State v. Blickenstaff, 16-0666.
| Decision Date | 13 September 2017 |
| Docket Number | No. 16-0666.,16-0666. |
| Citation | 804 S.E.2d 877 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Michael L. BLICKENSTAFF, Defendant Below, Petitioner |
Dana F. Eddy, Esq., Director Public Defender Services, Scott E. Johnson, Esq., Public Defender Services, Appellate Advocacy Division, Charleston, West Virginia, Counsel for the Petitioner
Robert L. Hogan, Esq., Deputy Attorney General, Charleston, West Virginia
Brandon C. H. Sims, Esq., Assistant Prosecutor, Jefferson County Prosecuting Attorney, Charles Town, West Virginia, Counsel for the Respondent
The Defendant, Michael Blickenstaff, was indicted for kidnapping his ex-girlfriend, Nicole M., after he allegedly drove her around for five hours at knifepoint. Nicole M. did not physically resist the kidnapping.
The State argued at trial that Nicole M. did not physically resist because she feared Mr. Blickenstaff after he subjected her to domestic violence during their previous relationship. It presented expert witness testimony that domestic violence victims are often more compliant with their abusers out of fear. The State also introduced into evidence Mr. Blickenstaff's previous conviction for second-degree domestic assault against Nicole M. At the end of his trial, Mr. Blickenstaff was convicted of kidnapping and sentenced to life without parole.
Mr. Blickenstaff argues that the trial court abused its discretion in the following two ways: (1) it allowed the State's expert witness to offer improper testimony; and (2) it caused undue prejudice to his defense by admitting his previous conviction into evidence. We find that Mr. Blickenstaff failed to timely and specifically object to the expert witness's testimony, and therefore, he waived this issue for appellate review. In addition, we find no abuse of discretion in the circuit court's admission of his previous conviction. Therefore, we affirm Mr. Blickenstaff's conviction and sentencing.
On the morning of August 25, 2014, Nicole M. was driving her four-year-old daughter, E.M.,1 to daycare in their hometown of Smithburg, Maryland. Mr. Blickenstaff, who was in town to visit E.M. (also his daughter), rode in the car's front-passenger seat. The car needed gas, and Nicole M. pulled into the gas station where the alleged kidnapping began.
Nicole M. testified that after the car stopped, Mr. Blickenstaff flashed his knife at her. He said, "not to do anything stupid, that it was going to be the worst day of [her] life, to get into the passenger seat, and he was taking over from here." Nicole M. did what Mr. Blickenstaff told her to do without putting up any physical resistance or calling for help. E.M. was still in the car.
Mr. Blickenstaff drove Nicole M. and E.M. around Maryland, West Virginia, and Virginia for five hours. When they crossed into West Virginia, Mr. Blickenstaff threw Nicole M.'s cell phone out the car window and threatened to stab her. He also told her he was going to carve his initials into her forehead, and when she tearfully stated that she did not care what kind of lettering he used, he responded: "I like it that you left it to the artist." Fortunately, Mr. Blickenstaff did not carve his initials into Nicole M.'s forehead. However, before leaving West Virginia, he punched her in the mouth so forcefully that her tooth broke through her upper lip, and he cut her throat with his knife, leaving visible marks. Finally, they left West Virginia for Maryland. He did not physically harm E.M., who was in the car during this time.
Mr. Blickenstaff, Nicole M., and E.M. arrived at Nicole M.'s apartment that afternoon. Nicole M. reported her kidnapping the following day when her boss, who saw the bruises from Mr. Blickenstaff's punch and the knife-mark on her throat, persuaded her to do so. By the time Nicole M. reported her kidnapping, Mr. Blickenstaff had absconded from her apartment with E.M. The authorities conducted a search and found E.M. with Mr. Blickenstaff at a Pennsylvania motel. The authorities immediately returned her to Nicole M.
Mr. Blickenstaff was tried and convicted in Maryland on one count of false imprisonment, and in West Virginia, he stood trial on one count of kidnapping. In his kidnapping trial, the State addressed Nicole M.'s failure to physically resist by presenting expert testimony from Katherine Spriggs, a program manager from Shenandoah Women's Center who works full-time with domestic violence victims. Ms. Spriggs testified that victims of domestic violence are often more compliant with their abusers out of fear, not consent. The State also introduced into evidence Mr. Blickenstaff's previous conviction for second-degree domestic assault against Nicole M.
Before his trial, Mr. Blickenstaff filed a motion to exclude Ms. Spriggs's testimony. He claimed that her testimony as a whole would be irrelevant and unduly prejudicial, but he provided no explanation as to why. In a separate motion, he also objected to the introduction of his previous conviction into evidence. After a pretrial hearing on his motions, the trial court overruled Mr. Blickenstaff's objections. Mr. Blickenstaff did not object to Ms. Spriggs's testimony at trial.
At the end of his trial, Mr. Blickenstaff was convicted on his kidnapping charge and sentenced to life without parole. He now appeals his conviction and sentencing.
We are asked to determine whether the trial court erred in the following two ways: (1) permitting an expert witness to offer improper testimony; and (2) admitting Mr. Blickenstaff's previous conviction into evidence, thereby causing undue prejudice to his defense. The standard of review for both assigned errors is abuse of discretion. As to the expert witness's testimony, we have provided: "The decision to admit or reject expert evidence is committed to the sound discretion of a trial court, and the court's determinations are reviewable only for abuse of discretion."2 Likewise, "we review for an abuse of discretion the trial court's conclusion that the ‘other acts' evidence is more probative than prejudicial under [West Virginia Rule of Evidence] 403."3
Mr. Blickenstaff argues that his conviction and sentencing should be reversed for the following two reasons: (1) the trial court permitted Katherine Spriggs, an expert witness for the State, to offer improper testimony; and (2) it unduly prejudiced his defense by admitting his previous conviction into evidence. Because Mr. Blickenstaff did not raise a timely and specific objection to Ms. Spriggs's testimony, we find that he waived this issue for appellate review. Furthermore, we find no abuse of discretion in the admission of his previous conviction. Therefore, we affirm Mr. Blickenstaff's conviction and sentencing.
Mr. Blickenstaff's first argument pertains to the State's expert witness, Ms. Spriggs, who testified that victims of domestic violence, such as Nicole M., are often more compliant with their abusers out of fear, not consent. On appeal, he complains that: (a) she briefly discussed the lethality index—that is, a set of factors used by law enforcement to determine whether a relationship may end in the abuser killing his/her victim; and (b) she bolstered Nicole M.'s credibility.
By contrast, the State argues that Mr. Blickenstaff failed to raise a timely and specific objection in the trial court to Ms. Spriggs's testimony, and therefore, he waived his assigned errors regarding her testimony for appellate review. As we have noted: 4
Mr. Blickenstaff did not object to Ms. Spriggs's testimony during his trial. However, before trial, he filed a motion to exclude her testimony as a whole on the grounds of relevancy and undue prejudice. He provided no explanation as to why her testimony would be irrelevant or unduly prejudicial. In addition, after his trial, Mr. Blickenstaff filed a motion for a new trial and a separate motion for a judgment of acquittal partly based on Ms. Spriggs's alleged bolstering of Nicole M.'s credibility. His posttrial motions did not mention Ms. Spriggs's brief discussion on the lethality index.
Under West Virginia Rule of Evidence 103(a) : 5 Likewise, we have held: "An objection to a circuit court ruling that admits evidence must be timely made and must state the specific ground of the objection , if the specific ground is not apparent from the context."6 This rule is in place so that trial courts have a fair opportunity to address legal errors before or as they arise, thereby obviating the need for an appeal.7 Of course, this objective is more achievable when the aggrieved party provides the trial court with timely and full disclosure of the reason(s) he or she is objecting.8
Generally, objections are waived if they are raised too late for the trial court to address the alleged error, which is why we held that: "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."9 In the same vein, as to specificity, we have held: "To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect ."10 Indeed: ...
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