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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1999 Term
STATE OF WEST VIRGINIA,
Plaintiff below, Appellee,
Defendant below, Appellant.
Appeal from the Circuit Court of Logan County
Hon. Roger Perry
Case No. 97-F-105-P
Submitted: October 6, 1999
Filed: December 3, 1999
Darrell V. McGraw, Jr., Esq.
Todd A. Mount, Esq.
L. Scott Briscoe, Esq.
David P. Cleek, Esq.
Shaffer & Shaffer
Senior Deputy Attorney General
Madison, West Virginia
Charleston, West Virginia
Attorney for Appellant
Attorneys for Appellee
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
JUDGE ROBERT B. STONE, sitting by special assignment.
JUSTICE SCOTT did not participate in the decision of the Court.
SYLLABUS BY THE COURT
1. W.Va. Code, 49-5-17(d) , does not authorize a court to permit
juvenile law enforcement records to be used in a criminal case as evidence in chief in the
State's case. Syllabus Point 1, State v. Van Isler, 168 W.Va. 185, 187, 283 S.E.2d 836, 851
2. W.Va. Code, 49-5-17  does not prohibit the use of juvenile law
enforcement records against a defendant in a criminal case as rebuttal or impeachment
Starcher, Chief Justice:
This is a murder case where the circuit court allowed the appellant's juvenile
justice records to be obtained and used by the prosecution against the appellant. We
conclude that because the records were used for purpose of impeachment during the cross-
examination of a witness for the appellant, the circuit court did not err. We affirm the
Facts & Background
The appellant, Casey Rygh, was convicted in the Circuit Court of Logan
County of two felony murder counts and of conspiracy to commit aggravated robbery.
Prior to trial, the court granted, over the appellant's objection, the prosecution's
motion to bifurcate the trial, and to conduct a separate proceeding on the mercy issue, if the
appellant were convicted on a charge where the jury could consider the issue of mercy.See footnote 1
Additionally, the court granted over the appellant's objection the prosecution's motion to
unseal and furnish to the prosecution the appellant's juvenile law enforcement records, so
that the records and evidence derived from them might be available for possible use against
the appellant during a possible bifurcated mercy phase of the trial.
Following the jury's verdict convicting the appellant, a mercy phase
proceeding was conducted before the same jury. The jury returned a recommendation of
mercy on one felony murder count, and no mercy on the other felony murder count. The
judge sentenced the appellant in accordance therewith.
In his petition for appeal, the appellant raised a number of issues, and inter alia
assigned as error (1) the bifurcation of his trial; and (2) the court's permitting the unsealing
and use of the appellant's juvenile records by the prosecution in connection with the mercy
phase of the bifurcated trial.
We accepted the appeal on one issue only -- the issue of the court's ruling with
respect to the appellant's juvenile records. We therefore proceed on the premise that
bifurcation itself was proper, and we address only the issue of whether the court erred with
respect to its ruling regarding the use of the appellant's juvenile records in connection with
the bifurcated mercy phase.See footnote 2
The specifics of the direct use of the appellant's juvenile records at trial are as
follows. The thrust of the appellant's evidence in the penalty phase was that he had a
dysfunctional home life. The appellant testified and described how he had grown up in a
broken home and was poorly educated. The appellant admitted in response to a question
from his own lawyer that he had gotten into fights as a juvenile. His mother testified that he
was nevertheless a good kid.
The prosecution used a copy of a juvenile petition from the appellant's juvenile
justice records in cross-examination of the appellant's mother -- to demonstrate that despite
her assertions that he was a good kid, she had filed a petition for delinquency against him.
The petition itself was apparently not introduced into evidence.
Standard of Review
We are reviewing the circuit court's legal determination that the protection that
West Virginia law gives to juvenile records did not bar the court from allowing the
prosecution to obtain and use the appellant's juvenile records. This determination is one of
law, and we review the court's ruling de novo.
The principal statutory provision regarding the confidentiality of juvenile law
enforcement records is found at W.Va. Code, 49-5-17 .See footnote 3
We stated in State v. Van Isler, 168 W.Va. 185, 283 S.E.2d 836 (1981):
W.Va. Code, 49-5-17 , is part of a comprehensive
legislative scheme relating to the handling, disposition and
rehabilitation of juvenile offenders. Part of the purpose and
intent behind that scheme is to protect the anonymity of juvenile
offenders and to assure that they are accorded a fresh start,
unhaunted by past trouble, when they reach their majority. This
purpose runs throughout Chapter 49 of the Code. The
Legislature has used direct forceful language to effectuate this
purpose. W.Va. Code, 49-7-1 , for example, provides in
part: All records of the state department, the court and its
officials, law-enforcement agencies and other agencies or
facilities concerning a child as defined in this chapter shall be
kept confidential and shall not be released[.]
168 W.Va. at 186, 283 S.E.2d at 837 (citations omitted).See footnote 4
In Syllabus Point 1 of Van Isler, this Court stated (with emphasis added):
W.Va. Code, 49-5-17(d) , does not authorize a court to
permit juvenile law enforcement records to be used in a criminal
case as evidence in chief in the State's case.
Thus, Van Isler (a salutary case that is strongly protective of the confidentiality
of juvenile records) recognizes the rule that prohibits the wielding of juvenile records as a
sword in the prosecution's case-in-chief.
But Van Isler also, by clearly limiting its articulation of this rule to the
prosecution's case-in-chief, recognizes that the rule does not prohibit the use of juvenile
records as a shield -- to rebut or impeach evidence that is presented by a criminal
Thus, the logical corollary of Syllabus Point 1 from Van Isler is, and we today
hold that, W.Va. Code, 49-5-17  does not prohibit the use of juvenile law enforcement
records against a defendant in a criminal case as rebuttal or impeachment evidence.See footnote 5
The narrow issue then presented in the instant case is whether the prosecution's
use of the appellant's juvenile records was a part of the prosecution's case-in-chief, or as
Case-in-chief is that part of a trial in which the party with the initial burden
of proof presents his evidence before he rests. Black's Law Dictionary, 1990. Rebuttal
evidence is evidence given to explain, repel, counteract or disprove facts given in evidence
by the opposing party. . . . [e]vidence which is offered by a party after he has rested his case
and after the opponent has rested in order to contradict the opponent's evidence. Id.
Impeach means to dispute or contradict a witness' testimony. Id.
In the instant case, the use of the appellant's juvenile records at trial was to
cross-examine and impeach the appellant's mother's assertions about the appellant. This was
rebuttal or impeachment that was specifically directed to contradicting the mother's
assertions about the appellant. As such, the use of the juvenile records was not prohibited.See footnote 6
The trial court did not err in its rulings with respect to the appellant's juvenile
records. Consequently, we affirm the appellant's conviction.
1If the jury renders a verdict convicting a defendant of first degree murder, and
recommends mercy, the defendant is sentenced to life imprisonment, but is eligible for parole
consideration in 15 years. If mercy is not recommended, the defendant is not eligible for
parole. W.Va. Code, 62-3-15 . In State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613
(1996), this Court authorized the discretionary bifurcation of a murder trial into a guilt
phase and a mercy phase, as a matter of trial management procedure. We also recognized
that [i]t may well be true that unitary trials are adequate and appropriate in most cases.
We observe that there is nothing in LaRock that creates, merely by bifurcating a
murder trial, a qualitative change in or a substantive expansion of the scope or type of
evidence that the prosecution may put on against a defendant -- as compared to that evidence
that would be admissible in a unitary trial. Stated another way, discretionary trial-
management bifurcation does not itself alter or expand the scope of admissible prosecutorial
evidence to include evidence that has been historically inadmissible in murder cases in this
State. (Because bifurcation is a matter of trial court discretion, such an expansion could
raise, inter alia, equal protection and due process issues, if one defendant were tried in a
bifurcated proceeding with relaxed evidentiary limitations -- as opposed to another
defendant, who is tried in a unitary proceeding.)
We recognize, of course, that the evidentiary opportunities that a defendant may have
in a mercy phase, as a result of bifurcation, may in turn affect the evidentiary limitations of
the prosecution in rebuttal or impeachment. However, the opportunity for prosecution
rebuttal or impeachment in a bifurcated mercy phase is not authorization for the prosecution
to use unfairly prejudicial, extraneous, remote, or inflammatory evidence -- even in rebuttal
or impeachment. See note 2 infra. We also observe that the availability of discretionary
trial-management bifurcation in a West Virginia murder case does not mean that the body of
case law that has developed in capital punishment jurisdictions around death-
penalty/sentencing-phase proceedings is now applicable to the trial of West Virginia murder
We do not believe that conceptually there is any separate or distinctive burden of
proof or burden of production associated with the jury's mercy/no-mercy determination
in a bifurcated mercy phase of a murder trial, if the court in its discretion decides to bifurcate
the proceeding. In making its overall verdict, in a unitary trial or a bifurcated trial, the jury
looks at all of the evidence that the defendant and the prosecution have put on -- and if the
jury concludes that an offense punishable by life imprisonment was committed, then the jury
determines the mercy/no-mercy portion of its verdict, again based on all of the evidence
presented to them at the time of their determination. We would anticipate that a defendant
would ordinarily proceed first in any bifurcated mercy phase. We emphasize that the
possibility of bifurcation of a mercy phase is not an open door to the expansion of the ambit
of evidence that the prosecution may put on against a defendant, in the absence of the
defendant opening that door to permit narrowly focused impeachment or rebuttal evidence
from the prosecution.
2In the trial transcript of the mercy phase proceedings furnished to this Court, there
was little objection made by the appellant's trial counsel to the evidence presented by the
prosecution during the mercy phase. The appellant's appellate counsel has filed a pleading
with this Court indicating that there may have been a hearing (for which the court reporter
has neither recalled nor located a transcript) in which the appellant raised admissibility
objections to some or all of the evidence that was presented against the appellant in the mercy
phase. We proceed upon the record before us, and will not presume the existence of
objections that are not documented.
Specifically, during the mercy phase the prosecution presented (apparently
unobjected-to) testimonial evidence regarding prior assaults and drug use by the appellant.
This evidence may have been developed as a result of the prosecution's access to the
appellant's juvenile records -- or it may have had an independent source. We do not address
the issue of whether this evidence was erroneously admitted.
During the mercy phase of the appellant's trial, the prosecution also introduced
gruesome photos of the victims -- also apparently without a substantive objection by
appellant's counsel. State v. Derr, 192 W.Va. 165, 178-79, 451 S.E.2d 731, 744-45 (1994)
reiterated this Court's awareness of the potential for hideous, ghastly, horrible, or dreadful
photographs to arouse passion and cause the jury to [act] on improper grounds, a concern
that is applicable to both phases of a bifurcated murder trial. See note 1 infra. However, in
the instant case we do not address the issue of the admissibility of the victims' photographs,
as it is not before us.
3We omit quotation and detailed exegis of this lengthy statute, which was most
recently amended in 1997, but not in ways that affect our analysis in the instant case.
4In State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995), this Court examined a
discovery request for confidential counseling records of a juvenile victim. We held that if
an accused can show the relevance of such statutorily protected records, they may be
discovered and used to impeach a prosecuting witness' credibility. The rationale of the Roy
case is that statutory protections restricting the disclosure of confidential records information
may not operate to unconstitutionally impede an accused's constitutional right to a criminal
defense, including the right to fairly cross-examine witnesses.
5This is not to say that the lack of a statutory prohibition automatically makes such
records admissible. They are, of course, subject to all other rules of admissibility.
6The circuit court properly issued a limiting instruction requiring that the appellant's
records not be disclosed or used except in connection with the appellant's criminal trial,
when it permitted the prosecution to unseal the records before trial.