State Of West Va. v. Lively
Decision Date | 16 June 2010 |
Docket Number | No. 34856.,34856. |
Citation | 226 W.Va. 81,697 S.E.2d 117 |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia, Plaintiff Below, Appelleev.Charles J. LIVELY, Defendant Below, Appellant. |
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Syllabus by the Court
1. Syl. Pt. 3 State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. Syl. Pt. 1 State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
3. Syl. Pt. 2 State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
4. “It is presumed a defendant is protected from undue prejudice if the following requirements are met: (1) the prosecution offered the evidence for a proper purpose; (2) the evidence was relevant; (3) the trial court made an on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and (4) the trial court gave a limiting instruction.” Syl. Pt. 3 State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).
5. Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
6. “[T]he question of whether a jury was properly instructed is a question of law, and the review is de novo.” Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).
7. Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
8. Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
9. “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).
David Schles, Esq., Charleston, WV, for Appellant.
Sidney Bell, Esq., McDowell County Prosecuting Attorney, Welch, WV, for Appellee.
This case is before the Court upon an Order entered August 11, 2008, by the Circuit Court of McDowell County, West Virginia, resentencing the Defendant, Charles J. Lively, to life with a recommendation of mercy based upon the jury conviction for the felony murder of Dr. Ebb K. (“Doc”) Whitley, Jr. The Defendant was also convicted of first degree arson as the underlying felony supporting the felony murder conviction; however, no additional sentence for the arson conviction was imposed by the trial court.1 The Defendant argues that the trial court erred: 1) by allowing the admission of a statement of a confidential informant because the statement was hearsay and violated the Confrontation Clause; 2) by failing to order the State to disclose to the Defendant the identity of the alleged confidential informant and any exculpatory evidence or information relevant to credibility or for impeachment in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 3) by allowing the State to admit other crimes evidence under West Virginia Rule of Evidence 404(b), because such evidence created extreme unfair prejudice against the Defendant and had no or only slight probative value; 4) by instructing the jury regarding the concerted action principle because the evidence did not support the theory; 5) by failing to set aside the verdict due to insufficient evidence for the jury to convict the Defendant for first degree arson; 6) by permitting the State to publish a statement of Brian Salyers that, even if portions of it were properly admissible, included irrelevant and improper opinion testimony and discussions of unfairly prejudicial alleged bad acts and character evidence concerning the Defendant, Tommy Owens, and others; 2 and 7) by permitting cumulative errors during the trial which resulted in an unfair trial requiring reversal. Based upon a review of the parties' briefs, their respective arguments, the record, and all other matters before the Court, the decision of the trial court is affirmed.
On March 15, 2005, Dr. Whitley died as a result of asphyxiation due to smoke inhalation and thermal burns over ninety percent of his body 3 that he suffered in a house fire at his residence in Iaeger, West Virginia. Firefighters found his body on the floor by his bed in his second floor bedroom. At the time of his death, Dr. Whitley was seventy years old and was nearly paralyzed, unable to walk and with little use of his hands, after falling in his home in 2000. Despite his physical condition, he by all accounts remained independent and continued to run a pain clinic, which was located next door to his Iaeger residence.
The victim actually had two residences in the Iaeger area, the one in Iaeger where he died, and another located outside of Iaeger on Coon Branch Mountain, where he had been residing with his wife until about a week prior to his death. At that time, Dr. Whitley decided to move out of his Coon Branch home because he was unhappy. Dr. Whitley had informed his sons, Jack and Jeff, that he wanted to move to his Iaeger home. Before his sons returned to Iaeger to move their father, Dr. Whitley moved in with Kathy Lively,4 the Defendant's mother. Ms. Lively testified that she had worked for Dr. Whitley for twenty-six years and her primary job was his nurse; however, she had also helped care for him. As part of her job duties, Ms. Lively was a signatory on Dr. Whitley's bank account; wrote...
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