Silas B. Taylor
Senior Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee
Thomas W. Smith
Charleston, West Virginia
Attorney for the Appellant
The opinion was delivered PER CURIAM.
1. "The prosecuting attorney occupies a quasi-judicial
position in the trial of a criminal case. In keeping with this
position, he is required to avoid the role of a partisan, eager to
convict, and must deal fairly with the accused as well as the other
participants in the trial. It is the prosecutor's duty to set a
tone of fairness and impartiality, and while he may and should
vigorously pursue the State's case, in so doing he must not abandon
the quasi-judicial role with which he is cloaked under the law."
Syllabus point 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710
2. "'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)." Syllabus
point 7, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986).
3. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except
that proved counsel error which does not affect the outcome of the
case, will be regarded as harmless error." Syllabus point 19,
State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
4. "Where a counsel's performance, attacked as
ineffective, arises from occurrences involving strategy, tactics
and arguable courses of action, his conduct will be deemed
effectively assistive of his client's interests, unless no
reasonably qualified defense attorney would have so acted in the
defense of an accused." Syllabus point 21, State v. Thomas, 157
W.Va. 640, 203 S.E.2d 445 (1974).
The appellant, William A. Stewart, appeals from the
August 3, 1990, final order of the Circuit Court of Kanawha County
which sentenced the defendant to serve a term of imprisonment of
life without hope of parole for the first-degree murder of his
wife, Nancy Stewart, and a consecutive term of one-to-five years
for the attempted first-degree murder of his stepdaughter, Melissa
The appellant, William Stewart, the defendant below,
lived with his wife, Nancy, and their two children, Jasmine and
Robert Stewart. Also living with William and Nancy Stewart was
Melissa Armstrong, one of Nancy Stewart's daughters. A second
daughter, Melanie Armstrong, lived with her grandmother. By all
accounts, the appellant was an alcoholic and also took narcotics
and antidepressant medications.
Testimony elicited at trial indicated that on January 28, 1989, the appellant made hostile remarks toward his wife and her two children. Melanie Armstrong, the daughter who lived with her grandmother, testified that the defendant was arguing and complaining to his wife about her not being home while she was going to school and that "if I go down, I'll take you three with me." Later that same day, the defendant told his neighbor, Michael Facemire, that he wished his wife would leave and not come back.
That same afternoon, he showed Mr. Facemire a new loaded .44
caliber gun which he had recently purchased. The evening prior to
the shooting, the defendant visited Frankie Billo's bar and
displayed the gun to several patrons, making remarks such as
"someone is going to die tonight", "I'm going to end up using this
on somebody tonight", and "fireworks are going to start tonight."
The gun was removed from Mr. Stewart's possession and Mr. Stewart
was ejected from the bar. Unfortunately, however, someone returned
his gun to him after he was ejected.
Upon returning home, the appellant began arguing with
Nancy Stewart. According to Nancy Stewart's daughter, Melissa, she
was awakened at 3:00 a.m. by the argument. Shortly thereafter, as
the defendant was passing by her bedroom, he shot at her while she
lay in her bed and missed her head by five or six inches. Melissa
stated that the defendant chased her mother outside, at which time
two or three shots were fired. The defendant returned to the
trailer, where he told his two children, Jasmine and Robbie, to
stay in bed, that it would "be alright." He then returned outside,
whereupon Melissa heard one more shot.
The Stewarts' next door neighbors, Michael Facemire and his wife, Joyce, testified that he and his wife woke up at 3:00 a.m. the morning of the shooting, but prior to the actual shots being fired, because their infant daughter had awakened. As his wife returned from the kitchen with a bottle, Mr. Facemire
testified that they heard a single shot and then several seconds
later a string of two or three shots, and then a final shot "a
little bit later." He also testified that he heard a lot of
screams. After the shots stopped, Nancy's mother telephoned,
stating that Melissa had called her and said that Bill had shot
Nancy, and asked if he had heard any shots. He answered yes. She
stated that she had already called the police and that they were on
their way. Mr. Facemire testified that there was excellent
lighting between the two trailers and that once the police arrived,
he saw Nancy Stewart's body being photographed by the police. He
also testified that his trailer now had two bullet holes, with one
bullet lodged beneath his refrigerator.
The police discovered the appellant lying a few feet away
from the body of Nancy Stewart, with the gun placed close to her
body. Nancy Stewart was declared dead at the scene. A trail of
blood led from her body to the spot where the appellant was
located. He had a gunshot wound in the face. A blood alcohol
level performed on the appellant two hours after the shooting was
At trial, the defendant testified that when he came home from the bar that night, he argued with his wife, locked his gun up, and remembered nothing more until he woke up in the hospital the next morning. There was additional testimony that, while in the hospital, the defendant told hospital personnel that his wife
had shot him and then herself. This theory was not seriously
pursued because the autopsy showed that Nancy Stewart was shot in
Also testifying was Dr. Johnny Gallemore, Chief of
Psychiatry at the Huntington Veteran's Hospital. Dr. Gallemore
testified that the appellant's .274 blood alcohol level was
inconsistent with the ability to form an intent to kill. Dr. Nancy
Graham, a resident psychiatrist at Charleston Area Medical Center,
testified that she treated the appellant while he was in the
hospital following the injury to his face. Although he was unable
to talk, he would write her notes on a pad of paper. She stated
that the appellant told her that he thought his wife had shot him,
although he could not really remember. She also testified that
people who drank regularly and heavily could develop a tolerance to
the alcohol, but that the effect could vary widely. Upon
questioning by Mr. Taylor, Dr. Graham stated that she had written
to Mr. Taylor and told him that she felt that Mr. Stewart would be
best served by obtaining a forensic evaluation by a physician
trained in courtroom situations. She suggested Dr. Gallemore, who
was eventually retained.
The next expert to testify was Dr. Ralph Smith, who testified that he was a board certified forensic psychiatrist, which he defined as "the application of law in the field of psychiatry. Working with Worker's Compensation cases, Social
Security claimants, child custody problems, civil and criminal
cases in court." He also stated that he was the only board
certified forensic psychiatrist in the State and one of only 220
across the country. Essentially, Dr. Smith testified that chronic
alcoholics could develop a tolerance for high levels of alcohol in
their bloodstream, meaning that they could function relatively
normally at the high level. He concluded that, despite the
appellant's blood alcohol level, his behavior at the time of the
shooting was indicative that he was rationale and capable of
On July 23, 1990, the jury found the defendant guilty of
first-degree murder with no recommendation of mercy and guilty of
the attempted murder of his stepdaughter, Melissa Armstrong. The
court sentenced the appellant to life without possibility of parole
for the first-degree murder conviction and a consecutive term of
one-to-five years for the attempted murder conviction. It is from
this final ruling that the appellant now appeals.
The appellant states several errors which he contends constitute reversible error. The appellant's major argument is that inflammatory statements made by the prosecutors during the trial had the cumulative effect of denying his right to a trial by an impartial jury. He points to several comments made by the prosecutor during opening and closing statements as the basis for his argument. The State counters that the errors alleged by the
appellant were not improper, and even if improper, the statements
were harmless and did not contribute to the guilty verdict. See
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967). We agree that the appellant's assignments of error
were either proper statements or harmless error.
The general rule regarding the function of a prosecuting attorney in a criminal case has been set forth by this Court in State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). In Boyd, we held that:
The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law.
Id. at syl. pt. 3. See also State v. Moss, 180 W.Va. 363, 376
S.E.2d 569 (1988). In State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245
(1978), this Court ruled that improper remarks are not reversible
error unless, when considering the whole trial, the statements work
"a manifest injustice" or "clearly prejudice the accused." Id. at
syl. pt. 1. See also, State v. Hobbs, 178 W.Va. 128, 358 S.E.2d
The appellant's primary allegation is that at trial, the State classified Dr. Smith as the "most qualified person" in the
State in the area of intoxication without specific qualification.
This classification would be relevant to the jury's deliberations
since the defense was based upon the premise the appellant was too
drunk to intend to kill either Nancy Stewart or Melissa Armstrong.
During the trial Dr. Smith testified that he was a "forensic
psychiatrist," which is defined as "the application of law in the
field of psychiatry," that he was the only board certified forensic
psychiatrist in the State of West Virginia, and that there were
only 220 similarly board-certified forensic psychiatrists across
the nation. He also listed board certifications in psychiatry and
neurology, psychiatry, child psychiatry, and medical management.
Black's Law Dictionary defines "forensic medicine" as the
application of medicine to law:
That science which teaches the application of every branch of medical knowledge to the purposes of the law; hence its limits are, on the one hand, the requirements of the law, and, on the other, the whole range of medicine. Anatomy, physiology, medicine, surgery, chemistry, physics, and botany lend their aid as necessity arises; and in some cases all these branches of science are required to enable a court of law to arrive at a proper conclusion on a contested question affecting life or property.
Based upon that definition of "forensic medicine," it is clear that Dr. Smith was qualified to testify on the issue of intoxication levels, as that question obviously includes several of the areas of expertise identified as part of forensic medicine -- anatomy, physiology, and chemistry in relation to legal principles in criminal cases. Further, considering that Dr. Smith was the only
board-certified forensic psychiatrist in the State, the
characterization as the "most qualified person" in the State was
within the realm of testimony elicited at trial.See footnote 1
The defense also complains about the State's description
of the grand jury process during opening statement:
Every felony case that comes before a petit jury like you comes through the indictment process. In other words, the case has to get through the grand jury before it gets to you.
A grand jury consists of 16 people, citizens
like yourself, selected like yourself, who
review all of the various cases and crimes
that have been committed in Kanawha County
over a certain period of time. And those that
they allow to pass through, they return an
indictment if they feel there is sufficient
The defense, however, fails to account for the remainder of the
prosecution's statement to the jury:
Now, in all fairness, the indictment itself is not evidence. It is merely a formal charge that sets forth elements of the crime. (Tr. 169-170.)
The jury was correctly advised that a grand jury indictment is not evidence of guilt. No evidence was presented which persuades this
Court that the statement mislead the jury into believing the grand
jury proceeding was evidence of guilt against the accused.
The defense also lists multiple examples of the State's
failure to qualify statements regarding the defendant's guilt and
statements which allegedly prejudiced the appellant in front of the
jury. The appellant points to the prosecutor's statements during
closing argument: "He is guilty beyond a reasonable doubt of
murder in the first degree, you have to decide whether to give him
mercy." While a prosecutor is prohibited from interjecting his
personal opinion regarding the guilt or innocence of the accused in
the trial of a case, this statement was not expressed as an
opinion. State v. Kanney, 169 W.Va. 764, 289 S.E.2d 485 (1982).
Further, although we recognize that the State should have qualified
the statement with an appropriate phrase such as "the evidence will
show," the facts surrounding this case make the error harmless.
However, we caution the prosecutors that such statements may not
always be considered harmless and may, with the right set of facts,
constitute reversible error.
The appellant next complains about the State's closing statement, where the prosecutor, in asking for life without mercy, said "Please do not ask (Melissa) to live the rest of her life at the discretion of the parole board, worrying that he may get out someday." The defense points to the State's opening statement, wherein the prosecutor said that on January 18, 1989, Mr. Stewart
"made up his mind to murder his wife and stepdaughters." While we
agree these statements might be prejudicial if not based in fact,
sufficient evidence existed to provide a factual basis for the
theory that the appellant intended to kill his wife and
stepdaughters. At trial, testimony was presented wherein the
accused stated that he would take his wife and stepdaughters "down"
with him if he went down. Thus, we cannot say the accused was
prejudiced or that the statements worked a "manifest injustice."
Perhaps the "manifest injustice" standard might be met where the
evidence was less convincing. In this case, however, the evidence
and testimony were more than sufficient to persuade the jury of the
defendant's intentions and guilt.
The State asserts that even if the prosecutor's statements were improper, no objections were made at trial. "'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). Further, the State argues that the errors do not rise to the level which would permit recognition under the plain error doctrine. In State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975), this Court ruled that a court will recognize errors not objected to below if the error involves a fundamental right of the accused which is protected by the Constitution. Id. at syl. pt. 4. We agree with the State that the
failure of the trial attorney to object to some of the prosecutor's
statements cannot be recognized under the plain error doctrine. We
also believe that the failure of trial counsel to object to the
prosecutor's statements does not rise to the level of ineffective
assistance of counsel.
Claims of ineffective assistance of counsel are not to be
made lightly. Tucker v. Holland, 174 W.Va. 409, 327 S.E.2d 388
(1985). Like the United States Supreme Court, we have ruled that
"a defendant who asserts a claim of ineffective assistance of
counsel must prove (1) that his legal representation was
inadequate, and (2) that such inadequacy prejudiced his case."
Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117, 133 (1988). See
also, Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). In syllabus points 19 and 21 of State v.
Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), we established the
following standards for determining ineffective assistance of
In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error.
Where a counsel's performance, attacked
as ineffective, arises from occurrences
involving strategy, tactics and arguable
courses of action, his conduct will be deemed
effectively assistive of his client's
interests, unless no reasonably qualified
defense attorney would have so acted in the
defense of an accused.
In the case now before us, the errors alleged by the
appellant could be reasonably classified as tactics or arguable
courses of action. Trial counsel's use of Dr. Graham's testimony
can be classified as trial tactics, particularly in light of the
letter read to the jury recommending Dr. Gallemore as a better
qualified expert. We note that during the trial, the trial counsel
objected with some frequency to statements made by the prosecutors,
obtained statements from witnesses, made discovery requests, filed
several motions in limine, and presented expert testimony on the
issue of intoxication. Given the basis in fact for the
prosecution's alleged misstatements, we cannot say that no
reasonably qualified defense attorney would have so acted in
representing an accused. Therefore, we find no reversible error.
Accordingly, we affirm the decision of the Circuit Court
of Kanawha County.
Footnote: 1In Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987), the qualification of experts was determined to be within the discretion of the trial court if the witness had specialized knowledge that would assist the trier of fact. In this case, no objection was made to Dr. Smith's qualification as an expert. Even if the defense attorney had objected, Rule 702 of the West Virginia Rules of Evidence permits liberal qualification of a witness as an expert, and the trial judge would have been well within his discretion to qualify Dr. Smith over the appellant's objection.