State of West Virginia v. Fishack

Summary

The Supreme Court of Appeals of West Virginia affirmed Bryan Lynn Fishack’s convictions and consecutive sentences for first-degree robbery, conspiracy to commit first-degree robbery, and assault during the commission of a felony. The court held that Fishack failed to establish plain error or a Confrontation Clause violation arising from testimony about a victim’s checkbook found in his vehicle, and concluded that sufficient independent evidence supported the convictions.

Holdings

1. The circuit court did not commit plain error because Fishack failed to identify any testimonial out-of-court statement by Deputy Kolb conveyed through Deputy Ritchie, and the record indicated that Ritchie's testimony was based on his own personal knowledge and observations.
2. Even assuming the challenged testimony was admitted in error, Fishack was not prejudiced because the eyewitness testimony, pursuit, recovery of the victim's property, and victim identification provided sufficient evidence to establish that he was one of the perpetrators.

Questions Presented

1. Whether the circuit court committed plain error by admitting Deputy Ritchie's testimony that a checkbook belonging to the victim was found in Fishack's vehicle when Deputy Kolb, who allegedly located the checkbook, did not testify.
2. Whether any alleged Confrontation Clause error affected Fishack's substantial rights and warranted a new trial.

Disposition

affirmed