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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
RICHARD LEWIS MORRIS,
Defendant Below, Appellant
Appeal from the Circuit Court of Jefferson County
Honorable David H. Sanders, Judge
Criminal Action No. 08-F-64
Submitted: September 15, 2010
Filed: November 19, 2010
Joel Weinstein, Esq.
John P. Adams, Esq.
Public Defender Corporation
Martinsburg, West Virginia
Attorney for Appellant
| Darrell McGraw, Jr., Esq.
R. Christopher Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. '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.' Syl. Pt. 6, State v. Kopa, 173 W. Va. 43, 311
S.E.2d 412 (1983). Syllabus Point 1, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310
2. ' ' Whether a witness is qualified to state an opinion is a matter
which rests within the discretion of the trial court and its ruling on that point will not
ordinarily be disturbed unless it clearly appears that its discretion has been abused. Point 5,
syllabus, Overton v. Fields, 145 W. Va. 797 [117 S.E.2d 598 (1960)].' Syllabus Point 4, Hall
v. Nello Teer Co., 157 W. Va. 582, 203 S.E.2d 145 (1974). Syllabus Point 12, Board of
Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 (1990).' Syl. pt.
3, Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993). Syl. pt. 5, Mayhorn v. Logan
Medical Foundation, 193 W. Va. 42, 454 S.E.2d 87 (1994). Syllabus Point 4, State v. Wood,
194 W. Va. 525, 460 S.E.2d 771 (1995).
3. Generally, out-of-court statements made by someone other than the
declarant while testifying are not admissible unless: 1) the statement is not being offered for
the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-
mind, identification or reasonableness of the party's action; 2) the statement is not hearsay
under the rules; or 3) the statement is hearsay but falls within an exception provided for in
the rules. Syllabus Point 1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990).
4. The hearsay rule excludes hearsay evidence only when offered 'as
evidence of the truth of the matter asserted'; and does not operate against such testimony
offered for the mere purpose of explaining previous conduct. Syllabus Point 1, State v.
Paun, 109 W. Va 606, 155 S.E.2d 656 (1930) .
5. In order for a lay witness to give opinion testimony pursuant to Rule
701 of the West Virginia Rules of Evidence (1) the witness must have personal knowledge
or perception of the facts from which the opinion is to be derived; (2) there must be a rational
connection between the opinion and the facts upon which it is based; and (3) the opinion
must be helpful in understanding the testimony or determining a fact in issue. Syllabus Point
2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999).
6. When the State had or should have had evidence requested by a
criminal defendant but the evidence no longer exists when the defendant seeks its production,
a trial court must determine (1) whether the requested material, if in the possession of the
State at the time of the defendant's request for it, would have been subject to disclosure
under either West Virginia Rule of Criminal Procedure 16 or case law; (2) whether the State
had a duty to preserve the material; and (3) if the State did have a duty to preserve the
material, whether the duty was breached and what consequences should flow from the
breach. In determining what consequences should flow from the State's breach of its duty
to preserve evidence, a trial court should consider (1) the degree of negligence or bad faith
involved; (2) the importance of the missing evidence considering the probative value and
reliability of secondary or substitute evidence that remains available; and (3) the sufficiency
of the other evidence produced at the trial to sustain the conviction. Syllabus Point 2, State
v. Osakalumi, 194 W. Va. 758, 461 S.E.2d 504 (1995) .
Richard Lewis Morris, Appellant, appeals his conviction for one count of
felony Driving Under the Influence Causing Death and two counts of misdemeanor Driving
Under the Influence Causing Injury. Herein, he asserts that the circuit court erred in
permitting the admission of hearsay testimony, that the circuit court erred by failing to rule
on a motion in limine thereby allowing a witness to testify, that the police failed to preserve
potentially exculpatory evidence, and that the circuit court has not yet ruled on a Rule 35
motion for a reduction or correction of sentence. This Court has before it the petition for
appeal, all matters of record and the briefs and argument of counsel. For the reasons
expressed below, the Appellant's conviction is affirmed.
FACTUAL AND PROCEDURAL HISTORY
This case involves a fatal car accident that occurred on September 20, 2007,
on Route 340 in Jefferson County. When Deputy Sheriff Vincent Henry Tiong responded
to the emergency call, he found Cynthia Hose and David Weiss entrapped in their overturned
car, a red 1997 Hyundai Elantra. Appellant and his wife, Tammy Green-Morris, who were
driving a white 1997 Nissan Maxima, were also found at the scene. (See footnote 1)
When Deputy Tiong
spoke to the Appellant, he noted that his eyes were glassy and that there was a strong odor
of alcohol on Appellant's breath. Appellant appeared to be laughing. When asked what was
funny, Appellant first said, nothing, but then said the accident. Green-Morris also had
an odor of alcohol on her breath, and had bloodshot eyes and slurred speech.
As a result of the accident, Mr. Weiss suffered multiple lacerations on his arms,
three broken ribs, and a contusion on his spine. The driver, Cynthia Hose, suffered serious
injuries as a result of the accident and died 30 days later. According to the testimony of Mr.
Weiss, Ms. Hose suffered from a severed spinal cord and brain damage before she died,
among other injuries. Appellant was indicted for one count of felony DUI Causing Death
and two counts of misdemeanor DUI Causing Injury. His sole defense at trial was that he
was not driving the vehicle at the time the accident occurred.
At trial, Deputy Tiong testified that he determined the causes of the accident
to be speed and failure to maintain control. Paula Bryant, a medical technologist at Jefferson
Memorial Hospital, testified that she performed a toxicology test and found Appellant's
blood alcohol level to be .20 grams/deciliter, which is above the legal limit for operating a
vehicle. David Bennett, a phlebotomist at Jefferson Memorial Hospital who drew blood
from Appellant on the night of the accident, testified that he noted bruising on Appellant's
chest. When asked at trial what kind of bruising was on Appellant's chest, Bennett testified
seat belt, . . . [l]ike he was wearing a seat belt on his chest all the way down to his hip.
Bennett testified that the bruising was on Appellant's left shoulder to right hip. Mr. Bennett
also testified that Appellant appeared intoxicated and acted in a combative manner.
Appellant's wife, Tammie Green-Morris, testified at trial that the Appellant
was driving the Nissan Maxima on the night of the accident. She stated that they had been
drinking most of the day and that according to the speedometer, Appellant was driving 120
miles per hour. She further testified that after the accident, Appellant asked her to run from
the scene. Green-Morris testified that she suffered bruising from her right shoulder to
underneath her left breast. She was eventually convicted of knowingly permitting driving
under the influence.
Two witnesses, Stacey Tothill and Jim Lewis, testified that the Nissan Maxima
sped past them at a very high rate of speed. Neither directly witnessed the accident but saw
the accident scene following the crash. Mr. Tothill testified that he estimated the Nissan
Maxima was traveling more than twenty miles per hour over the speed limit, and Mr. Lewis
stated that it passed him at a speed of more than 100 miles per hour.
Following a jury trial, on October 8, 2008, the jury found Appellant guilty of
one count of DUI Causing Death and two counts of DUI Causing Injury. On January 21,
2009, Appellant was sentenced to 2 to 10 years on the felony count, and 1 year on each of
the two misdemeanor counts, to run consecutively.
STANDARD OF REVIEW
Concerning our standard of review of the circuit court's exclusion of
evidence at issue, we note that '[r]ulings 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. Guthrie, 205 W. Va. 326, 332, 518 S.E.2d 83, 89 (1999)(quoting State v. Louk, 171
W. Va. 639, 643, 301 S.E.2d 596, 599 (1983), citing Syl. Pt. 2, State v. Peyatt, 173 W. Va.
317, 315 S.E.2d 574 (1983)).
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.
Syl. Pt. 6, State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983).
Syl. Pt. 1, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999). Furthermore,
[w]hether a witness is qualified to state an opinion is a matter which
rests within the discretion of the trial court and its ruling on that point
will not ordinarily be disturbed unless it clearly appears that its
discretion has been abused.
Syl. Pt. 4, State v. Wood, 194 W. Va. 525, 460 S.E.2d 771 (1995)(internal citations omitted).
In the instant appeal, Appellant alleges four assignments of error. We will
address each of them in turn.
A. Hearsay Evidence
In his first assignment of error, Appellant asserts that the circuit court erred in
allowing Deputy Tiong to testify regarding a statement made by Brenda Engle, a treating
nurse on the night of the accident, detailing bruising found on the Appellant's chest.
Appellant maintains that the admission of this testimony constituted hearsay evidence that
violated his constitutional right to confront witnesses.
The following testimony was provided by Deputy Tiong at trial:
Prosecutor: Corporal Tiong, why did you charge Mr. Morris with
driving the automobile
that caused this accident?
Tiong: I received information from the nurse from marks she
observed from him.
Prosecutor: What kind of marks?
Tiong: She observed that there was what appeared to be seat belt
marks going up the left area
which showed the possibility of wearing a seat belt in the
At the time said testimony was offered, Appellant objected on hearsay grounds.
The State responded that Ms. Engle was supposed to testify later in the trial. (See footnote 2)
the State asserted that the testimony was not being offered for the truth of the matter asserted.
Rather, it was offered to show why Officer Tiong charged Mr. Morris. The State also
maintained that it had another witness, Mr. Bennett, who would also testify regarding the
location of bruises he observed on the Appellant's chest. In reviewing the record before us,
it appears that the circuit court permitted Officer Tiong to present this testimony not for the
truth of the matter asserted, but to show why he charged Mr. Morris. Accordingly, we cannot
state that circuit court abused its discretion in permitting such testimony for this limited
Pursuant to Rule 801(c) of the West Virginia Rules of Evidence, hearsay is
defined as follows:
Hearsay. Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.
W.Va.R.Evid. 801(c). This Court has held:
Generally, out-of-court statements made by someone other than the
declarant while testifying are not admissible unless: 1) the statement is
not being offered for the truth of the matter asserted, but for some other
purpose such as motive, intent, state-of-mind, identification or
reasonableness of the party's action; 2) the statement is not hearsay
under the rules; or 3) the statement is hearsay but falls within an
exception provided for in the rules.
Syl. Pt. 1, State v. Maynard
, 183 W. Va. 1, 393 S.E.2d 221 (1990).
In the instant case, we find that Officer Tiong's testimony regarding Nurse
Engle's observations did not constitute hearsay evidence. The testimony was not offered to
prove the truth of the matter asserted, but rather as an explanation as to why the Appellant
was arrested and as to the background of the investigation. This Court has held that
testimony by police officers involving matters they learned from other persons offered merely
to explain prior conduct in carrying out the investigation is not hearsay. State v. Phelps
W. Va. 713, 722, 478 S.E.2d 563, 572 (1996). [T]he hearsay rule excludes hearsay
evidence only when offered 'as evidence of the truth of the matter asserted'; and does not
operate against such testimony offered for the mere purpose of explaining previous conduct.
Syl. Pt. 1, State v. Paun
, 109 W. Va 606, 155 S.E.2d 656 (1930)(citing 16 C.J. Criminal Law
§1233). (See footnote 3)
Additionally, Appellant alleges that the circuit court's admission of Officer
Tiong's testimony regarding Nurse Engel's observations violated his Sixth Amendment right
to confrontation. However, because Officer Tiong's testimony regarding Nurse Engle's
statements was properly admitted for purposes other than establishing the truth of the matter
asserted, the Confrontation Clause does not bar the use of these statements. Crawford v.
, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 1369 n. 9 (2004)('[t]he [Confrontation]
Clause . . . does not bar the use of testimonial statements for purposes other than establishing
the truth of the matter asserted.' Tennessee v. Street
, 471 U.S. 409, 414, 105 S.Ct. 2078, 85
L.E.2d 425 (1985)). (See footnote 4)
Moreover, the record reveals that the Appellant did not even present
a Confrontation Clause objection during the trial. The only objection Appellant made at the
time this testimony was offered was an objection on hearsay grounds. This Court has held
that [o]bjections to evidence based on hearsay, . . . are simply not the same as objections
based on the Confrontation Clause. State v. Ladd
, 210 W. Va. 413, 428, 557 S.E.2d 820,
835(2001). Accordingly, we find no error in the admission of said testimony at the trial in
this matter. (See footnote 5)
B. Expert Witness Testimony
Appellant next contends that the circuit court erred in allowing the testimony
of David Bennett, the phlebotomist who drew blood from him on the night of the accident.
Specifically, Appellant contends that the admission of the testimony of Mr. Bennett
concerning the bruising Appellant suffered violated the West Virginia Rules of Criminal
and his Due Process rights on the grounds that Mr. Bennett's testimony was
expert in nature, yet no notice was given under Rule 16(a)(1)(E)of the West Virginia Rules
of Criminal Procedure (See footnote 6)
and no foundation for his expertise was laid at trial. Appellant takes
issue with the fact that the trial court never ruled on his motion in limine
on this issue.
According to our review of the record, a motion in limine
was filed by the
Appellant on September 26, 2008. However, the circuit court never ruled on the motion and
the Appellant did not object when the State offered the testimony of Mr. Bennett at trial. We
find that the Appellant's failure to present an objection at trial constituted a waiver of this
issue. See State v. Parsons
, 181 W. Va. 56, 63, 380 S.E.2d 223, 230 (1989)(finding that
where no adverse ruling on a defendant's motion in limine
is made, an objection is required
when the evidence is offered at trial) citing State v. Clark,
170 W. Va. 224, 292 S.E.2d 643
(1982)). However, even if this issue had not been waived, we find no error on the circuit
court's behalf in admitting such testimony under Rule 701 of the West Virginia Rules of
Rule 701 of the West Virginia Rules of Evidence
provides the following:
If the witness is not testifying as an expert, his or her testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue.
W.Va.R.Evid.701. This Court has held the following with respect to lay testimony:
In order for a lay witness to give opinion testimony pursuant to Rule
701 of the West Virginia Rules of Evidence (1) the witness must have
personal knowledge or perception of the facts from which the opinion
is to be derived; (2) there must be a rational connection between the
opinion and the facts upon which it is based; and (3) the opinion must
be helpful in understanding the testimony or determining a fact in issue.
Nichols, supra, at Syl. Pt. 2.
A review of the record before us indicates that Mr. Bennett's testimony was
not expert in nature, but was rather simply lay opinion testimony under Rule 701 of the West
Virginia Rules of Evidence. At trial, Mr. Bennett merely provided testimony regarding the
bruises he personally observed on the Appellant was drawing blood from him. As stated
above, Mr. Bennett testified, based upon his observation while taking blood from Appellant
in the hospital, that the latter had a bruise on his chest from the left shoulder to the right hip,
resembling a seat belt. Mr. Bennett did not require any medical or scientific expertise to
testify to this, as the testimony was rationally based on the perception of Mr. Bennett to help
the jury with regard to a fact in issue. For these reasons, the circuit court did not abuse its
discretion in admitting the testimony of Mr. Bennett.
C. Preservation of Evidence
In his third assignment of error, Appellant alleges that the circuit court
erroneously denied his motion in limine
requesting that the circuit court exclude the
admission of Appellant's hospital records which indicated that he had bruising suggestive
of a person wearing a driver's side seatbelt, on the grounds that the vehicle in which the
Appellant was riding was not placed into police custody during their investigation and was
destroyed. Appellant alleges that this caused him to be unable to examine the vehicle in
order to refute the State's contention that the Appellant was the person driving the vehicle.
Specifically, Appellant alleges that the evidence that was destroyed included the following:
suspected blood evidence on the left side of the driver's seat consistent with the laceration
to the back of the head of Tammy Green-Morris as documented in Tiong's report and
medical records; verification through measurement of the precise location of the seat
positioning apparent in the photographs confirming that the driver's side seat was pulled up
significantly in contrast with the passenger side seat; the cell phones on the floor of the
driver's side and the passenger side seat of the vehicle; and a Budweiser beer can on the floor
of the driver side of the vehicle floor. (See footnote 7)
In support of his argument, Appellant first contends that the State had a duty
to preserve the vehicle under State v. Osakalumi
, 194 W. Va. 758, 461 S.E.2d 504 (1995),
because it contained potentially exculpatory evidence. Syllabus Point 2 of Osakalumi
When the State had or should have had evidence requested by a
criminal defendant but the evidence no longer exists when the
defendant seeks its production, a trial court must determine (1) whether
the requested material, if in the possession of the State at the time of the
defendant's request for it, would have been subject to disclosure under
either West Virginia Rule of Criminal Procedure 16 or case law; (2)
whether the State had a duty to preserve the material; and (3) if the
State did have a duty to preserve the material, whether the duty was
breached and what consequences should flow from the breach. In
determining what consequences should flow from the State's breach of
its duty to preserve evidence, a trial court should consider (1) the
degree of negligence or bad faith involved; (2) the importance of the
missing evidence considering the probative value and reliability of
secondary or substitute evidence that remains available; and (3) the
sufficiency of the other evidence produced at the trial to sustain the
In review of the record before us, we find that the circuit court did not abuse
its discretion in denying Appellant's motion in limine on this issue. The circuit court found
that the State never took possession of the vehicle, as it was towed by a private towing
company. Thus, the court believed that there was no duty by the State to preserve it. Additionally, in discovery, the State provided thirty-seven photographs of the accident scene
and the vehicle in question. In ruling on the Appellant's motion, the circuit court specifically
found the following:
. . . I must say that in this case I don't believe the State took possession
of that vehicle. There was a crash scene with injuries but not a death
at that time. Police routinely, routinely investigate accidents and if they
were to take all the cars into some sort of custody then they would have
a large inventory of smashed up vehicles indeed.
Generally speaking, they are released to insurance companies and to the
parties. It sounds like in this case that the owner of the vehicle being
your client's spouse okayed the car being smashed up and what we are
left with is the impression from the hospital as to the type of bruising,
the possibility of how it came about, and I think that the fact that the
way it was destroyed does not make it excludable because it just
basically impacts upon the weight that a jury might attach to it not
knowing more than we know about it.
So I don't see this really being -I don't think even comes close to bad
faith or even frankly I'm not even sure that it's negligent. It's so close
to the conduct of normal police investigation.
We cannot state that the circuit court's ruling on this issue was an abuse of
discretion. Indeed, even if the vehicle was in the State's possession and the Appellant was
able to establish that the State had a duty to preserve and produce the vehicle, the Appellant
has still not established the importance of the missing evidence considering the probative
value and reliability of secondary or substitute evidence that remains available, the thirty-
seven photographs presented at trial. Although Appellant takes issue with the fact that
various items in the car were not turned over to him, such as a beer can and cell phones, we
are hard pressed to find the exculpatory or impeachment value in these items. (See footnote 8)
the testimony at trial revealed that the Appellant and his wife had been drinking that day, and
the Appellant does not state with any convincing particularity what the potential value of the
cell phones would be. Additionally, the red stain on the driver's seat would have little
exculpatory value even if it had been subjected to DNA testing, as it does not serve to
exclude Appellant from being the driver of the vehicle. (See footnote 9)
Furthermore, taking the
phlebotomist's testimony regarding the Appellant's bruising into consideration, there was
certainly other sufficient evidence produced at trial to sustain the conviction. (See footnote 10)
Moreover, with respect to Appellant's additional allegation that the destruction
of the vehicle also constitutes a Brady
violation (See footnote 11)
, we find no merit to this argument. The
United States Supreme Court has held the following regarding Brady
A Brady violation occurs when the government fails to disclose
evidence materially favorable to the accused. See 373 U.S. at 87. This
Court has held that the Brady duty extends to impeachment evidence as
well as exculpatory evidence, United States v. Bagley, 473 U.S. 667,
676 (1985), and Brady suppression occurs when the government fails
to turn over even evidence that is known only to police investigators
and not to the prosecutor, Kyles [v. Whitley], 514 U.S.  at 438.
See id., at 437 ([T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's
behalf in the case, including the police). Such evidence is material
'if there is a reasonably probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different,' Strickler v. Greene, 527 U.S. 263, 280 (1999)(quoting
Bagley, supra, at 682 (opinion of Blackmun, J.)), although a showing
of materiality does not require demonstration by a preponderance that
disclosure of the suppressed evidence would have resulted ultimately
in the defendant's acquittal, Kyles, 514 U.S., at 434. The reversal of
a conviction is required upon a showing that the favorable evidence
could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict. Id., at 435.
Youngblood v. West Virginia, 547 U.S. 867, 869-70, 126 S.Ct. 2188, 2190 (2006).
As previously stated, the vehicle in question was not in the possession of the
State, and based on the specific set of circumstances in this case, the State did not have a duty
to preserve it. Rather, as an attempt to preserve adequate evidence of the accident scene, the
police took thirty-seven photographs of the scene and the vehicle, which were produced to
the Appellant during discovery. Because the Appellant has not, as stated more fully above,
sufficiently demonstrated the potential exculpatory value of the items at issue in the vehicle,
we find that the Appellant has not demonstrated that the State failed to disclose evidence
materially favorable to the accused under Brady. For all these reasons, we find that the
circuit court did not abuse its discretion in denying Appellant's motion in limine on this issue.
D. Motion for Reconsideration of Sentence
Lastly, Appellant alleges that the circuit court has yet to rule on his Motion for
Reconsideration of Sentence filed pursuant to Rule 35 of the West Virginia Rules of Criminal
, wherein he argued that the sentences as imposed were excessive punishment
since they were ordered to run consecutively by the court despite the facts including that the
crimes were born from the same incident, and that the police failed to preserve the evidence
in this matter. (See footnote 12)
Appellant alleges that the circuit court's four month delay in ruling on the
motion violates his due process rights and is further grounds for reversal of his conviction.
To the extent that this motion regarding the limited issue of sentencing has not
yet been ruled upon below, this interlocutory issue is not properly before this Court on
appeal. That said, we strongly encourage the circuit court to address this issue and make a
prompt ruling on the Appellant's motion. If the circuit court continues to delay in ruling on
Appellant's motion following the instant appeal, Appellant obviously maintains the right to
file an appropriate writ of mandamus at that juncture. Likewise, Appellant obviously
maintains the right to appeal the merits of his motion for reduction of sentence following the
circuit court's ruling, if he deems necessary. (See footnote 13)
Accordingly, for the foregoing reasons, the Appellant's conviction is
Deputy Tiong observed that the white Maxima was in the left lane of the intersection of
Route 340 and Halltown Road and the red Elantra was on its rooftop on the shoulder.
The record reflects that although Nurse Engle was expected to testify at trial, she
defied a subpoena and did not appear to testify.
However, normally, [t]he receipt of this type of evidence should be determined
under principles of relevancy pursuant to Rules 401-403. State v. Phelps
, 197 W. Va. at 722,
478 S.E.2d at 572 (citing
2 Franklin Cleckley, Handbook on Evidence for West Virginia
ed. 1994)). In this particular case, regardless of whether or not
evidence pertaining to why Officer Tiong charged Appellant was relevant, we find that the
admission of such testimony, even if irrelevant, would have been harmless error, for reasons
outlined more fully below in footnote 5, infra
In examining the importance of the Confrontation Clause and its purpose, this Court
The mission of the Confrontation Clause found in the Sixth
Amendment to the United States Constitution and Section 14 of Article
III of the West Virginia Constitution is to advance a practical concern
for the accuracy of the truth-determining process in criminal trials, and
the touchstone is whether there has been a satisfactory basis for
evaluating the truth of the prior statement. An essential purpose of the
Confrontation Clause is to ensure an opportunity for cross-examination.
In exercising this right, an accused may cross-examine a witness to
reveal possible biases, prejudices, or motives.
Syl. Pt. 1, State v. Mason
, 194 W. Va. 221, 460 S.E.2d 36 (1995).
Even if this Court were to determine that the testimony of Deputy Tiong regarding
his conversation with Nurse Engle was hearsay testimony that was offered for the truth of the
matter asserted, the admission of such evidence would have been harmless error because, as
explained more fully below, the same fact was testified to and proven by other witnesses,
including phlebotomist Bennett and Appellant's wife. See
Syl. Pt. 4, State v. Helmick
W. Va 163, 495 S.E.2d 262 (1997)(An error in admitting hearsay evidence is harmless where
the same fact is proved by an eyewitness or other evidence clearly establishes the defendant's
guilt). Mr. Bennett testified that he noted bruising that went from Appellant's left shoulder
to his right hip. Likewise, Ms. Green-Morris, Appellant's wife, testified that Appellant was
the driver of the vehicle, and that she sustained bruising from her right shoulder to
underneath her left breast, marks which are consistent with being a vehicle passenger.
Furthermore, the record reflects that the Appellant had ample opportunity to cross-
examine Mr. Bennett regarding his observations of bruising which also indicated he was the
driver of the vehicle, and Ms. Green-Morris regarding her assertions that the Appellant drove
the vehicle. When a constitutional right is involved, the test is stated to be . . . whether the
apparent error did not, beyond a reasonable doubt, prejudice the accused at trial. State v.
, 160 W. Va. 234, 244, 233 S.E.2d 710, 720 (1977). Errors involving deprivation of
constitutional rights will be regarded as harmless only if there is no reasonable possibility
that the violation contributed to the conviction. Syl. Pt. 20, State v. Thomas
, 157 W. Va.
640, 203 S.E.2d 445 (1974).
West Virginia Rule of Criminal Procedure
16(a)(1)(E) states the following:
(E) Expert Witnesses. Upon request of the defendant, the state shall
disclose to the defendant a written summary of testimony the state
intends to use under Rule 702, 703, or 705 of the Rules of Evidence
during its case in chief at trial. The summary must describe the
witnesses' opinions, the bases and reasons therefor, and the witnesses'
Appellant generally asserts that there were inconsistencies in Green-Morris'
testimony and that she received a significant plea deal in exchange for testifying. Green-
Morris pled guilty to Permitting DUI with regard to the instant matter.
In determining whether evidence is exculpatory, the question is whether such
evidence, if made available would tend to exculpate an accused by creating a reasonable
doubt as to his guilt. State v. Hall
, 174 W. Va. 787, 790, 329 S.E.2d 860, 863 (1985) (citing
Syl. Pt. 4, State v. Hatfield
, 169 W. Va. 191, 286 S.E.2d 402 (1982)).
As the State argued before the trial court:
[l]et's say it was her blood, it could have gotten there a lot of different
ways, perhaps she touched her hand to the back of her head and then
touched the seat, perhaps it got there on the way out of the car, perhaps
he touched her head while he was getting out of the car, I don't think
that the blood, if it was blood even under that driver's seat is anyway
proof that Ms. Morris was driving as opposed to Mr. Morris. . .
We also find that the trial court's instruction was sufficient to protect the
Appellant's due process rights. Subsequent to the circuit court's denial of Appellant's
motion in limine
regarding destruction of the vehicle, Appellant asked the Court for a
cautionary instruction, which the court permitted. In its instructions to the jury, the circuit
court stated the following:
If you find that the State has lost, destroyed or failed to preserve any
evidence whose contents or quality are material to the issue in this case,
then you may draw an inference unfavorable to the State which in itself
may create reasonable doubt as to the Defendant's guilt.
Brady v. Maryland
, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963).
Although improperly titled, the Appellant essentially filed a motion for correction
or reduction of sentence under Rule 35 of the West Virginia Rules of Criminal Procedure
Because the circuit court's rulings on the other substantive issues presented above
were final in nature following Appellant's conviction, this Court maintains jurisdiction to
consider those other issues on appeal at this time. See W. Va. Code §58-5-1(1998) (the
defendant in a criminal action may appeal to the supreme court of appeals from a final
judgment of any circuit court in which there has been a conviction or which affirms a
conviction obtained in an inferior court.)