No Per Se Reversal for Missing Bench-Conference Transcripts: Specific-Prejudice Requirement Reaffirmed

1. Introduction

This appeal arose from Carl Ray Summerfield’s 2023 convictions for the February 2022 shooting death of Wesley Rohrbaugh at Allen’s Trailer Park in Grant County. The State’s theory—credited by the jury—was that Summerfield escalated an argument in a camper, forced the victim to a nearby garage to avoid “mak[ing] a mess,” and shot him multiple times. Two eyewitnesses (Jared Michael and Tammy Lofton) provided core narrative testimony, including threats by Summerfield to silence them; additional evidence included the medical examiner’s homicide findings and firearms testimony linking the fatal shots to a Glock Gen 5 pistol.

Summerfield raised four principal appellate issues:

• Whether improper prosecutorial comments in closing required a mistrial/new trial.
• Whether the court should have given a “missing witness” instruction concerning the State’s nonproduction of Summerfield’s mother and sister.
• Whether the evidence was insufficient because a key witness’s firearm description was “inherently incredible.”
• Whether omitted bench-conference transcripts required a new trial.

The opinion is noteworthy less for creating new doctrinal tests than for consolidating and sharpening West Virginia’s approach to transcript omissions: the Court expressly declined to adopt a per se reversal rule and required a showing of “specific prejudice” to the appeal.

2. Summary of the Opinion

The Court affirmed across the board. It held that: (1) the prosecutor’s “send a message” remark and reference to the victim’s family were isolated, addressed by sustained objection/curative instruction, and did not cause manifest injustice; (2) a “missing witness” instruction was properly refused under Pullin because the defense could have called the witnesses and did not show the State had sole power to produce them; (3) claimed inconsistencies about the firearm model/generation did not render testimony inherently incredible because it did not “def[y] physical laws,” and credibility was for the jury; and (4) missing bench-conference transcripts did not warrant a new trial absent a non-speculative showing that the omissions specifically prejudiced the appeal.

3. Analysis

3.1. Precedents Cited

A. Prosecutorial comment and prejudice

• State v. Sugg (Syl. Pt. 6) supplied the controlling four-factor prejudice framework for improper argument:
  (1) tendency to mislead/prejudice; (2) isolated vs. extensive; (3) strength of proof absent remarks; (4) whether deliberate diversion to extraneous matters.
  The Court used these factors to characterize the statements as isolated and outweighed by strong proof.
• State v. Lyon reinforced that closing argument is afforded “wide latitude” and must be assessed “in the context of the facts of the case,” supporting a contextual, non-mechanical application of Sugg.
• State v. Mills (quoting Syl. Pt. 5, State v. Sugg) emphasized that not every improper remark requires reversal—only those that “clearly prejudice” or cause “manifest injustice.” This provided the Court’s operative threshold.
• State v. Guthrie was invoked for the “ameliorative effect” of curative instructions, legitimizing the Court’s reliance on the trial judge’s prompt direction to disregard the family reference and the general instruction that lawyer statements are not evidence.

B. Jury instructions and the “missing witness” inference

• State v. Derr (Syl. Pt. 11) provided the three-part reversible-error test for refusal of a requested instruction (correct law; not otherwise covered; important point impairing defense).
• McGlone v. Superior Trucking Co., Inc. was the defense’s cited source for the instruction. The Court noted McGlone’s civil-case formulation of a permissive adverse inference from the unjustified failure to call an available material witness.
• Pullin v. State was “dispositive.” Pullin explained that a missing witness instruction is not warranted when the defense fails to show the State has the “sole power” to produce the witness, and it approved refusal where the defendant could have called the witness.
• United States v. Montoya was cited consistently with Pullin for the “solely within the prosecution’s power” limitation, illustrating that West Virginia’s approach aligns with a common federal rationale in criminal cases.

C. Sufficiency of evidence and “inherent incredibility”

• State v. Juntilla established de novo review for denial of a motion for judgment of acquittal based on sufficiency.
• State v. McPherson narrowed “inherent incredibility” to circumstances beyond contradiction/uncorroboration and instructed acquittal on that basis only when testimony “defies physical laws.”
• State v. Humphrey recognized that truly untrustworthy testimony may be excluded “as a matter of law,” but only in the extreme case—supporting the Court’s refusal to treat a lay witness’s uncertain gun identification as legally impossible.
• Michael D.C. v. Wanda L.C. was used to underscore the institutional point: appellate courts do not second-guess jury credibility determinations from a cold record.
• State v. Guthrie (Syl. Pt. 1 and Syl. Pt. 3, in part) supplied the familiar “rational trier of fact” standard and the “no evidence” constraint on appellate reversal.

D. Transcript omissions, reconstructed records, and prejudice

• State v. Shafer (Syl. Pt. 1, quoting Syl. pt. 2, State ex rel. Kisner v. Fox) framed the remedial options when a transcript is missing: appeal on a reconstructed record or receive a new trial—absent extraordinary dereliction—rejecting automatic release.
• State v. Graham (Syl. Pt. 8) imposed the key limitation: omissions warrant a new trial only if the missing portion “specifically prejudices” the appeal.
• State v. Leslie G. (memorandum decision) supplied a practical application: appellants must identify plausible appellate issues tied to the missing material, not merely speculate that something might have gone wrong.
• State v. Bolling (Syl. Pt. 5, in part) stated the reporting rule—“all proceedings” in a criminal trial are required to be reported—while acknowledging that failure to report does not always equal reversible error.
• State v. Neal highlighted the importance of transcripts, and State ex rel. Johnson v. McKenzie (Syl. Pt. 1) located a due-process requirement to furnish a transcript upon timely request—both reinforcing that the right is meaningful, but still subject (here) to prejudice analysis.

E. Review standards and “right result, wrong reason”

• State v. Lowery supported abuse-of-discretion review for mistrial rulings; State v. Vance did the same for new-trial rulings (with clear-error/de novo components).
• State v. Hinkle supported abuse-of-discretion review for refusal to give an instruction.
• Barnett v. Wolfolk (Syl. Pt. 3) allowed affirmance on any correct legal ground disclosed by the record, which the Court used to neutralize an apparent mismatch between the circuit court’s recollection and the transcript about a curative instruction.

3.2. Legal Reasoning

A. Closing argument: improper but not reversible

The Court treated the “send a message” appeal and the attempt to “introduce” the victim’s father as improper or at least beyond the proper scope of argument, but it refused to equate impropriety with prejudice. Applying State v. Sugg:

• Misleading/prejudicial tendency: any potential prejudice was reduced by the sustained objection (“Move on”) and the explicit instruction to disregard the “introduced the family” remark, plus the general instruction that lawyer statements are not evidence (State v. Guthrie).
• Isolated vs. extensive: the comments were isolated; the prosecutor did not return to them.
• Strength of proof: the Court emphasized “overwhelming competent proof,” including eyewitness narrative, the “make a mess” statement, confession evidence, threats, and forensic testimony.
• Deliberate diversion: the record supported that the trial court promptly redirected argument, and the Court did not find the remarks outcome-determinative.

Notably, the Court also rejected the claim that a unitary (non-bifurcated) trial inherently “deepened” prejudice on mercy; it demanded concrete linkage between the remarks and the no-mercy verdict, which the appellant did not supply.

B. Missing witness instruction: criminal-case limits emphasized

The defense’s proposed instruction, drawn from McGlone v. Superior Trucking Co., Inc., would have told jurors that the State’s failure to call available material witnesses “gives rise to the inference” that their testimony would be adverse. The Court avoided a broad civil-to-criminal transposition and instead relied on Pullin v. State: absent a showing that the witness is within the State’s “sole power” to produce, no instruction is warranted.

The decisive factual point was the defense concession that it “could have called” the mother and sister. The Court also rejected the argument that Pullin “dilutes” the burden of proof or forces the defense to present evidence; the logic is that an adverse-inference instruction against the State is justified only when the State’s nonproduction is meaningfully probative—i.e., when the State uniquely controls access to the witness.

C. “Inherently incredible” testimony: contradiction is not impossibility

The defense sought acquittal by arguing that Jeremiah Dean’s reference to a “Glock 40 I think 2ndGen” made his testimony physically impossible given expert testimony that only certain Gen 5 Glock models could have fired the fatal shots. The Court reframed the record: Dean repeatedly expressed uncertainty and lack of firearms familiarity; even the defense expert testified he did not know whether Dean could distinguish Glock generations.

Under State v. McPherson, “inherent incredibility” requires testimony that “defies physical laws,” not testimony that is imprecise, inconsistent, or potentially mistaken. At most, the record presented a credibility conflict and a possibility of misidentification—classic jury territory (Michael D.C. v. Wanda L.C.). Viewed favorably to the prosecution (State v. Guthrie), a rational juror could accept Dean’s confession-related testimony while discounting his technical description of the gun.

D. Missing bench conferences: express rejection of per se reversal

The opinion’s most forward-looking language appears in its transcript discussion. The Court acknowledged that bench conferences were not transcribed due to inaudibility (white-noise machine) but held that this is not automatically “fatal” or “prejudicial.”

Integrating State v. Shafer/State ex rel. Kisner v. Fox with State v. Graham, the Court required the appellant to show “specific prejudice” to the appeal. General claims—“no way to know what objections were made” or “what rulings resulted”—were deemed speculative, especially in light of State v. Leslie G., which requires identifying concrete appellate issues that could be affected by the omission.

Critically, the Court added an explicit institutional statement:

At the same time, it reiterated State v. Bolling’s expectation that “all proceedings” be reported and cited State v. Neal and State ex rel. Johnson v. McKenzie to underscore the transcript’s constitutional importance—while keeping the remedy tethered to demonstrated prejudice rather than automatic retrial.

3.3. Impact

• Transcript-omission litigation will be more issue-specific. By expressly rejecting per se reversal and emphasizing State v. Graham’s “specifically prejudices” requirement, the Court signals that future appellants must do more than point to gaps; they must articulate how the gap blocks review of a particular claim (e.g., the substance of an evidentiary objection, a preserved constitutional argument, or a ruling central to a dispositive issue).
• Trial courts and court reporters face renewed pressure to capture sidebars. Although the conviction stood, the Court’s reminder of State v. Bolling and transcript due-process concerns increases the reputational and administrative stakes for ensuring audibility (including technology choices such as white-noise machines).
• Missing witness instructions remain constrained in criminal cases. The reaffirmation of Pullin v. State discourages defendants from leveraging the State’s nonproduction of witnesses where the defense also had access—reducing the likelihood that juries will be invited to speculate adversely against the prosecution in such circumstances.
• “Inherent incredibility” remains a narrow safety valve. The Court’s application of State v. McPherson maintains a high bar: unless testimony is physically impossible, inconsistencies generally go to weight, not admissibility or sufficiency.
• Prosecutorial-misconduct claims continue to rise or fall on prejudice and cure. The opinion reinforces that isolated improper remarks—especially those met with prompt judicial intervention—rarely justify reversal absent a demonstrable effect on the verdict under State v. Sugg.

4. Complex Concepts Simplified

• “Send a message” argument: A closing-argument theme urging jurors to convict to protect the community rather than decide solely on evidence. Courts often treat it as improper because it risks shifting the jury’s role from fact-finding to community-policymaking.
• Curative instruction: A judge’s direction to disregard a remark or evidence. Appellate courts often presume juries follow such instructions, and the presence of a curative instruction can reduce or eliminate prejudice (State v. Guthrie).
• Missing witness instruction / adverse inference: A jury instruction allowing (or requiring) jurors to infer that a party’s failure to call a witness suggests that witness would have testified unfavorably. In criminal cases, West Virginia limits this to situations where the witness is effectively within the State’s exclusive control (Pullin v. State).
• “Inherently incredible” testimony: Testimony so impossible or unreliable that the law treats it as unworthy of belief. West Virginia sets this bar at testimony that “defies physical laws,” not ordinary inconsistency or uncertainty (State v. McPherson).
• Reconstructed record: When a transcript is missing, parties may attempt to recreate what occurred (e.g., by stipulation, judge’s recollection, or hearing). Under State v. Shafer, an appellant may proceed on a reconstructed record or (in appropriate circumstances) receive a new trial.
• Specific prejudice (transcript omissions): The appellant must show that the missing portion blocks meaningful review of a particular appellate claim—not merely that something is missing (State v. Graham).

5. Conclusion

State of West Virginia v. Carl Ray Summerfield is an affirmance grounded in restraint: improper argument is assessed through prejudice and cure; missing-witness inferences are limited by witness accessibility; “inherent incredibility” remains reserved for physical impossibility; and transcript gaps warrant relief only upon a concrete showing of appellate harm. The opinion’s most salient doctrinal signal is its express refusal to adopt per se reversal for transcript omissions, reinforcing that the remedy for missing bench conferences in West Virginia will generally turn on whether the appellant can demonstrate specific prejudice under State v. Graham, not on the mere existence of an incomplete transcript.