*1
general
year
“good”13
provid
under the
definition
that the four
statute of
peri-
limitations
46-2-105(1).
§
Virginia
by
ed
Code
od
West
established
the UCC
sales con-
Docks,
applies
Co. v.
tracts
to this
See
See Consolidation Coal
Marion
case.
W.Va.Code
(W.D.Pa.2009)
Inc.,
46-2-725(1).
at *9
By determining
§
Because Shell “Seller(s)” as
ment Shell Sales
corporately charged duty with the sever supply agree the coal covered Buyer(s),
ment to the
as
the con
Petitioners
clearly
tract
fell within the
ambit of
under Uniform Commercial Code requirement predicate cause the of Vir West Supreme Court of Appeals 46-2-107(1), ginia § Code which controls Virginia. West goods realty whether severed are sub ject protections Com the Uniform March 2011. Submitted Code, seller, mercial than is that rather Decided June buyer, entity charged is the with the responsibility severing subject miner ease,
als. there is no doubt Shell
Sales, agreement a co-Seller under the corporation Equipment, Shell
sister
responsible at is for the mineral severance result, qualified As a contract as a
sue. goods meaning within the UCC.
sale 46-2-107(1). §
See W.Va.Code
Having agreement that the is a established UCC, goods
sale under we conclude singular plural supra 13. The inter- note 6. use of the See changeable within the UCC. See W.Va.Code 46-1-106(1) (2007). §
539
McHUGH, J.: appeal This is an David W. Kaufman degree from his conviction of first murder in County, Circuit Court of Wood West Virginia. Upon jury’s recommendation mercy, sentence of life without the trial Appellant by court so sentenced order en- March On appeal, Appellant tered argues improperly that the trial court admit- ted into evidence the and cer- others, tain statements the victim to both alleged of which recounted threats and acts by Appellant of violence towards the victim during the preceding weeks her death. Upon careful argu- consideration of the parties applicable ments of the and the legal *5 authority, and for the reasons discussed be- low, we Appellant’s reverse conviction and sentence and remand case for a new trial.
I. Factual Background and Procedural early morning In the hours of December 18, 2007, wife, Kaufman, Appellant’s Martha found dead in closet was of her bedroom gunshot result of a wound to the left .22 pistol side of her head. A caliber was found her left hand.1 The examin- medical time er determined that death was p.m. preceding betweеn noon and 4:00 trial, day. At Medical Examiner Dr. Zia testified manner of Sabet that the death was undetermined; words, in other Dr. Sabet was if the victim unable determine died as a result of a suicide. homicide or body Police found the victim’s after the children, couples’ Kristy Zachary, noti- they get fied them that unable to by telephone touch with their mother lo- her in family though cate home even her parked It undisputed car was there. depression the victim suffered from and anxi- ety rarely house. left the police family’s When arrived at the house early morning in the hours of December McGraw, Esq., Attorney Darrell V. Jr. 18th, Appellant there and invited was General, III, Benjamin Yancey, P. Assistant Appellant police inside. told officers that he Charleston, WV, General, Attorney Ap- for dropped victim at had off the Wal Mart at pellee. p.m., shop- 1:00 was to do some where she Cosenza, WV, George Kristy Parkersburg, nearby J. for at the ping then meet Toys R she worked. Appellant. Us store where Accord- right-handed. 1. The was and, p.m.5 not get approximately 12:30 a work at victim intended
ing Appellant, that, Appellant finished her the house Kristy she also left long after after ride home that he arrived Appellant police told mother’s bake cоokies.6 go shift. to his home to approximately p.m., 9:00 at the house left the when he Appellant maintains that Kristy to look her long after arrived sitting house, wife was still and was his alive mother.2 of her spent where much recliner she in the trial, slept. At where she time and often and eventu- police searched the home video McDonald’s a local body the closet of surveillance ally found the victim’s through drive- Appellant going body found-but After the was showed her bedroom.3 they mother, Appellant Gene- p.m. Appellant’s informed 12:59 before thru at Appellant fur- police questioned Kaufman, brought found it-the testified that va story. police Mart When ther about the Wal that he ar- lunch from McDonald’s and video him that Wal Mart surveillance advised Ap- after 1:00. at her house sometime rived whether his been able to record would have returned police he pellant told that when store, Appellant it safely made into the wife Kristy night p.m., was 9:00 home story had been fabricated. admitted that looking for her mother.7 there police time told It was at that trial, physical virtually there no At was cancer4; that wife told him she had that his his treatment; linking Appellant to the death of evidence going undergo she was not testing .Although gunshot residue con- on De- wife. planning to kill herself that she Appellant, positive gunshot According 17th. his on the victim was cember ducted prior occa- hand, on testing wife had threatened suicide her left conducted residue on thus, “skeptical” he about her sions body, clothing and various *6 Appellant stat- plan to end life. current her nega- taken home were other items the from she told him to tell the Wal Mart ed that Ap- Testing for on tive.8 blood identification anyone and also advised story to who asked clothing and other items the various pellant’s have an alibi. him he should be sure to that negative for the from home were taken Furthermore, neither presence of blood. by police, Appel- questioned further When fingerprints were Zachary Appellant’s that the house for nor victim’s lant stated left Zachary left for Kristy any plans her testified at that when he 2. was unaware mother 6. trial Rather, Toys Kristy approximately p.m., both of his meet her at R Us. had work at 12:30 did, mother, routinely parents but called her her were at home. as she message failed to return her or to answer mother subsequent telephone Because it was out calls. Contrary Appellant police, to what told his 7. ordinary for her not to be available that, neighbor approximately testified at 5:30 concerned, Kristy telephone, became contacted evening, Appellant past their walked home look her and returned to the home to for brother daughter young own towards his and that eventually and her contacted her. She brother him and he waved to waved back. police. Cook, According employee an 8. Michelle police Appellant he told that when learned Labora- West Police Forensic Kristy missing, from that her mother was he testing tory gunshot who conducted the residue bedrooms, including all the underneath searched recognized case and who at trial as in this was However, he that he did not the beds. stated analysis, expert gunshot in the field residue an look in the closets. Appellant’s gunshot resi- one of shirts tested particles consistent due was found to have some urged According Appellant, wife him his residue, gunshot particles are but which Appel- to tell their children that she had cancer. with, example, consistent automotive also police although he told several lant told batteries, spark plugs brake like car sources people, personally wheth- he never verified othеr pads. Appellant on cars. was known to work trial, had it. At the medical examin- er she both positively that, testified could not Ms. Cook that she physician and the testified er fact, particles determine that the found on did the victim not have cancer. gun. generated by firing The were of a shirt death, particles was one on which the were found both shirt 5. At the time of their mother’s chil- clothing by police and parents. Zachary of several articles of tested lived at home with their dren wearing Kristy, Appellant when approximately twenty years old and was not the shirt was was approximately twenty-four. police at his arrived home. gun presented or the ammunition The State found on either the evidence at trial that Appellant magazine and there was no evidence that and his wife had incurred consider- “wiped debt, Testing clean.” these items had been able financial caused which further on scrapings marriage. Approximately taken underneath the stress vic- sev- death, eral months before his fingernails Appel- revealed her own DNA. wife’s tim’s lant learned that his testing employer, was on the closet NOVA Chem- Luminol conducted icals, closing January would be body the victim’s was found in order 2008. The where evidencе revealed that were determine if blood or other trace evidence there two life policies payable up. place The insurance had been cleaned results of this to the surviving spouse upon death testing negative. of either Appellant argued or his wife. The State large part against A State’s case proceeds policies of these would have Appellant primarily dys- stemmed from the gone long way relieving towards the cou- marriage nature of functional between ples’ policies debt. One of the had been Appellant testimony and the victim. The through Appellant’s employer taken out sev- couples’ children trial revealed and, years previously according eral wife, though living his trial, theory State’s killed his house, estranged had same been for more January wife before NOVA’s 2008 closure in years. ten than children testified that proceeds order to collect the from that life parents separate lives and their lived never policy.10 insurance anywhere anything together. did or went was, Though couple’s relationship During Appellant began the summer of accounts, dysfunctional, Kristy all both and, an affair with another woman as he told Zachаry testified that never witnessed up divorce police, contemplating until the any physical by Appellant or verbal abuse his wife him had cancer. time told she during towards their mother course of early late October or November marriage. contrary, they their To the testi- attempted sitting in her suicide car that Appellant kept fied to himself when he running garage with the motor and the door was at home and that there never much children, Upon being by her closed. found among family.11 Zachary conversation *7 Appellant. told them tell she not to As acknowledged arguments that between his above, indicated the did not victim often always parents instigated by were almost his Physically, leave the house. the home was in mother. Both children testified about one disarray disrepair. and The victim suffered fight particular in which their mother and depression anxiety although from and and Kristy yelled Appellant at and cursed for an prescribed she was several medications to primarily hour girlfriend.12 about his illnesses, prescrip- these nine treat unfilled purse below, during tions were found in her As large discussed more detail a police investigation.9 upon part the State’s relied out-of- case although Appellant The 9. mеdical examiner testified that no alcohol 11. The children testified that drugs (including prescription home, her very quiet very medications was he was talkative anxiety) depression and were found in the jovial public. and when out in system at the time of her death. argument 12. This on occurred November argued Appellant that believed he during argument It was that pro- would not be entitled to life insurance Appellant victim forced to admit to the children plant’s reality, ceeds after the closure. In how- having Kristy that he was an affair. testified that ever, Appellant eligible to retire was when the Appellant yelling 'only had no thus, reaction plant closed and life insurance would his — Kristy Zachary silence.” Both testified and that have remained in effect. fight, family agreed at the end of that that The evidence at trial revealed that the victim Appellant's employer January, when they then, closed in paid premiums remaining had not on life separate go ways. would all Until policy prior their insurance for several months to her try promised that death. It their mother she would is unclear from record whether Appellant keep remaining was aware fact or whether of this to their time in the house policy upon paid “peaceful.” would have out the death of Appellant either or his wife. Krist[y] stay to her that the reason she wanted by the victim made court statements [Appellant] overnight because with me boyfriend, and daughter’s her and to children gotten an her had into altercation and written sixty page than upon a more had been admit- day. in the She earlier ostensibly pre- weeks during the the victim tedly giving time about his him a hard ceding her death. girlfriend. others statements to Victim’s hearsay objection, the Over getting more and And she said he was Kristy, testimony Zacha- from State elicited kept angry with she on about more her as boyfriend, Jimmy Schreck- Kristy’s ry, and upstairs went point, said at one he it. She engoest, regarding certain statements pushed gun and had returned with a and alleged threats and made to them of up against wall and told her to her towards her Appellant acts of violence would keep her mouth or he shut it shut her death. during preceding the weeks for her. Zachary Jimmy and all testified that Kristy, recounting incident to the same Zacha- December, them that early the victim told 16th, night day ry late at December gun. Ac- with a Appellant threatened her died, she mother “mentioned that before his Kristy, spoke she with her mother cording to gun point, [Appellant] had held a at one allegedly oc- evening incident the same through head and said ‘This can shoot her Kristy during a rou- testified that curred. Zachary that her de- pig skin.’ testified conversation, telephone tine it, seemed, part she “[f]or meanor first up know, when pretty okay. pretty sounded shaken she you mother] She was calm [her while, mean, being very quiet, you She was it. But I answered. about after self, starting her what it was affect her a normal I asked could tell little first, it, about nothing talking she said when she was to me so going on and bit nn (cid:127) [.]”(cid:127) said, ‘I don’t believe that. What’s the I And she told me that she needed matter?’ Zachary Jimmy testified also about keep her to a minimum like outbursts incident recounted to another the victim said, you do promised I ‘What she Appellant allegedly attempted in which them And she said after I’d left the mean?’ that Jimmy strangle her with a cord. testified evening, the Defendant house during previously-described conver- in and her with a had come threatened early he had with the victim in Decem- sation gun. ber, told him “had tried to she strangle object her with and she had an Kristy did not call testified that she him; get away him to kick then inci- police or confront about the *8 gotten away, things after she’d that went her not her mother told tо. dent because type normal[.]” to asked what back When evening, Kristy’s used, following Jimmy tele- “object” Appellant That same testified that mother, believe, cord, Jimmy used, with her phone call drove word she I was but “[t]he anything really specif- Kristy parent’s say her home so that she could didn’t to I don’t —she clothing Jimmy’s Jimmy that the stay further testified vic- gather some to over ic.” cry yell he sat outside did not or when she recounted house. in his car the tim While incident, just seemed waiting Kristy, her mother walked this rather irri- “[s]he house Jimmy. Jimmy anything, just than like it was speak to testified that tated more out to something had been in- that her. She although the two never before bothered wasn’t troduced, say, really, angry.” I upset she told him would investigation, po- concerning During cord on the course their dence the extension the gun Appellant's grounds any the to make an extension in that State was unable lice found cord alleged in and the Based on statements the victim her connection between the cord case. diary, strangling attempt to the evidence the cord was tested and was found have and because was highly prejudicial. Ap- DNA on of the cord. The trial court overruled the victim’s the center The objection pellant's the State was unable tо the source of the and admitted extension establish Appellant objected admission of evi- into evidence. DNA. to the cord Zachary that on the Thanks- also testified located in victim’s sock drawer and was death, Day preceding his mother’s she giving by Kristy given police. found and to It was had him that she wanted to cook told read evidence the investigating into one of Appel- Thanksgiving dinner for him but that Included in diary officers. the victim’s him would not her. She also showed lant let describing alleged statements she wrote around her neck and claimed several marks previously incidents discussed and testified Zachary strangle to her. Appellant tried by Kristy, Zachary Jimmy.15 to and Addi- “red, they but didn’t described marks as tionally, Appellant the victim wrote that was Indeed, just happened.” like look had angry about her attempt unsuccessful suicide testified that she did not indicate when he crystal “he that was clear that he was alleged strangulation actually had oc- disappointed ‘get that I right.’” did not it Zachary curred. further testified that his prior attempt, About her suicide the victim cried as showed him the marks mother she wrote that her neck.14 around [ajnyone who knows well me knows how I Although objected Appellant to the admis- feel suicide. about I’vе been one left foregoing statements the vic- sion pick up go to pieces behind & on16 I& Kristy, Zachary Jimmy tim to on hear- put my through would NEVER kids that. grounds, court it say the trial stated that just get I I trying think was to the mes pursuant admit to would them this Court’s sage my family across to that the whole Sutphin, State v. decision [Appellant] & girlfriend situation his S.E.2d 402 just ---- this all stuff is too much to diary Victim’s Xanax, popped So I put handle. a few down, engine car window started & Appellant’s hearsay objection, the Over just sleep. really down & I laid went to also introduced at trial diary. just did want to diary approximately sixty- die. I The was wanted/needed my pages stop family all of to entire length, with undated entries before three purportedly during apart. up the kids woke me written the victim falls When preceding diary attempted her death. The was the ear17 & realized I weeks what to During Zachary’s very with moth- thick & hard I conversation his skin skulls. Wow! wasn’t 16th, expecting er on December she told him that she that.” argued day. Zachary incident, Appellant had earlier that Concerning strangling alleged provide any that she did not details testified diary Appellant victim wrote in her told her argument that there was about but no indica- Thanksgiving to and not "fake sick” make dinner physical tion it was nature. refused, Zaсhary. myself I "When I found neck, my being with an extension cord around regard alleged involving 15. With incident pulled tightly thought going I that I to die so gun, diary the victim described her right Eventually, it off.” We note then. came Appel- had "crossed the line” when she told she that, according testimony, Jimmy’s to the victim going girlfriend’s go she to lant to his house strangle told him that when tried to girlfriend's talk to her and to the school of the her, get away; had to kick him "she then say everything to "tell him that I want son gotten things away, went after she’d back to According diary, Appellant mom.” his victim did not indicate normal[.]” upstairs went get away that she had to kick waving came started dark back down & him; rather, she that "[e]ventu- wrote me____ thing pistol colored know, The next I [ie, ally the cord] it came off.” *9 against up gun I'm the wall in with that my pinned by face. & He had me the neck 16. The victim’s first husband committed suicide if I ever or went near the said girlfriend called either gunshot a self-inflicted wound. I or her son—he’d use it on me. me, again punched to feel & he started faint testimony Kristy's regarding her mother's sui- grabbed my again. then neck He was scream- attempt differed victim’s account ing cide from the my you madman face like a 'do under- diary. Kristy that when her testified she you crying do I & stand? understand?’ was door, garage opened her mother’s car was yes go. the nodded & a minute he me after let lit, "cigarette running and she had it was Appel- a She further when wrote that she wished crying, upset was and I happy birthday, obvious she’d been she decided "[h]e lant he’d rather something trying gun. that she was to do power- about He it worried talk that damn said was Contrary enough pig.’ to 'kill When I what to herself.” to her mother’s ful a asked asleep taking go through journal meant he are used in her that she fell after that said these to my death allow his total going it 100% to would
do, made clear their reactions me twice this asked I need to freedom.....He need live. & want that I to me myself right kill and ‘do it ‘discussion’ to my kid’s no matter what. be around help to this .’ offered time He even my attempt to [Appellant’s] reaction me!!____ I that said I was so frustrated nothing compar me but it was painful to why you just get& it don’t kill me over my seeing to kids to the devastation ison I He said ‘don’t think haven’t with. caused, my just for own selfish that I’d that thought about it.’ He claims he’s family’s get my attention. I attempt to test, how to beat a lie-detector researched any thing so & foolish will NEVER do a a look like suicide how to make murder my that kids love again. It’s clear selfish cops fool around here and how to only goal in life is to my me & now & need qualified gо to none of them are because regardless put them ALWAYS first — up him. I told him against someone like them than my pain. I love more own computer and they would take his see that They ‘2my anything in world. are ‘researching.’ reply been His what he’d works MORE LATER” perfect of art.’ stupid & that was that he’s that there (Footnotes added) many computers could use he besides diary, According to victim’s she and own18____Well, going to his I’m NOT kill thing argued “the same old Appellant about going myself he wants that —he’s to —if telling me a that that he’s been lot-which is get to do it himself or someone else have more him dead—than alive.” I’m worth I will be on my to do it. If blood his die— “[t]onight that he said The victim also wrote says mine. He also that he hands —not ” * * * ** f* ‘youjust won’t die’ and get my gunpowder found out how to ‘you long dead a time should have been pulling trigger. me hands without close ago’.... going Nova is soon—and (Footnote added) $100,000.00. my life insurance there is foregoing, addition to worries me is that insurance is What diary also included countless entries about employed I only active while he is there. Many of thoughts. random events and just hope being paranoid I’m some- —but Appellant very portray entries a unfavora- my I think to me prefer times he’d death portray light, ble while others in a living. pretty He’s clear. made very By way example only, one. favorable The victim further recounted discussion respects that she loves and victim wrote began which about finances mother19; spent Appellant’s money due on their homeowner’s insur- girlfriend20; all ance that because quickly problems escalated to how on his ‘just Appellant, Kristy get would be solved if I would die.’ He never wants mar- 21; proud keep would him ried that she is to be her children’s believes the insurance Kristy assumption up, woke her I was under the that it had Xanax and children anee. months, paid for 6 I know he had that her alert when found been stated mother was she pay got paid $700.00 it ... but it never It her. appears being spent money’ that our 'bill is [referring girlfriend upon Marietta where re- Based in the victim’s dia- this statement (found receipt bought investigators where he her ry, sides] conducted search of the com- clothes) work, trips their and on mountains. puters from well home They’ve computer girlfriend. taken 2 so far .... that I know of. OH belonging as the to his No incriminating WELL.” evidence was found. really daughter, 19. The victim "I love Geneva. wrote: the victim wrote that 21.About mother-in-law, people complain nights Kristy ago their dad Most about "told me a few that her has nothing respect marriage 'singlе handedly I have & mine. but but love for made sure to- house, though, tally says question.’ hate the of our I She'd condition She that it is out *10 idea, cleaning knowing impossible a & have am on strike been for to commit to the all months.” I her that she does about him. told it is judge by unfair to other men her dad. She needs only capable got The victim "I a call Gina at love & often feels that I’m the one 20. wrote: regarding loving of her.” Nationwide our homeowners insur- mother22; hearings and that she on several avoided this ease.24 It based was birthday.23 his upon this nature entries of and their corrobo by ration the that the ruled trial court Additionally, the victim wrote inci about sixty-three page the diary entire trustw to be to the trial court be dents considered and, therefore, orthy25 admissible,26 pri daily things occurring in life” [her] “routine marily hearsay exception, under residual great lengths State went to which the 803(24),27 presented during with evidence Rule corroborate West of Evidence children, Concerning diary 22. her the victim wrote: Parle concluded was nontestimonial nature and its admission into evidence did not proud write I am I could volumes of how of rights violate the defendant’s un- They my constitutional them. both of are without a doubt der the Confrontation Clause. 387 great accomplishments stayed F.3d at 1037. in this life. I’ve diary pursuant exception marriage The was admitted years to an for 23 I've them. —for hearsay specific always they parents to the rule believed that if to California law. had both court, alia, raising they The the same Parle inter it under determined that was roof— them— security stability their would have & lives not unreasonable for the state court to have grow up upstanding diary to be adults. I trustworthy would found that the victim’s was right.....I kept want for a regularly was long, long to be around because she it and recorded in it -just to let them know how everyday experiences of her life. The fur- court time— they are & to world know wonderful let the diary "particularized ther found the to have a beings that these incredible human MY guarantee of trustworthiness.” 387 F.3d at CHILDREN. part story The of the when we sad is that happy funny reminisce about times & all portions diary 26. A few of the brief were redact- things happened years— have over the being ed before admitted It into evidence. any just their is not involved in it. I Dad of during explained argument oral before this Court good hope enough job being I’ve done a portions alleged- that the redacted involved other & their their mom dad that have more ly by Appellant criminal acts relevant happy than sad memoriеs ones. judice. case sub diary, In her the victim wrote that 803(24) provides: [Appellant’s] 27. W.Va. R. Evid. birthday hope Tomorrow is he —I anything do His first doesn’t birthday memorable. following are not hear- excluded got after Zach was a vasec- born—he rule, say though the even declarant is available statement, tomy! way What a to make a huh? aas witness: point a Zach was months old & he made scheduling birthday. vasectomy I his hope [sic] doesn’t have another (24) statement exceptions. spe- Other statement not —A birthday. make on tomorrow’s We’ll see I cifically any excep- foregoing covered case, guess. going Just in I’m to leave before having equivalent tions but circumstantial gets up he & not come back until he leaves for trustworthiness, guarantees of if the de- court Things certainly work. have come full circle. (A) termines that the statement as is offered buy gifts, special I him used to make dinners & fact; (B) evidence a material the statement No, birthday. feeling bake for his cakes I’m probative point is on the it more for which is birthday just to avoid him on for need his any pro- — other offered than evidence which the safety. myw own More later. efforts; ponent procure through can reasonable (C) general purposes of these rules example, diary, 24. For at various times justice will interests best be served by police pulled that she was wrote over of the admission into evidence. running stop sign; officer son for that her However, may a statement not be admitted trouble; having girlfriend NFL that her favorite exception proponent under this unless the of it team; defeated football team another sufficiently party makes known to adverse away. passed her mother-in-law's friend had hearing provide in advance trial or presented The State evidence to corroborate party opportunity the adverse a fair diary statements in an about these events it, prepare proponent’s meet intention diary that her effort to show entire was trustwor- it, particulars offer the statement and the thy. including name and address of the declar- ant. heavily 25. The trial court relied case on the Runnels, (9th Cir.2004), provides We W.Va. R. note that Evid. 803 Parle v. F.3d 1030 hearsay though exceptions "even is Appeals the declarant which the Ninth Circuit Court of deter- provides witness" mined certain entries available as a while Rule 804 from the victim’s exceptions properly admitted at the defendant’s first where the declarant " degrеe 'Unavailability reversing trial. unavailable a witness. as a murder the federal granting district order situations in which court's the defendant’s witness' includes the declar- ____(4) petition corpus, present testify for writ of habeas court in is unable to be or to ant — *11 548 below, not degree,” R. more detail we do “to a under W.Va. discussed
and lesser 803(3),28 exception agree Appellant’s Evid. with contention mental, physical testimonial; however, existing emotional or diary “then was we do find condition.” improperly the trial admitted the court and, sixty-three page diary into evidence degree convicted of first thereon, based we reverse convic- prison with- murder and sentenced life and and remand for a new trial. tion sentence parole. Appellant now possibility of out and appeals his sentence. conviction
II. Standard
Review
A.
It
settled
a trial court’s
is well
to the
Under the Sixth Amendment
evidence,
admissibility
“in
rulings on
14 of
United States Constitution
Section
affecting
rights,
cluding
constitutional
those
Constitution,
III
Article
of the West
an
discretion
are reviewed under
abuse of
right
con
guaranteed
an accused is
47,
Marple,
v.
197 W.Va.
standard.” State
front
cross-examine
the witnesses
47,
(1996).
51,
syllabus
51
In
475 S.E.2d
against
syllabus
him.
Court
As this
held
Shrewsbury, 213
point one of State v.
W.Va.
S.,
point one of
v. James Edward
State
774,
327, 329,
(2003),
S.E.2d
776
this
582
‘“ “Rulings
explained:
on the admissi
Court
The
Confrontation Clause contained
bility
largely
are
within a trial
of evidence
the Sixth
States
Amendment
the United
court’s sound discretion and should
be
provides:
Constitution
‘In all criminal
has
disturbed unless there
been an abuse of
prosecutions,
accused
... be con-
shall
Louk,
639,
v.
discretion.” State
171 W.Va.
against
fronted
him.’
witnesses
596,
(1983).’
[643,]
2,
Syl. Pt.
301 S.E.2d
599
applicable
This clause was made
317,
Peyatt,
v.
173 W.Va.
315 S.E.2d
State
through
states
the Fourteenth Amendment
(1983).”
4,
Syl. pt.
v. Ro
574
Accord
State
United States Constitution.
doussakis,
58, 61,
469,
204 W.Va.
511 S.E.2d
409,
408,
843,
400
844
184 W.Va.
S.E.2d
(1998) (“A
evidentiary rul
472
trial court’s
(1990),
grounds by,
on other
State
overruled
ings,
application
as well
its
the Rules of
as
366,
Mechling,
Evidence,
v.
219 W.Va.
549
366,
Mechling,
third
In State v.
219 W.Va.
case we discussed in Mechl
(2006),
explained
224,
Court
ing
Kennedy,
311
this
v.
633 S.E.2d
205 W.Va.
517
Supreme
(1999),
in the United States
Court
457
S.E.2d
overruled on other
56,
Roberts, 448 U.S.
of Ohio v.
100
case
grounds by,
Mechling,
State v.
219 W.Va.
(1980),
2531,
abrogated
For
the Confrontation
Mechling,
ine.’”
W.Va. at
found in
Clause
the Sixth Amendment to
Crawford,
(quoting
S.E.2d at 317
541 U.S. at
the United States
Constitution
Section
1354).
124 S.Ct.
“The Confrontation
14 of Article III of the West
Con-
procedure,
Clause is a rule of
not a rule of
stitution,
independent inquiry
no
into relia-
emerg-
evidence. ‘If there
one theme that
is
bility
required
when the evidence falls
Crawford,
that the
es
it is
Confronta-
firmly
hearsay exception.
within a
rooted
powerful
Clause
and funda-
tion
confers a
right
longer
mental
that is no
subsumed
194 W.Va.
gency
primary
and that the
of the
met,
diary
past
prove
was to establish or
ment has been
the Confrontation
Davis,
Supreme
apply
the United
ments
forth
States
Court
set
in Roberts continue to
with
acknowledged
regard
produce
"it could not
an 'exhaus-
nontestimonial statements. See United
Gibson,
325,
(6th
classification of all
States v.
409 F.3d
tive
conceivable statements'
338
Cir.
2005) ("Crawford
only
dealt
that were either testimonial
non-testimonial.”
testimonial
374,
Mechling,
statements and did not disturb the rule
219
633
that non-
W.Va. at
S.E.2d at 319.
constitutionally
are
Mechling ultimately
testimonial
Court in
statements
ad
This
crafted its own
in,
alia,
independent guarantees
missible if
trustworthiness.”);
sylla-
bear
"practical
rules”—as set forth
inter
Holmes,
nine,
United States v.
points eight
406
bus
above—from what it
337,
Cir.),
denied,
(5th
F.3d
348
cert.
guide-
546 U.S.
described as the Davis Court's "diffuse
871,
375,
(2005)
126 S.Ct.
Clause contained
we have
man-
As
United States Constitution
opinion though
we have
of evidence that does
recounted
dates the exclusion
—
reliability.
sampling
recounted
of the admitted
adequate
bear
indicia of
not
usually
lengthy diary has
Reliability
inferred where
narrative —the victim’s
can
be
firmly
many components. Several statements writ-
falls within a
rooted
the evidence
non-hearsay.
potentially
hearsay
ten in the
are
exception.
Additionally,
clear that there are several
it is
However, where such statements are
the vic-
statements that
threatened
consid
exception
offered under a
physical
towards
tim or committed
abuse
“firmly-rooted,”
be
then the state
ered to
her,
may
characterized
while other entries
be
presumptively
unreliable and must
ments
mind,
state of
emotion
as statements of her
showing of
“at least absent a
be excluded
Still,
physical
condition.
particularized guarantees
trustworthi
*15
memory
wrote other
of
or belief
statements
”
S.,
414,
Edward
ness.’
James
184 W.Va.
past
diary
of
about
events. The
also consists
(internal quotations omit
specifically Rule the Sixth involved approach advised, We find to be well v. Appeals Circuit Court of United States that, keeping additionally, mind the trial subsequently Canan concluded that the defi court must determine whether the evidence 801(a) nition of the term “statement” in Rule relevancy requirements satisfies the of W.Va. hearsay other exceptions. also extends to the 402,35 does, R. Evid. if it (6th Cir.1995). Canan, 48 F.3d whether, 403,36 may Rule under the evidence the court stated that danger be nevertheless excluded when single the term must mean ‘a ‘statement’ prejudice оutweighs probative unfair val its purposes of all declaration or remark’ Satterfield, ue. See State v. 193 W.Va. rules. This determination 440, 449 (1995). Syl. See also implicit the idea in Rule is consistent with Corp. Pt. TXO Production Alliance *16 801(a): overarching is an that there 457, 460, Corp. 187 Resources W.Va. applicable uniform of ‘statement’ definition (“ (1992) S.E.2d 402 and ‘Rules 801(a) hearsay all under of the rules. Rule Virginia of the West Rules Evidence indicates definition of statement that its judge [1985] direct the trial to admit relevant (Hearsay) Fed- covers Article VIII of the evidence, pro- but to exclude evidence whose Evidence, entirely.33 eral It Rules of substantially outweighed by bative value is would make little sense for the de- same danger prejudice.’ Syl. of unfair Pt. disparate meanings fined term have Co., Kroger Gable The 186 W.Va. throughout various of the subdivisions (1991).”) S.E.2d 701 hearsay rules. (Footnote added) Accordingly, Id. The court in Canan we that when rul hold found term ing upon thus that the “statement” means the admission of a narrative under single pur- (Hearsay) “a or Virginia declaration remark” for Article of the West VIII 804(b)(5) Evidence, poses of Rule of the Federal Rules Rules of a trial must break court (the hearsay excep- of Evidence residual the sepa down the narrative and detеrmine tion). upon admissibility ruling admissibility single When rate of each declaration rule, a narrative that or The trial also ana- under Canan remark.37 court must Virginia by Virginia, 33. This Court that West "[t]he has stated West the Constitution of the State of rules, patterned upon by by adopted by Rules of Evidence the Feder- these or other are rules Evidence, repeatedly Supreme Appeals. ... al Rules of recognized and we have Court of Evidence which is procedural that when codified rules not relevant is not admissible.” pat- Virginia or rules of evidence West "[although R. that 36. W.Va. Evid. 403 states rules, corresponding terned after the federal fed- relevant, may proba- if its evidence be excluded per- interpreting eral decisions those rules are substantially outweighed by is tive value ger dan- guides interpretation suasive in the of our rules.” issues, prejudice, of unfair confusion of (citations omitted). Sutphin, State v. W.Va. misleading jury, by or or considerations of 551, 563, (1995). S.E.2d time, delay, presenta- waste of undue or needless 34. W.Va. R. Evid. defines "relevant evi- tion of cumulative evidence.” having any tendency dence” as "evidence Thus, 37. trial court must if the of- a determine any make the existence of fact that is of conse- by the unavail- fered declaration or remark made quence to the of the more determination action is, and, hearsay is it whether it able declarant if probable probable or than it with- less would be hearsay exception firmly falls within a rooted or out the evidence.” guarantee particularized of trustworthi- has a Discussion, supra, provides 2 Franklin D. 35. W.Va. rele- ness. See Cleckley, "[a]ll R.Evid. 402 that admissible, Virginia except vant evidence provided by Handbook on Evidence West is as otherwise States, (2000). Lawyers §§ 8-3 and 8-7 the Constitution United a goest, her with or is threatened lyze whether the declaration remark and, a gun attempted strangle R. her with pursuant to Evid. 401 relevant ruled, so, explana- pursuant to W.Va. R. Evid. cord. The trial court without if admissible tion, However, probative if value of the the statements were admissible substantially or is out- v. Sut- declaration remark under this Court’s decision by unfair weighed danger prejudice, phin, 195 W.Va. may pursuant then it be excluded to W.Va. Sutphin The the admissi- issue involved recognize pro- we R. Evid. While bility by regard- testimony witness trial intensive, may be we it to be cess fact believe ing was told victim. More what he unfairly prejudicial ensuring critical to (her specifically, victim told the witness jury is from consideration evidence excluded fаther) to kill that the defendant threatened ensuring and to that a criminal defendant is appeal if him again. she ever left On
thus afforded a fair trial.
for the vic-
the defendant’s conviction
murder,
tim’s
identified
as hear-
we
the issue
trial court’s admission of
say
hearsay-that
is,
within
“a statement
sixty-three
page
was an abuse
repeats
made
a declarant that
or address-
Ap
requires
of discretion and
reversal of
es a
made
declarant.”
statement
another
pellant’s
The trial
conviction and sentence.
(citing
W.Va. 511 S.E.2d 472. See hereby ordered conviction of S., 223, Tiffany Interest Marie degree first murder in the Circuit Court of (1996) 234, 177, (stating S.E.2d reversed, County hereby Wood and this Court “will interfere with this a circuit ease is remanded for a trial new consistent ruling evidentiary only if court’s on matters opinion. with this an cir party] demonstrates abuse of the [a (citation cuit court’s substаntial discretion” Reversed and remanded. omitted)); Gentry Mangum, v. (1995) 512, 171, 518, Chief Justice WORKMAN concurs and (indicating reviewing spe gives that “a court right concurring reserves the to file a evidentiary of a rulings cial deference to the opinion. (footnote omitted)). circuit court” A trial WORKMAN, Justice, reasoning concurring: set Chief
court must therefore
forth its
that,
evidentiary rulings so
appeal,
for its
I
in the
opin-
concur
result reached in this
may
meaningful
Court
a
conduct
review
separately merely
emphasize
ion. I write
perform
thereof.
“This Court cannot
its
point
majority
articulated
in foot-
[ruling]
unless
circuit
function
court’s
opinion.
note
Specifically,
32 of
in hold-
legal
contains both the
bases for
factual
ing that a trial court must determine the
its ultimate conclusion.” Nestor v. Bruce
admissibility of each individual declaration or
L.P.,
Flooring,
Hardwood
206 W.Va.
remark,
majority
states
that footnote:
Fayette
525 S.E.2d
Cf.
W.Va.
court
“[A] trial
must determine if the offered
County
Lilly,
Nat. Bank
declaration or remark made
the unavail-
(1997)
(stating
and,
is,
hearsay
able declarant is
if it whether
provide
circuit
“the
court's order must
clear
firmly
it
falls within
rooted
excep-
parties
reviewing
notice to all
court
particularized guarantee
tion or has a
aрplied
granting
as to
rationale
*18
agree.
I
trustworthiness.”
denying summary judgment”).
In the ease
Phillips,
to
judice,
ruling
sub
the trial court’s
re
a dissent
State v.
194
with
W.Va.
admissibility
569,
(1995) (Workman, J.,
gard to the
of the victim’s state-
461
75
S.E.2d
dis-
Appellant
assign-
"[a]lthough
liberally
raises two other issues
that
as
rule
we
construe
First,
review,
determining
presented
ments of error:
that the trial court
briefs in
for
erred
issues
admitting
alleged
passing
into
issues ... mentioned
in
but are not
evidence
acts of violence
supported
pertinent authority,
pursuant
not con
towards
to
LaRock,
second,
appeal.”
404(b),
sidered on
294,
State v.
196 W.Va.
Appel-
R.
W.Va.
Evid.
613,
302,
(1996).
470 S.E.2d
621
Accord
weight
against
lant’s conviction was
the manifest
Adkins,
212,
5,
State v.
209 W.Va.
216 n.
Though generally
of the evidence.
raised
as-
as
914,
(2001);
Easton,
918 n.
v.
error,
State
signments
argue
fails to
631,
19,
465,
W.Va.
n.
510 S.E.2d
476 n. 19
adequately
appeal.
in
brief the issues
this
"In
595,
(1998);
16,
Lilly,
v.
W.Va.
605 n.
supporting authority,
absence of
we decline
101,
(1995) (noting
461 S.E.2d
111 n. 16
alleged
further to review [these]
error[s] because
“appellate
frequently
courts
refuse to address
[they]
adequately
have not been
briefed.” State
appellants
develop
...
issues that
fail
in their
Allen,
162,
144,
87,
v.
208 W.Va.
539 S.E.2d
brief.’’). See also Ohio Cellular RSALtd. Partner
State, Dept.
As we
v.
stated in
Health
ship
Virginia,
Pub.
West
v. Board
Works
N.,
759, 765,
Robert Morris
466 S.E.2d
"
424 n.
730 n. 11
(1995),
"argument,”
real
‘[a] skeletal
(1996) (refusing
apрeal
address issue
assertion,
ly nothing
pre
more than an
does not
briefed).
adequately
had not been
claim____Judges
pigs,
serve a
are not like
hunt
”
ing
(quoting
truffles buried in briefs.’
United
We note that because we reverse
Dunkel,
(7th
grounds,
F.2d
Cir.
States
other
conviction
sentence on
we
1991)). Furthermore,
any
this Court has
adhered
need not address these issues in
event.
majority
fail-
The
senting),
opinion
I
instant
authored
Justice
admonished
succinctly
correctly
determine,
matter, McHugh
clari-
preliminary
has
ing to
as
analytical
in
proper
approach
fied the
whether certain out-of-court statements
Thus,
merely
context.
I write
to remind the
hearsay
before
an unavailable witness
engage
court
in this all-
trial
on remand
determining
those statements were
whether
hearsay analysis.
important
step of the
first
hearsay
exception to the
admissible as an
which,
position
any,
I take no
as to
if
dissent,
explained
my
I
rule. As
in the instant case fall
statements
issue
hearsay un-
Phillips
were not
statements
hearsay
simply
I
category.
outside of the
801(c),
Rule of
der
Evidence
West
to emphasize
excep-
wish
the relevant
prove
into
they were not offered
evidence
only apply
tions to the
rule
when the
matter
Id. at
the truth
asserted.
are,
fact, hearsay.
statements at issue
Phillips,
majority
its
analyze the statements fell within whether
any hearsay exceptions found West
Virginia Rule I found error of Evidence 803. approach
with this dissented on that
ground, among others.