Waiver of Double Jeopardy Claims and the Multiple‑Victim Distinction in Malicious Assault and Wanton Endangerment: Justice Armstead’s Partial Dissent in State v. Anthony M.

Waiver of Double Jeopardy Claims and the Multiple‑Victim Distinction in Malicious Assault and Wanton Endangerment: Justice Armstead’s Partial Dissent in State v. Anthony M.

Introduction

This commentary addresses Justice Armstead’s concurring-in-part and dissenting-in-part opinion in State of West Virginia v. Anthony M., No. 22-858 (W. Va. Mar. 25, 2025), arising from a jury trial in which the petitioner was convicted of malicious assault and wanton endangerment involving a firearm. The core appellate issue was whether convicting and sentencing the defendant for both offenses, based on a single gunshot that struck Brittany S. while an infant, K.M., was nearby in the vehicle, violated double jeopardy protections.

The majority concluded that a double jeopardy violation occurred, emphasizing that the indictment did not identify K.M. as the victim of the wanton endangerment count and that the record did not convincingly tie the charged conduct to danger posed to K.M. Justice Armstead dissented from that double jeopardy holding. He would have affirmed both convictions on two independent grounds: (1) the petitioner waived the double jeopardy challenge by first raising it post-trial, and (2) on the merits, the record supported separate punishments under West Virginia law because the offenses involved different victims, thereby avoiding double jeopardy under the Blockburger/Zaccagnini test and this Court’s decision in Mirandy v. Smith.

Justice Armstead concurred with the majority’s resolution of the petitioner’s other assignments of error.

Summary of the Opinion

Justice Armstead’s dissent advances three principal propositions:

  • Waiver: The defendant forfeited his double jeopardy argument by failing to raise it pretrial (via a motion to dismiss or a bill of particulars) and by not objecting to the jury instructions, waiting instead until a post-trial motion. Under West Virginia’s “raise-or-waive” doctrine and Rule 12(b)(2) of the Rules of Criminal Procedure, indictment and related objections must be timely asserted, and double jeopardy—though fundamental—may be waived if not timely raised.
  • Merits—Multiple Victims: Even if not waived, the convictions do not violate double jeopardy under Mirandy v. Smith because the evidence permitted the jury to find different victims for the two crimes: Brittany S. for malicious assault and K.M. for wanton endangerment. When different victims are involved, each offense requires proof of a different fact—namely, the identity of the victim—satisfying Blockburger as stated in Zaccagnini.
  • Deference to the Jury: The jury was properly instructed on each offense’s elements, the evidence was overwhelming that both Brittany S. and K.M. were endangered by the single shot (including ricochet and bullet fragments inside the vehicle), and appellate courts must defer to the jury’s factual determinations absent compelling reasons to disturb the verdict.

Analysis

Precedents Cited and Their Influence

  • State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992) (Syl. Pts. 1–2). Justice Armstead recites the three constitutional protections encompassed by double jeopardy: (1) immunity after acquittal; (2) protection against a second prosecution after conviction; and (3) prohibition on multiple punishments for the same offense. This frames the dispute in the third category—multiple punishments.
  • Flack v. Ballard, 239 W. Va. 566, 803 S.E.2d 536 (2017). Double jeopardy does not bar separate punishments for “separate and distinct” crimes arising from a single factual occurrence. This supports the dissent’s view that two distinct crimes with distinct elements or victims may be separately punished even if the conduct is temporally unitary.
  • State v. Pancake, 170 W. Va. 690, 296 S.E.2d 37 (1982) (Syl. Pt. 5, in part). Even when offenses arise from the same “criminal transaction,” separate punishments may be imposed for separate offenses, reinforcing the notion that simultaneity does not collapse distinct crimes into one punishment.
  • State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983) (Syl. Pt. 8; adopting Blockburger). Where one act violates two statutes, the test is whether each requires proof of a fact the other does not. Justice Armstead’s application turns on “victim identity” as a distinct fact for each offense when there are multiple victims, paralleling Mirandy.
  • State v. Wright, 200 W. Va. 549, 490 S.E.2d 636 (1997). In a single-victim scenario, wanton endangerment was a lesser-included offense of malicious assault; conviction of both violated double jeopardy under the specific facts. The dissent distinguishes Wright because there, unlike here, “there was only one victim.”
  • Mirandy v. Smith, 237 W. Va. 363, 787 S.E.2d 634 (2016). The controlling authority for the dissent: when the two convictions identify different victims, each offense requires proof of a different fact (the specific victim), satisfying Blockburger and allowing separate punishments. Justice Armstead reads Mirandy to validate separate convictions here—Brittany S. (malicious assault) and K.M. (wanton endangerment)—given the trial record’s evidence of risk to K.M.
  • State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996) (Syl. Pt. 1). Under Rule 12(b)(2), defendants must raise objections to an indictment before trial; while a challenge to a defective indictment is “never waived,” absent a timely challenge courts construe indictments in favor of validity unless they fail, by any reasonable construction, to charge an offense. This undergirds the dissent’s waiver analysis related to the indictment’s failure to name a victim in the wanton endangerment count.
  • State v. Palmer, 210 W. Va. 372, 557 S.E.2d 779 (2001). The anti-sandbagging rationale: defendants cannot strategically withhold objections to seek a retrial after conviction. This supports requiring contemporaneous assertion of double jeopardy concerns.
  • W. Va. R. Crim. P. 7(f) and State v. Counts, 90 W. Va. 338, 110 S.E. 812 (1922). A bill of particulars fills in indictment details. The dissent notes the defense could have demanded specificity (e.g., the identity of the wanton endangerment victim) pretrial.
  • State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996). The “raise-or-waive” doctrine requires timely objections to trial errors; it prevents parties from withholding objections for strategic advantage and promotes orderly adjudication. This is a central pillar of the dissent’s waiver analysis.
  • State v. Carroll, 150 W. Va. 765, 149 S.E.2d 309 (1966), and State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876 (2012). Double jeopardy, although fundamental, may be waived if not timely raised. McGilton also reiterates that the federal Double Jeopardy Clause applies to the States via the Fourteenth Amendment (citing Peretz’s broader waivability principle).
  • State v. Easton, 203 W. Va. 631, 510 S.E.2d 465 (1998) (Syl. Pt. 1, in part); State v. Duncan, 179 W. Va. 391, 369 S.E.2d 464 (1988); State v. Martin, 224 W. Va. 577, 687 S.E.2d 360 (2009). These cases emphasize deference to jury fact-finding, the jury’s role as arbiter of weight and credibility, and the limited circumstances under which appellate courts should disturb verdicts.

Legal Reasoning: How the Dissent Reaches Its Conclusion

Justice Armstead’s reasoning unfolds in two independent tracks—procedural waiver and substantive double jeopardy analysis—supplemented by a deference-to-jury principle.

1) Waiver by failure to timely raise double jeopardy:

  • The indictment identified Brittany S. as the malicious assault victim but did not name a victim for wanton endangerment. That asymmetry, he says, made the potential double jeopardy issue apparent before trial.
  • The wanton endangerment jury instruction required proof that the defendant’s act created a substantial risk to “another person” but did not identify a victim. Again, the potential overlap with malicious assault was evident at the instructions phase, yet the defense did not object.
  • Under Rule 12(b)(2) and cases like Miller, Palmer, and LaRock, the defense was obligated to raise indictment specificity and double jeopardy concerns before trial (by motion to dismiss or seeking a bill of particulars) or at least before the jury was instructed. Waiting until a post-trial motion constitutes waiver—particularly given West Virginia’s established raise-or-waive doctrine and explicit authority that double jeopardy claims can be waived if not timely raised (Carroll; McGilton).

2) Substantive double jeopardy analysis (assuming no waiver):

  • The dissent applies the Zaccagnini/Blockburger test through Mirandy’s lens. In Mirandy, the presence of two different victims (one for malicious assault and another for wanton endangerment) made each offense require proof of a fact the other did not—the identity of the victim—thus permitting separate punishments.
  • By contrast, Wright held that when both offenses arise from the same act against the same victim, wanton endangerment can be a lesser-included offense of malicious assault, and double jeopardy precludes punishing both. Wright expressly cautioned its holding was fact-specific; “convictions of both wanton endangerment and malicious assault do not always constitute double jeopardy.”
  • Justice Armstead finds this case akin to Mirandy, not Wright, because the evidence allowed the jury to find two victims: Brittany S. was shot (malicious assault), and K.M. was placed at substantial risk (wanton endangerment). He highlights record facts: the infant’s close proximity, the bullet’s ricochet inside the vehicle, a cracked windshield, and bullet fragments on the driver’s side floorboard—facts that a “reasonable jury” could (and did) interpret as placing K.M. in substantial danger.
  • Although the indictment did not name K.M. as the wanton endangerment victim, the dissent emphasizes that the law does not require vacatur where the defendant could have sought clarification pretrial and where the jury was properly instructed on the elements. The jury’s verdict implicitly identified K.M. as the victim of wanton endangerment.

3) Deference to jury verdicts:

  • The dissent underscores Easton and related authority: appellate courts should not overturn jury verdicts on factual grounds unless there is reasonable doubt of guilt or evidence of passion or prejudice. Here, the evidence “overwhelmingly” showed risk to K.M., and the jury’s verdict deserves respect.

Impact and Likely Practical Consequences

Because this is a partial dissent, it is not binding. Nonetheless, it signals important practical and doctrinal pressures in West Virginia criminal practice, and it frames the contours for future litigation.

  • Charging clarity and trial management:
    • Prosecutors: This dispute makes clear that failing to identify the victim in a wanton endangerment count invites double jeopardy challenges if the same act underlies multiple charges. To mitigate risk, prosecutors should specify the victim in each count and request jury instructions that clearly tie victims to counts.
    • Courts: Trial courts may wish to ensure that indictments and instructions identify victims where relevant to avoid post-trial double jeopardy claims, and may consider special interrogatories or verdict forms clarifying victim identity for multi-victim offenses.
    • Defense: Defense counsel should raise double jeopardy and indictment-specificity challenges before trial or at the charge conference, and, where needed, seek a bill of particulars under Rule 7(f). Failing to do so risks waiver under LaRock, Miller, and related cases.
  • Substantive doctrine—multiple victims and Blockburger:
    • Mirandy’s multiple-victim pathway remains pivotal: when an act endangers or injures different persons, separate punishments for different offenses are more readily sustained because “victim identity” can be the distinct fact that satisfies Blockburger/Zaccagnini.
    • Wright remains a caution for single-victim scenarios: where the same act and same victim support both charges, wanton endangerment may be a lesser-included offense of malicious assault, and separate punishments may violate double jeopardy absent additional distinct facts.
  • Preservation and waiver:
    • Justice Armstead’s waiver analysis, if embraced in future cases, will stiffen the expectation that double jeopardy claims be raised before trial or at least before jury instructions. Post-verdict double jeopardy objections risk being deemed waived, with courts construing indictments in favor of validity unless fatally defective.
  • Appellate deference to jury findings:
    • Where the record contains evidence that a second person was endangered (e.g., ricochet, close proximity, bullet fragments), appellate courts may be reluctant to overturn jury verdicts if the jury was correctly instructed, even if the indictment did not identify the victim by name—particularly when the defendant did not object.

Complex Concepts Simplified

  • Double jeopardy: A constitutional protection with three facets—no new prosecution after acquittal, no second prosecution after conviction for the same offense, and no multiple punishments for the same offense in a single proceeding.
  • Blockburger test (as adopted in Zaccagnini): When one act violates two statutes, there are two offenses (allowing two punishments) if each statute requires proof of a fact the other does not.
  • Lesser-included offense: A crime whose elements are fully contained within a greater offense. In Wright, wanton endangerment was a lesser-included offense of malicious assault under the specific facts (single victim), making dual punishment impermissible.
  • Multiple-victim distinction (Mirandy): If two offenses arising from the same act involve different victims, “victim identity” can be the additional fact required under Blockburger, permitting separate punishments.
  • Wanton endangerment with a firearm: Performing an act with a firearm that creates a substantial risk of death or serious bodily injury to another person. The “another person” need not be struck; significant risk suffices.
  • Malicious assault: Unlawfully and maliciously causing bodily injury to another with intent to maim, disfigure, disable, or kill. Unlike wanton endangerment, malicious assault requires actual injury and malicious intent.
  • Raise-or-waive doctrine and contemporaneous objection: Parties must timely object to perceived errors (e.g., indictment defects, jury instructions). Failing to object contemporaneously generally forfeits the claim on appeal.
  • Bill of particulars: A procedural device to obtain details omitted from an indictment (such as the identity of a victim) before trial, enabling the defense to prepare and preventing surprise.
  • Appellate deference to juries: Juries resolve factual disputes. Appellate courts disturb verdicts only in rare cases, such as when the verdict appears driven by passion or prejudice or is unsupported by the evidence.

Conclusion

Justice Armstead’s partial dissent articulates a rigorous approach to both preservation and the merits of double jeopardy in multi-victim contexts. Procedurally, he would enforce a strict raise-or-waive rule for double jeopardy claims, requiring defendants to object before trial or, at minimum, before jury instructions, especially where the indictment or charge language (“another person”) makes potential overlap evident. Substantively, he applies Mirandy to hold that when a single shot both injures one person (malicious assault) and endangers another (wanton endangerment), the crimes involve different victims and therefore different facts, satisfying Blockburger and allowing separate punishments.

Although the majority disagreed—based in part on the indictment’s failure to name K.M. as the wanton endangerment victim and its view of the record—Justice Armstead’s opinion offers a clear roadmap for practitioners. Prosecutors should specify victims in multi-count indictments and tailor jury instructions accordingly; defense counsel should preserve double jeopardy objections early and seek a bill of particulars when necessary; and courts should be attentive to victim identification in multi-victim prosecutions to avoid later double jeopardy disputes. In the broader legal context, the dissent underscores that, in West Virginia, the resolution of double jeopardy questions in single-incident, multi-offense prosecutions often turns on two practical questions: Did the defendant timely preserve the claim, and does the record—properly framed—demonstrate distinct victims or distinct facts sufficient to satisfy Blockburger?

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