Deborah A. Lawson
Pamela
Jean Games-Neely
Chief Public Defender Berkeley
County Prosecuting Attorney
William R. DeHaven
Christopher
C. Quasebarth
Public Defender Corporation Assistant
Prosecuting Attorney
Martinsburg, West Virginia Martinsburg,
West Virginia
Attorneys for the Petitioner Attorneys
for the Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE STARCHER concurs, in part; dissents, in part; and reserves the right to file a separate opinion.
1. “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
2. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
3. “In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syllabus point 1, Hinkle v. Black, 164 W. Va. 112 , 262 S.E.2d 744 (1979).
4. “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).
5. To satisfy the requirement
to clearly show the specific and precise purpose for which evidence is offered
under West Virginia Rule of Evidence 404(b), as set out in syllabus point 1 of State
v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), the proponent of
the 404(b) evidence must not only identify the fact or issue to which the evidence
is relevant, but must also plainly articulate how the 404(b) evidence is probative
of that fact or issue. If the
404(b) evidence is determined to be admissible, then a limiting instruction shall
be given at the time the evidence is offered, and must be repeated in the trial
court's general charge to the jury at the conclusion of the evidence.
Davis, Justice:
In this original proceeding in prohibition, a criminal
defendant seeks to prohibit the circuit court from allowing evidence of prior
bad acts pursuant to West Virginia Rule of Evidence 404(b). Finding a proper
purpose for the admission of the challenged evidence, we deny the writ. In addition,
however, we clarify the requirements for demonstrating the purpose which must
be shown in order to achieve the admission of such evidence.
Thereafter, the State filed notice of its election to first prosecute counts two and three of the indictment, and notice of its intent to use 404(b) evidence. On August 22, 2003, the circuit court conducted a pre-trial hearing as required by State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994). During the course of the hearing, the circuit court heard the testimony of each of the three alleged victims. On November 4, 2003, the circuit court entered its order allowing the 404(b) evidence to be used at each of the trials arising from the indictment. (See footnote 4) The circuit court expressly stated that in making its decision to allow the 404(b) evidence, it “relie[d] on its remarks made during the August 22 hearing as well as the discussion in the July 10, 2003 Order granting severance of the counts of the indictment.”
On December 1, 2003, the State gave notice of its
intent to next prosecute count I of the indictment. Trial on count I was
scheduled for January 21, 2004. Thereafter, Mr. Caton filed in this Court
a petition for writ of prohibition seeking to prevent the State from admitting
the 404(b) evidence at his scheduled trial on count I, and at his future
trial for count IV. We issued a rule to show cause and now deny the petition.
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
199 W. Va. 12, 483 S.E.2d 12 (1996). Moreover, we have stated that
[i]n
determining whether to grant a rule to show cause in prohibition when a court
is not acting in excess of its jurisdiction, this Court will look to the adequacy
of other available remedies such as appeal and to the over-all economy of effort
and money among litigants, lawyers and courts; however, this Court will
use prohibition in this discretionary way to correct only substantial, clear-cut,
legal errors plainly in contravention of a clear statutory, constitutional, or
common law mandate which may be resolved independently of any disputed facts
and only in cases where there is a high probability that the trial will be completely
reversed if the error is not corrected in advance.
Syl. pt. 1, Hinkle v. Black, 164 W. Va. 112 , 262 S.E.2d 744
(1979).
In deciding whether to grant the writ of prohibition in this case, we are asked to review the circuit court's decision to allow evidence of other crimes pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Thus, our consideration of this case is further guided by the principles we have instituted for reviewing a trial court's decision as to 404(b) evidence.
The standard of review for a trial court's admission of evidence pursuant to Rule 404(b) [of the West Virginia Rules of Evidence] 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. See State v. Dillon, 191 W. Va. 648, 661, 447 S.E.2d 583, 596 (1994); TXO Production Corp. v. Alliance Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443, 113 S.Ct. 2711, 125 L. Ed. 2d 366 (1993); State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986).
State v. LaRock, 196 W. Va. 294, 310, 470 S.E.2d 613, 629 (1996) (footnotes omitted). See also State v. McGinnis, 193 W. Va. 147, 159, 455 S.E.2d 516, 528 (“[W]e review the trial court's decision to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard. . . . Our function on . . . appeal is limited to the inquiry as to whether the trial court acted in a way that was so arbitrary and irrational that it can be said to have abused its discretion. In reviewing the admission of Rule 404(b) evidence, we review it in the light most favorable to the party offering the evidence, in this case the prosecution, maximizing its probative value and minimizing its prejudicial effect.” (internal citations omitted)).
Guided by these various standards, we now consider the substantive issues
raised in this original jurisdiction proceeding.
Generally, “[e]vidence 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.” W. Va. R. Evid. 404(b). Nevertheless, Rule 404(b)
expressly permits the introduction of specific acts in the nature of crimes, wrongs, or acts to prove purposes other than character, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Thus, Rule 404(b) permits the introduction of specific crimes, wrongs, or acts for “other purposes” when character is not, at least overtly, a link in the logical chain of proof.
McGinnis, 193 W. Va. at 154, 455 S.E.2d at 523. Indeed, Rule 404(b) “is an 'inclusive rule' in which all relevant evidence involving other crimes or acts is admitted at trial unless the sole purpose for the admission is to show criminal disposition.” State v. Edward Charles L., 183 W. Va. 641, 647, 398 S.E.2d 123, 129 (1990). Accord State v. Nelson, 189 W. Va. 778, 784, 434 S.E.2d 697, 703 (1993); State v. Lola Mae C., 185 W. Va. 452, 459, n.14, 408 S.E.2d 31, 38 n.14 (1991). See also State v. Taylor, ___ W. Va. ___, ___, 593 S.E.2d 645, ___ (2004) (Davis, J., dissenting).
Even in recognizing the inclusive nature of 404(b)
evidence, though, we have warned that such evidence should be treated with
care, as “[w]e cannot escape the fact that Rule 404(b) determinations
are among the most frequently appealed of all evidentiary rulings, and the
erroneous admission of evidence of other acts is one of the largest causes
of reversal of criminal convictions.” McGinnis, 193 W. Va.
at 153, 455 S.E.2d at 522 (citing Imwinkelried, Uncharged Misconduct Evidence § 1:04 at 8 (1984)
(footnote omitted)). We have also observed that “where a trial court
erroneously admits Rule 404(b) evidence, prejudicial error is likely to result.” Id. (citations
omitted). Certainly, then, the inclusive nature of Rule 404(b) “does
not obviate . . . the need to identify the fact or issue to
which the similar act evidence is relevant.” United States v. Burk,
912 F.2d 225, 228 (8th Cir. 1990) (citing United States v.
Mothershed, 859 F.2d 585, 589 (8th Cir. 1988), which quoted United
States v. Figueroa, 618 F.2d 934, 939 n.2 (2d Cir. 1980)). Both the proponent
of 404(b) evidence and the circuit court “[r]ather than making a broad
reference which merely restates the components of the rule . . . should specify
which components of the rule form the basis” of the proffer and the
ruling. Mothershed, 859 F.2d 585, 589 (quoting United States v.
Harvey, 845 F.2d 760, 762 (8th Cir. 1988)). In keeping with
this rationale, we instructed in syllabus point 1 of McGinnis that
[w]hen 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.
Because of Mr. Caton's charge that, notwithstanding our
directive in McGinnis, the State simply provided a list of uses for the
404(b) evidence without elaborating on precisely how the evidence will satisfy that use, and our observance of
a disturbing trend among proponents of 404(b) evidence to fail to expressly
make a connection between 404(b) evidence and the facts or issues to be shown
by its use, we take this opportunity to re- examine McGinnis's requirement
that the “specific and precise purpose for which the evidence is offered
[be] clearly be shown from the record.” Syl. pt. 1, 193 W. Va.
147, 455 S.E.2d 516. In this regard, we believe the proponent of the 404(b)
evidence must show that such evidence will help to prove “a fact that
the defendant has placed, or conceivably will place, in issue, or a fact
that the statutory elements obligate the government to prove.” United
States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir. 1996).
In other words,
[W]here evidence is offered under Rule 404(b), the [proponent]
bears the burden of showing how the proffered evidence is relevant to one or
more issues in the case. The . . . standard is clear. The [proponent] must articulate
precisely the evidentiary hypothesis by which a fact of consequence may be inferred
from the evidence of other acts. In addition, the trial court must specifically
identify the purpose for which such evidence is offered and a broad statement
merely invoking or restating Rule 404(b) will not suffice.
United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.
1985). We hasten to add, however, that in making this showing the 404(b)
proponent is not held to hypertechnicality. See United States v. Smith,
52 M.J. 337, 342 (C.A.A.F. 2000) (“ We
agree with the Sixth Circuit that '[u]pon objection by the defendant, the
proponent of the evidence, usually the Government, should be required to
identify the specific purpose or purposes for which the Government offers
the evidence of “other crimes, wrongs, or acts.'”
. . . . Moreover, we also agree with that appellate court that '[b]y so requiring, we do not mandate hypertechnicality.'” (citations omitted)); Merriweather, 78 F.3d at 1076 (same).
Finally, we reiterate McGinnis's direction that, if the 404(b) evidence is ultimately allowed at trial, the precise purpose for which the evidence was admitted “must be told to the jury in the trial court's instruction.” Syl. pt. 1, in part, 193 W. Va. 147, 455 S.E.2d 516. To ensure that the jury does not use the evidence for an improper purpose, the McGinnis Court required that a limiting instruction be given at the time the evidence is offered, and “recommend[ed] that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syl. pt. 2, in part, Id.
Based upon the foregoing, we hold that to satisfy the requirement to clearly show the specific and precise purpose for which evidence is offered under West Virginia Rule of Evidence 404(b), as set out in syllabus point 1 of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), the proponent of the 404(b) evidence must not only identify the fact or issue to which the evidence is relevant, but must also plainly articulate how the 404(b) evidence is probative of that fact or issue. (See footnote 6) If the 404(b) evidence is determined to be admissible, then a limiting instruction shall be given at the time the evidence is offered, and must be repeated in the trial court's general charge to the jury at the conclusion of the evidence. (See footnote 7)
As previously indicated, Mr. Caton argues that both the State and the circuit court have failed to identify the precise purpose for which the 404(b) evidence is being offered. Contrary to Mr. Caton's allegations, though, we find that the State did go beyond merely reciting a litany of reasons for admitting the 404(b) evidence. In the “STATE'S MEMORANDUM IN SUPPORT OF ADMISSION OF 404(B) EVIDENCE,” the State explained
[t]he purposes for which the State intends to introduce the 404(b) evidence, and its relevance to each of the trials, the State reiterates and specifies here. “Identity,” as the defendant's physical description, name, make of his car and his DNA in each of the victims' cases all point directly to this defendant.
“Opportunity,” as the defendant in each case approached his victims when they were alone and offered them rides in his car; the two that accepted were taken to secluded locations and sexually assaulted; the one that didn't accept the ride was already in a secluded location and was sexually assaulted at that location. “Modus operandi,” in that in addition to the similarity of offered rides and secluded locations where the assaults took place within a discreet proximity of time, the defendant used force to sexually assault each of the victims, apologized to each thereafter and then offered rides from the scenes of his crime. For the very same reasons, “intent,” “motive” and “lack of accident or mistake” may be proved. The jury may properly infer from this evidence the defendant's state of mind to rape these women. Motive is closely aligned to intent, and this evidence demonstrates the defendant's impulse or desire to engage in sexual acts with defenseless young women. This evidence also belies the defendant's assertion as to at least one victim, and his prospective defense as to each victim, that the sex was consensual, or accidental or the product of a mistake . . . .
The evidence plainly supports
the Court's earlier balancing that the probative value outweighs any unfair prejudice
to the defendant. Without this relevant evidence, the jury is left with an incomplete
story, leaving the trial hanging merely upon the word of the victim against the
word of the defendant. There were no other eyewitnesses because the defendant
took precautions to seclude his victims. Without DNA evidence, he may deny being
present. With DNA evidence, his defense may become “she wanted it, she asked
for it, I merely obliged.” A fuller and truer story is made available with
the admission of this relevant evidence. The Court properly noted in its July
10, 2003, Order that, with severed trials preventing conviction on all counts
in a unitary trial and a limiting instruction to the jury, the probative value
of this relevant evidence for the purposes allowed by 404(b), outweighs any unfair
prejudice to the defendant.
We find that the foregoing reasons expressed by the State for admitting the
404(b) evidence are sufficient to meet the McGinnis standard. (See
footnote 8) To the extent that Mr. Caton has also complained
that the circuit court's order, finding the evidence admissible, also
violated McGinnis by failing to provide adequate detail, he has
misinterpreted the McGinnis rule. So long as the record demonstrates
how the 404(b) evidence is probative of a fact or issue of consequence
in the case, McGinnis has been met. Since, in this instance, the
State provided the necessary detail, the circuit court was not required
to repeat that detail in its order. (See
footnote 9) For these reasons, we find no defect in
the State's or the Circuit Court's application of McGinnis to
warrant our issuance of a writ of prohibition.
The Court initially concluded that sound discretion
would permit a unitary trial of such closely related offense[s] with similar
evidence. However, the Court now feels a more conservative route, of severing
the offenses and allowing evidence of the other counts of the indictment
in only as 404(b) evidence, would provide unarguable fairness to both sides,
with the State free to use evidence relevant to the case and the Defendant
protected by a cautionary instruction limiting the jury's use of such evidence
at trial.
The circuit court also explained that its decision to grant severance was
primarily based upon Mr. Caton's assertion that he “may wish to testify
in the trial involving the twenty-one year old alleged victim and not the
cases involving the two minor alleged victims. . . . [Mr.
Caton has asserted that] trying the 'cases together would impair [his] right
to make independent decisions as to the defenses he is going to present on
each case.'”
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.