Frank W. Helvey, Jr.
Appellate Public Defender
Charleston, West Virginia
Attorney for the Appellant
Jacquelyn I. Custer
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "Character Evidence Generally. -- Evidence of a
person's character or a trait of his character is not admissible
for the purpose of proving that he acted in conformity therewith on
a particular occasion, except: (1) Character of the Accused --
Evidence of a pertinent trait of his character offered by an
accused, or by the prosecutor to rebut the same; . . ." Part, Rule
404(a), West Virginia Rules of Evidence.
2. The West Virginia Rules of Evidence contemplate that
rebuttal evidence be introduced only to rebut actual evidence
previously introduced, and the simple mention of character issues
during opening argument does not lay a proper foundation for, or
open the door for, the introduction of otherwise inadmissible
character evidence on rebuttal.
3. "Rule 404(a)(2) of the West Virginia Rules of
Evidence essentially codifies the common law rules on the admission
of character evidence of the victim of a crime. In particular,
under our traditional rule, a defendant in a homicide, malicious
wounding, or assault case who relies on self-defense or provocation
may introduce evidence concerning the violent or turbulent
character of the victim, including prior threats or attacks on the
defendant." Syllabus point 2, State v. Woodson, 181 W.Va. 325, 382
S.E.2d 519 (1989).
4. The State may not seek a W.Va. Code § 62-12-2,
enhancement of a defendant's sentence for use of a firearm in the
commission of the crime charged unless it has previously given the
defendant notice of the intention to enhance in the manner outlined
in syllabus point 2 of State v. Johnson, 187 W.Va. 360, 419 S.E.2d
5. "Under W.Va. Code, 62-12-2 (1986), the State has two
options by which it may notify the defendant of its intent to seek
an enhanced penalty. Under W.Va. Code, 62-12-2(c)(1), it may set
out the charge in the indictment, or, under W.Va. Code, 62-12-
2(c)(2)(C), it may elect to give notice of the enhancement by a
writing. In this latter event, the grounds must be set out as
fully as such grounds are otherwise required to be stated in an
indictment." Syllabus point 2, State v. Johnson, 187 W.Va. 360,
419 S.E.2d 300 (1992).
This is an appeal by Ronzel Richards from an order of the
Circuit Court of Calhoun County sentencing him to two concurrent
terms of from two to ten years in the State penitentiary for the
malicious wounding of his brother and his nephew. On appeal, the
defendant claims that the circuit court erred in allowing the
prosecution to show that he had committed collateral crimes and
that the court denied him a fair trial by refusing to permit him to
adduce evidence on the bad reputation and habits of the victims.
He also claims that the court committed a number of errors relating
to the enhancement of his sentence for his use of a firearm in the
commission of the crimes charged. After reviewing the questions
presented, this Court agrees that the trial court committed
reversible error. Accordingly, the defendant's conviction is
reversed, and he is awarded a new trial.
The charges against the defendant grew out of a shooting
incident which occurred on May 3, 1991. On that day, the defendant
was plowing a garden on property owned by his parents. The garden
was adjacent to a parcel of land owned by the defendant's nephew,
There had been an on-going dispute over where the
boundary line ran between the defendant's parents' property and the
Boyd Richards' property, and while the defendant was plowing his
parents' garden on May 3, 1991, his nephew jumped up on his tractor
and struck or "pecked" him on the arm and complained that he was
plowing across the boundary line. According to the defendant, the
nephew, Boyd Richards, dumped a beer on him and told him that he
"was not plowing no more of this garden." The defendant replied
that he was going to finish plowing even if he had to "go off this
hill and get a shotgun."
After this incident, the defendant stopped the tractor
and walked to his parents' house to get a shotgun. The defendant
told his parents that he was "taking a shotgun on the hill . . . I
am not going to let them beat me halfway to death up there." His
mother begged him to call the police. The defendant, nonetheless,
loaded the shotgun and returned to the garden area. On the way, he
fired a shot into the side of an outbuilding and advised Boyd
Richards and Boyd's father, Charles Richards, who was in front of
Boyd's trailer, to "leave me alone . . . I plan to finish this
garden . . . You people are going to have to kill me to stop me."
As the defendant began to resume plowing, he observed a
beer bottle rolling toward his tractor tire. He picked it up and
tossed it into Boyd Richards' yard. According to the defendant, he
also heard Charles Richards shout, "Hit him in the head." The
defendant had a plastic plate in his head as the result of a
previous injury, and according to his testimony, he was fearful
that a blow to this plate might be fatal. He, therefore, turned
toward Boyd Richards and lifted his shotgun. He testified that he
observed Boyd with his arm drawn back. He then fired the shotgun
in Boyd's direction. Both Boyd and Charles Richards were struck
and injured by the shot.
The defendant was subsequently charged with, and tried by
a jury on, two counts of malicious wounding.
During his opening statement at the defendant's trial,
defense counsel stated that he would prove that the victims of the
shooting, Boyd Richards and Charles Richards, were recognized as
known drunks and troublemakers with violent tempers. He also
stated that he would prove that the defendant's reputation was that
of "a peaceful . . . and law abiding citizen[,] not the sort of
person who would without provocation shoot someone, much less his
brother and nephew." He portrayed the defendant as "the mainstay
of his family" who had "been a stable husband and father."
At the close of the opening statement, the prosecutor
approached the bench and argued that defense counsel, by his
opening remarks, had put the defendant's reputation in issue.
Without discussion, the trial court agreed, and prior to the
commencement of the second day of trial, the court, in an in camera
hearing, ruled that the State could bring the defendant's criminal
record, if any, into evidence.
The defendant was the first witness to testify in his own
defense, and during a recess following his direct testimony,
defense counsel informed the court that he had learned that the
defendant had twice been convicted of possession of stolen
property, once in 1969 in Tennessee, and once in 1975 in Ohio and
objected to, or moved that the court exclude, the introduction of
these crimes. The court ruled that the evidence was admissible.
During cross-examination of the defendant, the prosecutor
elicited evidence of the convictions, and later, during closing
argument, the prosecutor told the jury that defense counsel had
failed to inform the jury during his opening statement that the
defendant had been in prison "at least, two times and had . . ., at
least, two felony convictions." The prosecutor also said during
Did they tell you in opening statement that he had a prison record, that he had committed felonies, numerous felonies, and he'd been in prison in two other states or did I have to bring it out on cross examination of the Defendant.
The defendant's first contention on appeal is that the
trial court erred in allowing the State to introduce the collateral
crime evidence. It is apparent from the record, as well as from
the arguments of the parties on appeal, that this contention
involves the question of whether defense counsel interjected the
defendant's character into evidence when, during opening argument,
he indicated that the defendant was a peaceful and law-abiding
citizen. The State argues that defense counsel's remarks laid the
proper foundation for the admission of collateral crime evidence.
The West Virginia Rules of Evidence allow the
introduction of collateral crime evidence to rebut evidence of a
particular trait of character offered by the accused.
Specifically, Rule 404(a) provides, in relevant part:
Character Evidence Generally. -- Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of the Accused -- Evidence of a
pertinent trait of his character offered by an
accused, or by the prosecutor to rebut the
same; . . .
West Virginia's Rule 404 is modelled on the corresponding
Rule of Federal Evidence, and this Court has rather consistently
followed decisions under the Federal Rule in interpreting and
applying the West Virginia rule.
Regarding Federal Rule 404, J. B. Weinstein, Weinstein's
Evidence, § 494 (1992), states:
Rule 404 restates the common law rule which bars the prosecution from the circumstantial use of bad character in the first instance, but allows the accused to introduce evidence of good character. The inconsistency seeks to protect a defendant from being convicted merely of "being bad." The accused has an absolute right to introduce character evidence, although the trial court, in its discretion, may limit the scope of the proof, as by limiting the number of witnesses; or by controlling the order of proof.
* * *
The prosecution may come forward with evidence
rebutting good character only when the accused
has called character witnesses to testify to
In line with this proposition, if the defendant had
called a witness or witnesses who testified that he was a peaceful
and law-abiding citizen, the prosecution could properly have
introduced evidence to show that the defendant had previously been
convicted of crimes. Such evidence would, in effect, have rebutted
the testimony of the witnesses that the defendant was a law-abiding
However, in the present case, the defendant did not
introduce evidence that the defendant was a law-abiding citizen.
Rather, defense counsel merely stated during opening argument that
the defendant was a law-abiding citizen. Thus, the real question
presented to this Court on appeal is whether a remark during
opening argument, rather than the introduction of actual evidence,
sets the stage for the introduction of rebuttal evidence involving
So far as this Court can determine, no West Virginia case
have ever spoken to this issue, and it appears that very few other
jurisdictions have addressed it. However, a few Federal courts
have concluded that a remark made during opening argument does not
constitute evidence and does not provide the foundation for the
admission of rebuttal evidence of collateral crimes.
In a seemingly-lead case on the question, United States
v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957), the Second Circuit Court
of Appeals indicated that the rule relating to the introduction of
rebuttal evidence involved only the rebuttal of actual evidence,
that is, sworn testimony. The court reasoned:
[I]t is clear that the opening statement of counsel for the defendant could not have put the defendant's character in issue. Such a statement has no evidentiary value, and therefore does not call for or justify cross- examination or rebuttal evidence.
Supra, at 689. The court further indicated that argument could
effectively be explained or neutralized by counter-argument or by
instruction of the trial court. Actual, sworn evidence was not
necessary. The court stated:
An instruction from the Court or argument of counsel is sufficient correction, not the introduction of otherwise inadmissible evidence.
Supra, at 689.
In another case, United States v. McLister, 608 F.2d 785
(9th Cir. 1979), a cocaine case, defense counsel, in his opening
statement, told the jury that the defendant, McLister, was engaged
in the antique business, that he had purchased property in Colorado
and intended to go into the hydroponics business, and that he came
from "what may be called a relatively privileged background' with
no need to get into any illegal business. Defendant McLister
testified regarding his property interests and his intention of
going into the hydroponics business. The prosecution argued that
it had the right under Rule 404(b) of the Federal Rules of Evidence
to impeach McLister's credibility. The appeals court found:
We cannot find that . . . counsel's opening statement . . . placed his character in issue under Rule 404(a) or under the rules set forth in Michelson v. United States, supra [335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948)].
In another case, United States v. Green, 648 F.2d 587,
595 (9th Cir. 1981), the court said, "[a]n opening statement,
however, having no evidentiary value, cannot operate to place an
issue in controversy."
In this Court's view, the rather clear language of the
West Virginia Rules of Evidence contemplates that rebuttal evidence
be introduced only to rebut actual evidence previously introduced,
and the simple mention of character issues during opening argument
does not lay a proper foundation for, or open the door for, the
introduction of otherwise inadmissible character evidence on
The Court notes that the State argues that the defense,
in addition to raising the issue of the defendant's character
during opening argument, introduced evidence during its case that
the defendant had been "a good boy," and that the defendant's niece
All of my life with Ronzel [the defendant] and all the other kids, Ronzel's always been the only one that's really fair and honest and the, you know, least problem of all the kids . . . And now he's trying to live a good Christian life and raise his children and stay out of trouble.
Although these remarks were of the sort which normally
sets the stage for the introduction of character evidence against
a defendant, in the present case they were made only after the
State had introduced evidence of the collateral crimes committed by
the defendant. In effect, the evidence of collateral crimes was
introduced before the defendant introduced evidence relating to his
character, and under these circumstances, the Court cannot conclude
that they laid the foundation for the introduction of collateral-
The defendant's second contention is that the trial court
denied him a fair trial by refusing to permit him to call witnesses
to testify as to opinion, reputation, and habit evidence relating
to the victims' pertinent traits of character.
At the start of the defendant's trial, it was clear that
the defendant intended to raise the issue of self-defense and that
he anticipated introducing evidence of the violent and turbulent
character of the shooting victims.
To form a foundation for his self-defense claim, the defendant introduced evidence showing that a plastic plate had been place in his skull after he had been injured in an accident in 1985. Because of the plate, he was on constant guard to avoid being hit in the head. He testified that immediately prior to the shooting, he believed that his brother and nephew had thrown beer bottles into his path and that he heard his brother, Charles, shout, "Hit him in the head..." He further testified that he believed that the victims were going to hit him in the head, and, "As I turned around, I seen Bo with his arm drawed back like he was getting ready to throw something." He explained that he fired the gun to stop them.
This Court has recognized in syllabus point 2 of State v.
Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989), that:
Rule 404(a)(2) of the West Virginia Rules of Evidence essentially codifies the common law rules on the admission of character evidence of the victim of a crime. In particular, under our traditional rule, a defendant in a homicide, malicious wounding, or assault case who relies on self-defense or provocation may introduce evidence concerning the violent or turbulent character of the victim, including prior threats or attacks on the defendant.
This is also reflected in syllabus point 2 of State v. Louk, 171
W.Va. 639, 301 S.E.2d 596 (1983):
"'In a prosecution for murder, where self- defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof.' Syllabus Point 1, State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922)." Syllabus Point 3, State v. Gwinn, W.Va., 288 S.E.2d 533 (1982).
See also, State v. Dietz, 182 W.Va. 544, 390 S.E.2d 15 (1990) and
Deitz v. Lugursky, 188 W.Va. 526, 425 S.E.2d 202 (1992).
At bench conference during the direct examination of the
defendant, the court ruled that the defendant could testify as to
the turbulent and violent character of the victims, but no other
defense witnesses would be permitted to do so. The court did,
however, agree that the defense counsel could vouch the record with
the potential testimony of other possible witnesses relating to the
A proffer was made to vouch the record. That proffer
indicated that four members of the defendant's family would have
testified that Charles Richards and Boyd Richards were violent and
turbulent individuals. Additionally, it indicated that another
witness, Billy Parsons, would have testified that the victims,
Charles and Boyd Richards, were violent and turbulent and that he
had overheard a conversation, at an unknown time before the
shooting incident, between Charles Richards and Boyd Richards
during which Charles Richards and Boyd Richards talked about
"getting" the defendant.
On appeal, the defendant claims that the trial court
improperly prejudiced his case by refusing to allow him to
introduce the testimony of these witnesses.
As previously indicated, in syllabus point 2 of State v.
Woodson, supra, the Court has recognized that where a defendant in
a malicious wounding or assault case relies on self-defense, he may
properly introduce evidence of the violent or turbulent character
of the victim and also evidence of prior threats or attacks of the
victim against the defendant.
It rather clearly appears to this Court that the
defendant, who was charged with malicious wounding, did rely on
self-defense since he rather explicitly indicated that he was
afraid of being struck in the head immediately prior to the
shooting and since he testified that he shot the gun to stop the
potential attackers. Given this, and given the rule set forth in
Woodson, the Court believe that the trial court erred in excluding
the evidence of the character of the victims and the evidence that
a statement had been made to the effect that they had talked about
"getting" the defendant.
The defendant's remaining assignments of error relate to
actions taken by the trial court involving the enhancement of his
sentence for use of a firearm. The court's actions were apparently
taken because of the language of W.Va. Code § 62-12-2(b), which
The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation.
Apparently because of this statutory language, the trial
court instructed the jury to determine whether the defendant had
used a firearm if it determined that he had committed the crimes
charged. Specifically, the court told the jury:
If the jury and each member of the jury finds from all the evidence beyond a reasonable doubt that the Defendant used a firearm in the commission of such offense, you should find that the Defendant did use a firearm in the commission of the offense.
The court also told the jury:
If the jury and each member of the jury finds
from all the evidence beyond a reasonable
doubt that the Defendant did not use a firearm
in the commission of malicious assault, you
should find the Defendant did not use a
firearm in the commission of the offense.
The trial court additionally submitted a special interrogatory to
the jury on the use of a firearm, and after the jury returned a
verdict against the defendant, the court enhanced the defendant's
sentence because the jury had responded to the interrogatory in the
Although W.Va. Code § 62-12-2(b) authorizes enhancement of a sentence for use of a firearm, other portions of W.Va. Code § 62-12-2 specify what must be done before the enhancement may occur. Specifically, W.Va. Code § 62-12-2(c)(2)(C) requires that "the state shall give notice in writing of its intent to seek such finding . . . which notice shall state with particularity the grounds upon which such finding shall be sought as fully as . . . required to be stated in an indictment . . . unless grounds therefor are alleged in the indictment . . ."
In State v. Johnson, 187 W.Va. 360, 419 S.E.2d 300
(1992), which was decided a very short time before the defendant's
trial, this Court discussed the enhancement of sentences under
W.Va. Code § 62-12-2 and the notice requirements of W.Va. Code
§ 62-12-2(c)(2)(C). In syllabus point 2 of the Johnson case, the
Court specified how notice under the statute could be given:
Under W.Va. Code, 62-12-2 (1986), the State has two options by which it may notify the defendant of its intent to seek an enhanced penalty. Under W.Va. Code, 62-12-2(c)(1), it may set out the charge in the indictment, or, under W.Va. Code, 62-12-2(c)(2)(C), it may elect to give notice of the enhancement by a writing. In this latter event, the grounds must be set out as fully as such grounds are otherwise required to be stated in an indictment.
Rather importantly the Court also indicated in the
Johnson case that:
The procedural language of our statutes is mandatory. Thus, failure by the State to notify the defendant to seek sentence enhancement will make the statutes inapplicable.
State v. Johnson, supra, at 363, 419 S.E.2d at 303. The clear
meaning of this is that the State may not seek a W.Va. Code § 62-
12-2 enhancement of a defendant's sentence for use of a firearm in
the commission of the crime charged unless it has previously given
the defendant notice of the intention to enhance in the manner
outlined in syllabus point 2 of State v. Johnson, 187 W.Va. 360,
419 S.E.2d 300 (1992).
In the present case, it appears that the State failed to
notify the defendant, in the manner set forth in State v. Johnson,
that a sentence enhancement would be sought. In view of this, and
in view of the requirement of State v. Johnson, this Court
concludes, and the State admits, that the trial court erred in
raising the enhancement issue and in enhancing the defendant's
sentence for the use of a firearm.
For the reasons discussed above this Court concludes that
the trial court committed reversible error by allowing the State to
introduce evidence of collateral crimes committed by the defendant,
by refusing to admit evidence of the victims' character and prior
threatening remarks, and by enhancing the defendant's sentence for
the use of a firearm. Under the circumstances, the Court has
concluded that the defendant's conviction should be reversed and
that his case should be remanded for a new trial.
Reversed and remanded.