*1 McCrossin, every activity responsibility that West and Syl. Inc. v. pt. G.M. See Moreover, majority’s Regents, 177 355 state undertakes. Virginia W.Va. Bd. of to (1987) ruling completely fails understand the of (“Application to court S.E.2d taxpayers if BRIM not maintain costs to does remedy to a available claims the exclusive liability coverage every activity entity, insurance chargeable sophisticated commercial responsibility im- state undertakes. knowledge sovereign of the rule chooses, nevertheless, con- munity, to which foregoing, In view the dissent. agency.”). tract with a state recently Leg- that “[t]he This noted Court has the Court of Claims
islature established Legislature’s delegated it the law and to investigate against
power claims to certain may prosecuted in the not be
the State sovereign im- of the courts because State’s S.E.2d 645 McLaughlin munity.” ex v. West rel. Virginia, Plaintiff STATE West Claims, Court of below, Appellee, (2001) curiam) (per S.E.2d omitted). (footnotes rel. also State ex C See Gainer, Equip. D & Co. TAYLOR, Defendant Edwin Mack (1970) (“Any monetary S.E.2d Appellant. below, agency which is against claims the state jurisdiction immune from suit within the No. 31405. Claims.”).4 The the Court of Court Appeals Supreme Court ap- authorized to consider and Claims “is Virginia. West against prove claims the State otherwise State, regular cognizable in courts of 14, 2004. Submitted: Jan. Legisla- to and to an award recommend Feb. 2004. Filed: Elevator, Pittsburgh at 754 ture.” Albright Dissenting Opinion of at 686 7.5 Justice n. n. 24, 20034. March decision, majority’s litigant if a Under the any entity, Davis, against joined has a state and Dissenting Opinion claim of Justice liability coverage Maynard there no insurance Feb. Chief Justice filed claim, litigant not have to file an does 2004. majority action in the Court Claims. The liability
opinion that lack has determined coverage litigating is not a bar
insurance agency against a in circuit
an action state
court, duty to statutory BRIM has a because coverage.
provide such majority’s ruling completely fails taxpayers if has
recognize costs BRIM liability coverage for insurance maintain part any § State or W. counterclaim on the Va.Code 14-2-13 Pursuant agency. jurisdiction (Repl.Vol.2003) the of the Court of state status, both, legal equitable or or 3.The to: Claims extends any claim the head of a referred to demands, liquidated and un- 1. Claims agency advisory state for an determination. delicto, against liquidated, and ex ex contractu 14-2-14(5) Legisla- § agencies, W. 5. Under Va.Code or of its which sovereign has from the of Claims the should ture withheld Court State as a commonwealth "any pay. respect good discharge power to claim ... equity [w]ith consider conscience demands, may liquidated proceeding which a be maintained and un- Claims delicto, State, by against the of the claimant liquidated, ex behalf ex contractu and may in the courts of the State.” in the nature of setoff be asserted *2 J.,
Albright, separate concurred and filed a
opinion. J.,
Davis, separate opin- dissented and filed Maynard, C.J., joined.
ion in which court violated R. Evid.
circuit W. Va. by allowing evidence whose effect substantially outweighed value. Thus, conviction and we reverse *3 for trial. remand this ease a new I. AND
FACTUAL PROCEDURAL HISTORY Taylor breaking for Mi*. was indicted entering by a building and owned Grant Mulch, County committing Inc. for grand larceny power of a tools number In this same he stored therein. indictment breaking was also indicted enter- Farms, ing building a Inc. owned Schell grand larceny as of a as for the number well power tools stored These therein. in December of 2000. occurred 5, 2001, On December the State filed 404(b)3 of intent notice (hereinafter notice”). 404(b) “the 404(b) notice, explained that the State Defendant was a user of various con- substances, particularly trolled metham- phetamine, during the time frame that en- Moorefield, See, H. Amanda Counsel compassed the commission of these crimes. Appellant. purchased controlled sub- The Defendant DiBenedetto, County paid Dennis V. Grant stances Jamie Sites often W. Prosecuting Attorney, Petersburg, by selling Counsel to Mi'. for same Sites stolen Appellee. using property acquired or which he cash selling property to others. stolen
PER CURIAM. 404(b) provided notice further “[sjeveral (hereinafter Tay- Taylor Edwin Mack “Mr. of the witnesses State’s were lor”) appeals his convictions for counts of of the habit and two aware Defendant’s breaking entering, grand one count of also aware that were the Defendant’s habit larceny, petit property for larceny1 stealing purpose funding and one count of in the County.2 his habit.” Circuit Court of Mineral After The notice finished that “[tjhis briefs, record, having read the reviewed would in- be used show tent, motive, argument, complete oral story.” and heard find scheme Although charged grand larceny prove person Count character of a order to indictment, point pro- conformity II of ceedings at some in the that he or she show acted there- petit however, below this Count reduced may, It admissible for with. other larceny jury petit and the instructed on motive, proof opportunity, purposes, as larceny under Count II. intent, knowledge, preparation, plan, identity, accident, provided absence of or mistake or originally brought this in Grant 2. The case accused, upon request by prosecu- County. granted Taylor's judge The trial Mr. provide in a criminal tion case shall reasonable change County. motion for a of venue Mineral trial, during in advance of trial if notice pretrial good court excuses shown, notice cause 404(b) provides: W. Va. R. Evid. general nature of such evi- Crimes, Wrongs, Other or Acts. Evidence dence it intends to introduce at trial. crimes, wrongs, acts is other not admissible February preponderance the circuit On ... hearing problem conducted on the State’s intent to the Defendant did have a with the substances, hearing, Wesley especially evidence. At the use of controlled before, Rohrbaugh Taylor methamphetamine during testified that Mr. was his and after Taylor roommate and that Mr. had admitted the time frame of the crimes with which he meth, crank, using “[e]rystal charged. such as drug prob- The Defendant’s marijuana.” maybe, Rohrbaugh Mr. also of stealing lem and his habits to fund said personal that his observations of Mr. charges testified habit are to the suffering indicated he was from a Case under Evidence. change Rorhrbaugh Upon behavior that balancing be- the evidence the Court *4 Taylor’s problem probative illustrated Mr. lieved with would find that the does value drugs.4 testimony drug This outweigh prejudicial use was con- its effect. Said evi- Fortner, by Greg and in trial by firmed whose will dence be useable in its State camera testimony was that he in purposes consumed case chief for the limited methamphetamine motive, intent, with establishing other Mr. plan scheme or Taylor. testimony The complete story. State also elicited H. Pennington from Cowan that he knew Mr. trial, Taylor’s At objec- over Mr. renewed marijuana Taylor and that he smoked tions, 404(b) hearing the witnesses from the Taylor Taylor Mr. Mr. observed “cou- conformity in testified substantial with their white, ple up with a ... times” “crushed 404(b) hearing testimony. powdery Taylor substance” that Mr. “stuck foil, piece ... aon of aluminum and ... II. foil, burnt the bottom of the aluminum [and] pen.” sucked the smoke with the Al- STANDARD OF REVIEW sure, though he not testified he was Mr. In appeal, this we are asked Pennington Tay- stated that he believed Mr. trial properly examine whether the court ad drug lor him that he smoking told was Taylor’s mitted history evidence of Mr. “crystal Pennington was meth.” Mr. also 404(b). drug applying use under Rule Taylor that testified Mr. sell a tried water 404(b), Rule we have held: pump that was to one that identical Mr. Where an is offer of evidence made un- Pennington’s reported missing uncle and that 404(b) Virginia der Rule of the West Rules Taylor sought unsuccessfully Mr. Mr. Pen- Evidence, court, pursuant trial help nington’s stealing a snowblower and 104(a) Virginia Rule the West Rules for a Mr. Pennington lawnmower friend. Evidence, admissibility. is to its determine finally during period, testified that this Mr. evidence, admitting Before trial trial, Taylor job. did not At have a Mr. in camera hearing court should conduct Pennington’s testimony generally was consis- Dolin, as stated with his in camera testimony. tent (1986). hearing S.E.2d 208 After presented final witness the State was counsel, arguments evidence testified, the Sites who both at Jamie W. trial prepon- court must satisfied be camera hearing and trial that he was a meth- derance of the evidence that acts amphetamine he would dealer and that trade conduct that occurred and the defendant Taylor methamphetamine in exchange to Mr. If committed the acts. the trial court does money property, directly either preponderance not find of the evi- Fortner, through Greg including property dence the acts or conduct was commit- County that had been taken from Grant actor, ted or that was the defendant Poultry. Mulch and Schell the evidence should be excluded under 404(b). presentation testimony, this showing Rule If a sufficient has After made, circuit court been court found that the trial must de- then trial, Rohrbaugh Rohrbaugh testify Mr. had 4. At testified he use nor did Mr. as to Taylor. Taylor use with Mr. Mr. opinion discussed Rohr- problem. his had a that Mr. testify baugh did not as to Mr. admission tially probative outweighed its value. relevancy of the un- evidence
termine the
correct-
Virginia
responds that the circuit court
402 of the
Rules 401 and
West
der
ly
Taylor’s drug
found that Mr.
and conduct the balanc-
Rules of Evidence
motive,
legitimately
to show his
offered
ing required
of the West
under
scheme,
plan or intent and that
of Evidence.
If the
404(b)
Taylor.
unfairly prejudice
did
Mr.
We
satisfied
the Rule
then
admissible,
find
the State’s
it should instruct
improperly
purpose
admitted because
jury
for which
on the limited
substantially
probative
outweighed its
effect
A limit-
has been admitted.
value under Rule
given
ing
be
at the time
instruction should
offered, and
we recommend
introduction
contends that the
court’s
repeated
it
the trial
unfairly prejudiced
his habitual
jury
conclu-
general charge to the
at the
him
R. Evid. 403. Under
under W. Va.
sion of the evidence.
“may
if its
be excluded
McGinnis,
outweighed
substantially
Syl. pt.
value
State v.
”
danger
prejudice ....
of unfair
similarly dealing” Appel- “drug gave rise likelihood to increased the introduction idence likely to a breaking to and lant at trial would be lead would convicted of that he Appellant based, to convict of the evidence entering larceny part, misuse and in on the dealing,” rather than for the “drug dealing,” in engaged “drug had fact that he breaking entering and and charges at and crimes for which he both before after the issue— show whether larceny. Nor does the record trial, on on and also based his character- limiting whether its court considered the trial spite In valid as a “bad actor.” of the ization twice) (given would in fact be instructions advisory recognized by the federal concerns 404(b) to the Rule evidence effective cleanse issue, very Appellant’s on this committee Critically, prejudicial effect. undue likely improper from “an conviction resulted that the had demonstrates State record that was in nature after basis” “emotional” conviction, likely to to substantial case lead 404(b) jurors Rule evidence. heard the “drug” introduction of evidence. without the advisory committee’s note. Fed.R.Evid. It below that the is clear the record my lasting judgment, value of gave no consideration the hear- judi- practicing both the bar and the case to ing, weeks which was held several before ciary, opportunity encourage to is the trial, needed this to whether the State 404(b) to seek introduction of Rule 404(b) to its case. further make Of evidence in articu- evidence eases where it can those of the note fact that some evidence— is the grounds for its and demonstrate clear late introduce, to which the State intended evidence; encourage for such to de- need introduce, plan did to show in fact object in- vigorously to to the fense counsel dealing goods to in stolen scheme —related of such with well-articu- troduction evidence place which took months before the offenses grounds; encourage to trial courts lated in included the indictment. engage required balancing to in the test suggest to not mean do of all factors proper consideration relevant prior subsequent drug dealing is never bearing on the introduction of such evidence. especially appropriate, where detailed, Only through such a deliberate might be crucial the State’s be shown pur- process can true well-documented However, case. much like the evidence achieved, pose which is rule be intro- satanic ritual involvement type ensure the introduction of this Wyatt, duced will be instances limited those Appellant’s clearly which its use under the warranted dealing” palpable capacity had a “drug given con- facts of a after due and full ease jurors, who inflame the collective emotions given potential has to its sideration been concerned, likely were to be understand- sway jury’s improperly decision. ably so, illegal about the and use of sale Al- drugs in and around their communities. DAVIS, J., joined dissenting, by Chief though this Court found the issue MAYNARD. Justice bearing had no participation ritual satanic ‘judicial’ makes and not “What a decision Wyatt, issues discipline: power is its an exercise raw “drug Appellant’s involvement decision-making at- principled after careful relevancy to is- dealing” did bear some *9 persuasive argu- precedent to and tention at bar. being sues tried the case Critical application fully-developed and close to ment issue, understanding of this proper to a how- Moore, 204, 772 237 Davis v. A.2d facts.” ever, appreciation of that an fact (D.C.2001) (Ruiz, J., concurring part “drug dealing” Appellant’s was not determi- Here, part). majority finds case, dissenting in and, any issue in the as the native probative demonstrates, that the value habitual ample the State had record property motive commit a crime to show prove its case each element of probative as is out- inadmissible its value introducing prejudicial without weighed prejudicial its Because dealing.” Consequently, under effect. “drug distorts, circumstances, misap- arguable ignores, this conclusion it is those
83
plies precedent,
ignores
majority
the factual
B. The
content
tortures the law and
404(b) evidence,
context
the State’s
facts to find that
the circuit court’s
Court,
effectively
opinion
ruling
overrules an
of this
violated Rule 403.
carefully-crafted
and threatens our
law under
majority
faults the circuit court’s con
404(b),
Rule
I dissent.
probative
clusion that the
value
the evi
majority
ignored
A. The
has
well-
substantially outweighed by
dence was not
precedent.
established
unfairly prejudicial
its
recog
effect.1 While
Although
majority,
not cited
we
nizing review of this issue is
an
limited to
consistently
have
said
Rule
“is an
discretion,
majority proceeds
abuse of
‘inclusive rule’ which all relevant evidence
completely misapply this standard. Under
involving other
or acts is
admitted at
review,
abuse of discretion
not
we do
substi
purpose
trial unless the sole
for the admis-
judgment
our
tute
circuit
court’s.
disposition.”
sion is to show criminal
v.
State
Burdette v.
Corp.,
Maust Coal & Coke
159
L.,
641, 647,
Edward Charles
183 W.Va.
398
335, 342,
(1976)
293,
222
W.Va.
S.E.2d
297
(1990).
123,
S.E.2d
129
Accord
v. Nel-
State
curiam);
(per
Intercity Realty
Gibson,
v.Co.
son,
778, 784,
697,
189 W.Va.
434 S.E.2d
369, 377,
452,
W.Va.
S.E.2d
(1993);
C.,
452,
v.
State Lola Mae
185 W.Va.
grounds by
overruled cm other
Cales
14,
(1991).
n.
408 S.E.2d
38 n. 14
Wills,
212 W.Va.
court’s possible prejudicial effect weighed by leads the the proper in a manner of review 627, af- should be circuit court 371 S.E.2d jury.” conclusion the 179 W.Va. the omitted). (footnote firmed. 348 Here, com court’s conclusion circuit Moreover, majority’s finding that Mr. 619, Johnson, 179 W.Va. ports with v. State it Taylor’s drug was inadmissible because (1988). majority’s at The 371 340 S.E.2d crimes months before the occurred four distinguish because the Johnson tempts to legally flawed charged in this case both predominantly related drug use that case factually We have held erroneous. co-conspirators insupportable be to the goes to the general remoteness rule “[a]s specifically identified Johnson cause we weight to be accorded the “[ejvidenee had used that the defendant 6, Syl. pt. admissibility.” jury, than to rather ... ad co-conspirators was drugs with his 456, Gwinn, 288 S.E.2d v. 169 W.Va. State for commission to show motive missible v. As we observed State 533 627, 371 S.E.2d charged.” Id. McIntosh, Johnson, 210 also Woodrum at 348. See (2001) 908, 766, 762, 912 559 S.E.2d “[rjemoteness, span temporal be- or the Court, (“When it is opinion for the issues crime, wrong, or other act prior tween portions of but also those not the result 404(2) and as evidence under offered necessary to that opinion result pro- present in a determined a fact (quoting Tribe are bound.” Seminole we given to goes weight to be ceeding, to the 67, Florida, S.Ct. Florida v. U.S. not render such and does (1996))). 134 L.Ed.2d crime, wrong, or act of the other Moreover, examined Johnson irrelevant and inadmissible.” ratio that Johnson’s and concluded Miller drug use decendi was 561, 573, defendant’s to show motive: admissible was omitted). curiam) (citation (2000) (per case, permit- the state In the Johnson factually wrong claiming majority The only of to introduce evidence ted was four months old. While the drug usage but evidence defendant’s Taylor’s explained it limited purchase the defendant tended drug period, month what the use to four money. reason the stolen months was majority is that this four misses to be admitted court allowed leading up months to the break- not the four provided a motive for the de- that it ins; rather, prior or two it was the month robbery for participation in the fendant’s break-ins, when month of December trial. was on which he occurred; and the month break-ins 492, 499, 184 W.Va. s goods January when Mr. traded omitted). curiam) (citation (per County Mulch and Schell from Grant he stole Thus, com circuit court’s decision since the most, evi- At the State introduced Farms. Johnson, and a number of other ports with only in of Mr. dence finding drug use motive is that such cases leading up to break- two months one or 403,21 cannot consid admissible under Rule Consequently, I do not find State ins.3 arbitrary and court’s decision the circuit er Walker, 661, 669, 425 S.E.2d Therefore, apply John would irrational. majority’s con- authority for the probative value of the other and find “the son Bitterman, robbery.”); See, State v. Felici motive of the bank 320 F.3d the ano, e.g., States v. United Cir.2003) (evidence (7th A.2d of defendant's Conn. robbery (2001) (similar). did to show motive for armed habit 403); Cartagena- United States not violate Rule Merced, (“We (D.P.R.1997) F.Supp. hearing, circuit court camera In the in possible De- collateral do not find the July Taylor's conviction found Mr. may the Fed.R.Evid. ... suffer fendant State, however, chose not to admissible. outweigh [of offenses] sufficient evidence at trial. introduce this proving government’s legitimate purpose in *11 elusion, judice Crawley, the case sub did not be admitted under Rule 403. because that was four months old.4 involve evidence N.W.2d at 808. justifiable ruling The circuit on court’s Jones, majority’s People citation to
yet
ground.
was
another
The State’s case
411,
Mich.App.
412-
N.W.2d
A
circumstantial.
circumstantial case favors
(1982), misplaced
actually sup
as Jones
admitting motive evidence
evi-
since motive
ports
recognized
drug
Jones
that
the State.
probative
great
dence “is of
in
force
deter-
prejudicial
strong
has a
evidence
use/motive
mining guilt, especially
circum-
cases
however,
majority,
effect. Unlike
evidence[.]”
stantial
C.J.S. Criminal Laiv
stop
analysis
not
its
Jones
did
§ 34
Significantly,
at 40
is a
there
Rather,
observation.
it
to
went on
conclude
higher
tolerance
the risk
such
admissible if the State
pro-
“particularly
cases where
evidence is
“(1)
by establishing
shows relevance
that de
Rivera,
bative.”
States v.
6 F.3d
United
at
fendant was addicted
the time of
near
(7th Cir.1993).5
and, therefore, compelled
the offense
to ob
drug,
tain the
lacks
Finally,
Virginia
defendant
the non-West
cases the
legal
majority
unpersuasive.
sufficient
from
sources to sus
are
For
income
cites
exam
majority
Mazowski,
continuing
tain his or
ple,
her
need
heroin.”
cites State v.
at
N.J.Super.
Id.
(App.Div.
86 jurisdictions upon law other majority’s on cases case
The
reliance
California
also
Mark B. Sim-
misplaced
drug
In
See
Hon.
as well.
California
Johnson relied.
mons,
only if
to show motive
the
Evidence Manu-
habit is admissible
Simmons California
(2002-2003 ed.)
charged
directly
(observing
is to
§
crime
1:32
that “de-
motive
al
drugs
holding,
drug
the Health and
spite
obtain
violate
[Cardenas’s]
Cardenas,
Safety
rejected
31
People
uniformly
v.
Cal.3d
Code.
in
addiction has not been
569,
165,
Cal.Rptr.
647 P.2d
573
object
robbery
184
in which
has
cases
(1982).
approach
for
is that
basis
this
The
money.”)
been
“
usage
‘remotely
drug
habitual
tends
Finally,
disagree
I
that this is one
those
prove
...
insignificant degree
an
a
or to
limiting instructions could
cases where no
906,
at
in
case
Id.
material fact
mitigated
of Mr.
have
(citation
165,
Cal.Rptr.
area of criminal law where overriding
fairness are concerns. Anderson, curiam) (per (Albright,
J., Further, concurring). since all four
prongs syllabus point 3 of LaRock have