State v. Baker

230 W.Va. 407

738 S.E.2d 909

STATE of West Virginia, Plaintiff Below, Respondent

v.Gary Richard BAKER, Defendant Below, Petitioner.

No. 11–0915.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 2013.

Decided Feb. 21, 2013.

Syllabus by the Court

1. “A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syllabus point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

2. “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.” Syllabus point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

4. “Events, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial.” Syllabus point 3, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).

5. Evidence of a defendant's parole status should be considered evidence of other crimes for purposes of analysis under Rule 404(b) of the West Virginia Rules of Evidence.

6. “Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.” Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

Jason D. Parmer, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner.

Patrick Morrissey, Attorney General, Scott E. Johnson, Senior Assistant Attorney General, for Respondent.

DAVIS, Justice:

Gary Richard Baker (hereinafter “Mr. Baker”) appeals from an order of the Circuit Court of Greenbrier County sentencing him to life imprisonment upon a conviction of robbery in the second degree,¹ and imprisonment for not less than five nor more than eighteen years upon a conviction for attempted robbery in the second degree.² Before this Court, Mr. Baker argues that it was reversible error for the trial court to admit evidence that he was previously convicted of crimes in 2000, and that he was on parole when the instant crimes occurred.³ After a careful review of the brief and the record submitted on appeal, and having listened to the arguments of the parties, we reverse and remand for a new trial.⁴

I.FACTUAL AND PROCEDURAL HISTORY

On March 15, 2009, at around 11:30 p.m., Whitney Smith (hereinafter “Ms. Smith”), an employee of a Subway restaurant in Fairlea, Greenbrier County, West Virginia, was closing the store when a man approached her with what appeared to be a handgun and forced her to reenter the store. The man was wearing a mask over his face and a red hooded sweatshirt. The man ordered Ms. Smith to open the restaurant safe. She could not comply because the safe had a time lock. Unable to obtain money from the safe, the man robbed Ms. Smith and fled the scene.⁵

The investigation of Mr. Baker as a suspect in the robbery began after he was observed by officer R. Honaker parked along a highway in Greenbrier County several hours after the robbery.⁶ Officer Honaker asked Mr. Baker if he was experiencing car trouble. Mr. Baker stated that he was not. Officer Honaker left Mr. Baker without incident. However, after subsequently learning of the robbery, Officer Honaker informed the robbery investigating officer, B. Hunt, that he, Officer Honaker, had seen a person fitting the description of the robbery suspect.⁷ Officer Honaker identified the person he saw on the highway as Mr. Baker. During Officer Hunt's investigation, it was learned that a car which resembled Mr. Baker's car was seen at the Subway restaurant shortly before the robbery. It was also learned that Mr. Baker had a pellet pistol in his car that fit the description of the weapon used in the robbery. Mr. Baker eventually was indicted for robbery of Ms. Smith and attempted robbery of the Subway restaurant.

Prior to the trial, Mr. Baker filed a motion to preclude the State from introducing evidence that he previously had been convicted of crimes in 2000 ⁸ and that he was on parole at the time the robbery occurred.⁹ The trial court granted the motion. Nevertheless, during the trial, the State moved the court to allow it to introduce the evidence, on the grounds that Mr. Baker had “opened the door” for the evidence during his cross-examination of a State's witness. The trial court agreed with the State and permitted the introduction of evidence of the prior convictions and parole.¹⁰ The jury eventually returned a verdict finding Mr. Baker guilty of both charges. Subsequent to a recidivist jury trial,¹¹ Mr. Baker filed this appeal.

II.STANDARD OF REVIEW

The dispositive issue presented in this appeal is whether the trial court properly allowed the State to introduce evidence of Mr. Baker's prior convictions and parole status. With regard to this Court's review of a trial court's ruling on the admissibility of evidence, we have held that “[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

Additionally, because the Court believes that the evidence Mr. Baker finds objectionable is best classified as evidence of other crimes, wrongs, or acts, we must review its admission pursuant to the standard of review for the admission of evidence under Rule 404(b) of the West Virginia Rules of Evidence. We previously have indicated:

The 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, 629–30 (1996) (footnote and citations omitted). With these standards to guide us, we now will proceed to the merits of this appeal.

III.DISCUSSION

Mr. Baker argues that he did not “open the door” to the admission of evidence of his prior convictions in 2000 and his parole status. The State agrees with Mr. Baker. In its brief, the State concedes that “neither the State nor the defendant opened the door, the door was opened by Mr. Smith (a State witness).” Although the State concedes that Mr. Baker did not open the door for the introduction of the evidence, the State contends that the evidence was admissible on alternative grounds. In support of this contention, the State relies upon the decisions of this Court which hold that we may “affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court[.]” Syl. pt. 3, in part, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965). See also Schmehl v. Helton, 222 W.Va. 98, 106 n. 7, 662 S.E.2d 697, 705 n. 7 (2008) (“[T]his Court may in any event affirm the circuit court on any proper basis, whether relied upon by the circuit court or not.”); Murphy v. Smallridge, 196 W.Va. 35, 36–37, 468 S.E.2d 167, 168–69 (1996) (“An appellate court is not limited to the legal grounds relied upon by the circuit court, but it may affirm or reverse a decision on any independently sufficient ground that has adequate support.”). We will address separately below whether the State is correct in conceding error and whether we should affirm the judgment based upon the State's alternative grounds for the admission of the evidence.

A. Mr. Baker Did Not Open the Door to Admit Previously Suppressed Evidence

As noted earlier, the State has conceded that Mr. Baker did not open the door for the admission of evidence of his prior convictions and parole status. As a general rule, “[t]his Court is not obligated to accept the State's confession of error in a criminal case. We will do...