State of West Virginia v. Scott Michael Hundley

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2025 Term FILED

_______________

May 14, 2025

released at 3:00 p.m.

No. 22-901 C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

_______________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v.

Scott Michael Andrew Hundley,

Defendant Below, Petitioner

Appeal from the Circuit Court of Jefferson County

The Honorable Debra McLaughlin, Judge

Case No. 22-F-16

AFFIRMED

Submitted: February 18, 2025

Filed: May 14, 2025

Shawn McDermott, Esq. John B. McCuskey, Esq.

Kevin D. Mills, Esq. Attorney General

Criminal Law Center Andrea Nease Proper, Esq.

Martinsburg, West Virginia Deputy Attorney General

Counsel for Petitioner Charleston, West Virginia

Counsel for Respondent

JUSTICE WALKER delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “A trial court’s evidentiary rulings, as well as its application of the

Rules of Evidence, are subject to review under an abuse of discretion standard.” Syllabus

Point 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).

2. “This Court will not consider an error which is not preserved in the

record nor apparent on the face of the record.” Syllabus Point 6, State v. Byers, 159 W. Va.

596, 224 S.E.2d 726 (1976).

3. “Where the record of a criminal trial shows that the cumulative effect

of numerous errors committed during the trial prevented the defendant from receiving a

fair trial, his conviction should be set aside, even though any one of such errors standing

alone would be harmless error.” Syllabus Point 5, State v. Smith, 156 W. Va. 385, 193

S.E.2d 550 (1972).

i

WALKER, Justice:

Petitioner Scott Michael Andrew Hundley was convicted of second-degree

murder after he fatally stabbed Thomas Cekada Jr. in 2021. On appeal, Mr. Hundley’s

primary argument is that evidence of the victim’s use and sale of drugs should have been

admitted in support of his self-defense theory. He also argues that the court erred in

allowing the State’s rebuttal to exceed the scope of its initial closing argument, and raises

error related to various evidentiary rulings and alleged prosecutorial misconduct. In short,

we find no abuse of discretion with respect to the circuit court’s evidentiary and other

rulings, and note that the court appropriately identified a path for Mr. Hundley to seek the

admission of evidence of the victim’s drug use that he chose not to take. Finding no error,

we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Indictment and Underlying Facts

Mr. Hundley was indicted on one count of first-degree murder by the

Jefferson County Grand Jury after he fatally stabbed Thomas Cekada Jr. in the neck on

August 7, 2021. Earlier that day, Mr. Hundley was exiting the Dollar General in Charles

Town and observed Mr. Cekada parked outside. According to Mr. Hundley, Mr. Cekada

brandished a firearm at him from inside of his vehicle. Shortly following the incident at

the Dollar General, Mr. Hundley and Mr. Cekada were involved in a motor vehicle collision

on Mountain Mission Road. Mr. Hundley exited his vehicle to assess the damage and only

1

then noticed that the other driver was Mr. Cekada. According to Mr. Hundley, Mr. Cekada

once again brandished a firearm in his direction, so, fearing for his life, he stabbed Mr.

Cekada in the neck before fleeing the scene.

When officers apprehended Mr. Hundley that evening at the home of Roger

and Rosanna Piper, the maternal grandparents of Mr. Hundley’s children, Chief Deputy

Victor Lupis inquired about the incident and Mr. Hundley responded that he may need an

attorney. Questioning ceased before the officers placed Mr. Hundley under arrest and

brought Mr. Hundley to the Jefferson County Sherriff’s Department, where he was advised

of his Miranda1 rights, signed a waiver, and gave a statement that he had stabbed Mr.

Cekada in self-defense after Mr. Cekada had twice brandished a firearm at him.

B. Pre-Trial Hearing

Before trial, Mr. Hundley filed a motion to suppress his statements made to

law enforcement, claiming that the statements were inadmissible because he had made an

unequivocal request for counsel to Chief Deputy Lupis when he was apprehended at the

home of Mr. and Mrs. Piper. The State filed a pre-trial motion seeking to prohibit the

admission of evidence pertaining to Mr. Cekada’s drug activity, including a toxicology

report showing the presence of several controlled substances in Mr. Cekada’s system at the

time of his death and text message records from Mr. Cekada’s cell phone. The State also

1

Miranda v. Arizona, 384 U.S. 436 (1966).

2

filed a notice of intent to introduce evidence under Rule 404(b) of the West Virginia Rules

of Evidence that Mr. Hundley had been convicted of stabbing his stepfather in 2016.

At the pretrial hearing on April 28, 2022, the circuit court first addressed Mr.

Hundley’s motion to suppress the statements he made to law enforcement officers after he

was placed under arrest. The court indicated that it had viewed a recording of the statement

from footage obtained from Chief Deputy Lupis’s body camera. Based on the inflection

of Mr. Hundley’s voice in the recording, the court determined that the statement was

equivocal and did not qualify as a request for counsel. The court further noted that Mr.

Hundley was not in custody at the time that he made the statement based on his demeanor

and the timing of his interaction with Chief Deputy Lupis, and thus, Miranda had not yet

been triggered. Once Mr. Hundley was placed under arrest, he was properly advised of,

but affirmatively waived those rights and spoke with the officers. So, the court determined

that his statement to law enforcement officers was admissible.

The court then considered the State’s pre-trial motion to suppress evidence

related to Mr. Cekada’s drug use. Mr. Hundley argued that toxicology results showing

several drugs in Mr. Cekada’s system at the time of his death were relevant to his claim

that Mr. Cekada was “displaying irrational behavior consistent with drug use” at the time

of the stabbing and, along with evidence of Mr. Cekada’s erratic driving, supported his

claim that the stabbing was in self-defense. The court noted that Mr. Hundley had failed

to identify a link between the drugs found in Mr. Cekada’s system and his alleged irrational

3

behaviors, and determined that the evidence of drug use, in and of itself, was not relevant

without expert testimony that the substances could cause irrational behavior. In granting

the State’s motion, the court instructed Mr. Hundley that it would consider granting a

continuance to reconsider its decision if Mr. Hundley procured testimony from an expert

toxicologist. Mr. Hundley acknowledged the court’s instruction and responded, “I need to

do that.” As for text message evidence purporting to show drug transactions, Mr. Hundley

did not object to the State’s motion to the extent that suppression of the text messages did

not preclude him from presenting testimony related to Mr. Cekada’s drug use.

Last, the court conducted a hearing pursuant to State v. McGinnis,2 to address

the State’s request to introduce Rule 404(b) evidence that Mr. Hundley had previously

stabbed another individual and pleaded guilty to unlawful wounding and domestic battery.

The State called Corporal Conor O’Shea, who testified that he responded to a call regarding

an assault in progress in 2016. At the scene, Mr. Hundley’s mother advised Corporal

O’Shea that Mr. Hundley had attacked her and her boyfriend, Timothy Williamson, and

had stabbed Mr. Williamson during the altercation. Corporal O’Shea testified that Mr.

Hundley had eventually pled guilty to unlawful wounding and domestic battery. In

response, Mr. Hundley called Mr. Williamson to the stand. Mr. Williamson testified that

he had instigated the argument with Mr. Hundley and had struck Mr. Hundley with a

weapon before Mr. Hundley stabbed him. Mr. Williamson further explained that he

2

193 W. Va. 147, 455 S.E.2d 516 (1994).

4

informed Corporal O’Shea that night that the altercation was “a mutual affray” and that he

did not want to press charges. The court then denied the State’s request to use this evidence

under Rule 404(b). Several days after the pre-trial hearing, the State filed an information

charging Mr. Williamson with one misdemeanor count of false swearing. The State alleged

that Mr. Williamson “testified [at the McGinnis hearing] in direct contravention to several

points of his written statement [previously given to Corporal O’Shea in 2016] in an effort

to have the evidence of the prior stabbing excluded from the pending murder case.”

C. Evidence at Trial

Mr. Hundley’s jury trial began on May 18, 2022. The State called Deputy

William Willhelm, the Jefferson County deputy sheriff who responded to the scene of Mr.

Cekada’s stabbing. Deputy Willhelm explained that when he arrived at the scene, he

observed Mr. Cekada on his knees bleeding heavily and holding his neck. He told the jury

that as soon as he approached Mr. Cekada, Mr. Cekada stated, “Scott Hundley did this to

me[,]” before losing consciousness. Deputy Willhelm further testified that he removed a

firearm from Mr. Cekada’s front right pocket. Deputy Willhelm explained that there were

no live rounds in the chamber of the firearm but that there were six rounds in the magazine.

Last, he explained that although any blood on the firearm appeared to have solely been

transferred from Mr. Cekada’s clothing, Mr. Cekada’s hands were covered in blood at the

time of his death.

5

The State next called two witnesses who had observed portions of the

incident. Dana Clutter-White testified that she observed a red Ford Escape—later

confirmed to be Mr. Cekada’s vehicle—driving over the speed limit and on Mountain

Mission Road. Shortly after that, she observed Mr. Cekada’s vehicle parked behind an

older beige truck, which was later confirmed to be Mr. Hundley’s vehicle. She told the

court that she noticed Mr. Hundley briskly walking away from the driver’s side door of Mr.

Cekada’s vehicle, before Mr. Cekada threw his vehicle into reverse, and almost sideswiped

her vehicle. She testified that when she looked into the window of Mr. Cekada’s vehicle,

Mr. Cekada appeared sick and scared, and at least one of his hands was on the steering

wheel. Christy Maddox testified that on the day of the incident, she noticed the same red

Ford Escape driving erratically behind her at an “unbelievably high speed.” She explained

that the next time she saw Mr. Cekada’s vehicle, Mr. Cekada had made a U-turn into her

vehicle, causing an accident. She said that she next observed Mr. Cekada exiting his car,

drenched in blood and holding his neck. Ms. Maddox remained in her vehicle until officers

arrived at the scene.

The court then heard testimony from Lieutenant Robert Sell, an accident

reconstructionist with the Jefferson County Sherriff’s Department. Lieutenant Sell was

qualified as an expert in accident reconstruction. He told the court that he assessed the

accident between Mr. Cekada and Ms. Maddox. He explained that based on the damage to

the front of Mr. Cekada’s vehicle, he could not determine whether it had been in an accident

with Mr. Hundley’s vehicle prior to the collision with Ms. Maddox. He further explained

6

that Mr. Hundley’s vehicle, which he examined at the impound lot, did not have red paint

on it or any other signs of a collision Mr. Cekada’s vehicle.3

Officer Holz next testified that over the course of his investigation, he

reviewed Mr. Hundley’s description of the incident during a phone call he made from the

jail the day after the stabbing to Ms. Piper. The State moved to publish the recorded call,

and the recording was played for the jury. After the recorded phone call was played for the

jury, Mr. Hundley asked the court for a sidebar and the jury was excused from the

courtroom. Mr. Hundley argued that because the last portion of the recorded phone call

included a statement from Ms. Piper to Mr. Hundley suggesting that the stabbing was in

self-defense, the State, in essence, introduced evidence suggesting that Mr. Hundley’s self-

defense argument was fabricated after the stabbing. So, Mr. Hundley argued, he should be

permitted to introduce Mr. Hundley’s prior statement to law enforcement officers that he

had stabbed Mr. Cekada out of fear for his safety. The court determined that Mr. Hundley

could ask Officer Holz whether Ms. Piper’s assertion that the stabbing was self-defense

was consistent with Mr. Hundley’s earlier statements, but that the statement in and of itself

could not be introduced unless Mr. Hundley took the stand to testify. Following the sidebar,

the court adjourned.

3

Chief Deputy Lupis similarly testified that he observed a black scuff mark on the

bumper of Mr. Hundley’s vehicle but did not observe any dents or other damage on the

back of his vehicle.

7

The following day, the court reconvened, and Officer Holz was called again

to testify. Mr. Hundley asked whether “the contents of the phone call [played to the jury

the day before] were substantially the same as what Mr. Hundley provided in his [initial

statement to officers].” Officer Holz replied “Yes, sir, for the most part.”

After Officer Holz finished testifying, the State called Ms. Piper, who

testified that Mr. Hundley had placed a phone call to her after the incident with Mr. Cekada

at the Dollar General and before the altercation with Mr. Cekada on Mountain Mission

Road. She explained that during the phone call, Mr. Hundley told her that Mr. Cekada had

“pulled his gun on him” at the Dollar General and that he was “going to fucking kill [Mr.

Cekada]” because he had brandished the firearm at him. She then explained during cross

examination by Mr. Hundley that Mr. Cekada frequently visited Mr. and Ms. Piper’s home,

and that Mr. Piper no longer wanted Mr. Cekada to visit the home because Mr. Cekada used

drugs with their son Andrew Piper. She explained that in the weeks before the incident,

Mr. Hundley overheard Mr. Piper tell her that Mr. Cekada was no longer welcome in the

home, and that Mr. Hundley had then relayed to Mr. Cekada that he was not permitted to

visit Mr. and Ms. Piper’s home. Ms. Piper also testified that although Mr. Cekada used

drugs with Andrew Piper, he did not sell drugs to Andrew Piper.

The State then called David Boober, a former investigator with the West

Virginia State Police. Mr. Boober was qualified by the court as an expert in digital

forensics. On cross examination, Mr. Hundley attempted to ask Mr. Boober about text

8

messages on Mr. Cekada’s phone allegedly indicating that Mr. Cekada sold drugs. The

State objected to the admission of the text messages, and the court held a sidebar. Mr.

Hundley argued that the text messages were relevant to refute the State’s assertion that Mr.

Cekada’s firearm was in his pocket at the time of the stabbing, since drug dealers “carry

guns all the time.” The court ruled that the fact of whether or not Mr. Cekada sells drugs

would not make it any more likely or less likely that he brandished the firearm at Mr.

Hundley and sustained the State’s objection to the admission of the text message evidence.

The court then heard testimony from the forensic pathologist who performed

Mr. Cekada’s autopsy, Dr. Ashton Ennis. Dr. Ennis was recognized as an expert in the area

of forensic pathology. Relevant to this appeal, Mr. Hundley lodged an objection to the

State’s attempt to admit photographs taken during the autopsy of Mr. Cekada’s hands,

covered in blood. The State argued that the photographs were relevant to support its theory

that Mr. Cekada did not brandish the firearm at Mr. Hundley because Mr. Cekada’s hands

were bloody, and the firearm found in his pocket was not. The court determined that the

photographs were only relevant for the limited purpose of corroborating Ms. Maddox’s

earlier testimony that Mr. Cekada had his hands wrapped around his throat when he

approached her. Ultimately, Dr. Ennis testified that Mr. Cekada’s hands were, as shown in

the admitted photographs, bloody before they were cleaned during the autopsy.

After the State rested, Mr. Hundley moved for a directed verdict. He asserted

that the State failed to show premeditation because the exchange between Mr. Hundley and

9

Mr. Cekada lasted “10 seconds, maybe 20 seconds.” So, Mr. Hundley argued, at best, the

State had only proven second-degree murder. The circuit court ruled that the State had

presented sufficient evidence for the jury to determine whether the stabbing was

premeditated because the State presented evidence that Mr. Hundley had made a statement

threatening to kill Mr. Cekada before the stabbing occurred. The court then took a recess

before the defense presented its case.

Mr. Hundley first called Mr. Piper to testify. Mr. Piper explained that

although Mr. Hundley overheard Mr. Piper expressing his opinion that Mr. Cekada was no

longer welcome in the home to Ms. Piper, he had never directed Mr. Hundley to relay that

opinion to Mr. Cekada.

Mr. Hundley then testified, explaining that his relationship with Mr. Cekada

became strained after Mr. Hundley told Mr. Cekada he was no longer welcome at the Piper

residence around July 27, 2021. He testified that he knew Andrew Piper and Mr. Cekada

used drugs together because he observed burnt up foil indicative of drug use around the

downstairs bathroom of the Piper residence. He explained that he became concerned about

the drug use after Mr. Cekada began to behave erratically around the children.

Regarding the altercation, Mr. Hundley testified that on August 7, he stopped

at a Dollar General after purchasing a gift for his nephew to buy a gift bag and a present

for his daughter. He explained that he encountered Mr. Cekada’s car toward the back end

10

of the parking lot and pointed toward the exit. When he made eye contact with Mr. Cekada,

Mr. Cekada brandished a firearm at him in a circular motion. Mr. Hundley further

explained that he then approached Mr. Cekada’s vehicle and yelled “[w]hat the hell are you

doing? What are you trying to do?” At that point, Mr. Cekada drove off, so Mr. Hundley

returned to his car. Mr. Hundley told the court that following this altercation, he left the

Dollar General and began driving up Mountain Mission Road to his nephew’s birthday

party. As he drove up Mountain Mission Road, he made a phone call to Ms. Piper

threatening to kill Mr. Cekada. He explained that although he told Ms. Piper he was going

to kill Mr. Cekada, that he did not mean it, and that it was only an expression. He testified

that almost immediately after he got off the phone with Ms. Piper, another vehicle rear-

ended him. Mr. Hundley then explained that he exited his car to check for damage, and

only then noticed Mr. Cekada outside the vehicle and pointing a firearm directly at his face,

just a few feet away. He explained that at that point, he panicked and reached for his

pocketknife to stab Mr. Cekada. He testified that he felt like his life was in danger before

he stabbed Mr. Cekada. He explained that after the stabbing, he panicked and threw the

knife.

D. Closing Arguments and Sentencing

Before closing arguments, the State sought clarification of whether it would

be permitted to argue a lack of self-defense based on Mr. Cekada’s bloody hands and the

lack of blood on his gun. The court determined that the State was permitted to argue the

11

lack of blood on the firearm, and Mr. Hundley did not object. Even so, the State made no

references to the lack of blood on the firearm during its initial closing argument. But after

Mr. Hundley presented a self-defense argument in his closing argument, the State argued

in its rebuttal that self-defense did not apply because there was no blood on the firearm at

the time it was retrieved from Mr. Cekada’s body, even though his hands were covered in

blood. Mr. Hundley lodged an objection to this line of argument, but the court determined

that the State’s argument directly rebutted Mr. Hundley’s self-defense claim.

After several hours of deliberation, the jury found Mr. Hundley guilty of the

lesser-included offense of second-degree murder. Mr. Hundley filed several post-trial

motions, which were denied, and the court sentenced him to a determinate term of forty

years of imprisonment. Mr. Hundley received a recidivist enhancement of an additional

five years, for an aggregate sentence of forty-five years. He now appeals that order.

II. STANDARD OF REVIEW

As for Mr. Hundley’s objections to the circuit court’s evidentiary rulings, “[a]

trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are

subject to review under an abuse of discretion standard.”4 To the extent that he asserts that

the State wrongfully withheld exculpatory evidence, because claims under Brady v.

4

Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).

12

Maryland5 involve “mixed questions of law and fact,” this Court’s standard of review

dictates that the “circuit court’s factual findings should be reviewed under a clearly

erroneous standard . . . and questions of law are subject to de novo review.”6 With regard

to his challenge to the circuit court’s control of closing arguments, this Court has held that

“a trial court has broad discretion in controlling argument before the jury and that counsel

should be afforded wide latitude in presenting a case.”7 Last, to Mr. Hundley’s contention

that the circuit court incorrectly allowed the admission of his statements to police, “[w]e

apply an abuse of discretion standard of review to a circuit court’s decision on the

admissibility of a confession.”8 With these standards in mind, we proceed to the merits of

this appeal.

III. ANALYSIS

We consider Mr. Hundley’s assignments of error on appeal in turn. First, we

take up whether Mr. Cekada’s use and sale of drugs should have been admitted in support

of Mr. Hundley’s self-defense theory. We next consider whether the court erred in allowing

the State’s rebuttal to exceed the scope of its initial closing argument. His claims related

to prosecutorial misconduct and the State’s failure to disclose exculpatory evidence are

5

373 U.S. 83 (1963).

6

State v. Youngblood, 221 W. Va. 20, 26, 650 S.E.2d 119, 125 (2007) (citation and

internal quotation marks omitted).

7

Dawson v. Casey, 178 W. Va. 717, 721, 364 S.E.2d 43, 47 (1987).

8

State v. Campbell, 246 W. Va. 230, 237, 868 S.E.2d 444, 451 (2022).

13

then discussed. Finally, we examine Mr. Hundley’s challenges to the circuit court’s

evidentiary rulings with regard to statements he made to police, and cumulative error.

A. Evidence of Mr. Cekada’s Drug Use

Mr. Hundley first challenges the circuit court’s decision to prohibit the

admission of certain evidence related to Mr. Cekada’s drug use, which he contends

supported his claim of self-defense and was relevant to show that Mr. Cekada was behaving

in an erratic and threatening manner, putting Mr. Hundley in fear of his life at the time that

he stabbed Mr. Cekada. Specifically, Mr. Hundley challenges the circuit court’s pre-trial

ruling that the toxicology report was inadmissible and the court’s later ruling that text

messages evincing Mr. Cekada’s drug transactions could not be introduced during the trial.

The State responds that Mr. Hundley “has failed to demonstrate how the circuit court

abused its discretion by prohibiting him from introducing evidence regarding Mr. Cekada’s

drug activities[,]” because, according to the State, the presence of controlled substances in

one’s system, alone, does not prove that a person is intoxicated.9

Evidence is relevant when “(a) it has a tendency to make a fact more or less

probable than it would without the evidence; and (b) the fact is of consequence in

9

To support this argument the State cites Justice Starcher’s concurring opinion in

State v. Dilliner, 212 W. Va. 135, 569 S.E.2d 211 (2002). There, Justice Starcher noted that

“proof of the consumption of alcohol is not the same thing as proof of intoxication.” Id. at

147, 569 S.E.2d at 223.

14

determining the action.”10 The circuit court determined that the toxicology report was not

relevant to any fact at issue without, at least, potential testimony from an expert regarding

the effect of the substances. We agree. On its face, the toxicology report merely

demonstrated the presence of various substances in Mr. Cekada’s system at the time of his

death. Without related expert testimony or other evidence to explain those results to the

jury, several potential questions remain, including: (1) how long the relevant substances

could have remained in Mr. Cekada’s system in light of his individual metabolism, age,

and mass, (2) how the various substances may or may not have interacted with each other,

(3) the impacts of the various substances present in the toxicology report at the specific

levels that they presented in Mr. Cekada’s system, and (4) the behavioral impacts of such

substances given all of these considerations.

We have held that “when the issues are beyond the common knowledge and

experience of the average juror, expert testimony shall be required.”11 Because the average

juror is not equipped to interpret and understand these considerations, the toxicology results

had no tendency to make any facts about Mr. Cekada’s behavioral characteristics more or

less probable. So, the court did not err when it determined that the toxicology screen did

not, without expert testimony, pass muster under Rule 401’s evidentiary standard.

10

W. Va. R. Evid. 401.

11

J.C. by and through Michelle C. v. Pfizer, Inc., 240 W. Va. 571, 583, 814 S.E.2d

234, 246 (2018).

15

Mr. Hundley cites several cases from other jurisdictions, which he claims

support his contention that the circuit court erred in its decision to exclude the toxicology

report. A close analysis indicates otherwise. First, Mr. Hundley relies on Newell v. State,12

where the Mississippi Supreme Court found that a trial court’s exclusion of the victim’s

toxicology results constituted an abuse of discretion.13 Critically, in Newell, the court found

that the relevance of the toxicology result had already been established because evidence

of the victim’s allegedly aggressive and violent behavior had been shown through

testimony by witnesses present during the shooting.14 More to the point, there, unlike here,

the defendant attempted to introduce the testimony through an expert toxicologist.15 In this

case, the circuit court carefully considered the fact that Mr. Hundley could not present any

evidence “other than the [erratic] driving,” to show that Mr. Cekada “was impaired at the

time [of the incident].” So, the toxicology screen’s relevance had not been established at

the time of the court’s ruling.

Noting that the drugs could remain in Mr. Cekada’s system long after

ingestion, and that someone can screen positive for substances without exhibiting signs of

impairment (in this case, erratic behavior), the court determined that the toxicology screen

12

49 So.3d 66 (Miss. 2010).

13

Id. at 73.

14

Id.

15

Id.

16

was, at that time, inadmissible. But the court also clearly noted that it would reconsider

the motion if Mr. Hundley became aware of any evidence during the course of the trial that

may make the toxicology screen relevant. The court specifically informed Mr. Hundley

that he may be able to establish the relevance of the toxicology results through the

testimony of an expert toxicologist who could explain the effect of the drugs on human

behavior. The court further indicated that it may consider continuing the case if Mr.

Hundley obtained expert testimony to that effect, but Mr. Hundley never did that.

The circuit court’s ruling—essentially, that the evidence was irrelevant

without an expert to interpret the toxicology results—is consistent with several other cases

cited by Mr. Hundley. For instance, in State v. David,16 the Hawaii Supreme Court

concluded that defense expert testimony was not necessary to admit the victim’s .225 blood

alcohol content.17 But this is because “[c]ourts have long recognized that alcohol’s effects

such as violence are within jurors’ common understanding[,]”18 and that “[t]he temporal

and individual variations of alcohol’s impact are similarly within jurors common

understanding[.]”19 The same cannot be said for the behavioral effects of drugs, however,

16

494 P.3d 1202 (Hawaii 2021).

17

Id. at 1209.

18

Id. (internal citations omitted).

19

Id.

17

as those effects are not, generally, thought to be within a juror’s common knowledge.20 So,

“some jurisdictions have specially held that a more trained or experienced observer is

necessary to testify as to the intoxicating effects of drugs”21 Here, the circuit court did not,

as Mr. Hundley suggests, preclude him from introducing evidence of the toxicology screen

without reservation. Instead, the court noted that the toxicology screen was not, on its own,

relevant, and provided an opportunity for Mr. Hundley to supplement his relevance

argument if a toxicologist could, essentially, explain a reason that the results were relevant.

We find this determination is squarely in line with Rule 401’s evidentiary standard, that

evidence is relevant only when “it has a tendency to make a fact more or less probable than

it would without the evidence” and when “the fact is of consequence in determining the

action,”22 and decline to conclude that the circuit court abused its discretion in determining

that the toxicology report was inadmissible during the pre-trial hearing.

Mr. Hundley also mounts a challenge to the circuit court’s determination that

text messages purportedly showing Mr. Cekada’s drug transactions were not relevant, and

therefore were inadmissible. During the pre-trial hearing, the State moved to preclude Mr.

Hundley from introducing the text messages. Mr. Hundley did not object to the State’s

20

Id. See also State v. Plew, 745 P.2d 102 (Ariz. 1987) (“The defendant claims self-

defense—alleging he was trying to protect himself from the attack of an angry, intoxicated

“pusher” acting under a cocaine-induced frenzy. One hopes that the behavioral

characteristics of such people are not within the experience of the average juror.”).

21

Dixon v. Stewart, 658 P.2d 591, 598 (Utah 1982).

22

W. Va. R. Evid. 401, supra n. 10.

18

motion insofar as the parties agreed that Mr. Hundley could present evidence that Mr.

Cekada had used drugs with Andrew Piper, and that Mr. Hundley had, as a result of Mr.

Cekada’s drug use, confronted Mr. Cekada and kicked him out of the Piper residence.

During trial Mr. Hundley had the opportunity to present this evidence. But, during Mr.

Hundley’s cross examination of the State’s forensic investigator, David Boober, Mr.

Hundley attempted to ask Mr. Boober about text messages on Mr. Cekada’s phone. The

State lodged an objection, and the court determined that the fact of whether or not Mr.

Cekada engaged in drug transactions, as purportedly demonstrated in the text message

evidence, would not make it any more likely or less likely that he brandished the firearm

at Mr. Hundley before Mr. Hundley stabbed him.

The court’s relevancy determination as to the text message evidence is

similarly supported by the standard for relevance established in Rule 401 and the

jurisprudence in other jurisdictions that the effects of illicit drugs are, generally, not “within

the experience of the average juror.”23 Again, Mr. Hundley failed to demonstrate the

relevance of Mr. Cekada’s use of drugs and its connection to the events of the day of the

incident: how Mr. Cekada’s drug use, in and of itself, made a fact of consequence to the

trial more or less probable.24 Critically, Mr. Hundley was not even able to show Mr. Cekada

23

State v. Plew, 745 P.2d 102, 106 (Ariz. 1987).

24

See W. Va. R. Evid. 401.

19

used drugs on the day of the incident. So, the circuit court neither erred nor abused its

discretion when it prohibited the admission of evidence related to Mr. Cekada’s drug use.25

B. Closing Arguments

Mr. Hundley next asserts that the circuit court erred in allowing the State to

present an argument for the first time in its rebuttal in closing argument. In other words,

Mr. Hundley challenges the circuit court’s control of closing arguments because, according

to Mr. Hundley, the State should have been precluded from presenting an argument during

its rebuttal (that Mr. Cekada could not have brandished his firearm at Mr. Hundley during

the altercation on Mountain Mission Road because the gun was not bloody, but his hands

were) that exceeded the scope of its initial closing argument.

Citing United States v. Smith,26 a decision of the United States Court of

Appeals for the Fourth Circuit, Mr. Hundley asserts that Rule 29.1 of the West Virginia

Rules of Criminal Procedure precludes the prosecution from putting forth new arguments

in its rebuttal. Rule 29.1 states that: “[a]fter the closing of evidence and the instructions of

the court to the jury, the prosecution shall open the argument. The defense shall be

25

To the extent that Mr. Hundley argues that the circuit court erred in its

determination that the text message evidence was not admissible because it allegedly

showed that Mr. Cekada engaged in the sale of drugs, we similarly find that Mr. Hundley

failed to identify a connection between the fact that Mr. Cekada sold drugs and any fact of

consequence in determining the action.

26

962 F.3d 755 (4th Cir. 2020).

20

permitted to reply. The prosecution shall then be permitted to reply in rebuttal.”27 In Smith,

the Fourth Circuit interpreted Rule 29.1’s federal counterpart to conclude that the trial court

abused its discretion when it allowed the prosecution to waive initial closing argument but

retain rebuttal closing. In reaching this conclusion, the court recognized that “a prosecutor

cannot use rebuttal to put forth new arguments but is restricted to responding to the points

made by the defense counsel in closing argument.”28 Thus, “[t]o permit the prosecution to

waive its initial closing, yet retain the opportunity to rebut, upsets the fundamental

structuring of [Rule 29.1].”29

The State responds that the rebuttal closing argument was proper in that it

was responsive to Mr. Hundley’s closing argument asserting self-defense. We agree. The

facts in this case, unlike the facts in Smith, do not indicate that the State intentionally

forewent presenting a closing argument entirely in order to preclude Mr. Hundley from

responding fully to its theory of the case. Nor did the State, as Mr. Hundley insinuates,

save a key issue for its rebuttal in a manner that similarly precluded Mr. Hundley from

responding to the State’s arguments.

27

W. Va. R. Crim. P. 29.1.

28

United States v. Smith, 962 F.3d 755, 771 (4th Cir. 2020) (quoting United States

v. Taylor, 728 F.2d 930, 937 (7th Cir. 1984)).

29

Id.

21

Critically, although the State expressed its intent to use the photographs to

argue a lack of self-defense before closing arguments, Mr. Hundley did not object to the

court’s ruling at that time. And the State was not then foreclosed from presenting that

argument in its rebuttal under Rule 29.1 simply because it did not discuss the photographs

in its initial closing argument. As the Fourth Circuit noted in Smith, the prosecution “is

restricted to responding to the points made by the defense counsel in closing argument.”30

This Court has similarly recognized that “[a] proper closing argument in a criminal case

involves . . . responses to the opposing party’s argument[.]”31 Here, Mr. Hundley asserted

self-defense in his closing argument and the State’s rebuttal referencing the photographs

directly responded to his argument.

This Court has held that “a trial court has broad discretion in controlling

argument before the jury and that counsel should be afforded wide latitude in presenting a

case.”32 Under the facts of this case, we are not persuaded that the circuit court went

beyond the broad discretion afforded to it surrounding closing arguments. Mr. Hundley

presented a self-defense claim during his closing argument that the State then directly

refuted during its rebuttal by presenting argument, previously permitted by the court and

not objected to at that time by Mr. Hundley, illustrating that Mr. Cekada was not the

30

Id. (emphasis added.)

31

State v. Guthrie, 194 W. Va. 657, 688 n.27, 461 S.E.2d 163, 194 n.27.

32

Dawson v. Casey, 178 W. Va. 717, 721, 364 S.E.2d 43, 47 (1987).

22

aggressor. So, we conclude that the circuit court did not abuse its discretion when it

allowed the State to raise issues related to the photographs of Mr. Hundley’s hands during

its rebuttal.

C. Arrest of Timothy Williamson

Mr. Hundley’s third assignment of error is that the State committed

prosecutorial misconduct and denied him due process of law when, he contends, defense

witness Timothy Williamson was arrested on the first day of trial in front of the jury. As

explained above, the State filed a misdemeanor information charging Mr. Williamson with

false swearing after the pre-trial McGinnis hearing. In his brief to this Court, Mr. Hundley

claims that “[t]he State had law enforcement execute the warrant [against Mr. Williamson]

on the information during the first day of trial in the presence of the jury and other

witnesses.” He further claims that “[w]hile the jury may have been unaware of specifically

Mr. Williamson’s relationship to Mr. Hundley, the jury was aware that Mr. Williamson was

a party associated with Mr. Hundley.” So “[a]rresting Mr. Williamson in open court in

front of the jury unduly prejudiced the jury against Mr. Hundley.”

The State responds that this claim is not supported by the record. We agree.

In his supplemental appendix, Mr. Hundley provides the case docket entries for the

misdemeanor false swearing case against Mr. Williamson. And while the docket indicates

that the warrant against Mr. Williamson was “[s]erved by C. Hockman in court on

5/18/22[,]” the first day of Mr. Hundley’s trial, nothing in the remainder of the appendix

23

supports Mr. Hundley’s claims that the State directed the arrest, that members of the jury

witnessed the arrest, or that members of the jury were aware that Mr. Williamson was

associated with Mr. Hundley.

We have consistently held that “[t]his Court will not consider an error which

is not preserved in the record nor apparent on the face of the record.”33 On this record, it

is equally plausible that the warrant on Mr. Williamson was executed without any direction

from the State and outside of the presence of the jury. Because our review is limited to the

record before us, a record lacking sufficient factual support for Mr. Hundley’s claims, we

decline to review the error on appeal.34

D. Exculpatory Evidence

Mr. Hundley next asserts that the State violated his due process rights by

withholding exculpatory evidence related to the witness Rosanna Piper.35 Specifically, Mr.

Hundley maintains that the State failed to disclose that Ms. Piper was working as a

33

Syl. Pt. 6, State v. Byers, 159 W. Va. 596, 224 S.E.2d 726 (1976).

34

See State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) (“We

serve notice on counsel that in future appeals, we will take as nonexisting all facts that do

not appear in the designated record and will ignore those issues where the missing record

is needed to give factual support to the claim.”).

35

Mr. Hundley also reiterates his challenge to the circuit court’s decision to preclude

him from introducing Mr. Cekada’s text messages in this assignment of error. Because we

addressed that issue above and determined that the circuit court properly exercised its

discretion in so doing, we decline to address the issue again here.

24

confidential informant for the State at the time of Mr. Cekada’s death, that she had a

criminal history related to possession and distribution of controlled substances, and that

she was under arrest for drug-related offenses at the time that she testified.

This Court has held that the State’s withholding of evidence violates Brady

v. Maryland36 under the following circumstances: “(1) the evidence at issue must be

favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must

have been suppressed by the State, either willfully or inadvertently; and (3) the evidence

must have been material, i.e., it must have prejudiced the defense at trial.”37 According to

Mr. Hundley, he was prejudiced by the State’s alleged withholding of evidence related to

Ms. Piper because he could have used the evidence to impeach her testimony that Mr.

Hundley had threatened to kill Mr. Cekada during the phone call before the altercation on

Mountain Mission Road. He further maintains that he could have used the evidence to

impeach her testimony that Mr. Cekada never sold drugs to Andrew Piper. Mr. Hundley

argues that this testimony undermined his theory of the case that Mr. Cekada was the

aggressor because “he was angry with [Mr. Hundley] because [Mr. Cekada] was kicked out

of the Piper residence for selling drugs.”

Critically, Mr. Hundley’s own testimony confirmed that he had placed a

phone call to Ms. Piper and threatened to kill Mr. Cekada after the altercation at Dollar

36

373 U.S. 83 (1963).

37

Syl. Pt. 2, in part, Youngblood, 221 W. Va. at 20, 650 S.E.2d at 119.

25

General. And regardless of whether Mr. Cekada sold drugs to Andrew Piper, Ms. Piper did

not dispute that Mr. Hundley had kicked Mr. Cekada out of the Piper residence due to his

drug use. So, Mr. Hundley has failed to indicate how he was prejudiced by the State’s

purported failure to disclose evidence related to Ms. Piper.

More importantly, we agree with the State that Mr. Hundley cites no portion

of the record to support his claims that Ms. Piper had a criminal history and/or was working

as an informant for the State. As explained above, “[t]his Court will not consider an error

which is not preserved in the record nor apparent on the face of the record.”38 Because the

record does not support Mr. Hundley’s assertions that Ms. Piper was acting as a confidential

informant or had an arrest record related to her drug use, we decline to address Mr.

Hundley’s Brady claims on appeal.39

E. Mr. Hundley’s Statements to Law Enforcement

We now turn to Mr. Hundley’s challenge to the circuit court’s determination

that certain statements made to law enforcement officers during in-custody interrogation

were admissible. Mr. Hundley asserts that, although he subsequently executed a waiver of

his rights after receiving his Miranda warning, the statements were nevertheless

38

Syl. Pt. 6, Byers, 159 W. Va. at 596, 224 S.E.2d at 726.

39

We acknowledge that Mr. Hundley may be permitted to assert this issue during a

habeas corpus proceeding where a court would have the benefit of an evidentiary hearing.

26

inadmissible because he had previously invoked his right to counsel when Mr. Hundley

stated the following: “Before I give any statements to the police, I think I may need a

lawyer.” Questioning ceased before the officers placed Mr. Hundley under arrest and

brought him to the sheriff’s department, where he was advised of his Miranda rights, signed

a waiver, and gave a statement. At the pre-trial hearing, the court determined that the

statement mentioning a lawyer was equivocal based on the inflection of Mr. Hundley’s

voice in the recording, and did not qualify as a request for counsel. The court further noted

that Mr. Hundley was not in custody for purposes of Miranda at the time that he made the

statement based on his demeanor and the timing of the interaction.

We agree with the State that the issue is moot because the statement was not

introduced at trial. This Court recently considered similar facts in State v. Kennedy.40 In

that case, Mr. Kennedy claimed that he was coerced into giving a statement to police.41

The circuit court determined that the statement was not coerced and was, therefore,

admissible. Mr. Kennedy challenged that ruling on appeal. This Court concluded that

because the State did not introduce the statement at trial, “the question of whether the

circuit court erred in denying [Mr. Kennedy’s] motion to suppress this statement [was]

moot and [would] not be addressed in the appeal.”42 Similarly, we conclude that the

40

No. 19-0499, 2020 WL 4360071 (W. Va. Supreme Court, July 30, 2020)

(memorandum decision).

41

Id. at 2, n.4.

42

Id.

27

question of whether the circuit court properly determined that Mr. Hundley’s statement was

admissible is mooted by the fact that the State never actually introduced the statement

during the trial. So, we need not address the court’s determination on appeal.

F. Statements Regarding Mr. Hundley’s Self-Defense Claim

Mr. Hundley also challenges the circuit court’s determination that his

statements to police were inadmissible to rebut evidence offered by the State that he

allegedly concocted his self-defense claim with Ms. Piper. The State responds that “[w]hile

it is true that the circuit court did not permit [Mr. Hundley] to introduce the entire statement

he provided to law enforcement, the circuit court permitted [Mr. Hundley] to inquire of the

officer whether [Mr. Hundley’s] statements upon being arrested and interrogated were

consistent with his self-defense claim.” After the recorded phone call between Mr. Hundley

and Ms. Piper was played for the jury, Mr. Hundley argued that he should be permitted to

introduce his prior statement to law enforcement officers that he had stabbed Mr. Cekada

out of fear for his safety. The court determined that Mr. Hundley could ask Officer Holz

whether Ms. Piper’s assertion that the stabbing was self-defense was consistent with Mr.

Hundley’s earlier statements, but that the statement in and of itself could not be introduced

unless Mr. Hundley took the stand to testify.

This Court has previously held that a criminal defendant “ordinarily cannot

introduce his own extrajudicial exculpatory statements. They are generally thought to be

28

too self-serving.”43 Mr. Hundley identifies several extra-jurisdictional cases identifying

exceptions to this standard and broadly asserts that “principles of fundamental fairness and

due process” required admission of the previous statement, itself, because “the jury was

likely confused as there was no context as to what parts of the statement were consistent.”

We are not persuaded by Mr. Hundley’s contentions. Under West Virginia

Rule of Evidence 802, “[h]earsay is not admissible except as provided by [the rules of

evidence].”44 Subsection (c) of Rule 801 defines hearsay as a statement that “the declarant

does not make while testifying at the current trial or hearing” and that “a party offers in

evidence to prove the truth of the matter asserted in the statement.”45 Subsection (d) of

that Rule, in relevant part, establishes as non-hearsay “[a] declarant-witness’s prior

statement” that “is consistent with the declarant’s testimony and is offered to rebut an

express or implied charge that the declarant recently fabricated it or acted from a recent

improper influence or motive in so testifying.”46 But in order for the statement to be

admissible, the declarant must testify and be subject to cross-examination.47

43

State v. Frazier, 162 W. Va. 602, 614, 252 S.E.2d 39, 46 (1979).

44

W. Va. R. Evid. 802.

45

W. Va. R. Evid. 801(c).

46

W. Va. R. Evid. 801(d)(1)(B).

47

W. Va. R. Evid. 801(d)(1).

29

Here, although the circuit court determined that Mr. Hundley should be

permitted to ask Officer Holz if the statements about self-defense made during the

recording were “consistent” with prior statements to police, the court further determined

that the earlier statement, in and of itself, was not admissible unless Mr. Hundley testified.

Critically, at that point in the trial, Mr. Hundley had not decided whether he was going to

take the stand. So, because it was not clear whether Mr. Hundley was going to testify and

be subject to cross examination, the circuit court correctly determined that the statement

was inadmissible.48

G. Cumulative Error

Having addressed the remainder of Mr. Hundley’s assignments of error, we

now turn to his assertion that he is entitled to relief based upon the cumulative effect of

numerous errors. Under the cumulative error doctrine, “[w]here the record of a criminal

trial shows that the cumulative effect of numerous errors committed during the trial

48

We further note this Court’s holding that “[u]nder West Virginia Rules of Evidence

801(d)(1)(B) a prior consistent out-of-court statement of a witness who testifies and can be

cross-examined about the statement, in order to be treated as non-hearsay under the

provisions of the Rule, must have been made before the alleged fabrication, influence, or

motive came into being.” Syl. Pt. 6, State v. Quinn, 200 W. Va. 432, 490 S.E.2d 34 (1997).

Because Mr. Hundley’s statement was made after he was taken into custody by law

enforcement officers, the motive for fabrication was, in effect, planted. But because neither

party raises this issue, we decline to consider the merits of State v. Quinn’s limitations on

Rule 801(d)(1)(B). Furthermore, although Mr. Hundley testified at trial, he did not raise

this issue to allow his prior statement during or after his testimony, during which he was

subject to cross-examination.

30

prevented the defendant from receiving a fair trial, his conviction should be set aside, even

though any one of such errors standing alone would be harmless error.”49 Because Mr.

Hundley has failed to raise a single meritorious error on appeal, he is not entitled to relief

under that doctrine.

IV. CONCLUSION

For the reasons discussed above, we affirm the November 11, 2022 order of

the Circuit Court of Jefferson County.

Affirmed.

49

Syl. Pt. 5, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).

31