State Of West Va. v. Morris
| Decision Date | 15 September 2010 |
| Docket Number | No. 35339,35339 |
| Parties | STATE OF WEST VIRGINIA, Plaintiff-Appellee v. RICHARD LEWIS MORRIS, Defendant-Appellant |
| Court | West Virginia Supreme Court |
Appeal from the Circuit Court of Jefferson County
AFFIRMED
Joel Weinstein, Esq.
John P. Adams, Esq.
Public Defender Corporation
Martinsburg, West Virginia
Attorney for Appellant
Darrell McGraw, Jr., Esq.
Attorney General
R. Christopher Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
1. .” Syllabus Point 1, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999).
2. “' “ Syl. pt. 5, Mayhorn v. Logan Medical Foundation, 193 W. Va. 42, 454 S.E.2d 87 (1994).” Syllabus Point 4, State v. Wood, 194 W. Va. 525, 460 S.E.2d 771 (1995).
3. “Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules.” Syllabus Point 1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990).
4. “The hearsay rule excludes hearsay evidence only when offered 'as evidence of the truth of the matter asserted'; and does not operate against such testimony offered for the mere purpose of explaining previous conduct.” Syllabus Point 1, State v. Paun, 109 W. Va 606, 155 S.E.2d 656 (1930).
5. “In order for a lay witness to give opinion testimony pursuant to Rule 701 of the West Virginia Rules of Evidence (1) the witness must have personal knowledge or perception of the facts from which the opinion is to be derived; (2) there must be a rational connection between the opinion and the facts upon which it is based; and (3) the opinion must be helpful in understanding the testimony or determining a fact in issue.” Syllabus Point 2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999).
6. Syllabus Point 2, State v. Osakalumi, 194 W. Va. 758, 461 S.E.2d 504 (1995).
Richard Lewis Morris, Appellant, appeals his conviction for one count of felony Driving Under the Influence Causing Death and two counts of misdemeanor Driving Under the Influence Causing Injury. Herein, he asserts that the circuit court erred in permitting the admission of hearsay testimony, that the circuit court erred by failing to rule on a motion in limine thereby allowing a witness to testify, that the police failed to preserve potentially exculpatory evidence, and that the circuit court has not yet ruled on a Rule 35 motion for a reduction or correction of sentence. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the Appellant's conviction is affirmed.
This case involves a fatal car accident that occurred on September 20, 2007, on Route 340 in Jefferson County. When Deputy Sheriff Vincent Henry Tiong responded to the emergency call, he found Cynthia Hose and David Weiss entrapped in their overturned car, a red 1997 Hyundai Elantra. Appellant and his wife, Tammy Green-Morris, who were driving a white 1997 Nissan Maxima, were also found at the scene. 1 When Deputy Tiong spoke to the Appellant, he noted that his eyes were glassy and that there was a strong odor of alcohol on Appellant's breath. Appellant appeared to be laughing. When asked what was funny, Appellant first said, “nothing, ” but then said “the accident.” Green-Morris also had an odor of alcohol on her breath, and had bloodshot eyes and slurred speech.
As a result of the accident, Mr. Weiss suffered multiple lacerations on his arms, three broken ribs, and a contusion on his spine. The driver, Cynthia Hose, suffered serious injuries as a result of the accident and died 30 days later. According to the testimony of Mr. Weiss, Ms. Hose suffered from a severed spinal cord and brain damage before she died, among other injuries. Appellant was indicted for one count of felony DUI Causing Death and two counts of misdemeanor DUI Causing Injury. His sole defense at trial was that he was not driving the vehicle at the time the accident occurred.
At trial, Deputy Tiong testified that he determined the causes of the accident to be speed and failure to maintain control. Paula Bryant, a medical technologist at Jefferson Memorial Hospital, testified that she performed a toxicology test and found Appellant's blood alcohol level to be.20 grams/deciliter, which is above the legal limit for operating a vehicle. David Bennett, a phlebotomist at Jefferson Memorial Hospital who drew blood from Appellant on the night of the accident, testified that he noted bruising on Appellant's chest. When asked at trial what kind of bruising was on Appellant's chest, Bennett testified “seat belt, ”... “[l]ike he was wearing a seat belt on his chest all the way down to his hip.” Bennett testified that the bruising was on Appellant's left shoulder to right hip. Mr. Bennett also testified that Appellant appeared intoxicated and acted in a combative manner.
Appellant's wife, Tammie Green-Morris, testified at trial that the Appellant was driving the Nissan Maxima on the night of the accident. She stated that they had been drinking most of the day and that according to the speedometer, Appellant was driving 120 miles per hour. She further testified that after the accident, Appellant asked her to run from the scene. Green-Morris testified that she suffered bruising from her right shoulder to underneath her left breast. She was eventually convicted of knowingly permitting driving under the influence.
Two witnesses, Stacey Tothill and Jim Lewis, testified that the Nissan Maxima sped past them at a very high rate of speed. Neither directly witnessed the accident but saw the accident scene following the crash. Mr. Tothill testified that he estimated the Nissan Maxima was traveling more than twenty miles per hour over the speed limit, and Mr. Lewis stated that it passed him at a speed of more than 100 miles per hour.
Following a jury trial, on October 8, 2008, the jury found Appellant guilty of one count of DUI Causing Death and two counts of DUI Causing Injury. On January 21, 2009, Appellant was sentenced to 2 to 10 years on the felony count, and 1 year on each of the two misdemeanor counts, to run consecutively.
“Concerning our standard of review of the circuit court's exclusion of evidence at issue, we note that '[r]ulings 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.'”
State v. Guthrie, 205 W. Va. 326, 332, 518 S.E.2d 83, 89 (1999)).
“The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.” Syl. Pt. 6, State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983).
Syl. Pt. 4, State v. Wood, 194 W. Va. 525, 460 S.E.2d 771 (1995)(internal citations omitted).
In the instant appeal, Appellant alleges four assignments of error. We will address each of them in turn.
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