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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
_____________
No. 32887
_____________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
MATTHEW BOLEN,
Defendant Below, Appellant
______________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Judge
Case No. 01-F-175
REVERSED AND REMANDED
_______________________________________________________
Submitted: April 11, 2006
Filed: June 16, 2006
|
Glen D. Conway, Esq.
Huntington, West Virginia
Attorney for Appellant
| Darrell V. McGraw, Jr., Esq.
Attorney General
Robert D. Goldberg, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee |
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
SYLLABUS
1. “Plain error review creates a limited exception to the general forfeiture policy
pronounced in Rule 103(a)(1) of the West Virginia Rules of Evidence, in that where a circuit
court's error seriously affects the fairness, integrity, and public reputation of the judicial
process, an appellate court has the discretion to correct error despite the defendant's failure
to object. This salutary and protective device recognizes that in a criminal case, where a
defendant's liberty interest is at stake, the rule of forfeiture should bend slightly, if necessary,
to prevent a grave injustice.” Syl. Pt. 1, State v. Marple, 197 W. Va. 47, 475 S.E.2d 47
(1996).
2. “To trigger application of the 'plain error' doctrine, there must be (1) an error;
(2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995).
3. “For religious belief or affiliation evidence to be admissible, the trial court
must make the following findings: (1) the evidence of religion is offered for a specific
purpose other than to show generally that the witness's credibility is impaired or enhanced;
(2) the evidence is relevant for that specific purpose; (3) the trial court makes an
on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the
probative value of the evidence was not substantially outweighed by its potential for unfair
prejudice; and (4) the trial court, if requested, delivers an effective limiting instruction
advising the jury of the specific purpose(s) for which the evidence may be used. If these
elements are met, it may be presumed that the complaining party was protected from undue
prejudice.” Syl. Pt. 5, State v. Potter, 197 W.Va. 734, 478 S.E.2d 742 (1996).
4. “In determining whether the assigned plain error affected the 'substantial
rights' of a defendant, the defendant need not establish that in a trial without the error a
reasonable jury would have acquitted; rather, the defendant need only demonstrate the jury
verdict in his or her case was actually affected by the assigned but unobjected to error.” Syl.
Pt. 3, State v. Marple, 197 W.Va. 47, 475 S.E.2d 47, (1996).
5. “The prosecuting attorney occupies a quasi-judicial position in the trial of a
criminal case. In keeping with this position, he is required to avoid the role of a partisan,
eager to convict, and must deal fairly with the accused as well as the other participants in the
trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may
and should vigorously pursue the State's case, in so doing he must not abandon the
quasi-judicial role with which he is cloaked under the law.” Syl. Pt. 3, State v. Boyd, 160
W.Va. 234, 233 S.E.2d 710 (1977).
6. “Four factors are taken into account in determining whether improper
prosecutorial comment is so damaging as to require reversal: (1) the degree to which the
prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert attention to extraneous matters.”
Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
Per Curiam:
This case is before the Court on appeal from an April 27, 2005, sentencing
Order of the Circuit Court of Cabell County.
(See footnote 1) In that Order, the court sentenced Appellant
to two concurrent terms of fifteen to twenty-five years in prison following his conviction on
two counts of first degree sexual assault. This Court has before it the petition for appeal, the
response, the briefs of the parties, and all matters of record. Following the arguments of the
parties and a review of the record herein, this Court finds that the circuit court committed
plain error in allowing the State to offer evidence of the victim's religious beliefs in order
to bolster the victim's credibility. Accordingly, this Court reverses the April 27, 2005, Order
of the circuit court and remands the matter for retrial.
I.
FACTS
In the summers of 1992 and 1993, Appellant was sixteen and seventeen years
old, respectively. At the time, he lived at home with his parents and his brother in
Huntington, West Virginia. His neighbor, C.J.,
(See footnote 2) was seven and eight years old during those
same summers. Despite the age difference, Appellant and C.J. became friends, and C.J. spent
a good deal of time at Appellant's house. The two played play video games and would
generally “hang out.” C.J. later testified that he went to Appellant's house to play every other
day.
There is some dispute in the record as to whether the two were under any sort
of adult supervision, in 1992 and 1993. There was no indication at the time that anything
improper had occurred between the two. The record reveals that on one occasion during this
time, C.J. drew a picture at school of two men engaging in oral sex. When C.J. accused a
fellow classmate of having drawn the picture, the matter was dropped.
Around the summer of 2000, C.J., who was then 16 years old, joined the youth
group at the Lewis Memorial Baptist Church. One aspect of the youth group's fellowship
was an annual mission trip to the Dominican Republic. The youth group spent a fairly
substantial amount of time preparing for the trip each year, undertaking exercises to prepare
themselves mentally and spiritually for the trip. The 2000 trip was C.J.'s first with the group.
One night, as C.J. and two of his friends (who he happened to know from
church) were talking, C.J. became upset and began to cry. The two friends inquired as to
what was upsetting C.J., and C.J. suggested that it was something that had happened when
he was very young. When his friends asked C.J. if had been molested, C.J. answered that he
had been. The friends then took C.J. to tell his parents.
(See footnote 3)
C.J. alleged that, between the summers of 1992 and 1993, Appellant had
repeatedly performed oral sex on C.J. and that made Appellant C.J. perform oral sex on him.
C.J. expressed that, at the time, he was unaware that the act was wrong. It was not until he
grew older that he realized that the situation was not “normal.” C.J. and his parents went to
the police and filed a complaint.
Appellant was initially charged as a juvenile on June 1, 2001, but on June 14,
2001, the case was transferred to adult status. On July 14, 2001, Appellant was indicted on
two counts of first degree sexual assault. A trial was held between May 29
th and May 30
th of 2002.
In its opening statements, the State emphasized C.J.'s religious convictions and
his devotion to his church and to God, repeatedly referring to C.J.'s “spiritual commitment,”
his missionary activities, and his desire to “get himself right with Christ.” At one point, the
State said, “[C.J.] is a sensitive man, a young man, excuse me, a sensitive young man who
has no vindictiveness in his heart _.” At that point, defense counsel
(See footnote 4) objected, stating,
“That's for the jury to decide. That's a factual question. I have let Mr. Martorella go a long
way, but we are getting outside the scope of an opening statement to his personal opinions.”
The trial court admonished the State to “just tell what you think the evidence is going to be.”
The State then said:
I believe that the evidence will show you that he is a sensitive
man _ young man.... I believe that the evidence will show you
that he has evil in his heart [sic], and I believe for the State that
the evidence will show you for the State [sic] that any young
man who would come in here before a judge he doesn't know,
before two able and capable public defenders waiting to get at
him and before you twelve utter strangers to tell you what
occurred in order to get himself straight with himself, to get
himself straight with God, and to get himself aligned with the
law is courageous and there is no other rationale, no other action
that you all can take but believe him under oath and _.
Defense counsel again objected, but the court overruled the objection.
During its case in chief, the State again raised the issue of C.J.'s faithful church
attendance and his missionary activities, but it was in closing arguments that the State
emphasized its point. The State said:
The verdict really shouldn't be guilty or not guilty. It should be,
“We believe [C.J.], seven or eight years old,” or “[C.J.] is a
liar,” and under the principles of his church, a person who said,
“I wanted to take up my cross for Christ” would bear the
responsibility of lying to God and to man. That's your decision.
And then:
He is not telling the truth because he wants to come in here and
tell twelve people of a perverse act performed on him by a
perverse person ten years ago. He is telling it because it's God's
commandment and the consequences of that brings it here.
And finally:
Your duty is to find out in your mind as a body to deliberate, is
[C.J.] telling the truth or is [C.J.] a liar who is going to go to
Hell? And I tell you, Ladies and Gentlemen of the Jury, he is
carrying his cross every day and he will for the rest of his life.
On May 30, 2002, the jury delivered its verdict, convicting Appellant on both
counts of the indictment. Appellant was subsequently sentenced to two concurrent terms of
fifteen to twenty-five years in prison. He now appeals, arguing that the trial court committed
plain error in allowing the State to offer evidence of C.J.'s religious beliefs to bolster C.J.'s
credibility and that the State committed prosecutorial misconduct when it referenced C.J.'s
religious beliefs and vouched for the record.
II.
STANDARD OF REVIEW
We have held that “[o]ur practice is to review a trial court's rulings regarding
the admissibility of evidence under an abuse of discretion standard.” State v. Potter, 197
W.Va. 734, 749, 478 S.E.2d 742, 757 (1996). However, here, Appellant failed to object to
the admissibility of the evidence which he now challenges. “[W]hen a defendant fails to
object to inadmissible evidence, he or she has forfeited the right to assign error on appeal and
we may review the arguments only for plain error.” State v. Marple, 197 W.Va. 47,51, 475
S.E.2d 47, 51 (1996) (citations omitted). With that in mind, we turn to our review of the
facts as they apply to the law.
III.
DISCUSSION
A. Plain Error
Appellant asserts that the trial court committed plain error when it allowed the
State to continually elicit testimony at trial and make comments to the jury about C.J.'s
religious beliefs and devotion to his faith in violation of Rule 610 of the West Virginia Rules
of Evidence. Rule 610 states, “Evidence of the beliefs or opinions of a witness on matters
of religion is not admissible for the purpose of showing that by reason of their nature the
witness' credibility is impaired or enhanced.”
In this case, where there was no physical evidence of or corroborating
eyewitness testimony to the crime outlined in the indictment, the State repeatedly elicited
testimony that C.J. was a very religious young man who attended church faithfully and
strictly adhered to God's commandments. The State contends that it only raised the issue of
C.J.'s religious faith to explain why C.J. came forward with his history of abuse when he did.
The State argues that the “[e]vidence explaining the eight-year lapse [between the abuse and
the allegations of abuse] was clearly relevant because it was intertwined with the credibility
of the victim's allegations.” Appellant, on the other hand, argues that the State, in fact,
offered the evidence for the sole purpose of bolstering C.J.'s credibility in a case where
credibility was of great importance.
We tend to agree with Appellant. While it may well have been necessary for
the State to explain the eight-year lapse in time, it was not necessary for the State to
repeatedly reference C.J.'s church affiliation and his religious beliefs. Although there were
no direct objections to this evidence at trial, we have previously held that:
Plain error review creates a limited exception to the general
forfeiture policy pronounced in Rule 103(a)(1) of the West
Virginia Rules of Evidence, in that where a circuit court's error
seriously affects the fairness, integrity, and public reputation of
the judicial process, an appellate court has the discretion to
correct error despite the defendant's failure to object. This
salutary and protective device recognizes that in a criminal case,
where a defendant's liberty interest is at stake, the rule of
forfeiture should bend slightly, if necessary, to prevent a grave
injustice.
Syl. Pt. 1, State v. Marple, 197 W.Va. 47, 475 S.E.2d 47 (1996). Therefore, we will exercise
our discretion to determine whether there was plain error on the part of the trial court in
allowing the evidence.
This Court has recognized that, “[i]n criminal cases, plain error is error which
is so conspicuous that the trial judge and prosecutor were derelict in countenancing it, even
absent the defendant's timely assistance in detecting the error. See United States v. Frady,
456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816, 827 (1982).” State v. Marple, 197
W.Va. 47, 52, 475 S.E.2d 47,52 (1996). We have held that in order “[t]o trigger application
of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). With
this standard, we review the record.
1. Was there an error? In order to determine if there was an error in admitting
the evidence of C.J.'s religious beliefs, we turn to State v. Potter, 197 W.Va. 734, 478 S.E.2d
742 (1996). In Syllabus Point 5, we held that:
For religious belief or affiliation evidence to be admissible, the
trial court must make the following findings: (1) the evidence of
religion is offered for a specific purpose other than to show
generally that the witness's credibility is impaired or enhanced;
(2) the evidence is relevant for that specific purpose; (3) the trial
court makes an on-the-record determination under Rule 403 of
the West Virginia Rules of Evidence that the probative value of
the evidence was not substantially outweighed by its potential
for unfair prejudice; and (4) the trial court, if requested, delivers
an effective limiting instruction advising the jury of the specific
purpose(s) for which the evidence may be used. If these
elements are met, it may be presumed that the complaining party
was protected from undue prejudice.
In assessing these factors, we are drawn to the sheer number of references to C.J.'s religious
beliefs, not only in the testimony elicited by the State but also in its opening statement and
closing argument. The State asserts that it offered the evidence of C.J.'s religion for the
specific purpose of explaining why it had taken C.J. eight years to come forward with his
allegations; however, we find that the evidence was not relevant for that purpose.
C.J. came forward to two friends and a mentor after eight years because he had
been harboring this secret of which he was ashamed. We fail to see the relevance that these
two friends and mentor were affiliated with C.J.'s church or that C.J. was “spiritually
committed” to his religious beliefs and that he wanted to “get himself right with God.”
(See footnote 5) Therefore, we cannot say that the volume of evidence put forth by the State of C.J.'s religious
conviction was offered simply for the specific purpose of explaining why C.J. waited eight
years to come forward with his allegations. Rather, we believe that it was largely offered for
the express purpose of bolstering C.J.'s credibility in violation of Rule 610. Accordingly,
there was error in admitting the evidence.
2. Was the error plain? We have held that “[t]o be 'plain,' the error must be
'clear' or 'obvious.'” Syl. Pt. 8, in part,
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
We think that, in this case, it is both clear and obvious that the court erred in allowing the
evidence in question.
3. Did the error affect substantial rights?
“In determining whether the assigned plain error affected the
'substantial rights' of a defendant, the defendant need not
establish that in a trial without the error a reasonable jury would
have acquitted; rather, the defendant need only demonstrate the
jury verdict in his or her case was actually affected by the
assigned but unobjected to error.”
Syl. Pt. 3, State v. Marple, 197 W.Va. 47, 475 S.E.2d 47, (1996). A survey of the case put
before the jury leaves little doubt but that the verdict was affected by the error. The State put
on only four witnesses. The first was a probation officer who testified only as to Appellant's
age. The second was the victim, C.J. The third was C.J.'s youth pastor, one of three people
to whom C.J. confided his secret of alleged abuse, but who did not witness the alleged abuse.
And the fourth was C.J.'s mother, who, like the youth pastor, did not have any knowledge
of the alleged abuse beyond C.J.'s allegations.
The defense put on three witnesses. The first was Appellant's mother, who
testified to refute C.J.'s assertions that he and the Appellant spent every other afternoon in
Appellant's basement playing video games together. The second was C.J.'s father, who was
called for what seems to be the sole purpose of impeaching his own statement to police.
Finally, the defense called Appellant's grandmother, who testified to refute C.J.'s assertions
that he and Appellant spent time together alone in the basement, specifically after January
of 1993. In the end, with no physical evidence to consider, this was a case of credibility of
witnesses, and the jury's verdict was surely affected by the State's evidence of C.J.'s
religious convictions.
4. Did the error seriously affect the fairness, integrity or public reputation of
the judicial proceedings? We recognized in
State v. LaRock, 196 W.Va. 294, 317, 470
S.E.2d 613, 636 (1996), that this analysis “requires a case-by-case exercise of discretion.”
And in
State v. Marple, 197 W.Va. 47, 52, 475 S.E.2d 47,52 (1996), we found that:
Once a defendant has established the first three requirements of Miller, we have the authority to correct the error, but we are not
required to do so unless a fundamental miscarriage of justice has
occurred. Otherwise, we will not reverse unless, in our
discretion, we find the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
(Citations omitted). We exercise our discretion to find that, in this case, the error seriously
affected the fairness of the trial inasmuch as the jury's verdict was unduly prejudiced by
evidence which could only have the affect of bolstering C.J.'s credibility.
Therefore, we find that the court committed plain error in allowing the State
to introduce evidence of and comment on C.J.'s religious beliefs to the degree present in this
case in order to bolster his credibility.
B. Prosecutorial Misconduct
Appellant also argues that the State committed prosecutorial misconduct in the
manner how it referenced C.J.'s religion and vouched for the record both in its opening and
closing remarks. We have long recognized that:
The prosecuting attorney occupies a quasi-judicial position in
the trial of a criminal case. In keeping with this position, he is
required to avoid the role of a partisan, eager to convict, and
must deal fairly with the accused as well as the other
participants in the trial. It is the prosecutor's duty to set a tone
of fairness and impartiality, and while he may and should
vigorously pursue the State's case, in so doing he must not
abandon the quasi-judicial role with which he is cloaked under
the law.
Syl. Pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). With that in mind, we
developed the following test:
Four factors are taken into account in determining whether
improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor's remarks have
a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced to establish
the guilt of the accused; and (4) whether the comments were
deliberately placed before the jury to divert attention to
extraneous matters.
Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
In this case, Appellant takes issue with the State's repeated reference to C.J.'s
“spiritual commitment” and his desire to “get himself right with God” as well as its attempts
to vouch for C.J.'s credibility and religious fervor by stating that it believed that C.J. had “no
vindictiveness in his heart” and that C.J. was “carrying the cross of Christ.” Perhaps most
disturbing, though, were the State's closing remarks regarding whether a man as religious
as C.J., who was so devoted to keeping God's commandments, would lie and, therefore, be
in danger of burning in Hell.
We believe that the State's remarks clearly had the potential to mislead the jury
into thinking that C.J. couldn't possibly be untruthful, which prejudiced Appellant. Far from
isolated, the State's remarks were deliberately interjected throughout the record in this case.
Given the utter lack of physical evidence or eyewitness testimony in this case, there was no
proof of guilt beyond the testimony of C.J., so it is clear that the evidence was placed before
the jury for the purpose of bolstering his credibility and diverting the jury's attention from
the lack of corroborating evidence. Therefore, we conclude that the State acted improperly.
IV.
CONCLUSION
Because we find that the court committed plain error in allowing evidence of
a witness's religious affiliation and belief and because the State acted improperly in
presenting said evidence and in vouching for the victim's credibility, we reverse the April
27, 2005, Order of the Circuit Court of Cabell County and remand this matter for a new trial
to include a hearing regarding the factors outlined in Potter should the State again choose to
offer evidence of the victim's religious convictions.
Appellant was originally sentenced on September 23, 2002; however, his appointed
counsel failed to file an appeal on behalf of Appellant, so Appellant was resentenced for
purposes of filing this appeal.
Footnote: 2 As is the practice of this Court in sensitive matters and matters involving children,
we refer to the victim by his initials only.
In the Matter of Jonathan P., 182 W.Va. 302, 303
n. 1, 387 S.E.2d 537, 538 n. 1 (1989).
Footnote: 3 Later, C.J. also confided to his youth pastor that he had been molested.
Footnote: 4 At trial, Appellant was represented by two attorneys from the Cabell County Public
Defender's Office, neither of whom is Appellant's current attorney.
Footnote: 5
There was no on-the-record determination of whether the probative value of the
evidence outweighed any unfair prejudice because there was no objection made to the
testimony in question. However, the plain error doctrine does not require that an objection
be made. There was, likewise, no limiting instruction requested, so that part of the evaluation
of the evidence is irrelevant to our analysis as well.