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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
MARVIN STEVE MILLS,
Defendant Below, Appellant
Appeal from the Circuit Court of Raleigh County
The Honorable John A. Hutchison, Judge
Case No. 99-F-213-H
Submitted: September 21, 2005
Filed: November 17, 2005
Kristen L. Keller
Chief Deputy Prosecuting Attorney Wendy
Beckley, West Virginia
Attorney for the Appellee
for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. The challenging party bears the
burden of persuading the trial court that the juror is partial and subject to
being excused for caused [sic]. An appellate court only should interfere with
a trial court's discretionary ruling on a juror's qualification to serve because
of bias only when it is left with a clear and definite impression that a prospective
juror would be unable faithfully and impartially to apply the law. Syl.
Pt. 6, State v. Miller
, 197 W.Va. 588, 476 S.E.2d 535 (1996).
2. When considering whether to excuse
a prospective juror for cause, a trial court is required to consider the totality
of the circumstances and grounds relating to a potential request to excuse a
prospective juror, to make a full inquiry to examine those circumstances and
to resolve any doubts in favor of excusing the juror. Syl. Pt. 3, O'Dell
, 211 W.Va. 285, 565 S.E.2d 407 (2002).
3. If a prospective juror makes an
inconclusive or vague statement during voir dire
reflecting or indicating
the possibility of a disqualifying bias or prejudice, further probing into the
facts and background related to such bias or prejudice is required. Syl.
Pt. 4, O'Dell v. Miller
, 211 W.Va. 285, 565 S.E.2d 407 (2002).
4. Once a prospective juror has made
a clear statement during voir dire reflecting or indicating the presence
of a disqualifying prejudice or bias, the prospective juror is disqualified as
a matter of law and cannot be rehabilitated by subsequent questioning, later
retractions, or promises to be fair. Syl. Pt. 5, O'Dell v. Miller,
211 W.Va. 285, 565 S.E.2d 407 (2002).
5. Four factors are taken into account
in determining whether improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor's remarks have a tendency to
mislead the jury and to prejudice the accused; (2) whether the remarks were isolated
or extensive; (3) absent the remarks, the strength of competent proof introduced
to establish the guilt of the accused; and (4) whether the comments were deliberately
placed before the jury to divert attention to extraneous matters. Syl.
Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
6. 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. Syl.
Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
7. A defendant who seeks a mistrial
on the ground that the jury has been improperly influenced by prejudicial publicity
disseminated during trial must make some showing to the trial court at the time
the motion is tendered that the jurors have in fact been exposed to such publicity. Syl.
Pt. 4, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
8. If it is determined that publicity
disseminated by the media during trial raises serious questions of possible prejudice,
the court may on its own motion or shall on motion of either party question each
juror, out of the presence of the others, about his exposure to that material. Syl.
Pt. 5, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).
9. 'Rulings on the admissibility
of evidence are largely within a trial court's sound discretion and should not
be disturbed unless there has been an abuse of discretion. State v.
Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).' Syllabus Point 2, State
v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). Syl. Pt. 7, State
v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).
10. Where improper evidence of a nonconstitutional
nature is introduced by the State in a criminal trial, the test to determine
if the error is harmless is: (1) the
inadmissible evidence must be removed from the State's case and a determination
made as to whether the remaining evidence is sufficient to convince impartial
minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining
evidence is found to be insufficient, the error is not harmless; (3) if the
remaining evidence is sufficient to support the conviction, an analysis must
then be made to determine whether the error had any prejudicial effect on the
jury. Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55
(1979), cert. denied, 445 U.S. 904 (1980).
This is an appeal by Mr. Marvin Mills (hereinafter Appellant)
from a conviction in the Circuit Court of Berkeley County of first-degree murder
without the recommendation of mercy. The Appellant contends that the lower court
erred on several issues: by refusing to strike two jurors for cause; by denying
a mistrial after media attended a jury view of the crime scene; by refusing to
individually voir dire jurors regarding the impact of media attention; by allowing
the State to introduce prejudicial testimony regarding the Appellant's character;
and by denying a mistrial when the prosecutor made certain allegedly prejudicial
comments during closing argument. Upon thorough review of the record, briefs,
and applicable precedent, this Court affirms the Appellant's conviction.
I. Factual and Procedural History
The Appellant admits that
he fatally shot Mrs. Pamela Cabe on September 8, 1999, at her employment location,
Richmond Cleaners, in Beckley, West Virginia. The Appellant shot Mrs. Cabe
with a .38-caliber pistol once in the back and once in the head, and Mrs. Cabe
was deceased by the time paramedics arrived at the scene. The Appellant was
ultimately charged with first degree murder, and evidence presented at the
Appellant's first trial indicated that subsequent to the shooting, the Appellant
had walked across the street to smoke a cigarette as emergency vehicles arrived.
The Appellant explained to police officers
that he had gone to Richmond Cleaners to talk with Mrs. Cabe concerning a dispute
between Mrs. Cabe's son and the Appellant's daughter regarding custody of that
couple's child. According to the Appellant, he had intended only to scare Mrs.
Cabe, and he had not gone to the location with the intent to fatally wound her.
During the Appellant's first trial, the defense
attempted to show that the Appellant had acted without premeditation or deliberation.
The State, however, presented evidence indicating that the Appellant had premeditated
the murder. The Appellant had been informed of the results of a custody hearing
involving the mutual grandchild of the Appellant and Mrs. Cabe earlier that day.
After learning of the custody hearing results, the Appellant took his .38-caliber
pistol, drove seven miles to Richmond Cleaners, walked into the business, took
the gun out of a manilla envelope, and shot four bullets, hitting Mrs. Cabe twice. (See
Subsequent to the Appellant's first trial,
a jury found the Appellant guilty of first-degree murder without the recommendation
of mercy. The Appellant appealed that conviction to this Court. On June 24, 2002,
this Court reversed the Appellant's first
conviction. See State v. Mills
, 211 W.Va. 532, 566 S.E.2d 891 (2002).
This Court found reversible error in the lower court's denial of a motion to
strike a prospective juror for cause after that juror had stated that his acquaintance
with an arresting officer would prevent him from acting impartially. Further,
this Court scrutinized the direct examination testimony of a detective, indicating
that the Appellant had expressed anger at the arraignment and at an in-camera
hearing but had failed to express remorse or sorrow over killing Mrs. Cabe.
This Court found that such testimony served as an improper reminder of the
Appellant's failure to testify at trial. Additionally, this Court found reversible
error in the prosecutor's comment during closing argument, indicating that
there were other cases in which a murderer himself had apologized. The Court
concluded that the prosecutor's statement was also an improper reference to
the Appellant's decision not to testify at trial. Mills,
211 W.Va. at
54, 566 S.E.2d at 905.
Based upon the errors in the original trial,
the Appellant was retried by the lower court, and on November 7, 2003, the Appellant
was again convicted of first degree murder without the recommendation of mercy.
Based upon the existence of specific standards of review applicable to each of
the issues raised as assignments of error in this case, those specific standards
of review will be discussed as each assignment of error is analyzed.
A. Failure to Strike Jurors for Cause
The Appellant contends
that the lower court abused its discretion in declining to strike two jurors
for cause and thereby required defense counsel to utilize two peremptory strikes
to remove prospective jurors. The prospective jurors were informed that the
sentence for first degree murder is life in prison. They were thereafter asked
whether they would be able to consider a life sentence with the possibility
of parole eligibility after fifteen years if they found the Appellant guilty
of first degree murder. Two prospective jurors, Ms. Haga and Ms. George, had
answered that question in the negative. When questioned further regarding that
issue, Ms. Haga indicated that she did not personally know the legal consequences
of a mercy recommendation and would follow the instructions of the judge in
making her determinations. She specified that she would consider the options
provided to her by the court, including eligibility for parole. In refusing
to strike Ms. Haga for cause, the lower court explained that the prospective
juror had initially been confused by the questions but that she was affirmative
in her statement. . . that she would consider mercy[.]
Further inquiry after prospective juror Ms.
George revealed that she would consider mercy if there were circumstances
that gave that right. She specified that she would consider parole eligibility
if so instructed by the court and that she would listen to all
the evidence prior to making any decision. The lower court refused to strike
Ms. George for cause, reasoning that she indicated that she would consider
mercy if given the instruction to consider it.
The standard of review to be employed by
this Court in such matters was clearly articulated in syllabus point six of State
v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), as follows:
challenging party bears the burden of persuading the trial court that the juror
is partial and subject to being excused for caused [sic]. An appellate court
only should interfere with a trial court's discretionary ruling on a juror's
qualification to serve because of bias only when it is left with a clear and
definite impression that a prospective juror would be unable faithfully and impartially
to apply the law.
As this Court stated in Miller, [t]he trial court is in the best
position to judge the sincerity of a juror's pledge to abide by the court's
instructions; therefore, its assessment is entitled to great weight. 197
W.Va. at 606, 476 S.E.2d at 553 (citing State v. Phillips, 194 W.Va.
569, 590, 461 S.E.2d 75, 96 ([g]iving deference to the trial court's
determination, because it was able to observe the prospective jurors' demeanor
and assess their credibility, it would be most difficult for us to state conclusively
on this record that the trial court abused its discretion).
On appeal, the State emphasizes that neither
prospective juror was unalterably opposed to making a recommendation of
mercy in any circumstances in which a verdict of guilty is returned. State
v. Williams, 172 W.Va. 295, 307, 305 S.E.2d 251, 263-64 (1983). The State
further points out that the questionnaire did not properly inquire of the willingness
of the prospective jurors to exercise their discretion to determine the penalty, as
required by Williams. 172 W.Va. at 307, 305 S.E.2d at 264.
Elaborating upon the standards articulated
in the above opinions, this Court explained as follows in syllabus point three
of O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
considering whether to excuse a prospective juror for cause, a trial court is
required to consider the totality of the circumstances and grounds relating to
a potential request to excuse a prospective juror, to make a full inquiry to
examine those circumstances and to resolve any doubts in favor of excusing the
Syllabus point four continued as follows: If a prospective juror makes
an inconclusive or vague statement during voir dire reflecting or indicating
the possibility of a disqualifying bias or prejudice, further probing into
the facts and background related to such bias or prejudice is required. However,
syllabus point five clarified that [o]nce a prospective juror has made
a clear statement during voir dire reflecting or indicating the presence
disqualifying prejudice or bias, the prospective juror is disqualified as a
matter of law and cannot be rehabilitated by subsequent questioning, later
retractions, or promises to be fair.
The remarks at issue in the present case
did, at first blush, appear to create an issue of possible bias against the potential
for a recommendation of mercy in a first degree murder case. In the opinion of
this Court, however, the initial responses to the questionnaire were not so clearly
disqualifying as to prevent attempts at explanation, as contemplated by syllabus
point five of O'Dell. On the contrary, the remarks appeared to have been
the result of confusion on the part of the jurors caused by the questionnaire
itself and were of the nature contemplated by this Court in syllabus point four
of O'Dell, to the extent that the responses were inconclusive or vague
and permitted additional inquiry into the basis for the statements. The lower
court, by engaging in modest questioning, was able to ascertain the basis for
Based upon this Court's review of this issue
of prospective jurors and their alleged unwillingness to find the Appellant entitled
to mercy, this Court finds no abuse of discretion by the lower court and affirms
its decision with regard to these prospective jurors. Once the issues surrounding
a potential recommendation of mercy were explained to the prospective jurors,
their responses provided assurance to the court that they were indeed willing
to follow the instructions of the court and to recommend mercy if the circumstances
as proven at trial justified such a result. They demonstrated no bias or prejudice
toward the accused, and the lower court's refusal to strike them for cause
was not in error.
B. Prosecutor's Closing Argument
The Appellant also asserts
that statements made in the prosecutor's closing argument denied the Appellant
due process of law and a fair trial. In initial closing argument, the State
made no remarks concerning the jury's determination of whether to recommend
mercy to the Appellant. In defense counsel's closing, however, defense counsel
acknowledged that I know I'm going to have to address the issue of mercy. Defense
counsel further stated that the final issue that might be decided today
is whether there's going to be a recommendation of mercy. . . . Defense
counsel continued: Life in the penitentiary is a punishment. You are
confined to a cell. Your freedom is completely restricted as to daily routine
and regimen that is given you by the guards. There is the violence, the noise,
the smells. . . . Defense counsel also told the jury that if the Appellant
received a life sentence with the possibility of parole, it's still very
likely that he could die in prison.
Defense counsel also explained factors which
a jury may consider in determining whether to recommend mercy, and the State
contends that such recitation
violated the mandates of West Virginia Code § 62-3-15 (1994) (Repl. Vol.
2005), (See footnote 2)
provides that the jury has discretion to make the determination of whether
mercy should be recommended. In fact, this Court has expressed that under
both statutory and case law, the
recommendation of mercy in a first degree murder case lies solely in the discretion
of the jury. State v. Triplett,
187 W.Va. 760, 769, 421 S.E.2d
511, 520 (1992); see also State v. Miller
, 178 W.Va. 618, 363
S.E.2d 504 (1987). Specifically, defense counsel informed the jury as follows:
it could be said and it's often said that somebody who's shown somebody no mercy
does not deserve mercy themselves. It's said many times. I cannot _ nobody can
_ say that what happened to Pam Cabe that day showed her any mercy, but that
is not what you're here today to judge, and you know that. You know that you
didn't swear an oath to make these determinations, to be a fair juror, in order
to make a judgment like that. You . . . took an oath to give a fair and honest
verdict. . . .
Responding to defense counsel's closing argument
concerning mercy to be shown toward the Appellant, the prosecutor stated as follows
in her rebuttal closing argument:
defense lawyer made a remark about fairness, and we often think of fairness is
that people get what they give, and he said that one might say that, since he
showed his victim no mercy as he gunned her down, then perhaps he should get
no mercy. But, if we were talking fairness _ if we were talking about him getting
what he gave _ we would have the death penalty in the state of West Virginia,
or perhaps. . . .
At that point, counsel for the defense objected to the prosecutor's remarks,
and that objection was overruled. The prosecutor continued:
do not. We do not, so the defendant necessarily is getting mercy. He will get
that life. Oh, I'm sure there are
nasty smells in the prison, and I'm sure it's noisy in prison, but he'll be
able to smell, and he'll be able to hear. And maybe their windows will be small,
but he'll be able to look up at the sky, and his family can visit him.
The prosecutor again mentioned the death penalty and explained to the jury,
over objection by defense counsel, that the legislature of this State has
decided that first degree intentional deliberate premeditated murder will not
result in the death penalty. . . . The prosecutor explained that only
life imprisonment is to be imposed and that it is within the jury's discretion
to grant mercy if it sees fit.
On appeal, the State asserts that the prosecutor's
remarks accurately stated the penalty for first degree murder in this State and
properly rebutted the defense counsel's statements concerning mercy. The State
maintains that there is nothing inappropriate about pointing out that although
the Appellant may have to endure what defense counsel characterized as nasty
smells or limited sights in prison, he would indeed get to continue to live.
In syllabus point six of State v. Sugg,
193 W.Va. 388, 456 S.E.2d 469 (1995) this Court articulated the factors to be
examined when analyzing an alleged prejudicial prosecutorial remark, as follows:
factors are taken into account in determining whether improper prosecutorial
comment is so damaging as to require reversal: (1) the degree to which the prosecutor's
remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the remarks, the
strength of competent proof introduced to establish the guilt of the accused;
and (4) whether the comments were deliberately placed before the jury to divert
attention to extraneous matters.
Syllabus point five of Sugg clarified that not every improper prosecutorial
remark will result in reversal of a conviction: 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. In the present case, the State maintains that examination
of the Sugg factors indicates that reversal is not required and that
the prosecutor's arguments, even if deemed improper, did not result in manifest
In State v. Graham, 208 W.Va. 463,
541 S.E.2d 341 (2000), this Court also addressed the principles by which prosecutorial
comments must be judged. This Court stated as follows:
In reviewing allegedly improper
comments made by a prosecutor during closing argument, we are mindful that [c]ounsel
necessarily have great latitude in the argument of a case, State v.
Clifford, 58 W.Va. 681, 687, 52 S.E. 864, 866 (1906) (citation omitted),
and that [u]ndue restriction should not be placed on a prosecuting attorney
in his argument to the jury. State v. Davis, 139 W.Va. 645, 653,
81 S.E.2d 95, 101 (1954),overruled, in part, on other grounds, State
v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955). Accordingly, [t]he discretion
of the trial court in ruling on the propriety of argument by counsel before the
jury will not be interfered with by the appellate court, unless it appears that
the rights of the complaining party have been prejudiced, or that manifest
injustice resulted therefrom. Syllabus Point 3, State v. Boggs,
103 W.Va. 641, 138 S.E. 321 (1927).
208 W.Va. at 468, 541 S.E.2d at 346.
The prosecutor's comments in the present
case were extremely unconventional to the extent that the prosecutor's intent
was apparently to equate life without mercy to mercy. In
other words, because the Appellant was not being subjected to the death penalty,
mercy had already been tendered. That is a drastic mischaracterization of the
concept of mercy and was clearly designed to persuade the jury that the Appellant
was already getting one form of mercy and should not be granted additional mercy
by the jury. We therefore find that the prosecutor's remarks in the present case
were clearly in error. Such a reference to the absence of the death penalty as
constituting mercy has no place in the closing arguments of any prosecutor and
should not be repeated.
However, while this Court might reverse a
conviction on this ground in some circumstances, we find that within the particular
circumstances of the present case, no clear prejudice or manifest injustice resulted
from the prosecutor's remarks. This Court has consistently recognized that not
all improper prosecutorial comments will result in a reversal of a conviction. Sugg,
193 W.Va. at 405, 456 S.E.2d at 486. An examination of the factors identified
in Sugg reveals that the conviction in the case should not be reversed.
The remarks were of limited duration and were not extensive or overly coercive
toward the jury.
There is no indication that the comments were placed before the jury to divert
the jury's attention to extraneous matters. Finally, syllabus point five of Sugg, quoted
above, instructs that remarks which do not clearly prejudice the accused
or result in manifest injustice will not trigger reversal of a conviction.
193 W.Va. at 393, 456 S.E.2d at 474. We find no clear prejudice or manifest
injustice for the reasons discussed above, as well as the fact that this was
actually the second jury that reviewed the evidence against the Appellant and
convicted him without the recommendation of mercy. The lower court also found
that these prosecutorial remarks were, to at least some extent, invited by
defense counsel's statements. Under the totality of circumstances, we find
that the jury would have come to the conclusion of guilty without the recommendation
of mercy even if counsel had not made these ill- advised statements regarding
the death penalty and mercy.
C. Media Participation in Jury View
The Appellant also asserts
that the lower court committed reversible error by denying a motion for a mistrial
and a poll of the jury after the media appeared at the jury view of the crime
scene and published a photograph in the newspaper showing the backs of some
jurors as they walked near the crime scene. Rule 8.07 of the West Virginia
Trial Court Rules allows the news media to be present at judicial proceedings
open to the public and requires that news media personnel and equipment be
situated in a manner which is not disruptive of the proceedings. However, Rule
8.10 of the Trial Court Rules prohibits the publishing of any material in which a juror's face is show or a juror's identity is otherwise discernable, unless there is prior approval by a judge.
When defense counsel moved for a mistrial
based upon media presence at the crime scene, the court denied that motion, explaining
There has been no showing in
my mind of prejudice, no showing of a taint. . . to the jury, and I do not believe
that the presence of camera folk in this courtroom or at the jury (view) scene
is sufficient to warrant my granting a mistrial in this case.
As the jurors are aware that
those camera folks has an interest and were out at the jury view, they are aware,
under the rules, that they're in the courtroom. So they understand that the media
is interested in the case, and the First Amendment clearly requires that we make
allowance for the presentation of public information.
I don't believe there's been
sufficient showing of . . . taint or prejudice, and I'm going to deny your motion.
. . .
When the jury photograph, showing only the
backs of the jurors, appeared in the local newspaper, defense counsel asked the
lower court to poll the jury regarding the impact of the media presence at the
jury view. The lower court did not permit the polling of the jury, explaining
[T]here is in the law a presumption
of regularity with regard to the instructions I've given the jury. And I've instructed
the jury not to read the newspaper, not to listen to the radio and not to watch
television. That being the case, I can presume, in the absence of evidence to
the contrary, that they've not seen that
picture and that they're not aware that that picture is in there.
two, I've looked at the newspaper again, and I personally can't identify any
of the jurors although I know some of them. . . . But there is no indication
that any of these jurors have been affected by this.
The State asserts that the lower court properly
determined that members of the media were not within the crime scene and that
their presence was inconsequential. The State also contends that the lower court
correctly decided not to poll the jury concerning the newspaper photograph since
there was no reason to believe that the jurors had seen the photograph or otherwise
been affected by its presence in the newspaper.
The record reveals that the media did not
actually enter the crime scene. The press coverage was conducted outside the
murder scene, in a public area outside the dry cleaner business in which the
victim was shot. There is nothing in the record to support a claim that the jury
was in any manner annoyed, distracted, or confused due to the presence of the
press outside the crime scene.
This Court has indicated on numerous occasions
that the decision to declare a mistrial is a matter within the sound discretion
of the trial court. Williams, 172 W.Va. at 304, 305 S.E.2d at 260 (citing State
v. Craft, 131 W.Va. 195, 47 S.E.2d 681 (1948)). In
fact, [a] trial court is empowered to exercise this discretion only when
there is a 'manifest necessity' for discharging the jury before it has rendered
its verdict. Id.
In syllabus point four of Williams,
this Court explained as follows: A defendant who seeks a mistrial on the
ground that the jury has been improperly influenced by prejudicial publicity
disseminated during trial must make some showing to the trial court at the time
the motion is tendered that the jurors have in fact been exposed to such publicity. In
syllabus point five of Williams, this Court continued as follows: If
it is determined that publicity disseminated by the media during trial raises
serious questions of possible prejudice, the court may on its own motion or shall
on motion of either party question each juror, out of the presence of the others,
about his exposure to that material. This Court ultimately determined in Williams that
the article published by the media was possibly prejudicial to the defendant.
However, this Court stated that [w]e do not think that prejudice to the
accused can be presumed from the mere opportunity during trial to read or to
hear about objectionable media reports. 172 W.Va. at 304, 305 S.E.2d at
Following the standards articulated in Williams,
it does not appear in the present case that the media presence raised serious
questions of possible prejudice. On the contrary, we agree with the finding
of the lower court that such presence, under these particular circumstances,
was inconsequential. The myriad of cases dealing with the effects
of media attention upon a jury concentrate upon prejudicial publicity.
It is prejudicial publicity, something which could cause the jurors
to have an unfavorable impression of a defendant, which raises questions of
effects upon the jury. In State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258
(1981), for instance, this Court found that probable prejudice did not exist
since the publicity at issue was not inherently prejudicial. In the absence
of other evidence of actual or probable prejudice from a newspaper article
which is not inherently prejudicial, we will not find an abuse of discretion
in the trial court's refusal to poll the jury on the question of prejudicial
publicity. 168 W.Va. at 43-44, 282 S.E.2d at 275.
In State v. Nixon, 178 W.Va. 338,
359 S.E.2d 566 (1987), this Court explained as follows:
it is true that the influence of publicity may be of such a nature as to require
a mistrial, there are no hard and fast rules to be followed in making such a
determination. Williams I, 160 W.Va. 19, 230 S.E.2d 742. Each case turns
on its individual circumstances such as the content and context of the publicity
and how the jury is exposed to the publicity. Id.
178 W. Va. at 341, 359 S.E.2d at 569. As the Kentucky court recognized in Lucas
v. Commonwealth, 840 S.W.2d 212, 215 (Ky. App.1992), [w]e live in
a time and society where the news media reports freely. It is unrealistic to
expect to completely sanitize a trial and jury. . . .
In the present case, we conclude that the
lower court was not required to question the jurors about exposure to the media,
either through media attention at the jury view of the crime scene or through
publication of a photograph of that jury view in the newspaper. We therefore
find no abuse of discretion in failing to order a jury poll to inquire about
the effects of this media presence, and we find no abuse of discretion in failing
to declare a mistrial.
D. Testimony Regarding Victim's Fear of the Appellant
The Appellant further claims
that the lower court abused its discretion by permitting a state's witness
to testify that the victim was afraid of the Appellant. The Appellant contends
that such testimony was prejudicial to the Appellant and in violation of West
Virginia Rule of Evidence 404(a)(1), (See
prohibiting the introduction of character evidence
for the purpose of proving that the Appellant acted in conformity therewith.
The State had asked the victim's daughter whether the victim had expressed
a state of mind concerning the Appellant. The daughter then stated that her
mother was very much afraid of Marvin Mills. Defense counsel objected,
and the State responded that the testimony was
being offered to show the victim's state of mind and rebut the Appellant's
statement that the victim smirked at him.
On appeal to this Court, the State contends
that evidence regarding the victim's expression of her state of mind was not
Rule 404 evidence of the Appellant's character; rather, it was relevant evidence
submitted to show the victim's state of mind and the absence of provocation by
the victim. By the time of the daughter's testimony, the lower court had already
ruled that the Appellant's tape-recorded statement to police would be admissible.
In that statement, the Appellant had indicated that he had gone to the victim's
place of business to scare her and that she had smirked at him. Further, the
defense had also attempted to characterize the victim as a controlling, difficult
woman. The State maintains that it was entitled to submit evidence regarding
the victim's fear of the Appellant.
As this Court stated in syllabus point seven
of State v. Miller
, 175 W.Va. 616, 336 S.E.2d 910 (1985), 'Rulings
on the admissibility of evidence are largely within a trial court's sound discretion
and should not be disturbed unless there has been an abuse of discretion. State
, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).' Syllabus Point 2, State
, 173 W.Va. 317, 315 S.E.2d 574 (1983).
The State argues that expression of the victim's
personal emotion regarding the Appellant, i.e., fear, does not constitute character
evidence and that even if it could be construed as character evidence,
its submission does not violate Rule 404 because it was not offered for the purpose
of proving that he acted in conformity therewith on the occasion on question.
In State v. Guthrie
, 194 W. Va. 657, 461 S.E.2d 163 (1995), this Court
recognized that some statements concerning an individual simply do not fall within
the definition of character evidence. Quite clearly, evidence that the
defendant was a 'Bible-reading man' and his religious beliefs are not admissible
under the same rule because they simply do not concern a pertinent character
trait. 194 W.Va. at 681, 461 S.E.2d at 187. In State v. Marrs
W.Va. 693, 379 S.E.2d 497 (1989), this Court held that a defendant's reputation
for not selling drugs did not pertain to a character trait. This Court explained
neither the Rules nor any authoritative case offers a satisfactory definition
of character. One learned commentator offers a definition that distinguishes character from habit:
is a generalized description of a person's disposition, or of the disposition
in respect to a general trait, such as honesty, temperance or peacefulness. Habit,
in the present context, is more specific. It denotes one's regular response to
a repeated question.
McCormick On Evidence § 195
(3rd ed. 1984) at 574-75. This definition suggests that selling drugs is behavior
that is too specific to be classified as a character trait. 180
W.Va. at 696, 379 S.E.2d at 500. (See
Based upon our review of the issue of admissibility
of evidence of the victim's fear of the Appellant, we agree with the contention
of the State that even if the victim's fear of the Appellant could be construed
as evidence of the Appellant's character, Rule 404 has not been violated since
that evidence was not introduced to prove that the Appellant acted in conformity
with that impression the victim had of him. Rule 404 apples only where evidence
of a person's character is introduced to prove that he acted in conformity therewith. (See
footnote 5) We consequently find that the admissibility issue was
properly within the discretion of the lower court, and we find no abuse of such
The Appellant did not testify
at trial but did present the testimony of his daughter and two neighbors, indicating
that the Appellant maintained a loving relationship with his granddaughter,
the subject of the custody dispute.
West Virginia Code 62-3-15
provides as follows:
a person indicted for murder be found by the jury guilty thereof, they shall
in their verdict find whether he or she is guilty of murder of the first degree
or second degree. If the person indicted for murder is found by the jury guilty
thereof, and if the jury find in their verdict that he or she is guilty of murder
of the first degree, or if a person indicted for murder pleads guilty of murder
of the first degree, he or she shall be punished by imprisonment in the penitentiary
for life, and he or she, notwithstanding the provisions of article twelve [§§ 66-12-
1 et seq.], chapter sixty-two of this code, shall not be eligible for parole:
Provided, That the jury may, in their discretion, recommend mercy, and if such
recommendation is added to their verdict, such person shall be eligible for parole
in accordance with the provisions of said article twelve, except that, notwithstanding
any other provision of this code to the contrary, such person shall not be eligible
for parole until he or she has served fifteen years: Provided, however, That
if the accused pleads guilty of murder of the first degree, the court may, in
its discretion, provide that such person shall be eligible for parole in accordance
with the provisions of said article twelve, and, if the court so provides, such
person shall be eligible for parole in accordance with the provisions of said
article twelve in the same manner and with like effect as if such person had
been found guilty by the verdict of a jury and the jury had recommended mercy,
except that, notwithstanding any provision of said article twelve or any other
provision of this code to the contrary, such person shall not be eligible for
parole until he or she has served fifteen years.
West Virginia Rule of Evidence
404(a)(1) provides that [e]vidence of a person's character or a trait
of character is not admissible for the purpose of proving that he or she acted
in conformity therewith on a particular occasion, except:
(1) Character of Accused. _ Evidence of a
pertinent trait of character offered by an accused, or by the prosecution to
rebut the same. . . .
Hearsay objections have
also been made where evidence regarding a decedent's fear of an accused has
been offered. In resolution of such cases, it has typically been held that
such statements were not actually hearsay since they were not used to attempt
to prove the truth of the matter asserted. See People v. Starr
N.W.2d 673 (Mich. 1998).
We also note that even
if we had been convinced that admission of the fear evidence was
in error, we would find that it was harmless error. See Syl. Pt. 2, State
v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S.
904 (1980) (Where improper evidence of a nonconstitutional nature is
introduced by the State in a criminal trial, the test to determine if the error
is harmless is: (1) the inadmissible evidence must be removed from the State's
case and a determination made as to whether the remaining evidence is sufficient
to convince impartial minds of the defendant's guilt beyond a reasonable doubt;
(2) if the remaining evidence is found to be insufficient, the error is not
harmless; (3) if the remaining evidence is sufficient to support the conviction,
an analysis must then be made to determine whether the error had any prejudicial
effect on the jury).