State v. Farmer

Decision Date14 June 1991
Docket NumberNo. 19753,19753
Citation406 S.E.2d 458,185 W.Va. 232
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Martha FARMER, Defendant Below, Appellant.

Syllabus by the Court

1. "An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made." Syl. pt. 2, State v Young, 166 W.Va. 309, 273 S.E.2d 592 (1980).

2. "Rule 803(2) of the West Virginia Rules of Evidence correctly contains the heart of the hearsay exception that was formally called a spontaneous declaration and which is now termed the excited utterance exception to the hearsay rule. The more detailed treatment of this exception contained in Syllabus Point 2 of State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980), is helpful to further refine the contours of the rule." Syl. pt. 1, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

3. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. W.Va.R.Evid. 401." Syl. pt. 2, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).

4. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, W.Va. , 301 S.E.2d 596, 599 (1983)." Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

David C. Smith, Johnston, Holroyd & Associates, Princeton, for Farmer.

Teresa A. Tarr, Asst. Atty. Gen., Charleston, for State.

PER CURIAM:

The appellant, Martha Farmer, appeals her conviction by a jury in the Circuit Court of Mercer County of malicious wounding. The appellant contends that her conviction should be reversed and that she should be awarded a new trial on the grounds that the trial court erred in: (1) admitting certain statements made by the victim, Basil Tines, to third parties after the shooting; (2) failing to declare a mistrial when the investigating officer allegedly made statements concerning the appellant's prior record; and (3) admitting into evidence statements regarding prior sexual relations between the appellant and the victim. The appellant also contends that the jury's verdict is contrary to the law and the evidence. This Court is of the opinion that there is no reversible error in this case.

On February 4, 1989, the appellant, who was then 23 years of age, travelled by bus from Florida to visit 83-year-old Basil Tines. The appellant telephoned Mr. Tines and requested that he meet her at the Princeton bus station. Mr. Tines picked up the appellant early that morning at the bus station, and they went to a restaurant. Later, the two of them returned to Mr. Tines' home in Island Creek.

At approximately 7:00 o'clock that evening, the appellant fired three shots from Mr. Tines' .38 caliber handgun. Although it is unclear from what angle these gunshots were fired, one of the bullets struck Mr. Tines in the center of his forehead. 1 She then threw the gun down and fled the house without wearing shoes or a jacket despite the cold temperature.

Mr. Tines called his neighbor, Titus Harris, and asked him to come over because he had been shot. Mr. Harris called another neighbor, David E. Martin, who then telephoned the state police to report the incident. When Mr. Harris and Mr. Martin arrived at Mr. Tines' residence, they found the appellant barefoot in his backyard in a hysterical state. When Mr. Harris and Mr Martin went into the house, they found Mr. Tines sitting in a chair in the living room near a "pool of blood." Mr. Martin then called the state police to report that Mr. Tines had been shot and to request an ambulance. When the state police arrived, Trooper Larry Bailes had an opportunity to briefly speak to Mr. Tines before he was taken to the hospital. The appellant was arrested and she gave a statement to Trooper K.J. Foreman.

The appellant was indicted by a grand jury on one count of malicious wounding. The appellant was found competent to stand trial, and was tried before a jury on August 15, 1989. The jury returned a verdict finding that the appellant was guilty of malicious wounding by use of a firearm as charged in the indictment. The appellant was sentenced to an indeterminate term of not less than two nor more than ten years in Pruntytown Correctional Center, and was to serve a minimum of three years before being eligible for parole since the crime was committed with the use of a firearm. This matter is now before the Court on an appeal of that conviction.

I

The appellant first contends that the trial court erred in admitting into evidence statements made by the victim after the shooting to his neighbor, Mr. Martin, and to State Trooper Larry Bailes, on the ground that those statements were inadmissible hearsay. The appellant argues that Mr. Tines' statement to Mr. Martin was not spontaneous since Mr. Tines had the opportunity to reflect from the time he called Mr. Martin until he arrived five or six minutes later. Furthermore, the appellant asserts that these statements are unreliable since Mr. Tines testified at the trial that he did not recall why the appellant shot him. 2

The appellant also contends that the statement made by Mr. Tines to Trooper Larry Bailes did not fall within the excited utterance exception to the hearsay rule since the statement was made in response to questioning which occurred one hour after the shooting. The appellant further argues that Mr. Tines had the opportunity to discuss the shooting with his friends during that period.

The record in the case now before us indicates that Mr. Harris and Mr. Martin arrived at the scene of the incident approximately five or six minutes after Mr. Tines had called them for help. Mr. Martin testified that when he entered Mr. Tines' home, he found Mr. Tines sitting in a chair in the living room near "a puddle of blood." Mr. Martin further testified that Mr. Tines told him that the appellant had grabbed his gun and demanded all of his money. 3 Mr. Martin further testified that Mr. Tines "was mad and he had reason."

The statement made by Mr. Tines to Trooper Larry Bailes, forty to forty-five minutes after the shooting, was the same statement he had made earlier to Mr. Martin. Trooper Bailes testified that Mr. Tines told him that the appellant had grabbed his gun and demanded that he give her his money. Trooper Bailes further testified that Mr. Tines stated that when he refused to give the appellant the money, she shot him.

Prior to our adoption of the Rules of Evidence, this Court recognized the spontaneous declaration exception to the hearsay rule in State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980). In syllabus point 2 of Young, we reiterated six factors, outlined in Ward v. Raleigh County Park Board, 143 W.Va. 931, 105 S.E.2d 881 (1958), that should be considered by the trial court in determining whether a statement or declaration is admissible as an excited utterance exception to the hearsay rule:

An alleged spontaneous declaration must be evaluated in light of the following factors: (1) The statement or declaration made must relate to the main event and must explain, elucidate, or in some way characterize that event; (2) it must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair; (3) it must be a statement of fact and not the mere expression of an opinion; (4) it must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design; (5) while the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; and (6) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.

Following the adoption of the Rules of Evidence, more specifically, W.Va.R.Evid. 803(2), 4 we pointed out in syllabus point 1 of State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987): "Rule 803(2) of the West...

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