650 S.E.2d 216
January 2007 Term
| David C. Smith Smith & Scantlebury, L.C Ward Morgan Bluefield, West Virginia Attorneys for the Appellant |
Darrell V. McGraw, Jr. Attorney General Colleen A. Ford Assistant Attorney General Dawn E. Warfield Deputy Attorney General Charleston, West Virginia Attorneys for the Appellee |
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
JUSTICES STARCHER and ALBRIGHT dissent and reserve the right to file dissenting
opinions.
1 . “A
jury verdict should be set aside only when the record contains no evidence,
regardless of how it is weighed, from which the jury could find guilt beyond
a reasonable doubt.” Syllabus point 3, in part, State v. Guthrie,
194 W. Va. 657, 461 S.E.2d 163 (1995).
2 . “It
is peculiarly within the province of the jury to weigh the evidence upon the
question of self-defense, and the verdict of a jury adverse to that defense
will not be set aside unless it is manifestly against the weight of the evidence.”
Syllabus point 5, State v. McMillion, 104 W. Va. 1, 138 S.E. 732
(1927).
3 . “'“'Upon
motion to direct a verdict for the defendant, the evidence is to be viewed
in light most favorable to prosecution. It is not necessary in appraising
its sufficiency that the trial or reviewing court be convinced beyond a reasonable
doubt of the guilt of the defendant; the question is whether there is substantial
evidence upon which a jury might justifiably find the defendant guilty beyond
a reasonable doubt.' State v. West, 153 W. Va. 325, 168 S.E.2d
716 (1969).” Syl. pt. 1, State v. Fischer, 158 W. Va. 72,
211 S.E.2d 666 (1974).' Syl. Pt. 10, State v. Davis, 176 W. Va.
454, 345 S.E.2d 549 (1986).” Syllabus point 1, State v. Rogers,
209 W. Va. 348, 547 S.E.2d 910 (2001).
4 . “The
function of an appellate court when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, is sufficient to convince
a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus,
the relevant inquiry is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proved beyond a reasonable doubt.”
Syllabus point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d
163 (1995).
5 . “A
criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to
the prosecution and must credit all inferences and credibility assessments
that the jury might have drawn in favor of the prosecution. The evidence need
not be inconsistent with every conclusion save that of guilt so long as the
jury can find guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury verdict should
be set aside only when the record contains no evidence, regardless of how
it is weighed, from which the jury could find guilt beyond a reasonable doubt.
. . .” Syllabus point 3, in part, State v. Guthrie, 194 W. Va.
657, 461 S.E.2d 163 (1995).
6 . “When
one without fault himself is attacked by another in such a manner or under
such circumstances as to furnish reasonable grounds for apprehending a design
to take away his life, or to do him some great bodily harm, and there is reasonable
grounds for believing the danger imminent, that such design will be accomplished,
and the person assaulted has reasonable ground to believe, and does believe,
such danger is imminent, he may act upon such appearances and without retreating,
kill his assailant, if he has reasonable grounds to believe, and does believe,
that such killing is necessary in order to avoid the apparent danger; and
the killing under such circumstances is excusable, although it may afterwards
turn out, that the appearances were false, and that there was in fact neither
design to do him some serious injury nor danger, that it would be done. But
of all this the jury must judge from all the evidence and circumstances of
the case.” Syllabus point 7, State v. Cain, 20 W. Va. 679
(1882).
7 . “Under
his plea of self-defense, the burden of showing the imminency of the danger
rests upon the defendant. No apprehension of danger previously entertained
will justify the commission of the homicide; it must be an apprehension existing
at the time the defendant fired the fatal shot.” Syllabus point 6, State
v. McMillion, 104 W. Va. 1, 138 S.E. 732 (1927).
8 . “Once
there is sufficient evidence to create a reasonable doubt that the
killing resulted from the defendant acting in self-defense, the prosecution
must prove beyond a reasonable doubt that the defendant did not act in self-defense.”
Syllabus point 4, State v. Kirtley, 162 W. Va. 249, 252 S.E.2d
374 (1978).
9 . “'The
action of a trial court in admitting or excluding evidence in the exercise
of its discretion will not be disturbed by the appellate court unless it appears
that such action amounts to an abuse of discretion.' Syllabus point 10, State
v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on
other grounds by State ex rel. R.L. v. Bedell, 192 W. Va.
435, 452 S.E.2d 893 (1994).” Syllabus point 2, State v. Doonan,
___ W. Va. ___, 640 S.E.2d 71 (2006).
10 . “Generally,
out-of-court statements made by someone other than the declarant while testifying
are not admissible unless: 1) the statement is not being offered for the truth
of the matter asserted, but for some other purpose such as motive, intent,
state- of-mind, identification or reasonableness of the party's action; 2)
the statement is not hearsay under the rules; or 3) the statement is hearsay
but falls within an exception provided for in the rules.” Syllabus point
1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990).
11 . “'Courts
are not constituted for the purpose of making advisory decrees or resolving
academic disputes.' Mainella v. Board of Trustees of Policemen's Pension
or Relief Fund of City of Fairmont, 126 W. Va. 183, 185-86, 27 S.E.2d
486, 487-88 (1943).” Syllabus point 2, in part, Harshbarger v. Gainer,
184 W. Va. 656, 403 S.E.2d 399 (1991).
Per Curiam:
The appellant herein and defendant below,
Valerie Whittaker [hereinafter “Ms. Whittaker”], appeals from the
January 14, 2005, order of the Circuit Court of Mercer County rendered after
a jury adjudged Ms. Whittaker guilty of voluntary manslaughter in the death
of her longtime boyfriend. In its order, the court adopted the jury's determination
of guilt and sentenced Ms. Whittaker to a determinate term of ten years imprisonment.
On appeal to this Court, Ms. Whittaker contends that the trial court erred
by (1) not entering a judgment of acquittal
(See footnote 1) based upon her claim of self-defense;
(2) limiting the testimony of various defense witnesses; (3) refusing to admit
certain evidence proffered by Ms. Whittaker; and (4) admitting statements
made by Ms. Whittaker. Upon a review of the parties' arguments, the record
presented for our consideration, and the pertinent authorities, we affirm
Ms. Whittaker's conviction.
Ms. Whittaker first assigns error to the
trial court's refusal to enter a judgment of acquittal based upon her claim
of self-defense. In presenting her argument on this point, however, Ms. Whittaker
actually raises two distinct issues: (1) whether the evidence was sufficient
to support her motion for a directed verdict
(See footnote 14) and (2) whether the evidence was
sufficient to support her conviction and resultant sentence. We will separately
consider these issues.
1. Sufficiency of evidence to support motion for judgment of acquittal. Ms. Whittaker's first contention is that the State's evidence was not sufficient to disprove that she had acted in self-defense and that the trial court thus improperly refused her motion for judgment of acquittal at the close of the State's case-in-chief. In this regard, she asserts that the weight of the evidence overwhelmingly supports her claim that she acted in self- defense when she shot and killed Mr. Mills. The State replies that the evidence was sufficient to support Ms. Whittaker's conviction and proved her guilt beyond a reasonable doubt. In refusing to enter a judgment of acquittal in Ms. Whittaker's favor, the trial court ruled that
[l]ooking
at the evidence most favorable to the State, I believe that the State has
established a prima facie case of murder in the first degree and all the lesser
included offenses under that, so the Court will deny the motion for a directed
verdict of a judgment of acquittal.
When reviewing a lower court's refusal
to direct a verdict, this Court is bound to consider the evidence in the light
most favorable to the prosecution to determine whether a verdict of acquittal
should have been directed for the defendant.
“'“Upon
motion to direct a verdict for the defendant, the evidence is to be viewed
in light most favorable to prosecution. It is not necessary in appraising
its sufficiency that the trial or reviewing court be convinced beyond a reasonable
doubt of the guilt of the defendant; the question is whether there is substantial
evidence upon which a jury might justifiably find the defendant guilty beyond
a reasonable doubt.” State v. West, 153 W. Va. 325, 168 S.E.2d
716 (1969).' Syl. pt. 1, State v.
Fischer, 158 W. Va. 72, 211 S.E.2d 666 (1974).” Syl. Pt. 10,
State v. Davis, 176 W. Va. 454, 345 S.E.2d 549 (1986).
Syl. pt. 1, State v. Rogers, 209 W. Va. 348, 547 S.E.2d 910 (2001).
In this case, we must consider whether the evidence was sufficient to support
Ms. Whittaker's conviction at the time she moved for judgment of acquittal
at the close of the State's case.
Despite Ms. Whittaker's claim that she
shot Mr. Mills in self-defense, a review of the trial transcript demonstrates
that the State presented evidence sufficient to deny Ms. Whittaker's motion
for judgment of acquittal. During its case-in-chief, the State presented the
testimony of nine witnesses. Through these witnesses, the State presented
evidence that Ms. Whittaker did not have a gun on her person at the time of
the shooting but that she knew where Mr. Mills kept one in the kitchen of
her trailer. The State also proved that Ms. Whittaker shot Mr. Mills and killed
him from seventeen feet away with a single gunshot wound between his eyes,
despite her claim that she had never before fired the gun used in the shooting.
Furthermore, the State presented evidence that, after the shooting but before
she called to report Mr. Mills' death, Ms. Whittaker placed a shotgun in Mr.
Mills' hand presumably to bolster her claim of self-defense. The State further
demonstrated that, in order to retrieve and plant the shotgun in Mr. Mills'
hand, Ms. Whittaker had to step through Mr. Mills' blood and that, in doing
so, she left bloody footprints around his body. Finally, the State introduced
into evidence Ms. Whittaker's numerous statements to law enforcement officials
which provided contradictory accounts
of the shooting. We believe this evidence was sufficient to deny Ms. Whittaker's
motion for judgment of acquittal.
2. Sufficiency of evidence to support
voluntary manslaughter conviction. Ms. Whittaker additionally argues that
the evidence was insufficient to sustain her conviction. On this point, Ms.
Whittaker appears to argue that the State failed to prove beyond a reasonable
doubt that she did not act in self-defense. Such an argument necessarily requires
us to consider whether the evidence was sufficient to permit the jury to find
Ms. Whittaker guilty beyond a reasonable doubt.
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Syl. pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). In other words,
[a]
criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to
the prosecution and must credit all inferences and credibility assessments
that the jury might have drawn in favor of the prosecution. The evidence need
not be inconsistent with every conclusion save that of guilt so long as the
jury can find guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury verdict should
be set
aside only when the record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt. . . .
Syl. pt. 3, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d
163.
Ms. Whittaker bases her argument that
the evidence was insufficient to support her conviction on her claim of self-defense.
This Court previously set forth the elements of self-defense in State v.
Cain, 20 W. Va. 679 (1882):
When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.
Syl. pt. 7, id. In any event, however, imminency of the danger apprehended
is a crucial component of self-defense: “Under his plea of self-defense,
the burden of showing the imminency of the danger rests upon the defendant.
No apprehension of danger previously entertained will justify the commission
of the homicide; it must be an apprehension existing at the time the defendant
fired the fatal shot.” Syl. pt. 6, State v. McMillion, 104 W. Va.
1,
138 S.E. 732 (1927). “Once there is sufficient evidence to create a reasonable
doubt that the killing resulted from the defendant acting in self-defense,
the prosecution must prove beyond a reasonable doubt that the defendant did
not act in self-defense.” Syl. pt. 4, State v. Kirtley, 162 W. Va.
249, 252 S.E.2d 374 (1978).
In this case, the State originally had
charged Ms. Whittaker with first-degree murder.
(See footnote 15) Upon the conclusion of the trial,
however, the jury concluded that Ms. Whittaker was guilty of the lesser-included
offense of voluntary manslaughter. The absence of malice distinguishes the
crime of voluntary manslaughter from the crime of murder. “Malice, express
of implied, is an essential element of murder. . ., and if absent the homicide
is of no higher grade than voluntary manslaughter.” State v. Jones,
128 W. Va. 496, 499, 37 S.E.2d 103, 105 (1946) (citations omitted), overruled
on other grounds by Proudfoot v. Dan's Marine Serv., Inc., 210
W. Va. 498, 558 S.E.2d 298 (2001). Accord State v. Kirtley,
162 W. Va. at 254, 252 S.E.2d at 376-77 (“It is the element of malice
which forms the critical distinction between murder and voluntary manslaughter.”
(citation omitted)). Thus, manslaughter has been described as “'[a] sudden
intentional killing with a deadly weapon, by one who is not in any way at
fault, in immediate resentment of a gross provocation, is prima facie
a killing in heat of blood, and, therefore, an offense of no higher degree
than voluntary manslaughter.' Point 10, syllabus, State v. Clifford,
59 W. Va. 1[, 52 S.E. 981
(1906)].” Syl. pt. 3, State v. Bowyer, 143 W. Va. 302, 101
S.E.2d 243 (1957).
Although the events leading up to Mr.
Mills' death could suggest that Ms. Whittaker was acting in self-defense
(See footnote 16) as she claims, the evidence presented
a question as to whether Ms. Whittaker “apprehend[ed] . . . danger,”
Syl. pt. 6, in part, State v. McMillion, 104 W. Va. 1, 138 S.E.
732, at the time she shot Mr. Mills insofar as she admitted that Mr. Mills
did not have a gun in his hand at that moment and that she later placed one
in his hand to bolster her self-defense claim. The evidence presented by the
State could also be construed as indicating a premeditated intent to kill
Mr. Mills, as “'[a] sudden intentional killing with a deadly weapon,
by one who is not in any way at fault, in immediate resentment of a gross
provocation,” Syl. pt. 3, State v. Bowyer, 143 W. Va. 302,
101 S.E.2d 243. Simply stated, the jury could have accorded the State's evidence
numerous interpretations. For example, one view is that Ms. Whittaker shot
Mr. Mills in self-defense, panicked after the shooting, and placed a gun in
Mr. Mills' hand because she felt guilty and afraid. By contrast, the evidence
could be viewed as showing that Ms. Whittaker was not really acting in self-defense,
was not remorseful for her actions when she tracked Mr. Mills' blood through
her trailer, and that she placed a gun in his hand because she needed to create
a believable claim of self-defense.
In any event, determinations as to the
credibility of witnesses are matters for the jury to resolve, not matters
to be decided by either the trial court or this Court. Syl. pt. 3, in part,
State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163. Also within
the province of the jury is the question of whether the defendant acted in
self-defense. See Syl. pt. 5, State v. McMillion, 104 W. Va.
1, 138 S.E. 732. Upon the evidence presented, we are convinced that “there
[wa]s substantial evidence upon which a jury might justifiably find the defendant
guilty beyond a reasonable doubt,” Syl. pt. 1, in part, State v. Rogers,
209 W. Va. 348, 547 S.E.2d 910, and that the verdict of the jury adverse
to Ms. Whittaker's claim of self-defense was not “manifestly against
the weight of the evidence.” Syl. pt. 5, State v. McMillion, 104
W. Va. 1, 138 S.E. 732. Thus, in this case, we find the evidence was
sufficient to prove beyond a reasonable doubt that Ms. Whittaker did not act
in self-defense.
Syl. pt. 2, State v. Doonan, ___ W. Va. ___, 640 S.E.2d 71 (2006).
Accord Syl. pt. 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d
574 (1983) (“'Rulings on the admissibility of evidence are largely within
a trial court's sound discretion and should not be disturbed unless there has
been an abuse of discretion.' State v. Louk, [171] W. Va. [639,
643], 301 S.E.2d 596, 599 (1983) [(citations omitted), overruling on other
grounds recognized by State v. Bradshaw, 193 W. Va. 519, 457
S.E.2d 456 (1995)].”). Thus, we will consider whether the trial court abused
its discretion in making the evidentiary rulings of which Ms. Whittaker now
complains.
1. Limitations on defense witnesses'
testimony. With respect to the trial court's evidentiary rulings, Ms. Whittaker
first argues that the trial court erred by limiting the testimony of various
defense witnesses: Ermajean Hudgins, Sandra Brinkley, and Debra Fowler. Because
the trial court precluded these witnesses from testifying about statements she
had made to them, Ms. Whittaker contends that she was not able to fully develop
her claim of self-defense because she was not able, through these witnesses,
to demonstrate the full extent of abuse she had suffered while living with Mr.
Mills. The State
responds that the trial court did not err by limiting the testimony proffered
by these witnesses because the precluded testimony was inadmissible hearsay.
When this Court is asked to review a trial
court's rulings on the admissibility of evidence, as well as the trial court's
application of evidentiary rules, we accord the trial court great deference
and will reverse such rulings only if the trial court has abused its discretion.
“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.”
Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469
(1998). Cf. Syl. pt. 1, Gentry v. Mangum, 195 W. Va. 512,
466 S.E.2d 171 (1995) (“An interpretation of the West Virginia Rules of
Evidence presents a question of law subject to de novo review.”).
The issue presented by this assignment of
error concerns hearsay. “Hearsay” is defined by Rule 801 of the W. Va.
Rules of Evidence as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Generally, hearsay is not admissible. W. Va.
R. Evid. 802 (“Hearsay is not admissible except as provided by these rules.”).
However, hearsay may be admissible if it comes within one of the recognized
exceptions. See W. Va. R. Evid. 803 (recognizing exceptions to hearsay
as including, among others, present sense impression; excited utterance; then
existing mental, emotional, or physical condition; and statements for
purposes of medical diagnosis or treatment). See also W. Va. R.
Evid. 804 (citing additional exceptions to hearsay rule when declarant is unavailable).
In other words,
[g]enerally,
out-of-court statements made by someone other than the declarant while testifying
are not admissible unless: 1) the statement is not being offered for the truth
of the matter asserted, but for some other purpose such as motive, intent, state-of-mind,
identification or reasonableness of the party's action; 2) the statement is
not hearsay under the rules; or 3) the statement is hearsay but falls within
an exception provided for in the rules.
Syl. pt. 1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990).
Thus, we must determine whether the trial court properly limited the testimony
of the three witnesses to which Ms. Whittaker assigns error.
(a) Ermajean Hudgins. During her
trial, Ms. Whittaker called Ermajean Hudgins [hereinafter “Ms. Hudgins”]
as a witness on her behalf. On approximately five occasions in the two years
before Mr. Mills' death, Ms. Whittaker and her daughter had sought refuge at
the New Life Tabernacle Church, where Ms. Hudgins serves as a pastor. Ms. Hudgins
was permitted to testify freely about the physical appearance and demeanor of
Ms. Whittaker on these occasions, how fearful Ms. Whittaker was when she sought
shelter, and how Ms. Hudgins had offered assistance to Ms. Whittaker and her
daughter. The only testimony objected to by the State was Ms. Hudgins' testimony
as to what Ms. Whittaker specifically had told her on those occasions; the trial
court excluded such testimony, determining such statements to be inadmissible
hearsay. Ms. Whittaker
contends, however, that these statements were admissible as original evidence
or to show her then-existing state of mind. We disagree.
Ms. Whittaker claims that Ms. Hudgins should
have been permitted to testify as to the statements she made to Ms. Hudgins
regarding Mr. Mills' threats and abuse to show not the truth of the matter asserted
but rather to show her state of mind at the time she sought shelter. While on
the surface this argument seems to make perfect sense, in actuality this argument
is inconsistent with Ms. Whittaker's claim of self-defense. In order to prove
that she shot Mr. Mills in self-defense, Ms. Whittaker would also need to establish
that she had had an abusive relationship with Mr. Mills in which he was the
aggressor. Insofar as Ms. Hudgins was permitted to testify as to Ms. Whittaker's
fearful state of mind and her physical appearance regarding the presence or
absence of bruises or other marks indicative of abuse, the only purpose which
Ms. Hudgins' excluded statements could have served would have been to prove
the truth of the matter asserted: that Ms. Whittaker had been abused and that
Mr. Mills was the abuser.
Neither do we agree with Ms. Whittaker's
characterization of the excluded statements as constituting original evidence.
The concept of “original evidence” typically contemplates that “conversation[s]
contemporaneous with the facts in controversy and explaining such fact[s] are
admissible. . . . But they must be so connected with the main
fact under consideration as to illustrate its character, to further its object,
or to form in conjunction with it one continuous transaction.” Sample
v. Consolidated Light & Ry. Co., 50 W. Va. 472, 478, 40 S.E. 597,
600 (1901) (internal quotations and citations omitted), reh'g denied,
50 W. Va. 472, 40 S.E. 694 (1902). Here, the fact in controversy, i.e.
whether Ms. Whittaker acted in self-defense when she shot and killed Mr. Mills
on June 25, 2003, is simply too remote in time from the few occasions on which
Ms. Whittaker sought shelter at Ms. Hudgins' church, the dates of which Ms.
Hudgins could not recall, to render Ms. Whittaker's statements on those occasions
admissible as original evidence. Because the excluded statements do not satisfy
any exceptions to the hearsay rule, the trial court properly limited Ms. Hudgins'
testimony.
(b) Sandra Brinkley and Debra Fowler.
During Ms. Whittaker's case-in-chief, the trial court sustained objections by
the State which precluded several defense witnesses, including Ms. Hudgins,
from testifying about statements Ms. Whittaker had made to them regarding her
abuse by Mr. Mills. Before calling additional defense witnesses, counsel for
Ms. Whittaker proffered the testimony of her aunts, Sandra Brinkley [hereinafter
“Ms. Brinkley”] and Debra Fowler [hereinafter “Ms. Fowler”],
to the trial court in camera to preserve their testimony for appellate
review. (See footnote
17) Following their testimony, the trial court
stated that “the Court will continue to rule that hearsay will not be permitted
by either side in the case.”
On appeal, Ms. Whittaker complains that
the trial court erred by limiting the testimony of both of these witnesses.
While the trial court did rule that it would not permit Ms. Whittaker's aunts
to testify about hearsay statements she had made to them, it did not entirely
preclude these witnesses from testifying. Nevertheless, Ms. Whittaker did not
call Ms. Brinkley as a witness to testify at trial before the jury. Because
Ms. Brinkley was not called to testify, her testimony was neither objected to
by the State nor limited by the trial court. Accordingly, we find this assignment
of error as it relates to Ms. Brinkley's testimony to be without merit.
Ms. Whittaker did, however, call Ms. Fowler
as a witness during her case-in- chief. Ms. Fowler was permitted to testify
about providing shelter to Ms. Whittaker and J.W. during the days immediately
preceding the shooting and her personal observations that Ms. Whittaker was
nervous and afraid of Mr. Mills. She was not permitted to testify, though, as
to any statements Ms. Whittaker had made to her. Although Ms. Whittaker contends
that the excluded testimony should have been allowed as an exception to the
hearsay rule, we conclude that the excluded testimony of Ms. Fowler, like that
of Ms. Hudgins, does not qualify as an exception to inadmissible hearsay. Any
statements Ms. Whittaker made to Ms. Fowler were either on June 25th,
the day of Mr. Mills' death, or on the days leading up to that date. Given the
lapse of time between Ms. Whittaker's departure from Ms. Fowler's home in the
late morning hours of June 25, 2003, and her shooting of Mr. Mills later that
evening, Ms. Whittaker's statements to Ms. Fowler are simply too remote in time
to be relevant as evidence of her state of mind at the time of Mr. Mills' death
or as evidence as to whether, at the precise moment of the shooting, she was
acting in self- defense. Because the trial court limited Ms. Fowler's testimony
to exclude these inadmissible hearsay statements, we find no error with the
trial court's ruling in this regard.
2. Limited admissibility of cock fighting
paraphernalia. Next, Ms. Whittaker argues that the trial court erred by
not allowing Mr. Mills' cock fighting paraphernalia into evidence. Ms. Whittaker
asserts that she wished to introduce this evidence to demonstrate Mr. Mills'
cruelty, but that “[t]he trial court permitted [it] to be exhibited to
the jury but not introduced into evidence.” The State responds that the
trial court did, in fact, admit this evidence but denominated it as demonstrative
evidence that would not be given to the jury. After reviewing the trial transcript,
we find the State's representations to be a more accurate recitation of the
trial court's rulings on this evidence.
During the course of Ms. Whittaker's testimony,
her counsel asked her to identify a blue plastic box that belonged to Mr. Mills
and contained paraphernalia he used to prepare his birds for cock fighting,
including bladed spurs, syringes, and medications for “doping” the
birds. Thereafter, counsel for Ms. Whittaker moved for the introduction of this
evidence, which the trial court allowed. The trial court ruled, however, that
this evidence would not be permitted to go to the jury.
BY: Mr.
Smith [counsel for Ms. Whittaker]
Q So
he [Mr. Mills] was into chicken hunting?
A Chicken_cock
fighting, yes sir.
MR.
SMITH: Mark that?
(Defendant's Exhibit No.
3, Blue Plastic Box with cock fighting paraphernalia, marked for identification.)
Q Do
you recognize what's been marked Defendant's Exhibit No. 3?
A That
is one of the boxes that he would always take with him whenever he went to a
cock fight to prepare his chickens for the fight, what he would use.
Q Are
you familiar with the contents of this box?
A Pretty
much, not exactly but pretty much.
Q What
are those?
A Those
are spurs, those are cock spurs, they cut their regular spurs off, they saw
them down as close to the chicken as they can_their feet so that those will
fit on, and then they have to take string and tape, and all, and then put_slip
that
down on it and tape it on there, and there may be blades in there but that is
the spurs that goes one on each foot.
MR.
BOGGESS [counsel for the State]: Again I'm gonna object as to relevancy, Your
Honor, I_
THE
COURT: What is the relevance here, Mr. Smith?
MR.
SMITH: Your Honor, it's a blood sport and
I think I'm entitled to show the deceased was into what amounts to illegal blood
sports, I think it goes to her knowledge of his_what he was capable of.
THE
COURT: I'll leave that up to the jury so
I'll overrule the objection.
BY: Mr.
Smith
Q These
were his, right?
A Yes.
MR.
SMITH: At this time I'd move the introduction
of Defendant's Exhibit No. 3?
THE
COURT: Any objection?
MR.
BOGGESS: Only as to relevancy, Your Honor.
THE
COURT: Well since it's_I'm not sending all
that back to the jury,_
MR.
SMITH: Sure.
THE
COURT: _the jury's seen this so I'm not gonna
allow that_
MR.
SMITH: Okay.
THE
COURT: _as an Exhibit to go back to them.
You're not offering those trophies, or anything like that at this point?
MR.
SMITH: No, Your Honor.
THE
COURT: Thank you.
(Defendant's Exhibit No.
3, Blue Plastic Box with cock fighting paraphernalia, introduced into evidence
but not to go to jury.)
MR.
SMITH: Those were demonstrative.
On appeal, counsel for Ms. Whittaker suggests
that the trial court did not allow this evidence to be introduced, and he also
seeks to challenge the trial court's rulings in this regard. The problem with
this assignment of error is twofold. First, that of which Ms. Whittaker complains
is not what actually occurred at trial as reflected by the trial transcript.
Contrary to her assertions, the trial court did admit Mr. Mills' cock fighting
paraphernalia into evidence. Accordingly, her assertion that the trial court
did not admit these items into evidence is without merit.
Additionally, Ms. Whittaker attempts to
complain about the trial court's ruling whereby it permitted the jury to see
the evidence during trial but prohibited it from being sent to the jury during
their deliberations. However, during the trial discourse regarding this evidence,
counsel for Ms. Whittaker did not object to the limited purpose for which the
trial court admitted this evidence and, in fact, specifically acquiesced in
the trial court's
ruling in this regard.
Ordinarily, a party must raise his or her
objection contemporaneously with the trial court's ruling to which it relates
or be forever barred from asserting that that ruling was in error.
(See footnote 18)
When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court's attention affords an opportunity to correct the problem before irreparable harm occurs. There is also an equally salutary justification for the raise or waive rule: It prevents a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result). In the end, the contemporaneous objection requirement serves an important purpose in promoting the balanced and orderly functioning of our adversarial system of justice.
State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). Thus,
[t]o
preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a [trial] court to the nature of the claimed
defect. The rule in West Virginia is that parties must speak clearly in the
[trial] court on pain that, if they forget their lines, they will likely be
bound forever to hold their peace . . . .
State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d
162, 170 (1996) (citations omitted). Accord State v. Miller, 194
W. Va. 3, 17, 459 S.E.2d 114, 128 (1995) (“'One of the most familiar
procedural rubrics in the administration of justice is the rule that the failure
of a litigant to assert a right in the trial court likely will result' in the
imposition of a procedural bar to an appeal of that issue.” (quoting United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc))).
Here, counsel for Ms. Whittaker simply did
not object to the trial court's ruling limiting the admissibility of this evidence
and thus waived her objection thereto. Because Ms. Whittaker waived her objection,
she cannot now complain about the trial court's ruling on appeal. Consequently,
we find this assignment of error also to be without merit.
3. Admissibility of Ms. Whittaker's
prior statements to police officers. Lastly, Ms. Whittaker complains that
the trial court should not have allowed the State to admit into evidence her
statements to police officers when those statements had not been recorded to
preserve her exculpatory comments. Specifically, she complains of the statement
she gave to Trooper Christian, which statement she made while accompanying him
to the crime scene, and her statement to Sergeant Mankins, which statement she
made while she was being interrogated at the state police barracks. As to these
statements, Ms. Whittaker says in her brief that “Appellant concedes that
she was properly Mirandized before speaking to the officers, that she went to
the barracks of her own accord, and that she was not promised or threatened
into giving the statement.” However, she asserts that neither of these
statements was recorded, although the officers taking them had recording equipment
available to them at that time, and that, as a result, any exculpatory comments
she made in those statements were not adequately preserved.
The argument presented by Ms. Whittaker
on this point is a novel one. She does not complain that her statements were
not voluntary, but admits that they were freely given. And while she presents
this assignment of error by claiming that “[t]he trial court erred in admitting
[her] statements,” the argument that she makes in her brief actually discusses
her concern that the officers should have recorded these statements to preserve
not only her incriminating comments but her exculpatory ones as well. Ms. Whittaker
supports her argument by relying heavily upon information from the Innocence
Project. (See footnote
19)
Although the issue of mandatory recording
of confessions or interrogations is one of first impression for this Court,
it has been addressed by a few courts in other jurisdictions. For example, the
Supreme Court of Minnesota specifically determined that
in the exercise of our supervisory power to insure the fair administration of justice, we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.
Minnesota v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Likewise, the
Alaska Supreme Court has also ruled that such recording is generally required:
“we hold that an unexcused failure to electronically record a custodial
interrogation conducted in a places of detention violates a suspect's right
to due process, under the Alaska Constitution, and that any statement thus obtained
is generally inadmissible.” Stephan v. Alaska, 711 P.2d 1156, 1158
(Alaska 1985). This issue has also been addressed by a few state legislatures.
See, e.g., 20 Ill. Comp. Stat. 3930/7.2(d) (2004) (creating two-year
pilot program requiring Illinois
police to record custodial interviews of suspects investigated for first-degree
murder); Me. Rev. Stat. Ann. tit. 25, § 2803-B(1)(K) (2006) (requiring
establishment of policies for digital, electronic, audio, video, or other recording
of law enforcement interviews of suspects in serious crimes and preservation
of investigative notes and records in such cases); Texas Code Crim. Proc. Ann.
art. 38.22, §§ 3(a)(1)-(2) (2006) (barring admission in any criminal
proceeding of any statement made during custodial interrogation unless electronic
recording is made of statement). See generally Steven A. Drizin &
Mariss J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording
of Police Interrogations to Accurately Assess the Reliability and Voluntariness
of Confessions, 52 Drake L. Rev. 619 (2004).
Under the facts of this case, we decline
to decide whether there is a state constitutional right for a criminal suspect
to have his or her confession or interrogation recorded. Ms. Whittaker has not
argued that there were some specific “exculpatory” statements that
she gave to the police which the police now deny. In other words, there is no
controversy regarding what Ms. Whittaker stated to the police. This Court will
not decide abstract issues where there is no controversy. “'Courts are
not constituted for the purpose of making advisory decrees or resolving academic
disputes.' Mainella v. Board of Trustees of Policemen's Pension or Relief
Fund of City of Fairmont, 126 W. Va. 183, 185- 86, 27 S.E.2d 486, 487-88
(1943).” Syl. pt. 2, in part, Harshbarger v. Gainer, 184 W. Va.
656, 403 S.E.2d 399 (1991). Accord State ex rel. ACF Indus., Inc.
v. Vieweg, 204 W. Va. 525, 533 n.13, 514 S.E.2d 176, 184 n.13 (1999)
(recognizing that “this Court cannot issue an advisory opinion with respect
to a hypothetical controversy); State ex rel. West Virginia Deputy Sheriff's
Ass'n, Inc. v. Sims, 204 W. Va. 442, 445, 513 S.E.2d 669, 672 (1998)
(reiterating that “this Court has held that we are not a body that gives
advisory legal opinions”). Accordingly, we need not further consider this
assignment of error.