Davis, J., dissenting, joined by Chief Justice Maynard:
What makes a decision 'judicial' and not an exercise in raw power is its
discipline: principled decision-making after careful attention to precedent and persuasive
argument and close application to fully-developed facts. Davis v. Moore, 772 A.2d 204,
237 (D.C. 2001) (Ruiz, J., concurring in part and dissenting in part). Here, the majority
finds that the probative value of habitual drug use to show motive to commit a property
crime is inadmissible as its probative value is outweighed by its prejudicial effect.
Because this conclusion ignores, distorts, and misapplies precedent, ignores the factual
content and context of the State's 404(b) evidence, effectively overrules an opinion of this
Court, and threatens our carefully-crafted law under Rule 404(b), I dissent.
It is presumed a defendant is protected from undue prejudice if the following requirements are met: (1) the prosecution offered the evidence for a proper purpose; (2) the evidence was relevant; (3) the trial court made an on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and (4) the trial court gave a limiting instruction.
Application of this law compels affirming the convictions, as I now shall illustrate.
Here, the circuit court's conclusion comports with State v. Johnson, 179 W. Va. 619, 371 S.E.2d 340 (1988). The majority's attempts to distinguish Johnson because the drug use in that case related predominantly to the co-conspirators is insupportable because we specifically identified in Johnson that [e]vidence that the defendant had used drugs with his co-conspirators was . . . admissible to show motive for commission of the crimes charged. Id. at 627, 371 S.E.2d at 348. See also Woodrum v. Johnson, 210 W. Va. 762, 766, 559 S.E.2d 908, 912 (2001) (When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67, 116 S. Ct. 1114, 1129, 134 L. Ed. 2d 252, 273 (1996))). Moreover, we examined Johnson in State v. Miller and concluded that Johnson's ratio decendi was that the defendant's drug use was admissible to show motive:
In the Johnson case, the state was permitted to introduce evidence not only of the defendant's drug usage but evidence that the defendant tended to purchase drugs with stolen money. The reason the trial court allowed such evidence to be admitted was that it provided a motive for the defendant's participation in the robbery for which he was on trial.
184 W. Va. 492, 499, 401 S.E.2d 237, 244 (1990) (per curiam) (citations omitted). Thus, since the circuit court's decision comports with Johnson, and a number of other cases finding that such drug use motive is admissible under Rule 403, (See footnote 2) I cannot consider the circuit court's decision arbitrary and irrational. Therefore, I would apply Johnson and find the probative value of the other crime evidence in this case was not outweighed by the possible prejudicial effect on the jury. 179 W. Va. at 627, 371 S.E.2d at 348 (footnote omitted).
Moreover, the majority's finding that Mr. Taylor's drug use was inadmissible because it occurred four months before the crimes charged in this case is both legally flawed and factually erroneous. We have held that [a]s a general rule remoteness goes to the weight to be accorded the evidence by the jury, rather than to admissibility. Syl. pt. 6, State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533 (1982). As we observed in State v. McIntosh,
[r]emoteness, or the temporal span between a prior crime, wrong, or other act offered as evidence under Rule 404(2) and a fact to be determined in a present proceeding, goes to the weight to be given to such evidence and does not render the evidence of the other crime, wrong, or act irrelevant and inadmissible.
207 W. Va. 561, 573, 534 S.E.2d 757, 769 (2000) (per curiam) (citation omitted).
The majority is factually wrong in claiming the evidence was four months
old. While the State explained that it limited Mr. Taylor's drug use to a four month period,
what the majority misses is that this four months was not the four months leading up to the
break-ins; rather, it was the month or two prior to the break-ins, the month of December
when the break-ins occurred; and the month of January when Mr. Taylor traded the goods
he stole from Grant County Mulch and Schell Farms. At most, the State introduced
evidence of Mr. Taylor's drug use only in the one or two months leading up to the break-
(See footnote 3)
Consequently, I do not find State v. Walker, 188 W. Va. 661, 669, 425 S.E.2d 616,
624 (1992), authority for the majority's conclusion, because the case sub judice did not
involve evidence that was four months old.
(See footnote 4)
The circuit court's ruling is justifiable on yet another ground. The State's
case was circumstantial. A circumstantial case favors admitting motive evidence since
motive evidence is of great probative force in determining guilt, especially in cases of
circumstantial evidence[.] 22 C.J.S. Criminal Law § 34 at 40 (1989). Significantly, there
is a higher tolerance for the risk of prejudice in cases where the evidence is particularly
probative. United States v. Rivera, 6 F.3d 431, 443 (7th Cir. 1993).
(See footnote 5)
Finally, the non-West Virginia cases the majority cites are unpersuasive. For
example, the majority cites State v. Mazowski, 337 N.J. Super. 275, 776 A.2d 1176 (App.
Div. 2001). However, not only does Mazowski contradict Johnson, at least one court has
not found Mazowski to be persuasive enough to be followed. In State v. Crawley, 633
N.W.2d 802, 807-08 (2001), the Iowa Supreme Court recognized that Mazowski creates
controversy over whether drug use motive evidence is too prejudicial to be admissible.
The Iowa Supreme Court, however, rejected Mazowski finding that, even had the defense
objected, evidence of the defendant's drug use to show the motive to commit forgery of
checks to obtain money to purchase drugs was not too prejudicial to be admitted under
Rule 403. Crawley, 633 N.W.2d at 808.
The majority's citation to People v. Jones, 119 Mich. App. 164, 168, 326
N.W.2d 411, 412-23 (1982), is misplaced as Jones actually supports the State. Jones
recognized that drug use/motive evidence has a strong prejudicial effect. Unlike the
majority, however, the Jones court did not stop its analysis with this observation. Rather,
it went on to conclude that such evidence is admissible if the State shows relevance by
establishing (1) that defendant was addicted at or near the time of the offense and,
therefore, compelled to obtain the drug, and (2) that defendant lacks sufficient income
from legal sources to sustain his or her continuing need for heroin. Id. at 168, 326
N.W.2d at 413. Jones went on to state that [w]ithout such a foundation, evidence of
heroin use should be excluded from proof of motive, as its prejudicial effect substantially
outweighs its probative value. Id. at 168-69, 326 N.W.2d at 413 (emphasis added). Here,
the 404(b) evidence showed Mr. Taylor was unemployed and a habitual user of
methamphetamine, an expensive
(See footnote 6)
schedule II drug,
(See footnote 7)
at the time of the Grant County
Mulch and Schell Poultry break-ins. Thus, the State's 404(b) evidence provided the
necessary foundation to establish the relevance of Mr. Taylor's habitual drug use and to
avoid a Rule 403 violation.
(See footnote 8)
The majority's reliance on California cases is misplaced as well. In
California drug habit is admissible to show motive only if the motive of the charged crime
is to directly obtain drugs or to violate the Health and Safety Code. People v. Cardenas,
31 Cal. 3d 897, 906, 647 P.2d 569, 573 (1982). The basis for this approach is that habitual
drug usage tends only to 'remotely or to an insignificant degree . . . prove a material fact
in the case . . . .' Id. at 906, 647 P.2d at 573 (citation omitted). In Johnson we did not
rely on California law. We did, however, cite to certain other jurisdictions including the
United States Court of Appeals for the Seventh Circuit. 179 W. Va. at 627, 371 S.E.2d
at 438 (citing United States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977)). The Seventh
Circuit has implicitly rejected the underlying premise of the California cases that drug use
and property crime motives are too insignificant to prove a fact in a case by finding that
the drug use and the crime at issue [of bank robbery] . . . have a significant relationship
because the act [of drug use is] the motive underlying the crime of bank robbery. United
States v. Brooks, 125 F.3d 484, 500 (7th Cir. 1997). Likewise, we relied on Georgia
authority in Johnson, 179 W. Va. at 627, 371 S.E.2d at 483 (citing Carruth v. State, 182
Ga. App. 786, 357 S.E.2d 122 (1987)), and the Georgia Court of Appeals has found that
a reasonable factfinder could infer a connection between the armed robbery [and] the
purchase of cocaine . . . . The association between the high cost of drugs and the need for
funds to purchase them is well recognized. Chergi v. State, 234 Ga. App. 548, 549, 507
S.E.2d 795, 796 (1998). See also Crawley, 633 N.W.2d at 808 (finding a logical
relationship between forgery and drug use since the motive for the forgery was to obtain
funds to buy drugs). The majority's reliance on Cardenas is simply unavailing in light of
Johnson and the subsequently developed case law from other jurisdictions upon which
Johnson relied. See also Hon. Mark B. Simmons, Simmons California Evidence Manual
§ 1:32 (2002-2003 ed.) (observing that despite [Cardenas's] holding, evidence of drug
addiction has not been rejected uniformly in cases in which the object of the robbery has
Finally, I disagree that this is one of those cases where no limiting
instructions could have mitigated the evidence of Mr. Taylor's habitual drug use. Indeed,
we found such instructions to be efficacious in Johnson. 179 W. Va. at 627, 371 S.E.2d
at 348. This result is in accord with a number of other jurisdictions. See, e.g., Bitterman,
320 F.3d at 727 (Moreover, as the judge gave the jury a limiting instruction (regarding
the heroin testimony) to this effect, we are not convinced that the potential prejudice from
such evidence outweighed its probative value.); Cartagena-Merced, 986 F. Supp. at 704-
05 (similar); State v. Feliciano, 256 Conn. 429, 454, 778 A.2d 812, 828 (2001). Moreover,
a limiting instruction is particularly effective in mitigating evidence of a defendant's
habitual drug use when the evidence (such as that here) does not involve acts of violence
that could have shocked or otherwise influenced the jury. Feliciano, 256 Conn. at 454,
78 A.2d at
As one of the members of this Court has previously commented,
I see absolutely no justification for disregarding our deep-rooted dedication to the principle of stare decisis in circumstances such as these where the law is clear. Casting aside well-settled law for no reason other than to substitute judge- made law is particularly reprehensible in the area of criminal law where clarity and fairness are overriding concerns.
State v. Anderson, 212 W. Va. 761, 767, 575 S.E.2d 371, 377 (2002) (per curiam) (Albright., J., concurring). Further, since all four prongs of syllabus point 3 of LaRock have been met in this case and the majority still reverses, I fear that the majority opinion will metastasize beyond simply this case and hazard all of our carefully crafted Rule 404(b) jurisprudence, much of which was authored by former Justice Franklin D. Cleckley, one of the foremost scholars in criminal law in the entire country. Thus, I dissent. I am authorized to state that Chief Justice Maynard joins me in this dissenting opinion.
1. A number of people saw the defendant use cocaine;
2. The defendant bought cocaine three times per week;
3. The defendant tested positive for cocaine and lost his job within five or six weeks of
4. The defendant tried to borrow money within six months before the murder, and,
5. The defendant tried to sell items the week before the murder.
Id. at * 3-*5