IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
EARL RAY McCOY, JR.,
Defendant Below, Appellant.
Appeal from the Circuit Court of Lincoln County
Honorable Jay M. Hoke, Judge
Criminal Action No. 03-F-02
REVERSED AND REMANDED
Submitted: April 11, 2006
Filed: May 24, 2006
James E. Spurlock
Darrell V. McGraw, Jr.
Huntington, West Virginia
Attorney for Appellant Barbara H. Allen
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Rulings on the admissibility of evidence are largely within a trial
court's sound discretion and should not be disturbed unless there has been an abuse of
discretion. Syllabus point 2, State v. Peyatt
, 173 W. Va. 317, 315 S.E.2d 574 (1983).
2. As a general rule, a criminal defendant is entitled to an instruction on
any recognized defense for which there exists evidence sufficient for a reasonable jury to find
in his/her favor. Consequently, a criminal defendant may present alternative defenses even
when they are inconsistent, and the mere fact that a defense may be inconsistent with an
alternate defense does not justify excluding evidence related to either defense.
3. The admissibility of corroborative evidence is largely within the trial
court's discretion. However, a trial court abuses that discretion when it excludes the
testimony of witnesses who would corroborate relevant facts, the veracity of which has been
challenged by the prosecutor, when those facts have been relied upon by the defendant's
expert in rendering an opinion pertaining to the defendant's defense.
Davis, Chief Justice:
Earl Ray McCoy, Jr. (hereinafter referred to as Mr. McCoy) appeals an order
of the Circuit Court of Lincoln County sentencing him to life in prison, with mercy. Here,
Mr. McCoy seeks a new trial based upon the trial court's rulings: (1) preventing him from
putting on the defense of self-defense, (2) excluding insanity defense lay witness testimony,
(3) allowing improper impeachment, (4) improperly shifting the burden of proof on the
insanity defense, and (5) refusing to certify an issue to the West Virginia Supreme Court of
Appeals. Mr. McCoy also complains that the transcript of his mercy hearing has been lost.
FACTUAL AND PROCEDURAL HISTORY
Mr. McCoy and Mr. Emmitt Brooks have been in feuds that date back to 1996.
For some unknown reason, on March 2, 1996, Mr. Brooks shot Mr. McCoy three times with
a rifle. (See footnote 1)
Subsequent to the shooting, Mr. Brooks was indicted on charges that included
malicious wounding and wanton endangerment. Mr. Brooks eventually pled guilty to two
counts of wanton endangerment in exchange for the dismissal of the other charges. (See footnote 2)
In March of 1998, Mr. Brooks went to Mr. McCoy's place of employment and
physically assaulted him. Mr. Brooks was prosecuted for the attack and was convicted on a
charge of battery. In June of 2002, Mr. Brooks attacked and physically assaulted Mr.
McCoy's brother, Luther McCoy. (See footnote 3)
During the early part of the day on September 28, 2002, Mr. McCoy was
walking along Route 37, in Wayne County, when Mr. Brooks drove by and attempted to
assault him. Mr. McCoy escaped the attack by running into a wooded area. Later that same
day, Mr. McCoy drove to a party at the home of a friend, Mack Adkins, in Lincoln County.
As Mr. McCoy was driving near his friends's home he saw Mr. Brooks. Mr. McCoy stopped
his car, grabbed a rifle and fired five shots from his car. Three of the shots struck and killed
Mr. Brooks. (See footnote 4) Mr. McCoy drove off
after the shooting. Several hours later, Mr. McCoy was
arrested at his mother's home.
In January of 2003, Mr. McCoy was indicted for first degree murder. Prior to
trial, Mr. McCoy entered a plea of not guilty by reason of insanity. During a pre-trial
conference Mr. McCoy informed the court that, in addition to his insanity defense, he would
also rely upon the defense of self-defense. The trial court ruled that Mr. McCoy could not
present both defenses because they were inconsistent. However, the court also indicated that
it would revisit the issue should the evidence establish self-defense. Additionally, during a
pre-trial conference the trial court ruled that Mr. McCoy could not call certain witnesses who
would testify to prior threats Mr. Brooks made against him. Moreover, the trial court refused
to allow any testimony concerning the fact that at the time of the shooting Mr. Brooks had
weapons in his car.
The trial in this case was bifurcated. Therefore, the jury considered the issue
of guilt and mercy separately. During the guilt phase of the trial Mr. McCoy called two
psychologists, Dr. Joseph Wyatt and Mr. Andrew Riffle, to testify to the issue of insanity.
Both psychologists testified that Mr. McCoy suffered from a Post Traumatic Stress Disorder,
as a result of being shot and harassed by Mr. Brooks. Dr. Wyatt opined that at the time of
the shooting Mr. McCoy was not in touch with reality [when] he pulled the trigger. Mr.
McCoy elected to testify at trial. During his testimony, Mr. McCoy stated that he did not
remember shooting Mr. Brooks. The jury ultimately returned a verdict finding Mr. McCoy
guilty of first degree murder. During the second phase of the trial the jury returned a verdict
recommending mercy. The trial court thereafter sentenced Mr. McCoy to prison for a term
of not less than fifteen years to life. Mr. McCoy made an oral motion for a new trial, which
was denied. From this ruling, Mr. McCoy now appeals.
STANDARD OF REVIEW
As a general matter, we have held that '[a] reviewing court should not reverse
a criminal case on the facts which have been passed upon by the jury, unless the court can
say that there is reasonable doubt of guilt and that the verdict must have been the result of
misapprehension, or passion and prejudice.' Syl. pt. 3, State v. Sprigg
, 103 W. Va. 404, 137
S.E. 746 (1927). Syl. pt. 1, State v. Easton
, 203 W. Va. 631, 510 S.E.2d 465 (1998). In this
case we are called upon to address issues involving the exclusion of witness testimony. We
have held that [r]ulings on the admissibility of evidence are largely within a trial court's
sound discretion and should not be disturbed unless there has been an abuse of discretion.
Syl. pt. 2, State v. Peyatt
, 173 W. Va. 317, 315 S.E.2d 574 (1983).
A. Precluding the Defense of Self-defense
Mr. McCoy's first contention is that the trial court committed reversible error
in precluding him from asserting the defense of self-defense. During a pre-trial hearing, the
trial court denied use of the defense on the grounds that it was inconsistent with the insanity
defense. This Court has never expressly ruled upon the issue of inconsistent defenses as
presented in the context of this case. (See footnote 5) The State contends that courts around the country are
split on whether or not a defendant may present inconsistent defenses and that no clear trend
exists. We respectfully disagree. (See footnote 6)
The United States Supreme Court has indicated that [a]s a general proposition
a defendant is entitled to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor. Mathews v. United States, 485
U.S. 58, 63, 108 S.Ct. 883, 887, 99 L. Ed.2d 54 (1988). See State v. Poole, 837 A.2d 307, 310
(N.H. 2003) (Defendants are generally allowed to present alternative theories of defense.); United States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991) ([Defendant's] generally had
the right to pursue alternative defenses.). Our research indicates that all courts addressing
the issue of inconsistent defenses in criminal cases have held that a defendant may present
alternative defenses, even if they are inconsistent. Muhammad v. State, 829 A.2d 137, 139
(Del. 2003). See also Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 887, 99
L. Ed. 2d 54 (1988) (reversing conviction for failure to allow inconsistent defenses); Accord United States v. Harrison, 55 F.3d 163, 167 n.6 (5th Cir. 1995); United States. v. Abeyta, 27
F.3d 470, 475 (10th Cir. 1994); United States v. Fay, 668 F.2d 375, 378 (8th Cir. 1981); United
States v. Demma, 523 F.2d 981, 985 (9th Cir. 1975); Flake v. State, 245 S.W. 174, 175 (Ark.
1922); People v. Atchison, 148 Cal. Rptr. 881, 882 (1978); State v. Miller, 739 A.2d 1264,
1266 (Conn. App. Ct. 1999); McClam v. United States, 775 A.2d 1100, 1104 (D.C. Cir. 2001); Keyes v. State, 804 So. 2d 373, 375 (Fla. Dist. Ct. App. 2001); Sellers v. State, 538 S.E.2d
511, 513 (Ga. Ct. App. 2000); People v. Wheeler, 558 N.E.2d 758, 763 (Ill. App. Ct. 1990); State v. Shehan, 744 P.2d 824, 827 (Kan. 1987); State v. Roman, 802 So. 2d 1281, 1284 (La.
2001); State v. Knowles, 495 A.2d 335, 338 (Me. 1985); McKay v. State, 600 A.2d 904, 911
(Md. Ct. Spec. App. 1992); Commonwealth v. Fickett, 526 N.E.2d 1064, 1069 (Mass. 1988); People v. Cross, 466 N.W.2d 368, 369 (Mich. Ct. App. 1991); Reddix v. State, 731 So. 2d
591, 593 (Miss. 1999); Clayton v. State, 63 S.W.3d 201, 206 (Mo. 2002); Walker v. State, 876
P.2d 646, 649 (Nev. 1994); People v. Dawson, 569 N.Y.S.2d 659, 660 (1991); State v. Hayes,
364 S.E.2d 712, 713 (N.C. Ct. App. 1988); State v. Burns, 516 P.2d 748, 750 (Or. Ct. App.
1973); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Ct. App. 1993); Jones v. Commonwealth, 506
S.E.2d 27, 29 (Va. Ct. App. 1998).
The mere fact that [a] 'recognized defense' may be inconsistent with another
defense the defendant is asserting does not justify excluding evidence and failing to give an
instruction on the 'recognized defense.' Arcoren v. United States, 929 F.2d 1235, 1245 (8th Cir. 1991). See also Guillard v. United States, 596 A.2d 60, 62 (D.C. Cir. 1991) (A
defendant's decision . . . to establish . . . contradictory defenses does not jeopardize the
availability of a self-defense jury instruction as long as self-defense is reasonably raised by
the evidence.). It has been further noted that [t]he rule in favor of inconsistent defenses
reflects the belief of modern criminal jurisprudence that a criminal defendant should be
accorded every reasonable protection in defending himself against governmental prosecution.
That established policy bespeaks a healthy regard for circumscribing the Government's
opportunities for invoking the criminal sanction. United States v. Demma, 523 F.2d 981, 985
(9th Cir. 1975).
Based upon the above authorities we now hold that, as a general rule, a criminal
defendant is entitled to an instruction on any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his/her favor. Consequently, a criminal
defendant may present alternative defenses even when they are inconsistent, and the mere fact
that a defense may be inconsistent with an alternate defense does not justify excluding
evidence related to either defense. (See footnote 7)
As a result of the above holding, it is clear that the trial court committed error
in its pre-trial ruling denying Mr. McCoy the right to put on the defense of self-defense merely
because such defense may be inconsistent with insanity. See Flake v. State, 245 S.W. 174,
175 (Ark. 1922) ([T]here was testimony on behalf of the appellant which tended to prove that
the appellant was insane at the time of the killing. . . . There was testimony on behalf of the
appellant also which tended to prove that he killed Wilson in self-defense. The appellant had
the right to go before the jury on the issue as to whether or not he was insane at the time of
the killing, and also whether or not the killing was done in self-defense.).
The State contends that the evidence Mr. McCoy sought to present on the
defense of self-defense would not have established the defense. Consequently, the trial court
did not commit reversible error in denying such a defense. We reject this argument for two
reasons. (See footnote 8)
First, whether or not the proposed testimony of witnesses would have
established self-defense must be made based upon testimony given at trial, not prior to trial. (See footnote 9) Such evidence is inextricably interwoven with credibility determinations that must be resolved
by the jury. See State v. Ladd, 210 W. Va. 413, 425, 557 S.E.2d 820, 832 (2001) (Our rule
says that credibility determinations are for the jury[.]); Williams v. Precision Coil, Inc., 194
W. Va. 52, 59, 459 S.E.2d 329, 336 (1995) (Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge [.]); Syl. pt. 1, State v. Harlow, 137 W. Va. 251, 71 S.E.2d 330 (1952) (In the
trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence, the
weight and credibility of the testimony of any witness is for jury determination.).
Second, [a] defendant is entitled to have the court instruct the jury on
self-defense when he presents any evidence supporting that defense, regardless of the
weakness or strength of that evidence. Cannon v. State, 615 So. 2d 1285, 1286
(Ala. Crim. App. 1993). See also State v. Headley, 210 W. Va. 524, 529, 558 S.E.2d 324, 329
(2001) (per curiam) (Even where the evidence is scant, the trial court has a duty to allow a
defendant to get [his/]her theory before the jury.). Further, to the extent that some or all of
the proposed testimony on self-defense was admissible, (See footnote 10) the fact that such testimony did not
establish self-defense does not mean that such evidence had no value or relevancy. That is,
such evidence may have been relied upon by the jury in determining whether to convict Mr.
McCoy of a lesser included offense. See State v. Miller, 178 W. Va. 618, 622, 363 S.E.2d
504, 508 (1987) (Even where the self-defense act is not a complete defense, it may serve to
reduce murder to voluntary manslaughter because of provocation.). (See footnote 11) Consequently, we find
that it was reversible error for the trial court to preclude Mr. McCoy from putting on evidence
to attempt to establish the defense of self-defense.
B. Insanity Defense: Excluding Lay Witness Testimony
The next issue raised by Mr. McCoy concerns the trial court's exclusion of
testimony by lay witnesses (See footnote 12)
who would have provided corroborating evidence to facts relied
upon by his insanity defense experts. (See footnote 13)
We have held that [w]hile ordinarily rulings on the
admissibility of evidence are largely within the trial judge's sound discretion, a trial judge may
not make an evidentiary ruling which deprives a criminal defendant of [the] right . . . to offer
testimony in support of his or her defense[.] Syl. pt. 3, in part, State v. Jenkins
, 195 W. Va.
620, 466 S.E.2d 471 (1995). To the extent that a trial judge's evidentiary ruling deprives a
defendant of . . . the right to . . . offer testimony in support of his or her defense, . . . then
clearly the trial judge abuses his discretion in making such a ruling. Jenkins
, 195 W. Va. at
628, 466 S.E.2d at 479.
Professor Cleckley has observed that [c]orroboration occurs when other
witnesses support the testimony of the first witness about a fact or facts in issue. 1 Franklin
D. Cleckley, Handbook on Evidence for West Virginia Lawyers
§ 6-7(H)(1) (4th
Further, [a] witness's testimony can be corroborated before any impeachment attempts. Id
The importance of corroboration testimony, which is consistent with that of the original
witness, [is that it] has the direct effect of bolstering the original witness's credibility on all
facts to which he testified. Id
. (See footnote 14)
The issue of corroborating evidence by a defendant
asserting the defense of insanity was addressed by the court in Pratt v. State
, 387 A.2d 779
(Md. Ct. Spec. App. 1978).
The defendant in Pratt
was charged with murder, and relied upon the defense
of insanity. The defendant called an expert witness to testify that she was insane at the time
of the crime. The defendant also sought to call lay witnesses to corroborate her expert's
testimony, because the state had impeached the expert's credibility. The trial court precluded
the testimony of lay witnesses. The defendant was convicted of second degree murder. One
of the issues raised as error on appeal was the trial court's refusal to allow testimony of lay
witnesses that would have corroborated the opinion of the defendant's expert. The appellate
court found that the issue had merit. In reversing the conviction, the appellate court stated the
following: Once the testimony of a witness has been impeached, a
party is generally allowed to introduce corroborative evidence.
This same rule, with certain exceptions which are not relevant
here, applies to the testimony of expert witnesses. Such
corroborative evidence is not restricted in form; any evidence
corroborative of the testimony may be used. In the case sub
judice, the action of the trial judge, in effect, restricted the
availability of such evidence to the testimony of appellant. While
the admissibility of corroborative evidence is largely within the
trial court's discretion, we think the trial court here was unduly
restrictive in ruling as he did under the facts of this case.
, 387 A.2d at 785 (internal citations omitted).
In an indirect way, the issue in Pratt
was also reached by this Court in State v.
, 94 W. Va. 47, 117 S.E. 885 (1923). In Evans,
the defendant was charged with
murdering a woman with whom her husband was having an affair. The defendant entered a
plea of not guilty by reason of insanity. During the trial, the court excluded evidence offered
to corroborate facts related to the insanity defense. The defendant was ultimately convicted
of voluntary manslaughter. One of the issues raised in the appeal was the trial court's
exclusion of corroborating evidence on the insanity defense. This Court found that the trial
court did not abuse its discretion in excluding the corroborating evidence. This conclusion
was reached because the defendant failed to put on sufficient evidence to warrant a jury
instruction on the issue of insanity. This Court noted, however, that [h]ad it been
substantially shown that the defendant was at the time of the commission of the act insane to
the extent of being unable to comprehend right from wrong, then the action of the court
refusing the [corroborating] evidence in question would have constituted error. Evans
W. Va. at 54, 117 S.E. at 887.
Consequently, we now hold that the admissibility of corroborative evidence is
largely within the trial court's discretion. However, a trial court abuses that discretion when
it excludes the testimony of witnesses who would corroborate relevant facts, the veracity of
which has been challenged by the prosecutor, when those facts have been relied upon by the
defendant's expert in rendering an opinion pertaining to the defendant's defense.
During the trial in the instant matter, Mr. McCoy called two experts, Dr. Wyatt
and Mr. Riffle, to testify on the insanity defense. Both experts opined that Mr. McCoy
suffered from a Post Traumatic Stress Disorder as a result of being shot and subsequently
attacked and threatened by Mr. Brooks. (See footnote 15)
Although Mr. Riffle did not testify that Mr. McCoy
was unable to appreciate the wrongfulness of his conduct when he shot and killed Mr. Brooks,
such an opinion was given by Dr. Wyatt. The State did not call its own expert witness to rebut
the testimony of Mr. McCoy's experts. Instead, the State sought to undermine the credibility
of Mr. McCoy's experts by challenging the truthfulness of information given to the experts
by Mr. McCoy regarding prior attacks and threats made against him by Mr. Brooks. For
example, during closing arguments the State represented to the jury the following:
Now we have the opinion from the two doctors who both
said the number one thing that went to their opinion was [Mr.
McCoy's] truthfulness, and I think if anything we have seen from
this trial was [Mr. McCoy] was not truthful, and that was shown
over and over again. . . .
So I don't know whether he suffers from [Post Traumatic
Stress Disorder] or not. The doctors said he did, but their opinion
was based on listening to [Mr. McCoy], who was untruthful to
them and to this jury.
. . . .
Let's talk about Dr. Wyatt and Andy Riffle. I guess, as I
said, they both agreed _ I mean, their opinions rely on [Mr.
McCoy] being truthful to [them]. I mean, what are you left with
in these opinions?
I mean, you are left with a guy who has done nothing but
lie, and you are left with an opinion that is based on his
I would submit to you that the best thing you could do
with those two [expert] reports is just discard them. They are
In view of the vigorous attack by the State on the credibility of the information
relied upon by the experts, [t]he jury could have reasonably inferred there was no
corroborative evidence. State v. Brooks
, 734 So. 2d 1232, 1240 (La. Ct. App. 1999). See
also McNeely v. Wal-Mart Stores, Inc
., 542 S.E.2d 575, 578 (Ga. Ct. App. 2000) (When the
jury determines that a witness has been successfully impeached in any manner provided by
law, the jury can disregard such witness's testimony and exclude it in its entirety unless
corroborated by . . . other . . . evidence.). Thus, as a result of the State's efforts to undermine
the credibility of the facts relied upon by the expert witnesses, it was critical for Mr. McCoy
to present lay witness testimony to corroborate many of the facts relied upon by his experts.
[T]he testimony of [the] excluded witness[es] was crucial because it corroborated . . .
evidence favorable to the defense that the jury would have been more inclined to believe had
the excluded testimony been admitted. Routier v. State
, 112 S.W.3d 554, 591
(Tex. Crim. App. 2003). See also Brand v. State
, 766 N.E.2d 772, 782 (Ind. Ct. App. 2002)
(The wrongful exclusion of any evidence that would tend to corroborate [a defendant's]
testimony or lend credence to his defense would not be without prejudice to his substantial
rights.); Weiand v. State
, 732 So. 2d 1044, 1057-1058 (Fla. 1999) (finding trial court
committed error in excluding witnesses who would have provided testimony to corroborate
the basis for the opinions of the defendant's experts); Commonwealth v. Schulze
, 452 N.E.2d
216, 221 (Mass. 1983) (reversing conviction because trial court excluded witness who would
have corroborated expert's opinion that the defendant lacked criminal responsibility at time
of crime). To the extent that the State was successful in attacking the veracity of the facts
relied upon by the experts, it was error for the trial court to prohibit Mr. McCoy from calling
witnesses who would have bolstered the experts' testimony regarding information they were
given to render their opinions. See Ramirez v. State
, No. 12-00-00220-CR, 2004 WL
1486311, *2 (Tex. Ct. App. 2004) (Bolstering occurs [and is permitted] when the proponent
offers evidence solely to convince the fact-finder that a particular witness or source of
evidence is worthy of credit when the credibility of that witness or source has . . . been
attacked.). This error was particularly egregious and reversible because [t]he prosecutor
exploited that lack of corroborating testimony in his closing argument to the jury when he
repeatedly portrayed [Mr. McCoy] as a 'liar'[.] State v. Turner
, 771 A.2d 206, 215
(Conn. App. Ct. 2001). (See footnote 16)
The circuit court's conviction and sentencing order of May 19, 2004, is
reversed. This case is remanded for a new trial consistent with this opinion.
The doctrine of [i]mperfect self-defense has been applied in other
jurisdictions where a defense of self-defense fails because the defendant was the aggressor,
or maintained an unreasonable belief of danger, or reacted with an unreasonable amount of
force. People v. Stinson
, 2005 WL 839485, *2 (Mich. Ct. App.). See also People v.
, 39 Cal. Rptr. 3d 433, 435 (2006) (Imperfect self-defense is the actual, but
unreasonable, belief in the need to resort to self-defense to protect oneself from imminent
peril. When imperfect self-defense applies, it reduces a homicide from murder to voluntary
manslaughter because the killing lacks malice aforethought.); Watkins v. State
, 555 A.2d
1087, 1088 (Md. Ct. Spec. App. 1989) (Where [the defendant] unreasonably perceives the
danger or unreasonably responds with more than necessary force, it is a case of imperfect
self-defense, which mitigates the level of blameworthiness down to the manslaughter level
even though it does not totally exculpate.); Moore v. State
, 859 So. 2d 379, 383 (Miss.
2003) (This Court has recognized the theory of imperfect self-defense whereby an
intentional killing may be considered manslaughter if done without malice but under a bona
fide (but unfounded) belief that it was necessary to prevent great bodily harm.); State v.
, 813 A.2d 560, 570 (N.J. 2003) (Imperfect self-defense means an honest subjective
belief on the part of the killer that his or her actions were necessary for his or her safety, even
though an objective appraisal by reasonable people would have revealed not only that the
actions were unnecessary, but also that the belief was unreasonable.); State v. Simmons
S.E.2d 133, 138 (N.C. Ct. App. 2004) (If the defendant was the aggressor or used excessive
force, he has lost the benefit of perfect self-defense but may be entitled to the defense of
imperfect self-defense.); Commonwealth v. Serge
, 837 A.2d 1255, 1266 (Pa. 2003) (An
imperfect self-defense . . . is more in the nature of perception based upon faulty analysis of
the circumstances, or state of mind arising from a pattern or history of interaction, which
would lead to a reaction based on fear of one's safety arising out of previous abuse.); State
, 883 A.2d 1131, 1139 (R.I. 2005) (The theory underlying the doctrine of
imperfect self-defense is that when a defendant uses deadly force with an honest but
unreasonable belief that it is necessary to defend himself, the element of malice, necessary
for a murder conviction, is lacking.); State v. Lo
, 665 N.W.2d 756, 771 (Wis. 2003)
([W]hen imperfect self-defense is placed in issue by the trial evidence, the state has the
burden to prove that the person had no actual belief that she was in imminent danger of death
or great bodily harm, or no actual belief that the amount of force she used was necessary to
prevent or terminate this interference.).
We need not fully address Mr. McCoy's remaining assignments of error. We
will note that the remaining issues have no merit. The document used to impeach Mr.
McCoy was properly introduced. The trial court did not shift the burden on the insanity
defense. The issues of the trial court's refusal to certify a question to this Court and the loss
of the transcript of the mercy hearing are simply moot.