No. 34856 - State of West Virginia v. Charles J. Lively
Ketchum, J., dissenting:
I dissent because the defendant did not receive a fair trial. The State has again
convicted a defendant by proving that he had a bad character unrelated to the alleged
crime. In almost every criminal appeal I review the State prosecutes the defendant's bad
character. Most prosecutors apparently lack the confidence to prosecute only the
defendant's guilt or innocence. I pine for the days when prosecutors had the skills to
prosecute the defendant on the issue of his/her guilt. Since the academics convinced courts
to adopt the toxic evidentiary rule known as 404(b), defendants are no longer tried solely for
their guilt or innocence. See State v. Willett
, 223 W.Va. 394, 400, 674 S.E.2d 602, 608
(2009) (Ketchum. J., concurring).
Outrageous and Non-Probative 404(b) Evidence.
The circuit court erred by admitting voluminous 404(b) evidence that had no
probative value. The State only called two witnesses who had knowledge of defendant Jason
Lively's (hereinafter Lively) alleged involvement in the murder, one of whom recanted his
story on the stand, the other, a jailhouse snitch whose story was riddled with
inconsistencies. For example, the jailhouse snitch testified that Lively told him that he and
his alleged co-conspirator, Tommy Owens (See footnote 1)
beat Dr. Whitley and killed him before setting
the house on fire. There were no signs of trauma or bruises on Dr. Whitley and the expert
testimony at trial was that Dr. Whitley died as a result of smoke inhalation. The jailhouse
snitch also said that Lively bragged about taking a large safe from the house, as well as a
computer and a gun. There was no safe, gun or computer missing from the decedent's
residence. Another inmate, Harry Caskey, who was housed with both Lively and the
jailhouse snitch testified that the jailhouse snitch told him, All you have to do is say the
Lively boy killed the Doc and they'll let you out of here.
By contrast to these two witnesses with supposed direct knowledge of the
charged crime, the State put on 14 witnesses who testified as to 404(b) evidence. This 404(b)
evidence fell into three categories: (1) evidence about an October 6, 2002, fistfight at a
Friendly Mart Store; (2) evidence relating to an alleged arson attempt of Stacy's Variety
Store by Tommy Owens, in exchange for money and/or drugs; and (3) evidence relating to
the theft of a laptop computer from the home of the decedent's estranged wife.
Fist Fight - Three Years Before the Alleged Crime
The fistfight at the Friendly Mart started when Owens sucker punched a man
named Elzie Branham. Branham and Owens had previously been involved in an altercation.
Lively was not present during their first altercation. There was no evidence or suggestion
that Owens and Lively were actively looking for Branham and intending to assault him.
Rather, the evidence was that Owens and Lively came into this store, Branham happened to
be there, and Owens instigated a fight with him. Lively did not join in the fight between
Branham and Owens; instead, he tackled a man who was with Branham, Randy Birchfield,
so that Birchfield would not join in the fight between Branham and Owens. While Lively
was not familiar with Birchfield prior to this altercation, the testimony at trial revealed that
Birchfield was a disabled coal miner. Additionally, when Birchfield and Lively began
fighting, Birchfield's wife attempted to break them up and Lively inadvertently hit her. The
State was therefore able to paint Lively as a despicable person who beat up a disabled coal
miner and punched the man's wife. The circuit court admitted this evidence finding it
demonstrated a common scheme and plan between Lively and Owens to act together to
carry out crimes and violence.
It is beyond imagination that a bar fight that took place three years before the
charged crime has probative value demonstrating that Lively and Owens acted together to
set a fire that killed Dr. Whitley.
Stolen Computer Far Away From the Fire Site
In the early afternoon after the fire that killed Dr. Whitley, Lively and Mike
Stafford (not a defendant) drove up to Dr. Whitley's Coon Branch residence, ostensibly to
tell his estranged wife about the fire. Dr. Whitley's wife was not home when Lively and
Stafford arrived and they waited for her to return. When she returned she invited them in,
made them coffee and asked Lively if he would clean up the house. (There were many
animals at the Coon Branch home and there was dog poop throughout the house which had
not been cleaned). Lively got a garbage bag, went from room to room cleaning and allegedly
stole a laptop computer that he hid in the garbage bag. Later that day, Lively attempted to
pawn the laptop computer.
This theft bears little resemblance to Dr. Whitley's alleged murder. The State's
theory of the murder was that Lively and Owens broke into Dr. Whitley's house, threatened
and burned him to death because they were after money and drugs that they believed Dr.
Whitley had at his residence. It is noteworthy that Lively would allegedly break into a house
and burn a man to death in the morning in order to carry out a robbery, but by the early
afternoon, he chose not to break into an empty house, instead he waited on the front step for
Dr. Whitley's wife to return. Once she returned, Lively did not threaten, burn or murder Dr.
Whitley's wife to carry out a robbery, instead he allegedly stole a laptop by sneaking it out
in a garbage bag.
Furthermore, the alleged co-conspirator, Owens, was not with Lively when the
laptop was allegedly stolen. How in the world does this theft show that Lively and Owens
acted together to carry out crimes and violence as contended by the State? It does not. The
prosecutor had a weak case and convicted the defendant because he was a bad guy.
The State's Excuse for Bad Character Evidence
The indictment alleged a conspiracy between Owens and Lively. It alleged in
count five that Lively and Owens did intentionally conspire to commit offenses against the
State of West Virginia. The State convinced the judge to allow the introduction of the prior
bad acts to show a conspiracy. Then, as soon as the State was done introducing the
prejudicial bad-act evidence to the jury, the State dismissed the conspiracy count.
Nevertheless, the jury was erroneously allowed to consider and hear arguments about the
prior bad acts, supposedly introduced to show a common plan or scheme (conspiracy).
Improper 404(b) Instruction
The prior bad acts evidence was tendered by the State and admitted by the court
to show a common plan or scheme. Surprisingly, the court instructed the jury that this
evidence could be considered in determining motive, opportunity, and intent. No evidence
was submitted by the prosecutor or admitted by the judge to show motive, opportunity or
The Anonymous Witness and The Confrontation Clause Standard of Review
In Crawford v. Washington
, 541 U.S. 36, 124 S.Ct. 1354 (2004), the Supreme
Court held that the Confrontation Clause bars the admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant had
a prior opportunity for cross-examination. Crawford
, 541 U.S. at 53-54, see also U.S. v.
601 F.3d 256 (4th
Cir. 2010). The majority relied on Syllabus Points 6 and 8 of State
, 219 W.Va. 366, 633 S.E.2d 311 (2006), in deciding the Confrontation Clause
issue. (See footnote 2)
Under Syllabus Point 8 of Mechling, supra, almost any hearsay statement is
testimonial, even if it is not tendered for the truth of the matter asserted. The United States
Supreme Court has refused to give trial courts a definition for testimonial and non-
testimonial statements and Syllabus Point 8 of Mechling is too expansive. We should adopt
a rule that correctly deals with the purpose of the Confrontation Clause, i.e., a defendant has
the right to face his accusers. I suggest the correct rule is:
Testimonial hearsay statements are all accusatory hearsay
statements which help prove any element of the crime charged
in the indictment or identifies the defendant.
See, Michael D. Cicchini and Vincent Rust, Confrontation after Crawford v. Washington:
Defining 'Testimonial', 10 Lewis & Clark L. Rev. 531 (Fall 2006); Thomas J. Reed,
Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the
Confrontation Clause from the Hearsay Rule, 56 S.C.L. Rev. 185 (2004).
Do Our Hearsay Rules Apply to Testimonial Hearsay Statements?
If the out-of-court statements are determined to be non-testimonial then the
Confrontation Clause is not applied and our hearsay rules determine the admissibility of the
If an out-of-court statement is held to be testimonial the court must first
determine if it is admissible under our hearsay rules because courts should not decide
constitutional issues if the matter can be decided under evidentiary rules. See, Three
Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 104 S.Ct. 2267 (1984).
If the out-of-court testimonial statement is held to be inadmissible under our
hearsay rules then the inquiry ends. However, if the out-of-court testimonial statement is
held to be admissible hearsay then the court must determine if the statement is barred under
the Confrontation Clause.
Although our hearsay rules and the constitutional right of confrontation are
similar we have carefully guarded their distinct functions. In Re: Anthony Ray Mc., 200
W.Va. 312, 489 S.E.2d 289 (1997).