IN THE SUPREME COURT OF APPEALS OF WEST
September 1997 Term
STATE OF WEST VIRGINIA,
BETTY OLIVA RILEY,
Appeal from the Circuit Court of Cabell County
Honorable John L. Cummings, Judge
Civil Action No. 95-F-121
Submitted: September 17, 1997
Filed: December 16, 1997
Darrell V. McGraw,
Attorney General Huntington, West Virginia
Victor S. Woods Kimberly Campbell, Esq . Assistant Attorney General Huntington, West Virginia Charleston, West Virginia Public Defenders Attorneys for the Appellee Attorneys for Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
'"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, 169 W.Va.
456, 288 S.E.2d 533 (1982)." Syl. Pt. 2, State v. Louk, 171
W.Va. 639, 301 S.E.2d 596 (1983).
in a prosecution for murder the defendant relies upon
self-defense to excuse the homicide and the evidence does not
show or tend to show that the defendant was acting in
self-defense when he shot and killed the deceased, the defendant
will not be permitted to prove that the deceased was of
dangerous, violent and quarrelsome character or reputation."
Syl. Pt. 1, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54
3. "'"The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that
such action amounts to an abuse of discretion." Syllabus
Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).'
Syl. pt. 4, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600
(1983)." Syl. Pt. 2, State v. Franklin, 191 W.Va. 727, 448
S.E.2d 158 (1994).
"Expert testimony can be utilized to explain the
psychological basis for the battered woman's syndrome and to
offer an opinion that the defendant meets the requisite profile
of the syndrome." Syl. Pt. 5, State v. Steele, 178 W.Va.
330, 359 S.E.2d 558 (1987).
judgment of conviction will not be set aside because of improper
remarks made by a prosecuting attorney to a jury which do not
clearly prejudice the accused or result in manifest
injustice." Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456
S.E.2d 469 (1995).
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).
any case where the defendant relies upon the defense of insanity,
the defendant is entitled to any instruction which advises the
jury about the further disposition of the defendant in the event
of a finding of not guilty by reason of insanity which correctly
states the law; however, when the court gives an instruction on
this subject which correctly states the law and to which the
defendant does not object, the defendant may not later assign
such instruction as error." Syl. Pt. 2, State v. Nuckolls,
166 W.Va. 259, 273 S.E.2d 87 (1980).
8. "'A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.' Syl. pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995)." Syl. Pt. 3, State v. Williams, 198 W.Va. 274, 480 S.E.2d 162 (1996).
Per Curiam:See footnote 1
Betty Olivia Riley (hereinafter "Appellant") appeals
her second degree murder conviction in Cabell County, contending
that she had been abused by the victim and that she should have
been permitted to more fully develop the battered woman's
syndrome as a defense. She also contends that several comments by
the State were prejudicial, that jury instructions offered by the
defense were inappropriately amended, and that her Fourth
Amendment rights were violated when police officers at the scene
of the murder tested her for gun powder residue without her
consent. Having reviewed the record, briefs, and arguments of
counsel, we conclude that the lower court committed no reversible
error and affirm its decision.
On October 5, 1994, Jack Brown telephoned emergency services and indicated that the Appellant had shot and wounded him. When the police arrived at the Huntington,
West Virginia, residence, the Appellant was lying on the floor
in front of Mr. Brown, who was seated in a chair with one gunshot
wound. A .25 caliber semiautomatic handgun, later determined to
be the murder weapon, was found approximately one foot from the
Appellant's hand. The officers informed the Appellant of her
Miranda rights, and she thereafter admitted that she had shot Mr.
Brown, indicating a history of domestic violence. Mr. Brown died
as a result of the gunshot wound.
On May 11, 1995, the Appellant was charged with first degree murder by a single count indictment issued by the Cabell County Grand Jury. Subsequent to a March 1996 trial, the Appellant was found guilty of second degree murder and was sentenced to thirty-two years in prison. On appeal to this Court, the Appellant identifies four specific issues of alleged error, and asserts that the evidence was insufficient to support the verdict. The Appellant's assignments of error include: refusal of the lower court to allow the Appellant to fully develop testimony and evidence concerning the battered spouse syndrome; prejudice created by remarks made by the assistant prosecuting attorney, amendment of the Appellant's jury instructions on the procedures and consequences of a not guilty by reason of insanity verdict; Fourth Amendment violation based upon the failure of the police officers to obtain the Appellant's consent to gun powder residue testing; and evidence insufficient to support the verdict.See footnote 2 2
EVIDENCE OF BATTERED SPOUSE SYNDROME
Based upon our
review of the transcript, we find that the Appellant's
opportunity to introduce battered woman's syndrome testimony,
including instances of prior abuse, was not unreasonably or
Testimony Actually Introduced
At trial, the Appellant testified regarding the history of abuse, and informed the jury that shortly before the shooting, Mr. Brown had slapped her in the face while they were standing on the porch of their apartment. The Appellant also testified that after she had gone inside to lie down with her cat, Mr. Brown entered the room and repeatedly threw the cat across the room. Testimony was also introduced concerning the Appellant's initial statements immediately after the police arrived at the scene. The Appellant stated, "I'm tired of him beating me," and she repeatedly said, "domestic abuse, domestic abuse." She told the
police, "I don't know how many times that I shot, I was
just tired - - wanted him to stop hitting me."
also testified that she had experienced psychiatric problems
since a 1961 suicide attempt. She testified that Mr. Brown was
"nasty" and resorted to verbal abuse "so bad you
would be afraid that he might use his fist on you." While
she characterized the abuse as "infrequent," she did
relate an incident in which Mr. Brown had thrown a knife into the
wall near her head, "close enough that it bothered me."
Appellant's treating psychiatrist from 1993 to 1994, Dr. Jack
Dodd, testified that the Appellant suffered bipolar disorder, is
alcohol dependent, and has been hospitalized on at least three
occasions for treatment of her mental illness. A psychologist
employed by Dr. Dodd, Ms. Maria Stallo-Leppla, testified that Mr.
Brown's action in throwing the cat across could have prompted a
psychotic episode in the Appellant.
Dr. Joseph Wyatt, the Appellant's expert psychologist, also diagnosed the Appellant as suffering from bipolar disorder and opined that "it was more likely than not that she could not conform her actions to the requirements of the law. . ." because of the psychotic episode at the time of the shooting. Dr. Wyatt also testified regarding the Appellant's history of mental illness, and instances of physical and emotional abuse. Dr.
Wyatt characterized the Appellant as "a classic battered
spouse," explaining that she had been abused by Mr. Brown
and her former husband of twenty-nine years.See footnote 3 3
In addition to
the evidence summarized above, the Appellant also sought to
introduce further evidence regarding the nature of prior abusive
behavior. That evidence, if ruled admissible, would have
consisted of testimony by four individuals: Mr. William
Congleton, regarding an incident wherein Mr. Brown allegedly
brandished a gun upon Mr. Congleton; Officer Tim Goheen, the
officer investigating that allegation; Mr. Mark Dillon, the
Appellant's son-in law, regarding the prior abuse; and Mrs. Donna
Dillon, the Appellant's daughter, regarding her mother's
relationship with her late father. The Appellant also asserts
that the testimony of Dr. Wyatt was improperly limited.
Donna and Mark Dillon
The lower court refused to admit the testimony of Mrs. Donna Dillon regarding the abuse suffered by the Appellant at the hands of her former husband, Mrs. Dillon's father, because this testimony would have been cumulative. The Appellant and her experts had already presented testimony regarding this abuse. With regard to Mr. Mark Dillon, the
Appellant's son-in-law, the Appellant attempted to introduce
testimony of Mr. Dillon regarding instances in which the
Appellant had contacted Mr. Dillon requesting assistance. The
lower court never ruled on the admissibility of Mr. Dillon's
testimony; the court simply sustained the prosecution's objection
when hearsay evidence regarding statements allegedly made by the
Appellant to Mr. Dillon began to emerge. Subsequent to the lower
court's decision to sustain the objection, Appellant's counsel
abandoned that particular line of questioning.See footnote 4 4
Mr. William Congleton and Officer Tim Goheen
With regard to
Mr. Congleton and Officer Tim Goheen's testimony concerning the
brandishing incident, we have only required the admission of
offered evidence of violent acts against third parties where
self-defense is relied upon "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." Syl.
Pt. 2, in part, State v. Louk, 171 W. Va. 639, 301 S.E.2d 596
(1983). In syllabus point one of State v. Collins, 154 W.Va. 771,
180 S.E.2d 54 (1971), this Court held:
When in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and the evidence does not show or tend to show that the defendant was acting in self-defense when he shot and killed the deceased, the defendant will not be permitted to prove that the deceased was of dangerous, violent and quarrelsome character or reputation.
See State v. Smith, 198 W.Va. 441, 481 S.E.2d 747 (1996).
Dr. Joseph Wyatt
The Appellant also contends that the testimony of Dr. Wyatt regarding the battered woman's syndrome and the relevant underlying facts from within the Appellant's history of abuse was improperly limited. We have consistently held that an expert is permitted to explain in detail the factual basis for his opinion. State v. Duell, 175 W. Va. 233, 332 S.E.2d 246 (1985). As the questioning of Dr. Wyatt began to encompass particular instances of abuse, the prosecution raised the concern that such hearsay evidence should be
admissible only for a limited purpose. The lower court
sustained the prosecution's objection,See footnote 5 5 and Dr. Wyatt
subsequently testified concerning the general nature of the
comments by the Appellant regarding her relationship with Mr.
Brown. Thus, the lower court did not preclude Dr. Wyatt from
testifying regarding the factual underpinnings of his
conclusions. The court simply noted that any hearsay evidence
which was encompassed therein was being introduced only for the
limited purpose of allowing Dr. Wyatt to educate the jury
regarding the foundations for his medical conclusions. This same
type of exchange transpired regarding medical records, and the
lower court noted that such hearsay evidence could not be used as
direct evidence of Mr. Brown's abusive behavior, but could be
used to build the foundation for Dr. Wyatt's conclusions.
consistently maintained that rulings on the admissibility of
evidence are largely within the sound discretion of a trial
court. In syllabus point two of State v. Franklin, 191 W. Va.
727, 448 S.E.2d 158 (1994), we explained:
" 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955)." Syl. pt. 4, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983).
"[E]videntiary decisions of a trial court are entitled to substantial deference." McDougal v. McCammon, 193 W.Va. 229, 235 n.5, 455 S.E.2d 788, 794 n.5 (1995)
We have previously permitted introduction of evidence regarding the battered spouse syndrome, and the lower court in the present case admitted substantial evidence on this issue offered by the Appellant. In syllabus point five of State v. Steele, 178 W. Va. 330, 359 S.E.2d 558 (1987), for instance, we held that "[e]xpert testimony can be utilized to explain the psychological basis for the battered woman's syndrome and to offer an opinion that the defendant meets the requisite profile of the syndrome."See footnote 6 6 Conferring the right of introduction of evidence upon a defendant, however, does not translate into authority to engage in an unlimited foray into the issue. The court still possesses the right to limit the testimony; when it becomes duplicative, the court may refuse to accept additional witnesses. Rule 403 of the West Virginia Rules of Evidence provides:
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
See State v. Ludwick, 197 W.Va. 70, 475 S.E.2d 70 (1996);
State v. Brown, 179 W.Va. 681, 371 S.E.2d 609 (1988).
court in the present case exercised its right to limit testimony
in that manner. We find no clear error in the lower court's
decisions regarding admissibility of evidence, and we therefore
affirm those decisions.
REMARKS OF PROSECUTION
contends that she was prejudiced by certain remarks of the
prosecution. A prosecutorial reference to the absence of physical
symptoms to indicate that Mr. Brown had hurt the Appellant and
comments regarding whether the Appellant drank beer the day of
the incident were not objected to at trial. The Appellant now
asserts that this Court could utilize the plain error doctrine to
correct errors to which no objections were made, we do not find
that the use of the plain error doctrine is justified in this
We addressed the issue of absence of objection in State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), and observed the following:
a defendant who has not proffered a particular claim or defense
in the trial court may not unveil it on appeal. Indeed, if any
principle is settled in this jurisdiction, it is that, absent the
most extraordinary circumstances, legal theories not raised
properly in the lower court cannot be broached for the first time
on appeal. We have invoked this principle with a near religious
Id. at 597, 476 S.E.2d at 544. "Exceptions must be few
and far between and, therefore, an appellate court's discretion
should not be affirmatively exercised unless the equities heavily
preponderate in favor of such a step. These principles are
embodied in our 'plain error' rules." Id. at 598, 476 S.E.2d
at 545 (Footnote omitted.)
see nothing improper about the prosecutor's reference to evidence
which had been introduced at trial regarding the absence of
physical signs of abuseSee
footnote 7 7 and to the issue of whether the
Appellant had been drinking on the day of the murder. Both issues
had been dealt with at trial, and evidence regarding those
matters had been submitted to the jury.
In addition to
the comments which received no objection at trial, the Appellant
also alleges that she was prejudiced by the prosecutor's remark
that "forty days is not a punishment," referring to the
possible consequences of a not guilty by reason of insanity
verdict. The Appellant's attorney objected, and the lower court
informed the prosecutor that he was not permitted to address the
length or duration of a punishment, except as contained in the
court's charge on first degree murder. Appellant's counsel did
not request that the jury be admonished to disregard the remark.
also alleges that she was prejudiced by prosecutorial
characterization of the insanity defense as potentially a
"license to kill." The prosecution argues that such
comment was intended only to stress the absence of any convincing
evidence that the Appellant had lapsed into a psychosis prior to
shooting Mr. Brown. A similar comment, "if 40 million people
are battered and we send out a message that this is a
defense," is also raised as prejudicial. Objections to these
comments were overruled.
In syllabus point five of State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995), we explained that "[a] judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus point six elaborates as follows:
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
evaluation of the allegedly improper remarks by the prosecution
and the effect of those remarks upon the jury, we find that the
comments do not warrant reversal. We do not believe that the
remarks "clearly prejudice[d] the accused or result[ed] in
ALLEGED INSTRUCTIONAL ERROR
The Appellant also asserts that the trial court inappropriately modified Appellant's instructions number eleven and twenty, both regarding the consequences of a verdict of not guilty by reason of mental illness, pursuant to West Virginia Code § 27-6A-3 (1992).See footnote 8 8 The instructions attempted to inform the jury of the length of the court's jurisdiction
over a defendant if found not guilty by reason of insanity and
the maximum period of incarceration. Syllabus point two of State
v. Nuckolls, 166 W. Va. 259, 273 S.E.2d 87 (1980), provides that
a defendant relying upon the defense of insanity is entitled to
In any case where the defendant relies upon the defense of insanity, the defendant is entitled to any instruction which advises the jury about the further disposition of the defendant in the event of a finding of not guilty by reason of insanity which correctly states the law; however, when the court gives an instruction on this subject which correctly states the law and to which the defendant does not object, the defendant may not later assign such instruction as error.
The difficulty in determining the appropriate instruction at trial apparently emanated from the fact that West Virginia Code § 27-6A-3 was amended in 1995. The Appellant apparently encountered difficulty in determining whether the 1995 amendments or the prior version of the statute applied to the Appellant's case. In State v. Smith, 198 W.Va. 702, 482 S.E.2d 687 (1996), we addressed the applicability of the 1995 amendments
to section 27-6A-3 to a case in which the alleged illegal act
had occurred prior to the 1995 amendments. Id. at 707-708, 482
S.E.2d at 692-93. We held that ex post facto principles
preventing the application of a law passed after the commission
of an offense which increases the punishment, lengthens the
sentence or operates to the detriment of the accused were not
violated by the application of the 1995 version. Id. at 714, 482
S.E.2d at 699. In Smith, we found that it was the time of
acquittal, finding the defendant not guilty by reason of mental
illness, that determined the applicability of the statute, rather
than the time of the commission of the illegal act. Id. at 713,
482 S.E.2d at 698.
In the present
case, the Appellant determined, incorrectly under the Smith
decision,See footnote 9 9
that reliance should be placed upon the former version of the
statute. Appellant's counsel then specifically requested
alterations to instruction eleven, deleting language based upon
the 1995 version. Instruction twenty, also setting forth the
involuntary commitment information, was amended by the lower
court in an attempt to conform the instruction to the 1995
version of the statute.
The lower court could have alleviated the uncertainty surrounding these instructions by specifying which of the two versions of the statute would be applied to the Appellant's case. As it transpired, however, the instructions were ultimately provided to the
jury explaining the general nature of the commitment
proceedings and properly conveying information in the context of
the 1995 version. We find no error in the lower court's attempt
to render the instructions consistent with the law. The Appellant
requested the alteration of instruction eleven, and the court
properly altered instruction twenty to comport with the statutory
guidance provided in the 1995 version of the statute. We
therefore affirm the decision of the lower court regarding the
FOURTH AMENDMENT ISSUES
The Appellant contends that she was subjected to an unreasonable search when police swabbed her hands and face for traces of gunpowder residue. The police did not have a warrant, and the Appellant, through motion in limine, sought suppression of evidence of gunshot residue found on her hands and face based upon the failure of the police to obtain either a warrant or the Appellant's knowing and intelligent consent. During a hearing on the motion to suppress, Detective Gene Hollingsworth testified that the Appellant was advised of her Miranda rights following arrest and that the Appellant appeared to understand everything that was explained to her. The Appellant informed the police that she would not give a statement without an attorney. Approximately ten minutes later, the Appellant's hands and face were swabbed for gunpowder residue. No attempt was made to obtain her consent. Lieutenant Samuel Scheidler testified that "gunshot residue is very tenable." He continued as follows:
It's very perishable, can actually fall off the hands, face. And without taking it in a timely manner, it can actually fall off by itself without the act of wiping, although that would speed the process up. And it's actually (sic) to collect it as soon as possible after the act of firing a weapon to save it.
The lower court denied the Appellant's motion to suppress,
ruling that the State had demonstrated sufficient circumstances
to justify the taking of the evidence without a warrant.
This ruling is consistent with the general recognition that superficial examination of a lawfully arrested individual for evidence of gunpowder residue is not violative of the Fourth Amendment prohibition against unreasonable searches and seizures. In Cupp v. Murphy, 412 U.S. 291 (1973), the United States Supreme Court upheld the taking of fingernail scrapings from a murder suspect where police had noted possible blood stains on the hand and had otherwise established probable cause to arrest.
the existence of probable cause, the very limited intrusion
undertaken incident to the stationhouse detention, and the ready
destructibility of the evidence, we cannot say that this search
violated the Fourth and Fourteenth Amendments.
Id. at 296.See footnote 10 10
We agree with the decision of the lower court to permit the introduction of evidence obtained as a result of the swabbing for gunpowder residue, and we therefore affirm that decision.See footnote 11 11
ALLEGATION THAT VERDICT IS CONTRARY
TO THE WEIGHT OF THE EVIDENCE
asserts that the verdict of guilty of second-degree murder is
contrary to the weight of the evidence. The Appellant appears to
believe that her introduction of evidence regarding her mental
illness and evidence regarding the battered spouse syndrome
should have combined to prohibit of verdict of guilty on the
second-degree murder charge.
The Appellant made a valiant effort to convince the jury that her mental trauma rendered her incapable of conforming her actions to the requirements of the law. However, the State presented evidence, through the testimony of Dr. Ralph Smith, an expert in forensic
psychiatry, that the Appellant may have "some
exaggeration of symptoms and problems." Although Dr. Smith
diagnosed the Appellant as suffering from major depression, as
well as dependent personality disorder, he rejected to notion
that she displayed symptoms of battered spouse syndrome and
dispelled the suggestion that she was psychotic when she shot Mr.
point three of State v. Williams, 198 W.Va. 274, 480 S.E.2d 162
(1996), we specified:
criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court
must review all the evidence, whether direct or circumstantial,
in the light most favorable to the prosecution and must credit
all inferences and credibility assessments that the jury might
have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as
the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court.
Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which
the jury could find guilt beyond a reasonable doubt. To the
extent that our prior cases are inconsistent, they are expressly
overruled." Syl. pt. 3, State v. Guthrie, 194 W.Va. 657, 461
S.E.2d 163 (1995).
When viewing the evidence in the manner mandated above, we
find that the jury could have discounted the testimony of the
Appellant and her witnesses and could have concluded beyond a
reasonable doubt that the Appellant was sane when she shot Mr.
Based upon the
foregoing, the examination of the record, and arguments of
counsel, we affirm the decision of the lower court.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992) ("Per Curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta .... Other courts, such as many of the United States Circuit Court of Appeals, have gone to non-published (not-to-be- cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.")
Footnote: 2 2 The lower court found no evidence of self-defense and refused to give an instruction
regarding self-defense. The Appellant does
not assign error to the lower court's refusal to give a
self-defense instruction, and she has therefore abandoned this
potential assignment of error. See State v. LaRock, 196 W.Va.
294, 302, 470 S.E.2d 613, 621 (1996) ("Although we liberally
construe briefs in determining issues presented for review,
issues which are not raised ... are not considered on
Footnote: 3 3 Dr. Wyatt also explained that "a battered spouse syndrome is a cluster of types of thinking and feeling and acting by women, 99.9 percent of the time, in which they repeatedly get into bad relationships." Dr. Wyatt testified that such women "feel unable to break free from that abuse."
4 4 The
exchange ensued as follows:
Mr. Dillon: "Well, when I got to the
apartment, Ms. Riley opened the door of the apartment to let me
in and she was in a very nervous, upset state. Kind of crying.
And I told her I -- you know, that Donna had called me and I had
come to take her home, take her back to their apartment. And she
stated to me that -- oh, she stated to me that Mr. Brown had
Mr. Martorella: "Objection."
The Court: "You may state what you saw
and observed. The objection is sustained. Not what has been told
to you except as a preliminary matter."
After a bench conference, Appellant's counsel
stated: "I'll ask a couple more questions to clear it up. I
think we can change the nature of how it's offered."
Appellant's counsel then proceeded to elicit
information from Mr. Dillon regarding taking the Appellant away
from that apartment, without revealing any specific comments made
by the Appellant regarding the underlying domestic disturbance.
Footnote: 5 5 The Appellant had composed a history of her life with the decedent. The lower court ruled that although Dr. Wyatt could use the history as a basis for his conclusions, the history was "not admissible into evidence otherwise being - - would not be admissible straight in as evidence."
6 6 Evidence
of battered spouse syndrome has been found to be admissible for a
criminal defendant in West Virginia for any of three purposes.
First, it can be used to determine the defendant's mental state
where self-defense is asserted. See State v. Dozier, 163 W. Va.
192, 197-98, 255 S.E.2d 552, 555 (1979). Second, it can be used
to negate criminal intent. See State v. Lambert, 173 W. Va. 60,
63-64, 312 S.E.2d 31, 35 (1984). Finally, in State v. Wyatt, 198
W. Va. 530, 482 S.E.2d 147 (1996), we discussed the potential use
of the battered spouse syndrome "to establish either the
lack of malice, intention, or awareness, and thus negate or tend
to negate a necessary element of one or the other offenses
charged." Id. at 542, 482 S.E.2d at 147, 159. The discussion
in Wyatt, however, was rather cryptic, and was neither expounded
upon nor elevated to the syllabus.
Footnote: 7 7 The evidence at trial indicated that none of the arresting officers discerned any physical signs of abuse at the time of the murder. A police records clerk who had examined the Appellant on the day of the murder testified that she found no cuts or bruises on the Appellant. The Appellant introduced the testimony of Dr. Susan Apgar indicating that Dr. Apgar had noticed bruises on the Appellant's upper right thigh and on her lower left extremity on October 15, 1994, ten days after the murder. The prosecution attempted to discount that evidence by emphasizing the ten day passage of time between the murder and the moment at which these two bruises were documented by a physician. The evidence also indicated that these bruises could be only seven days old.
West Virginia Code § 27-6A-3 (1995), provides as follows:
Court jurisdiction over persons found not guilty by reason of mental illness, mental retardation or addiction
(a) After the entry of a judgment of not guilty by reason of mental illness, mental retardation or addiction, the court of record shall determine on the record the offense of which the person otherwise would have been convicted, and the maximum sentence he could have received. The court
shall commit such defendant to a mental
health facility under the jurisdiction of the department of
health, with the court retaining jurisdiction over the defendant
for the maximum sentence period.
If the defendant is released from an inpatient mental health
facility while under the jurisdiction of the court, the court may
impose such conditions as are necessary to protect the safety of
Footnote: 9 9 We recognize that difficulty facing counsel in determining the applicable statute. Smith was not decided until subsequent to the determinations which were made in this case.
Footnote: 10 10 See State v. Kyger, 787 S.W.2d 13 (Tenn. Crim. App. 1989) (permitting gathering of physical evidence from person arrested with probable cause, including handswabs, fingerprints, and photographs admissible as evidence legally obtained incident to arrest); Strickland v. State, 275 S.E.2d 29 (Ga. App.), cert. denied 454 U.S. 882 (1981)( permitting
swabbing of hands for gunshot residue); State v. Parsons, 513 S.W.2d 430 (Mo. 1974)(permitting warrantless swabbing where officers knew that microscopic particles of dynamite would vanish within one to two days or as a result of defendant washing his hands.)
Footnote: 11 11 We also note that the Appellant relied upon the battered woman's syndrome and other evidence of mental incapacity and upon self-defense as a defense at trial. She never forwarded the contention that she was not the person who fired the weapon. Thus, the gun powder residue evidence was in no way inconsistent with her position at trial.