455 S.E.2d 516 (W.Va. 1994), 22031, State v. McGinnis

Docket Nº:22031.
Citation:455 S.E.2d 516, 193 W.Va. 147
Opinion Judge:CLECKLEY, Justice:
Party Name:STATE of West Virginia, Plaintiff Below, Appellee, v. Lyle B. McGINNIS, Jr., Defendant Below, Appellant.
Attorney:Jacquelyn I. Custer, Sr. Asst. Atty. Gen., Charleston, for appellee. John J. Polak, Philip J. Combs, King, Allen & Arnold, Charleston, Frank W. Helvey, Jr., Appellate Public Defender, Charleston, for appellant.
Judge Panel:BROTHERTON, C.J., did not participate.
Case Date:December 08, 1994
Court:Supreme Court of Appeals of West Virginia

Page 516

455 S.E.2d 516 (W.Va. 1994)

193 W.Va. 147

STATE of West Virginia, Plaintiff Below, Appellee,

v.

Lyle B. McGINNIS, Jr., Defendant Below, Appellant.

No. 22031.

Supreme Court of Appeals of West Virginia.

December 8, 1994

Submitted Sept. 20, 1994.

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[193 W.Va. 151] Syllabus by the Court

1. When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction.

2. Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.

Jacquelyn I. Custer, Sr. Asst. Atty. Gen., Charleston, for appellee.

John J. Polak, Philip J. Combs, King, Allen & Arnold, Charleston, Frank W. Helvey, Jr., Appellate Public Defender, Charleston, for appellant.

CLECKLEY, Justice:

The appellant and defendant below, Lyle B. McGinnis, Jr., was convicted in the Circuit Court of Cabell County of murder in the first degree with a recommendation of mercy. The defendant appeals from the guilty verdict. The defendant asserts twelve assignments of error. Because we find no error or merit in the remaining assignments of error, we limit our review to the admission of evidence of uncharged misconduct under Rule 404(b) of the West Virginia Rules of Evidence. 1

I.

Shortly after 5:00 p.m. on Wednesday, November 29, 1989, the body of Kathy McGinnis, the defendant's wife, was discovered behind the Gateway Plaza Shopping Center in St. Albans, West Virginia. An opaque plastic bag was secured around the neck of Mrs. McGinnis by a single strand of telephone wire. The murder investigation indicated that acrylic fingernails broken at the time of the murder suggested that the victim was murdered in the bedroom of her home. Dr. Irvin Sopher, the State Medical Examiner,

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[193 W.Va. 152] testified that Mrs. McGinnis had been murdered ten to twelve hours earlier, but her body had been at the Gateway Plaza location for less than ten minutes when found. The death certificate noted that Mrs. McGinnis died as a result of ligature strangulation. However, Dr. Sopher testified that he could not rule out that the plastic bag contributed to her death.

The victim's body was not identified until the following morning by Sharon Peoples, a family friend. Mrs. McGinnis and her husband had been reported missing the previous night by Ami McGinnis, their daughter, after she was unable to locate her parents. On November 29, 1989, Ami and her boyfriend, Lenny Rosanoff, went to the McGinnis home and discovered that the house was locked and in good order, except that the family dog was left unattended. Later in the evening, Ami returned to the house and was still unable to locate her parents. She then called Sharon Peoples and Pat Bouillet, who were friends of Mrs. McGinnis. Ms. Peoples and Ms. Bouillet went over to the McGinnis house. They observed that there were no signs of a struggle. However, Mrs. McGinnis's purse was found at the home on the kitchen floor. At the time of these events, no one knew the whereabouts or fate of Lyle B. McGinnis, Jr.

On November 30, the same day Mrs. McGinnis's body was identified, the defendant was discovered beside his wrecked jeep in Carter County, Kentucky. The jeep had plummeted down a steep roadside embankment. When the defendant was discovered, the defendant asked for the police, claiming that he and his wife had been kidnapped. A telephone cord was wrapped around the defendant's neck, wrist, and ankles, and a similar cord was removed from his pants pocket. The cord from his pocket was forensically matched to the telephone wire that was found around his wife's neck. The defendant was taken to King's Daughters' Hospital in Ashland, Kentucky. Upon discovery of the defendant's whereabouts, Jim Wise, an agent for the Federal Bureau of Investigation (FBI), went to King's Daughters' Hospital. Agent Wise interviewed the defendant after first asking emergency room physicians whether the defendant was able to communicate. Agent Wise identified himself as an FBI agent to the defendant.

After asking about his wife, the defendant related the following to Agent Wise. Shortly after midnight on Tuesday, November 28, 1989, Mrs. McGinnis answered the telephone and told Mr. McGinnis that someone was coming by for a late delivery. When he answered the door, three white males supposedly forced their way inside and subdued him and Mrs. McGinnis. 2 Mr. McGinnis then said that he was bound up and put into his jeep with two of his abductors, was forced to ingest a white powdery substance, and lost consciousness. When he awoke the following morning, Mr. McGinnis claimed that he found himself in a barn-like structure with his abductors. The kidnappers then tortured the defendant by burning him several times with a heated key and cutting clumps of hair from his head. They also demanded that the defendant perform unspecified criminal acts. Later that day, Mr. McGinnis claimed that he was taken to the country, tied to the jeep's front seat, and something was placed on the gas pedal of the jeep.

After listening to the defendant's version of the events, Agent Wise attempted to elicit more information from the defendant on the three supposed kidnappers. The defendant claimed that he did not know who the kidnappers were, but he did provide a description. The various law enforcement entities involved in this case continued to investigate the murder of Kathy McGinnis and the reported kidnapping of the defendant. Three men matching the descriptions the defendant had given the police were investigated. When it was determined that these men had alibis for the periods in question, the defendant became the prime suspect in his wife's murder. The police and the FBI questioned various witnesses who stated that they had seen a Jeep Wagoneer similar to the defendant's or had interacted with someone fitting

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[193 W.Va. 153] the defendant's description in Kentucky. One witness even testified that she had seen a Jeep Wagoneer that looked like the defendant's behind the Gateway Shopping Plaza shortly before the victim's body was discovered. All the witnesses stated that they never saw another individual with the defendant.

On February 22, 1990, grand jury proceedings were conducted in Cabell County. The State presented evidence on the murder of Kathy McGinnis and on the defendant's alleged embezzlement from the Nighbert Land Company from January, 1987, to June, 1989. The grand jury returned an indictment charging the defendant with embezzlement and with first degree murder. A warrant for the defendant's arrest was issued and executed the same day. 3

On March 16, 1990, the trial court held a hearing to consider certain pretrial motions. One of the defense motions made during this hearing was a motion for election or severance of the murder and embezzlement charges. The State did not object to the severance as long as the State was allowed to determine the order in which the counts would be tried. The trial court then granted the motion to sever the charges. The State ultimately elected to pursue the embezzlement charges first.

The trial for the murder of Kathy McGinnis began on Tuesday, July 31, 1990, and concluded on Saturday, August 18, 1990. After three weeks of evidence, the jury found the defendant guilty of murder in the first degree and recommended mercy. The defendant appeals this conviction.

II.

The defendant contends that the admission and use of evidence under Rule 404(b) of the West Virginia Rules of Evidence 4 were both excessive and abusive. Because we reverse this conviction, we find it is helpful to discuss at length the parameters of Rule 404(b) in order to provide circuit courts with future guidance. We cannot escape the fact that Rule 404(b) determinations are among the most frequently appealed of all evidentiary rulings, and the erroneous admission of evidence of other acts is one of the largest causes of reversal of criminal...

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