's governance structure. Rather, the term must be given a flexible and common-sense functional application to accomplish the Legislative purpose set forth in W.Va. Code, 16-5G-1 [1982] that 'all proceedings of the boards of directors or other governing bodies of such hospitals be conducted in an open and public manner so that the people can remain informed of the decisions and decision making processes affecting the health services on which they so vitally depend and which they help support,' subject to the exceptions contained in W.Va. Code, 16-5G-4 [1999]."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33107.htm


PROFESSIONAL DISCIPLINE :: Sixty-day suspension with conditions

LAWYER DISCIPLINARY BOARD v. A. WAYNE KING, No. 32974 (Per Curiam)(February 16, 2007). Departing from a six-month suspension recommendation by the Hearing Panel Subcommittee, and imposing a sixty day suspension, with specific conditions for reinstatement, including restitution, for violating Rule 1.8(a) of the Rules of Professional Conduct.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/32974.htm


TORTS :: Excess verdicts and SHAMBLIN claims

DANIEL R. STRAHIN v. EARL SULLIVAN, et al., No. 33091 (MAYNARD, J.)(Starcher, J., and Albright, J., dissenting)(Davis, C.J., concurring)(Benjamin, J., concurring)(February 21, 2007). Plaintiff Daniel Strahin appealed an order of the Circuit Court of Barbour County granting summary judgment in favor of Farmers & Mechanics Insurance Company of West Virginia, Inc. on plaintiff's SHAMBLIN v. NATIONWIDE claim, which had been assigned to the plaintiff prior to trial by the defendant Earl Sullivan, along with a covenant not to execute. Affirming the circuit court's grant of summary judgment, and holding that because a pre-trial Covenant Not to Execute between the plaintiff and the defendant insured meant that the insured's personal assets were not at risk because of the excess verdict, then there can be no SHAMBLIN claim.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33091.htm


TORTS, ABUSE & NEGLECT, IMMUNITY :: Immunity for failure to investigate child abuse

JOHN BARBINA, etc. v. CHARLES CURRY, et al., No. 33102 (DAVIS, C.J.)(February 15, 2007). Petitioner appealed an order of the Circuit Court of Taylor County that granted summary judgment in favor of respondents in a civil suit arising out of an infant being sexually abused and allegations that the abuse was negligently reported and services were negligently provided. Affirming summary judgment, and clarifying that there is no cause of action for negligent failure to report under W.V. Code 49-6A-2. Holding that the direct contact requirement of the special relationship doctrine could be satisfied through competent evidence showing a report of child abuse was actually made to and received by the DHHR, but that in this case the evidence did not show a direct contact was made.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33102.htm



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