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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
No. 34142
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
PAUL NEWCOMB,
Defendant Below, Appellant
Appeal from the Circuit Court of Logan County
Honorable Eric H. O'Briant, Judge
Criminal Action No. 06-F-210-O
AFFIRMED
Submitted: March 24, 2009
Filed: June 23, 2009
Darrell V. McGraw, Jr., Esq.
Attorney General
R. Christopher Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
Dwayne J. Adkins, Esq.
Logan County Public Defender
Logan, West Virginia
Attorney for Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror
is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later
retractions, or promises to be fair.” Syllabus Point 5, O'Dell v. Miller, 211 W.Va. 285, 565
S.E.2d 407 (2002).
2. “The language of W.Va.Code, 62-3-3 (1949), grants a defendant the
specific right to reserve his or her peremptory challenges until an unbiased jury panel is
assembled. Consequently, if a defendant validly challenges a prospective juror for cause and
the trial court fails to remove the juror, reversible error results even if a defendant
subsequently uses his peremptory challenge to correct the trial court's error.” Syllabus Point
8, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).
3. “'Actual bias can be shown either by a juror's own admission of bias
or by proof of specific facts which show the juror has such prejudice or connection with the
parties at trial that bias is presumed.' Syllabus Point 5, State v. Miller, 197 W.Va. 588, 476
S.E.2d 535 (1996).” Syllabus Point 1, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407
(2002).
4. “'Jurors who on voir dire of the panel indicate possible prejudice should
be excused, or should be questioned individually either by the court or by counsel to precisely
determine whether they entertain bias or prejudice for or against either party, requiring their
excuse.' Syllabus Point 3, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).” Syllabus
Point 2, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
5. “When considering whether to excuse a prospective juror for cause, a
trial court is required to consider the totality of the circumstances and grounds relating to a
potential request to excuse a prospective juror, to make a full inquiry to examine those
circumstances and to resolve any doubts in favor of excusing the juror.” Syllabus Point 3, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
6. “If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further
probing into the facts and background related to such bias or prejudice is required.” Syllabus
Point 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
7. “The object of the law is, in all cases in which juries are impaneled to
try the issue, to secure [persons] for that responsible duty whose minds are wholly free from
bias or prejudice either for or against the accused[.]” Syllabus Point 1, in part, State v.
Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900).
8. When a prospective juror makes a clear statement of bias during voir
dire, the prospective juror is automatically disqualified and must be removed from the jury
panel for cause. However, when a juror makes an inconclusive or vague statement that only
indicates the possibility of bias or prejudice, the prospective juror must be questioned further
by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an
initial response by a prospective juror to a broad or general question during voir dire will not,
in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a
situation, further inquiry by the trial court is required. Nonetheless, the trial court should
exercise caution that such further voir dire questions to a prospective juror should be couched
in neutral language intended to elicit the prospective juror's true feelings, beliefs, and
thoughts_and not in language that suggests a specific response, or otherwise seeks to
rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and
where there is a probability of bias the prospective juror must be removed from the panel by
the trial court for cause.
9. “'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).” Syllabus
Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).
10. “The special safeguards outlined in Miranda are not required where a
suspect is simply taken into custody, but rather only where a suspect in custody is subjected
to interrogation. To the extent that language in State v. Preece, 181 W.Va. 633, 383 S.E.2d
815 (1989), and its progeny, may be read to hold differently, such language is expressly
overruled.” Syllabus Point 8, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).
11. “Under the inevitable discovery rule, unlawfully obtained evidence is
not subject to the exclusionary rule if it is shown that the evidence would have been
discovered pursuant to a properly executed search warrant.” Syllabus Point 3, State v.
Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002).
12. “To prevail under the inevitable discovery exception to the exclusionary
rule, Article III, Section 6 of the West Virginia Constitution requires the State to prove by
a preponderance of the evidence: (1) that there was a reasonable probability that the
evidence would have been discovered by lawful means in the absence of police misconduct;
(2) that the leads making the discovery inevitable were possessed by the police at the time
of the misconduct; and (3) that the police were actively pursuing a lawful alternative line of
investigation to seize the evidence prior to the time of the misconduct.” Syllabus Point 4, State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002).
13. “'“'The delay in taking a defendant to a magistrate may be a critical
factor [in the totality of circumstances making a confession involuntary and hence
inadmissable] where it appears that the primary purpose of the delay was to obtain a
confession from the defendant.' Syllabus Point 6, State v. Persinger, 169 W.Va. 121, 286
S.E.2d 261 (1982), as amended.” Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315
S.E.2d 397 (1984).' Syl. Pt. 8, State v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998).”
Syllabus Point 6, State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006).
14. “'“Ordinarily the delay in taking an accused who is under arrest to a
magistrate after a confession has been obtained from him does not vitiate the confession
under our prompt presentment rule.” Syllabus Point 4, State v. Humphrey, 177 W.Va. 264,
351 S.E.2d 613 (1986).' Syllabus Point 8, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706,
cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).” Syllabus Point 2, State
v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).
15. “Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial
court should conduct an in camera hearing as stated in [Syllabus Point 3,] State v. Dolin, 176
W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel,
the trial court must be satisfied by a preponderance of the evidence that the acts or conduct
occurred and that the defendant committed the acts. If the trial court does not find by a
preponderance of the evidence that the acts or conduct was committed or that the defendant
was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing
has been made, the trial court must then determine the relevancy of the evidence under Rules
401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required
under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that
the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for
which such evidence has been admitted. A limiting instruction should be given at the time
the evidence is offered, and we recommend that it be repeated in the trial court's general
charge to the jury at the conclusion of the evidence.” Syllabus Point 2, State v. McGinnis,
193 W.Va. 147, 455 S.E.2d 516 (1994).
16. “When offering evidence under Rule 404(b) of the West Virginia Rules
of Evidence, the prosecution is required to identify the specific purpose for which the
evidence is being offered and the jury must be instructed to limit its consideration of the
evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely
to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise
purpose for which the evidence is offered must clearly be shown from the record and that
purpose alone must be told to the jury in the trial court's instruction.” Syllabus Point 1, State
v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
WORKMAN, Justice:
This case is before this Court upon appeal of a final order of the Circuit Court
of Logan County entered on August 3, 2007. In that order, Paul Newcomb (hereinafter “the
appellant”) was sentenced to life imprisonment without a recommendation of mercy for his
conviction of first degree murder. In this appeal, the appellant asserts that the circuit court
committed error in failing to strike two jurors for cause; that the murder weapon as well as
certain statements made to an emergency medical technician (EMT) should have been
excluded from the trial because of Miranda v. Arizona, 384 U.S. 436 (1966) violations; that
his statement to the police officers should have been excluded because of a prompt
presentment violation; and that there was error in the admission of Rule 404(b) evidence
regarding an earlier altercation. Based upon the parties' briefs and arguments in this
proceeding, as well as the relevant statutory and case law, we are of the opinion that the
circuit court did not commit reversible error and, accordingly, affirm the decision below.
I.
FACTS
On April 1, 2006, near Christian, West Virginia, the appellant, Paul Newcomb,
stabbed to death Dennis Toler at Mr. Toler's home. The appellant admitted stabbing Mr.
Toler two to three times; however, Dr. Zia Sabet, a Deputy Chief Medical Examiner for the
State of West Virginia, testified that he discovered thirteen stab wounds to the victim,
including three in the left side of his neck, five in the front of his chest, and five in his back.
There were numerous other wounds, incisions, scratches, and abrasions throughout Mr.
Toler's body.
This case arises from an ongoing affair between the appellant's wife, Johnna
Newcomb, and Mr. Toler. Ms. Newcomb became addicted to OxyContin after suffering
injuries from a car accident and was sent to a drug rehabilitation center. During her initial
addiction period from approximately 2004 until the time of Mr. Toler's death, Ms. Newcomb
testified that she would leave her home and often be gone for days and even weeks taking
illegal drugs. It was during this time period when she met Mr. Toler. She testified that while
standing in line at a methadone clinic in Williamson, West Virginia, Mr. Toler approached
her and asked if she was interested in purchasing methadone. Eventually Ms. Newcomb
began dating Mr. Toler and providing sexual favors in exchange for additional doses of
methadone. On numerous occasions during this time period, Ms. Newcomb left the appellant
and their two children and stayed with Mr. Toler. (See footnote 1)
According to trial testimony, the appellant and Mr. Toler had several
altercations prior to Mr. Toler's death. On one such occasion, on September 30, 2005, the
appellant confronted Ms. Newcomb and Mr. Toler outside of the methadone clinic. The
appellant asked Mr. Toler if he liked being with the appellant's wife, and then began stabbing
him. As a security guard from the clinic approached, the appellant left the scene and Mr.
Toler went inside the clinic for treatment of his stab wounds. The record is not clear on the
extent of Mr. Toler's injuries at that time; however, this incident was approximately five
months prior to the date of the April 1, 2006, fatal stabbing of Mr. Toler by the appellant. (See footnote 2)
On the day before the April 1, 2006, murder, which is the subject of the current
appeal, the appellant had a telephone conversation with Ms. Newcomb. She had been staying
at Mr. Toler's house for approximately one week on this occasion and informed the appellant
that she wanted to return home because of their son's approaching birthday. The appellant
agreed that he would pick her up the next morning and take her to the methadone clinic and
then to their home.
During the early morning hours of April 1, 2006, the appellant was drinking
at a bar in Man, West Virginia. After the closing of the bar, the bar owner drove the
appellant to the Elk Creek area. Soon thereafter, the appellant began walking along the
railroad tracks until he saw his wife come out of Mr. Toler's house. As he approached the
house, Mr. Toler came outside and a verbal confrontation between him and the appellant
ensued.
Ms. Newcomb attempted to keep the two men apart and testified that she was
unintentionally stabbed by the appellant. The appellant and Mr. Toler began fighting in the
yard, which led to the porch, and eventually into the house. Mr. Toler lived with his parents;
however, he stayed in a closed-off section on the bottom floor of his parents' house. As Mr.
Toler's parents heard the fight, his mother opened a door to let her son into their portion of
the house. She testified that the appellant followed him and stabbed him again. She said that
Mr. Toler was holding his back and side and went to the bed where his father was located.
He later died in his parents' living room. Mr. Toler's father testified that there were large
amounts of blood throughout the house including the walls, the upstairs and downstairs
bedrooms, the living room, and the kitchen.
Soon after the stabbing, Logan County Deputy Sheriff Weston Harvey arrived
on the scene and found Ms. Newcomb pointing to the appellant and yelling, “There he is.
There he is.” He later heard the victim's parents screaming the same thing. At this point,
Deputy Harvey noticed the appellant coming toward him. Deputy Harvey then ordered the
appellant to get on his knees and have his hands out where they were visible. At first, the
appellant did not comply with the officer's command, but he eventually did so. Deputy
Harvey then handcuffed the appellant and took him to his police cruiser, stating that the
appellant was being combative.
Deputy Harvey testified that he did not immediately place the appellant under
arrest because he had just arrived at the scene and did not know the underlying circumstances
at that point in time. Nonetheless, based on the appellant's behavior, as well as proper police
protocol, he stated that he placed handcuffs on the appellant for safety reasons. It was after
being handcuffed that the appellant made several statements that are at issue in this appeal.
Those statements will be discussed individually below.
At trial, the appellant argued that the stabbing of Mr. Toler was in self-defense.
On cross-examination by the prosecutor, however, the appellant admitted that he had made
an initial aggressive move toward Mr. Toler. He stated that he went toward Mr. Toler with
his knife because he thought he was trying to obtain a weapon from behind the door of the
entrance to his home. The circuit court gave a self-defense instruction. However, on August
3, 2007, the appellant was found guilty of first degree murder without a recommendation of
mercy. This appeal followed.
II.
STANDARD OF REVIEW
The appellant has presented several assignments of error for our review.
Initially, he contends that the circuit court committed error by failing to dismiss two potential
jurors for cause. The appellant also claims that the murder weapon, as well as certain
statements, should have been excluded from the trial, that there was a prompt presentment
violation, and that there was error in the admission of Rule 404(b) evidence. In Syllabus
Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), this Court held, “Where
the issue on an appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). This Court has also
indicated that a circuit court's final order and ultimate disposition are reviewed under the
abuse of discretion standard. Syllabus Point 1, State ex rel. Hechler v. Christian Action
Network, 201 W.Va. 71, 491 S.E.2d 618 (1997).
More specifically, with regard to whether a trial court committed error in
refusing the appellant's motions to strike potential jurors for cause, this Court articulated the
standard of review in State v. Miller, 197 W.Va. 588, 600-601, 476 S.E.2d 535, 547-548
(1996), holding:
In reviewing the qualifications of a jury to serve in a
criminal case, we follow a three-step process. Our review is
plenary as to legal questions such as the statutory qualifications
for jurors; clearly erroneous as to whether the facts support the
grounds relied upon for disqualification; and an abuse of
discretion as to the reasonableness of the procedure employed
and the ruling on disqualification by the trial court.
See State v. Wade, 200 W.Va. 637, 654, 490 S.E.2d 724, 741 (1997); and Syllabus Point 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987). In Syllabus Point 4 of Miller, this
Court further held:
The relevant test for determining whether a juror is
biased is whether the juror had such a fixed opinion that he or
she could not judge impartially the guilt of the defendant. Even
though a juror swears that he or she could set aside any opinion
he or she might hold and decide the case on the evidence, a
juror's protestation of impartiality should not be credited if the
other facts in the record indicate to the contrary.
197 W.Va. 588, 476 S.E.2d 535. See also Syllabus Point 11, State v. Salmons, 203 W.Va.
561, 509 S.E.2d 842 (1998).
This Court has also stated: “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 1, State v.
Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999). With these standards in mind, the assigned
errors will be examined.
III.
DISCUSSION
The appellant raises five assignments of error in his appeal to this Court. Each
assignment of error will be discussed, in turn, below.
A. Prospective Jurors McKnight and White
The appellant maintains in his first assignment of error that he was denied a fair
trial due to the failure of the circuit court to excuse prospective juror Krista McKnight and
prospective juror Tara White for cause from the juror voir dire panel. With regard to
prospective juror McKnight, the appellant maintains that a fair reading of the voir dire leads
to the conclusion that there were a significant number of jurors who believed that police
officers should be given a preference over non-police officers insofar as their credibility.
The appellant argues, however, that the circuit court was not consistent in striking jurors for
cause who illustrated this obvious preconception regarding police officer testimony.
According to the appellant, prospective juror McKnight indicated that she was
prone to believe police officers over non-police officers and the State was permitted to
rehabilitate her in violation of Syllabus Point 5 of O'Dell v. Miller, 211 W.Va. 285, 565
S.E.2d 407 (2002), which held that:
Once a prospective juror has made a clear statement
during voir dire reflecting or indicating the presence of a
disqualifying prejudice or bias, the prospective juror is
disqualified as a matter of law and cannot be rehabilitated by
subsequent questioning, later retractions, or promises to be fair.
The section of prospective juror McKnight's voir dire cited by the appellant is as follows:
Q. By defense counsel: Now do you believe that police
officers' testimony should be
believed more than non-police
officer testimony?
A. Juror McKnight: I would say, yes.
. . . .
Q. By prosecutor: If the Court instructs you that you
have to treat each witness equally
and listen to what they have to say
and judge the evidence based upon
what they have to say and judge the
evidence based on what you see
here on the stand, can you do that?
A. Juror McKnight: Yes, absolutely.
Q. By prosecutor: You had indicated you might tend
to believe police officers.
A. Juror McKnight: Right.
Q. By prosecutor: But you can still, if the court
instructs you, you're not to give a
police officer any more weight than
any other witness, can you just wait
until you hear what each person
would have to say?
A. Juror McKnight: Yes, I can do that.
The appellant maintains that the first answer given by prospective juror McKnight about
predisposition illustrates her actual belief and that is why juror rehabilitation is not permitted.
With regard to prospective juror Tara White, the appellant states that she
revealed that her in-laws had recently faced murder charges in Logan County and that Ms.
White should have been struck for cause because she initially indicated that the case might
be too “sensitive” for her. The section of prospective juror White's voir dire cited by the
appellant is as follows:
Q. By prosecutor: Do you feel like any of them got a raw
deal in court because of the police or the
prosecutors of the Court system?
A. Juror White: No.
Q. By prosecutor: That would cause you to have a negative
opinion about the system itself.
A. Juror White: No, not raw.
. . . .
Q. By prosecutor: I'm asking is either because those people
all got in trouble, you think maybe they
deserved what they got or not, do you feel
like you could push all that aside and just
hear this case? And all we're asking for is
an honest opinion. If you don't then that's
fine, too.
A. Juror White: Well, I'm going to go back to the honesty.
I am very, very sensitive and I don't know
if I could, you know, be fairly judgmental.
Q. By prosecutor: When you say “sensitive” do you mean to
other criminal acts or-
A. Juror White: I don't know how to explain it to you. Let
me see if I can put it in the right words.
Something as major as this, I don't know
if I could be as fair as I need to be, you
know swaying my judgment.
Q. By prosecutor: . . . Are you saying because of the kind of
case this is?
A. Juror White: Yes.
Q. By prosecutor: So you're saying this is a real serious case,
you think. A. Juror White: Yes.
Q. By prosecutor: Now are you saying just because this is a
serious case, that would cause you
problems, or are you saying because of
these other things that have happened to
your in-laws?
A. Juror White: Nothing _ putting my in-laws aside, it has
nothing to do with them. Just specifically
because of the type of case that it is.
. . . .
Q. By prosecutor: . . . what are your concerns if I could ask
that?
A. Juror White: Just specifically because it is a murder, and
I don't know if I could actually handle the
whole situation with it. I just don't know.
Q. By prosecutor: Do you feel like you'd be inclined one way
or another?
A. Juror White: I'm sure that I could come to a decision.
There's no doubt about that. But I know it
would be a sensitive issue. Do I make
sense?
Q. By prosecutor: Just personally sensitive to you?
A. Juror White: Yes.
. . . .
Q. By defense counsel: . . . Ma'am, the prosecutor asked
you several questions about your
in-laws' case and he even ask [sic]
you whether you thought they got a
raw deal. Do you feel the opposite,
you feel like they should have
gotten greater punishment?
A. Juror White: Yes.
Accordingly, the appellant asserts that the circuit court also erred in not dismissing prospective juror White for cause.
Conversely, the State maintains that the circuit court did not abuse its discretion
when it denied the motions to strike prospective jurors McKnight and White for cause. It
first contends that no rehabilitation occurred with respect to prospective juror McKnight, but
rather the prosecutor simply informed her what the law was and what she would be required
to do as a juror. The State declares that once she understood this, she indicated that she could
make decisions free of any bias.
The State further maintains that the circuit court reviewed each prospective
juror closely and struck several of them for cause when they illustrated statements reflecting
the presence of a disqualifying prejudice or bias. The State points out that numerous
prospective jurors were, in fact, struck for cause by the circuit court due to their
preconception that police officer's should be believed more than non-police officers. For
instance, prospective jurors Browning, Workman, Fraley, Kubow, Vance, and Sanders, were
all struck for cause by the circuit court for their potential bias in favor of police officers.
After attempts by the prosecutor to clarify those prospective jurors' initial responses to
questions surrounding whether or not they would believe police officers more than non-
police officers, the circuit court remained unsatisfied with their responses, and dismissed
them for cause. The trial court obviously was conscientious in dismissing potential jurors
who appeared to harbor bias which would have preferred the police or prosecution.
Prospective juror McKnight, however, when given the opportunity to explain her response
to such a question, showed a clear ability to be unbiased.
With respect to prospective juror White, the State argues that further probing
indicated that she could indeed be unbiased and that she simply was not speaking clearly in
response to the initial questions she was asked. The State contends that prospective juror
White's comments at the beginning of her
voir dire were an indication of an ability to be
unbiased from a juror who admitted to having trouble saying the correct words. When
looking at the totality of the circumstances, the State argues that prospective juror White
simply expressed a concern about the sensitive nature of murder cases, had trouble
communicating, and when probed specifically about bias, stated that she could be impartial.
Moreover, while prospective juror White may have believed that her in-laws should have
received more severe sentences, the facts and circumstances surrounding the appellant's case
are completely unrelated.
We note at the outset that while neither juror was struck by the trial court for
cause, the appellant exercised peremptory challenges against them so that they were not on
the jury that convicted the appellant. Nevertheless, W.Va. Code § 62-3-3 (1949) requires a
panel of twenty jurors “free from exception.”
(See footnote 3) This Court has previously found “if proper
objection is raised at the time of impaneling the jury, it is reversible error for the court to fail
to discharge a juror who is obviously objectionable.”
State v. West, 157 W.Va. 209, 219, 200
S.E.2d 859, 866 (1973). Thus, we have held:
The language of W.Va.Code, 62-3-3 (1949), grants a
defendant the specific right to reserve his or her peremptory
challenges until an unbiased jury panel is assembled.
Consequently, if a defendant validly challenges a prospective
juror for cause and the trial court fails to remove the juror,
reversible error results even if a defendant subsequently uses his
peremptory challenge to correct the trial court's error.
Syllabus Point 8, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).
In State v. Sampson, 200 W.Va. 53, 57, 488 S.E.2d 53, 57 (1997), citing State
v. Phillips, 194 W.Va. at 588, 461 S.E.2d at 94, the Court held:
The true test of whether a juror should be struck for cause is
whether that juror can render a verdict based solely on the
evidence. The trial court is afforded considerable discretion in
this determination, and we will reverse the trial court's decision
only if there has been an abuse of discretion.
Further, “[w]hen a defendant seeks the disqualification of a juror, the defendant bears the
burden of 'rebut[ting] the presumption of a prospective juror's impartiality[.]'” State v.
Phillips, 194 W.Va. at 588, 461 S.E.2d at 94, quoting Irvin v. Dowd, 366 U.S. 717, 723, 81
S.Ct. 1639, 1642-43, 6 L.Ed.2d 751, 756 (1961). In determining whether there has been an
abuse of discretion, we must evaluate each case on its own facts. Sampson, 200 W.Va. at 57,
488 S.E.2d at 57, citing State v. West, 157 W.Va. at 219, 200 S.E.2d at 865.
This Court explained in O'Dell, supra, that the “object of jury selection is to
secure jurors who are not only free from improper prejudice and bias, but who are also free
from the suspicion of improper prejudice or bias.” 211 W.Va. at 288, 565 S.E.2d at 410.
The O'Dell Court further commented upon voir dire as a tool capable of “ferret[ing] out
biases and prejudices to create a jury panel, before the exercise of peremptory strikes, free
of the taint of reasonably suspected prejudice or bias.” Id. at 288, 565 S.E.2d at 410. In W.Va. Dep't of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982), this Court
addressed the methodology to be utilized by a trial court in determining whether removal is
necessary, explaining as follows:
“It is not enough if a juror believes that he can be impartial and
fair. The court in exercising [its] discretion must find from all
of the facts that the juror will be impartial and fair and not be
biased consciously or subconsciously. A mere statement by the
juror that he will be fair and afford the parties a fair trial
becomes less meaningful in light of other testimony and facts
which at least suggest the probability of bias. The court in
exercising discretion must be convinced that a probability of
bias of the juror does not exist. The test of a juror's
disqualification is the probability of bias or prejudice as
determined by the court.”
170 W.Va. at 12-13, 289 S.E.2d at 219 (quoting Lambert v. Sisters of St. Joseph of Peace,
277 Or. 223, 560 P.2d 262 (1977)).
This Court further explained in Syllabus Point 1 of O'Dell that: “'Actual bias
can be shown either by a juror's own admission of bias or by proof of specific facts which
show the juror has such prejudice or connection with the parties at trial that bias is
presumed.' Syllabus Point 5, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).” In
Syllabus Point 2 of O'Dell, we also noted that: “'Jurors who on voir dire of the panel indicate
possible prejudice should be excused, or should be questioned individually either by the court
or by counsel to precisely determine whether they entertain bias or prejudice for or against
either party, requiring their excuse.' Syllabus Point 3, State v. Pratt, 161 W.Va. 530, 244
S.E.2d 227 (1978).” Then, the Court explained that: “When considering whether to excuse
a prospective juror for cause, a trial court is required to consider the totality of the
circumstances and grounds relating to a potential request to excuse a prospective juror, to
make a full inquiry to examine those circumstances and to resolve any doubts in favor of
excusing the juror.” Syllabus Point 3, O'Dell. Finally, this Court further resolved that: “If
a prospective juror makes an inconclusive or vague statement during voir dire reflecting or
indicating the possibility of a disqualifying bias or prejudice, further probing into the facts
and background related to such bias or prejudice is required.” Syllabus Point 4, O'Dell.
In applying the principles set forth in O'Dell to the case at hand, it is necessary
to review the numerous decisions by this Court wherein we considered a circuit court's
refusal to strike jurors for cause. For instance, in Thomas v. Makani, 218 W.Va. 235, 624
S.E.2d 582 (2005), this Court considered the impact of O'Dell in a case where a medical
malpractice action was brought by a patient who alleged that a physician violated the
applicable standard of care. The plaintiff in Thomas appealed a defense verdict, contending
that the circuit court abused its discretion by refusing to strike potential jurors who had
previously received successful medical treatment from the defendant physician. This Court
engaged in the O'Dell analysis and concluded that the trial court did not err in failing to
strike the juror for cause.
The prospective juror in Thomas had initially indicated that he might possibly
“lean toward” believing the testimony of the defendant physician. 218 W.Va. at 238, 624
S.E.2d at 585. This Court was “unable to conclude that Juror Evans made a clear statement
of disqualifying bias toward Dr. Makani sufficient to disqualify him from serving on the
jury.” Id. at 238, 624 S.E.2d at 585. While this Court found that the “initial comments
required further inquiry by the court[,]” the Court further observed that the potential juror had
“explained that since he had no medical knowledge, he would more likely believe the doctor
who presented the most credible and convincing evidence. He clearly stated that he would
not find in favor of Dr. Makani simply because he had treated him fourteen years ago.” Id.
at 238-239, 624 S.E.2d at 585-586. This Court concluded as follows in Thomas:
After reviewing the record in this case, we conclude that
the trial court took “special care” to determine that Juror Evans
was free from bias and prejudice. The trial court clearly
considered the totality of the circumstances and conducted a full
inquiry before determining that there was no basis to disqualify
Juror Evans from serving on the jury.
Id. at 239, 624 S.E.2d at 586.
More recently, in Macek v. Jones, 222 W.Va. 702, 671 S.E.2d 707 (2008), this
Court addressed the appellants' contention that the trial court erred in failing to strike
prospective jurors David Andrew George and Glen Stolburg for cause. With regard to the
alleged bias of prospective juror George, the appellants claimed that he was conspicuously
biased against a doctor being sued and that such bias was revealed through his answers to
several questions. The Court explained that:
Question Number Four, for instance, presented the following
question to Mr. George: “Can you state that if, after you have
heard all of the evidence in this case, you find that the
defendant, Dr. Jones, was negligent, you will return a verdict
against Dr. Jones?” Mr. George answered: “If I believe that if
his guilt is proven beyond a reasonable doubt, I would probably
have no choice.” When subsequently asked to explain his
answer to that question, Mr. George stated, “Well I--maybe part
of my philosophy is I try to be as objective as I can possibly be,
because I know that the defendant, you know, he's facing
something very serious.” He continued, “I tend to be kind of
sympathetic with people at the same time and--but there could
be a good chance I'd say he's guilty [referring to Dr. Jones]
too.” Mr. George also explained that he did not “see any
difficulties in reaching an impartial and unbiased verdict....”
Id. at 704, 671 S.E.2d at 709. The appellants in Jones also pointed out juror George's
apparent identification with physicians who had been subjected to medical malpractice
claims in arguing that he should be struck for cause. For instance,
Mr. George was asked, “Have you read, heard or discussed
anything about medical negligence actions, lawsuits or a liability
crisis?” He answered, “I heard of a doctor in Wheeling who lost
a million dollar negligence suit for refusing to listen to the
daughter of a patient who was ordered to go home and died
there that night.” Mr. George later explained that he personally
knew the physician who was involved in the case he referenced
in his written response. Mr. George stated that he had
“sympathy for him” and explained that “[i]t kind of stays with
me.” He acknowledged that while he tried to be fair, the
incident “had some kind of effect on me simply because I knew
[the physician].” He further stated that he “couldn't just wipe it
clean from [his] memory.” Mr. George also explained that his
brother, Ned George, was a Wheeling attorney who represents
employers in civil litigation.
In response to another question concerning whether he
had formed an opinion regarding medical negligence actions,
Mr. George answered: “I sometimes can't help but think that
some lawyers take advantage of what become frivolous cases
and the premiums doctors have to pay skyrocket and it drives
some of them out of the state. On the other hand, I try to be
objective about them as well.” In response to another question
regarding medical malpractice claims, Mr. George stated, “I will
admit that I suspect there can be greed involved with the
plaintiffs. However, some do have legitimate cases that stick.”
When asked whether negligence actions had interrupted the
quality of care or increased costs, Mr. George wrote, “I think it
has because of a doctor in Weirton who had to refer me to an
interim [doctor] because she was trying to reassess what she was
going to do because of the malpractice [situation].” Mr. George
later explained that “there could be lots of doctors who leave the
state because they have to pay so much for their premiums.” He
also stated that he was “sympathetic with [his own doctor]
because ... it's been kind of difficult for her.”
Id. at 704-705, 671 S.E.2d at 709-710.
With respect to prospective juror Glen Stolburg in the Jones case, the
appellants contended that Mr. Stolburg failed to accurately portray his exposure and
understanding of his employer's stance on medical malpractice litigation. Mr. Stolberg was
employed as a district sales manager for Ogden Publishing. The appellants maintained that:
Ogden Publishing's coverage of medical malpractice litigation
had been extensive. The Appellants contend that Mr. Stolburg
was untruthful in his response to a question regarding whether
he had read, heard, or discussed anything about medical
malpractice litigation. Mr. Stolburg had simply replied, “no.”
Further questioning, however, revealed that Mr. Stolburg was
indeed aware of Ogden Publishing's coverage of medical
malpractice issues. “I know it carried some coverage... well, I
know it was on the front page a few times,” Mr. Stolburg stated.
He also revealed that he was aware of a strike by Wheeling area
physicians, their discontent with insurance premiums, and their
desire to seek a cap on damages.
Id. at 705, 671 S.E.2d at 710. Under those facts, this Court in Jones concluded:
Upon this Court's independent examination of the
transcript of the voir dire proceedings in this case, we are unable
to conclude that either Juror George or Juror Stolburg made a
clear statement of disqualifying bias toward Dr. Jones or
Weirton Medical Center sufficient to disqualify him from
serving on the jury. While we believe that the trial court was
correct to conclude that the jurors' initial comments compelled
further inquiry by the trial court, we find that such additional
questioning revealed that each of these potential jurors was free
from disqualifying bias or prejudice. The trial court
competently considered the totality of the circumstances and
conducted a comprehensive inquiry before determining that the
jurors were competent to serve.
Id. at 708-709, 671 S.E.2d at 713-714.
Another recent case considered by this Court was State v. Cowley, 223 W.Va.
183, 672 S.E.2d 319 (2008). In Cowley, a prospective juror's assertion that her service might
cause her to flashback to her previous experience of being sexually abused, along with her
statement that she “thought” she could remain unbiased and unprejudiced, was insufficient
to conclude that the circuit court abused its discretion in denying counsel's motion to strike
that juror for cause. This Court held:
In this case inquiry into the juror's qualifications was
made primarily by appellant's counsel-not the trial judge. A
complete reading of the record in this case reveals that the juror
acknowledged in clear and unequivocal terms that there are “two
sides to every story” and that she could serve without any bias
or prejudice.
Based upon our review of the record we cannot say that
the circuit court abused its discretion in denying the appellant's
motion to strike juror Melinda T. for cause. Therefore, we find
that appellant's argument with respect to this juror to be without
merit.
Id. at ___, 672 S.E.2d at 325.
In State v. Mills, 219 W.Va. 28, 32-33, 631 S.E.2d 586, 590-591 (2005), the
defendant contended that the circuit court abused its discretion in declining to strike two
jurors for cause, thereby requiring his defense counsel to utilize two peremptory strikes to
remove those prospective jurors. In that case, the prospective jurors were informed that the
sentence for first degree murder was life in prison. They were thereafter asked whether they
would be able to consider a life sentence with the possibility of parole eligibility after fifteen
years if they found the defendant guilty of first degree murder. Two prospective jurors, Ms.
Haga and Ms. George, had answered that question in the negative. When questioned further
regarding that issue, prospective juror Haga indicated that she did not personally know the
legal consequences of a mercy recommendation and would follow the instructions of the
judge in making her determinations. She specified that she would consider the options
provided to her by the court, including eligibility for parole. In refusing to strike prospective juror Haga for cause, the lower court explained that the prospective juror had initially been
confused by the questions but that she was “affirmative in her statement” that she “would
consider mercy[.]” 219 W.Va. at 33, 631 S.E.2d at 591.
Further inquiry of prospective juror George revealed that she would consider
mercy “if there were circumstances that gave that right.” Id. She specified that she would
consider parole eligibility if so instructed by the court and that she would listen to all the
evidence prior to making any decision. The lower court refused to strike prospective juror
George for cause, reasoning that she indicated she would consider mercy if given the
instruction to consider it. This Court in Mills concluded:
The remarks at issue in the present case did, at first blush,
appear to create an issue of possible bias against the potential
for a recommendation of mercy in a first degree murder case. In
the opinion of this Court, however, the initial responses to the
questionnaire were not so clearly disqualifying as to prevent
attempts at explanation, as contemplated by syllabus point five
of O'Dell. On the contrary, the remarks appeared to have been
the result of confusion on the part of the jurors caused by the
questionnaire itself and were of the nature contemplated by this
Court in syllabus point four of O'Dell, to the extent that the
responses were inconclusive or vague and permitted additional
inquiry into the basis for the statements. The lower court, by
engaging in modest questioning, was able to ascertain the basis
for the confusion.
Based upon this Court's review of this issue of
prospective jurors and their alleged unwillingness to find the
Appellant entitled to mercy, this Court finds no abuse of
discretion by the lower court and affirms its decision with regard
to these prospective jurors. Once the issues surrounding a
potential recommendation of mercy were explained to the
prospective jurors, their responses provided assurance to the
court that they were indeed willing to follow the instructions of
the court and to recommend mercy if the circumstances as
proven at trial justified such a result. They demonstrated no bias
or prejudice toward the accused, and the lower court's refusal to
strike them for cause was not in error.
Id. at 34, 631 S.E.2d at 592.
Moreover, in State ex rel. Quinones v. Rubenstein, 218 W.Va. 388, 396, 624
S.E.2d 825, 833 (2005), the defendant contended that the trial court committed error by
refusing to strike two prospective jurors from the jury panel for cause, thus requiring him to
use two of his peremptory challenges to strike the jurors. One of these prospective jurors had
previously retained the legal services of the county prosecutor and the assistant prosecutor
assigned to the murder trial, to address legal matters associated with his business. The other prospective juror indicated he had serious concerns with people who used alcohol and drugs
since both of his children had tragically died, one due to a drunk driver. Both prospective jurors indicated upon individual questioning by the circuit court that they could be fair and
unbiased as jurors, and the court denied defense counsel's motions to strike them for cause.
In Quinones, this Court concluded:
from our careful review of the record that the matters the two
juror candidates originally raised did not represent prejudice
beyond question so as to indicate that they had a present and
fixed view of the case. Without the demonstration of such
disqualifying prejudice or bias, the rule in O'Dell is not
implicated. We further note our holding in syllabus point seven
of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), in
which we said:
A trial court's failure to remove a biased
juror from a jury panel does not violate a
defendant's right to a trial by an impartial jury as
guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution
and by Section 14 of Article III of the West
Virginia Constitution. In order to succeed in a
claim that his or her constitutional right to an
impartial jury was violated, a defendant must
affirmatively show prejudice.
Id.
Finally, in
State v. Hutchinson, 215 W.Va. 313, 318, 599 S.E.2d 736, 741
(2004), the defendant argued that the circuit court erred in denying his challenge for cause
of prospective juror Jonathan Mullens. During
voir dire, Mr. Mullens indicated that he was
a fellow employee of potential witness Randy Toler
(See footnote 4) and had worked with him for
approximately seven months. Mr. Toler was present during the murder of a Mr. West, which
was the subject of the court proceedings. Consequently, the appellant requested that Mr.
Mullens be removed from the jury panel for cause. However, his request was denied.
This Court in
Hutchinson explained:
First, we note this is a close question on this particular
juror, and therefore not an easy one, but we cannot agree with
the appellant's assertion that Mr. Mullens made “a clear
statement during voir dire reflecting or indicating the presence
of a disqualifying prejudice or bias” as we discussed thoroughly
in O'Dell.
215 W.Va. at 319, 599 S.E.2d at 742. Then, after reviewing the principles set forth in O'Dell, the Court concluded that:
Based upon these standards, we find that Mr. Mullens'
initial statement that he may be uncomfortable “making a
decision with another man's life” not to be a statement of clear
bias or prejudice. It was simply a normal reaction to jury
service. Indeed, most people are initially uncomfortable
imposing judgment or penalties on individuals in a criminal
matter where they potentially have the power to take away a
person's freedom. Nonetheless, the question is not whether a
juror is uncomfortable; rather, it is whether they can put these
personal feelings aside, listen to the evidence and instructions on
points of law, and make a fair decision. We find no error in the
circuit court's denying the motion to strike Mr. Mullens on this
ground.
Id.
We further explained in Hutchinson:
Likewise, we are not persuaded that Mr. Mullens' work
relationship with Mr. Toler alone automatically disqualified him
from serving on the jury panel. This Court has long held that,
“[t]he object of the law is, in all cases in which juries are
impaneled to try the issue, to secure [persons] for that
responsible duty whose minds are wholly free from bias or
prejudice either for or against the accused[.]” Syllabus Point 1,
in part, State v. Hatfield, 48 W.Va. 561, 37 S.E. 626 (1900).
Having thoroughly reviewed the record, we believe that, on
balance, Mr. Mullens' answers during voir dire do not raise any
doubts that he would have been able to assess the evidence in an
impartial manner. In fact, he stated categorically that he could
listen to Mr. Toler's testimony and weigh it just like every other
witness. Thus, we find that the circuit court's failure to remove
Mullens did not constitute reversible error.
Id. at 319-320, 599 S.E.2d at 742-743.
As previously set forth by this Court, “'“[t]he true test to be applied with regard
to [the] qualifications of a juror is whether a juror can, without bias or prejudice, return a
verdict based on the evidence and the court's instructions and disregard any prior opinions
he may have had.” Syllabus Point 1, State v. Harshbarger, [170 W.Va. 401, 294 S.E.2d 254
(1982)]' quoting State v. Charlot, 157 W.Va. 994, 1000, 206 S.E.2d 908, 912 (1974).” State
v. Finley, 177 W.Va. 554, 556, 355 S.E.2d 47, 49 (1987). Moreover, in the Finley case this
Court stated that all that is required by a trial court when it determines that prospective jurors
have been exposed to potentially prejudicial information is that the trial court “shall question
or permit the questioning of the prospective jurors individually, out of the presence of the
other prospective jurors, to ascertain whether the prospective jurors remain free of bias or
prejudice.” Syllabus Point 1, in part, Finley.
For clarification purposes, and in light of the myriad syllabus points
surrounding the issue of when to dismiss a prospective juror for cause, we now hold that:
When a prospective juror makes a clear statement of bias during voir dire, the prospective
juror is automatically disqualified and must be removed from the jury panel for cause.
However, when a juror makes an inconclusive or vague statement that only indicates the
possibility of bias or prejudice, the prospective juror must be questioned further by the trial
court and/or counsel to determine if actual bias or prejudice exists. Likewise, an initial
response by a prospective juror to a broad or general question during voir dire will not, in
and of itself, be sufficient to determine whether a bias or prejudice exists. In such a situation,
further inquiry by the trial court is required. Nonetheless, the trial court should exercise
caution that such further voir dire questions to a prospective juror should be couched in
neutral language intended to elicit the prospective juror's true feelings, beliefs, and
thoughts_and not in language that suggests a specific response, or otherwise seeks to
rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and
where there is a probability of bias the prospective juror must be removed from the panel by
the trial court for cause.
In the present case, the record reveals that neither prospective juror McKnight
nor prospective juror White stated or implied that they had formed an opinion as to the
appellant's guilt or innocence. Moreover, the factual situations surrounding these two jurors
are distinguishable from the situation in O'Dell. In this case, unlike in O'Dell, the circuit
court did not attempt to rehabilitate either juror. In fact, the relevant questioning of these
jurors protested by the appellant occurred as a result of questioning by the appellant's counsel
and the prosecuting attorney_not the judge. It was during such questioning by the appellant's
counsel and by the prosecutor when both jurors stated, without rehabilitative questioning
from the circuit judge, that they could fairly and impartially decide the facts in the case.
More specifically, with regard to prospective juror McKnight, her initial
response was similar to the prospective juror's response in Thomas, supra, who initially
indicated that he might “lean toward” the testimony of a certain physician. 218 W.Va. at
238, 624 S.E.2d at 585. After further clarification, as was the case with prospective juror
McKnight, the circuit court recognized that in consideration of the totality of the
circumstances, there was no bias to disqualify that juror. Id. Likewise, the circuit court in Jones, supra, recognized that the initial comments of two prospective jurors “compelled
further inquiry by the trial court.” 222 W.Va. at 709, 671 S.E.2d at 714. After such inquiry,
as was the situation with prospective juror McKnight, the circuit court found the jurors
competent to serve. Moreover, as this Court specifically highlighted in Cowley, supra, the
subsequent inquiry into that prospective juror's qualification was made by the appellant's
counsel, not the circuit judge. 223 W.Va. at ___, 672 S.E.2d at 325. Similarly, as previously
stated, the subsequent inquiry into prospective juror McKnight's qualification was made by
the prosecutor and not the circuit judge.
With regard to prospective juror White, her sensitivity to sitting on a jury where
a defendant was being charged with murder is not an uncommon reaction to jury service.
This case is similar to Mills, supra, where the circuit court recognized that a prospective juror
had initially been confused by the questions. 219 W.Va. at 33, 631 S.E.2d at 591.
Prospective juror White's situation is also analogous to the prospective juror in Quinones, supra, who was concerned with the nature of the underlying charge based upon his personal
experiences. 218 W.Va. at 396, 624 S.E.2d at 833. Perhaps even more on point was the
prospective juror in Hutchinson, supra, who initially stated that he may be uncomfortable
“making a decision with another man's life.” 215 W.Va. at 319, 599 S.E.2d at 742. As was
the result with prospective juror White, the prospective juror in Hutchinson demonstrated that
he was able to put those feelings aside, listen to the evidence and instructions on points of
law, and make a fair decision. Moreover, as was the situation with prospective juror White,
the concern expressed by the prospective juror in Hutchinson was found “not to be a
statement of clear bias or prejudice.” 215 W.Va. at 319, 599 S.E.2d at 742.
This Court explained in State v. Miller, 197 W.Va. 588, 605, 476 S.E.2d 535,
552 (1996), that “[i]n determining whether a juror should be excused, our concern is whether
the juror holds a particular belief or opinion that prevents or substantially impairs the
performance of his or her duties as a juror in accordance with the instructions of the trial
court and the jurors' oath.” Neither of these jurors expressed any beliefs or opinions that
could logically lead to the conclusion that they would be unable to follow the instructions of
the trial judge. Moreover, in consideration of the totality of the circumstances as well as a
thorough reading of their entire voir dire, both jurors acknowledged in clear and unequivocal
terms that they could serve without any bias or prejudice. Thus, based upon our review of
the record we cannot say that the circuit court abused its discretion in denying the appellant's
motion to strike prospective jurors McKnight and White for cause, and therefore, we find the
appellant's argument with respect to these jurors to be without merit.
B. Introduction of Statement
The appellant contends that two statements he made in response to questioning
by an EMT were admitted into evidence at trial in violation of
Miranda v. Arizona, 384 U.S.
436 (1966).
(See footnote 5) The first statement was made by the appellant at the scene of the crime after
he was handcuffed by Deputy Harvey and while he was being examined by Ray Bryant, an
EMT, who was also an off-duty City of Man police officer. Deputy Harvey testified at the
suppression hearing that he overheard the appellant make inculpatory statements to Mr.
Bryant. Specifically, he testified as follows:
Q. You said that there were two statements by the
[appellant]. One is “Yeah, I stabbed him.” Then the
other is “he deserved it” or something like that.
A. He said, did you stab that guy up there and he said “Yes.”
He said, well, that guy up there is dead.
Q. That is what I'm asking. He who, Ray Bryant, “he”
being Ray Bryant.
A. Said, “Did you stab that guy?”
Q. And he said, “Yeah.”
A. [The appellant] said, “Yes.”
Q. Did Ray Bryant Say anything else?
A. No sir. Well yes, he said, “That guy is dead up there.”
Q. He said, “That guy is dead.”
A. Right
Q. Ray Bryant said that?
A. Yes, sir.
Q. Then the defendant said?
A. That's what the mother-fucker gets.
Q. So that wasn't a question. That was the [appellant]
making a statement.
A. Right.
The second statement that the appellant contends was improperly admitted at trial was made
directly to Deputy Harvey. Deputy Harvey testified that:
[The appellant] was rambling on, the statement; I don't know if
it was when I just took him to the car, when I [was] walking him
to the car to get him checked out. But he was going on “how
would you feel if your wife spent all your money on drugs and
this SOB screwing your wife and giving her drugs.”
The appellant contends that neither statement should have been admitted at trial
because they were made prior to his arrest and before he was given the Miranda warnings.
The appellant argues that Bryant exceeded his role as an EMS worker and slipped into the
role of criminal investigator. In response, the State acknowledges that the appellant made
various statements upon being questioned by Mr. Bryant before he was arrested and given
the Miranda warnings. The State maintains, however, that the statements were not made
pursuant to police questioning and were properly admitted at trial.
In State v. Guthrie, 205 W.Va. 326, 332, 518 S.E.2d 83, 89 (1999), we
explained that:
Concerning our standard of review of the circuit court's
exclusion of the evidence at issue, we note that “'[r]ulings 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).” Syl. pt. 2, State v. Peyatt,
173 W.Va. 317, 315 S.E.2d 574 (1983).
In Rhode Island v. Innis, 446 U.S. 291, 300-302, 100 S.Ct. 1682, 1689-1690 (1980), the
United States Supreme Court held:
We conclude that the Miranda safeguards come into
play whenever a person in custody is subjected to either express
questioning or its functional equivalent. That is to say, the term
“interrogation” under Miranda refers not only to express
questioning, but also to any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect. The latter
portion of this definition focuses primarily upon the perceptions
of the suspect, rather than the intent of the police. This focus
reflects the fact that the Miranda safeguards were designed to
vest a suspect in custody with an added measure of protection
against coercive police practices, without regard to objective
proof of the underlying intent of the police. A practice that the
police should know is reasonably likely to evoke an
incriminating response from a suspect thus amounts to
interrogation. But, since the police surely cannot be held
accountable for the unforeseeable results of their words or
actions, the definition of interrogation can extend only to words
or actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating
response.
Thereafter, in Syllabus Point 8 of Guthrie, supra, this Court explained that:
The special safeguards outlined in Miranda are not
required where a suspect is simply taken into custody, but rather
only where a suspect in custody is subjected to interrogation. To
the extent that language in State v. Preece, 181 W.Va. 633, 383
S.E.2d 815 (1989), and its progeny, may be read to hold
differently, such language is expressly overruled.
In reviewing the record as a whole, it is clear that statements made to the EMT
were made as a result of a question posed by someone who was not a police officer at the
time, and not as a result of a custodial interrogation by the police. Regardless of the fact that
the EMS worker was a part-time police officer, he was clearly performing his duties as an
EMS worker when any statements were made by the appellant. Thus, the Miranda safeguards were not triggered, and the statements were properly admitted as evidence.
It is important to review the events leading up to Deputy Harvey allowing the
EMT to examine the appellant. As Deputy Harvey arrived at the scene, he noticed Mr. Toler
lying on the floor in the house. Thereafter, he observed Ms. Newcomb outside screaming,
“There he is, there he is,” followed by the appellant standing near the road yelling, “you want
me, you want me, here I am, come and get me.” At that same point, the victim's parents were
pointing to the appellant and screaming, “There he is, there he is.” As the appellant started
to come toward Deputy Harvey, the deputy told the appellant to get on his knees and show
his hands. At first, the appellant did not comply, but moments later he did. Due to the fact
that the appellant initially refused to comply with his orders, and by the fact that the officer
was not fully aware of what was going on in the situation, he handcuffed the appellant.
Deputy Harvey stressed that the appellant was not under arrest at that point in time and that
he placed handcuffs on the appellant as a part of proper protocol for safety reasons due to his
being combative and the officer's lack of knowledge of the surrounding facts. It was at that
moment when Deputy Harvey took the appellant to his police cruiser where he had an EMS
worker examine him.
In ruling in favor of the State regarding the appellant's statements to the EMT,
the circuit judge stated the following:
There is no evidence presented to the Court by which the
Court could take judicial notice of Mr. Bryant's time that he
may or may not have served as a police officer. The testimony
before the Court is that Mr. Bryant was one of the EMS
attendants that had been called to the scene when the emergency
call came in and that after the Defendant was handcuffed by
Deputy Harvey, he was taken to Mr. Bryant for an initial
evaluation of whether he might need any medical treatment.
At that time, Mr. Bryant was evaluating him as an EMS
attendant, Emergency Medical Service attendant, asked him if
he had been the individual that had stabbed the other person
involved, and Mr. Newcomb, the Defendant, voluntarily
responded that he had. There is no evidence that Ray Bryant
was engaged by the police to assist in their investigation or was
prompted in trying to get information from the Defendant or was
acting as an Agent of the police at that time.
The Defendant's response to that question posed by Mr.
Bryant would be admissible in the State's case-in-chief. That
was a statement directly overheard by Deputy Harvey to Ray
Bryant.
The testimony further indicates that upon hearing that,
that Ray Bryant informed the Defendant that the person who had
been stabbed had in fact passed away and that was a statement
not prompting a response. The response made by the Defendant
was unsolicited and not as a result of any interrogation and
given when Mr. Bryant wasn't acting as an Agent for the police
so Mr. Newcomb's response would likewise be admissible.
The situation wherein a defendant has made statements to individuals who were
not acting as agents for the police is not an issue of first impression. For instance, the Court
in People v. Jones, 565 N.Y.S.2d 262, 264-265 (1991) addressed the issue of the
admissibility of statements made by a defendant to an ambulance driver and a nurse.
Regarding the defendant's statements to an ambulance worker, the Court in Jones explained:
Thereafter defendant made statements to an ambulance worker
while being treated. Defendant contends that the statements are
inadmissible . . . We disagree. . . . A private person may acquire
information to be used in a criminal investigation even where
police would be constitutionally restrained. Further, there is no
evidence in the record from which it could be inferred that the
ambulance
worker was a police agent. The statements were
voluntarily made and were thus admissible.
Id. The Court in Jones then addressed the defendant's statement to a nurse which was
overheard by the police as follows:
Defendant also seeks to suppress a statement made by
defendant to a nurse and overheard by the police. Where a
statement is made in the presence of police which was not
induced, provoked or encouraged by the police, it can be
admitted into evidence ( People v. Harris, 57 N.Y.2d 335, 456
N.Y.S.2d 694, 442 N.E.2d 1205). The record indicates that the
officer was standing by while defendant was being treated and
overheard defendant's unsolicited and incriminatory statement
made to the nurse. Such statement is admissible.
565 N.Y.S.2d at 265. See also People v. Esmail, 688 N.Y.S.2d 186, 188 (1999) (“Contrary
to the defendant's contention, the testimony at the hearing did not establish that the
emergency medical service workers were acting as agents of the police. Accordingly,
suppression of the defendant's statement to the EMS workers was properly denied.”); In re
W.R., 675 S.E.2d 342, 344 (N.C. 2009) (“Because Miranda is limited to custodial
interrogations, statements made to private individuals unconnected with law enforcement are
admissible so long as they were made freely and voluntarily. Even if the person occupies
some official capacity or position of authority, Miranda does not apply to questioning by
such persons unless the person is acting as an agent of law enforcement.”); Escamilla v.
State, 143 S.W.3d 814, 824 (Tex. Crim. App. 2004) (“Appellant claims in point of error ten
that the trial court erroneously admitted into evidence appellant's custodial oral statements
to hospital personnel who were treating appellant's injuries. Appellant claims that they were
state agents. . . . The . . . statements were not the result of 'interrogation' by law enforcement
personnel or their agents.”); Reinert v. Larkin, 211 F. Supp.2d 589, 601 (E.D.Pa. 2002)
(“Reinert's initial inculpatory statement was made in response to the paramedic's
questioning. Reinert argues, however, that the presence of police, combined with his
physical condition at the time, restricted his movement. He contends that he was therefore
subjected to a custodial interrogation. Although police officers were present when medical
personnel conducted the questioning that prompted Reinert's admission, their mere presence
does not transform the situation into a custodial interrogation. Reinert also argues that he
was entitled to Miranda warnings because the paramedic questioned him as an agent of the
police, but he cites no case law to support this argument. The state court determination that
Reinert's Fifth Amendment rights were not violated by the admission of his pre- Miranda statement was not an unreasonable application of Miranda. Therefore, habeas relief is not
merited on this claim. Reinert's objection is overruled.”).
In light of the aforementioned, the fact remains that Mr. Bryant was performing
his duties as an EMS worker when this occurred. Deputy Harvey testified that Mr. Bryant
was treating the appellant and that he was at the scene in his EMS capacity and not in his
police capacity. Accordingly, there was no abuse of discretion on the part of the circuit court
with regard to this issue.
With regard to the so-called rambling statement made by the appellant, in
which he said, “How would you feel if your wife spent all your money on drugs and this SOB
was screwing your wife and giving her drugs,” Deputy Harvey explained that the statement
was made during the time period when he had the appellant handcuffed and was taking him
to his police cruiser due to the fact that he was being combative. Deputy Harvey also stated
that he detained the appellant at that time for his own safety which was proper police
protocol as he secured the crime scene and tried to ascertain the underlying facts. In ruling
the statement admissible, the circuit court stated the following:
With regard to this statement made in the presence of
Deputy Harvey, the Defendant was in custody but this was not
as a result of any sort of interrogation. These were utterances
made by the Defendant, not prompted by any questioning from
the officer and they were voluntarily made, there is no evidence
to indicate any intoxication or impairment of the Defendant. He
was excited and upset, somewhat belligerent and non-compliant
but Miranda applies to avoid an interrogation and so that series
of statements which are referred too [sic] by Officer Harvey as
rambling on the by the Defendant would be admissible in the
State's case-in-chief.
The record supports the conclusion that the statement by the appellant, while made prior to Miranda warnings, was unsolicited and not as a result of a custodial interrogation by Deputy
Harvey. Thus, there was no abuse of discretion in its admission at trial.
C. Introduction of Murder Weapon
The appellant next argues that the circuit court erred by allowing the murder
weapon to be admitted into evidence at trial. While the appellant was handcuffed and sitting
in the police cruiser at the crime scene, he was asked by police officers about the location of
the knife that he used to stab Mr. Toler. The appellant eventually led the police to the
riverbank where he had thrown the knife. Prior to trial, the circuit court ruled that the
appellant's statements to the police regarding the location of the knife were inadmissible
because the appellant had not been given the
Miranda warnings prior to being questioned
about the matter. However, the circuit court found that the knife itself could be admitted into
evidence. In this appeal, the appellant argues that the knife should have been excluded
pursuant to the fruits of the poisonous tree doctrine.
See George Anthony W. v. Stephfon W.,
200 W.Va. 86, 488 S.E.2d 361 (1996).
(See footnote 6)
In response, the State argues that the appellant was not actually questioned
about the location of the knife. Rather, as Deputy Harvey testified, the appellant “blurted
out” that he threw the knife over the road while he was taking him to the police cruiser.
Thus, the State reasons that there was no
Miranda violation. Alternatively, the State argues
that the knife would have been discovered regardless of the appellant's voluntary statement,
and therefore, pursuant to the inevitable discovery doctrine, the knife was properly admitted
into evidence at trial.
In Syllabus Point 3 of State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002),
this Court held that:
Under the inevitable discovery rule, unlawfully obtained
evidence is not subject to the exclusionary rule if it is shown that
the evidence would have been discovered pursuant to a properly
executed search warrant.
In Syllabus Point 4 of Flippo, this Court further explained that:
To prevail under the inevitable discovery exception to the
exclusionary rule, Article III, Section 6 of the West Virginia
Constitution requires the State to prove by a preponderance of
the evidence: (1) that there was a reasonable probability that the
evidence would have been discovered by lawful means in the
absence of police misconduct; (2) that the leads making the
discovery inevitable were possessed by the police at the time of
the misconduct; and (3) that the police were actively pursuing
a lawful alternative line of investigation to seize the evidence
prior to the time of the misconduct.
Assuming, arguendo, that the appellant was questioned about the location of
the knife before he was given the Miranda warnings, it is clear to this Court that all three
factors of the Flippo test were satisfied. As Deputy Sutherland testified, regardless of any
statement from the appellant, the police officers would have canvassed the area with metal
detectors and would have eventually found the knife. Moreover, Trooper Sparks explained
that the knife was found in a field area, and was located in an upright position with the knife
handle visible as the knife blade was stuck in the mud. He further said it would have been
found easily in daylight as it was in the general area of where the appellant was found when
officers first arrived at the scene and, thus, the probability of inevitable discovery was great.
Moreover, Deputy Robinette stated that the knife was not hidden or concealed in any way
when it was located in the open field.
With regard to the admission of the knife into evidence, the circuit court stated
the following:
Any reference that the Defendant indicated to Trooper
Sparks the general location of the knife, there was testimony
from Deputy Robinette that Trooper Sparks brought the
Defendant back down to the location where they were searching,
and the Defendant pointed out where the knife generally was, so
any reference by Deputy Robinette, Trooper Sparks denied that,
but any reference that it was the Defendant that pointed that out
would be suppressed in the State's case-in-chief.
However, I believe that when the search was started, it
was dark. They had the general location of where the Defendant
had been. There was information that he did not have a vehicle
on the scene, and I believe the inevitable discovery rule test is
met, so the State can use the knife in its case-in-chief.
As we explained in Guthrie, supra, questions regarding the admissibility of evidence are
within the sound discretion of the circuit court and are to be disturbed only when there is an
abuse of discretion. There was no abuse here. The murder weapon was in plain view and
located in a very close proximity to where the appellant was apprehended, and in such a
position that a later police search would necessarily have found it regardless of the
appellant's statement. Accordingly, the circuit court's ruling that the knife could be
introduced into evidence pursuant to the inevitable discovery doctrine was not an abuse of
discretion.
D. Prompt Presentment Rule
Next, the appellant argues that the circuit court improperly ruled in two
separate suppression hearings that there was “no prompt presentment violation.” The
appellant states that the facts support the conclusion that the primary reason for the delay in
taking him to the magistrate court was to obtain a confession and, thus, the circuit court's
findings were clearly erroneous.
According to the State, Deputy Sutherland was the primary investigator in the
appellant's case and arrived on the scene at 4:44 a.m. As soon as Deputy Sutherland arrived,
he immediately began processing the scene and it was approximately 6:23 a.m. when he came
out of the house to arrest the appellant and take a statement from him. Then, according to
the State, once Miranda warnings were given, the appellant declared that he did not need a
lawyer because whatever he told the police officer would be the same as what he would tell
his lawyer. The State further explains that during the nearly one-and-one-half-hours from
the time the police first arrived at the scene and the taking of the appellant's statement, the
appellant was sitting in Deputy Harvey's police cruiser. As discussed previously, Deputy
Harvey handcuffed the appellant and placed him in his cruiser; however, he did not
immediately place him under arrest because he had just arrived at the scene and did not know
the underlying circumstances at that point in time. Nonetheless, based on the appellant's
behavior, as well as proper police protocol, he stated that he placed handcuffs on the
appellant for safety reasons.
In Syllabus Point 6 of State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006),
we held that:
“'“The delay in taking a defendant to a magistrate may be
a critical factor [in the totality of circumstances making a
confession involuntary and hence inadmissable] where it
appears that the primary purpose of the delay was to obtain a
confession from the defendant.” Syllabus Point 6, State v.
Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982), as amended.'
Syllabus Point 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d
397 (1984).” Syl. Pt. 8, State v. Milburn, 204 W.Va. 203, 511
S.E.2d 828 (1998).
The record before us shows that the appellant was kept at the scene of the crime for
legitimate law enforcement purposes, and not kept there for the purpose of getting a
confession. This Court has held that delays of more than two hours and even thirteen hours
were not violations of the prompt presentment rule. See Johnson, supra; and State v. Plantz,
155 W.Va. 24, 180 S.E.2d 614 (1971), respectively. Moreover, in Syllabus Point 2 of State
v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989), this Court held:
“'Ordinarily the delay in taking an accused who is under
arrest to a magistrate after a confession has been obtained from
him does not vitiate the confession under our prompt
presentment rule.' Syllabus Point 4, State v. Humphrey, 177
W.Va. 264, 351 S.E.2d 613 (1986).” Syllabus Point 8, State v.
Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S.
895, 109 S.Ct. 284, 102 L.Ed.2d 226 (1988).
With regard to the appellant's contention that there was a prompt presentment
violation, the circuit court made the following ruling:
There was no prompt presentment issue. The
Defendant's argument is illogical. To follow it would mean that
either one, when as soon as Deputy Sutherland placed the
Defendant under arrest he would have to make an election either
to leave the crime scene at that point and time and take the
Defendant immediately to the courthouse and at 6:30 in the
morning there would not have been a magistrate in anyway.
They don't come in until 8:30; or, to jail, and give up the
opportunity to further process the crime scene.
Or, if he stayed at the crime scene to give up any right to
interview the Defendant to try and further ascertain what had
happened. So neither of those scenario's [sic] make sense and
I believe Deputy Sutherland acted properly in making the
decision to leave the Defendant in the cruiser, process the crime
scene and then it certainly is well within his purview as an
officer to try and take a statement after giving the Defendant his
rights and giving him an opportunity to exercise those rights
which the Defendant chose not to do.
So the motion to suppress will be overruled with the
exception of anything that the Defendant might have said when
Deputy Sutherland first approached him, has not been_Deputy
Sutherland would not remember it so the State would be
precluded from bringing that up later on if Deputy Sutherland's
memory is refreshed.
In this case, as previously discussed, after being held for a brief and reasonable
amount of time as officers secured the scene of the crime, the appellant made a voluntary
statement after he was given his Miranda warnings. This Court has held that a delay in
presenting a defendant to a magistrate after he has confessed does not violate the prompt
presentment rule because the purpose of the rule is to avoid prolonged interrogation in order
to coerce a confession. In State v. Whitt, 184 W.Va 340, 345, 400 S.E.2d 584, 589 (1990),
we explained:
Under our prompt presentment rules, W.Va.Code,
62-1-5,
(See footnote 7) and Rule 5(a) of the Rules of Criminal Procedure,
(See footnote 8) we
have recognized that the delay in transporting a defendant to
police headquarters and the time consumed in routine processing
is not critical for prompt presentment purposes.
State v.
Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982). In several
other cases, we have found that a delay in presenting the
defendant to a magistrate after he has confessed does not violate
our prompt presentment statute either, because the purpose of
the statute is to avoid prolonged interrogation in order to coerce
a confession.
State v. Hutcheson, 177 W.Va. 391, 352 S.E.2d
143 (1986);
State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613
(1986).
In light of all of the above, it was clearly established that the delay that occurred in bringing
the appellant before a magistrate was not for the primary purpose of obtaining a confession
from him. As such, there was no abuse of discretion on the part of the circuit court in
admitting this evidence.
E. W.Va. R. Evid. 404(b)
In his final argument, the appellant maintains that the State introduced
testimony in violation of Rule 404(b)
(See footnote 9) of the West Virginia Rules of Evidence. In particular,
the appellant claims that the circuit court should have excluded testimony concerning the fact
that the appellant had stabbed the victim on an earlier occasion in September 2005. The
September 2005 stabbing occurred nearly five months prior to the April 1, 2006, fatal
stabbing of the victim. The appellant also maintains that the admission of such evidence was
unfairly prejudicial to him under Rule 403.
(See footnote 10) He states that while he was initially charged
for malicious assault for that September 2005 stabbing, those charges were dismissed without
prejudice. As such, he contends that he was forced to defend both charges in this case even
though the two incidents were separate. He states that allowing such evidence to be
presented was misleading and confusing for the jury.
The State contends that presentation of the evidence of the prior stabbing of
the victim was properly allowed under the Rule 404(b) exception to the prohibition of
introducing other crimes, wrongs, or acts. At the suppression hearing, the State explained
that the prior stabbing involved the same appellant, the same victim, the same incident, and
the incident occurred within five months of the murder. Thus, the State asserted that the
evidence went to show motive, intent, plan, and lack of mistake or accident. Moreover, the
State notes that the circuit court gave a proper limiting instruction before the evidence was
introduced and during the jury charge at the end of the trial.
Having reviewed the record below, the circuit court did not err in allowing the
State to introduce the evidence concerning the September 2005 stabbing. In
State v. LaRock,
196 W.Va. 294, 470 S.E.2d 613 (1996), this Court explained the standard of review for a
Rule 404(b) issue as follows:
The standard of review for a trial court's admission of
evidence pursuant to Rule 404(b) involves a three-step analysis.
First, we review for clear error the trial court's factual
determination that there is sufficient evidence to show the other
acts occurred. Second, we review de novo whether the trial
court correctly found the evidence was admissible for a
legitimate purpose. Third, we review for an abuse of discretion
the trial court's conclusion that the “other acts” evidence is more
probative than prejudicial under Rule 403.
196 W.Va. at 310-311, 470 S.E.2d at 629-630 (footnote omitted).
Moreover, in Syllabus Point 2 of State v. McGinnis, 193 W.Va. 147, 455
S.E.2d 516 (1994), this Court outlined the procedure that trial courts must follow in
determining whether to admit Rule 404(b) evidence:
Where an offer of evidence is made under Rule 404(b) of
the West Virginia Rules of Evidence, the trial court, pursuant to
Rule 104(a) of the West Virginia Rules of Evidence, is to
determine its admissibility. Before admitting the evidence, the
trial court should conduct an in camera hearing as stated in State
v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing
the evidence and arguments of counsel, the trial court must be
satisfied by a preponderance of the evidence that the acts or
conduct occurred and that the defendant committed the acts. If
the trial court does not find by a preponderance of the evidence
that the acts or conduct was committed or that the defendant was
the actor, the evidence should be excluded under Rule 404(b).
If a sufficient showing has been made, the trial court must then
determine the relevancy of the evidence under Rules 401 and
402 of the West Virginia Rules of Evidence and conduct the
balancing required under Rule 403 of the West Virginia Rules
of Evidence. If the trial court is then satisfied that the Rule
404(b) evidence is admissible, it should instruct the jury on the
limited purpose for which such evidence has been admitted. A
limiting instruction should be given at the time the evidence is
offered, and we recommend that it be repeated in the trial
court's general charge to the jury at the conclusion of the
evidence.
Finally, in Syllabus Point 1 of McGinnis, we addressed the use of Rule 404(b) evidence as
follows:
When offering evidence under Rule 404(b) of the West
Virginia Rules of Evidence, the prosecution is required to
identify the specific purpose for which the evidence is being
offered and the jury must be instructed to limit its consideration
of the evidence to only that purpose. It is not sufficient for the
prosecution or the trial court merely to cite or mention the litany
of possible uses listed in Rule 404(b). The specific and precise
purpose for which the evidence is offered must clearly be shown
from the record and that purpose alone must be told to the jury
in the trial court's instruction.
193 W.Va. 147, 455 S.E.2d 516.
In the case at hand, during the March 27, 2007, suppression hearing, the
prosecutor gave specific, detailed purposes for the introduction of this evidence, rather than
merely mentioning a litany of possible Rule 404(b) uses, as is the mandate of McGinnis.
During the suppression hearing, the State argued the following regarding the introduction of
the evidence of the prior stabbing of the victim:
I know that the Court is well familiar with the rule and
law surrounding that [Rule 404(b)]. The State must show that
it bears to motive and intent, lack of intent, things of that nature.
Clearly here we have in a period of from September 2005, until
April of 2006, roughly five (5) months. Five and a half months
later, this same Defendant, attacked this same Victim in a
manner nearly identical to the manner in which we allege he
killed Paul Toler and that is repeated stabbing.
. . .
Simply stating, again, you have the same Defendant,
same Victim, same incident occurring within five (5) months of
this trial or I'm sorry, this incident. We believe that would go
directly to motive, showing that he had some jealousy or some
previous incident or occurrence with his wife that caused him to
attack Mr. Toler on that occasion. It is the same that led him to
attack Mr. Toler that night here in Logan County six months
later.
It would go to lack of mistake. It would go to the identity
of the Defendant and as far as motive goes, I believe that there
is obvious motive and the State will present evidence, be able to
present evidence, that this Defendant was aware that he was
possibly going to be in trouble or be indicted for that charge in
Mingo County and that this may have been an attempt to_I think
the State would be allowed to argue that this may have been an
attempt to silence the witness against him over there as this case
may further develop at trial, based on how these witnesses
testify. Johnna Newcomb at the time has given inconsistent
testimony but it may well be that there was some plan or
something on the part of both of them to do this to Mr. Toler.
She gave the statement to the police and I know that the Court
does not have that in front of it but again, recanted that
statement at the preliminary hearing in this case.
Again, clearly, the same Victim. Same Defendant, same
act five months earlier and I think it fits nearly every category of
the Rule 404(b) exceptions and we'd ask the Court to allow the
State to use that in its case-in-chief with the limiting instruction
the Court would give as it deems proper.
Our review of this matter does not indicate any abuse of discretion by the
circuit court, nor do we find that the circuit court acted in an arbitrary or irrational manner.
The State presented detailed, specific purposes for the 404(b) evidence in accordance with McGinnis, supra, establishing explanations and rationales for the admission of such
evidence. Moreover, as per the requirement set forth in McGinnis that a circuit judge must
give a limiting instruction to the jury as to the purpose of the introduction of Rule 404(b)
evidence, the circuit court gave such an instruction. In fact, the circuit court gave the
instruction both prior to the evidence being introduced, as well as during the charge to the
jury at the conclusion of the trial. Under the standard of review established in LaRock, supra,
as well as the procedures set forth in McGinnis, there was a clear factual basis for this
evidence, it was established that it was given for a legitimate purpose, and there was no abuse
of discretion with respect to its probative value outweighing any prejudice. We consequently
affirm on this ground.
IV.
CONCLUSION
For the reasons stated above, we affirm the decision of the Circuit Court of
Logan County entered on August 3, 2007.
Affirmed.
Footnote: 1 At the time of trial, the appellant's and Ms. Newcomb's two children were ages
eleven and twelve.
Footnote: 2 The appellant was initially charged for malicious assault for the September 30, 2005,
stabbing of Mr. Toler. While those charges were dismissed without prejudice, police officers
testified that they planned to reinstate them at a later time.
Footnote: 3 W.Va. Code § 62-3-3 , in part, provides:
In a case of felony, twenty jurors shall be drawn from
those in attendance for the trial of the accused. If a sufficient
number of jurors for such panel cannot be procured in this way,
the court shall order others to be forthwith summoned and
selected, until a panel of twenty jurors, free from exception, be
completed, from which panel the accused may strike off six
jurors and the prosecuting attorney may strike off two jurors.
Footnote: 4 The victim in this case has the same surname as Randy Toler, the juror discussed in
Hutchinson. These are not the same individuals.
Footnote: 5 In
Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694,
706-707 (1966), the United States Supreme Court set forth the requirements for interrogating
a suspect as follows:
Prior to any questioning, the person must be warned that
he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If,
however, he indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before
speaking there can be no questioning. Likewise, if the individual
is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him.
Footnote: 6 Under the fruits of the poisonous tree doctrine “'[e]vidence which is located by the
police as a result of information and leads obtained from illegal[ ] [conduct], constitutes 'the
fruit of the poisonous tree' and is . . . inadmissible in evidence.'”
State v. Stone, 165 W.Va.
266, 272, 268 S.E.2d 50, 54-55 (1980) (
quoting French v. State, 198 So.2d 668
(Fla.Dist.Ct.App.1967)). The fruits of the poisonous tree doctrine was first announced by
the United States Supreme Court in
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407,
9 L.E.2d. 441 (1963). In
Wong Sun, the defendant's fourth amendment rights were violated
when the police arrested him in his home without probable cause or reasonable grounds to
do so. In making the arrest, the police found narcotics. The Supreme Court held that the
narcotics which were derived from the illegal arrest must be excluded from the defendant's
trial as “fruits of the poisonous tree.” 371 U.S. at 488, 83 S.Ct. at 417, 9 L.E.2d at 455. In
State v. Bradshaw, 193 W.Va. 519, 540, 457 S.E.2d 456, 477 (1995) we observed, however,
that “absent a constitutional violation, the 'fruits of the poisonous tree' doctrine has no
applicability.”
Footnote: 7 W.Va. Code § 62-1-5 (a)(1),
(See footnote 11) provides, in part: “An officer making an arrest under a
warrant issued upon a complaint, or any person making an arrest without a warrant for an
offense committed in his presence or as otherwise authorized by law, shall take the arrested
person without unnecessary delay before a magistrate of the county where the arrest is
made.”
Footnote: 8 Rule 5(a) states, in part: “An officer making an arrest under a warrant issued upon
a complaint or any person making an arrest without a warrant shall take the arrested person
without unnecessary delay before a magistrate within the county where the arrest is made.”
Footnote: 9 Rule 404(b) of the West Virginia Rules of Evidence provides:
Other Crimes, Wrongs, or Acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he or she acted in conformity
therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
Footnote: 10 Rule 403 of the West Virginia Rules of Evidence provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Footnote: 11
An officer making an arrest under a warrant issued upon a complaint, or any person
making an arrest without a warrant for an offense committed in his presence or as otherwise
authorized by law, shall take the arrested person without unnecessary delay before a
magistrate of the county where the arrest is made.”