Kristen L. Keller
Deputy Prosecuting Attorney
Beckley, West Virginia
Attorney for the Appellee
C. Cooper Fulton
Kanawha County Public Defender
Charleston, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "'After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified.' Rule 26.2, West Virginia Rules of Criminal Procedure." Syllabus point 1, State v. Tanner, 175 W.Va. 264, 332 S.E.2d 277 (1985).
2. "A prosecution that withholds evidence which if made
available would tend to exculpate an accused by creating a
reasonable doubt as to his guilt violates due process of law under
Article III, Section 14 of the West Virginia Constitution."
Syllabus point 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402
3. "When a trial court grants a pre-trial discovery
motion requiring the prosecution to disclose evidence in its
possession, non-disclosure by the prosecution is fatal to its case
where such non-disclosure is prejudicial. The non-disclosure is
prejudicial where the defense is surprised on a material issue and
where the failure to make the disclosure hampers the preparation
and presentation of the defendant's case." Syllabus point 2, State
v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).
4. "'"As a general rule photographs of persons, things,
and places, when duly verified and shown by intrinsic evidence to
be faithful representations of the objects they purport to portray,
are admissible in evidence as aids to the jury in understanding the
evidence; and whether a particular photograph or groups of
photographs should be admitted in evidence rests in the sound
discretion of the trial court and its ruling on the question of the
admissibility of such evidence will be upheld unless it clearly
appears that its discretion has been abused." Syl. pt. 1, Thrasher
v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953),
appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067
(1954).' Syllabus point 2, State v. Dunn, 162 W.Va. 63, 246 S.E.2d
245 (1978)." Syllabus point 4, State v. Deskins, 181 W.Va. 112,
380 S.E.2d 676 (1989).
5. Evidence that a homicide victim was survived by a
spouse or children is generally considered inadmissible in a
homicide prosecution where it is irrelevant to any issue in the
case and is presented for the sole purpose of gaining sympathy from
the jury. For this reason, courts tend to look upon testimony by
a surviving spouse with disfavor. However, the admission of such
evidence does not necessarily constitute reversible error.
6. "Great latitude is allowed counsel in argument of
cases, but counsel must keep within the evidence, not make
statements calculated to inflame, prejudice or mislead the jury,
nor permit or encourage witnesses to make remarks which would have
a tendency to inflame, prejudice or mislead the jury." Syllabus
point 2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978).
The appellant, Gary Wheeler, was convicted of malicious
wounding, two counts of attempted murder, and first-degree murder
as a result of incidents which took place between 2:00 a.m. and
3:00 a.m. on February 21, 1990, in the parking lot of a Super 8
Motel in Beckley, West Virginia. Wheeler turned himself in to
police later that day. A jury trial was held from August 13 - 15,
1990, and Wheeler subsequently received sentences of life without
mercy and four-to-twenty years in the State penitentiary. He now
appeals his conviction.
In order to facilitate our discussion of the issues
raised on appeal, we will briefly recount the events leading up to
the shootings. It is apparent from the record that the parties in
this case were involved in several encounters in the late night and
early morning hours of February 20 and 21, 1990. The appellant,
Gary Wheeler, spent the evening drinking at various bars in Raleigh
County with Richard Spencer and Gerald Day. According to the
appellant, both Spencer and Day were drunk.
That same night, Kevin Prunty, Gary Fluharty, and Eugene
Chipps were drinking at Eden's Lounge in the Holiday Inn in
Beckley. All three men were truck drivers who were working for a
Harrisville, West Virginia, company. Evidence presented at trial
indicated that Kevin Prunty was very drunk. At closing time,
Wheeler, Spencer, and Day were in the parking lot making
arrangements to meet three women at another club. Eugene Chipps
was also talking with one of these women and obtained her phone
number. Either Wheeler or someone in his group yelled a derogatory
remark out the car window as they were leaving, and Fluharty,
Prunty, and Chipps began chasing the car on foot.
A confrontation followed when the car stopped at a red
light. Fluharty slapped the car with his hand and asked whether
there was a problem. Wheeler put the car in reverse and then
backed up, knocking Prunty down. Wheeler then proceeded through
the intersection, and the truckers watched as the car pulled into
the nearby Check Mark Club. According to Chipps, he, Fluharty, and
Prunty "decided to go see what the problem really was." Kevin
Prunty was furious about being hit by the car, and he got a tire
iron out of his truck. The three men then got into Fluharty's
truck and drove to the Check Mark Club, which was closed. Kevin
Prunty ran toward the car being driven by Wheeler and hit the hood
and the passenger side of the vehicle with the tire iron. The
three women arrived at about this time, but were apparently
frightened and went back to Eden's Lounge. Prunty and friends
returned to the Super 8 Motel in Fluharty's truck, while Wheeler,
Spencer, and Day went to a nearby Omelette Shoppe.
Lisa Stover was a waitress who was working in the
Omelette Shoppe that night. According to her trial testimony, she
had known Wheeler for about two months, and they had dated for
approximately two weeks. Wheeler came into the Omelette Shoppe at
around 3:00 a.m., accompanied by two men, one of whom remained in
the car. Wheeler told Stover that there had been a fight at the
Holiday Inn and that someone dented the car with a ball bat.
Stover testified that Wheeler was quite angry and upset, and that
she offered him coffee and tried to get him to calm down. When
Wheeler's friend, Spencer, emerged from the restroom, Wheeler said
that he was going to go mess the men up and that he would be back
in fifteen minutes.
Wheeler returned first to the Eden's Lounge parking lot
at the Holiday Inn. One of the three women, Debbie Williams, asked
Wheeler why the men had started hitting the car. Wheeler
reportedly told these women that he was going to see what the guy's
problem was and that he would be back. The three women waited for
a while, but eventually left.
When the truckers returned to the Super 8 Motel, Fluharty
parked to the left of the motel in a gravel parking lot. Chipps
talked briefly with the desk clerk, Mary Farruggia, and told her
about what had happened that evening. Prunty remained in the
parking lot and was apparently still carrying the tire iron.
Chipps saw the car driven by Wheeler enter the parking lot and,
according to Mary Farruggia, Chipps said, "Oh, God, it's them."
Farruggia saw Chipps and Fluharty walk side by side towards the
car. Two men suddenly stepped out from the driver and passenger
side doors. The driver, Wheeler, had a gun and started shooting.
Chipps stated that he "felt" a bullet go by when he was about
fifteen to twenty feet from the car, and Fluharty yelled, "Chip,
I've been shot."
Kevin Prunty testified that when he first saw the car
driven by Wheeler pull into the Super 8 parking lot, he hid between
the trucks. When he realized that Wheeler had a gun, he yelled to
Fluharty, "Run, he's got a gun." Prunty heard one shot and then he
was hit, at which time he dropped the tire iron. According to
Chipps, after Wheeler stopped shooting, Wheeler said "sorry," and
then "he just got in and shut the door and drove off."
At trial, the State called twenty-five witnesses and
introduced thirty-nine exhibits as evidence to support its theory
that on February 21, 1990, while driving Richard Spencer's car,
Wheeler followed the victims to the Super 8 Motel parking lot,
circled behind the motel, stopped by the entrance, stepped out of
the driver's seat holding Spencer's semi-automatic weapon, and
immediately fired at least five rounds at the victims, injuring
both Prunty and Fluharty before leaving the scene. Fluharty
sustained massive neck wounds and died from his injuries two days
Lisa Stover testified that several days after Wheeler was
arrested, he called her from the Raleigh County Jail. Stover
stated that she asked what happened on the night in question.
According to Stover, Wheeler "said that he killed the guy." When
Stover told him she could not believe it, "he said that he was
pretty mad that night."
The appellant presented no evidence and did not testify
at trial. However, defense counsel attempted to characterize
Wheeler's actions as "excusable homicide by misadventure," rather
than self-defense. The defense maintained that Fluharty, Chipps,
and Prunty ran toward Wheeler's car after he circled the motel and
that Prunty still had the tire iron in his hand as he approached
the car. These men continued to approach even when Wheeler stood
outside of the car with the gun in his hand and fired two warning
shots. Then, as Wheeler was getting back into the car, the gun
accidentally discharged three more times, and he shot both Prunty
and Fluharty by accident. The defense admits that no evidence was
presented to support its theory that Wheeler fired "warning shots,"
and then "accidentally" discharged the gun, but states that this
was because neither the defendant nor Gerald Day testified at
On appeal, the appellant's primary assignments of error
are related to an allegation that the State withheld certain
witness statements which contained exculpatory information until
after the witnesses testified on direct examination. The appellant
argues that this constitutes reversible error because it deprived
him of his constitutional right to due process of law.
The appellant explains that because he did not receive
the statements until after the trial began, defense counsel was
forced to request a recess after each direct examination in order
to review the witness's statements. However, the appellant argues
that because each of the statements contained exculpatory
information, they were subject to early disclosure.See footnote 1
On May 29, 1990, defense counsel filed a discovery motion
requesting that the prosecution disclose any evidence which may be
relevant, favorable, or tend to exculpate the appellant, as well as
the pretrial production of all witness statements which would be
discoverable under Rule 26.2 of the West Virginia Rules of Criminal
Procedure. On July 26, 1990, the trial court denied the
appellant's motion for early disclosure of certain witness
statements, but advised counsel that after the witness had
testified, "you will be given ample opportunity to study the
statement before you are required to cross-examine."
The prosecution's position, then and now as the point is
once again raised on appeal, is that witness statements do not have
to be provided under Rule 26.2 until after that witness testifies
on direct examination. We agree. The rule clearly provides that:
"After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified." Rule 26.2, West Virginia Rules of Criminal Procedure.
Syl. pt. 1, State v. Tanner, 175 W.Va. 264, 332 S.E.2d 277 (1985).
In its initial July 6, 1990, response to a defense
request for the defendant's statements, the State provided the
The defendant with Richard Spencer at the Omelette Shoppe on Harper Road discussed the fact that they had a dispute with the victims and that they were going to take care of it, or "f--k them up." In the car before the murder, the defendant told Spencer he wished he had a gun. Wheeler after the shooting told his two companions that they were all in trouble, going to prison and that they should say nothing. The defendant suggested a fabricated story, to claim that the gun was "just laying there" in the car and had just been purchased.
The "f--k them up" statement was not directly attributed to the
appellant, and the appellant charges that the prosecution was
deliberately vague in its discovery response, indicating only that
Spencer and Wheeler discussed "f--king them up" without specifying
whether it was Wheeler or Spencer who made the actual statement.See footnote 2
On August 11, 1990, two days before the trial was
scheduled to begin, the prosecutor called to inform defense counsel
about a statement made by the defendant that had not previously
been provided. The appellant complains that the prosecution did
not tell defense counsel during that phone conversation that Lisa
Stover was actually attributing the statement about "f--king them
up" to Wheeler, rather than his co-defendant, Richard Spencer.
An in camera hearing was held on several defense motions
before the trial began. At that time, defense counsel renewed
motions to force the prosecution to disclose certain witness
statements prior to trial testimony and to suppress all statements
made by the defendant which were not disclosed during discovery.
The defense objected to the lateness with which it claimed to have
learned that Lisa Stover attributed the "f--k them up" statement to
Gary Wheeler. However, the trial court denied the defense motion
to suppress Lisa Stover's testimony about this statement.
In response to the appellant's charge that the
prosecution withheld what the defense characterizes as exculpatory
information, the prosecution points out that the defense first
received notice during testimony given at a preliminary hearing on
March 5, 1990 -- five months before trial -- that it was Wheeler
who stated that he would "mess up" the victims. Also, in pre-trial
testimony at the in camera hearing, Lisa Stover stated that
Wheeler's phrase was "mess up" and that the co-conspirator,
Spencer, said "f--k up." Finally, the State submits that it is
inconceivable that the defense was surprised, hampered, or
prejudiced in any manner by Ms. Stover's testimony that Wheeler's
precise terminology was actually "mess up", as opposed to "f--k
up."See footnote 3 We agree. There is simply no evidence in the record to
support defense counsel's contention that the State withheld
exculpatory evidence or that the appellant was in any manner denied
his constitutional rights.
The defense relies primarily on Lisa Stover's statements
to support its contention that the prosecution withheld exculpatory
evidence, maintaining that Stover's statements were the only
evidence relating to the critical element of premeditation. In
syllabus point 4 of State v. Hatfield, 169 W.Va. 191, 286 S.E.2d
402 (1982), this Court stated that "[a] prosecution that withholds
evidence which if made available would tend to exculpate an accused
by creating a reasonable doubt as to his guilt violates due process
of law under Article III, Section 14 of the West Virginia
Constitution." We conclude that there was no exculpatory evidence
which the prosecution was obligated to disclose in this case.
Moreover, we do not believe the prosecution's refusal to
disclose Lisa Stover's statement prior to her testimony left the
defense without adequate time to prepare an effective cross-examination. The defense claims that because the prosecution would
not disclose certain statements to them prior to her testimony,
Lisa Stover was not questioned about her "crucial" prior
inconsistent statements. However, our careful review of the record
reveals that defense counsel knew about potential inconsistencies
in Stover's various statements long before she was called to
We previously discussed how, on August 13, 1990, prior to
Stover's in camera testimony, the defense requested that it be
afforded an immediate opportunity to inspect Stover's statement to
the police. Even then, before trial, the prosecution argued that
the defense had no right to claim "surprise":
DEFENSE COUNSEL: The other problem is that at the preliminary hearing and all previous hearings they [the State] said that the girl at the Omelette Shoppe [Lisa Stover], who they relied on heavily at the preliminary, had given statements. Okay. We want these statements now, since [the prosecution] is saying this is one of the statements attributed to Gary Wheeler. We understood, at the preliminary, that she [Stover] attributed other statements to Gary Wheeler.
PROSECUTOR: Yeah. The only other
conversation is, which you've known forever,
which is that Wheeler and Spencer go into the
Omelette Shoppe right before the shooting,
they're angry and say, basically, someone
messed up our car, we're going to go mess them
up. And you've known that forever. . . .
under the discovery rules, so long as the
State isn't withholding information and the
defendant is not surprised, they have no
grounds to suppress. She's here.
DEFENSE COUNSEL: Your honor, . . . I don't
think we're asking for a lot and I think that
the rule does permit it . . . we want
everything that the State has. As far as
statements that [the prosecution] has, we want
it all because, at this point, because of the
lateness . . . but what we want is we want to
be able even for the in camera hearing, and
for the preparation, for our opening, for
everything, we want to know what she told the
It is clear from this exchange that defense counsel already knew
that Stover's initial statements to the police differed somehow
from certain subsequent statements. For this reason, the defense
cannot possibly claim now that "the State's withholding of the
witness statements until after the witnesses' direct examinations
deprived the defendant of the time to prepare for and achieve
In syllabus point 2 of State v. Grimm, 165 W.Va. 547, 270
S.E.2d 173 (1980), this Court stated that when a trial court grants
a pretrial motion requiring the prosecution to disclose evidence,
"non-disclosure by the prosecution is fatal to its case where such
non-disclosure is prejudicial. The non-disclosure is prejudicial
where the defense is surprised on a material issue and where the
failure to make the disclosure hampers the preparation and
presentation of the defendant's case." This same reasoning should
certainly apply to a situation in which the court did not order
that certain materials be disclosed early. In this case, we find
no prejudice. The defense simply cannot claim that it was
surprised on a material issue. If cross-examination of Lisa Stover
was ineffective, it was not because the prosecution withheld
exculpatory evidence. There was obviously a decided lack of any
evidence which was favorable to the appellant in this case.
Next, we consider the appellant's contention that the
trial court committed reversible error by admitting twelve
"gruesome" photographs and two "blood-stiffened garments" into
evidence. The appellant maintains that these items were not
essential to the State's case.
The disputed photographs showed trails of blood and
basically depicted Kevin Prunty's location at the time of the
shooting, as well as the route he took back to the hotel room
following the shooting, i.e., blood on pavement, blood on a door,
blood on carpet, etc. In State v. Rowe, 163 W.Va. 593, 259 S.E.2d
26, 28 (1979), this Court discussed what constitutes a "gruesome"
Photographs that show much gore and blood, or emphasize contorted facial or bodily features, or depict a body after autopsy procedures; and color photographs and enlargements of particular areas of a corpse magnifying its revolting aspects will be more likely condemned as gruesome.
In State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980), we
The fundamental rationale barring the introduction of gruesome photographs is that their impact on the jury is such that it will become so incensed and inflamed at the horrible conditions depicted that it will not be able to objectively decide the issue of the defendant's guilt.
In the case now before us, the trial judge did not consider the
photographs to be of a gruesome nature, and he stated further that
the photos would simply serve to show the jury things that they had
already observed during the jury view. In State v. Deskins, 181
W.Va. 112, 380 S.E.2d 676 (1989), at syllabus point 4, we
"'As a general rule photographs of persons, things, and places, when duly verified and shown by intrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused.' Syl. pt. 1, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954)." Syllabus Point 2, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).
We are not persuaded that the lower court abused its discretion by
admitting these photos into evidence and, therefore, we find no
reversible error on this point.See footnote 4
The appellant's remaining assignments of error relate to
charges of prosecutorial misconduct. First, the appellant argues
that the prosecutor "abdicated her quasi-judicial role" and
inflamed the passions and prejudices of the jury when she elicited
irrelevant testimony which was calculated to arouse the jury's
sympathies for Gary Fluharty's wife. In addition, the appellant
contends that the prosecutor appealed to the fears of the jury by
repeatedly referring to the gun as an "assault weapon", and by
eliciting testimony which dwelled on particularly gruesome or
morbid aspects of the case, such as Kevin Prunty's "trail of blood"
and Prunty's own testimony that one of the bullets still remained
in his body.
The State responds to these allegations by stating that
Gary Fluharty's widow simply testified as to his identity and his
date of death, both of which are relevant to any murder case.
Further, the State argues that the police officer's testimony about
"the trail of blood" was necessary to prove Kevin Prunty's location
when he was shot and his route after he was shot. Finally, the
State maintains that the prosecutor accurately described the Cobray
nine millimeter semi-automatic pistol used by Wheeler as an
"assault weapon," and not only was there no objection to this
description, but defense counsel used the same description. The
State argues that the defense did not object to either this
testimony or that of victim Kevin Prunty, and thus error, if any,
With regard to the final two allegations, the State is correct in its assertion that any error was waived by virtue of the defense's failure to object. "'Error in the admission of testimony to which no objection was made will not be considered by this Court on appeal or writ of error, but will be treated as waived.' Syl. pt. 4, State v. Michael, 141 W.Va. 1, 87 S.E.2d 595 (1955)." Syl. pt. 7, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986). Moreover, we find nothing particularly inflammatory about the police officer's so-called "trail of blood" testimony. As we have already noted, this testimony was relevant to show the victim's relative position at the time of and following the shooting.
Finally, we note that the prosecution correctly described
the weapon the appellant used in his assault upon the truckers as
a "Cobray nine millimeter semi-automatic pistol." This fact was
confirmed by defense counsel's own discussion of the gun in his
. . . it is a nine-millimeter, semi-automatic. The paper called it an uzi. The prosecutor talked assault weapon. You'll see the gun; it's a pistol. It's not an ordinary revolver or anything like that, it is bigger than that, but it fires no differently than any other gun. You have to pull the trigger each time you want to fire it, although the testimony will be that the type of gun it is, it will fire faster than a revolver.
Although the appellant objects to the prosecution's allegedly numerous references to the gun as an "assault weapon," we find that the prosecutor's description of the gun as such was based in fact and was not out of line or in any way inflammatory.
Far more troubling to this Court is the State's decision to have Gary Fluharty's widow testify in this case. Defense counsel objected when the prosecution called Kim Fluharty to testify. Both parties then approached the bench, and the defense asserted that Mrs. Fluharty was not present at the time of the shootings and could offer no relevant information. The prosecution stated that Mrs. Fluharty, a registered nurse, would testify as to identification of the deceased, explaining that "then, I don't have to call the doctor at the Charleston hospital about when they had to take him off the ventilator." Defense counsel reiterated its objection, maintaining that the prosecution's sole purpose in having Mrs. Fluharty testify was to arouse sympathy for her as a widow.
The trial judge cautioned the prosecutor not to ask Mrs. Fluharty questions designed to do just that, such as whether she misses her husband. The prosecution's direct examination of Mrs. Fluharty proceeded without any suggestive or inflammatory remarks. Mrs. Fluharty stated that she and Kevin Fluharty had been married for eight months and she identified her husband by means of a portrait of them that was admitted into evidence.See footnote 5
Generally, evidence that a homicide victim was survived by a spouse or children is considered inadmissible in a homicide prosecution where it is irrelevant to any issue in the case and is presented for the sole purpose of gaining sympathy from the jury.
For this reason, courts tend to look upon testimony by a surviving
spouse with disfavor. However, the admission of such evidence does
not necessarily constitute reversible error.See footnote 6
In State v. McCausland, 82 W.Va. 525, 96 S.E. 938 (1918),
the State used the widow of a deceased as a witness, over the
objection of the accused. The widow testified that her late
husband was the father of several children, including one who was
born after his father's death. The defendant's conviction was
reversed by this Court on several grounds, one of which was the use
of this testimony:
This evidence did not in any way prove any issue involved in the case. The trouble between the accused and the deceased did not arise out of any matter with which his family was in any wise connected. The evidence was patently introduced for the sole purpose of creating sympathy in the minds of the jury for the widow and the orphan children, manifestly an improper purpose. This evidence should not have been admitted.
Id. at 940.
Several years after McCausland, in State v. Sauls, 93
W.Va. 276, 116 S.E. 391 (1923), the defendant asserted various
grounds for reversal of his second-degree murder conviction, among
them the fact that the wife of the deceased was allowed to testify
that they had a family.See footnote 7 Although the defendant's conviction was
reversed and he was awarded a new trial, the reversal did not
result from this alleged error. The Court stated:
Of course the fact that deceased and the witness had a family had no direct bearing on the guilt of the accused, except perhaps on the theory that a man with a family would not likely be engaged in an effort to debauch defendant's wife and ruin his home, according to defendant's theory, justifying or excusing him for his killing. We doubt whether the evidence according to the strict rule, should have been received, but under the circumstances, we have no idea that the verdict of the jury was influenced thereby, and it is quite too technical a question on which to base a reversal.
Id. at 395 (emphasis added).
We note that when confronted with this issue, other
courts strongly consider the weight of all the evidence presented
at trial, as well as the manner in which the objectionable and
perhaps improper references to the victim's family were made. For
example, in People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239
(1971), the widow of a murder victim was called by the State for
the purposes of identification. The woman testified that she was
the widow and that she and the deceased had six girls, two of whom
still lived at home. She identified four photographs of the
deceased, with two recent photos showing him either holding or
sitting with a child in his home.See footnote 8
The widow also testified that she identified her
husband's body at the hospital. Defense attorneys did not object
to the widow's testimony concerning the family of the deceased.
Additionally, two different prosecutors made separate remarks
alluding to the victim as an innocent man with a wife and children,
just trying to do his job and earn his living.
On appeal, the Court cited the well-established rule that
"it is improper for a prosecutor to refer to the family of a murder
victim, whether such reference be made by evidence or in argument."
Id. at 245. However, the Court went on to reason that:
. . . the mere fact that evidence of a victims wife and family appears incidentally in the trial or is the subject of comment by the prosecutor in his argument does not automatically require reversal. The materiality of the testimony or comments, and the manner of its presentation must be considered . . . It is proper to inquire to what extent, for what reason and to what effect testimony or comments regarding the deceased's family are advanced.
Id. The Court also noted that:
[T]he prosecutor made no attempt to dwell upon
or draw out the testimony regarding the
deceased's family. No attempt was made to
present it as an issue in the case or a matter
proper to be proven and considered. Its
materiality was in no way suggested. Its
presentation was incidental to the matter of
identification of deceased and its effect upon
the outcome of the trial minimal.
Id. at 245-46. Thus, the Court did not find reversible error on
this point. Instead, the Court emphasized that "[t]he conviction
here is not based upon circumstantial evidence but upon eyewitness
testimony and positive identification." The Court concluded that
". . . the conviction of defendant was the result of the strong
evidence of guilt and did not result from any passion or prejudice
that may have been engendered by improper evidence and argument
regarding deceased's family." Id. at 246.
As we previously noted, the prosecution in the case now
before us maintains that Mrs. Fluharty was called to testify solely
for the purposes of identifying the deceased and establishing his
date of death. Our review of the record confirms that her
testimony was indeed limited in this respect. Furthermore, we can
discern no attempts by the prosecution to exploit her grief so as
to tug at the heartstrings of the jury. In syllabus point 2 of
State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978), this Court
Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.
Because of the great latitude that counsel is permitted in
presenting its case, and because the State presented overwhelming
evidence of Wheeler's guilt, we do not believe that the fact that
Mrs. Fluharty was permitted to testify constitutes adequate grounds
for reversal. However, we strongly caution the prosecution against
the future use of this type of potentially incendiary testimony.
In a closer case, the mere use of such testimony could possibly
We have reviewed the errors asserted by the appellant and
found none which warrant reversal. Therefore, we hereby affirm the
Footnote: 1According to the appellant, the statements of Debbie Williams, Lisa Stover, Mary Farruggia, Kevin Prunty, and Eugene Chipps all contain evidence which supports his claim that he was preparing to act in self-defense when the shootings occurred, including evidence that (1) Kevin Prunty was armed with a large tire iron immediately preceding the shooting, (2) that Prunty used the tire iron to hit the car Wheeler was driving earlier in the evening, (3) that Fluharty, Chipps, and Prunty were the aggressors in various incidents which occurred throughout the early morning hours, and (4) that these three men were either walking or running toward Wheeler's car and were quite close to it immediately preceding the shooting.
Footnote: 2In a letter dated August 3, 1990, the prosecution informed defense counsel that it also intended to introduce the following statements made by Wheeler before the shootings: "You all don't know who you're f--king with" and "I'm not going to let them get away with f--king up my car -- I'm gonna f--k them up." Additionally, the prosecution provided these statements that it alleged Wheeler made after the shootings: "It'll be hard to say it's self-defense when I've shot one of them in the face"; "I'll be goddamned if I'll turn myself in -- I'm going to Florida"; and "I'm Moundsville bound, buddy."
Footnote: 3In her initial voluntary statement several hours after the shootings, Lisa Stover told the police that "the other guy" [Spencer] said ". . . he was going to f--k em up." During a preliminary hearing on March 5, 1990, Detective Pack, one of the investigating officers in this case, referred to an unidentified source who was working in the Omelette Shoppe that evening. Although Lisa Stover was not referred to by name during this hearing, defense counsel was no doubt aware of her identity. Detective Pack stated that it was Gary Wheeler who did most of the talking to the "informant." When asked if Wheeler said anything about why he was going back to the Super 8, Pack responded that, according to the informant, "[h]e just stated that they had had a problem earlier and he was going to go down and mess them up."
In another statement taken by defense investigator A.
C. Bartlett on April 4, 1990, Lisa Stover said that, "Gary didn't
make any comment about hunting the other guys. The guy with Gary
said he was going to f--k the guys up and Gary said to him no,
calm down a little bit."
At the pretrial in camera hearing, defense counsel asked Stover specific questions about her statement to Bartlett. Stover was asked, "With regard to the statements of going to mess up these other individuals, what specifically do you recall Gary Wheeler saying?" Stover said, "He said he was going to go mess them up." Stover also indicated that Spencer said, "We're going to go f--k them up."
Footnote: 4With regard to the admission of Prunty's blood-soaked clothes, the State maintains that although they were admitted into evidence, they remained hidden from the jury's view and were not included among the exhibits given to the jury during its deliberations.
Footnote: 5The entire text of Kim Fluharty's testimony is as follows:
Q. Would you state your name, please, ma'am? A. Kim Fluharty. Q. Where do you live, Mrs. Fluharty? A. 335 South Court Street, Harrisville. Q. You were married to Gary Fluharty; is that right? A. Yes. Q. And how
long had you and Gary Fluharty been married before he was killed? A. Eight months. Q. How are you employed? A. I'm a nurse at St. Joe Hospital. Q. Is that up in the Harrisville area? A. No, in Parkersburg. Q. I'm going to show you a photograph that has been marked for identification as State's Exhibit 2 for identification purposes. Would you tell us who those people are, looking at that photograph? A. Gary and me. Q. In the month of February, 1990, and I guess for a long period before, your husband was employed with Rutherford Trucking; is that right? A. Yes. Q. And then on the early morning hours of February 21, 1990, did you come to Beckley, West Virginia. A. Yes, I did. Q. And did you receive a call that made you come to Raleigh General Hospital. A. Yes. Q. Now, when you got to Raleigh General in the early morning hours of February 21, 1990, was Gary still at the hospital here? A. No. They had life-flighted him to CAMC in Charleston. Q. And so where did you go then, to the Charleston Hospital? A. Yes. Just as soon as we got there, they told us, and we left. Q. When you say "we," who were you with? A. My mom and my aunt and Kevin's wife, Carolyn. Q. Kevin Prunty's wife? A. Uh-huh (yes). Q. When you got to the hospital in Charleston, what were they doing, was he in surgery, was he out of surgery? A. Yeah, they had -- well, first of all, they did a lot of X-rays on him, and then they took him to surgery. He was in surgery for about five hours, I believe. Q. And then that would have gone through Wednesday and then through Thursday; is that right? A. Yes. Q. And then on Friday, February 23, 1990, was when he died; is that right? A. Yes. MS. KELLER: That's all. MR. POLING: No questions, Your Honor.
Footnote: 6See generally, J. D. Ludington, Annotation, Admissibility and propriety in homicide prosecution, of evidence as to deceased's spouse and children, 67 A.L.R.2d 731 (1959).
Footnote: 7The widow's entire testimony on this point consisted of the following: "Q. How old was your husband at the time he was killed? A. He was on thirty-eight. Q. How long had you been married? A. About 19 year. Q. What? A. About 19 year. Q. A family? A. Yes, sir." Id. at 394.
Footnote: 8The State maintained that the photos "were a necessary link in the chain of tracing the body of the man shot at Lee's Wash Rack to the man who was identified at Desloge Hospital by his widow and were therefore a necessary part of the State's case." Id. at 244. The photos were admitted into evidence after defense counsel refused to stipulate that the earlier photos taken some years ago were a reasonable likeness of the deceased at the time of his death.