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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2001 Term
STATE OF WEST VIRGINIA,
Plaintiff Below Appellee,
CHRISTOPHER SCOTT ADKINS,
Defendant Below, Appellant.
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Criminal Action No. 99-F-188
Submitted: February 20, 2001
Filed: March 9, 2001
Gregory L. Ayers
Darrell V. McGraw, Jr.
Kanawha County Public Defender Corporation
Charleston, West Virginia
Benjamin F. Yancey, III
Attorney for the Appellant
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered Per Curiam.
SYLLABUS BY THE COURT
1. A judgment of conviction will not be reversed because of improper
remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused
or result in manifest injustice. Syllabus point 5, State v. Ocheltree, 170 W. Va. 68, 289
S.E.2d 742 (1982).
2. Failure to make timely and proper objection to remarks of counsel
made in the presence of the jury, during the trial of a case, constitutes a waiver of the right
to raise the question thereafter either in the trial court or in the appellate court. Syllabus
point 6, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945).
3. Four factors are taken into account in determining whether improper
prosecutorial comment is so damaging as to require reversal: (1) the degree to which the
prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert attention to extraneous matters.
Syllabus point 6, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).
This appeal was filed by Christopher Scott Adkins, appellant/defendant below
(hereinafter referred to as Mr. Adkins), from a conviction and sentence by the Circuit
Court of Kanawha County. Mr. Adkins was convicted of unlawful wounding and sentenced
to one to five years imprisonment. Here, Mr. Adkins assigns error to statements made at trial
by the prosecutor in the initial closing argument and in rebuttal closing argument. After a
thorough review of the briefs and record in this case, we affirm the conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves a fight between Mr. Adkins and Mr. Michael Wingett. The
altercation occurred in Dunbar, West Virginia, on August 3, 1998. On that date, Mr. Adkins
and a friend, Mr. James Cooke, were leaving the Dunbar Mart, a convenience store, when
they confronted Mr. Wingett. Mr. Wingett was going to the Dunbar Mart with his father and
a friend. Mr. Adkins approached Mr. Wingett and brushed up against him. Harsh words
Mr. Adkins and Mr. Cooke left the scene and went to the home of Kim
Alderman. While there, Mr. Adkins obtained a kitchen knife. Mr. Adkins then returned to
the Dunbar Mart where he confronted Mr. Wingett. The trial testimony was conflicting as
to what next occurred. However, it is clear that a fight took place between Mr. Adkins and
Mr. Wingett. During the fight, Mr. Adkins stabbed Mr. Wingett in the back and chest region
with the kitchen knife.See footnote 1
Local police were called to the scene of the fight, and they arrested Mr. Adkins.
Mr. Adkins gave a statement to the police indicating he stabbed Mr. Wingett in self-defense
after Mr. Wingett hit him with a stick. A grand jury indicted Mr. Adkins for malicious
wounding. The jury returned a verdict finding Mr. Adkins guilty of unlawful wounding, a
lesser included offense. The trial court sentenced Mr. Adkins to imprisonment for one to five
years. It is from this sentence that Mr. Adkins now appeals.
STANDARD OF REVIEW
Mr. Adkins contends that his state and federal constitutional rights to a fair trial
and due process were violated as a result of alleged improper remarks by the prosecutor
during closing argument and during rebuttal closing argument. We have long held that
[f]ailure to observe a constitutional right constitutes reversible error unless it can be shown
that the error was harmless beyond a reasonable doubt. Syl. pt. 5, State ex rel. Grob v.
Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975). This Court has also stated that [a] judgment
of conviction will not be reversed because of improper remarks made by a prosecuting
attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.
Syl. pt. 5, State v. Ocheltree, 170 W. Va. 68, 289 S.E.2d 742 (1982).
Regarding the role of a prosecutor, this Court held in Syllabus point 3 of State
v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977):
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.See footnote 2
Finally, Rule 3.4 of the West Virginia Rules of Professional Conduct states that . . . [a]
lawyer shall not . . . in trial . . . state a personal opinion as to the justness of a cause, the
credibility of a witness, . . . or the guilt or innocence of an accused. Accord State v.
Stephens, 206 W. Va. 420, ___, 525 S.E.2d 301, 305 (1999); Syl. pt. 8, State v. England,
180 W. Va. 342, 376 S.E.2d 548 (1988).
A. Initial Closing Argument
The first issue raised by Mr. Adkins concerns a closing argument statement
made by the prosecutor wherein the prosecutor indicated that Mr. Adkins and his trial
witness, Mr. Cooke, were liars. The following statement was made by the prosecutor during
the initial closing argument:
Innocent misrecollection, that sort of thing. That's one
thing. If its an out and out lie, it's another. Ladies and
gentlemen, I submit to you that the only two witnesses in this
case who have been shown to be liars is [sic] the Defendant and
his witness, Mr. Cooke.
Mr. Adkins readily concedes that he failed to raise an objection to the closing
argument remark at trial. Thus, the State argues that the issue was waived by Mr. Adkins
because of his failure to object at trial. The rule in West Virginia has long been that [i]f
either the prosecutor or defense counsel believes the other has made improper remarks to the
jury, a timely objection should be made coupled with a request to the court to instruct the jury
to disregard the remarks. Syl. pt. 5, in part, State v. Grubbs, 178 W. Va. 811, 364 S.E.2d
824 (1987). This Court has also long held that [f]ailure to make timely and proper objection
to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes
a waiver of the right to raise the question thereafter either in the trial court or in the appellate
court. Syl. pt. 6, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). Because of
these well-settled legal principles,See footnote 3
we deem this issue waived for appellate review purposes.See footnote 4
See State v. Davis, 205 W. Va. 569, 586, 519 S.E.2d 852, 869 (1999) (In view of our
precedent, the defendant cannot argue for the first time on appeal that the prosecutor made
improper remarks during the State's opening statement and closing argument.); State v.
Young, 185 W. Va. 327, 349 n.25, 406 S.E.2d 758, 780 n.25 (1991) (finding defendant
waived issue of improper remarks by the prosecutor during closing argument because of
failure to object).
B. Rebuttal Closing Argument
Mr. Adkins has also assigned error to remarks made by the prosecutor during
the prosecutor's rebuttal closing argument. Specifically, Mr. Adkins complains about the
prosecutor informing the jury that Mr. Adkins and Mr. Cooke gave the police statements that
were very different from their trial testimony. The following exchange occurred regarding
PROSECUTOR: Changing stories to take away his self
defense--he and his friend are the ones who changed their stories
to give him a claim of self defense. Their stories to the police
don't support self defense. The only stories that support self
defense are the ones they told you on this witness stand, which
are very different from the ones they told the police.
DEFENSE COUNSEL: Objection. Facts not in
evidence. The Defendant's statement to the police was not
entered into evidence.
THE COURT: All right.
PROSECUTOR: Your Honor, I questioned the
Defendant about his statements to the police. It wasn't--
THE COURT: I'm sorry. You can argue what you've
questioned him about. You can't make a quote from the
Mr. Adkins contends that the prosecutor's comment misled the jury that
Adkins' must have lied in his testimony because his story to the police was 'very different,'
and that it 'did not support self-defense.' Assuming, without deciding, that the prosecutor's
comment was error, we do not believe such an error warrants reversal of the judgment in this
This Court has held that [a] judgment of conviction will be reversed because
of improper remarks made by a prosecuting attorney to a jury that clearly prejudice the
accused or result in manifest injustice. State v. Stephens, 206 W. Va. 420, 425, 525 S.E.2d
301, 306 (1999) (citing Syl. pt. 5, State v. Ocheltree, 170 W. Va. 68, 289 S.E.2d 742 (1982)).
We recently held in Syllabus point 6 of State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995)
Four factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to
require reversal: (1) the degree to which the prosecutor's
remarks have a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or extensive;
(3) absent the remarks, the strength of competent proof
introduced to establish the guilt of the accused; and (4) whether
the comments were deliberately placed before the jury to divert
attention to extraneous matters.
Applying the Sugg factors to the instant case, we find the prosecutor's remarks
clearly did not mislead the jury or prejudice the accused. The prosecutor made an isolated
comment that testimony by Mr. Adkins and Mr. Cooke was very different from that given
to the police. The trial court, upon a proper objection, quickly warned the prosecutor to
confine argument to differences in the witnesses's police statements that were actually
demonstrated through trial testimony. No further broad statements were made by the
prosecutor. Furthermore, while the evidence in the case was conflicting on many key issues,
the prosecutor's evidence was sufficient for the jury to find Mr. Adkins guilty beyond a
reasonable doubt. We, therefore, decline to find reversible error.See footnote 5
See State v. Satterfield,
193 W. Va. 503, 516, 457 S.E.2d 440, 453 (1995) (finding no reversible error when
prosecutor misquoted the evidence relating to DNA test results); State v. Johnson, 187 W.
Va. 360, 364 n.7, 419 S.E.2d 300, 304 n.7 (1992) (The prosecutor's closing statements did
nothing more than point out inconsistencies in [defendant's] testimony.).
The judgment of conviction and sentence is affirmed.
1Mr. Wingett was hospitalized for twenty-four days as a result of the knife wounds.
2See Syllabus, State v. Moose, 110 W. Va. 476, 158 S.E. 715 (1931) (An attorney for
the state may prosecute vigorously as long as he deals fairly with the accused; but he should
not become a partisan, intent only on conviction. And, it is a flagrant abuse of his position
to refer, in his argument to the jury, to material facts outside the record, or not fairly
3We do not believe the issue to be of such magnitude that we must invoke the plain
error doctrine. The plain error doctrine of W. Va. R. Crim. P. 52(b), whereby the court may
take notice of plain errors or defects affecting substantial rights although they were not
brought to the attention of the court[.] Syl. pt. 4, in part, State v. Grubbs, 178 W. Va. 811,
364 S.E.2d 824 (1987). By its very nature, the plain error doctrine is reserved for only the
most egregious errors. In order [t]o trigger application of the 'plain error' doctrine, there
must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously
affects the fairness, integrity, or public reputation of the judicial proceedings. Syl. pt. 7,
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
4In State v. Collins, 186 W. Va. 1, 14, 409 S.E.2d 181, 194 (1990), this Court made
clear that the fact that a witness may be impeached by a prior inconsistent statement or gives
testimony at variance with the State's witnesses does not give the prosecutor the absolute
right to brand the witness a liar in his closing argument. Collins, 186 W. Va. at 14, 409
S.E.2d at 194. The State's brief cited several federal cases where courts have permitted
prosecutors to use the word lying or liar, with respect to testimony. We note that those
federal cases are consistent with Collins. That is, federal courts permit prosecutors to refer
to a witness as lying, so long as the prosecutor sticks to the evidence and refrains from
giving his personal opinion. United States v. Dean, 55 F.3d 640, 665 (D.C. Cir. 1995).
Under Collins, a prosecutor may, in appropriate circumstances, refer specifically to testimony
that has been shown at trial to be a lie. See State v. Dietz, 182 W. Va. 544, 559 n.15, 390
S.E.2d 15, 29 n.15 (1990) (finding no reversible error when the prosecutor described the
defendant as a liar).
5In a footnote to Mr. Adkins' brief he mentions that he filed a motion for a mistrial
with the trial court after the prosecutor attempted to question a police officer regarding post-
arrest silence by Mr. Adkins. Although we liberally construe briefs in determining issues
presented for review, issues which are not raised, and those mentioned only in passing but
are not supported with pertinent authority, are not considered on appeal. State v. LaRock,
196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996). See also State v. Lilly, 194 W. Va. 595,
605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) ('casual mention of an issue in a brief is cursory
treatment insufficient to preserve the issue on appeal,' (quoting Kost v. Kozakiewicz, 1 F.3d
176, 182 (3rd Cir. 1993)).