State Of West Va. v. Lively

226 W.Va. 81

697 S.E.2d 117

West Virginia.

STATE of West Virginia, Plaintiff Below, Appelleev.Charles J. LIVELY, Defendant Below, Appellant.

No. 34856.

Supreme Court of Appeals of

Submitted Jan. 27, 2010.

Decided June 16, 2010.

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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 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 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).

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).

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).

David Schles, Esq., Charleston, WV, for Appellant.

Sidney Bell, Esq., McDowell County Prosecuting Attorney, Welch, WV, for Appellee.

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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 body ³ that he suffered in a house fire 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...