IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
FILED
June 16, 2010
No. 34856
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
CHARLES J. LIVELY,
Defendant Below, Appellant
Appeal from the Circuit Court of McDowell County
The Honorable Booker T. Stephens, Judge
Civil Action No. 05-F-157
AFFIRMED
Submitted: January 27, 2010
Filed: June 16, 2010
David Schles, Esq.
Charleston, West Virginia
Attorney for Appellant
Sidney Bell, Esq.
McDowell County Prosecuting Attorney
Welch, West Virginia
Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1.
“In reviewing challenges to findings and rulings made by a circuit court,
we apply a two-pronged deferential standard of review. We review the rulings of the circuit
court concerning a new trial and its conclusion as to the existence of reversible error under
an abuse of discretion standard, and we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are subject to a de novo review.”
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).
2.
“When offering evidence under Rule 404(b) of the West Virginia Rules
of Evidence, the prosecution is required to identify the specific purpose for which the
evidence is being offered and the jury must be instructed to limit its consideration of the
evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely
to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise
purpose for which the evidence is offered must clearly be shown from the record and that
purpose alone must be told to the jury in the trial court’s instruction.” Syl. Pt. 1, State v.
McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
3.
“Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
i
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial
court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688, 347
S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must
be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the
defendant committed the acts. If the trial court does not find by a preponderance of the
evidence that the acts or conduct was committed or that the defendant was the actor, the
evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the
trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the
West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the
West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b)
evidence is admissible, it should instruct the jury on the limited purpose for which such
evidence has been admitted. A limiting instruction should be given at the time the evidence
is offered, and we recommend that it be repeated in the trial court’s general charge to the jury
at the conclusion of the evidence.” Syl. Pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d
516 (1994).
4.
“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
ii
value of the evidence is not substantially outweighed by its potential for unfair prejudice; and
(4) the trial court gave a limiting instruction.” Syl. Pt. 3, State v. LaRock, 196 W. Va. 294,
470 S.E.2d 613 (1996).
5.
“A trial court’s instructions to the jury must be a correct statement of
the law and supported by the evidence. Jury instructions are reviewed by determining
whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood
the issues involved and were not mislead by the law. A jury instruction cannot be dissected
on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial
court, therefore, has broad discretion in formulating its charge to the jury, so long as the
charge accurately reflects the law. Deference is given to a trial court’s discretion concerning
the specific wording of the instruction, and the precise extent and character of any specific
instruction will be reviewed only for an abuse of discretion.” Syl. Pt. 4, State v. Guthrie, 194
W. Va. 657, 461 S.E.2d 163 (1995).
6.
“[T]he question of whether a jury was properly instructed is a question
of law, and the review is de novo.” Syl. Pt. 1, in part, State v. Hinkle, 200 W. Va. 280, 489
S.E.2d 257 (1996).
iii
7.
“The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, is sufficient to convince a reasonable person
of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proved beyond a reasonable
doubt.” Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
8.
“A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the jury might have drawn in favor
of the prosecution. The evidence need not be inconsistent with every conclusion save that of
guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when
the record contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt.” Syl. Pt. 3, in part, State v. Guthrie, 194 W. Va. 657,
461 S.E.2d 163 (1995).
iv
9.
“Where the record of a criminal trial shows that the cumulative effect
of numerous errors committed during the trial prevented the defendant from receiving a fair
trial, his conviction should be set aside, even though any one of such errors standing alone
would be harmless error.” Syl. Pt. 5, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).
v
Per Curiam:
This case is before the Court upon an Order entered August 11, 2008, by the
Circuit Court of McDowell County, West Virginia, resentencing the Defendant, Charles J.
Lively, to life with a recommendation of mercy based upon the jury conviction for the felony
murder of Dr. Ebb K. (“Doc”) Whitley, Jr. The Defendant was also convicted of first degree
arson as the underlying felony supporting the felony murder conviction; however, no
additional sentence for the arson conviction was imposed by the trial court.1 The Defendant
argues that the trial court erred: 1) by allowing the admission of a statement of a confidential
informant because the statement was hearsay and violated the Confrontation Clause; 2) by
failing to order the State to disclose to the Defendant the identity of the alleged confidential
informant and any exculpatory evidence or information relevant to credibility or for
impeachment in violation of Brady v. Maryland, 373 U.S. 83 (1963); 3) by allowing the State
to admit other crimes evidence under West Virginia Rule of Evidence 404(b), because such
evidence created extreme unfair prejudice against the Defendant and had no or only slight
probative value; 4) by instructing the jury regarding the concerted action principle because
the evidence did not support the theory; 5) by failing to set aside the verdict due to
insufficient evidence for the jury to convict the Defendant for first degree arson; 6) by
1
The trial court specifically stated in its Order that it “was not imposing an additional
sentence for First Degree Arson because the State presented this case as felony murder.”
1
permitting the State to publish a statement of Brian Salyers that, even if portions of it were
properly admissible, included irrelevant and improper opinion testimony and discussions of
unfairly prejudicial alleged bad acts and character evidence concerning the Defendant,
Tommy Owens, and others;2 and 7) by permitting cumulative errors during the trial which
resulted in an unfair trial requiring reversal. Based upon a review of the parties’ briefs, their
respective arguments, the record, and all other matters before the Court, the decision of the
trial court is affirmed.
I. Facts and Proceedings Below
On March 15, 2005, Dr. Whitley died as a result of asphyxiation due to smoke
inhalation and thermal burns over ninety percent of his body3 that he suffered in a house fire
2
This argument regarding the publishing of Mr. Salyers’ statement to the jury was not
made in the Defendant’s Petition for Appeal, but was raised for the first time in his
Appellant’s Brief. To the extent that the Defendant failed to raise the issue in his Petition
for Appeal as an assignment of error, the argument regarding this issue is deemed waived and
will not be considered by the Court in this appeal. See Koerner v. West Virginia Dep’t of
Military Affairs & Pub. Safety, 217 W. Va. 231, 617 S.E.2d 778 (2005) (refusing to consider
an argument in appellant’s brief that was not assigned as error in petition for appeal).
Additionally, even though the Defendant raises the issue in his brief, it is mentioned only in
passing within the Defendant’s argument regarding an improper jury instruction and is
wholly unsupported by any legal authority. See State v. LaRock, 196 W. Va. 294, 302, 470
S.E.2d 613, 621 (1996) (“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.”).
3
The Deputy Chief Medical Examiner testified that his findings regarding the cause
of death were consistent with an intense fire burning near, but not directly contacting Dr.
Whitley’s body.
2
at his residence in Iaeger, West Virginia. Firefighters found his body on the floor by his bed
in his second floor bedroom. At the time of his death, Dr. Whitley was seventy years old and
was nearly paralyzed, unable to walk and with little use of his hands, after falling in his home
in 2000. Despite his physical condition, he by all accounts remained independent and
continued to run a pain clinic, which was located next door to his Iaeger residence.
The victim actually had two residences in the Iaeger area, the one in Iaeger
where he died, and another located outside of Iaeger on Coon Branch Mountain, where he
had been residing with his wife until about a week prior to his death. At that time, Dr.
Whitley decided to move out of his Coon Branch home because he was unhappy. Dr.
Whitley had informed his sons, Jack and Jeff, that he wanted to move to his Iaeger home.
Before his sons returned to Iaeger to move their father, Dr. Whitley moved in with Kathy
Lively,4 the Defendant’s mother. Ms. Lively testified that she had worked for Dr. Whitley
for twenty-six years and her primary job was his nurse; however, she had also helped care
for him. As part of her job duties, Ms. Lively was a signatory on Dr. Whitley’s bank
account; wrote prescriptions; had the keys to Dr. Whitley’s home in Iaeger, the clinic, Dr.
Whitley’s private office, and the drug sample room; saw patients; and controlled the payroll.
There was testimony from another clinic employee, Louise Christian, that Ms. Lively wrote
4
At the time of trial, Ms. Lively had married and was Kathy Lively Hamilton. For
purposes of this opinion, she will be referred to as Ms. Lively.
3
prescriptions for the Defendant, who would frequent the clinic three or four times a week,
and she also gave him injections of medications. Ms. Lively also would write prescriptions
in her own name and have Ms. Christian give her the medications. Ms. Lively, however,
testified that Dr. Whitley had total power at the office and that she would not do anything
without his approval.
Additionally, during the week that Dr. Whitley stayed with the Livelys, the
Defendant testified that he helped take care of him, including running errands for him,
preparing meals for him, and sitting with him. According to the Defendant, Dr. Whitley
agreed to pay the Defendant fifty dollars a week, so the Defendant quit his logging job.
The weekend prior to Dr. Whitley’s death, just several days after he moved into
Kathy Lively’s home, Dr. Whitley’s sons returned to move him to his home in Iaeger. Jack
stated that his father was upset and anxious when he arrived at the Lively home, while Jeff
stated that his father looked scared. He testified that his father did not have any type of close
relationship with the Defendant. Instead, according to Jack, his father told him that he was
glad to get away from the Lively home, because Dr. Whitley and the Defendant had “got into
it,” and Dr. Whitley was afraid that the Defendant was going to hit him.
4
In conjunction with moving their father back to Iaeger, Dr. Whitley’s sons
contacted Sherry Addair and arranged for her to move in to the home with their father and
take care of him. Ms. Addair was expected to come to the home either Tuesday night, March
15, or Wednesday morning, March 16.
While Jack left to return to his home on Sunday, after moving his father into
his Iaeger home, Jeff remained until Monday, March 14. Prior to Jeff’s leaving on Monday,
Dr. Whitley reassigned the administrative duties at his clinic, removing Ms. Lively’s name
from the clinic’s bank accounts,5 taking her keys, and prohibiting her from writing
prescriptions without them being initialed by Ms. Christian. Ms. Lively and Dr. Whitley got
into a heated argument at the doctor’s home, in front of Jeff, Ms. Christian, and the local
bank president, Jim Sizemore. Even though the evidence was that Ms. Lively and the doctor
were known to argue, on this occasion, both Jeff and Ms. Christian testified that Ms. Lively
threatened Dr. Whitley, stating “I’ll kill you, you SOB[,]” and that “he wasn’t going to do
this to her. . . . She’d took care of him for 25 years. And that she’d kill him, that he wasn’t
going to do this.” Ms. Lively, however, testified that she never threatened to kill Dr. Whitley
and that Dr. Whitley’s reassignment of all of her administrative duties, including having to
have all prescriptions she wrote initialed by another employee did not bother her in the least.
5
This was not the first time that Dr. Whitley had removed Ms. Lively’s name from the
bank accounts according to the evidence.
5
Before Jeff left to return to his home, he asked both Ms. Christian and Shirley
Cline, another employee of the clinic, to bring breakfast and check on his father on Tuesday
morning, March 15. Ms. Christian was the last person to see the doctor on Monday evening.
She left his home about 7:00 p.m. and locked the front door. The testimony was that Ms.
Lively was one of only a few people that knew that Dr. Whitley would be alone on Monday
evening. Also, Ms. Lively knew that Dr. Whitley had no phone service in his home as the
phone company had not yet reestablished service.
During the trial, Tim Butler testified that he was driving to work the next
morning between 8:00 a.m. and 8:15 a.m., when he passed Dr. Whitley’s house as he did
every morning. Mr. Butler stated that he “glanced” at the doctor’s home and noticed that the
front door was open and a person was inside the house. Mr. Butler could not describe or
identify the individual he saw.
When Ms. Christian drove past Dr. Whitley’s home on the morning of the fire
on her way to work around 9:00 a.m., she did not see smoke coming out of the house, or any
other sign of fire at the doctor’s home. Because there were already patients at the clinic
when she arrived, she did not immediately take breakfast to Dr. Whitley. Between 9:00 a.m.
and 9:30 a.m., Ms. Lively called into work and asked if anyone had checked on Dr. Whitley.
Ms. Lively stated that she was not coming into work because she was going to the doctor
6
about a back problem. The Defendant also called into the clinic that morning to see if Dr.
Whitley was going to need him to take care of him that day. Ms. Christian testified that it
was the first time that the Defendant had ever called the clinic asking about Dr. Whitley.
Shirley Cline, the employee who took the call from the Defendant, interrupted the
conversation to report that the doctor’s house was on fire. About the same time, Ms.
Christian noticed that smoke was coming out of the doctor’s house. The fire was reported
to McDowell County 911 at 10:17 a.m.
When firefighters arrived, the front door, which had been locked the night
before, was unlocked. There were no signs of forced entry. While repeatedly suggested by
the defense that the cause of the fire at Dr. Whitley’s was a cigarette, as he was a smoker,
two assistant state fire marshals testified that there were two separate fires that were
intentionally set in Dr. Whitley’s home–one downstairs and one in the doctor’s bedroom.
Further, a sample taken from the hole that burned through the floor in Dr. Whitley’s bedroom
revealed the presence of an ignitable liquid, which was later identified at the State Police
Laboratory as toluene.6
The testimony from the State Fire Marshall’s Office was
unequivocal that neither fire had been started by a cigarette.
6
The testimony was that toluene is found in paint thinners, gasoline, charcoal starters,
and some floor strippers.
7
The investigation of the fire also revealed that a television set had been
knocked off an entertainment center and was face down. Further, Dr. Whitley’s wheelchair
was not next to his bed where it had been left the night before.
After Dr. Whitley’s body was found, the Defendant and his mother’s boyfriend,
Mike Stafford, went to the doctor’s Coon Branch Mountain home to inform his wife, Sue
Whitley, of his death. Mrs. Whitley testified that when the Defendant arrived, he was “really
energetic and started picking up things, cleaning up. . . . He went in all the rooms[.]” Mrs.
Whitley stated that “[h]e had a garbage bag and was putting things in it he said was trash.”
There was a safe in a bedroom that the Defendant went into and there was also a laptop
computer and printer. After the Defendant left the house, Mrs. Whitley noticed that the
computer and printer were missing. She was later informed that the sheriff’s department had
recovered the laptop computer from someone to whom the Defendant had sold it.
The testimony at trial revealed that the Defendant had attempted to pawn a
laptop computer the very same day it went missing from Dr. Whitley’s Coon Branch home.
The first potential buyer did not want the computer after seeing Dr. Whitley’s name was on
the start up screen. The Defendant then took the computer to his cousin, who removed the
doctor’s name from the screen. The Defendant then sold the computer to Jeremy Lester for
either $150 or $250. After the sale, the Defendant phoned Mr. Lester and told him that if
8
anyone asked about the computer that it was Dr. Whitley’s, but the doctor had given it to
him. Mr. Lester turned the computer over to police the next evening.
A couple of weeks later, McDowell County Deputy Sheriff Ronald Blevins
learned from an informant, who insisted that his name not be disclosed, that the informant
had seen Tommy Owens near the Whitley Clinic on the morning of the fire. The informant
also provided authorities with a description of the vehicle that was seen near the clinic the
morning of the fire. Based upon this tip obtained during the course of the investigation,
which did not implicate the Defendant, the deputy questioned Tommy Owens. Tommy
Owens told the deputy that he had been with Brian Salyers the morning of the fire.
Mr. Salyers, in turn, voluntarily submitted to be questioned by law
enforcement. Initially, Mr. Salyers stated that he had no knowledge about Dr. Whitley’s
death, but after being interviewed for about two hours, Mr. Salyers changed his position and
began relating information about Dr. Whitley’s death. Specifically, Mr. Salyers stated that
he had picked up both Mr. Owens and the Defendant around 7:00 a.m. on the morning of the
fire. The two asked Mr. Salyers to give them a ride to Dr. Whitley’s clinic. The deputy
testified that Mr. Salyers acted afraid before Mr. Salyers began implicating the Defendant
during the interview. Deputy Richard Keith Auville also testified that Mr. Salyers expressed
that he was fearful of both Mr. Owens and the Defendant and what would happen to him if
9
they found out what he had told the police. Consequently, while Mr. Salyers was with the
sheriff’s deputies the day he gave his statement, Deputy Auville testified that he spent a
couple of hours trying to find Mr. Salyers a place with his family where he could go for his
safety. Finally, during the interview, Mr. Salyers admitted to stealing copper, selling stolen
copper wiring on the same day he had given Mr. Owens and the Defendant a ride, and using
the money on drugs. The authorities corroborated the portions of his statement regarding the
sale of stolen copper wiring by interviewing the man who operated the scrap metal junk yard.
At trial, however, while admitting all other portions of his statement, Mr. Salyers recanted
the portion of his statement in which he had admitted to giving the Defendant and Mr.
Salyers a ride to Dr. Whitley’s clinic. Mr. Salyers admitted that he had known the Defendant
his whole life and had spoken with him since the Defendant had been charged with the
crimes against the doctor, including going to lunch with the Defendant and his family.
Additionally, Jason Ritchie, an inmate in the regional jail, testified for the
State. Mr. Ritchie stated that the Defendant told him that his mother had worked for Dr.
Whitley. Mr. Ritchie also testified that the Defendant told him that the Defendant and Mr.
Owens went to Dr. Whitley’s home to steal money and drugs but, instead, took a safe,
computer, and a gun. As they were leaving, the Defendant told Mr. Ritchie that Mr. Owens
set Dr. Whitley’s home on fire.
10
Lastly, the State put on evidence pursuant to West Virginia Rule of Evidence
404(b). The trial court gave two cautionary, limiting instructions at the time the Rule 404(b)
evidence was being admitted and again instructed the jury in the Court’s final charge at the
request of the State.7 This evidence was offered by the State and ultimately admitted to show
common scheme, plan and intent after an approximately two-hour in camera McGinnis8
hearing. The State pursued a concerted action theory for the charge of first degree murder
against the Defendant. The Rule 404(b) evidence that was admitted by the trial court
included: 1) evidence about an October 6, 2002, fistfight at a Friendly Mart Store in Panther,
West Virginia, in which the Defendant and Tommy Owens attacked two individuals,
including a disabled coal miner, resulting in a misdemeanor battery conviction for the
Defendant; 2) evidence relating to an arson attempt on Stacy’s Variety Store perpetrated by
the Defendant and Mr. Owens in exchange for money and/or drugs, which occurred in
7
In the Petition for Appeal, the Defendant argued that the trial court failed to give the
jury a cautionary, limiting instruction concerning Rule 404(b) evidence. The Defendant, in
his appellate brief, which was filed by new counsel, abandons the argument that no
instructions were given; however, the Defendant still maintains that the trial court failed to
give “appropriate limiting instructions.” The Court summarily rejects this argument as the
record unequivocally reveals that the trial court instructed the jury twice during the trial prior
to admitting the Rule 404(b) evidence. The trial court also instructed the jury during the
general charge at the request of the State.
8
See State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
11
January 2001; and 3) evidence relating to the theft of Dr. Whitley’s laptop computer by the
Defendant from his Coon Branch home on the afternoon of his death.9
The Defendant offered evidence of an alibi. The Defendant also testified that
he did not commit the crimes with which he was charged. Regarding his alibi, both Mike
Stafford and his mother, Calos Stafford, testified that on March 15, 2005, the morning of the
fire, the Defendant was at Mike’s house, which was next to his parents’ home, and that the
Defendant had spent the night at Mike’s home. They both testified that the Defendant did
not leave until after he was informed by a telephone call that Dr. Whitley’s home was on fire.
Upon cross-examination by the State, however, Mr. Stafford testified that he had taken a
sleeping pill the night before the fire at Dr. Whitley’s. Also, Ms. Stafford testified that her
son, Mike, came down to her house the morning of the fire after 9:00 a.m. and that he had
just gotten out of bed because he still was in his pajamas. Ms. Stafford did not see the
Defendant that morning until after she saw her son. She agreed that if the evidence was that
the fire was not reported until after 10:00 a.m. that morning, then she did not see the
Defendant until that time as the Defendant told them about the fire. She testified that it takes
about fifteen or twenty minutes to get to Iaeger from her home.
9
The State also pursued the admission of evidence under West Virginia Rule of
Evidence 404(b) relating to an incident in which Mr. Owens stole between $1200 and $1400
from a lady after putting duct tape around her head, face, nose and mouth. The trial court,
however, refused to allow this evidence to be admitted at trial because of the lack of any
connection to the Defendant.
12
The defense also introduced evidence from an investigator for an insurance
company who classified the fire as undetermined, because he could not determine a single
point of origin of the fire. His investigation occurred nine days after the fire and he testified
that by classifying it as undetermined, he did not rule out that it was arson and he did not rule
out that it was accidental.
The defense further offered the testimony of Harry Caskey, another inmate,
who was in jail at the same time as both the Defendant and Mr. Ritchie. This witness
testified that Mr. Ritchie told him that to get out of jail, “[a]ll you’ve got to do is tell them
that the Lively boy said he killed that Doc.” Further, the defense thoroughly cross-examined
all the State’s witnesses and brought to the jury’s attention the inconsistencies in Mr.
Ritchie’s testimony, including his statement that the Defendant had stated that he beat Dr.
Whitley prior to setting the fire. There were no signs of trauma on the victim’s body. Mr.
Ritchie also stated that the Defendant told him that he and Mr. Owens took a big safe from
the house and a gun; however, the safe from the Iaeger home was still there.
The charges of first degree murder and first degree arson against the Defendant
went to the jury.10 After several hours of deliberations, the jury found the Defendant guilty
10
The Defendant also was indicted for burglary, grand larceny and conspiracy to
commit murder and arson. Before trial, the Defendant pleaded guilty to petit larceny, a
(continued...)
13
of first degree felony murder and first degree arson, which was the underlying felony. The
jury recommended mercy and the Defendant was sentenced to life with mercy and a
consecutive one year sentence for petit larceny. This appeal ensued.
II. Standard of Review
As the Court has previously stated:
In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Applying these standards
of review, the Court now examines the issues presented in the present appeal.
III. Discussion of Law
A. Confrontation Clause and Hearsay
The first assignment of error concerns two statements. The first statement was
made by a confidential informant whose identity was not disclosed to the Defendant.
10
(...continued)
lesser-included offense of grand larceny, for stealing Dr. Whitley’s laptop. The State
voluntarily dismissed the burglary and conspiracy counts prior to the case going to the jury.
14
Specifically, the statement at issue arises from Deputy Blevins’ testimony that a confidential
informant reported to police that he saw Mr. Owens in Mr. Salyers’ truck near Dr. Whitley’s
clinic the morning of the fire. Importantly, the confidential informant’s statement was not
admitted into evidence. Instead, the deputy testified that the information given to him by the
confidential informant was the reason he sought to interview Mr. Owens and Mr. Salyers.
The second statement that the Defendant now contends was erroneously
admitted during trial was that of jail inmate, Michael Cline, reporting to the police statements
made to him by fellow inmate Jason Ritchie wherein Mr. Ritchie alleged the Defendant
inculpated himself in the crimes against Dr. Whitley. Once again, no statement of Mr. Cline
was admitted into evidence. Nor was what Mr. Cline reported to police admitted for the truth
of the matter asserted. In fact, the only statements of Mr. Ritchie which were testimonial in
nature were those admitted via Mr. Ritchie’s own testimony.
It is also significant that there was no objection made by the Defendant at the
time the deputy testified about the information given to him about seeing Mr. Owens at the
Whitley residence nor was there an objection to Mr. Ritchie’s testimony that Mr. Cline
reported his statements to the police. Moreover, there was no other record developed below
by the Defendant regarding the testimony of Deputy Blevins or the testimony of Mr. Ritchie
15
violating the Confrontation Clause of the Sixth Amendment.11 Despite the lack of any
objection or argument below regarding a violation of the Confrontation Clause of the Sixth
Amendment, the Defendant now argues on appeal that the statement made by the confidential
informant to the police was “testimonial” in nature and violated the Confrontation Clause.
See State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006). The State, however, argues
that the statements at issue were not “testimonial” in nature, were not hearsay, and did not
violate the Confrontation Clause.
11
During the hearing on the Defendant’s “Motion for Post-Verdict Judgment of
Acquittal or Motion for a New Trial,” the Defendant argued for the first time that the name
of the confidential informant that made the initial report about seeing Mr. Salyers and Mr.
Owens near Dr. Whitley’s home should have been given to the defense. Even then, no
Confrontation Clause or hearsay argument was raised. Rather, the Defendant’s argument
was that the State’s failure to produce the identity of the confidential informant was a failure
to disclose Brady material, therefore warranting a judgment of acquittal. Although the
assignments of error in the Petition for Appeal raise Confrontation Clause and hearsay issues,
they do no raise a Brady issue. However, the Defendant’s brief contains a Brady argument.
The State responded during the hearing on the Defendant’s post-trial motion that
[w]ith respect to the allegation that the conviction should be reversed
because of Brady materials, as the Court knows, persons sometimes speak to
the police with the guarantee that they will remain anonymous. That’s a
common practice, and they have a right to have their identity protected, and
that was just information that the police acted on to continue their
investigation, and certainly, that was not the evidence that resulted in the
conviction in this case.
After a hearing on the post-trial motion, the trial court denied the Defendant’s motion.
16
At the outset, the Court finds that this assignment of error was not properly
preserved by the Defendant below. When reference was made during trial to these two
statements, there were no objections by the Defendant. Further, the Defendant did not
complain before the trial court of any violation of the Confrontation Clause. The Court
consistently has held that “silence may operate as a waiver of objections to error and
irregularities at the trial which, if seasonably made and presented, might have been regarded
as prejudicial.” State v. Grimmer, 162 W. Va. 588, 595, 251 S.E.2d 780, 785 (1979),
overruled on other grounds, State v. Petry, 166 W. Va. 153, 273 S.E.2d 346 (1980). The
raise or waive rule is designed “to prevent a party from obtaining an unfair advantage by
failing to give the trial court an opportunity to rule on the objection and thereby correct
potential error.” Wimer v. Hinkle, 180 W. Va. 660, 663, 379 S.E.2d 383, 386 (1989). In
LaRock, this Court explained as follows:
Our cases consistently have demonstrated that, in general, the law ministers to
the vigilant, not to those who sleep on their rights.... When a litigant deems
himself or herself aggrieved by what he or she considers to be an important
occurrence in the course of a trial or an erroneous ruling by a trial court, he or
she ordinarily must object then and there or forfeit any right to complain at a
later time. The pedigree for this rule is of ancient vintage, and it is premised
on the notion that calling an error to the trial court's attention affords an
opportunity to correct the problem before irreparable harm occurs. There is
also an equally salutary justification for the raise or waive rule: It prevents a
party from making a tactical decision to refrain from objecting and,
subsequently, should the case turn sour, assigning error (or even worse,
planting an error and nurturing the seed as a guarantee against a bad result). In
the end, the contemporaneous objection requirement serves an important
purpose in promoting the balanced and orderly functioning of our adversarial
system of justice.
196 W. Va. at 316, 470 S.E.2d at 635.
17
Although the Defendant does not ask the Court to notice plain error, the Court
can sua sponte apply the plain error doctrine if the record below is sufficient for such
analysis. State v. Hutchinson, 176 W. Va. 172, 177, 342 S.E.2d 138, 142 (1986) (“[W]e may,
sua sponte, in the interest of justice, notice plain error[.]”). To that end, “[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)); State v. Spence, 182 W. Va. 472, 481, 388 S.E.2d 498, 507(1989)(“The plain error
rule presupposes that the record is sufficiently developed to discern the error.”).
The record in the instant case is fully developed, in that it reflects clearly the
matters to which the Defendant now objects, as well as the specific testimony at issue.
Further, where there is a serious criminal conviction (e.g. first degree murder as in the instant
case) and an issue of constitutional magnitude, it behooves the Court to conduct a plain error
analysis on appeal, rather than dragging the proceedings out over many ensuing years.
Consequently, a plain error analysis of the issues involving these statements will be
performed. Step one in such analysis is that an error must have occurred during the trial.
The substance of the first statement at issue, that of the confidential informant,
merely reflected that a Mr. Owens was seen at Dr. Whitley’s residence the morning of the
18
fire. The deputy who referred to the statement in his testimony did so only to explain the
reason that he went to interview Mr. Owens. The information from the confidential
informant did not implicate the Defendant in any manner.
The second statement was nothing more than Jason Ritchie’s testimony that he
told Mr. Cline about the Defendant’s admissions to him (Ritchie), and that it was Mr. Cline
who told the police.
As stated earlier, neither of the statements at issue were offered as evidence at
trial. Nor were the references to either by trial witnesses offered to prove the truth of the
matter asserted. The first was offered to explain why law enforcement took the action to go
and interview Mr. Salyers in conjunction with the investigation of the victim’s death. The
second were mere gratuitous comments by an inmate witness as to how he believed the police
learned of his statements. See Syl. Pt. 1, in part, State v. Maynard, 183 W. Va. 1, 2, 393
S.E.2d 221, 222 (1990) (holding, in part, that “[g]enerally, out-of-court statements made by
someone other than the declarant while testifying are not admissible unless: 1) the statement
is not being offered for the truth of the matter asserted, but for some other purpose such as
motive, intent, state-of-mind, identification or reasonableness of the party’s action . . . .”).
Under these circumstances, there was no error and no violation of the Confrontation Clause.
Absent a finding of error, it is not necessary to proceed to the other steps of the plain error
analytical framework. It is clear that the testimonial references to out-of-court statements
19
had no adverse effect on the substantial rights of the defendant; and in no way adversely
affected the fairness, integrity, or public reputation of the judicial proceedings in the
proceeding below, the Court will not apply the plain error doctrine to this case.
Finally, the Defendant also assigned as error in his brief (but not in his Petition
for Appeal) the State’s failure to disclose alleged exculpatory evidence under Brady v.
Maryland, 373 U.S. 83(1963). As previously mentioned, the Brady issue was raised for the
first time below in the post-trial motion. This argument was made in conjunction with the
“failure”12 of the State to provide the confidential informant’s name. There has been no
assertion at any time by the Defendant that anything in the informant’s statement would in
any way tend to exculpate the Defendant. To the extent that the Defendant failed to raise the
Brady issue in his Petition for Appeal as an assignment of error, and failed to develop the
record regarding the issue, the argument is deemed waived and the Court is not required to
consider this issue. See Koerner, 217 W. Va. 231, 237, 617 S.E.2d 778, 784 (“‘Rule 3(c) of
the Rules of Appellate Procedure in the Court requires a petition for appeal to set forth the
‘assignments of error relied upon on appeal . . . .’” . . . Holmes v. Basham, 130 W. Va. 743,
45 S.E.2d 252, 258 (1947) (the Court refused to consider an argument in an Appellant’s brief
that was not assigned as an error in the petition for appeal.); Tiernan v. Charleston Area
12
Because the Defendant never requested the identity of the confidential informant
until after the trial was over, the Defendant’s use of the word “failure” is an inaccurate
characterization.
20
Medical Center, Inc., 203 W. Va. 135, 506 S.E.2d 578, 583, n. 10 (1998) (‘Issues not raised
on appeal ... are deemed waived.’); 18 Michie’s Jurisprudence, Appeal and Error § 210, p.
400, n. 15.”)).
However, just as was the case with the Confrontation Clause, given the
constitutional significance of a Brady issue, the Court can sua sponte conduct a plain error
analysis if the record is sufficient to do so. Miller, 194 W. Va. 3, 459 S.E.2d 114, Syl. Pt.
7. The deputy testified that the information provided by the confidential informant related
solely to the possible presence of Mr. Owens at the scene and possibly to a vehicle at the
scene the morning of the fire. More importantly, as previously discussed, the information
provided to the police by the confidential informant included nothing regarding the
Defendant. Thus, the Court concludes that the record is sufficient to conduct a plain error
analysis; and determines that even had the Defendant raised the alleged Brady issue in a
timely manner, the failure to provide the identity of the confidential informant did not
constitute error. No error having been found, it is unnecessary to perform the additional steps
of a plain error analysis.
21
B. Rule 404(b) Evidence
The Defendant argues that the trial Court improperly allowed evidence
under West Virginia Rule of Evidence 404(b)13 to be admitted. The evidence at issue14
included: 1) the Defendant and Mr. Owens attack of and fistfight with two other men,
one of whom was a disabled coal miner, in October of 2002, which was prior to the
charged fire; 2) the Defendant and Mr. Owens involvement with an alleged attempted
arson in January of 2001; and 3) the Defendant’s theft of a laptop computer belonging to
13
West Virginia Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he or she acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause shown,
of the general nature of any such evidence it intends to introduce at trial.
Id.
14
The Defendant also includes in the Rule 404(b) argument “evidence of illegal drug
activity.” The Defendant states that “[t]he State did not give notice that it intended to
introduce any evidence purported [sic] to show Jason Lively was involved in drug activity.”
The Defendant, however, points to no specific evidence offered by the State regarding
“illegal drug activity” by the Defendant. Rather, the Defendant argues that the State
“insinuate[d]” the Defendant’s alleged involvement in such activity. The “illegal drug
activity” evidence was not presented in the Petition for Appeal and there were no objections
at trial to such testimony. “‘Errors assigned for the first time on appeal will not be regarded
in any matter of which the trial court had jurisdiction or which might have been remedied in
the trial court had objection been raised there.’ Syl. Pt. 17, State v. Thomas, 157 W.Va. 640,
203 S.E.2d 445 (1974).” State v. Dennis, 216 W. Va. 331, 350, 607 S.E.2d 437, 456 (2004).
22
Dr. Whitley on the same day as the arson that destroyed Dr. Whitley’s home.15 The
Defendant argues that the “vast volume of evidence”16 was irrelevant and unfairly
prejudiced him and confused the issue. The State conversely argues that the evidence was
properly admitted to show motive, intent and common scheme or plan.
The Court reviews the circuit court’s decision to admit evidence pursuant to
West Virginia Rule of Evidence 404(b) under the following standard of review:
[t]he standard of review for a trial court’s admission of evidence
pursuant to Rule 404(b) involves a three-step analysis. First, we review for
clear error the trial court’s factual determination that there is sufficient
evidence to show the other acts occurred. Second, we review de novo
whether the trial court correctly found the evidence was admissible for a
legitimate purpose. Third, we review for an abuse of discretion the trial
court's conclusion that the “other acts” evidence is more probative than
prejudicial under Rule 403.
State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-630 (1996). The Court
further stated in State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), however, that
15
The Defendant was convicted of assault and battery in magistrate for his part in the
fistfight; the Defendant pleaded guilty to conspiracy to commit arson regarding the attempted
arson evidence; and the Defendant pleaded guilty to the theft of the laptop computer.
16
The Defendant suggests that the trial court improperly allowed fourteen witnesses
to testify regarding the Rule 404(b) evidence. This Court’s review of the entire trial
transcript reveals that the State methodically presented, through these witnesses, the manner
in which the Defendant was involved with the prior crimes evidence. Each witness who
testified helped to complete the story of the Defendant’s involvement in the prior crimes and
was not simply repeating the same story. There is no limitation either in case law or within
Rule 404(b) regarding the number of witnesses who may be permitted by the trial court to
testify regarding evidence deemed admissible by the trial court under Rule 404(b). W. Va.
R. Evid. 404(b).
23
[o]ur function on . . . appeal is limited to the inquiry as to whether
the trial court acted in a way that was so arbitrary and irrational that it can
be said to have abused its discretion. In reviewing the admission of Rule
404(b) evidence, we review it in the light most favorable to the party
offering the evidence, in this case the prosecution, maximizing its probative
value and minimizing its prejudicial effect.
193 W. Va. at 159, 455 S.E.2d at 528 (emphasis added).
In McGinnis, this Court held in syllabus points one and two that:
When offering evidence under Rule 404(b) of the West Virginia
Rules of Evidence, the prosecution is required to identify the specific
purpose for which the evidence is being offered and the jury must be
instructed to limit its consideration of the evidence to only that purpose. It is
not sufficient for the prosecution or the trial court merely to cite or mention
the litany of possible uses listed in Rule 404(b). The specific and precise
purpose for which the evidence is offered must clearly be shown from the
record and that purpose alone must be told to the jury in the trial court's
instruction.
Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the
West Virginia Rules of Evidence, is to determine its admissibility. Before
admitting the evidence, the trial court should conduct an in camera hearing
as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After
hearing the evidence and arguments of counsel, the trial court must be
satisfied by a preponderance of the evidence that the acts or conduct
occurred and that the defendant committed the acts. If the trial court does
not find by a preponderance of the evidence that the acts or conduct was
committed or that the defendant was the actor, the evidence should be
excluded under Rule 404(b). If a sufficient showing has been made, the trial
court must then determine the relevancy of the evidence under Rules 401
and 402 of the West Virginia Rules of Evidence and conduct the balancing
required under Rule 403 of the West Virginia Rules of Evidence. If the trial
court is then satisfied that the Rule 404(b) evidence is admissible, it should
instruct the jury on the limited purpose for which such evidence has been
admitted. A limiting instruction should be given at the time the evidence is
24
offered, and we recommend that it be repeated in the trial court’s general
charge to the jury at the conclusion of the evidence.
193 W. Va. at 151, 455 S.E.2d at 520, Syl. Pts. 1 and 2.
Applying the foregoing legal principles to the Rule 404(b) evidence that
was admitted during the Defendant’s trial, it is undisputed that the State properly filed a
detailed notice of intention to introduce the evidence at issue pursuant to West Virginia
Rule of Evidence 404(b). Further, the trial court conducted a two-hour in camera hearing
on November 6, 2006, and made specific findings on the record that the State had proven
by a preponderance of the evidence that the subject “crimes, wrongs, or acts” had
occurred and that the State was offering the evidence for a permissible purpose within the
confines of West Virginia Rule of Evidence 404(b). Specifically, the trial court found
that the evidence of the stolen laptop was properly being offered to prove motive, plan
and intent; the evidence of the Defendant and Mr. Owens attacking two individuals, one
of whom was a disabled coal miner, and engaging in a fistfight against them, was
properly being offered to show common scheme or plan of the Defendant and Mr. Owens
to act in concert with one another to carry out crimes of violence;17 and the evidence of
17
It is important to note that the Defendant maintained at the post-trial motions hearing
that the evidence admitted pursuant to West Virginia Rule of Evidence 404(b) was offered
solely for the State’s conspiracy charge. The Defendant argued that when the State dismissed
the conspiracy count against the Defendant, the Rule 404(b) evidence became unfairly
prejudicial to the Defendant, thereby warranting either a judgment of acquittal or a new trial.
This argument, however, completely ignores the fact that the State offered the Rule 404(b)
(continued...)
25
the Defendant’s and Mr. Owens’ attempt to commit arson of building using beer bottles
filled with kerosene, gasoline, or some other fuel was properly admitted to show common
scheme or plan of the Defendant and Mr. Owens to act together in carrying out crimes of
violence.18 The trial court also determined that the evidence was more probative than
17
(...continued)
evidence that involved Mr. Owens, not just for the conspiracy count, but to show the State’s
theory of concerted action between Mr. Owens and the Defendant. In State v. Fortner, 182
W. Va. 345, 387 S.E.2d 812 (1989), the Court held in syllabus point 11 that “[u]nder the
concerted action principle, a defendant who is present at the scene of a crime and, by acting
with another, contributes to the criminal act, is criminally liable for such offense as if he were
the sole perpetrator.” Id. at 349, 387 S.E.2d at 816, Syl. Pt.11. This theory of the case used
by the State is different than a conspiracy. “‘In order for the State to prove a conspiracy
under W. Va. Code, 61-10-31(1), it must show that the defendant agreed with others to
commit an offense against the State and that some overt act was taken by a member of the
conspiracy to effect the object of that conspiracy.’ Syl. Pt. 4, State v. Less, 170 W. Va. 259,
294 S.E.2d 62 (1981).” Syl. Pt. 3, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991).
Consequently, the Rule 404(b) evidence was equally relevant to both the concerted action
principle theory used by the State and the conspiracy charge against the Defendant. Thus,
the evidence became no less relevant or admissible simply because the conspiracy charge was
dismissed by the State.
18
During the McGinnis hearing, the Defendant argued that both the fistfight and the
attempted arson were too remote to be admissible in the instant case. While not directly
assigning as error in the instant appeal, the Defendant argues before this Court that the
fistfight that occurred two and one-half years prior to the victim’s murder, and the attempted
arson that occurred a little over four years before the victim’s murder, were too remote to be
admissible under West Virginia Rule of Evidence 404(b). “As 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); see State v. Winebarger, 217
W. Va. 117, 617 S.E.2d 467 (2005) (holding that where defendant was charged with first
degree murder and was ultimately found guilty of voluntary manslaughter, other crimes
evidence that defendant had brandished a weapon on other occasions five to fifteen years
prior to the date in question was admissible to demonstrate defendant’s intent and the
absence of accident or mistake).
(continued...)
26
prejudicial to the Defendant. Additionally, the trial court properly gave two cautionary
instructions to the jury regarding the evidence at the time it was being offered by the
State, and instructed the jury on the same issue during the general charge to the jury at the
request of the State.
As the Court stated in syllabus point three of LaRock,
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.
196 W. Va. at 299, 470 S.E.2d at 618, Syl. Pt. 3. In the instant case, all of the
requirements of LaRock were met by both the prosecution and the trial court.
Consequently, the Court finds no error in the trial court’s decision to admit certain
evidence of the Defendant’s prior criminal conduct under the provisions of West Virginia
Rule of Evidence 404(b). See State v. Newcomb, 223 W. Va. 843, 679 S.E.2d 675
(2009)(upholding admissibility of evidence under West Virginia Rule of Evidence 404(b)
where all factors of McGinnis were followed by trial court).
18
(...continued)
27
C. Concerted Action Principle
The Defendant next complains that the trial court erroneously instructed the
jury regarding the concerted action principle. The Defendant asserts that there were no
facts which showed a principle in the first degree set the fire and that the Defendant was
present and in some manner aided, encouraged, assisted or incited the first degree
principle. The State did not respond to this particular issue.
The Court has established the following standards of review applicable to
jury instructions:
A trial court’s instructions to the jury must be a correct statement of
the law and supported by the evidence. Jury instructions are reviewed by
determining whether the charge, reviewed as a whole, sufficiently
instructed the jury so they understood the issues involved and were not
mislead by the law. A jury instruction cannot be dissected on appeal;
instead, the entire instruction is looked at when determining its accuracy. A
trial court, therefore, has broad discretion in formulating its charge to the
jury, so long as the charge accurately reflects the law. Deference is given to
a trial court's discretion concerning the specific wording of the instruction,
and the precise extent and character of any specific instruction will be
reviewed only for an abuse of discretion.
Syl. Pt. 4, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Further, “the
question of whether a jury was properly instructed is a question of law, and the review is
de novo.” Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). Applying
these principles, the Court addresses the Defendant’s alleged error regarding the
concerted action principle instruction.
28
The trial court instructed the jury as follows, over the Defendant’s
objection:
The Court instructs the jury that under our law, each and every
person who is actually present at the scene of the commission of a criminal
felony act and who participates in the commission of such act in any way,
whether it be by directly doing the act or it be by encouraging, enticing,
lending countenance to, or otherwise aiding the commission of the crime in
any manner can be found guilty of a criminal offense and punished for it.
The law calls this the concerted action principle.
Under concerted action principle, a defendant who was present at the
scene of a crime and who by acting with one or more other persons
contributed in any way to the commission of such criminal act is criminally
liable for the crime the same as if he or she were the sole perpetrator.
The Defendant acknowledges that the foregoing instruction was an accurate statement of
the law. He only challenges whether the facts supported the trial court giving the
instruction.
A review of the facts in this case reveals ample evidence was offered during
trial to support the trial court giving the State’s instruction on concerted action principle.
The State offered the testimony of Jason Ritchie,19 who testified that the Defendant
discussed the crimes he committed against the victim with him. Mr. Ritchie stated that
19
While there were inconsistencies in Mr. Ritchie’s testimony, including the manner
in which Dr. Whitley was murdered, those inconsistencies were brought out by the Defendant
in cross-examination. The Defendant further brought out that Mr. Ritchie had received a
favorable plea agreement in exchange for his testimony. Finally, the Defendant offered the
testimony of Harry Caskey, another inmate, who stated that Mr. Ritchie boasted that all one
had to do get out of jail was to tell them that the Defendant killed Dr. Whitley.
29
the Defendant told him that he and Mr. Owens went to Dr. Whitley’s home to rob him
and that Mr. Owens set fire to the house as they were leaving. Dr. Whitley died from
smoke inhalation and burns to his body. The Defendant further told Mr. Ritchie that he
stole a computer from Dr. Whitley. Additionally, Mr. Salyers gave a statement to police
that he had picked up both Mr. Owens and the Defendant around 7:00 a.m. or a little after
on the morning of the fire. The two asked Mr. Salyers to give them a ride to Dr.
Whitley’s clinic the morning of the fire, which Mr. Salyers did.20 Finally, there was
evidence submitted pursuant to Rule 404(b) which demonstrated that Mr. Owens and the
Defendant had a common scheme of committing violent crime, including starting a
fistfight and attempted arson.
Based upon the foregoing, the Court concludes that there was sufficient
evidence warranting the trial court giving the State’s instruction regarding concerted
action principle to the jury.
D. Sufficiency of Evidence
The Defendant argues that there was insufficient evidence offered by the
State to convince the jury beyond a reasonable doubt that the Defendant was guilty of
arson. The Defendant further asserts that if the arson conviction fails, the murder
20
Mr. Salyers recanted the portion of his statement at trial regarding giving Mr. Owens
and the Defendant a ride to Dr. Whitley’s clinic the morning of the fire.
30
conviction also must fail, because the State proceeded on a felony murder theory with
arson as the underlying felony. In contrast, the State argues that the evidence was
sufficient to support the jury’s verdict.
The trial court, in rejecting the Defendant’s motion for acquittal, found that
we had a lengthy trial . . . and both sides presented and was allowed to
present what I considered to be – each side had an opportunity to get their
position to the jury in this case, and it’s the jury that decides whether or not
they have sufficient evidence after hearing the case. We instruct them . . .
that the State of West Virginia has the burden of proof to prove its case
beyond a reasonable doubt.
In this case, the jury indicated by its verdicts as to the first degree
murder case and the first degree arson case, indicated by their verdicts that
all 12 of them felt that the State had presented enough evidence to meet its
burden of proof beyond a reasonable doubt.
.
.
.
This really was just a case for the jury to decide, which in any trial, for them
to, first, assess the evidence to determine in their mind who’s telling the
truth and who’s not telling the truth, and then look at the rest of the
evidence and make a decision on guilt or not guilt. In this instance, they
decided that he was guilty beyond a reasonable doubt.
The Court applies a de novo standard of review to the denial of a motion for
judgment of acquittal based upon the sufficiency of the evidence. LaRock, 196 W. Va. at
304, 470 S.E.2d at 623. As this Court has further explained:
The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence
31
admitted at trial to determine whether such evidence, if believed, is
sufficient to convince a reasonable person of the defendant’s guilt beyond a
reasonable doubt. Thus, the relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proved beyond a
reasonable doubt.
Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 1.
Moreover,
[a] criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must
review all the evidence, whether direct or circumstantial, in the light most
favorable to the prosecution and must credit all inferences and credibility
assessments that the jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save that of guilt
so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury
verdict should be set aside only when the record contains no evidence,
regardless of how it is weighed, from which the jury could find guilt beyond
a reasonable doubt.
Id. at 663, 461 S.E.2d at 169, Syl. Pt 3, in part.
Utilizing the foregoing standards, we now examine whether there was
sufficient evidence to support the Defendant’s conviction, keeping in mind that for the
purposes of this analysis, all the evidence must be viewed in the light most favorable to
the prosecution. Id.
The State offered evidence that the victim died of smoke inhalation and
thermal burns over ninety percent of his body as a result of two intentionally set fires at
32
Dr. Whitley’s home. There was a sample taken from the hole that burned through the
floor at his home that which revealed the presence of an ignitable liquid.
As evidence of motive, the evening before the fire, the Defendant’s mother,
Ms. Lively, engaged in a heated argument with Dr. Whitley and threatened to kill him
because he had taken her office keys, removed her name from the checking accounts, and
ordered that she not write any more prescriptions. There was testimony from another
clinic employee, Louise Christian, that Ms. Lively wrote prescriptions for the Defendant,
who would frequent the clinic three or four times a week, and that she also gave him
injections of medications. Additionally, Ms. Lively would also write prescriptions in her
own name and have Ms. Christian give her the medications.
Additionally, during the week that Dr. Whitley stayed with the Livelys, the
Defendant testified that he helped take care of Dr. Whitley, including running errands for
him, preparing meals for him, and sitting with him. According to the Defendant, because
Dr. Whitley agreed to pay the Defendant fifty dollars a week, so the Defendant quit his
logging job. Dr. Whitley, however, left the Livelys the weekend prior to his death. Dr.
Whitley’s son, Jack, stated that when he arrived at the Lively home he found his father
was upset and anxious. Dr. Whitley’s son stated that his father looked scared. Jack
testified that his father did not have any type of close relationship with the Defendant.
Instead, according to Jack, his father told him that he was glad to get away from the
33
Lively home because Dr. Whitley and the Defendant had “got into it,” and Dr. Whitley
was afraid that the Defendant was going to hit him.
The State also presented testimony was that Kathy Lively was one of only
a few people that knew that Dr. Whitley would be alone on Monday evening, the night of
the fire. Also, Ms. Lively knew that Dr. Whitley had no phone service in his home as the
phone company had not yet reestablished service.
The next morning, Mr. Butler testified that between 8:00 a.m. and 8:15
a.m., when he passed the victim’s house driving to work, he “glanced” at the home and
noticed that the front door was open and a person was inside the house.
Between 9:00 a.m. and 9:30 a.m., Ms. Lively called into work and asked if
anyone had checked on Dr. Whitley. Ms. Lively stated that she was not coming into work
because she was going to the doctor about a back problem. The Defendant also called
into the clinic that morning to see if Dr. Whitley was going to need his assistance that
day. Ms. Christian testified that it was the first time that the Defendant had ever called
the clinic asking about Dr. Whitley. Shirley Cline, the employee who took the call from
the Defendant, interrupted the conversation to report that Dr. Whitley’s house was on fire.
About the same time, Ms. Christian noticed that smoke was coming out of Dr. Whitley’s
house. The fire was reported to McDowell County 911 at 10:17 a.m.
34
After Dr. Whitley’s body was found, the Defendant and his mother’s
boyfriend, Mike Stafford, went to Dr. Whitley’s Coon Branch Mountain home to inform
the doctor’s wife, Sue Whitley, of his death. After the Defendant left the house, Mrs.
Whitley noticed that a computer and printer were missing. The sheriff’s department had
recovered the laptop computer from someone to whom the Defendant had sold it almost
immediately after Dr. Whitley’s death for either $150 or $250.
A couple of weeks after Dr. Whitley’s death, McDowell County Deputy
Sheriff Ronald Blevins learned from a confidential informant that Tommy Owens may
have been seen near the Whitley Clinic on the morning of the fire. The deputy questioned
Mr. Owens, who told the deputy that he had been with Brian Salyers the morning of the
fire. Mr. Salyers told police that he had picked up both Mr. Owens and the Defendant
around 7:00 a.m. or a little after on the morning of the fire. The two had asked Mr.
Salyers to give them a ride to Dr. Whitley’s clinic that morning. Before implicating the
Defendant during the interview, the deputy testified that Mr. Salyers acted afraid. At
trial, however, while admitting all other portions of his statement, Mr. Salyers recanted
the portion of his statement in which he gave the Defendant and Mr. Salyers a ride to Dr.
Whitley’s clinic.
Further, Jason Ritchie, an inmate in the regional jail, testified that the
Defendant told him that the Defendant and Mr. Owens went to Dr. Whitley’s home to
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steal money and drugs; but, instead, took a safe, computer, and a gun. According to Mr.
Ritchie, the Defendant told him that as they were leaving, Mr. Owens set Dr. Whitley’s
home on fire.
The Defendant offered evidence of an alibi, as well as testifying that he did
not commit the crimes with which he was charged. Further, defense counsel did a
thorough job of bringing to the jury’s attention every inconsistency and loophole in the
State’s evidence against the Defendant.
As the trial court pointed out in denying the Defendant’s motion for
acquittal, this case rested largely on credibility. The jury simply did not believe the
Defendant or his witnesses. “[A] jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could find
guilt beyond a reasonable doubt.”Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt
3, in part. A review of the record reveals that there is sufficient evidence supporting the
jury’s verdict in this case beyond a reasonable doubt.
D. Cumulative Error
Lastly, the Defendant argues that the cumulative impact of the errors below
resulted in an unfair trial requiring reversal under the “cumulative error doctrine” even if
this Court should find that none of the errors viewed separately and individually mandate
reversal. The State maintains that there is no basis for finding cumulative error in this
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case. The Court finds this assignment of error to be without merit. Cumulative error can
be found “[w]here the record of a criminal trial shows that the cumulative effect of
numerous errors committed during the trial prevented the defendant from receiving a fair
trial, his conviction should be set aside, even though any one of such errors standing
alone would be harmless error.” Syl. Pt. 5, State v. Smith, 156 W. Va. 385, 193 S.E.2d
550 (1972). Succinctly stated, the record before the Court is devoid of the presence of
error. After review, the Court has found no legal or factual basis supportive of any of the
alleged assignments of error. Having failed to find numerous errors, the Court concludes
that the cumulative error doctrine is not applicable.
IV. Conclusion
Based upon the foregoing, the decision of the Circuit Court of McDowell
County, West Virginia, is affirmed.
Affirmed.
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