WV Supreme Court to Hear Arguments on Mother and Son Drug and Child Neglect Convictions

The West Virginia Supreme Court of Appeals has set March 27, 2013 as the date it will hear oral arguments in the appeals brought by a mother and son who were convicted by a Webster County jury of felony drug and child neglect charges.

WV Supreme Court of Appeals

After a two day jury trial that concluded on August 5, 2011, Davis W. Wolverton and his mother, Kathyrn Wolverton, were each convicted of the felony crimes of Delivery of a Controlled Substance, Conspiracy, and Gross Child Neglect Creating Risk of Serious Bodily Injury or Death.

As summarized in the State's brief in response to the appeals, the following evidence was presented at the joint trial of the Wolverton's:

Phillip "P.J" Payne acted as a confidential informant for the State to buy drugs from Davis Wolverton on January 27, 2010. Police dropped off Payne at the Wolverton residence, which was shared by Davis, Kathyrn, and Davis's two minor children. According to Payne's testimony, Kathryn Wolverton went into a room, got two morphine pills, handed them over to Davis, who then sold them to Payne. Payne then returned to the officers and gave the pills to them.

During the trial, Payne was asked about his prior testimony in a related child abuse and neglect proceeding. In that proceeding, Payne claimed to have known Davis because he rode with him several times to a methadone clinic in Beckley. At the criminal trial, Payne admitted that he never rode with Davis to the clinic.

After the jury convicted the Wolverton's, they made a motion to Judge Jack Alsop to overturn the jury's conviction on the grounds that the Prosecutor knowingly presented false testimony by Payne. Judge Alsop denied the motion, stating that defense attorneys had plenty of opportunity to and did in fact expose the inconsistencies in front of the jury. Judge Alsop also noted that the jury was instructed to consider Payne's inconsistent testimony in judging the facts of what really happened as Payne was the only witness to the drug transaction.

Both Wolverton's then appealed their convictions to the West Virginia Supreme Court of Appeals. Both Davis and Kathyrn appealed on grounds that the verdicts should be set aside because the prosecutor knowingly presented false testimony. Davis also appealed on the issue of whether a husband and wife could both sit on the jury at the same time, which happened during this trial.

According to West Virginia law, to receive a new trial on grounds that a prosecutor presented false testimony, a defendant must show "(1) the prosecutor presented false testimony; (2) the prosecutor knew or should have known the testimony was false; and (3) the false testimony had a material effect on the jury verdict."

While the Wolverton's claim that Payne's testimony was false in light of his prior testimony in the abuse and neglect case, the State counters that the abuse and neglect testimony may be false and the criminal trial testimony true. If the State's argument is adopted, then the Wolverton's could not meet the first prong set forth above.

On the husband and wife juror issue, Davis claims that a husband and wife would not likely heed the Court's instructions not to discuss the case with each other until the case was submitted to the jury. Davis also argues that one spouse might likely just go along with the decision of the other spouse during jury deliberations to avoid conflict between the spouse. The State counters that no evidence was presented that a husband and wife would not listen to a Judge's instructions. The State also notes that there is no prohibition against a husband and wife serving on the same jury.

Here is a link to the Court's calendar for March 27, 2013, which includes links to the Circuit Court's Trial Order, and the argument briefs of both the Wolverton's and the State:

http://www.courtswv.gov/supreme-court/calendar/2013/dockets/march-27-13ad.html

The Commentator will provide an update closer to the scheduled March 27, 2013 argument date so that readers can tune in over the Internet to watch/hear the arguments. Sometimes, parties agree to waive the oral arguments and submit the case on the written briefs so the oral arguments would be cancelled. If the oral arguments appear to go forward as they are now scheduled, readers can access the live arguments on the Court's webcast website at the link below. The Wolvertons' case is set as the fourth case to be heard beginning at 10:00 a.m.
Argument Webcast link: http://www.courtswv.gov/supreme-court/webcast.html