State v. Surbaugh, 11–0561.

• Decision Date: 20 November 2012
• Docket Number: No. 11–0561.,11–0561.
• Citation: 737 S.E.2d 240,230 W.Va. 212
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff below, Respondent, v. Julia SURBAUGH, Defendant below, Petitioner.

230 W.Va. 212

737 S.E.2d 240

STATE of West Virginia, Plaintiff below, Respondent,

v.Julia SURBAUGH, Defendant below, Petitioner.

No. 11–0561.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 18, 2012.

Decided Nov. 20, 2012.

Syllabus by the Court

1. “In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

2. “A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

3. “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.” Syl. pt. 1, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774 (2003).

4. “A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.” Syl. pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

5. “A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.” Syl. pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

6. “Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution.” Syl. pt. 12, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

7. “Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a testimonial statement is, generally, a statement that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Syl. pt. 8, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

8. “Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a witness's statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness's statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness's statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency.” Syl. pt. 9, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

9. “A court assessing whether a witness's out-of-court statement is “testimonial” should focus more upon the witness's statement, and less upon any interrogator's questions.” Syl. pt. 10, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

10. “In order to qualify as an excited utterance under W. Va. R. Evid. 803(2):(1) the declarant must have experienced a starling event or condition; (2) the declarant must have reacted while under the stress or excitement of that event and not from reflection and fabrication; and (3) the statement must relate to the startling event or condition.” Syl. pt. 7, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995).

11. “Within a W.Va. R. Evid. 803(2) analysis, to assist in answering whether a statement was made while under the stress or excitement of the event and not from reflection and fabrication, several factors must be considered, including: (1) the lapse of time between the event and the declaration; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; and (5) the subject matter of the statements.” Syl. pt. 8, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995).

12. “Where police have given Miranda warnings outside the context of custodial interrogation, those warnings must be repeated once custodial interrogation begins. Absent an effective waiver of these rights, interrogation must cease.” Syl. pt. 4, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995),

13. “An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant's belief must be subjectively reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant's belief must be objectively reasonable when considering all of the circumstances surrounding the occupant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly overruled.” Syl. pt. 5, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009).

14. “Where it is determined that the defendant's actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.” Syl. pt. 4, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009).

15. “As a general rule, a trial court is under no duty to correct or amend an erroneous instruction, but where, in a criminal case, a defendant has requested an instruction, defective in some respect, on a pertinent point vital to his defense, not covered by any other charge, and which is supported by uncontradicted evidence; and because of the state of the evidence relied upon for conviction, and the peculiar facts and circumstances of the case, a failure to instruct on this important point, may work a miscarriage of justice, it is error for the trial court not to correct the instruction and give it in proper form.” Syl., State v. Brown, 107 W.Va. 60, 146 S.E. 887 (1929).

16. If evidence of the good character of the defendant is properly admitted, the jury should be instructed that this good character evidence may be considered in connection with all the other evidence to generate reasonable doubt. An instruction which states or suggests that good character, standing alone, may generate reasonable doubt is erroneous.

Richard H. Lorensen, Esq., WV Public Defender Services, Charleston, WV, for Petitioner.

Dwayne C. Vandevender, Esq., Prosecuting Attorney of Webster County, Webster Springs, WV, for Respondent.

BENJAMIN, Justice:

This case involves the appeal of the petitioner Julia Ann Surbaugh (hereinafter “petitioner”) of her sentence of life without mercy, imposed in the Circuit Court of Webster County by order entered on June 4, 2010, as recommended by the jury which found the petitioner guilty of first degree murder. The petitioner assigned four errors committed by the trial court, including the admission of the decedent's statements, failure to give a Harden¹ instruction, failure to give a good character instruction and the failure to suppress the petitioner's third statement to the police. For the reasons set forth herein, we reverse the judgment of the circuit court and remand this case for a new trial.

I.FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Julia Ann Surbaugh, was indicted by the Webster County grand jury in January of 2010, charged with the first degree murder of her husband, Michael Surbaugh. At trial, the State proceeded on a theory that the shootings were the result of Mr. Surbaugh's intention to leave his wife to start a life with his paramour. The State also introduced evidence of a financial motivation for the killing: receipt of retirement benefits and an insurance policy. The petitionerargued self-defense and evidence of her good character.

On the morning of August 6, 2009, Mr. Surbaugh was...