State v. Bowling, No. 11–1674.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM:
• Citation: 232 W.Va. 529,753 S.E.2d 27
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Christopher Wayne BOWLING, Defendant Below, Petitioner.
• Decision Date: 11 October 2013
• Docket Number: No. 11–1674.

232 W.Va. 529
753 S.E.2d 27

STATE of West Virginia, Plaintiff Below, Respondent
v.
Christopher Wayne BOWLING, Defendant Below, Petitioner.

No. 11–1674.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 10, 2013.
Decided Oct. 8, 2013.
Dissenting Opinion of Justice Workman,
Oct. 11, 2013.

[753 S.E.2d 33]

Syllabus by the Court

1. “Article III, Section 14 of the West Virginia Constitution, when read in light of our open courts provision in Article III, Section 17, provides a clear basis for finding an independent right in the public and press to attend criminal proceedings. However, there are limits on access by the public and press to a criminal trial, since in this area a long-established constitutional right to a fair trial is accorded the defendant.” Syl. pt. 1, State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980).

2. “On a closure motion, the ultimate question is whether, if the pretrial hearing is left open, there is a clear likelihood that there will be irreparable damage to the defendant's right to a fair trial. Factors bearing on the issue of irreparable damage include the extent of prior hostile publicity, the probability that the issues involved at the pretrial hearing will further aggravate the adverse publicity, and whether traditional judicial techniques to insulate the jury from the consequences of such publicity will ameliorate the problem.” Syl. pt. 2, State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980).

3. “A trial court's failure to remove a biased juror from a jury panel, as required by W. Va.Code § 62–3–3 (1949) (Repl.Vol.2010), does not violate a criminal defendant's right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike. In order to obtain a new trial for having used a peremptory strike to remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013).

4. “ ‘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.’ Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006).

5. “ ‘Jury instructions on possible guilty verdicts must only include those crimes for which substantial evidence has been presented upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.’ ” Syl. pt. 1, in part, State v. Leonard, 217 W.Va. 603, 619 S.E.2d 116 (2005) (quoting syl. pt. 5, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).

6. “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).

7. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the

[753 S.E.2d 34]

limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syl. pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

8. “To the extent that any of our prior cases could be read to allow a defendant to invoke his Miranda rights outside the context of custodial interrogation, the decisions are no longer of precedential value.” Syl. pt. 3, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995).

Richard W. Weston, Esq., Weston Law Office, Huntington, WV, G. Todd Houck, Esq., Mullens, WV, for Petitioner.

Kristen Keller, Esq., Raleigh County Prosecuting Attorney, Beckley, WV, for Respondent.

PER CURIAM:

This case is before the Court on appeal by the petitioner, Christopher Bowling (“Mr. Bowling”), of the November 10, 2011, order of the Circuit Court of Raleigh County convicting Mr. Bowling of first degree murder by use of a firearm of his wife, Tresa Bowling (“Ms. Bowling”). He did not receive a recommendation of mercy. In this appeal, Mr. Bowling raises seven assignments of error related to pretrial hearing procedure, impaneling the jury, the exclusion of evidence, and witness testimony. The State asserts that no error was committed below.

After a thorough review of the record presented for consideration, the briefs, the legal authorities cited, and the arguments of Mr. Bowling and the State, we find that while the circuit court erred by admitting certain testimony as detailed herein, the errors are harmless and do not warrant reversal of this case. Therefore, we affirm Mr. Bowling's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Christopher “Chris” Wayne Bowling, shot and killed his wife, Tresa Bowling, on the evening of January 31, 2010, in Daniels, West Virginia. The couple had attended a funeral together earlier that day, and afterward they spent time drinking with friends. Sometime later, Ms. Bowling left in the couple's vehicle to pick up her two children to take them home. Mr. Bowling rode home with his friend, Phillip Jones (“Mr. Jones”) at approximately 10:40 p.m., and the two men sat in Mr. Jones' vehicle in the driveway talking for approximately 20 minutes. Mr. Jones left, and Mr. Bowling entered the home.

Mr. Bowling claimed that after entering the house, he retrieved a soda from the garage, and then he joined his wife who had been asleep on the couch. While she was lying on the couch, he sat down on the couch with her in the area of her hip. As he sat down, he removed the handgun he routinely kept in his back pocket, a Kel–Tec Model P–3AT. Upon taking the gun from his pocket, he noticed that the gun's slide was out of battery.¹ According to Mr. Bowling's version of events, while he attempted to right the slide, the gun fired unexpectedly, shooting Ms. Bowling in the head. He avers that he did not realize he was pointing the fully loaded gun at his wife's head—located no more than a couple of feet from the muzzle of the weapon—when the gun discharged.

At 11:35 p.m., the Raleigh County Emergency Operations Center (“EOC”) received a 911 call from the Bowling residence. The caller disconnected the phone call before speaking, prompting EOC to immediately call back. Mr. Bowling answered EOC's call and informed them that he had accidentally shot his wife. EOC instructed Mr. Bowling to place pressure on the wound with a towel

[753 S.E.2d 35]

to slow the bleeding. EOC also dispatched police and rescue services to the Bowlings' home. During the call, Mr. Bowling requested that the operator dispatch specific police officers he knew personally.

When police arrived at the Bowlings' home, they found Ms. Bowling alive but bleeding profusely from the head wound and suffering from labored breathing. Police witnessed no indications that Mr. Bowling had taken any actions to slow his wife's bleeding. While the police assisted Ms. Bowling and processed the scene, Mr. Bowling was handcuffed and placed in the back of one of the police cars present. At that time he was not placed under arrest. Ms. Bowling was transported via ambulance to a local hospital. Mr. Bowling's mother arrived to care for the two children.

About an hour after being dispatched to the Bowling residence, the police drove Mr. Bowling to the police station where he was questioned about the shooting. Although he was not under arrest at this point, Mr. Bowling was read his Miranda rights,² which he waived. Meanwhile, despite the doctors' efforts to save her life, Ms. Bowling died of her wound at the hospital. At no time during the questioning did Mr. Bowling inquire as to the wellbeing of his wife or the two children. After the police questioning ended in the early hours of February 1, 2010, Mr. Bowling left the police station with a friend. The police arrested Mr. Bowling on February 2, 2010, for the murder of Ms. Bowling.

Pretrial hearings were held from April 26, 2011, to April 28, 2011, to evaluate the testimony of numerous witnesses that the parties intended to introduce at trial. Trial commenced on June 21, 2011. The State called more than twenty witnesses to testify at trial. The first of the State's witnesses was Ms. Bowling's oldest child, ten-year-old M.L.,³ who was present in the house at the time of the shooting. The child testified that on the night of the shooting,...