SER Pamela Jean Games-Neely v. Hon. John C. Yoder, Judge, 787 S.E.2d 572

Background

Dennis E. Streets, a 32-year veteran deputy, was indicted for embezzling guns from the Berkeley County sheriff’s department and selling them to a gun dealer; first trial ended with acquittal on one count and mistrial on embezzlement.
Before retrial the State gave Rule 404(b) notice and the trial court admitted certified judgments and related records (six judgments, foreclosure, garnishment, etc.) to show motive—debts exceeding $38,000.
At retrial Streets testified and repeatedly explained the judgments and foreclosures by saying he “walked away” from homes because of neighborhood problems and other justifications.
During closing, the prosecutor argued those explanations gave insight into motive and character, suggesting if Streets felt justified walking away from debts he might feel justified stealing; defense did not object at trial.
A jury convicted Streets of embezzlement. He moved for a new trial alleging the prosecutor improperly attacked his character; the circuit court granted a new trial, finding plain error and that the comments were prejudicial.
The State petitioned this Court for a writ of prohibition to prevent enforcement of the new-trial order, arguing waiver, invited error, and harmlessness; the Supreme Court of Appeals granted the writ, vacated the new-trial order, and remanded for sentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Streets)	Held
Whether defense preserved objection to prosecutor’s closing remarks	Defense waived by failing to object during trial; continuing Rule 404(b) objection did not preserve closing-argument issue	Pretrial and trial objections to admission of the 404(b) evidence preserved the issue and a trial objection would have been futile or too late	Court: Defense waived trial objection; pretrial Rule 404(b) objection did not preserve objection to closing argument
Whether prosecutor’s closing argument improperly attacked character beyond permissible use of 404(b) evidence	Remarks were proper response to Streets’ testimony and focused on credibility and motive; Streets opened the door	Remarks improperly used prior bad acts/character to prove guilt and exceeded scope of 404(b) purpose	Court: Comments were overzealous but not erroneous given Streets’ testimony; Streets ‘‘opened the door’’ and prosecutor’s inferences were permissible
Whether plain error review justified granting a new trial despite waiver	N/A (State argues plain error should not apply because issue waived)	The prosecutor’s comments were so prejudicial that even a timely objection could not cure the taint; plain error warranted	Court: Circuit court erred to invoke plain error; doctrine applies sparingly and facts did not meet the four-part Miller test
Whether any error was harmless given the record	Any comment, if erroneous, was nonconstitutional and harmless because strong, independent evidence supported conviction	Comments were prejudicial and could have affected jury verdict; not harmless	Court: Any error was nonconstitutional and harmless—overwhelming competent evidence supported conviction; thus vacatur of conviction was improper

Key Cases Cited

State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992) (standards for State to seek writ of prohibition in criminal cases)
Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945) (failure to timely object to remarks waives the issue)
State v. Grubbs, 178 W. Va. 811, 364 S.E.2d 824 (1987) (plain-error doctrine to be used sparingly)
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (four-part test to trigger plain error)
State v. Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971) (party cannot complain about evidence it elicited)
State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995) (four-factor test for prosecutorial-comment prejudice)
State v. Adkins, 209 W. Va. 212, 544 S.E.2d 914 (2001) (need for timely objection to improper remarks)
State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (scope of proper closing argument and harmless-error framework)
State v. Hatala, 176 W. Va. 435, 345 S.E.2d 310 (1986) (plain error reserved for miscarriages of justice)
State v. DeGraw, 196 W. Va. 261, 470 S.E.2d 215 (1996) (Rule 103 objection specificity and preservation)