State Of West Va. v. Day

• Decision Date: 18 June 2010
• Docket Number: No. 34723.,34723.
• Citation: 696 S.E.2d 310,225 W.Va. 794
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appelleev.Michael DAY, Defendant Below, Appellant.

225 W.Va. 794

696 S.E.2d 310

West Virginia.

STATE of West Virginia, Plaintiff Below, Appelleev.Michael DAY, Defendant Below, Appellant.

No. 34723.

Supreme Court of Appeals of

Submitted Jan. 13, 2010.

Decided June 18, 2010.

Syllabus by the Court

1. “ ‘When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined.’ Syl. Pt. 8, in part State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).” Syl. Pt. 1 State v. White, 223 W.Va. 527, 678 S.E.2d 33 (2009).

2. “Where a party objects to incompetent evidence, but subsequently introduces the same evidence, he is deemed to have waived his objection.” Syl. Pt. 3, in part State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

3. “The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court.” Syl. Pt. 8 State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989).

4. “ ‘Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.’ Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).” Syl. Pt. 7, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006).

5. “ ‘ “In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.” Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103 (1971).’ Syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327 (1978).” Syl. Pt. 3, Voelker v. Frederick Business Properties Co., 195 W.Va. 246, 465 S.E.2d 246 (1995).

David R. Tyson, Tyson & Tyson, Huntington, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, R. Christopher Smith, Assistant Attorney General, Charleston, WV, for Appellee.

PER CURIAM:

Appellant Michael David Day was convicted by a jury in the Circuit Court of Cabell County, West Virginia, of first-degree murder and conspiracy. By order entered March 1, 2004, he was sentenced to life in prison without the possibility of parole.¹

In this appeal, Appellant argues his constitutional right to a fair trial was violated by the trial court's admission of testimony by a witness not qualified to testify as a crime scene reconstruction expert; by the State's introduction of certain photographs which were later deemed inadmissible; and by the court's denial of his motion for a jury view.

Upon careful consideration of the petition for appeal, the briefs and argument of counsel and the applicable legal authority, and for the reasons discussed below, we affirm Appellant's conviction and sentence.

I. Factual and Procedural Background

The facts of this case were much disputed at trial. At around dark on June 30, 2002, Appellant and two others, co-defendants Jarrett Bailey and Sunney Freeman, went fishing on the riverbank in Huntington, West Virginia. Approximately one hundred yards from there, Gerald King, a Vietnam veteran, lived at a campsite which he considered to be his home. According to Bailey, Mr. King walked with his dog down to the riverbank where the young men were fishing and drinking beer and asked them whether they had caught any fish and, if they did catch any, he would like to have it. Bailey testified that Mr. King invited them to his campsite to “check it out.” Mr. King left and at some point, returned to his campsite.

Thereafter, Frank and Desiree Scarberry, who had been out riding their four-wheeler, stopped by Mr. King's campsite for a brief visit.² Mr. and Mrs. Scarberry testified that while they were there, Appellant, Bailey and Freeman approached the campsite and, according to Mrs. Scarberry, the young men asked them if they were cops. Bailey began talking with Mr. Scarberry while Appellant and Freeman looked around the campsite and into Mr. King's tent. ³ At some point, either Appellant or Freeman threw a bottle of beer down on the ground at the campsite. Mr. King asked the young men not to litter because that was his home. Mrs. Scarberry testified that, in response, Freeman began cursing at Mr. King, calling him a “bum” and asking him what he was going to do about it. After a few minutes, Bailey diffused the situation and all three of the young men left the campsite and returned to the riverbank. Mr. and Mrs. Scarberry each testified that they felt uneasy about the young men and although Mr. Scarberry warned Mr. King to be careful of them, Mr. King was not concerned.

For his part, Bailey generally corroborated the Scarberrys' testimony about what occurred at the campsite. Moreover, Mrs. Scarberry positively identified Appellant, Bailey and Freeman from a photographic lineup.⁴ However, contrary to the testimony of both Mrs. Scarberry and Bailey, Appellant denied being at Mr. King's campsite while the Scarberrys were there.

According to co-defendant Bailey, the three men returned to the riverbank to fish and drink beer. Bailey testified that Appellant briefly left their fishing spot to use the bathroom and when he returned, he started jumping up and down and, referring to Mr. King, said “Let's go kick his ass.” Both Bailey and Freeman agreed to go to Mr. King's campsite.

In contrast to Bailey's testimony, Appellant testified that it was Freeman who left the fishing spot to go into the woods to use the bathroom and to get some firewood. According to Appellant, while Freeman was gone, Appellant and Bailey heard him scream, at which time Bailey began running up the trail in the direction of Mr. King's campsite. Appellant stated that he did not follow right away because he had a fish or snag on the line. A few minutes later, however, he heard a loud noise and began to run up the trail towards the campsite. Appellant testified that along the way, he picked up a long stick.

When the three men arrived at the campsite, it was after dark. Bailey's and Appellant's versions of what next occurred were quite different; ⁵ however, the tragic ending was the same-the violent death of Mr. King.

Bailey testified that he saw Freeman confront Mr. King in front of his tent where the two exchanged words. According to Bailey, Freeman told Mr. King “he was going to kick his ass.” Freeman then proceeded to hit Mr. King in the face with his fist. Mr. King fell to the ground where Freeman put him into a headlock. Freeman hollered for Bailey to “get ahold of him,” at which time Bailey held Mr. King in a headlock while Freeman and Appellant began kicking him. When Bailey got up off of Mr. King for fear of being kicked, Mr. King started to get up, too, but Freeman hit him on the head with a beer bottle so hard that it broke.⁶ When Mr. King fell to the ground, the men continued kicking him and, according to Bailey, Appellant took a stick, which Bailey described as a thick tree branch, “and started hitting [Mr. King] in the sides with it, in the arms and stuff.”

Bailey admitted that he used an aluminum-like mop handle as a weapon, hitting Mr. King with it so hard that it bent. Though Bailey testified he then threw it over the embankment, police never recovered it. He then picked up a bamboo stick and hit Mr. King with it until it frayed. Bailey then saw Freeman take out his knife, open it, and stab Mr. King in the leg. Freeman then closed the knife and threw it towards the river. According to Bailey, when he saw Freeman's hand bleeding heavily, he took off his shirt and gave it to him to wrap it up. At about that time, William Porter ⁷ came up behind Bailey swinging a six-foot long stick and the two men began fighting. Bailey testified that he chased Mr. Porter around in an effort to get the stick that he had been swinging and they eventually ended up fighting at Mr. Porter's campsite. While he was fighting with Mr. Porter, Bailey saw Appellant close to the embankment, standing over Mr. King, who was lying on the ground. Appellant hit him in the head with the tree branch. According to Bailey, Appellant swung the branch “[k]ind of over his head and down” at least twice and Bailey “could hear the hit, like it sounded painful.” Meanwhile, Bailey could see Freeman hitting Mr. Porter with “a two-by-six” in the head in another area of the campsite. Bailey took the stick he had taken from Mr. Porter and hit him with it.

Bailey testified that he could hear Appellant and Mr. King over the embankment and when he walked down the embankment, he saw Appellant stomping Mr. King in the chest and head while Mr. King was lying on the ground. It was then that Bailey yelled to Appellant, “Let's go. Let's get out of here.” Bailey testified that when the three men left, Mr. King was still alive.

In sharp contrast, Appellant testified that the entire altercation with Mr. King and Mr. Porter lasted no longer than three to four minutes and occurred much differently than Bailey described. According to Appellant, as he walked toward the campsite, he saw Mr. King as he “rose up out of the trail. Apparently he had already got knocked down.” Appellant testified that Freeman was bent over and screaming that he had been cut. Appellant then saw a shadow (which turned out to be Mr. King's) and “swung the stick and hit him in the upper part of the body which could be head, shoulders, chest, somewhere around this side or the opposite.” Appellant admitted that he may have struck Mr. King in the throat. Contrary to Bailey's testimony, it was Appellant...