State v. Small: Clarifying Defendants’ Presence, Admissibility of Intrinsic Evidence, and Invocation of Miranda Rights in West Virginia Criminal Trials

Introduction

In State of West Virginia v. Richard Dane Small, No. 22-706 (W. Va. June 6, 2025), the Supreme Court of Appeals of West Virginia considered five assignments of error arising from first-degree murder and conspiracy convictions. Petitioner Richard Small alleged: (1) violation of his right to be present at critical pretrial hearings; (2) improper admission of codefendant-specific “prior bad acts” and gang evidence; (3) failure to sever his trial from his codefendant’s; (4) denial of his motion to suppress an inculpatory custodial statement after an alleged invocation of the right to counsel; and (5) improper prosecutorial remarks during the mercy phase of the bifurcated trial. The Court affirmed, reaffirming and clarifying key procedural and evidentiary principles under West Virginia law.

Summary of the Judgment

The Court held that hearings on a codefendant’s severance motion and on the admissibility of evidence against the codefendant were not “critical stages” for Mr. Small, so his absence did not violate West Virginia Code § 62-3-2 or due process.
Evidence of the codefendant’s gang affiliation and drug-related social media posts was intrinsic to the charged crimes (murder motivated by hatred of informants) and therefore properly admitted. Any potential prejudice was cured by a limiting instruction.
Because Mr. Small never sought severance below, the Court declined to address that claim on appeal.
Mr. Small’s statement “I think I need a lawyer” was held ambiguous under Miranda v. Arizona and Davis v. United States; it did not require termination of the custodial interview. His motion to suppress was properly denied.
Prosecutorial comments during the mercy phase did not constitute reversible error. A covert reference to lack of remorse was tied to the codefendant’s testimony, not Mr. Small’s silence, and suggestions about mercy-phase factors did not misstate the law.

Analysis

Precedents Cited

State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975): Defendant must be present at every stage where his interests may be affected; absence at a critical stage is reversible error.
State v. Byers, 247 W. Va. 168, 875 S.E.2d 306 (2022): Due process right under Art. III, § 10, and the Fifth Amendment to be present at all critical stages.
State v. Timothy C., 237 W. Va. 435, 787 S.E.2d 888 (2016): Evidentiary rulings are reviewed for abuse of discretion.
State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017): Denial of severance is reversed only for abuse of discretion with clear prejudice.
State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994): Suppression rulings: legal conclusions de novo, factual findings for clear error.
State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994): Miranda invocation must be unequivocal to stop interrogation.
State v. Green, 163 W. Va. 681, 260 S.E.2d 257 (1979): Reversible error where prosecutor comments on defendant’s failure to testify.
Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945): Failure to make timely objection to remarks waives the issue on appeal.
State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996): Plain error doctrine applies only where fundamental fairness is skewed.
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995): Elements of plain error: clear error affecting substantial rights and integrity of proceedings.

Legal Reasoning

1. Presence at Critical Stages. The Court distinguished between hearings that affect the particular defendant’s trial rights and those focused solely on a codefendant. It held that severance motions and 404(b) hearings for one defendant do not automatically become critical stages for the other. Mr. Small’s interests were not affected by matters unique to the codefendant.

2. Intrinsic vs. Prior Bad Act Evidence. The Court reaffirmed that evidence “inextricably intertwined” with the charged crime is intrinsic and not governed by Rule 404(b). Mr. Mason’s gang membership, drug dealing, and animus toward informants formed the immediate context (“res gestae”) of the murder and conspiracy. A limiting instruction cured any spillover prejudice to Mr. Small.

3. Severance. Because Mr. Small never moved to sever below, the Court refused to consider the issue—echoing the rule that nonjurisdictional issues not raised in the circuit court are waived on appeal.

4. Motion to Suppress. After Miranda warnings, Mr. Small said “I think I need a lawyer.” Adopting the U.S. Supreme Court’s Davis standard, the Court held that ambiguous expressions do not invoke the right to counsel. No unequivocal request was made, so law enforcement properly continued the interview.

5. Mercy Phase Argument.

No comment on Mr. Small’s silence: the prosecutor’s remarks about “no remorse” tied to Mr. Mason’s testimony, not to any failure by Mr. Small to testify.
No improper instruction: suggestions about factors (criminal record and heinousness) were descriptive of common prosecutorial practice, not a binding jury charge. The court’s own neutral mercy-phase instruction governed.

Impact

This decision reinforces and clarifies trial practice in West Virginia:

Defendants need not attend pretrial hearings on matters unique to codefendants; but should still monitor filings and notify the court if critical arguments apply to them.
Intrinsic evidence doctrine remains broad—courts will admit context-forming evidence without 404(b) notice requirements.
Trial courts may refuse to sever absent a timely motion; practitioners must raise severance early or face waiver.
Invocations of the Miranda right to counsel must be unambiguous. Phrases like “I think I need a lawyer” remain insufficient to require termination of interrogation.
Prosecutorial references in the mercy phase will be scrutinized under waiver/plain‐error rules, but so long as comments track the codefendant’s testimony or are non-binding, they are unlikely to warrant reversal.

Complex Concepts Simplified

Intrinsic Evidence: Evidence so closely tied to the crime charged that it tells the complete story and is not treated as “other acts” under Rule 404(b).
Critical Stage: Any point in a criminal case where absence of the defendant could prejudice his fundamental right to a fair trial; not every pretrial hearing qualifies.
Abuse of Discretion: A deferential standard: appellate courts will not overturn trial rulings unless they are clearly against reason or evidence.
De Novo vs. Clearly Erroneous: “De novo” review re-examines legal questions from scratch; “clearly erroneous” review defers to the trial court’s factual findings unless they are unsupported by the record.
Ambiguous Invocation of Miranda: Under Miranda and Davis, a suspect must clearly and unambiguously request counsel—hesitations or conditional statements are insufficient.
Plain Error Doctrine: Allows appellate courts to correct unobjected errors only when justice demands it—errors must be obvious, prejudicial, and undermine the trial’s integrity.

Conclusion

State v. Small reaffirms core West Virginia criminal procedure rules: presence at only those hearings affecting one’s own interests; broad admissibility of intrinsic evidence; need for timely motions to sever; strict standards for invoking the right to counsel; and the waiver doctrine for prosecutorial remarks. Trial practitioners should take heed—monitor codefendant filings, file motions promptly, and advise clients carefully on Miranda requests. This decision cements the contours of fair trial rights and evidentiary boundaries in West Virginia’s criminal justice system.