State v. Rollins
Decision Date | 17 June 2014 |
Docket Number | No. 13–0099.,13–0099. |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Gary Lee ROLLINS, Defendant Below, Petitioner. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” Syl. pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
2. “If either the prosecutor or defense counsel believes the other has made improper remarks to the jury, a timely objection should be made coupled with a request to the court to instruct the jury to disregard the remarks.” Syl. pt. 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987).
3. “Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.” Syl. pt. 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).
4. “ .’ .” Syl. pt. 3, State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996).
5. Syl. pt. 3, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013).
6. Syl. pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
7. Syl. pt. 9, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
8. Syl. pt. 10, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
9. “Third-party testimony regarding an out-of-court identification may in certain circumstances be admissible when the identifying witness testifies at trial because both the identifying witness and the third party are then available for cross-examination.” Syl. pt. 6, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981).
10. “It is within a trial court's discretion to admit an out-of-court statement under Rule 803(1), the present sense impression exception, of the West Virginia Rules of Evidence if: (1) The statement was made at the time or shortly after an event; (2) the statement describes the event; and (3) the event giving rise to the statement was within a declarant's personal knowledge.” Syl. pt. 4, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), overruled on other grounds by State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013).
11. Syl. pt. 6, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).
12. Syl. pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006).
13. Syl. pt. 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
14. “In order to preserve for appeal the claim of unfair surprise as the basis for the exclusion of evidence, the aggrieved party must move for a continuance or recess.” Syl. pt. 4, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
15. “Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.” Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).
W. Brad Dorsey, Esq., Callaghan & Callaghan, PLLC, Summersville, WV, for Petitioner.
Patrick Morrisey, Esq., Attorney General, Christopher S. Dodrill, Esq., Assistant Attorney General, Charleston, WV, for Respondent.
This case is before the Court on appeal by the petitioner, Gary Lee Rollins, of the December 18, 2012, order of the Circuit Court of Nicholas County convicting Mr. Rollins of first degree murder of his wife, Teresa Rollins. He did not receive a recommendation of mercy. After a thorough review of the record presented for consideration, the briefs, the legal authorities cited, and the arguments of parties, we find that the circuit court did not commit any reversible error. Therefore, we affirm Mr. Rollins's conviction.
On October 5, 2009, Ms. Rollins's dead body was found pinned underwater in a pond by a fallen tree.1 The pond is located on property owned by her and her husband, Mr. Rollins, in Nettie, West Virginia. Mr. and Ms. Rollins made their living by farming vegetables on the property.
According to Mr. Rollins, he last saw Ms. Rollins alive on the morning of October 5, 2009, around 7:30 a.m. He claimed that she was preparing to set out Halloween decorations as he left to clear a path on the property where he liked to hunt deer. Around 9:00 a.m., Mr. Rollins returned to the house to wait for the family's hired help for the farm—Tanya Wagner, April Bailes, and Kay Rudd—to arrive. Upon their arrival, the three women and Mr. Rollins proceeded to work in the fields. At approximately 11:30 a.m., all four broke for lunch.
While the women and Mr. Rollins had lunch together, Ms. Rudd asked about the whereabouts of Ms. Rollins. Mr. Rollins told Ms. Rudd that he would go look for his wife. Mr. Rollins stated that he checked places where he thought she might be: the storage building and inside the home. After failing to find her there, he stated that he went to look for her near the corn field because he believed she might be collecting corn stalks to decorate the front porch. It was while he was near the corn field that he claimed to have first seen his...
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