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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Raleigh County
Honorable John A. Hutchison, Judge
Civil Action No. 03-F-31
Submitted: May 10, 2005
Filed: July 6, 2005
Kristen L. Keller, Esq.
Chief Deputy Prosecuting Attorney
Beckley, West Virginia
Attorney for Appellee
Warren R. McGraw, II, Esq.
Prosperity, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM
SYLLABUS BY THE COURT
a statement is obtained from an accused in violation of the prompt presentment
rule, neither the statement nor matters learned directly from the statement
may be introduced against the accused at trial. Syllabus Point 1, State
, 213 W.Va. 339, 582 S.E.2d 786 (2003).
right to a trial by an impartial, objective jury in a criminal case is a fundamental
right guaranteed by the Sixth and Fourteenth Amendments of the United States
Constitution and Article III, Section 14 of the West Virginia Constitution.'
Syllabus point 4, [in part,] State v. Peacher, 167 W.Va. 540, 280 S.E.2d
559 (1981). Syllabus Point 4, in part, State v. Derr, 192 W.Va.
165, 451 S.E.2d 731 (1994).
appellant must carry the burden of showing error in the judgment of which he
complains. This Court will not reverse the judgment of a trial court unless error
affirmatively appears from the record. Error will not be presumed, all presumptions
being in favor of the correctness of the judgment.' Syllabus Point 5, Morgan
v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). Syllabus Point 2, WV
Dept. of Health & Human Resources Employees Federal Credit Union v. Tennant,
215 W.Va. 387, 599 S.E.2d 810 (2004).
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.' Syllabus Point 10, State
v. Huffman, 141
W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel.
R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994). Syllabus Point
1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999).
case is before the Court upon the appeal of the appellant, Alfred Gray. On August
29, 2003, following a four day trial, the appellant was convicted by a jury in
the Circuit Court of Raleigh County of the felony offense of first degree murder
with a recommendation of mercy. On December 5, 2003, the appellant was sentenced
to life in prison. In this appeal, the appellant raises legal challenges with
regard to prompt presentment, alleged juror misconduct, his rejection of a plea
agreement, and objections surrounding numerous evidentiary issues. Based upon
the parties' briefs and arguments in this proceeding, as well as the relevant
statutory and case law, we are of the opinion that the circuit court did not
commit reversible error and accordingly, affirm the decision below.
a.m., on October 31, 2002, the Raleigh County Emergency Operations Center (EOC)
received a 911 call from thirty-eight-year-old Alfred Gray, the appellant, wherein
he stated, I just shot my ole lady in the back of the head. When
the EOC dispatcher asked if she was still breathing, the appellant replied, No,
she's dead. Thereafter, Deputy Darlington of the Raleigh County Sheriff's
Office arrived at the home
where the shooting occurred. He found the body of twenty-seven-year-old Stephanie
Adkins (hereinafter, the victim) in the muddy yard.
found located inside a door of the home the .410 shotgun used to murder the victim.
He then noticed the socks on the victim's feet were mud-soaked, while the tennis
shoes found beside her body were clean. When Deputy Darlington asked the appellant
why the victim was not wearing her shoes, the appellant said that in the
movies . . . when someone was shot, you . . . took their shoes off.
told Deputy Darlington he had loaded the gun and was going to show the victim
how to shoot it and that as he was handing the gun to her it mysteriously discharged.
The appellant theorized that the victim must have turned to see a passing vehicle
at the same time the gun discharged resulting in the shotgun shell entering at
the base of the neck in the back of the head, almost direct center. He also said
he and the victim had planned to shoot cans off a fencepost from the porch of
the house. Testimony during trial, however, indicated that no cans were found
near the fencepost and it was too dark that night to even see the fencepost from
still at the crime scene, the appellant told the officers he and the victim had
a good relationship and they had not been arguing prior to the shooting and that
been sitting on [the appellant's] lap and [the two of them were] kissing. The
appellant and the victim were the parents of a three-year-old child. He said
the victim and their son were with him that night because he had planned to
take his son squirrel hunting the next morning.
after the shooting, Deputy Harold arrived and photographed the crime scene. He
then asked the appellant if he would go to the sheriff's office with him and
advised the appellant that he was not under arrest. He said the appellant did
not appear intoxicated or impaired in any manner and voluntarily agreed to go
with him to the sheriff's office. He also observed that the only other adult
at the residence, besides the appellant and the victim, was Steve Williams, a
friend of the appellant. Deputy Harold added that the three-year-old child of
the appellant and victim was also present at the crime scene.
way to the sheriff's office, Deputy Harold dropped the child off at the child's
grandmother's house. He said the child was upset, crying, [and] wanting
his mom, while the appellant was taking a nap in the back seat
of the police car. During the time in the vehicle, the deputy did not interrogate
the appellant. Upon arriving at the sheriff's office, Deputy Harold and Deputy
Rakes discussed the situation and advised the appellant that he was under arrest
for the murder of the victim. The appellant was then given Miranda
to which he executed a written waiver.
the evidence showed that during the days leading up to the shooting, the appellant
and the victim had argued extensively with regard to the custody of their child.
For example, on October 29, 2002, two days prior to the shooting, the victim
received a recorded telephone message from the appellant stating, Where
you at, bit*h? Your fuc*ing kid's sick. Don't you care? Your fuc*ing son is ill.
If you don't get here_you take care of him. What kind of mother are you?
October 29, 2002, the victim had only exercised visitation rights with the child
because she was under the mistaken belief that the appellant had legal custody
of their son. (See footnote
1) Later that evening, the victim spent the night with the child
at the appellant's residence. At one point, while the victim and her mother were
at the appellant's trailer discussing taking the child with them the following
day, the appellant said, I ought to just get my fuc*ing gun and kill you
now. The appellant, however, allowed the victim to take the child with
her when she left the next morning.
morning, on October 30, 2002, the victim learned the appellant no longer had
legal custody of the child and that she could regain custody. The appellant previously
had temporary custody of the child, however, that order had expired leaving the
custody of the child in question. Upon learning this information, the victim
went to the courthouse and
attempted to obtain a restraining order against the appellant and inquired
about how she could regain custody of the child.
of her expression of fear wherein she stated, He's going to kill me[,] in
reaction to the issue of custody of the child, she was unsuccessful in obtaining
a restraining order. Later that day, when the victim was speaking with the appellant
on the telephone, he gave her forty-five minutes to get that baby back to
him. He then left a message on her answering machine saying, Where's my
kid at, you bit*h? You better get him back here.
performed by Dr. James Kaplan, the West Virginia Medical Examiner, found fresh
injuries separate from the injuries surrounding the fatal gunshot wound.
There was a patterned injury to the victim's right eye, a multiple
fracture of her nasal bone, bilateral black eyes, bruising, and lacerations of
her lips, being the result of being punched or kicked in the lip and then
having the tissue lacerate the lip. There were also abrasions on her cheek
as well as abrasions around her neck that [were] the result of an assault
to that area leading to the conclusion that she had been beaten up prior
to being shot in the back of the head. The autopsy also led to the conclusion
that the wound inflicted by the shotgun was at very close range.
29, 2003, following a four day trial, the jury returned a verdict of guilty of
first degree murder with mercy, by use of a firearm. On December 5, 2003, the
appellant was sentenced to life in prison. This appeal followed.
STANDARD OF REVIEW
Point 1 of State v. Paynter
, 206 W.Va. 521, 526 S.E.2d 43 (1999), we held, 'Where
the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo
of review.' Syllabus Point 1, Chrystal R.M. v. Charlie A.L.
, 194 W.Va.
138, 459 S.E.2d 415 (1995). We have further indicated that a circuit court's
final order and ultimate disposition are reviewed under the abuse of discretion
standard. State ex rel. Hechler v. Christian Action Network
, 201 W.Va.
71, 491 S.E.2d 618 (1997).
Statement and Prompt Presentment
issue presented by the appellant concerns a statement he made to the police prior
to being taken to a magistrate. The appellant's counsel argues that following
the appellant's arrest, an attorney, Mr. Wooton, informed the police by telephone
that they were not to speak to the appellant. After receiving the telephone call,
Deputy Rakes contacted Ms. Keller, an assistant prosecuting attorney in the Raleigh
County Prosecuting Attorney's Office, and asked her for guidance. Ms. Keller
told Deputy Rakes to instruct the appellant about Mr. Wooton's telephone call
in order that the appellant could make an informed decision about how to proceed.
the appellant argues that the State violated the prompt presentment rule in not
taking him to a magistrate when the police had already made up their mind that
he would be charged with murder. Accordingly, the appellant maintains that his
statement should not have been admissible in the case against him. The appellant
further states that it is settled law that when the primary purpose of the delay
in taking a defendant to a magistrate is to obtain a statement that this tactic
violates the prompt presentment rule.
to the appellant, Deputy Rakes approached him and simply said, Mr. Gray,
John Wooton called, what do you want to do? Then, the appellant states
that Deputy Rakes proceeded to take a statement from him that was incriminating.
The appellant argues that at the time of the statement he had been drinking heavily
and was in no shape to make an informed decision and could not have
made such a decision without knowing that Mr. Wooton was an attorney that had
been contacted by someone in his family to represent him.
we must clarify that in spite of the appellant's assertions on appeal with regard
to the information provided by Deputy Rakes' surrounding Mr. Wooton's telephone
call, the accurate transcription of the record provides that Deputy Rakes actually
said, I also told you that John Wooton had been retained by the family
to represent you in this case. With all these rights in mind and knowing that
Mr. Wooton had called up here, you still want to talk to us, is that correct? (See
footnote 2) Thus, the appellant's version of events is not supported
by the record in this case as he was clearly informed of who Mr. Wooten was and
why he had called on his behalf.
as for the appellant's argument that he was in no shape to make an informed decision
with regard to whether or not to waive counsel, we have found no evidence of
record to conclude that the appellant was intoxicated or impaired in any manner
prior to giving a statement to the police. In fact, the testimony of the police
officers who spoke with the appellant the evening of the murder said that the
appellant did not have slurred speech and did not appear in any way to be under
the influence of alcohol or any controlled substances.
thoroughly reviewing the record in this case, we find that there was no violation
of the prompt presentment rule. Our prompt presentment rule is contained in West
Virginia Code § 62-1-5(a)(1) (1997), and provides in relevant part: An
officer making an arrest under a warrant issued upon a complaint . . . , shall
take the arrested person without unnecessary delay before a magistrate of the
county where the arrest is made. Moreover, West Virginia Rule of Criminal
Procedure Rule 5(a), provides that, [a]n officer making an arrest under
a warrant issued upon a complaint . . . shall take the arrested person without
unnecessary delay before a magistrate within the county where the arrest is made.
Point 1 of State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984), we
held that, '[t]he delay in taking a defendant to a magistrate may be a
critical factor [in the totality of circumstances making a confession involuntary
and hence inadmissable] where
it appears that the primary purpose of the delay was to obtain a confession
from the defendant.' Syllabus Point 6, State v. Persinger, 169 W.Va.
121, 286 S.E.2d 261 (1982). We have further held that, [w]hen a
statement is obtained from an accused in violation of the prompt presentment
rule, neither the statement nor matters learned directly from the statement
may be introduced against the accused at trial. Syllabus Point 1, State
v. DeWeese, 213 W.Va. 339, 582 S.E.2d 786 (2003). Nonetheless, as we wrote
in footnote 10 of DeWeese, [w]e wish to make clear that our prior
cases do permit delay in bringing a suspect before a magistrate when the suspect
wishes to make a statement. See Syllabus Point 3, State v.
Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986) (The delay occasioned
by reducing an oral confession to writing ordinarily does not count on the
unreasonableness of the delay where a prompt presentment issue is involved.).
in the instant case is quite clear. Deputy Harold transported the appellant to
the sheriff's office to discuss the circumstances of the victim's death. The
appellant was not under arrest and voluntarily went with the deputy to the sheriff's
office. The two of them arrived at the office at 5:41 a.m. Soon afterward, Deputy
Harold and Deputy Rakes discussed the case and decided to arrest the appellant.
Also occurring during this time period was the call from Mr. Wooten, which was
followed by the telephone discussion with the assistant prosecuting attorney.
Further time was spent advising the appellant about Mr. Wooten's call and then
advising the appellant of his Miranda rights.
Thus, the time period between 5:41 a.m., after which the appellant's status
changed from non-custodial to custodial, and 6:16 a.m., when his recorded statement
to the police began, was spent by Deputy Rakes on activities characterized
in State v. Wickline, 184 W.Va. 12, 16, 399 S.E.2d 42, 46 (1990) as
necessary delay. This Court in Wickline provided examples of necessary
delay as follows:
to carry out reasonable routine administrative procedures such as recording,
fingerprinting and photographing; 2) to determine whether a charging document
should be issued accusing the arrestee of a crime; 3) to verify the commission
of the crimes specified in the charging document; 4) to obtain information likely
to be a significant aid in averting harm to persons or loss to property of substantial
value; 5) to obtain relevant nontestimonial information likely to be significant
in discovering the identity or location of other persons who may have been associated
with the arrestee in the commission of the offense for which he was apprehended,
or in preventing the loss, alteration or destruction of evidence relating to
(Footnote omitted; citations omitted). Id.
provides no evidence of unnecessary delay during this time period
of less than thirty-five minutes between the defendant's attaining custodial
status and the interrogation. What the record does show is that when told John
Wooten had been retained as his lawyer, the appellant told the officers he did
not know Mr. Wooton and had never retained him, but he did know he could stop
talking to detectives at any time and could demand a lawyer. In fact, the appellant
demonstrated his ability to assert his right to counsel when he realized his
claim of accidental shooting was not convincing the deputies as
demonstrated by the following exchange during the appellant's statement:
Harold: Anybody that was walking
around down there, all I did was walk around and I've got mud upon my pants.
But there's no mud on her shoes, they're clean_actually, they're dry, even the
soles of her shoes was dry.
believe ya'll is fu*k'n trying to turn this shit into something.
. . .
want to talk to my lawyer.
was a fu*k'n accident, I cared about the girl and ya'll are not going to put
it off like I hurt her on purpose, it's not going to happen_it's not going to
Rakes: All right. . . . [the appellant]
has evoked his rights, he wants to talk to his lawyer. We're going to end the
in this case demonstrates that the appellant voluntarily gave a statement to
the police after he was advised of his Miranda rights. This also occurred
after he was advised that a lawyer had been retained and did not want him to
speak with the police about the victim's death. The statement in question was
also substantially the same statement he had given to deputies at the murder
scene. It appears that he simply believed he could convince the investigating
officers that the shooting was accidental. The appellant's statement was voluntary
and not in violation of the prompt presentment rule.
next argues that during the trial testimony of Deputy Rakes, his defense counsel
observed two jurors reading books and promptly moved for a mistrial which was
denied. Instead of granting the mistrial, the appellant says that the circuit
judge simply instructed the jurors to put your reading material away. The
appellant contends that he was deprived of his constitutional right to a fair
trial because those jurors were physically present, but not mentally present
and therefore unfit for jury duty. The appellant states that a juror off
in the literary world created by some author is just as absent, and just as unfit
for duty, as a juror who is asleep or a juror who is physically absent from the
calls the appellant's claim of juror misconduct an invention without any basis
in the record of the trial, and therefore it does not constitute grounds for
appeal. We agree. Upon reviewing the record, we found the one occasion when the
appellant addressed this issue with the circuit court during the trial. It occurred
during the cross- examination of one of the appellant's witnesses at trial, after
the witness could not recall a previous statement he had told Deputy Rakes prior
to the trial.
State was beginning to refresh the witness' recollection by playing the tape-recording
of his prior statement, the jury was sent to the jury room by the circuit judge
in order that the witness could hear the recording out of the presence of the
jury. After the jury had been excused, the appellant's counsel moved that the
jurors be present for the playing of the recording. The circuit judge said
that it wasn't necessary for the jury to be present; however, he allowed the
jury to return to the courtroom during the playing of the tape-recording. When
the recording began playing, the appellant's counsel objected and the tape
was stopped. The following then occurred:
McGRAW: Your Honor, I'm fear
about - - I've observed two jurors who are reading books, and, based upon that,
I would move for a mistrial of this matter. The jurors are in the back row -
COURT: Well, I told them _ I told
them that we're playing it for the benefit of the - - of the witness, and you
told me that you wanted them in here.
McGRAW: I just observed as the
tape started, a couple of them were reading.
COURT: Okay, all right.
McGRAW: I didn't want _
COURT: Okay. All right, ladies
and gentlemen, you need to put your _ your reading material away because, even
though this is being played for the benefit of the witness in your presence,
you still need to listen.
clear from the record that the tape-recording of the witness' statement was being
played for the sole purpose of refreshing the witness' recollection. Moreover,
the circuit judge had allowed jurors to read personal materials during breaks
of court. In fact, prior to trial the circuit judge said, Bring a book
or a magazine if you like. You will have some down time during this process,
and that's okay. We find nothing wrong with the practice of allowing jurors
to read during breaks in court and believe it is a common occurrence during many
instance, it is clear to us that confusion surrounded the playing of the tape-recorded
statement and that the jurors believed the recording was for the single purpose
of assisting the witness with his recollection, thereby resulting in a break
in the proceeding as far as their part in the trial. Regardless of whether or
not such an impression was accurate, the appellant's counsel immediately objected
and the alleged error was cured. There was not another instance from the face
of the record wherein this became an issue during the trial. The appellant also
argued this issue during his December 5, 2003, sentencing hearing. At that time,
the State correctly responded that the only time jurors had books was during
breaks, when the circuit judge permitted them to read. Nonetheless, the circuit
court granted the appellant leave to develop the evidence of juror
misconduct and permitted him to interview jurors concerning this claim. Following
the appellant's investigation, he was unable to produce any evidence of juror
firmly held that, '[t]he right to a trial by an impartial, objective jury
in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth
Amendments of the United States Constitution and Article III, Section 14 of the
West Virginia Constitution.' Syllabus point 4, [in part,] State v. Peacher,
167 W.Va. 540, 280 S.E.2d 559 (1981). Syllabus Point 4, in part, State
v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
as we held in Syllabus Point 2 of WV Dept. of Health & Human Resources
Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810
(2004), 'An appellant must carry the burden of showing error in the judgment
of which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be presumed,
all presumptions being in favor of the correctness of the judgment.' Syllabus
Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). The
facts of this case simply do not amount to juror misconduct.
of the Victim.
entire argument on this issue consists of the following paragraph:
the testimony of the state's witness that the victim was of good character a
twinkle in her eyes[.] The defendant
was still denied the ability to introduce evidence of the victim's true personality,
which was bad. Thus, denying the defendant the right to a fair trial.
This argument amounts to nothing more than conclusory statements without any
citation or authority and is therefore insufficient for appellate review. The
defendant refers only to the phrase twinkle in her eyes as an apparent
claim that evidence of the victim's good character was introduced.
that the circuit court correctly found that the evidence of the victim's character
had no relevance to the appellant's defense of accidental shooting. Given the
facts of this case, the issue is easily disposed of in light of the interaction
between Rules 404(a)(2) (See
and 405 (See
as well as the law of self-defense. It is well-settled
that where a
defendant relies on self-defense in a homicide, a malicious wounding, or an
assault prosecution, the defendant may introduce evidence concerning violent
or turbulent character of the victim, including prior threats or attacks on
defendant and to show that the victim was the aggressor. See
Point 3, State v. Richards
, 190 W.Va. 299, 438 S.E.2d 331 (1993).
the facts of this case, however, the evidence concerning the victim's general
reputation was not relevant as admissible evidence. The appellant did not assert
self-defense or allude to any possibility that the victim was aggressive in any
manner. Instead, he claimed that the shooting was accidental. He even said he
and the victim had a good relationship and that just prior to the shooting, the
victim was sitting on his lap and the two of them were kissing. Likewise, the
appellant has not cited any legal authority for the admissibility of evidence
concerning the bad personality of the victim in a murder case when
his defense was that this was an accidental shooting. In State, Dept. Of Health
Robert Morris N.
, 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995), we stated
that [a] skeletal 'argument', really nothing more than an assertion,
does not preserve a claim. . . . Judges are not like pigs, hunting for truffles
buried in briefs. (Citation omitted).
no evidence wherein the circuit court engaged in any conduct that would be remotely
indicative of an abuse of discretion by the circuit court. This Court has previously
adhered to the rule that, [a]lthough 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). Accord State v. Allen
, 208 W.Va. 144, 162, 539 S.E.2d 87,
105 (1999); State v. Easton
, 203 W.Va. 631, 642 n.19, 510 S.E.2d 465,
476 n.19 (1998); State v. Lilly
, 194 W.Va. 595, 605 n.16, 461 S.E.2d 101,
111 n.16 (1995). Based upon all of the above, we believe that there is no merit
to this claim of error.
next asserts error with regard to Deputy Rakes' testimony. According to the appellant,
Deputy Rakes was instructed not to discuss the prior domestic violence matters,
however, during cross-examination, he stated, the prior acts of violence
and documented threats that the [appellant] made towards [the victim]. I think
that, in itself,
is overwhelming evidence as to his intent and what he had planned to do. The
appellant maintains that the circuit court should have declared a mistrial
or allowed the appellant to ask questions regarding domestic violence of the
reviewing the record, we find that the testimony by Deputy Rakes was not error.
The appellant fails to mention the fact that on August 19, 2003, the State filed
a Notice of Intent to use Prior Relationship Evidence, including prior
. . . threats by the defendant and acts of domestic violence. The State
then voluntarily agreed not to elicit such evidence except as to acts committed
in the days immediately preceding the murder, which acts were evidence of res
gestae and the defendant's state of mind at the time of the killing. In State
v. Duell, 175 W.Va. 233, 241, 332 S.E.2d 246, 254 (1985), we held that:
evidence offered is too remote to be admissible upon the trial of a case is for
the trial court to decide in the exercise of sound discretion; and its action
in excluding or admitting the evidence will not be disturbed by the appellate
court unless it appears that such action amounts to an abuse of discretion.
Moreover, there must also be some clear link between the threat made and the
ultimate victim. For example, in Duell, we held that direct threats
against specific persons were enough to overcome concerns about remoteness.
This type of evidence of threats is usually used to prove premeditation.
case, the testimony of Deputy Rakes was not evidence of improperly admitted prior
bad acts committed by the appellant. This sole mention of the appellant's violence
was elicited by the defense on cross-examination following the appellant's counsel's
specific question as to the basis upon which Deputy Rakes concluded this was
a case of murder. Deputy Rakes cited several reasons for such a conclusion including the
prior acts of violence and documented threats that the [appellant] made toward
[the victim]. Deputy Rakes specifically referred to the victim's muddy
stocking feet, which indicated that she had been fleeing . . . to avoid
the perpetrator [and] that she already had been beaten or she knew what was about
to come. Deputy Rakes was simply answering the question asked by the appellant's
counsel with regard to the investigation of the victim's murder.
the appellant's counsel did not object to Deputy Rakes' response nor did he object
to any of the other facts mentioned as the basis of his conclusion. It was only
after the circuit judge called counsel to the bench and said to the appellant's
counsel, you've asked him a wide open question. You're letting him go[?] that
the appellant's counsel moved for a mistrial based upon testimony of prior domestic
violence acts. The circuit court denied the motion finding that the appellant's
counsel invited the error. See Syllabus Point 2, State v. Bowman,
155 W.Va. 562, 184 S.E.2d 314 (1971) (An appellant or plaintiff in error
will not be permitted to complain of error in the admission of evidence which
he offered or elicited, and this is true even of a defendant in a criminal case.);
Syllabus Point 4, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996)
('A judgment will not be reversed for any error in the record introduced
by or invited by the party seeking reversal.' Syl. pt. 21, State v. Riley,
151 W.Va. 364, 151 S.E.2d 308 (1966).); State v. Bennett, 183
W.Va. 570, 396 S.E.2d 751 (1990).
the specific facts of this case, the testimony of Deputy Rakes demonstrates it
was unnecessary for the circuit court to find that his statement was invited
error elicited by the appellant's counsel's questioning. Deputy Rakes was specifically
testifying as to the facts surrounding the days leading up to the murder of the
victim. He was explaining the circumstances of the crime scene and referring
to evidence of the appellant's tape-recorded threats that were already admitted
into evidence. He was also discussing the appellant's statements made both at
the crime scene and while at the sheriff's office. This was not evidence of irrelevant
bad acts that occurred months or years in the past brought out to taint the image
of the appellant. It was simply a police officer discussing the previously admitted
evidence in light of his investigation of the victim's murder. Thus, the single
sentence referring to the appellant's well-documented and tape-recorded threats
surrounding the victim's brutal murder did not rise to a level of trial error.
maintains that the State should not have been allowed to use the gun or any evidence
derived from the gun because it violated Rule 16 of the West Virginia Rules of
Criminal Procedure (See footnote
by not timely having the gun examined and then turning over the
results of the examination. The appellant states that he was informed on August
22, 2004, that the gun in question was still not available for the defense
to examine even thought the trial was scheduled to begin August 26, 2004.
The appellant further states that on the day prior to his trial, the State picked
an expert who was unknown by the defense team and made arrangements to have the
gun examined by this expert.
reviewing the record, however, it is clear that during the months leading up
to the trial, the appellant did not file a motion to have the shotgun examined
and made no such request for examination until the prosecutor notified the appellant
a week prior to trial
that the Criminal Identification Bureau (C.I.B.) would be submitting a report
concerning the fact that the gun was in proper working condition. The circuit
court correctly found during trial that:
McGraw, you had every_you knew of the existence of the gun. You knew . . . your
client's position that he handed it to . . . the victim and it went off. You
could have made a motion to have the gun inspected yourself. You didn't do that,
and you can't sit back on your thumbs . . . and then complain later on when it
is inspected and there's nothing found wrong with it.
outset, we note that the appellant undertakes a significant burden in showing
error in this regard as:
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. Syllabus point 10, State
v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State
ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).
Syllabus Point 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999).
Moreover, in State ex rel. Rusen v. Hill, 193 W.Va. 133, 139, 454 S.E.2d
427, 433 (1994), we stated:
discovery has not been elevated to a constitutional dimension, it is clear that
constitutional rights of a criminal defendant are implicated when a discovery
system has been put in place and the prosecution fails to comply with court ordered
discovery. We believe that it is necessary in most criminal cases for the State
to share its information with the defendant if a fair trial is to result. Furthermore,
we find that complete and reasonable discovery is normally in the best interest
of the public.
We also said:
purpose of Rule 16(a) [of the West Virginia Rules of Criminal Procedure], our
basic discovery rule in criminal cases, is to protect a defendant's right to
a fair trial. The degree to which that right suffers as a result of a discovery
violation cannot be determined by simply asking would the nondisclosed information
enhance or destroy the State's case. A significant inquiry is how would the timely
access of that information have affected the success of the defendant's case.
193 W.Va. at 139, 454 S.E.2d at 433. Finally, in Rusen, we indicated
that whether prejudice results from the failure of the State to comply with
a discovery order is determined by asking whether the non-disclosure results
in a surprise and whether it, hampers the preparation and presentation of the
defendant's case. Id.
a review of the entire record we find no evidence of error. We further conclude
that the appellant's expert was an independent expert who was not picked
by the State. Deputy Rakes, who was in possession of the weapon, simply
contacted the appellant's investigator solely for the purpose of allowing the
investigator to take possession of the shotgun to allow for whatever testing
of the gun the defense deemed necessary. Moreover, the record demonstrates nothing
other than the fact that the defense investigator was assigned by the appellant's
counsel. In fact, this argument was not even raised until the appellant's sentencing
hearing. Prior to that, the appellant referred to the gunsmith as a defense expert
and as the appellant's independent expert.
maintains that the arrangements being made by the State with the
expert were only for the appellant's expert to get access to the firearm. We
see no evidence of record to the contrary. Equally important, however, is the
fact that the circuit judge offered the appellant a continuance for as much time
as he needed to prepare a response to the C.I.B. report. The appellant denied
the judge's offer. There was no error with the introduction of the gun or the
the appellant argues that he should have been allowed to accept a plea to second
degree murder. Prior to his trial, the State made such an offer to the appellant
and gave him until the Friday before his trial to accept. The appellant considered
the offer, but refused it. Then, once his trial began and a significant amount
of testimony damaging to his case was presented, he changed his mind and wanted
to accept the expired offer to plead to second degree murder; however, the State
refused to allow him to do so. The appellant believes that in spite of the fact
that the plea offer clearly had expired, he should have been allowed to make
the plea anyway.
have recognized that [a]s a matter of criminal jurisprudence, a plea
agreement is subject to principles of contract law insofar as its application
defendant receives that to which he is reasonably entitled. State
ex rel. Brewer v. Starcher
, 195 W.Va. 185, 192, 465 S.E.2d 185, 192 (1995).
Such agreements require ordinary contract principles to be supplemented
with a concern that the bargaining and execution process does not violate the
defendant's right to fundamental fairness[.] State v. Myers
W.Va. 449, 458, 513 S.E.2d 676, 685 (1998).
made clear in Syllabus Point 4 of Myers
, in part, that [w]hen a
defendant enters into a valid plea agreement with the State . . . , an enforceable
'right' inures to both the State and the defendant not to have the terms of the
plea agreement breached by either party. See also State ex rel. Gray
, 161 W.Va. 488, 492, 242 S.E.2d 704, 707 (1978) (The rule
we follow . . . is that a prosecuting attorney . . . is bound to the terms of
a plea agreement once the defendant enters a plea of guilty or otherwise acts
to his substantial detriment in reliance thereon.).
case, however, there was no agreement between the parties. It is clear from the
record, and, by the appellant's own admission, that he rejected the State's plea
offer with the understanding that it expired on the Friday prior to his trial.
for the reasons stated above, we affirm the appellant's conviction.
The appellant and victim
were never married to each other.
Mr. Wooton's involvement
in this case is not clear from the record. While he may have made an initial
call on the appellant's behalf, he did not represent the appellant during trial.
Rule 404(a) states
in pertinent part:
Character evidence generally. Evidence of a person's character or a trait of
character is not admissible for the purpose of proving that he or she acted in
conformity therewith on a particular occasion, except:
. . .
Character of the victim of a Crime Other than a Sexual Conduct Crime. Evidence
of a pertinent trait of character of the victim of the crime, other than a crime
consisting of sexual misconduct, offered by an accused, or by the prosecution
to rebut the same, or evidence of a character trait of peacefulness of the victim
offered by the prosecution in a homicide case to rebut evidence that the victim
was the first aggressor; . . . .
Rule 405 states:
Reputation or opinion._In all cases in which evidence of character or a trait
of character of a person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. On cross-examination, inquiry
is allowable into relevant specific instances of conduct.
Specific Instances of Conduct. _In cases in which character or a trait of character
of a person is an essential element of a charge, claim, or defense, proof may
also be made of specific instances of that person's conduct.
Rule 16 of the West Virginia
Rules of Criminal Procedure, in part, provides:
Reports of Examinations and Tests. Upon request of the defendant the state shall
permit the defendant to inspect and copy or photograph any results or reports
of physical or mental examinations, and of scientific tests or experiments, or
copies thereof, which are within the possession, custody or control of the state,
the existence of which is known, or by the exercise of due diligence may become
known, to the attorney for the state, and which are material to the preparation
of the defense or are intended for use by the state as evidence in chief at the