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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
No. 34722
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
V.
Defendant Below, Appellant.
Appeal from the Circuit Court of Cabell County
Honorable John L. Cummings, Judge
Criminal Action No. 07-F-143
AFFIRMED
Submitted: January 12, 2010
Filed: March 4, 2010
Jay C. Love
Darrell V. McGraw, Jr.
Huntington, West Virginia
Attorney General
Attorney for the Appellant
R. Christopher Smith
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “It is a well-established rule of appellate review in this state that a trial
court has wide discretion in regard to the admissibility of confessions and ordinarily this
discretion will not be disturbed on review.” Syllabus point 2,
State v. Vance, 162 W. Va.
467, 250 S.E.2d 146 (1978).
2. “'It is the mandatory duty of a trial court, whether requested or not, to
hear the evidence and determine in the first instance, out of the presence of the jury, the
voluntariness of an oral or written confession by an accused person prior to admitting the
same into evidence.' Syllabus Point 1,
State v. Fortner, 150 W. Va. 571, 148 S.E.2d 669
(1966),
overruled in part,
State ex rel. White v. Mohn, [168] W. Va. [211], 283 S.E.2d 914
(1981).” Syllabus point 2,
State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982).
3. “The question of admissibility under
Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993), and
Wilt v.
Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993),
cert denied, [511] U.S. [1129], 114 S. Ct.
2137, 128 L.Ed.2d 867 (1994) only arises if it is first established that the testimony deals
with 'scientific knowledge.' 'Scientific' implies a grounding in the methods and procedures
of science while 'knowledge' connotes more than subjective belief or unsupported
speculation. In order to qualify as 'scientific knowledge,' an inference or assertion must be
derived by the scientific method. It is the circuit court's responsibility initially to determine
whether the expert's proposed testimony amounts to 'scientific knowledge' and, in doing so,
to analyze not what the experts say, but what basis they have for saying it.” Syllabus point
6,
Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995).
4. “Where a trial court is presented with a defendant's failure to disclose
the identity of witnesses in compliance with West Virginia Rule of Criminal Procedure 16,
the trial court must inquire into the reasons for the defendant's failure to comply with the
discovery request. If the explanation offered indicates that the omission of the witness'
identity was willful and motivated by a desire to obtain a tactical advantage that would
minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence,
it is consistent with the purposes of the compulsory process clause of the sixth amendment
to the United States Constitution and article II, section 14 of the West Virginia Constitution
to preclude the witness from testifying.” Syllabus point 1,
State v. Ward, 188 W. Va. 380,
424 S.E.2d 725 (1991).
5. “Rules 402 and 403 of the
West Virginia Rules of Evidence [1985] direct
the trial judge to admit relevant evidence, but to exclude evidence whose probative value is
substantially outweighed by the danger of unfair prejudice to the defendant.” Syllabus Point
4,
Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991).
6. “'“'To warrant a change of venue in a criminal case, there must be a
showing of good cause therefor, the burden of which rests on the defendant, the only person
who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist
at the time application for a change of venue is made. Whether, on the showing made, a
change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling
thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been
abused.' Point 2, Syllabus,
State v. Wooldridge, 129 W. Va. 448, 40 S.E.2d 899 (1946).”
Syllabus Point 1,
State v. Sette, 161 W. Va. 384, 242 S.E.2d 464 (1978).' Syl. pt. 1,
State v.
Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).” Syllabus point 6,
State v. Satterfield, 193
W. Va. 503, 457 S.E.2d 440 (1995).
7. A claim of a violation of
Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L.Ed.2d 215 (1963), presents mixed questions of law and fact. Consequently, the
circuit court's factual findings should be reviewed under a clearly erroneous standard, and
questions of law are subject to a
de novo review.
8. “There are three components of a constitutional due process violation
under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), and
State v.
Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable
to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been
material, i.e., it must have prejudiced the defense at trial.” Syllabus point 2,
State v.
Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007).
9. “Subject to certain exceptions, pretrial discovery in a criminal case is
within the sound discretion of the trial court.” Syllabus point 8,
State v. Audia, 171 W. Va.
568, 301 S.E.2d 199 (1983).
10. “Four factors are taken into account in determining whether improper
prosecutorial comment is so damaging as to require reversal: (1) the degree to which the
prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert attention to extraneous matters.”
Syllabus point 6,
State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).
Davis, Chief Justice:
The defendant below and appellant herein, Justin Keith Black (hereinafter “Mr.
Black”), appeals from an order entered July 2, 2008, by the Circuit Court of Cabell County.
By that order, the circuit court sentenced Mr. Black to a period of forty years in the
penitentiary following Mr. Black's jury conviction of second degree murder in violation of
W. Va. Code § 61-2-1 (1991) (Repl. Vol. 2005). (See footnote 1) On appeal to this Court, Mr. Black sets
forth numerous assignments of error, which will be addressed in this opinion. Based upon
the parties' written arguments, the record designated for our consideration, and the pertinent
authorities, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
On August 8, 2002, the dead body of Ms. Deanna Crawford was found by some
loggers on Hickory Ridge located in Cabell County, West Virginia. The initial investigation
focused on a suspect who was subsequently cleared by the police department, and the case
went cold for several years.
(See footnote 2) Then, in January 2007, the police received information that a
man named Brian Dement was involved with the murder, along with Mr. Black, Nathan
Barnett, and Phillip Barnett.
Brian Dement was questioned by the police and provided several statements,
(See footnote 3) all of which were different regarding his degree of participation in the matter. He gave a
statement to the police detailing that he, along with Mr. Black, Phillip Barnett, and Nathan
Barnett, was at a party on or about August 5, 2002, at Mr. Black's residence. He provided
that he and the aforementioned persons left the party, along with Ms. Crawford, in a car that
was driven by Mr. Black. Brian Dement further claimed that they stopped the car at an
abandoned farm, that they all physically assaulted Ms. Crawford with kicks and punches, and
that she was eventually killed.
(See footnote 4) While Brian Dement's statements contained conflicting
versions of his own participation in the murder, his last statement admitted his hands-on
involvement in the crime. He was eventually arrested.
Mr. Black heard that the police were looking for him as a result of Brian
Dement's statements, and he agreed to meet at the police detachment. Once there, he was
Mirandized.
(See footnote 5) While his statement provided a very limited version of his role in the events,
he eventually admitted that he was with the victim, Brian Dement, Phillip Barnett, and
Nathan Barnett on the evening in question. He further admitted that he drove them from the
party at his house to a place on Hickory Road where there was an abandoned building. He
stated, however, that he stayed at the vehicle while the others went to the area that became
the crime scene. According to Mr. Black, Phillip and Nathan Barnett eventually returned to
the car red-faced and the three of them left, leaving the victim and Brian Dement behind.
Mr. Black recanted his statement one week later, alleging he had been coerced into providing
details that had been supplied to him by law enforcement officials and that, in actuality, he
had no knowledge of the crime or victim in question. He was indicted for murder in May
2007, along with Brian Dement,
(See footnote 6) Philip Barnett, and Nathan Barnett.
(See footnote 7)
Mr. Black was tried by a jury beginning April 15, 2008.
(See footnote 8) At Mr. Black's trial,
Brian Dement testified that, on the night in question, upon arriving at the abandoned
building, Phillip Barnett punched the victim in the side of the face. The four men, including
Mr. Black, then began screaming at the victim. Brian Dement testified that he grabbed the
victim around the neck and pulled her up a path while the other three men followed and
punched and kicked and beat on her. Brian Dement stated he eventually released his own
hold on the victim and went into the woods while the other three men continued to beat her.
Brian Dement testified that he could hear the victim screaming for her life then everything
went quiet. The other three men left in the car while he hid in the weeds. Brian Dement then
went to check on the victim and found that she was dead. Two inconsistent statements of
Brian Dement's previous statements were then played for the jury. Brian Dement spoke with
two private investigators
(See footnote 9) prior to Mr. Black's trial. In both of those conversations, he
recanted his confession related to Ms. Crawford's murder. Further, he explained that, once
he realized the amount of trouble he was in, he felt he had no choice but to accept the State's
plea offer, which included testifying truthfully against Mr. Black. Both of these statements
were introduced at Mr. Black's trial by the defense.
At his trial and in contradiction to his original statement provided to the police,
Mr. Black testified that he did not know the victim, Deanna Crawford; that she was never at
a party at his house; and that Brian Dement was never at a party at his house.
(See footnote 10) Mr. Black
testified that he had no involvement with any events that resulted in Deanna Crawford's
death. Furthermore, he testified at trial that his previous statement to the police, wherein he
admitted driving a car with the victim and the three other men from a party at his house, was
provided to the police as a result of the police feeding him details of the crime and
threatening to revoke his parole
(See footnote 11) if he refused to tell them what they wanted to hear.
The medical examiner testified at trial that, in addition to bruises and
lacerations on her body, the victim had a fracture of the hyoid bone and a laceration of the
right thyroid cartilage. He testified that this physical evidence indicated that the victim was
strangled, which was the cause of her death.
On April 21, 2008, Mr. Black was found guilty by a jury of second degree
murder. He was sentenced to forty years of confinement in the West Virginia Penitentiary
on June 6, 2008. His motion to set aside the verdict was denied on July 2, 2008, and he was
re-sentenced. Mr. Black appeals to this Court and asserts numerous assignments of error that
will be fully discussed herein.
(See footnote 12)
II.
STANDARD OF REVIEW
In this case, we are called upon to review assignments of error that have
specific standards of review. The particular standards of review will be indicated for each
assignment of error. As a general matter, however, we have held that,
[i]n reviewing challenges to findings and
rulings made by a circuit court, we apply a two-
pronged deferential standard of review. We
review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion
standard, and we review the circuit court's
underlying factual findings under a clearly
erroneous standard. Questions of law are subject
to a de novo review.
Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Mindful of these
applicable standards, we now examine the individual issues presented in this appeal.
III.
DISCUSSION
On appeal to this Court, Mr. Black sets forth the following assignments of
error: (1) the trial court erred in admitting Mr. Black's statements to the police into evidence;
(2) the trial court erred in excluding expert testimony on false confessions; (3) the trial court
improperly excluded Mr. Black's proposed rebuttal testimony; (4) the trial court erred in
striking, as irrelevant, testimony by Jessica Carson; (5) the trial court erred in denying Mr.
Black's motion for change of venue; (6) the prosecuting attorney failed to disclose
exculpatory evidence to Mr. Black prior to trial; (7) the trial court erred in denying Mr.
Black's motion to exclude all state witnesses who were intended to establish Mr. Black's
presence at the scene of the alleged offense and any other witness to rebut Mr. Black's alibi
evidence; and (8) the trial court erred in allowing the State, during its closing arguments, to
make references to inadmissible out-of-court statements. Each assignment of error will be
addressed individually in this opinion.
1. Admission of Mr. Black's Statements
The first issue set forth by Mr. Black is that his statements made to the state
troopers should not have been admitted into evidence because they were involuntary. Mr.
Black asserts that he told the police what they wanted to hear because he was afraid his
parole would be revoked.
(See footnote 13) In response, the State argues that the trial judge held a hearing
and heard extensive evidence on the issue, with the finding that the statements were
voluntary.
As an initial matter, we recognize that “[i]t is a well-established rule of
appellate review in this state that a trial court has wide discretion in regard to the
admissibility of confessions and ordinarily this discretion will not be disturbed on review.”
Syl. pt. 2,
State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978). Further, “[a] trial court's
decision regarding the voluntariness of a confession will not be disturbed unless it is plainly
wrong or clearly against the weight of the evidence.” Syl. pt. 3,
id. But cf. Syl. pt. 2,
State
v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994) (“This Court is constitutionally obligated
to give plenary, independent, and
de novo review to the ultimate question of whether a
particular confession is voluntary and whether the lower court applied the correct legal
standard in making its determination. The holdings of prior West Virginia cases suggesting
deference in this area continue, but that deference is limited to factual findings as opposed
to legal conclusions.”).
As this Court has previously recognized,
“[i]t is the mandatory duty of a trial court, whether
requested or not, to hear the evidence and determine in the first
instance, out of the presence of the jury, the voluntariness of an
oral or written confession by an accused person prior to
admitting the same into evidence.” Syllabus Point 1, State v.
Fortner, 150 W. Va. 571, 148 S.E.2d 669 (1966), overruled in
part, State ex rel. White v. Mohn, [168] W. Va. [211], 283
S.E.2d 914 (1981).
Syl. pt. 2, State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982). Further, the burden
of proving the voluntariness of any statements rests with the State. See Syl. pt. 3, Persinger, id. (“'The State must prove, at least by a preponderance of the evidence, that confessions or
statements of an accused which amount to admissions of part or all of an offense were
voluntary before such may be admitted into the evidence of a criminal case.' Syllabus Point
5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975).”). Of specific relevance to the
appeal currently before this Court regarding Mr. Black's contentions that he was threatened
with parole revocation, this Court has explained that “'[w]hen the representations of one in
authority are calculated to foment hope or despair in the mind of the accused to any material
degree, and a confession ensues, it cannot be deemed voluntary.' Syllabus, State v. Parsons,
108 W. Va. 705, 152 S.E. 745 (1930)[, overruled, in part, by State v. Farley, 192 W. Va. 247,
452 S.E.2d 50 (1994)].” Syl. pt. 7, Persinger, 169 W. Va. 121, 286 S.E.2d. 261. But cf. Syl.
pt. 7, State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994). (“Representations or promises
made to a defendant by one in authority do not necessarily invalidate a subsequent
confession. In determining the voluntariness of a confession, the trial court must assess the
totality of all the surrounding circumstances. No one factor is determinative. To the extent
that State v. Parsons, 108 W. Va. 705, 152 S.E. 745 (1930), is inconsistent with this standard,
it is overruled.”).
In the instant case, the trial court held a suppression hearing on August 21,
2007, pursuant to Mr. Black's counsel's motion to suppress his statements that he provided
to the police. The motion to suppress included the tape-recorded statement, the handwritten
statement, and the polygraph examination that Mr. Black participated in on January 29 and
30, 2007. Mr. Black, through counsel, alleged that the statements were taken in violation of
his constitutional rights and were not voluntary statements. Mr. Black testified that he was
induced or coerced into repeating information that was provided to him by officers, and that
he did so in return for being allowed to go home and prevent revocation of his parole. The
State responded that Mr. Black voluntarily came to the police station, was Mirandized, was
told he was not under arrest, provided statements, was then permitted to leave, and was not
arrested until several months later.
During the suppression hearing, the State called three police officers who
testified to the events of the night when the statements were taken. The pertinent portions
of Trooper Pack's testimony on direct examination by the State are as follows:
Q: When you went over Mr. Black's rights with him,
was he handcuffed?
A. No, he was not.
Q. And did you tell him that he was free to leave?
A. Yes.
Q. And did he indicate that he understood that he was
free to leave and not under arrest?
A. Yes. When I read the Miranda Rights form to him,
I explained that all to him.
Q. Did he have any questions about them?
A. No.
Further, on cross-examination by defense counsel, the following exchange occurred:
Q. You knew he was on parole?
A. Yes.
Q. Okay. And you and he discussed that, didn't you?
A. I believe so.
. . . .
Q. And you indicated you would hate to see him get
revoked?
A. I hate to see anybody get revoked. I don't know
what you mean.
Q. I'm saying - - and you discussed with him and you
told him that you would hate to see him get revoked from
parole?
A. Sir, if he's on parole, we discussed him being on
parole. I can't recall saying I hope he doesn't get revoked.
After re-direct, and on subsequent re-cross-examination, the questioning continued as
follows:
Q. The question was, he amended his statement to you
after you and he had discussed parole, isn't that correct?
A. You got to understand, sir, if he's on parole, that's
an issue for him from beginning to end. I understand that. So
his issue of parole and whether he's revoked is not something
that we can - - it's a big elephant in the room. It's discussed. So
did I sit there and say your parole is going to be revoked, this,
that, and the other. I don't recall specifically saying that. But
it was an issue for him, because he's on parole.
In addition to Trooper Pack's testimony, Sergeant Cummings testified that Mr.
Black was free to leave at any time and was not under arrest. Moreover, he stated that he
made no promises to Mr. Black in exchange for his statement, and that he did not remember
discussing parole. The third officer, Corporal Parde, testified that Mr. Black was free to
leave at any time and that no promises or threats were made to induce Mr. Black to provide
a statement to the police.
Mr. Black also testified at the suppression hearing. He admitted that he was
told he was not under arrest, that he was told he was free to leave, and that his Miranda rights
were explained to him. He attested that, during the evening of his statements, the police
officers told him the details of the crime, which he had no personal knowledge of prior to that
time. He then agreed to take a polygraph test and became upset upon learning that he failed
the test. Mr. Black testified that the polygraph examiner, Trooper Pack, then called him a
liar and told him that he could lose everything, including his parole. The testimony at the
suppression hearing continued with Mr. Black alleging that he simply wanted to go home and
that he made up a story, which included the crime details that the officers had told him
earlier, so that he could be finished and go home. The story, as allegedly concocted by Mr.
Black, then became his written and recorded statements. As testified to by Mr. Black, he was
then allowed to leave. He stated that he called the officers about a week later to recant his
statement and that he still felt threatened with parole revocation.
At the conclusion of the suppression hearing, the trial court found that
[t]here is very ample evidence in the criteria of by a
preponderance of the evidence as to admissibility that the
statements given by Mr. Black were freely and voluntarily
given. There is his testimony as to possible threats about
revocation of parole. His statements which differ greatly from
the trooper's statements in regard to any coercion. . . . But
there's really not much question in the Court's mind as to
whether it's a custodial interrogation. I believe it was not.
There are matters of credibility that he can testify to the
jury as to the admissibility - - as to whether to believe it was a
coerced or involuntary statement. But as far as the admissibility
of the statement, the Court rules it is admissible[.]
In the instant matter, the determination of the voluntariness of Mr. Black's
statements
(See footnote 14) relies on the discussion between the police officers and Mr. Black at the time
that Mr. Black provided the statements. The trial court heard the testimony during a
suppression hearing and did not believe any coercion was involved. This determination is
supported by the testimony of the police officers, as well as Mr. Black's admission that he
was told that he was not under arrest and that he was free to leave. In fact, Mr. Black did
leave the police station at the conclusion of the statements and was not arrested until several
months later. In view of these facts, the trial court did not err in finding Mr. Black's
statements to be voluntary, and there was no abuse of discretion in the decision to admit Mr.
Black's statements.
(See footnote 15)
2. Exclusion of Expert Testimony
The second issue set forth by Mr. Black is that it was improper for the trial
court to exclude his forensic psychiatrist's expert testimony, which would have consisted of
general testimony regarding false confessions. The record indicates that the State made a
motion to exclude the proffered expert, which was granted by the trial judge based on his
finding that the testimony would be confusing to the jury and, further, that the subject matter
of the testimony was unreliable. This Court's standard of reviewing such matters is well-
settled: “[t]he admissibility of testimony by an expert witness is a matter within the sound
discretion of the trial court, and the trial court's decision will not be reversed unless it is
clearly wrong.” Syl. pt. 6,
Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d 700
(1991).
Mr. Black argues that the testimony should have been allowed under Rule 702
of the West Virginia Rules of Evidence.
(See footnote 16) In that regard, we recognize that
[p]ursuant to West Virginia Rules of Evidence 702 an
expert's opinion is admissible if the basic methodology
employed by the expert in arriving at his opinion is scientifically
or technically valid and properly applied. The jury, and not the
trial judge, determines the weight to be given to the expert's
opinion.
Syl. pt. 4, Mayhorn v. Logan Med. Found., 193 W. Va. 42, 454 S.E.2d 87 (1994). Further
guidance is provided as follows:
In analyzing the admissibility of expert testimony under
Rule 702 of the West Virginia Rules of Evidence, the trial
court's initial inquiry must consider whether the testimony is
based on an assertion or inference derived from the scientific
methodology. Moreover, the testimony must be relevant to a
fact at issue. Further assessment should then be made in regard
to the expert testimony's reliability by considering its underlying
scientific methodology and reasoning. This includes an
assessment of (a) whether the scientific theory and its
conclusion can be and have been tested; (b) whether the
scientific theory has been subjected to peer review and
publication; (c) whether the scientific theory's actual or
potential rate of error is known; and (d) whether the scientific
theory is generally accepted within the scientific community.
Syl. pt. 2, Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993). Moreover,
[t]he question of admissibility under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W. Va. 39, 443
S.E.2d 196 (1993), cert denied, [511] U.S. [1129], 114 S. Ct.
2137, 128 L.Ed.2d 867 (1994) only arises if it is first established
that the testimony deals with “scientific knowledge.”
“Scientific” implies a grounding in the methods and procedures
of science while “knowledge” connotes more than subjective
belief or unsupported speculation. In order to qualify as
“scientific knowledge,” an inference or assertion must be
derived by the scientific method. It is the circuit court's
responsibility initially to determine whether the expert's
proposed testimony amounts to “scientific knowledge” and, in
doing so, to analyze not what the experts say, but what basis
they have for saying it.
Syl. pt. 6, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995).
In this case, Mr. Black's counsel notified the State of his intent to call
psychiatrist Bobby Miller, M.D., as an expert witness on false confessions at trial. The
defense specified that the proffered testimony would cover four points: (1) false confessions
occur and are frequent; (2) persons with certain mental diseases or defects or personality
structures are more prone to confess falsely; (3) false confessions have been studied in the
psychiatric and related literature; and (4) forensic psychiatrists are often used to educate
juries regarding false confessions. The State filed a motion to exclude the expert testimony,
and the trial court conducted a hearing on the matter. In rendering its ruling, the trial court
stated
[t]his is not a confession that you're asking Dr. Miller to testify
to. At the most it is a statement that may be slightly against the
interest of the defendant. To allow him to testify about
confessions in this matter would, I think, be very confusing to
the jury.
Further, this testimony does not come up to any standards
of reliability as far as scientific testing go[es], so the testimony
of Dr. Miller will be excluded in this regard.
Thus, as it relates to Mr. Black, the trial court found that he did not confess to
the crime, holding that “[a]t the most it is a statement that may be slightly against the interest
of the defendant.” We agree. A “confession” is defined as “[a] criminal suspect's oral or
written acknowledgment of guilt, often including details about the crime.” Black's Law
Dictionary 338 (9th ed. 2004). Further, “guilt” is defined as “[t]he fact or state of having
committed a wrong, esp. a crime[.]” Black's Law Dictionary 776. Mr. Black gave both an
oral and a written statement, wherein he stated that he drove a car containing the victim and
three other individuals to an abandoned farm. He further stated that he stayed by the car
while the other passengers went down a path. In the sense that there was never an
acknowledgment of guilt or an admittance of participation in a crime, it was not a confession.
Rather, it was a statement against his interests. Therefore, we agree with the trial court's
assessment that expert testimony regarding false confessions would be confusing to the jury.
Significantly, an evaluation of the larger factual presentation presents a greater concern.
There is no evidence that the proposed expert had ever evaluated Mr. Black or that any of his
testimony would be regarding Mr. Black specifically. The proffered testimony was only in
the form of generalities and was never connected to the actual defendant on trial. Therefore,
we agree with the trial court's determination that the expert testimony should be excluded.
In addition to the alleged violation of Rule 702, Mr. Black also argues that the
exclusion of his expert's testimony denied him of his right to present a complete defense,
which he alleges violated his constitutional rights and Crane v. Kentucky, 476 U.S. 683, 106
S. Ct. 2142, 90 L.Ed.2d 636 (1986). We disagree.
In Crane, the defendant's murder conviction was reversed and remanded
because error was found in the fact that the trial court excluded trial testimony regarding the
circumstances of the defendant's confession on the ground that the testimony pertained solely
to the issue of voluntariness, which had already been resolved against the defendant in a
pretrial ruling. The United States Supreme Court found this exclusion deprived the
defendant of a fair trial. However, the Crane case is inapplicable to the case presently
pending before this Court. In Mr. Black's trial, the lower court excluded testimony of his
proffered expert regarding general issues of false confession. However, unlike Crane, in Mr.
Black's case, the lower court allowed testimony regarding the circumstances surrounding Mr.
Black's statement to the police, including his allegations of coercion. Therefore, we do not
agree that the trial court's exclusion of Mr. Black's proposed expert testimony violated either
his constitutional rights or Crane. The admissibility of testimony by an expert witness is a
matter within the sound discretion of the trial court, and we find that the trial court's
exclusion of the testimony of Bobby Miller, M.D., was not clearly wrong.
3. Exclusion of Rebuttal Evidence
Third, Mr. Black contends that the trial court improperly excluded his proposed
rebuttal testimony. Mr. Black intended to use the owner of a cab company to contradict the
testimony of Brian Dement. The trial court excluded the proposed witness because the State
was not provided any disclosure for this witness. In this regard, we have recognized 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, 301 S.E.2d 596, 599 (1983)[, overruled on other grounds by State v. Jenkins,
191 W. Va. 87, 443 S.E.2d 244 (1994)].” Syl. pt. 2, State v. Peyatt, 173 W. Va. 317, 315
S.E.2d 574 (1983). More specifically, this Court has held that
“[t]he admissibility of evidence as rebuttal is within the
sound discretion of the trial court, and the exercise of such
discretion does not constitute ground for reversal unless it is
prejudicial to the defendant.” Syl. pt. 4, State v. Blankenship,
137 W. Va. 1, 69 S.E.2d 398 (1952), overruled on other
grounds, State v. McAboy, W. Va., 236 S.E.2d 431, 432 (1977)[, overruled on other grounds by State v. Kopa, 173 W. Va. 43,
311 S.E.2d 412 (1983)].
Syl. pt. 4, Peyatt, 173 W. Va. 317, 315 S.E.2d 574.
Regarding the exclusion of witness testimony, this Court has recognized as
follows:
Where a trial court is presented with a defendant's failure
to disclose the identity of witnesses in compliance with West
Virginia Rule of Criminal Procedure 16, the trial court must
inquire into the reasons for the defendant's failure to comply
with the discovery request. If the explanation offered indicates
that the omission of the witness' identity was willful and
motivated by a desire to obtain a tactical advantage that would
minimize the effectiveness of cross-examination and the ability
to adduce rebuttal evidence, it is consistent with the purposes of
the compulsory process clause of the sixth amendment to the
United States Constitution and article II, section 14 of the West
Virginia Constitution to preclude the witness from testifying.
Syl. pt. 1,
State v. Ward, 188 W. Va. 380, 424 S.E.2d 725 (1991).
(See footnote 17)
In the instant case, Brian Dement testified during Mr. Black's trial that he
called a cab from a convenience store after running from the scene of the crime. Mr. Black's
counsel sought to call as a witness the owner of the cab company. The proffered testimony
was that the cab owner had a policy not to respond to calls for a cab in the specific vicinity
due to high crime in the area. Mr. Black intended for the cab company owner's testimony
to contradict the testimony of Brian Dement. The trial court excluded such witness testimony
because the State was not provided any notice until the morning of the proposed testimony
and it would have been an unfair surprise.
A review of the record reveals that both Mr. Black's counsel and the State filed
reciprocal requests for discovery under Rule 16 of the West Virginia Rules of Criminal
Procedure. It was conceded by Mr. Black's counsel, during the underlying trial, that he had
Brian Dement's statements alluding to the use of a cab on the night in question. It was also
conceded by Mr. Black's counsel that he did not disclose the name of the cab company owner
as a possible witness. However, he stated that he was waiting to see what factual version
Brian Dement would testify to at trial to determine if such testimony was needed.
Pursuant to the relevant portion of Rule 16,
(d) (2) Failure to comply with a request. _ If at any time
during the course of the proceedings it is brought to the attention
of the court that a party has failed to comply with this rule, the
court may order such party to permit the discovery or inspection,
grant a continuance, or prohibit the party from introducing
evidence not disclosed, or it may enter such other order as it
deems just under the circumstances. The court may specify the
time, place and manner of making the discovery and inspection
and may prescribe such terms and conditions as are just.
At the time of the objection made by the State during trial, the judge inquired as to when Mr.
Black's counsel was made aware of Brian Dement's testimony regarding his use of a cab on
the night in question. The State proffered, and the defense conceded, that such information
had been provided by the State to the defense in the discovery answers when the defense was
provided with copies of Brian Dement's statements to the police. However, Mr. Black's
counsel delayed until the day of trial, when the proposed witness would have testified, to
even speak to the potential witness. Based on the fact that the defense had been aware of
Brian Dement's statements regarding the use of a cab for months and that the defense had
failed to investigate the matter until halfway through the second trial, the trial court excluded
the testimony. The trial court excluded the witness to prevent speculative testimony from the
stand and to prevent unfair surprise to the State. We find no abuse of discretion with this
determination.
4. Exclusion of Witness Testimony of Jessica Carson
The next issue raised by Mr. Black on appeal is that the trial court erred in
striking, as irrelevant, the testimony of Jessica Carson. As has previously been articulated
in this opinion, “'[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, 301 S.E.2d 596, 599 (1983)[, overruled on other grounds by
State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994)].” Syl. pt. 2, Peyatt, 173 W. Va. 317,
315 S.E.2d 574.
The defense called Jessica Carson during the underlying trial. Her testimony
consisted of accounts that she had a sexual relationship with a gentleman in a red truck who
typically liked to choke her during sex. She stated that this relationship occurred in the area
where the crime victim was found. Ms. Carson further averred that she saw a woman
wearing a black tank top walking along the road and that a red truck pulled over to talk to the
woman, which occurred a couple days prior to Ms. Carson learning through a news report
that a dead body had been found on Hickory Ridge. After conclusion of her testimony, the
State made a motion to strike the testimony, which was granted by the trial court on the
ground that it was irrelevant. Mr. Black asserts that this testimony shows that there was
another possible suspect for the commission of the crime; therefore, it should have been
allowed.
Rule 402 of the West Virginia Rules of Evidence provides:
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by the
Constitution of the State of West Virginia, by these rules, or by
other rules adopted by the Supreme Court of Appeals. Evidence
which is not relevant is not admissible.
As this Court has illustrated, “Rules 402 and 403 of the
West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose
probative value is substantially outweighed by the danger of unfair prejudice to the
defendant.” Syllabus Point 4,
Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991).
Applying these principles to the present case, the lower court's evidentiary
ruling was not an abuse of discretion because of the lack of credibility of the testimony.
Even assuming,
arguendo, that it was error to exclude Ms. Carson's testimony, it was
harmless error.
(See footnote 18) There was sufficient testimony to show the victim in this case was alive
while Mr. Black was with her, then immediately subsequent to that, Brian Dement found her
dead. Therefore, we find that the exclusion of the testimony of Jessica Carson was not an
abuse of discretion and, further, even if the exclusion was error, it was harmless error.
5. Denial of Change of Venue
The fifth assignment of error asserted by Mr. Black is that it was error for the
trial court to deny his motion for a change of venue. Regarding motions for change of venue,
the law and standard of review is well-settled:
“'“To warrant a change of venue in a criminal case, there
must be a showing of good cause therefor, the burden of which
rests on the defendant, the only person who, in any such case, is
entitled to a change of venue. The good cause aforesaid must
exist at the time application for a change of venue is made.
Whether, on the showing made, a change of venue will be
ordered, rests in the sound discretion of the trial court; and its
ruling thereon will not be disturbed, unless it clearly appears that
the discretion aforesaid has been abused.” Point 2, Syllabus, State v. Wooldridge, 129 W. Va. 448, 40 S.E.2d 899 (1946).'
Syllabus Point 1, State v. Sette, 161 W. Va. 384, 242 S.E.2d 464
(1978).” Syl. pt. 1, State v. Derr, 192 W. Va. 165, 451 S.E.2d
731 (1994).
Syl. pt. 6, State v. Satterfield, 193 W. Va. 503, 457 S.E.2d 440 (1995).
As asserted in his motion for change of venue, Mr. Black contends that there
was a hostile sentiment, which extended throughout the community; therefore, his change
of venue should have been granted. In support of this motion, Mr. Black relied on the fact
that his original trial began in February 2008 and ended in a mistrial when a witness
mentioned Mr. Black's polygraph test. Mr. Black's counsel argued that the subsequent
media coverage, which included three online news articles, from the mistrial tainted any
future jury pool.
However, we are reminded that
“[o]ne of the inquiries on a motion for a change of venue
should not be whether the community remembered or heard the
facts of the case, but whether the jurors had such fixed opinions
that they could not judge impartially the guilt or innocence of
the defendant.” Syl. pt. 3, State v. Derr, 192 W. Va. 165, 451
S.E.2d 731 (1994).
Syl. pt. 8, Satterfield, 193 W. Va. 503, 457 S.E.2d 440. Before the second trial commenced
against Mr. Black, the circuit judge questioned the jurors regarding their knowledge of the
case. Two potential jurors were excused when they stated that they had read about the case
in the local paper that morning. Two other jurors had seen or read something about the case
but, upon further questioning, it was determined that they did not know about it in connection
with Mr. Black, and, further, the court found, based upon their answers to questions, that they
could be fair and impartial. The remaining members of the juror pool had no knowledge of
the circumstances or the facts surrounding the case. Thus, we agree with the circuit court
that there was no showing of a pervasive sentiment in the community or with the members
of the juror pool. The denial of the motion for change of venue was not an abuse of
discretion.
6. State's Failure to Disclose Exculpatory Evidence
Next, Mr. Black argues that the State failed to disclose exculpatory evidence
to him prior to trial. Mr. Black argues that, during Alicia Wibbling's trial testimony, she
referenced that a guy had been at Punkin's house, crying in his beer about killing Deanna.
Mr. Black argues that this was potentially exculpatory evidence that the State had a duty to
provide him. In response, the State asserts that there was no violation or failure on the part
of the State because Ms. Wibbling's trial testimony was the first instance that the State had
ever heard of Punkin. Further, the State contends that the testimony was ambiguous and not
exculpatory in any way.
In making his arguments, Mr. Black relies on his assertion that the State has
a duty to search out and learn of any and all exculpatory evidence known to it or to others
acting on its behalf and to provide such information to the defendant at a reasonable time in
advance of trial. In support of his claim, Mr. Black relies on the case of
Youngblood v. West
Virginia, 547 U.S. 867, 126 S. Ct. 2188, 165 L.Ed.2d 269 (2006). The United States
Supreme Court, in
Youngblood, held that the defendant's appeal presented a federal
constitutional
Brady (See footnote 19) claim by alleging that a state trooper suppressed a note indicating that
the defendant's sexual encounters with the victim were consensual, which warranted remand
to allow the West Virginia Supreme Court of Appeals to address the
Brady issue. We have
explained that a claim of a violation of
Brady presents “mixed questions of law and fact.”
State v. Youngblood, 221 W. Va. 20, 26, 650 S.E.2d 119, 125 (2007). Consequently, the
“'circuit court's factual findings should be reviewed under a clearly erroneous standard and
. . . questions of law are subject to
de novo review.'
State v. Kearns, 210 W. Va. 167,
168-69, 556 S.E.2d 812, 813-14 (2001).”
State v. Hawk, 222 W. Va. 248, 250, 664 S.E.2d
133, 135 (2008) (per curiam). As we have previously articulated, we now specifically hold
that a claim of a violation of
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215
(1963), presents mixed questions of law and fact. Consequently, the circuit court's factual
findings should be reviewed under a clearly erroneous standard, and questions of law are
subject to a
de novo review.
On
Youngblood's remand to this Court, we held as follows:
There are three components of a constitutional due
process violation under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169
W. Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue
must be favorable to the defendant as exculpatory or
impeachment evidence; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3)
the evidence must have been material, i.e., it must have
prejudiced the defense at trial.
Syl. pt. 2, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007).
The evidence at issue was heard during the testimony of Ms. Alicia Wibbling,
who was called by the State during its case-in-chief. There is no dispute that Ms. Wibbling
was properly disclosed as a State witness as part of its discovery responses. At trial, during
the State's first re-direct examination, the following exchange occurred:
Q. Now, [Mr. Black's defense counsel] asked you a few
things we need to talk about.
A. Okay.
Q. Do you remember telling Sergeant Cummings a while
ago and also you, Sergeant Cummings and I met over lunch,
didn't we?
A. Yes.
Q. Just today?
A. Yes.
Q. Do you remember telling Sergeant Cummings back
in February and us today that you remember when Deanna
Crawford's body was found up on Hickory Ridge?
A. I remember it was in the summer.
Q. And do you remember telling us that you also
remembered it, because you had just seen Deanna at a party at
[Mr. Black's mother's house] just a few days before?
A. And I also said - -
Q. Did you tell us that?
A. Yes. I also said that - - that you asked me a question
about me being at Punkin's house and the guy was crying in his
beer about killing Deanna.
Q. Right. I asked you lots of different things. But you
told me and Sergeant Cummings - - you told him back in
February and you told both of us just at noon that you
remembered when Deanna's body was found. And part of what
you remembered was you had just seen her at [Mr. Black's
mother's] party a few days before that, didn't you?
A. Yes. I also said - -
Q. Yes.
In reviewing the testimonial exchange adduced at trial, we are unable to discern
exactly what Ms. Wibbling meant when she referred to “Punkin” and a “guy . . . crying in his
beer about killing Deanna.” Mr. Black has not presented any evidence to explain either the
meaning or its relevancy. There is no manner in which we can determine who Punkin is,
whether Punkin is Mr. Black, or even whether Punkin and the “guy crying in his beer” may
be the same person. The record indicates that Mr. Black's counsel re-cross-examined the
witness on two more occasions after the aforementioned testimony. Mr. Black's counsel did
not seek to explore who Punkin was or who was crying in his beer on either occasion of re-
cross-examination.
In absence of an understanding of the meaning of the testimony, there is no
evidence to show that the testimony was either exculpatory or material to Mr. Black's case.
Importantly, there is no evidence to suggest that the State knew the information prior to
hearing it during Ms. Wibbling's testimony at trial; thus, the State did not inadvertently or
willfully suppress evidence in violation of Brady. Further, we do not agree with Mr. Black's
interpretation of Youngblood as requiring the State to seek out everyone with even a
tangential connection to a case. This assertion stretches Youngblood's application to a
nonsensical proportion. There was no violation of the State's duty to present exculpatory
evidence.
7. Failure to Exclude State's Witnesses Showing Mr. Black's Presence
at Crime Scene and to Exclude Witnesses Rebutting Alibi Defense
The seventh argument advanced by Mr. Black is that the State violated Rule
12.1 of the Rules of Criminal Procedure
(See footnote 20) because it did not properly disclose rebuttal
witnesses and/or witnesses whose testimony placed the defendant at the scene of the crime.
Mr. Black further contends that the State failed to notify him of the specific time and date of
the commission of the alleged offense. Therefore, Mr. Black argues that all of the State's
witnesses tending to show Mr. Black's presence at the crime scene should have been
excluded, as well as all of the witnesses purporting to rebut Mr. Black's alibi defense. As
has previously been articulated in this opinion, “'[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, 301 S.E.2d 596, 599 (1983)[,
overruled on other grounds by State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994)].”
Syl. pt. 2,
Peyatt, 173 W. Va. 317, 315 S.E.2d 574.
Mr. Black contends that Brian Dement was the only witness upon whom the
State relied to establish Mr. Black's presence at the scene of the crime. Mr. Black contends
that he should have been excluded from testifying because the State failed to disclose him
as a rebuttal witness. Further, Mr. Black argues that his alibi defense was hindered by the
State's failure to accurately inform him of the date and time of the alleged offense of which
he was charged. The indictment simply read that the offense occurred sometime “between
August 4 and 8, 2002.” Then, during opening statements at trial, the State indicated it
intended to prove that the crime occurred on August 5, 2002. Because the defendant notified
the State of his intent to use an alibi defense, Mr. Black argues it was incumbent on the State
to tell him of the specific time and date of the offense. Mr. Black's arguments fail.
First, a review of the record reveals that Brain Dement was called during the
State's case-in-chief. He was not a rebuttal witness. Moreover, Mr. Black was aware that
the date set forth in the indictment was as practicable a time frame as possible given the
decayed state of the victim's body upon discovery and the inherent difficulties in affixing a
time of death due to such decomposition. The defendant should not have been surprised that
the State was going to use evidence to show he had a party at his house in August and that
the crime occurred during a time when he had taken the victim on a car ride away from his
home. The evidence was the same from the inception of this case, plus Mr. Black had been
through a previous trial that had ended in a mistrial. There was no surprise evidence used.
Second, even if there was a violation of Rule 12.1 of the Criminal Procedure
Rules, such rule is a permissive rule. Subsection (d) states that if any party fails to comply
with the rule, “the court may exclude the testimony of an undisclosed witness offered by such
party as to the defendant's absence from or presence at the scene of the alleged offense.”
(Emphasis added). Further, subsection (e) provides that, “[f]or good cause shown, the court may grant an exception to any of the requirements of subdivisions (a) through (d)[.]”
(Emphasis added). Moreover, this Court has previously found that, “[s]ubject to certain
exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial
court.” Syl. pt. 8, State v. Audia, 171 W. Va. 568, 301 S.E.2d 199 (1983). Thus, even
assuming a violation, Rule 12.1 is a permissive rule, and the trial court did not abuse its
discretion in making its determination under the facts of this case where no unfair surprise
was shown.
8. State's Remarks During Closing Arguments
The final assignment of error set forth by Mr. Black is that the trial court erred
in allowing the State, during its closing arguments, to make references to inadmissible out-of-court statements. The State responds that there was no error because the statements in
question were part of an audio-recorded statement played by the defense for the jury to
impeach Brian Dement during his testimony. Our standard of review has been determined
as follows:
In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the
circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.
Syl. pt. 3, Vance, 207 W. Va. 640, 535 S.E.2d 484. Further,
[f]our factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to
require reversal: (1) the degree to which the prosecutor's
remarks have a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced
to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert
attention to extraneous matters.
Syl. pt. 6, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).
Brian Dement was recorded in his home, without his knowledge, by his uncle,
Greg Bailey, at the request of law enforcement. Mr. Black's petition for appeal represents
that, during a suppression hearing on August 21, 2002, in Brian Dement's case, the trial
judge ruled that “I will suppress any statements made by _ without the consent of the
defendant in his residence or place where he was riding by an undercover or confidential
person without his knowledge. In other words, Mullens situation.” During closing
arguments of Mr. Black's trial, the following exchange occurred:
State: But the other thing to keep in mind is the reason
why they [the police] came to Brian Dement was [sic] because
Brian Dement had already been telling his uncle, Greg Bailey,
about his involve[ment] in that matter.
Defense: Objection, Your Honor.
Court: Sustained.
State: It's in the statement. It's in the statement played
for the jury.
Court: The correct thing is the - - the jury will recall.
State: It's in the statement.
Court: Will recall whichever.
Defense: Which is not in evidence, Your Honor.
Court: One, don't argue. Will recall how the testimony
is.
State: The same statement that they want you to rely on
to show why Brian Dement's lying and not to be believed, in
that statement to Mr. Cook, he said - -
Defense: Objection. If he's going to make a reference to
that, he can't.
Court: Overruled.
Defense: Your Honor, it was redacted.
Court: Overruled. One minute added on.
Mr. Black relies on the cases of Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L.Ed.2d 177 (2004), and State v. Mullens, 221 W. Va. 70, 650 S.E.2d 169
(2007), to support his argument. The Crawford Court determined that out-of-court
testimonial statements by witnesses are barred, under the Confrontation Clause, unless the
witnesses are unavailable and the defendant had a prior opportunity to cross-examine the
witnesses, regardless of whether such statements are deemed reliable by the court. In Mullens, this Court determined that the search and seizure provision of the West Virginia
State Constitution prohibits the police from sending an informant into the home of another
person under the auspices of the one-party consent to electronic surveillance provisions of
the West Virginia Wiretapping and Electronic Surveillance Act where the police have not
obtained prior authorization to do so. Neither case is applicable to the specific assignment
of error presently before this Court. Neither Mullens nor Crawford extends to a passing
reference made by the State during closing remarks. Further, there is no testimonial, out-of-
court, statement from an unavailable witness. In this case, Brian Dement did testify and was
subject to cross-examination.
Mr. Black argues that the statement referred to by the State was redacted from
the evidence played for the jury. The State, conversely, argues that the statement was
included in a defense exhibit and was not redacted. A review of the remarks made during
closing arguments leads this Court to the conclusion that the remarks were not intended to
mislead the jury or prejudice the accused. They were mentioned in an isolated fashion.
Further, even removing the complained-of reference, there still remains competent proof to
establish the guilt of the accused. Significantly, in light of the dispute regarding whether the
reference was redacted or actually played for the jury by the defense, the State did not
deliberately try to place the statements before the jury to divert attention to extraneous
matters. Therefore, we find no error in the lower court's rulings.
IV.
CONCLUSION
In view of the foregoing, we affirm the judgment convicting and sentencing
Mr. Black for the crime set out herein.
Affirmed.
W. Va. Code § 61-2-1 (1991) (Repl. Vol. 2005) provides:
Murder by poison, lying in wait, imprisonment, starving,
or by any willful, deliberate and premeditated killing, or in the
commission of, or attempt to commit, arson, kidnapping, sexual
assault, robbery, burglary, breaking and entering, escape from
lawful custody, or a felony offense of manufacturing or
delivering a controlled substance as defined in article four
[§§ 60A-4-401 et seq.], chapter sixty-a of this code, is murder of
the first degree. All other murder is murder of the second
degree.
In an indictment for murder and manslaughter, it shall not
be necessary to set forth the manner in which, or the means by
which, the death of the deceased was caused, but it shall be
sufficient in every such indictment to charge that the defendant
did feloniously, willfully, maliciously, deliberately and
unlawfully slay, kill and murder the deceased.
Footnote: 2 The original suspect died in 2003, but Trooper Cummings testified that this
person had already been excluded by the police department during its investigation.
Footnote: 3 Brian Dement was afforded his
Miranda warnings prior to providing his
accounts of the facts to the police.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L.Ed.2d 694 (1966).
Footnote: 4 Brian Dement's various versions of the facts will be discussed in greater detail
in the assignments of error. Further discussion will include the various recantations by Brian
Dement, including statements that Mr. Black was not involved in the crime.
Footnote: 5 Brian Dement entered into a plea agreement with the State. He pleaded guilty
to second degree murder and promised to testify truthfully in the trials of his co-defendants.
In exchange, the State agreed to recommend a prison sentence of twenty to twenty-four years.
Footnote: 7 Nathan and Phillip Barnett, brothers, were tried jointly, but in a separate trial
from Mr. Black. Their convictions are currently on appeal before this Court.
Footnote: 8 Mr. Black had previously started trial in February 2008. However, the first
trial ended in a mistrial as a result of a testifying police officer's reference to a polygraph test
in violation of Syllabus point 2,
State v. Chambers, 194 W. Va. 1, 459 S.E.2d 112 (1995),
which holds that “[r]eference to an offer or refusal by a defendant to take a polygraph test
is inadmissible in criminal trials to the same extent that polygraph results are inadmissible.”
Footnote: 9 The first conversation took place in October 2007 and was recorded without
his knowledge. In March 2008, the second conversation was recorded with his consent.
Footnote: 10 The factual version testified to at trial by Mr. Black was consistent with his
recantation to the police, which occurred one week after his initial statement to the police.
Footnote: 11 Mr. Black was on parole for a malicious wounding charge.
Footnote: 12 Other relevant facts are discussed under the assignments of error.
Footnote: 13 We refer to Mr. Black's factual accounts provided to the police on January
29 and 30, 2007, as “statements.” As will be explained further in the next section of this
opinion,
infra, the trial judge determined that the statements were not confessions. We agree.
Footnote: 15 We note that the polygraph test and its results were not admitted at trial.
See Syl. pt. 1,
State v. Chambers, 194 W. Va. 1, 459 S.E.2d 112 (1995) (“'Polygraph test results
are not admissible in evidence in a criminal trial in this State.' Syl. Pt 2[.],
State v. Frazier,
162 W. Va. 602, 252 S.E.2d 39 (1979).”).
Footnote: 16 Rule 702 of the West Virginia Rules of Evidence provides as follows:
Rule 702. Testimony by experts.
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
Footnote: 17 In
Ward, the defendant appealed the lower court's refusal to permit testimony
by the defendant's rebuttal witness. This Court upheld the exclusion based on both the
defense counsel's failure to timely disclose the witness's name to the state and for violation
of the court's order sequestering witnesses.
Footnote: 18 This Court succinctly explained that “where a nonconstitutional error has
been asserted, we have adopted the rather general rule that the case will not be reversed
unless the error is prejudicial to the defendant.”
State v. Atkins, 163 W. Va. 502, 510, 261
S.E.2d 55, 60 (citations omitted).
See also State v. Potter, 197 W. Va. 734, 748, 478 S.E.2d
742, 756 (1996) (“Our cases consistently have held that nonconstitutional errors are harmless
unless the reviewing court has grave doubt as to whether the [error] substantially swayed the
verdict.”) (citations omitted).
Footnote: 19 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963).
Footnote: 20
The relevant portions of Rule 12.1 of the West Virginia Rules of Criminal
Procedure provide as follows:
Rule 12.1. Notice of alibi.
(a) Notice by defendant. _ Upon written
demand of the attorney for the state stating the
time, date and place at which the alleged offense
was committed, the defendant shall serve within
10 days, or at such different time as the court may
direct, upon the attorney for the state a written
notice of the defendant's intention to offer a
defense of alibi. Such notice by the defendant
shall state the specific place or places at which the
defendant claims to have been at the time of the
alleged offense and the names and addresses of
the witnesses upon whom the defendant intends to
rely to establish such alibi.
(b) Disclosure of information and
witness. _ Within 10 days thereafter, but in no
event less than 10 days before trial, unless the
court otherwise directs, the attorney for the state
shall serve upon the defendant or the defendant's
attorney a written notice stating the names and
addresses of the witnesses upon whom the state
intends to rely to establish the defendant's
presence at the scene of the alleged offense and
any other witnesses to be relied on to rebut
testimony of any of the defendant's alibi
witnesses.
(c) Continuing duty to disclose. _ If prior
to or during trial, a party learns of an additional
witness whose identity, if known, should have
been included in the information furnished under
subdivisions (a) or (b), the party shall promptly
notify the other party or the other party's attorney
of the existence and identity of such additional
witness.
(d) Failure to comply. _ Upon the failure
of either party to comply with the requirements of
this rule, the court may exclude the testimony of
an undisclosed witness offered by such party as to
the defendant's absence from or presence at the
scene of the alleged offense. This rule shall not
limit the right of the defendant to testify.
(e) Exceptions. _ For good cause shown,
the court may grant an exception to any of the
requirements of subdivisions (a) through (d) of
this rule.