*1 H7 Court, Supreme opin- a well-reasoned ion, police finds that conduct does not violate Amendment,
the Fourth Court should
adopt Supreme reasoning the U.S. Court’s regard
with to our own constitutional search provisions.
and seizure sum, essentially majority’s rule new significant support
is devoid of legal reasoning. unnecessary
sound rule is
protect law-abiding citizenry from arbi-
trary use of confidential informants
police. It protecting is also useless in crimi- suspects arbitrary police
nal conduct police use
since can informants who are
armed with electronic surveillance devices suspect’s
enter a purpose home for the
gathering Further, incriminating evidence.
the new rule at odds constitution- thinldng
al Supreme United States
Court, Congress, the United States the ma- states,
jority of precedent and the of this Finally, troubling,
Court. and most is that likely majority’s effect new rule legitimate
to make police investigations of suspects
criminal time-consuming, more com-
plex, reasons, and difficult. For all these I
dissent.
STATE of West Plaintiff
Below, Appellee, WHITTAKER,
Valerie Defendant
Below, Appellant.
No. 33037.
Supreme Appeals Court of Virginia.
West
Submitted Feb. 2007. April 2007.
Decided
Dissenting Opinion of Justice
Albright May 2007.
Dissenting Opinion of Justice
Starcher June
Concurring Opinion of Justice
Maynard 29, 2007. June
119
PER CURIAM: below, appellant herein and defendant Whittak- Valerie Whittaker “Ms. [hereinafter 14, 2005, er”], January appeals or- County of the Circuit Court Mercer der jury adjudged Whittak- after a rendered voluntary manslaughter in the guilty er boyfriend. In its longtime of her or- death der, jury’s determina- adopted the court guilt and sentenced Ms. Whittaker tion years imprison- of ten a determinate term Court, appeal Ms. Whittak- ment. On to this (1) by trial court erred er contends that the entering acquittal1 judgment based (2) self-defense; limiting upon her claim of witnesses; testimony of various defense (3) prof- refusing to certain evidence admit Whittaker; (4) admitting fered Upon a made Ms. Whittaker. statements arguments, the record parties’ review consideration, per- presented for and the our authorities, affirm we Ms. Whittaker’s tinent conviction.
I.
AND PROCEDURAL
FACTUAL
HISTORY
At the time of the events relevant
this
Jerry
appeal, Valerie Whittaker and
Calvin
Mills,
Mills”], had
Jr.
been
[hereinafter “Mr.
dating
approximately
years
ten
and had
for
together,
Throughout
J.W.2
one child
parties’
frequent-
relationship, Ms. Whittaker
sought
daugh-
her
ly
shelter for herself and
shelter,
at a local
her
ter
battered women’s
Smith,
Scantlebury,
&
C.
Smith
David
home,
pastor’s
and her aunt’s house
order
L.C.,
Bluefield,
Morgan,
Appel-
for
Ward
physical and
escape
from Mr. Mills’
emo-
lant.
time,
During
abuse.3
Ms. Whit-
tional
General,
McGraw, Jr.,
separate
Attorney
obtained four
domestic vio-
Darrell V.
taker
Ford,
General,
petitions
Mr.
in an
Attorney
against
Mills
effort
Colleen A.
Assistant
lence
herself;
General,
Warfield,
her
and
of
Deputy Attorney
protect
daughter
three
Dawn E.
Charleston,
protective
served
Appellee.
orders were never
for
these
138,
K., W.Va.
n.
217
630
619 S.E.2d
143
1. See note
infra.
n. 1
years
2. J.W.
nine
old at the time of the
severity
age
duration of the abuse inflicted
at
Due to the lender
3.The
and
incidents
issue herein.
case,
by
Mills
and J.W. in-
involved in
we will contin-
Mr.
Ms. Whittaker
child
hitting, yelling, threats
death and
practice in
and
to her
cluded
bodi-
ue our
similar cases
refer
floor,
harm,
See,
ly
throwing
by
them
tortur-
her
rather than
her full name.
across
initials
Bernet,
eventually killing
pet
pet
ing
cal and
e.g.,
n.
and
J.W.'s
629
Wilson
her,
(2005);
stalking.
in front of
625 S.E.2d
In re
rooster
n.
Clifford
Upon
appointment.
leaving the
uled doctor’s
Mills,
pending at the
including the one
Mr.
they
Mr.
building,
encountered
doctor’s office
death.4
time of his
lot,
parking
he was wait-
Mills in the
where
Mr.
leading up
the death of
The events
allegedly threatened them.
ing for them and
In an
spring of 2003.
began in the
Mills
vehicles,
Driving
separate
in two
Ms. Whit-
relationship, Ms.
their
to terminate
effort
taker,
J.W., Mr. Mills then drove to
with
home and
purchased a mobile
Whittaker
nearby
prescriptions
pharmacy
to have
adjoining the residence
property
it to
moved
filled,
station,
gas
to a
and back to Ms.
Nevertheless, Mr. Mills left
parents.
of her
there, they
From
mobile home.
Whittaker’s
into Ms.
in Princeton and moved
his home
go
vehicle to
to Mr. Duncan’s
left
one
daugh
with her and
Whittaker’s home
item,
they stayed
an
house to retrieve
where
J.W.,
Ultimately, Ms. Whittaker
ter.
Afterwards, Mr.
and visited for some time.
Mills,
fearing Mr.
left this resi
apparently
Whittaker,
Mills,
and J.W. traveled to a
Ms.
temporarily
at Princeton
dence and
resided
and returned to Ms. Whit-
convenience store
security guards
Community Hospital where
home,
began
Mr.
taker’s
at which time
Mills
day.
twenty-four hours a
protect them
could
threatening to kill
Ms. Whittaker and
both
presence,
learning of their continued
Upon
home,
picked
J.W. Once inside the
Mr. Mills
Ms.
hospital personnel directed
Whittaker
and,
up
by her hair and her shirt
J.W.
shelter,
women’s
where
and J.W. to a local
Whittaker,
...
“rolled her
recounted Ms.
days.5
stayed
they
approximately
for
five
bowlinfg]
Ap-
the floor like
ball.”
[a]
across
time,
County
Mercer
Sher
During this
actions,
afraid of Mr. Mills’next
Ms.
parently
unsuccessfully attempted to
Department
iffs
Mr. Mills’ .38 caliber
retrieved
latest
Mr. Mills with Ms. Whittaker’s
serve
him
from a kitchen cabinet
shot
revolver
Nevertheless,
petition.
domestic violence
time, instantly
At
killing him.
the time
one
petition’s
Mr.
made aware of the
Mills was
approxi-
shooting,
Ms. Whittaker was
Mr.
Whittaker called
existence when Ms.
mately
away from Mr. Mills.7
seventeen feet
friend,
Duncan [hereinafter
Mills’
James
Duncan”],
wife, Carolyn,
“Mr.
and asked his
shooting,
Immediately following the
petition.6’
to inform Mills
Whittaker,
panic,
in a
seemingly
state
placed shotgun
in Mr. Mills’hand
bolster
Thereafter,
and J.W. left
Ms. Whittaker
claim self-defense.8 She then called
her
and went
to Ms. Whittaker’s
the shelter
report
Virginia State Police to
home,
the West
they stayed
a few
where
aunt’s
they
not locate her
25, 2003, Whittaker,
could
actions. Because
days. On
June
house,
J.W.,
keep a
the State Police asked
to Princeton to
sched-
traveled
*7
ranged
days
stays
to three
temporary pro-
from two
4. Ms. Whittaker first obtained
12,
January
against Mr. Mills on
tective order
months.
1995;
preju-
petition
was dismissed without
January
request on
dice due to Ms. Whittaker’s
that her
Apparently,
Whittaker believed
6.
19,
17, 1995,
February
On
be dismissed.
against
petitions
repeated
Mr.
domestic violence
1997,
protective
temporary
order was
a second
threatening
charging
harm her
him with
to
Mills
Mills;
against Mr.
a final
to Ms. Whittaker
issued
deadly
placed
jeop-
weapons
him in
with various
ninety-day protective order
issued on Febru-
was
license,
losing
hunting
ardy
and she asked
his
of
1997,
21,
only protective
ary
order,
which
the
was
Carolyn
relay
information to Mills as
actually
temporary,
that was
final or
(1969) (Repl.
§
W.
20-2-38
well. See
Va.Code
14,
Again,
Mr. Mills.
on October
served on
Vol.2002) (revoking hunting
for convic-
license
1997,
pro-
temporary
Ms. Whittaker obtained
61-7-11);
§
W. Va.Code
under W. Va.Code
tion
order; however,
dis-
this matter was
tective
(1994)
(establishing
(Repl.Vol.2000)
§ 61-7-11
20, 1997,
to Ms. Whittak-
on October
due
missed
impos-
brandishing deadly weapon and
crime of
hearing
appear at
final
thereon.
er's failure to
therefor).
ing penalties
temporary protective
was
order
The most recent
2003;
18,
to Ms. Whittaker on June
issued
following
Testing
fatal
Mr. Mills’ blood
his
of
1,
24, 2003,
July
hearing
continued to
June
was
alcohol, hy-
concentrations of
wound revealed
2003,
protective order was
which date the
drocodone, and Valium.
having killed
due to Ms. Whittaker
terminated
Mr. Mills.
and J.W. discussed
8. Whether Ms. Whittaker
disputed
gun
hand is
placing the
in Mr. Mills’
stayed
J.W. had
at this shel-
5. Ms. Whittaker and
occasions;
length
prior
the record evidence.
of
ter on numerous
them at a local
guilty
voluntary
meet
landmark. She
manslaughter.
then
er
of
gave
burden
investigating
four statements to
offi-
Ms. Whittaker
must bear
secure
(1)
heavy
the reversal of her
police
cers:
in the
car
conviction is a
state
while she
one.
previously
We
jury
have held that “a
verdict
being driven from the landmark back to her
only
should be set aside
when the
house,
record
recorded;
which statement was not
evidence, regardless
(2)
contains no
trailer,
of how it is
at her
which
tape
statement was
weighed,
jury
from which
guilt
could find
(3)
recorded;
barracks,
police
at the state
beyond a
Syl. pt. 3,
reasonable doubt.”
which statement was not recorded and of
Guthrie,
part,
657,
State v.
194 W.Va.
(4)
taken;
which no
were
*8
degree.
murder is murder of the second
10, supra.
11. See note
In an indictment
manslaugh-
for murder and
ter,
necessary
it shall not be
to set forth the
days
Ms. Whittaker received credit for the 524
which,
which,
12.
manner in
or the means
the
previously
she
had served for this crime. Al-
caused,
death of the deceased was
but it shall
though
requested
post-
to be released on
every
be sufficient
charge
in
such indictment
to
pending
appeal
conviction bond
her
to this
feloniously,
that the defendant did
will-
Court,
request.
the circuit court denied this
The
fully, maliciously, deliberately
unlawfully
and
did, however,
court
order that Ms. Whittaker be
slay, kill and murder the deceased.
placed
Regional
in the Southern
Jail rather than
penalty
degree
for first
murder is "confine-
penitentiary
in the state
while this Court is con-
penitentiary
ment in the
for life.” W. Va.Code
sidering
appeal.
her
(1965)
§
(Repl.Vol.2000).
61-2-2
"Voluntary manslaughter”
Court,
During
argument
is discussed in W.
10.
oral
before this
13.
coun-
(1994)
§
(Repl.Vol.2000)
Va.Code 61-2-4
represented
as fol-
sel for
Whittaker
Ms.
that she was
9,
lows:
parole
February
released on
on
2007.
entry
judgment
against
and sentence
her:
the motion
a
of
judg-
of
for directed verdict
a
(1)
judgment
acquittal.
failed
enter a
ment of
the trial court
to
upon
of
her claim of
acquittal based
self-
reviewing
When
a lower court’s re
(2)
defense;
the trial court limited the testi-
verdict,
fusal to direct a
is
Court
bound
(3)
witnesses;
mony of various defense
the
light
to consider
in
the evidence
the
most
to
trial court refused
admit certain evidence
prosecution
to
favorable
the
to determine
(4)
Whittaker;
proffered by
the
Ms.
trial
acquittal
whether
verdict of
should have
by admitting
court erred
Ms. Whittaker’s
been directed for the defendant.
prior
police
to
statements
officers. We will
“ ‘“Upon motion to direct a verdict for
assignments
each
address
of these
turn.
defendant,
the
is
be
evidence
to
viewed
Judgment
A. Failure to Enter
light
prosecution.
to
most favorable
It
Acquittal
upon
Based
of
necessary
in appraising
not
its sufficien
Self-Defense
cy
reviewing
the trial or
court be
assigns error
Ms. Whittaker first
beyond
convinced
a reasonable doubt of
judgment
the trial court’s refusal to enter a
defendant;
guilt
question
of the
acquittal
upon
of
based
her claim of self-
whether there is substantial evidence
presenting
argument
In
defense.
her
on this
jury might justifiably
which a
find the
however,
point,
actually
raises
guilty beyond
defendant
a reasonable
(1)
West,
two distinct issues:
whether the evidence
325,
doubt.” State v.
153 W.Va.
support
(1969).’
was sufficient
her
motion for a
Syl. pt.
S.E.2d 716
State v.
(2)
verdict14
Fischer,
directed
whether the evi
158 W.Va.
more, af- drawn in favor of the presented State evidence the before called to inconsistent ev- shooting ter but she evidence need be the death, report Whittaker ery guilt long Mr. Mills’ Ms. of conclusion save that so presum- placed shotgun in Mr. Mills’ hand guilt beyond a a jury the can find reasonable ably her claim of self-defense. Credibility to bolster for doubt. are determinations that, in demonstrated or- Finally, further jury an appellate a and not court. in plant shotgun the der retrieve and only to jury set verdict should be aside hand, step to Whittaker had evidence, Mills’ Ms. no re- when the record contains that, doing through Mr. blood and Mills’ gardless weighed, it of how is from which so, bloody footprints left around his jury beyond guilt the could a reason- find Finally, into body. the State introduced evi- able doubt.... Ms. Whittaker’s numerous statements dence Guthrie, Syl. pt. part, provided
to
enforcement officials which
law
657,
127
existing
gun
the defendant
that Mr.
at the time
fired
Mills did not have a
in his hand
6,
McMillion,
Syl. pt.
fatal shot.”
State v.
placed
at that moment and that she later
one
(1927).
1,
104 W.Va.
Although
leading up
the events
to Mr.
claim of
“mani
taker’s
self-defense was not
suggest
Mills’ death could
that Ms. Whittak
festly against
weight
the evidence.”
claims,
acting in
er was
self-defense16 as she
McMillion,
Syl. pt.
104 W.Va.
presented
question
the evidence
as to
Thus,
case,
find the
128 Evidentiary Rulings full had demonstrate the extent abuse she
B.
living
Mr. Mills. The
suffered while
assigns
also
error
responds
trial
court did not
evidentiary rulings
by
made
to several
by
testimony proffered by
limiting the
err
court, namely
trial
decision
court’s
trial
precluded
these
because the
testi-
witnesses
testimony of certain defense wit
to limit the
mony
hearsay.
was inadmissible
nesses;
refusal
to admit
the trial court’s
a trial
When this Court is asked
review
evidence;
trial
into
and the
certain items
rulings
admissibility
court’s
on the
of evi
prior
into evidence of
state
court’s admission
dence,
application
as well as the trial court’s
enforcement
ments she had made
law
rules,
evidentiary
accord the trial court
we
reviewing the decision of a
officials. When
rulings
great deference and will reverse such
concerning the
or refus
trial court
admission
only
trial
if the
court has abused its discre
evidence,
the trial
al to admit
we accord
evidentiary rulings,
tion. “A trial
as
court’s
and consider whether
court broad discretion
application of
of Evi
well as its
the Rules
in ren
the trial court abused
discretion
dence,
subject
are
under an abuse
review
dering
ruling.
its
4,
Syl. pt.
standard.”
State v.
discretion
admitting
of a trial court in
“The action
Rodoussakis,
58,
204 W.Va.
in there but that is the MR. SMITH: Those were demonstra- on each foot. tive. MR. BOGGESS for the [counsel State]: appeal, On counsel for Ms. Whittak relevancy, Again gonna object I’m suggests er that the trial court did not allow Honor, I- Your introduced, this evidence be and he also
THE COURT: What is the relevance challenge rulings seeks to the trial court’s here, Mr. Smith? regard. problem assign with this First, ment of error is twofold. that of which Honor, MR. SMITH: Your it’s a blood complains actually is not what sport and I think I’m entitled to show occurred at trial as reflected the trial illegal deceased was into what amounts to assertions, Contrary transcript. to her sports, goes blood I think it to her knowl- *14 fighting trial court did admit Mr. Mills’ cock edge capable of his-what he was of. paraphernalia Accordingly, into evidence. up THE COURT: I’ll leave that to the her assertion the trial court did not objection. so I’ll overrule the admit these items into evidence is without BY: Smith merit. his, Q right? These were Additionally, Ms. Whittaker at
A Yes.
tempts
complain
to
about the trial court’s
whereby
ruling
permitted
it
to see
MR. SMITH: At this time I’d move the
during
prohibited
the evidence
trial but
it
introduction of Defendant’s Exhibit No. 3?
being
jury during
from
sent
to the
Any objection?
THE COURT:
However, during
deliberations.
the trial dis
Only
relevancy,
MR. BOGGESS:
toas
evidence,
regarding
course
this
counsel for
Your Honor.
object
Ms. Whittaker did not
to the limited
purpose for which the trial court admitted
THE COURT: Well since it’s-I’m not
and,
fact, specifically
in
ac
sending
jury,-
all that back to the
quiesced
ruling
in the trial court’s
in this
MR. SMITH: Sure.
regard.
jury’s
THE COURT: -the
seen this so
gonna
Ordinarily, party
I’m not
that-
allow
a
must raise his
objection contemporaneously
or her
with the
Okay.
MR. SMITH:
ruling to
trial court’s
which
relates or be
go
THE COURT: -as an Exhibit to
back
asserting that
forever barred from
that rul
offering
trophies,
to them. You’re not
those
ing
in error.18
anything
point?
or
that at
like
litigant
a
himself or herself
When
deems
No,
MR. SMITH:
Your Honor.
aggrieved by
he
she
to
what
considers
you.
in
important
THE COURT: Thank
be an
occurrence
the course
294, 316,
613,
(1996).
18. The “raise or waive” rule is not absolute
W.Va.
Where, however,
470 S.E.2d
635
where,
circumstances,
extraordinary
the fail-
knowing
"there has been a
object
plain
'plain
ure to
error. "The
constitutes
relinquishment
intentional
or abandonment
aof
courts,
grants appellate
error’ doctrine
in the
right,
inquiry
known
there is no error and
justice,
authority
interest of
to notice error to
a
from the rule
to
effect of deviation
of law
objection
which no
has been made.” State v.
Syl. pt.
part,
determined.”
need not be
Miller,
3, 18,
194 W.Va.
459 S.E.2d
129
Miller,
State v.
194 W.Va.
133
example,
Supreme
right
suspect
tions.
Court of
For
stitutional
for
criminal
specifically determined that
interrogation
Minnesota
have his or her confession or
argued
recorded. Ms. Whittaker has not
supervisory power
of
the exercise
our
specific “exculpatory”
that there were some
justice,
of
insure the fair administration
we
gave
police
statements that she
to the
which
interrogation
hold that all custodial
includ-
police
deny.
words,
now
other
there
any
ing any
rights,
about
information
waiv-
controversy regarding
is no
what Ms. Whit-
rights,
questioning
er of
and all
those
shall
police.
taker stated to the
This Court will
electronically
be
recorded where feasible
not decide abstract issues
there is no
where
questioning
and must be recorded when
“
controversy.
‘Courts are not constituted
If
place
occurs at a
of detention.
law en-
making
the purpose
advisory
for
of
decrees
comply
forcement officers fail to
with this
resolving
disputes.’
academic
Mainella v.
requirement,
recording
any
statements
Board
Trustees
Policemen’s Pension or
suspect
in response
makes
to the interro-
of
of
City
Fairmont,
Fund
126 W.Va.
gation may
suppressed
be
at trial.
Relief
(1943).”
183, 185-86,
486,
27 S.E.2d
487-88
Scales,
587,
Minnesota v.
592
518 N.W.2d
Syl. pt.
Gainer,
part, Harshbarger
v.
(Minn.1994). Likewise,
Supreme
the Alaska
184 W.Va.
der); 25, § Ann. tit. 2803- Me.Rev.Stat. B(1)(K) (2006) (requiring CONCLUSION establishment of audio, policies electronic, video, digital, for considering After all of Ms. Whittaker’s recording other of law enforcement inter error, assignments of that we conclude the suspects pres of views serious crimes and by upholding circuit court did not err Ms. investigative ervation of notes and records in voluntary Whittaker’s conviction of man cases); such Texas Code Proc. Crim. Ann. slaughter sentencing her in accordance 3(a)(l)-(2) (2006) 38.22, art. (barring §§ ad Nevertheless, deeply therewith. we remain any any proceeding mission in criminal of underlying troubled the facts this case. during statement interroga made custodial vigi no do Under circumstances we condone tion recording unless electronic is made of However, justice. sympathize lante we statement). generally A. Drizin See Steven plight the Ms. which Whittaker found her Reich, & Heeding Mariss J. Lessons the of attempts self after her numerous to seek History: Mandatory The Need Record help from were law enforcement authorities ing Interrogations Accurately Police to of inability unsuccessful. Ms. Whittaker’s to Reliability Assess the and Voluntariness of due, part, such to obtain assistance was (2004). Confessions, 52 Drake L.Rev. 619 the fact that Ms. most of Whittaker’s domes case, petitions the Under facts of this we de tic violence were not on Mr. served Mills, and, they thus, cline to decide whether a state con- there is were not enforced.20 peti- recognize appreciate 20. We the fact that of these also fear of retaliation two may per- tions were due to Whittaker's ac- Mills Ms. to dismissed Ms. have motivated Whittaker However, supra filings. generally tion or See we mit the these inaction. note dismissal of See 134 examining Appellant’s Instead of whether put, our
“Simply law enforcement/criminal histoiy being spouse warranted of battered utterly failed” Ms. Whittaker justice system admissibility of inquiry closer into Miller, 374, 387, v. 204 W.Va. and J.W. State issue, simply majority at con- evidence (1998) curiam) 147, (per 160 513 S.E.2d that the evidence was inadmissible on cluded (Starcher, J., Perhaps concurring). even similarly shortsighted hearsay grounds. troubling, though, is the fact more fashion, majority described the evidence incident; case is not an isolated Whittaker’s Hudgins by Ms. sought to be introduced review have asked to previously been we in time to Ms. Fowler too remote be who of domestic violence victims convictions Incredibly, Ap- the evidence relevant. cycle of abuse felt the need to end have through sought pellant introduce at their means were by resort to whatever very made on Fowler were statements Miller, See, e.g., v. 204 W.Va. disposal. State day shot. While such Mr. Mills was McClanahan, 147; 374, S.E.2d 513 contemporaneous to the statements were not (1994) 70, (per 454 115 S.E.2d 193 W.Va. incident, clearly shooting they not too were curiam). Although our decision of case Appellant’s to be relevant to state of remote firm, wish to renew stands we nonetheless mind. ensuring continuing our commitment security, safety, dignity of victims of twenty-five years more than For abuse, encourage our coor per- recognized significance domestic we of Court has government to do like branches mitting dinate a battered individual introduce “in wise. about the abuse suffered order evidence may juiy fully evaluate and consider that the Valerie Accordingly, conviction of at the time state the defendant's mental voluntary manslaughter, and the offense.” State v. the commission of years imprison- of ten her resultant sentence Dozier, 192, 197, 255 S.E.2d 163 W.Va. ment,21 hereby affirmed. Evidence adduced demon- long relationship, term abusive such strate Affirmed. Mills, and Mr. Appellant as that between syndrome characterized as battered women’s ALBRIGHT, Justice, dissenting: prove that typically and is relied an defendant in self defense. abused acted See inability majority an demonstrates Wyatt, State v. 198 W.Va. fully comprehend underpinnings of the (1996) (recognizing that S.E.2d “the syndrome spouse by upholding, with battered syndrome principal use battered women’s analysis, evidentiary minimal the trial court’s testimony has in the context of self- been syn- Although rulings.1 a battered women’s defense);” Lambert, jury, given to the drome instruction was (1984) 63-64, (noting that 312 S.E.2d wrongly hearing prevented syndrome spouse battered *17 might tipped that have the scales intent”). “go[es] negate criminal Appellant’s affirmative defense that favor of by Sadly, paradigm presented acting in she shot the bat- self defense when was prevent- spouse inflicted tered is an individual is man had both who Mr. Mills—the who obstacles, by emotional financial physical upon her for ten ed or mental and abuse both, permanently escaping the long year's. from envi- 366, 379-80, Brinkley, Mechling, Debra Fowler. Each of 633 Sandra and State v. 219 311, (2006) (discussing why prohibited relating do S.E.2d 324-25 from these ihree women was cooperate mestic violence victims often do not with, any Appellant jury to the statements that made to from, law enforcement or seek assistance pertaining to of abusive conduct them instances batterers). officials vis-a-vis hearsay indicted her Mr. Mills on learning grounds. limited After nature of 21. currently parole. on See is testimony Brinkley could offer at trial on the 13, supra. note behalf, Appellant to call Ms. her chose not Brink- ley to the stand. rulings pertain limiting testimony the 1. These Ermajean Hudgins, defense of three witnesses:
135
(1987)
330, 336,
558,
(stating
S.E.2d
564
359
abusing spouse. See Roberta
the
rons of
prior
of
Woman
reason evidence of
acts
Battered
Thyfault,
“[t]he
Self-Defense:
485,
Tnal,
Cal.
...
because it relates
20
W.L.Rev.
is relevant is
Syndrome on
violence
(1984) (identifying
obstacles
economic
be-
to the reasonableness of the defendant’s
488-89
fear,
factors,
as
which
such
psychological
intended to inflict seri-
lief that the deceased
successfully
from
prevent
and,
abused women
bodily injury
a conse-
or death
as
ous
Eber,
relationship); Loraine
leaving abusive
justified in the
quence, the defendant was
To
To Kill or
Dilemma:
The Battered
perti-
of
killing”). Without the introduction
Wife’s
895,
Killed,
L.J.
901-02
Hastings
Be
32
history
fully explores
the
nent evidence
(1981)
and economic
(recognizing emotional
violence,
jury
and threatened
the
of violence
fear,
self-esteem,
and shame
low
dependency,
attempt
the battered indi-
cannot
to discern
why battered
re-
explanations for
women
perception
danger and imminent
vidual’s
of
relationships). Through the
in abusive
main
result,
spouse
the
is
harm. As
battered
witness,
jury
expert
testimony of an
necessarily hampered
ability
prove
her
prototypical pat-
often
about
educated
Eber, supra,
acted in self defense.
that she
in bat-
that exist
terns of abusive behavior
Hastings L.R. at 920.
32
“1)
as:
the escala-
spouse cases such
tered
majority essentially
Appel
dismisses
severity
frequency
tion of the abuse
theory
of
lant’s contention
self-de
2)
time;
phase
a three
the existence of
over
hindered
the trial court’s exclu
3)-the
fense was
violence;2
jealousy of the
cycle
of
testimony
her named
sion of
from three of
Thyfault, supra, 20 Cal. W.L.R.
batterer.”
added).
Appellant was
(footnote
defense witnesses. Because
Ideally, after
at 486-87
testify
prior
of
permitted to
about
instances
testimony
subject,
hearing expert
abuse,
signifi
compre-
majority downplays
jury
position
in a better
will be
perceptions of
of
that she made to others
the battered individual’s
cance
statements
hend
and, thus,
danger
contemporaneous
previous
to evaluate the
incidents.
imminent
to those
overlooks, however,
actions.
of her
majority
reasonableness
What
jury
hearing
by preventing the
being educated about the
In addition to
statements,
jury
denied infor
these
spouse rela
patterns
to a battered
intrinsic
Appellant’s men
mation that was relevant to
recognized
have
the need to
tionship, courts
offered to ex
tal state —evidence which was
“all of the circumstances
apprise the
support her
actions and tended to
plain her
Wanrow,
surrounding
incident.” State v.
theory
See
that she acted
self-defense.
(1977)
548,
221,
P.2d
556
559
88 Wash.2d
449, 456,
Pettrey,
549
v.
State
38,
Lewis, Wash.App.
491
(quoting
v.
6
(2001)
323,
(recognizing that out-
330
S.E.2d
(1971));
accord Bechtel
P.2d
prove
state
statements offered
of-court
State,
(Okla.Crim.App.1992)
840 P.2d
hearsay
are not excluded under
mind
meaning of imminent must
(stating that “the
Haines,
rule);
112 Ohio
see also
necessarily envelope
the battered wom
[sic]
(2006)
(recog
St.3d
860 N.E.2d
on all the facts and
perceptions based
an’s
testimony on battered woman
nizing that
relationship
of his or her
circumstances
background for un
syndrome is offered as
victim”).
Only
has been
when
individual);
derstanding
of abused
behavior
all
and consider
permitted to hear
1, 17 Cal.
Coffman, 34 Cal.4th
incident, People v.
surrounding the
factual information
(2004)
(upholding
96 P.3d
Rptr.3d
history
prior threats
a full
includes
which
admissibility
expert testimony offered to
beatings,
properly
can it
evaluate
past
*18
that did
of mind
defendant’s state
had reasonable
establish
the defendant
whether
of
directly
pending criminal
not
relate to
in immediate
grounds
believe that she was
re
abused defendant’s
Eber,
Hastings L.R.
fenses but concerned
supra, 32
danger. See
victim).
Steele,
lationship
920-23;
at
see also State
remorse, acting lovingly,
showing
and often
cycle
phase
includes the initial build-
The three
woman
by
promising never to harm the abused
phase,
ing
which is followed
the
of tension
again.
Thyfault, supra,
W.L.Rev. at
20 Cal.
battering
the
See
phase, and culminates with
acute
demonstrating
by apologizing,
487-88.
contrition
abuser
relevance,
wisely
lack
not
of
Supreme
ground
Court
rec-
of
on the
The Oklahoma
hearsay.
ognized in Bechtel that
(footnote omitted).
Id. at 14
defendant,
in-
in self-defense case
[a]
analy-
engaging
Rather than
in an earnest
syndrome,
volving
women’s]
the [battered
issue,
evidentiary
majority
sis of this
the
her “fear” at
time
in order to establish
the
quickly
ground
the state
dismissed
of mind
of
of
the offense and
the commission
proffered by Appellant for
of the
admission
aggressor,
as the
establish the deceased
According
majority,
banned evidence.
to the
produce past
must be entitled
violent
only purpose
Hudgins’
“the
which Ms.
ex-
deceased and to intro-
encounters with the
cluded
could
statements
have served would
danger-
turbulent and
duce evidence of the
prove the
matter
have been to
truth of the
reputation of
ous character or
the de-
asserted:
that Ms. Whittaker had been
of
ceased. This
an established method
is
Mr.
abused and that
Mills
abuser.”
was the
cases,
proof in
law
self-defense
because the
By preventing
jury
hearing
the
from
what
recognizes
that
future
the fact
conduct
Fowler,
Appellant
Hudgins,
told Ms.
may
reasonably
past
be
inferred from
con-
abuse,
Brinkley
prior
about
instances of
duct. Justice
not be served to hold
would
Appellant
lay
the
the
right
was denied
relating
limited to
is
the
defendant
proper
for establishing
foundation
her state
physical
past
act
conduct without its
of
day
of mind on
she shot
Mills.
the
Mr.
accompanying words.
being
prove
Rather than
offered
truth
the
asserted,
majority
of
as
con-
the matter
the
(citation
To a victim of such as abuse horribly who had battered her —and the majority’s sympathy offer of and its recita- utterly Virginia pro- State of West failed to “continuing ensuring tion of a commitment to her. tect safety, security, dignity and victims my case, concurrence in I the Miller only perceived domestic abuse” be as an can said: empty gesture. As to the unserved domestic threats, curses, David Stinson’s and petitions, Appellant’s previously violence un- Penny rages backhands to Miller’s —his experiences legal system with the successful face, punching belly, his fist her his foot may have had no convinced her she choice lucking lay her as she on the floor—Pen- Despite but to defend herself. the wide- ny’s eyes, puffy lips and swollen her cuts spread recognition of domestic abuse and the bandages, and and her loose bruises teeth abused, legal system’s protect efforts to bleeding gums nights and of terror —the discomforting reality victims of Christopher Cheyenne, the curses abuse continue to find themselves in that landing and the blows on their mother-—(cid:127) proverbial setting being between a rock lies, insults, promises— the broken spot. and a hard Until both the courts and fear, isolation, shame, failure, resigna- society fully appreciate the realities of do- this, tion and numbness —all of the fruits consequences, all mestic abuse and its of David Stinson’s abuse —came home to unlikely seems that in the context of criminal rooat when David Stinson was shot prosecutions adequately our laws will death his own son. fairly address the ramifications such wonder, may lay One as Davis Stinson abuse. bleeding porch, on a trailer did he death Accordingly, respectfully I must dissent. finally have time to feel that he had been brought to account for his crimes-—and STARCHER, J., dissenting: appreciate person uniquely qualified join Albright’s thoughtful I Justice dis- gravity? separately express my I sent. also write case, case, instant In the Miller as in the personal view of the case. instant away squarely Court shied from me, To the instant ease is not about “self- fairly confronting it. the issues before As right It is defense.” about the of mother dissent, Albright suggests in his rhet- Justice child, protect right and the of a home- decrying oric from Court domestic vio- stop a criminal committing owner to strictly enforcing lence no substitute for violent crime her home. women who take fairness the courts for Valerie Whittaker a man shot who had against their action abusers. times, brutally many beaten her and who Accordingly, I dissent.1 came into her of a court home violation feloniously daughter. order and attacked her MAYNARD, Justice, concurring: what, believe, response peo- Her I most ple Practically everyone Paul courage would like to have the to do. knows who Har- facts, vey undisputed simply popular Under these I would He is a radio commentator is. beyond his reverse Ms. Whittaker’s conviction. The evi- who looks the headlines lets case, fear, reality given legiti- majority to her of the instant I is that has "short shrift” incarcerated, longer legal mate and human claims. because is no *20 Moreover, stray.” jury shooting. “the rest of the I am time of the the listeners know the appellant placed gun a in “Paul learned that the writing separately because this is a him. Curi- stray Mr. Mills’ hands after she shot Harvey” and the rest of this needs case ously, the make no reference to dissenters My dissenting colleagues, who to be told. these facts. deliberately critical facts in their dis- omitted sents, you appel- have believe that the would Mills, day appel- On the she shot Mr. the who, woman after suffer- lant was a battered had been lant left her aunt’s house where she physical by ing mental and abuse Mr. Mills staying appointment to a and went doctor’s years, and for ten shot him in self-defense appoint- knowing that Mr. Mills also had an by rulings that of certain the trial because day. the doctor that Mr. ment with same court, majority, which were affirmed the waiting for her with her Mills was there offering prevented she was purse. appellant The at trial that testified preposterous that That is a and out- abuse. office, attempted to leave the doctor’s but she simply hap- and not what rageous claim keep Mr. Mills forced her to the doctor’s pened. Then, appel- appointment. according to the lant, ears, they though separate in even were The record this case shows that Ms. Mr. to him to Mills forced her follow the shot and killed an unarmed man. station, pharmacy, gas a then home to and him, lulled After she she went to another they living. trailer After where were a shotgun. room and retrieved She then time, being home for a Mr. Mills decid- short placed shotgun in the dead man’s hands go pick up to a house a ed to friend’s to weed Next, finger put trigger. and his on the the According appellant, Mr. eater. to the Mills appellant police repeatedly called the daughter go along. forced her and their happened. lied about what She lied when so, visiting After friend for an hour or the police told the had the she Mr. Mills they stopped at a left and convenience store shotgun threatening his hands and was returning According before home. to the kill her when she shot him. She told this they home, appellant, as soon as arx-ived Mr. story separate false two recorded state- her, began threatening to kill Mills their Only questioning ments. after further did family. daughter, and other members of her finally appellant the admit that she had lied minutes, Mr. Within a few Mills was dead. actually and that Mr. Mills was unarmed at appellant him from feet The shot seventeen trial, appellant the time she shot him. At the away gun a retrieved from a kitchen -with curiously Mr. claimed the first time that Although appellant claimed to cabinet. immediately had their child Mills mistreated before, gun have never used a she killed Mr. him, stray before she lulled a she never told instantly single to the head. Mills with shot any many prior of her statements. Mills, appellant After Mr. she shot I dispute do not the fact that Mr. Mills was police1 reported, called the state appellant toward their abusive my at I was home and I had a domestic very daughter. He was a and a brute bad petition against my baby’s daddy violence man. The evidence in record shows going and he was to come in and he tried appellant obtained four domestic violence grabbed shotgun to lull me he he petitions against during Mr. Mills the course pulled trigger did I had back when he relationship of their and that she left him and him[.] shoot went battered woman’s shelter arrived, daughter. jury police appellant When the state The heard this evi- exactly Trooper dence. The also heard what told Christian that Mr. Mills had day her; happened kill threatening on the Mr. Mills was shot and been that he went to appellant. particular, got shotgun; killed back of the trailer and door; then, appellant heard all of the lies the told that he went out the back he police actually happened through about what at came back the front door with the reported appellant police called the state rather tian weeks before and Mills speak Trooper driving than 911 and asked to Chris- his four-wheeler while drunk. Apparently, Trooper tian. Chris- she had called *21 Trooper picked up pliers He had the and he threat- shotgun. appellant The told Chris- ‘em, to kill me he’d done Mr. Mills with the ened with draw’d tian that when she saw he ‘em back. shotgun, grabbed gun she knew she him. She
kept in a kitchen cabinet and shot that her Trooper further told Christian go hollered and he started to [J.W.] daughter her in the kitchen curled was with ahead and hit me and he said no that he up in a the floor and that after she ball on gonna get shotgun the and blow all was us Mills, go body shot Mr. she did not near his away, shotgun that a wouldn’t leave no rather, grabbed daughter but her and went trace. parents’ next door her house. Trooper Christian entered the trail- When And then when he like started he was er, lying in he noticed that Mr. Mills was the go gonna get shotgun the doorway in shotgun front with a his hand-his finger trigger on and his thumb on the the threatening my I cause he to kill mean was splatters no blood hammer. There were mom, mother, baby, my my myself, my my gun, footprints in the the but there were daddy. point, Trooper floor. At that blood on the suspicious. appellant Christian became The My thing brother and sister. The first had told him that no one else had been through my grab that went head was the during shooting. near the trailer or after the gun and him all shoot before he kills of us. Trooper it that a Christian found curious being man who had fallen the floor after just grabbed And that’s what I did. I the holding shotgun a clean with his shot was immediately gun just and I shot. finger trigger. on the shotgun in Mr. When asked about the Mills’ questioned appellant Trooper Christian the hands, appellant got the it said she gave again at the scene where she the follow- placed it in bedroom his hands statement, ing recorded it, gonna get “because he said that he was so there, got Then when I I went into the just gave him.” I it to trailer, grabbed pair plyers he [sic] Christian, Trooper ap- In addition to the telling you you all me to call and tell pellant spoke police to two other officers. drop I DVP. gonna that was the Then he put Sergeant She told Manldns she down, cussing he me and laid then was shotgun in Mr. Mills’ hands because she I which then he walked. don’t remember appear wanted it to that he had threatened way he there. And went was [J.W.] daughter. further told her her She Ser- ... then he oh... he went back toward the daughter’s geant Mankins that it was her apparently and then he went bedrooms put gun in idea to Mr. Mills’ hands. talking I outside and was turned to [J.W.]. Maddy, Trooper WTienshe talked to she said he, apparently And then he must have daughter that her had not been her shotgun with the come around the trailer kitchen, but rather she had sent J.W. to through and come the door. shooting room before the occurred. At her appellant trial, The further stated that she did not appellant told the that before loaded, shotgun Mills, know if the and at that grabbed was run and shot Mr. “he she point, gun pulled shirt,'like out she knew hair and her this [J.W.] cabinet the kitch- kept Mr. Mills below (demonstrating), run the hall and her down him. en sink and shot in her across the floor he rolled her bedroom ball.” testified she did not like bowlin’ She police appellant The to the state de- went police happened tell the because she did evening tachment that where she consented daughter and not want to involve her did not questioning. During a third to further state- questions. want her to have to answer ment, appellant finally admitted that Mr. presented All the above evidence was shotgun was not armed with the when Mills said, testimony jury through Trooper she killed him. She Christian, Maddy, self-defense, Trooper Sergeant ory Man- thorough reading of the kins, appellant, transcript and the who was her own of the trial this case shows tape-recorded appellant permitted present first witness. statements con- appellant played for support were also siderable evidence to her claim that evidence, jury. hearsay In addition she acted in self-defense. The few testimony properly heard a considerable amount of statements which the trial court victim, especially precluded Fowler, character of the Hudgins, about the and Ms. *22 Brinkley propensity regard, relating jury just for violence. In that his to the were presented appellant portion evidence from at a small of the the evidence which the confrontations, appellant sought who had to and did least two witnesses introduce her possession Mr. Mills while he was defense. with appellant permitted a The was also firearm. The fact jury of the matter is that the showing records that Mr. present
to medical appellant’s heard the version of as events himself in the foot Mills had shot with a well as substantial evidence that contradicted riding night spot- around at shotgun while story her and established that had she made lighting majority As discussed in the deer. conflicting police. ap- statements to the The opinion, appellant the introduced into evi- pellant presented evidence to show that she fighting paraphernalia Mr. cock dence Mills’ suffered constant threats and abuse from Mr. engaged that he to show was “blood years; Mills for ten that she filed four do- appellant sports.” The further introduced Mills; against petitions mestic violence Mr. hunting trophies into evidence several and a police that she believed that the were never and mounted head of a boar stuffed to show abuse; going help escape her Mr. Mills’ expert an “hunting, that Mr. Mills was at that going she believed that Mr. Mills was tracking, killing.” and her, child, kill family; their and her and presented testimony appellant finally, only way The also the that she the believed who protect daughter of several witnesses related their obser- could herself and her was regarding relationship the vations between to shoot him. appellant. Mr. and the A Mills cousin of the hand, prosecution On the other the estab- Starkey, appellant, Michael who was also a many appellant opportu- lished that the had time, neighbor to her and Mr. Mills for some away get day from Mr. nities Mills on the appellant that testified he saw the and Mr. prosecution’s she shot him. The evidence fighting in Mills the middle of the road on appellant report- showed that the could have one occasion. He that Mr. kept said Mills waiting ed to her doctor that Mr. Mills was trying grab appellant by the her arm. for her appointment when she arrived for her Starkey further that Mr. testified Mills forcing and that he was her and her child to appellant would not let the be outside him; leave with that she could have asked for very long frequently and that he heard him help station, pharmacy, gas at the at the at telling get her to back in the Erma- house. house, at friend’s the convenience
jean Hudgins, permitted while not to relate store; simply and that she could have by appellant, statements made her stopped police at the passed station when she appellant testified that the nonetheless came following while Mr. Mills in her own car. approximately to her church five times in the prosecution’s evidence further estab- years appeared last two and a half and to be that appellant lished shot an unarmed very fearful of Mr. Mills. She said that the man away from seventeen feet him lulled appellant’s daughter “very clingy was to her bullet; put shotgun with one that she a in the mother and afraid.” Debra Fowler testified him; deceased’s hands after she killed that Mr. Mills called her house three times police every turn; she lied to the at and that looking for appellant during the week story changed day even on the she testi- before he was killed. fied in court when she claimed for the first Despite my dissenting the claims of grabbed col- time that Mr. Mills had [J.W.] leagues appellant precluded “rolled her in her bedroom across the floor from presenting support right evidence to her the- like bowlin’ ball” before she him. shot Obviously, hearing all guy. after of the evi lieve nice deceased was a As I dence, jury shows, simply plainly did not believe said earlier and as the record end, are appellant. society self-defense cases he was not! What land of would we credibility. Long ago, about all this Court live if men were allowed batter and explained question is “a abuse impunity. self defense their wives and children with fact, absolutely purely dependent say the The never law should that ldnd of con- witnesses, credibility weight acceptable. and the duct is It is At not. the same evidence; time, purely effect of a also do not make we want to rules that question.” Dickey, 48 allow someone to shoot kill an unarmed impunity 37 S.E. I have man Would man. bad —even jury? made the same determination as the appellant Because received fair trial It does matter. This Court cannot sec and because the evidence was more than guess sup its ond when decision is support verdict, jury’s sufficient to I ported clearly sufficient respectfully majority’s concur with the deci- *23 only here. case This Court can decide now, you sion in this case. And know trial. whether defendant received a fair story. rest of the did. She The three statements of the witnesses appellant sought to introduce clear were
ly hearsay In properly excluded. were Riley, v. 500 S.E.2d (1997), observed, this Court previously permitted
haveWe
introduction
er', authority does not translate into
engage foray in an unlimited into the issue. right
The court still possesses the to limit testimony; duplica- when becomes
tive, may accept court refuse to addi
tional witnesses.
(Footnote omitted.). Clearly, the trial court possesses prohibit right
also the intro- hearsay testimony.
duction of
Finally, I appellant would note that degree
could have been convicted first
murder mercy spent without could have rest of jail. her life in conclud- however,
ed, only guilty voluntary
lesser included offense of man-
slaughter. Now, nobody you be- wants notes in the (1995). particular S.E.2d 163 With relevance police being state car while she was trans- appeal, to the instant we also have held that ported arraignment for magistrate before a peculiarly province within “[i]t Princeton, which statement was not re- jury weigh question corded. self-defense, jury and the verdict of a County grand jury The Mercer returned adverse to that defense will not be set aside 11, February 2004, an indictment on charging manifestly unless it against weight degree Ms. Whittaker with first murder.9 At Syl. pt. McMillion, the evidence.” September conclusion of her trial on S.E. In arguing found Ms. Whittaker to be reversed, that her conviction should be guilty voluntary manslaughter.10 The trial many rulings identifies of the trial court, by January order entered court which she claims were erroneous. Be- adopted jury’s then finding guilt alleged cause these errors are considered sentenced Ms. Whittaker to a determinate review, under different standards we will years11 imprisonment term of ten in the specific discuss these more standards in con- penitentiary.12 state appeal This follows.13 nection they with the issues to pertain. which II. III. STANDARD OF REVIEW DISCUSSION case, In this we are Court, asked to re appeal On to this jury’s verse the verdict finding assigns Ms. Whittak- numerous errors to the circuit court’s (1991) § (Repl.Vol.2000) 9. W. Va.Code 61-2-1 Voluntary manslaughter punished shall be first-degree defines murder as imprisonment follows: a definite term of peni- in the tentiary which is not less than three nor more wait, by poison, lying Murder imprison- years. than person imprisoned pur- fifteen A ment, willful, starving, by any or deliberate provisions suant to the of this section is not premeditated killing, and of, or in the commission eligible parole prior having served a commit, arson, attempt kidnaping, or years minimum of three of his or her sentence assault, robbery, burglary, breaking sexual period required by or the provi- minimum entering, escape custody, from lawful or a felo- 62-12-13], sions of section thirteen [§ article ny manufacturing delivering offense of twelve, chapter sixty-two, greater. whichever is controlled substance as defined in article four III.A.2., infra, See Section for further discussion seq.], chapter sixty-a [§§ 60A-4-401 et of this voluntary manslaughter. of the elements of code, degree. is murder of the first All other