State v. Bradshaw, s. 22302

CourtSupreme Court of West Virginia
Citation193 W.Va. 519,457 S.E.2d 456
Decision Date27 March 1995
Docket Number22553,Nos. 22302,s. 22302
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Kimberly Don BRADSHAW, Defendant Below, Appellant. STATE of West Virginia, Plaintiff Below, Appellee, v. Kimberly Don BRADSHAW, Defendant Below, Appellant.

4. Where police have given Miranda warnings outside the context of custodial interrogation, these warnings must be repeated once custodial interrogation begins. Absent an effective waiver of these rights, interrogation must cease.

5. " ' "Once a person under interrogation has exercised the right to remain silent guaranteed by W.Va. Const., art. III § 5, and U.S. Const. amend. V, the police must scrupulously honor that privilege. The failure to do so renders subsequent statements inadmissible at trial." Syllabus Point 3, State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980).' Syllabus Point 1, State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989)." Syllabus Point 4, State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994).

6. "To assert the Miranda right to terminate police interrogation, the words or conduct must be explicitly clear that the suspect wishes to terminate all questioning and not merely a desire not to comment on or answer a particular question." Syllabus Point 5, State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994).

7. When evaluating the voluntariness of a confession, a determination must be made as to whether the defendant knowingly and intelligently waived his constitutional rights and whether the confession was the product of an essentially free and unconstrained choice by its maker.

8. " 'Misrepresentations made to a defendant or other deceptive practices by police officers will not necessarily invalidate a confession unless they are shown to have affected its voluntariness or reliability.' Syllabus Point 6, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988)." Syllabus Point 6, State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994).

9. West Virginia recognizes two marital privileges: the spousal testimony privilege and the marital confidence privilege. The two are distinct and must be analyzed separately. The spousal testimony privilege is much broader than the marital confidence privilege in that it bars all adverse testimony; whereas, the marital confidence privilege applies only to confidential communications and can be asserted even after the dissolution of the marriage. On the other hand, the spousal testimony privilege is narrower than the marital confidence privilege in that it applies only to criminal proceedings and can be asserted only during the marriage.

10. The marital confidence privilege applies only to communications that are confidential. Communications made in the presence of known third parties or intended to be disclosed to others are outside the privilege.

11. W.Va.Code, 57-3-3 (1923), absolutely prohibits the spouse of a criminal defendant from testifying against the defendant, except where the defendant is charged with a crime against the person or property of the other spouse or certain other relatives. Where properly invoked, this statute precludes all adverse testimony by a spouse, not merely disclosure of confidential communications. This spousal protection applies only to legally recognized marriages and lasts only as long as the legal marriage exists.

12. "An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence." Syllabus Point 1, Wimer v. Hinkle, 180 W.Va. 660, 379 S.E.2d 383 (1989).

13. In the realm of nonconstitutional error, the appropriate test for harmlessness is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence independently was sufficient to support the verdict and that the judgment was not substantially swayed by the error.

14. The admission of demonstrative evidence rests largely within the trial court's discretion, and an appellate court will not interfere unless the trial court has abused that discretion. More specifically, demonstrative evidence in the nature of witness reenactment is admissible if it affords a reasonable inference on a point in issue.

15. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as it accurately reflects the law. Deference is given to the circuit court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed for an abuse of discretion.

Jacquelyn I. Custer, Sr. Asst. Atty. Gen., Charleston, for appellee.

James E. Spurlock, Huntington, for appellant.

CLECKLEY, Justice:

The defendant below and appellant herein, Kimberly Don Bradshaw, was indicted and tried by a jury on two counts of murder and one count of aggravated robbery, all arising from the same incident. In the first trial, the defendant was found guilty of the second degree murder of George Eckert and acquitted of the aggravated robbery charge. The trial judge declared a mistrial on the second murder charge resulting from the death of Patricia Eckert after the jury was unable to reach a verdict. In a subsequent trial, the defendant was convicted of the first degree murder of Patricia Eckert with a recommendation of mercy.

In this consolidated appeal, the defendant argues the trial court erred in admitting testimony and evidence concerning the defendant's interrogation by police and his subsequent confession; in permitting the defendant's wife to testify for the prosecution at trial; in admitting evidence discovered as a result of his wife's speaking with the police;

[193 W.Va. 525] in admitting evidence of the defendant's trial reenactment of the homicide scene; and in giving a fatally defective jury instruction. Finding no reversible error, we affirm the judgment below in all respects.


On May 27, 1992, the defendant telephoned Mr. Eckert at his pawn shop around closing time and asked Mr. Eckert to wait for him because the defendant was running late. The defendant arrived at the pawn shop around 7:00 p.m., as one of the pawn shop's employees, Theresa Chapman, was finishing the day's receipts and preparing to leave. According to Ms. Chapman, Mr. Eckert removed some collectible coins from a safe in anticipation of the defendant's purchasing them. The defendant claims he only went to the pawn shop to have some of his coins appraised and not to purchase any additional coins.

After Ms. Chapman's departure, the parties' versions of the events differ drastically. The prosecution claims the defendant placed a gun against the forehead of Mr. Eckert and fired a single fatal shot. Mrs. Eckert was killed by a second shot fired through the back of her head. The defendant does not dispute the fact that he killed George and Patricia Eckert. However, he denies deliberately placing the gun against Mr. Eckert's head, arguing instead that he killed the Eckerts in self-defense. According to the defendant, he fired his weapon only after both the Eckerts reached for their guns.

After killing the Eckerts, the defendant returned home and took his wife, Mary Bradshaw, to the Huntington Mall without revealing the shootings to her. After leaving the Mall, the defendant and his wife spent the night at the Ramada Inn near the Huntington Mall. On the morning of May 28, 1992, the defendant took a flight from the Tri-State Airport in Huntington to the Cincinnati/Northern Kentucky International Airport (Cincinnati Airport) located in Kentucky. After arriving at the Cincinnati Airport, the defendant changed his ticket destination from Miami, Florida, to Houston, Texas.

When the Eckerts did not return home after work on May 27, 1992, their daughter began searching for them. This search ended in the discovery of George and Patricia Eckerts' bodies at approximately 1:00 a.m. on May 28, 1992. Immediately thereafter, the investigating officers began to search for the defendant as the last person known to see the Eckerts alive.

The officers first went to the defendant's home where they spoke with the defendant's brother-in-law, Nathan Tapley, who was babysitting the defendant's children. Mr. Tapley informed the officers that the defendant and his wife were spending the night at the Charleston Marriott because the defendant was planning to fly to South America by way of Miami. 1

Forensic testing established the murder weapon to be a .38 caliber Colt handgun the defendant borrowed from his pastor, Patrick Elliot, on May 13, 1992. Mr. Elliot testified at trial that the defendant called him from the hotel around 9:00 p.m. on the evening of the killings and asked him to pick up the gun.


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