State of WV v. Jenkins
Annotate this Case
September 1995 Term
___________
No. 22722
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
ELIZABETH LADYBIRD JENKINS,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Lewis County
Honorable Thomas H. Keadle, Judge
Criminal Action No. 92-F-104
REVERSED AND REMANDED
___________________________________________________
Submitted: September 26, 1995
Filed: December 11, 1995
Robert J. O'Brien
Buckhannon, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Dawn E. Warfield
Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE ALBRIGHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
SYLLABUS BY THE COURT
1. Preliminary questions of authentication and identification pursuant to W.
Va. R. Evid. 901 are treated as matters of conditional relevance, and, thus, are governed by
the procedure set forth in W. Va. R. Evid. 104(b). In an analysis under W. Va. R. Evid. 901
a trial judge must find that the party offering the evidence has made a prima facie showing
that there is sufficient evidence "to support a finding that the matter in question is what its
proponent claims." In other words, the trial judge is required only to find that a reasonable
juror could find in favor of authenticity or identification before the evidence is admitted.
The trier of fact determines whether the evidence is credible. Furthermore, a trial judge's
ruling on authenticity will not be disturbed on appeal unless there has been an abuse of
discretion. Lastly, a finding of authenticity does not guarantee that the evidence is
admissible because the evidence must also be admissible under any other rule of evidence
which is applicable.
2. "'"'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.'
State v. Louk, 171 W. Va. 639, 301 S.E.2d 596, 599 (1983)." Syllabus Point 2, State v.
Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983).' Syllabus point 7, State v. Miller, 175 W.
Va. 616, 336 S.E.2d 910 (1985)." Syl. pt. 10, Board of Education v. Zando, Martin &
Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990).
3. While 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 certain rights, such as the right to examine witnesses against
him or her, to offer testimony in support of his or her defense, and to be represented by
counsel, which are essential for a fair trial pursuant to the due process clause found in the
Fourteenth Amendment of the Constitution of the United States and article III, § 14 of the
West Virginia Constitution.
4. "Errors involving deprivation of constitutional rights will be regarded as
harmless only if there is no reasonable possibility that the violation contributed to the
conviction." Syl. pt. 20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
McHugh, Chief Justice:
The appellant, Elizabeth Ladybird Jenkins, appeals the October 14, 1994 order
of the Circuit Court of Lewis County which sentenced her to one to ten years in the West
Virginia Penitentiary after she was convicted by a jury of uttering a forged check in violation
of W. Va. Code, 61-4-5 [1961].See footnote 1 For reasons stated below, we reverse the appellant's
conviction and grant her a new trial.
I.
At trial a store clerk from the Giant Eagle, a grocery store in Weston, testified
that the appellant signed a check with the name Emerson Herrod and presented it to her for
the goods the appellant was purchasing in the grocery store. Subsequently, the check was
returned to the grocery store because it was a forged check. The store clerk identified the
appellant in the courtroom as being the person who presented the check signed with Emerson
Herrod's name. The store clerk stated that she remembered that the appellant had presented
the check because the appellant had a black eye on the day she was in the grocery store.
A police officer testified that the store clerk picked the appellant's photograph
out of a photographic line-up as being the person who uttered the forged check. The police
officer further testified that the driver's license number which the store clerk wrote down on
the check for identification purposes was not the appellant's nor Emerson Herrod's license
number. Additionally, the description on the driver's license did not match the store clerk's
description of the person who uttered the check. The police officer also stated that he had
the appellant make a writing sample; however, he could not recall whether the handwriting
on the uttered check matched the appellant's handwriting.See footnote 2
Emerson Herrod, who is the appellant's stepfather, testified that the signature
on the check was not his. Furthermore, he stated that the account upon which the check had
been drawn was closed.
Another witness, William Lee Adkins, testified that in the past he had signed
Emerson Herrod's name on Mr. Herrod's checks. Mr. Adkins' sister, Betty Adkins, whom
the store clerk identified in a photographic line-up as being with the appellant when she
uttered the check, testified that she and the appellant found Emerson Herrod's checkbook in
her brother William's room. Betty Adkins stated that she had confronted her brother about
whether he was forging checks. Additionally, Ms. Adkins admitted that she was on house
arrest for writing bad checks during the time the appellant allegedly presented the forged
check to the Giant Eagle grocery store.
The appellant testified that she had never been in the Giant Eagle grocery store
in Weston. Therefore, she maintains she could not have uttered the forged check in question.
II.
The issue before us is whether the trial judge erred by refusing to allow the jury
to examine a handwriting sample prepared by the appellant in court for comparison with the
check which the appellant was accused of signing.
This issue arose when the appellant was testifying. Her attorney handed her
a sheet of paper and asked her to write the name "Emerson Herrod" several times along with
the following sentence: "In the tree is a giant eagle with six feathers." The appellant's
counsel moved to have this sheet of paper admitted into evidence. The trial judge refused
stating that the members of the jury were not handwriting experts. Additionally, the trial
judge stated that he questioned the competency and relevancy of the writing sample because
individuals "who are involved in forgery . . . usually try to disguise their signatures."
The State argues that there is no need to determine the admissibility of the
handwriting sample because whether or not the appellant signed the check is not an element
of the crime of uttering. The State relies on syllabus point 1 of State v. Nichols, 177 W. Va.
483, 354 S.E.2d 415 (1987) in which this Court held:
To sustain a conviction under W. Va. Code, 61-4-5
[1961] [which makes uttering a crime], the prosecution must
prove four elements: (1) the writing uttered was forged; (2)
the accused uttered or attempted to employ as true the forged
writing; (3) the accused knew the writing to be forged; and (4)
the writing itself was of such a nature as to prejudice the legal
rights of another.
We agree with the State's contention that whether or not the appellant signed the check is not
an element of the crime of uttering.
However, the appellant argues that she is not offering the writing sample to
prove that the check was not uttered. Instead, the appellant maintains that she is offering the
writing sample to prove that the store clerk wrongfully identified her as being the person who
uttered the forged check. The store clerk testified that the appellant signed the check in her
presence and handed it to her to pay for the goods. The appellant maintains that she was
never in the Giant Eagle. Therefore, the appellant concludes that the writing sample is
necessary to support her only defense.
We find the appellant's contention to be persuasive. Thus, did the trial judge
err when he excluded the handwriting sample? We conclude that the trial judge violated the
appellant's due process rights under the Fourteenth Amendment of the Constitution of the
United States and her right to a fair trial pursuant to article III, § 14 of the Constitution of
West Virginia by excluding the appellant's handwriting sample. Although we decide the case
on a constitutional basis, we deem it appropriate to address the authentication requirement
set forth in W. Va. R. Evid. 901.
A.
W. Va. R. Evid. 901(a) states: " Requirement of Authentication or
Identification. (a) General Provision.--The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims."See footnote 3 (footnote added).
We are mindful that the authentication requirement existed prior to the
adoption of the West Virginia Rules of Evidence,See footnote 4 and "stems from a healthy common law
skepticism that courts should not blindly assume that an offered piece of evidence is what
it appears to be or what the proponent claims it is." 2 Franklin D. Cleckley, Handbook on
Evidence for West Virginia Lawyers § 9-1(A) at 300 (3d ed. 1994). Indeed, "[t]he rules
relating to authentication and identification speak to three related concerns: preventing fraud
upon the court; preventing innocent mistakes; and guarding against 'jury credulity,' the
natural tendency to take matters at face value." Id. See also 5 Jack B. Weinstein et al.,
Weinstein's Evidence ¶ 901(a)[02] at 901-26 (1995).
The requirement of authentication is a special aspect of relevancy: "'an
inherent logical necessity' 7 Wigmore § 2129, p. 564." 28 U.S.C. Fed. R. Evid. 901 (Notes
of Advisory Committee on Proposed Rules). "This requirement of showing authenticity or
identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b)." Id. See also 2 Cleckley, supra
at p. 301. W. Va. R. Evid. 104(b) states: "Relevancy conditioned on Fact.--When the
relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall
admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition."
"The condition of fact which must be fulfilled by every offer of real proof is
whether the evidence is what its proponent claims." 5 Weinstein, supra at ¶ 901(a)[01] at
901-15 (footnote omitted). For example, in the case before us, the condition of fact which
must be proven is that the handwriting sample was prepared by the appellant.
This does not mean, however, that a showing of authenticity requires a
"showing of the truth of the assertions contained in a writing or recording. (E.g., a letter may
be authenticated as having been written by a certain party, but its assertions may be flagrant
and intentional falsehood.)" 2 Cleckley, supra at § 9-1(A) at 301. As one commentator has
artfully explained: "Rule 901(a) is intended to simplify and liberalize the authentication
process. Thus, once the party offering the evidence makes a prima facie case, the question
of authenticity is for the fact finder[.]" 2 Cleckley, supra at 302. See also United States v.
Logan, 949 F.2d 1370, 1377 (5th Cir. 1991), cert. denied, 504 U.S. 925 (1992) and Siegal
v. American Honda Motor Co., Inc., 921 F.2d 15, 16 n. 2 (1st Cir. 1990) (A proponent "must
make a prima facie showing of authenticity sufficient to enable 'a reasonable juror [to] find
in favor of authenticity.'" (citation omitted)). W. Va. R. Evid. 901 simply requires a trial
judge to find that a reasonable juror could find that the evidence is what its proponent claims. 5 Weinstein, supra at ¶ 901(a)[01] at 901-19. Once the trial judge makes this determination,
the rest is up to the trier of fact.
This analysis does not ignore the purpose behind the authentication
requirement, rather the analysis recognizes the function of the trier of fact:
This rule does not ignore or repudiate the policy justifications
for the authentication requirement. It simply recognizes that
where the question is one of probative force or credibility -- as
it necessarily always is with questions of authenticity and
identity -- the jury is as competent as the court. The jury is
constituted expressly for the purpose of applying common sense
and community mores to disputed issues of fact where the
principal question is almost always one of credibility.
5 Weinstein, supra at ¶ 901(a)[02] at 901-27. Accord 2 Cleckley, supra at § 9-1(A) at 301.
See also United States v. Clifford, 704 F.2d 86, 90 (3d Cir. 1983). Additionally, we point
out that this Court will not disturb a trial judge's ruling on authenticity unless there has been
an abuse of discretion. 2 Cleckley, supra at § 9-1(A) at 303; Logan, supra; United States
v. Price, 788 F.2d 234, 237 (4th Cir. 1986), cert. granted and vacated on other grounds by
McMahan v. United States, 483 U.S. 1015 (1987).
A trial judge's finding of authenticity does not guarantee admissibility. The
trial judge also must evaluate whether the evidence is admissible pursuant to the rules of
evidence governing relevancy, hearsay, privileges, or any other applicable rules of evidence.
2 Cleckley, supra at § 9-1(A) at 303. Cf. 5 Weinstein, supra at ¶ 901(a)[01] at 901-23.
Accordingly, we hold that preliminary questions of authentication and
identification pursuant to W. Va. R. Evid. 901 are treated as matters of conditional relevance, and, thus, are governed by the procedure set forth in W. Va. R. Evid. 104(b). In an analysis
under W. Va. R. Evid. 901 a trial judge must find that the party offering the evidence has
made a prima facie showing that there is sufficient evidence "to support a finding that the
matter in question is what its proponent claims." In other words, the trial judge is required
only to find that a reasonable juror could find in favor of authenticity or identification before
the evidence is admitted. The trier of fact determines whether the evidence is credible.
Furthermore, a trial judge's ruling on authenticity will not be disturbed on appeal unless there
has been an abuse of discretion. Lastly, a finding of authenticity does not guarantee that the
evidence is admissible because the evidence must also be admissible under any other rule of
evidence which is applicable.See footnote 5
In the case before us, the trial judge and parties have misapplied W. Va. R.
Evid. 901. The trial judge refused to admit the appellant's handwriting sample because the
members of the jury were not handwriting experts. However, W. Va. R. Evid. 901(b)(3)
explicitly provides that a trier of fact may make comparisons between handwriting samples
for the purpose of authentication:
(b) Illustration. -- By way of illustration only, and not by
way of limitation, the following are examples of authentication
or identification conforming with the requirements of this rule:
. . . .
(3) Comparison by Trier or Expert Witness. --
Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
Clearly, the trial judge abused his discretion by ruling that the jury could not compare the
appellant's handwriting sample with the forged signature on the bad check.
Furthermore, as we previously stated, the trial judge also found that the
appellant's handwriting sample should be excluded because individuals "who are involved
in forgery . . . usually try to disguise their signatures." In support of the trial judge's ruling, the State points out that courts have excluded writing samples which are prepared in court
or for the trial as being self-serving and unreliable. Specifically, the State cites to United
States v. Lam Muk Chiu, 522 F.2d 330 (2d Cir. 1975). In Lam Muk Chiu the defendant
prepared writing samples outside of court and sought to have the writing samples introduced
in order to prove that the letters introduced by the government were not written by him. The
district court excluded the handwriting samples on the ground that they were "self-serving
exemplars prepared specially for trial." Id. at 331. The United States Court of Appeals of
the Second Circuit agreed:
Unquestionably, a defendant has a strong motive to alter
his writing so as to render it dissimilar to an incriminating
document alleged by the prosecution to be in his hand.
Accordingly, any handwriting sample prepared for the specific
purpose of showing dissimilarity of handwriting is inherently
suspect and should not be admitted into evidence.
Id. at 332.
We decline to apply the above reasoning of the Second Circuit to the facts
before us. As we indicated above, W. Va. R. Evid. 901 simply requires that there be
sufficient evidence "to support a finding that the matter in question is what its proponent
claims." Whether or not the evidence is credible is for the trier of fact to determine. Cf.
United States v. Sumpter, 133 F.R.D. 580, 583 (D. Neb. 1990) (In a discussion on whether
the admission of "contrived" handwriting samples offends due process, the district court
stated: "Any argument that the handwriting sample is so contrived and abnormal as to make
identification speculative, inconclusive, or untrustworthy should be made to the jury and would go to the weight and credibility of the expert's testimony, not to its admissibility.")
In other words, if a reasonable juror could find in favor of authenticity, then a handwriting
sample prepared specially for trial is admissible pursuant to W. Va. R. Evid. 901. The
weight and credibility of the handwriting sample is more appropriately challenged through
cross-examination.
In the case before us, the appellant's handwriting sample is what she claims it
is: her attempt to prove to the jury that she could not have been in the Giant Eagle to utter
the forged check because she did not sign the forged check as the store clerk testified.
Moreover, the handwriting sample was clearly made by the appellant in court in front of the
jury. There is no dispute as to whose writing is on the handwriting sample. Whether the
appellant's handwriting sample is credible is a question not for the trial judge, but for the
jury. Thus, the trial judge abused his discretion by not finding the appellant's handwriting
sample to be admissible pursuant to W. Va. R. Evid. 901.
B.
We recognize that once the handwriting sample has been found to be authentic
pursuant to W. Va. R. Evid. 901, the appellant's handwriting sample must be admissible
pursuant to the other rules of evidence. However, as we will explain more fully below, a
trial judge cannot apply the rules of evidence in such a mechanistic manner so as to exclude evidence which is critical to the defense without violating the due process clause found in
U.S. Const. amend. XIV, § 1 or the right to a fair trial found in W. Va. Const. art. III, § 14.See footnote 6
Clearly, under W. Va. R. Evid. 401 and 402 the handwriting sample is relevant
to the appellant's defense that she was not in the Giant Eagle and therefore, could not have
signed the forged check.See footnote 7 The only other rule of evidence which could possibly exclude
appellant's handwriting sample would be W. Va. R. Evid. 403 which states: "Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence." Thus, the important question in the case before us is whether the trial judge could
properly exclude appellant's handwriting sample pursuant to W. Va. R. Evid. 403 when the
handwriting sample was critical to her defense.See footnote 8
As this Court has previously acknowledged, "a state may not impose arbitrary
limits on the admissibility of evidence which would hamper the fact-finding process, without
violating the [Constitution of the United States]." State v. Beck, 167 W. Va. 830, 840, 286 S.E.2d 234, 241 (1981). The leading case discussing the constitutional impact of excluding
critical evidence is Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297
(1973).
In Chambers the defendant, who denied killing a police officer, sought to
prove that a man named McDonald actually committed the crime. Though McDonald had
originally confessed to committing the crime, he later recanted his confession. In support
of his defense the defendant wished to cross-examine McDonald; however, he was prevented
from doing so by the state of Mississippi's voucher rule. The defendant then sought to
examine three witnesses who would testify that McDonald made statements to each of them
separately which strongly indicated that he committed the crime. However, the trial court
precluded the defendant from presenting testimony by the three witnesses on the grounds that
such testimony violated Mississippi's hearsay rule. Mississippi's rules of evidence recognized a statement against pecuniary interest as an exception to the hearsay rule, but did
not recognize a statement against penal interest as being an exception to the hearsay rule.See footnote 9
Id.
The Supreme Court of the United States concluded that the exclusion of the
three witnesses' testimony regarding statements by McDonald coupled with the State's
refusal to permit the defendant to cross-examine McDonald was reversible error:
The testimony rejected by the trial court here bore persuasive
assurances of trustworthiness and thus was well within the basic
rationale of the exception for declarations against interest. That
testimony also was critical to [the defendant's] defense. In these
circumstances, where constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not
be applied mechanistically to defeat the ends of justice.
We conclude that the exclusion of this critical evidence,
coupled with the State's refusal to permit [the defendant] to
cross-examine McDonald, denied him a trial in accord with
traditional and fundamental standards of due process.
Id. at 302, 93 S. Ct. at 1049, 35 L. Ed. 2d at 313. We note, however, that the Supreme Court
of the United States limited its ruling to the facts and circumstances of that case. Id.
The Supreme Court of the United States reached a similar result in a later case.
In Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979) the defendant,
after being convicted for murder, sought to introduce testimony from a witness during the
sentencing phase which indicated that although the defendant was with the co-defendant when the victim was abducted and raped, the co-defendant had said that the defendant was
not present when the co-defendant killed the victim. The trial court excluded the witness'
testimony as inadmissible hearsay. The Supreme Court of the United States reversed the trial
court's exclusion of the testimony holding that "[r]egardless of whether the proffered
testimony comes within Georgia's hearsay rule, under the facts of this case its exclusion
constituted a violation of the Due Process Clause of the Fourteenth Amendment." Id. at 97,
99 S. Ct. at 2151, 60 L. Ed. 2d at 741.
Likewise, in Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986), the Supreme Court of the United States found that "an evidentiary ruling . . .
deprived [the defendant] of his fundamental constitutional right to a fair opportunity to
present a defense." Id. at 687, 106 S. Ct. at 2145, 90 L. Ed. 2d at 643 (citation omitted). In
Crane the defendant moved to suppress his confession. The trial judge, upon finding the
defendant's confession to be voluntary, denied the defendant's motion. Thereafter, the
defendant sought to introduce testimony at trial regarding the physical and psychological
environment in which the confession was obtained. The trial judge excluded the testimony
after determining that the testimony pertained only to whether the confession was voluntary.
The Supreme Court of the United States pointed out the following when
reversing the trial judge's decision to exclude the evidence regarding the environment in
which the defendant made his confession:
Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, . . . or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, . . . the Constitution guarantees criminal defendants 'a meaningful
opportunity to present a complete defense.' . . . We break no
new ground in observing that an essential component of
procedural fairness is an opportunity to be heard . . . . That
opportunity would be an empty one if the State were permitted
to exclude competent, reliable evidence bearing on the
credibility of a confession when such evidence is central to the
defendant's claim of innocence.
Id. at 690, 476 S. Ct. at 2146-47, 90 L. Ed. 2d 645. (citations omitted).
The Supreme Court of the United States has made clear in the above series of
opinions that there are certain rights which are essential for a fair trial:
A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense -- a right to his
day in court -- are basic in our system of jurisprudence; and
these rights include, as a minimum, a right to examine the
witnesses against him, to offer testimony, and to be represented
by counsel.
In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507-8, 92 L. Ed. 682, 694 (1948) (footnote
omitted). We acknowledge that this Court accords trial judges wide latitude in their
evidentiary rulings: "'"'[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.' State v. Louk, 171 W. Va. 639, 301 S.E.2d 596, 599 (1983)." Syllabus Point 2,
State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983).' Syllabus point 7, State v. Miller,
175 W. Va. 616, 336 S.E.2d 910 (1985)." Syl. pt. 10, Board of Education v. Zando, Martin
& Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990). However, if a trial judge's
evidentiary ruling deprives a defendant of one of the above minimal constitutional rights such
as the right to examine witnesses against him or her, to offer testimony in support of his or her defense, and to be represented by counsel, then clearly the trial judge abuses his
discretion in making such a ruling.
Accordingly, we hold that while 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 certain rights, such as the right to
examine witnesses against him or her, to offer testimony in support of his or her defense, and
to be represented by counsel, which are essential for a fair trial pursuant to the due process
clause found in the Fourteenth Amendment of the Constitution of the United States and
article III, § 14 of the West Virginia Constitution.
In the case before us, we conclude that the trial judge abused his discretion
when excluding the appellant's handwriting sample. The exclusion, in effect, deprived the
appellant of making a meaningful defense. The appellant's only defense was that she had
never been in the Giant Eagle; therefore, she could not have uttered the check in question.
The handwriting sample was critical evidence which the appellant offered to support her
defense. Thus, W. Va. R. Evid. 403 should not be applied in such a mechanistic manner so
as to prevent the appellant from being heard. We recognize the State's concerns regarding
the credibility of the appellant's handwriting sample; however, the State would be able to
fully explore its concerns by cross-examination of the appellant.See footnote 10 The trial judge's exclusion of the handwriting samples in the case before us violates the due process clause found in the
Fourteenth Amendment of the Constitution of the United States and the right to a fair trial
found in article III, § 14 of the West Virginia Constitution.
C.
Lastly, we must determine whether the exclusion of appellant's handwriting
sample was harmless error. We recently explained the harmless error analysis in State v.
Kelley, 192 W. Va. 124, 451 S.E.2d 425 (1994). We acknowledged in Kelley that the
Supreme Court of the United States set forth the federal standard for a constitutional
harmless error analysis in Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171
(1963). The court in Fahy analyzed whether an error was harmless by asking "whether there is a reasonable possibility that the evidence complained of might have contributed to the
conviction." Id. at 86-7, 84 S. Ct. at 230, 11 L. Ed. 2d at 173.
In 1967 the Supreme Court of the United States reexamined Fahy in Chapman
v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In Chapman, the
Supreme Court of the United States noted that "its rule and not the state's rule is controlling
when constitutional errors are raised." Id. The court went on to add that "before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11. This Court adopted the above standard in syllabus point 20 of State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974): "Errors involving deprivation of
constitutional rights will be regarded as harmless only if there is no reasonable possibility
that the violation contributed to the conviction."
This Court applied the above principles in Kelley, supra. In Kelley a sheriff,
who served as a bailiff at the defendant's trial, also testified as a key witness for the
prosecution in that same trial. This Court held that
[a] defendant's constitutional rights to due process and trial by
a fair and impartial jury, pursuant to amendment VI and
amendment XIV, section 1 of the United States Constitution and
article III, sections 10 and 14 of the West Virginia Constitution
are violated when a sheriff, in a defendant's trial, serves as
bailiff and testifies as a key witness for the State in that trial.
Syl. pt. 3, Kelley, supra. Moreover, this Court concluded that there is a reasonable
possibility that the constitutional violation contributed to the conviction of the defendant;
thus, the error was not harmless. Kelley, 192 W. Va. at 130, 451 S.E.2d at 431.
Likewise, in the case before us, we cannot say that the error was harmless.
Clearly, there is a reasonable possibility that the exclusion of appellant's handwriting sample
contributed to her conviction.
III.
Based on the above, we reverse the appellant's conviction and remand this case
to the Circuit Court of Lewis County for a new trial.
Reversed and remanded.
Footnote: 1
W. Va. Code, 61-4-5 [1961] states, in relevant part:
If any person forge any writing . . . to the prejudice of
another's right, or utter or attempt to employ as true such
forged writing, knowing it to be forged, he shall be guilty of a
felony, and, upon conviction, shall be confined in the
penitentiary not less than one nor more than ten years, or, in
the discretion of the court, be confined in jail not more than
one year and be fined not exceeding five hundred dollars.Footnote: 2
The handwriting sample which the police officer had the appellant make
was not introduced into evidence at the trial.Footnote: 3
W. Va. R. Evid. 901 is identical to Fed. R. Evid. 901. Thus, we will
examine commentary and cases involving the federal counterpart to W. Va. R. Evid. 901
in order to resolve the issue before us. See State v. McGinnis, ___ W. Va. ___ , ___ n.
14, 455 S.E.2d 516, 527 n. 14 (1994) and Wilt v. Buracker, 191 W. Va. 39, 43, 443 S.E.2d 196, 200 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2137, 128 L. Ed. 2d 867
(1994).Footnote: 4
The W. Va. R. Evid. were adopted on December 18, 1984 to be effective
on February 1, 1985. W. Va. Code Court Rules, W. Va. R. Evid. at editor's note at 277
(1995).Footnote: 5
We acknowledge that the legislature has addressed the admission of a
handwriting analysis in W. Va. Code, 57-2-1 [1981]:
In any civil or criminal action or proceeding, any
writing proved to the satisfaction of the judge of a court of
record in an in-camera hearing to be in the handwriting of the
person who is alleged to have written it, whether or not made
in the ordinary course of business, may, if the court further
finds that its probative value outweighs its prejudicial effect,
be admitted into evidence for the purpose of making a
comparison with a disputed writing on the issue of whether or
not the disputed writing is genuine. The authenticity of each
writing shall be finally determined by the trier of fact.
However, we have made clear that "[t]he West Virginia Rules of Evidence remain the
paramount authority in determining the admissibility of evidence in circuit courts. These
rules constitute more than a mere refinement of common law evidentiary rules, they are a
comprehensive reformulation of them." Syl. pt. 7, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). See also Mayhorn v. Logan Medical Foundation, ___ W. Va. ___,
___, 454 S.E.2d 87, 94 (1994). Moreover, this Court has complete authority to determine
how the West Virginia Rules of Evidence shall be construed pursuant to its constitutional
rule-making authority. See W. Va. Const. art. VIII, § 3 (which states, in relevant part,
that the Supreme Court of Appeals of West Virginia "shall have power to promulgate
rules for all cases and proceedings, civil and criminal, for all of the courts of the State
relating to writs, warrants, process practice and procedure, which shall have the force and
effect of law."). See also Mayhorn, ___ W. Va. at ___, 454 S.E.2d at 94; Teter v. Old
Colony Co., 190 W. Va. 711, 724-26, 441 S.E.2d 728, 741-42 (1994) and syl. pt. 1,
Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988). Therefore, W. Va. Code,
57-2-1 [1981] does not affect our analysis of W. Va. R. Evid. 901.Footnote: 6
U. S. Const. amend. XIV, § 1 states, in relevant part, that no State shall
"deprive any person of life, liberty, or property, without due process of law[.]"
W. Va. Const. art. III, § 14 states:
Trials of crimes, and misdemeanors, unless herein
otherwise provided, shall be by a jury of twelve men, public,
without unreasonable delay, and in the county where the
alleged offence was committed, unless upon petition of the
accused, and for good cause shown, it is removed to some
other county. In all such trials, the accused shall be fully and
plainly informed of the character and cause of the accusation,
and be confronted with the witness against him, and shall
have the assistance of counsel, and a reasonable time to
prepare for his defence; and there shall be awarded to him
compulsory process for obtaining witnesses in his favor.Footnote: 7
W. Va. R. Evid. 401 states: "'Relevant evidence' means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence." W. Va. R. Evid. 402 states: "All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by the Constitution of the
State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of
Appeals. Evidence which is not relevant is not admissible."Footnote: 8
The trial judge, in the case before us, did not explicitly state which rule of
evidence he was relying upon when excluding appellant's handwriting sample. Footnote: 9
We note that W. Va. R. Evid. 804(b)(3) does recognize a statement against
penal interest as being an exception to the hearsay rule.Footnote: 10
The results may have been different had the appellant moved to admit her
handwriting samples without testifying. The United States Court of Appeals of the
Seventh Circuit acknowledged that Chambers, supra, and Green, supra, held "that states
must permit defendants to introduce reliable third-party confessions when direct evidence
is unavailable." Gacy v. Welborn, 994 F.2d 305, 316 (7th Cir. 1993), cert. denied, ___
U. S. ___, 114 S. Ct. 269, 126 L. Ed. 2d 220. However, the Seventh Circuit stated the
following when it declined to apply Chambers, supra, or Green, supra, in the case before
it:
No court has extended [Chambers and Green] to require a
state to admit defendants' own out of court words. A
defendant is available to himself as a witness. Nothing in the
Constitution gives an accused the privilege of proffering,
through hearsay, his self-serving statements while denying the
state access to the rest of the story that could be got at by
cross-examination.
Id. (emphasis provided). The case before us is distinguishable from Gacy in that the State could cross-examine the appellant.
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