State v. Derr

Decision Date18 November 1994
Docket NumberNo. 22101,22101
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Thomas Russell Leroy DERR, Defendant Below, Appellant.
CourtWest Virginia Supreme Court

1. " 'To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.' Point 2, Syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946)." Syllabus Point 1, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978).

2. " 'A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county.' Point 2, Syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967), quoting Point 1, Syllabus, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)." Syllabus Point 2, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978).

3. One of the inquiries on a motion for a change of venue should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt or innocence of the defendant.

4. "The right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution. A meaningful and effective voir dire of the jury panel is necessary to effectuate that fundamental right." Syllabus Point 4, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

5. " 'In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused.' Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)."

[192 W.Va. 168] Syllabus Point 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987).

6. Whatever the wisdom and utility of State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979), and its progeny, it is clear that the Rowe balancing test did not survive the adoption of the West Virginia Rules of Evidence. Therefore, State v. Rowe, supra, is expressly overruled because it is manifestly incompatible with Rule 403 of the West Virginia Rules of Evidence.

7. The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than a mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them.

8. The admissibility of photographs over a gruesome objection must be determined on a case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence.

9. Although Rules 401 and 402 of the West Virginia Rules of Evidence strongly encourage the admission of as much evidence as possible, Rule 403 of the West Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403 provides that although relevant, evidence may nevertheless be excluded when the danger of unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.

10. Rule 401 of the West Virginia Rules of Evidence requires the trial court to determine the relevancy of the exhibit on the basis of whether the photograph is probative as to a fact of consequence in the case. The trial court then must consider whether the probative value of the exhibit is substantially outweighed by the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As to the balancing under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse.

11. A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.

12. Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution.

13. "Where the testimony of an accomplice is corroborated in material facts which tend to connect the accused with the crime, sufficient to warrant the jury in crediting the truth of the accomplice's testimony, it is not error to refuse a cautionary instruction. This rule applies even though the corroborative evidence falls short of constituting independent evidence which supports the alleged ultimate fact that the accused committed the offense charged." Syllabus Point 3, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

Shawn A. Taylor, Asst. Atty. Gen., Charleston, for appellee.

David L. Zehnder, Public Defender Corp., Moundsville, for appellant.

CLECKLEY, Justice:

The defendant, Thomas Russell Leroy Derr, appeals from a final order of the Circuit Court of Marshall County, dated May 6, 1993, sentencing him to life without mercy for first degree murder, to not less than two nor more than ten years for malicious assault, and to two sentences of not less than fifteen nor more than twenty-five years for two counts of first degree sexual assault. All of the sentences were ordered to run consecutive to each other.

On appeal, the defendant asserts that the trial court erred: (1) by denying his request for a change of venue; (2) by failing to individually voir dire jurors who showed potential bias and prejudice; (3) by permitting

[192 W.Va. 169] the State to introduce as evidence two photographs of the deceased victim; (4) by refusing to give certain jury instructions offered by the defendant; (5) by failing to admonish the jury prior to several recesses; (6) by allowing Fred Zain to testify concerning DNA tests performed by another person; (7) by permitting the State to pose a hypothetical question to a state trooper; (8) by denying the defendant's motion for a continuance to obtain his own DNA expert; and (9) by allowing cumulative errors to occur at trial. After reviewing these errors and the facts of this case, we do not find that any of these alleged errors warrant reversal of the defendant's convictions.


In the early evening of December 1, 1990, Connie S. and Dana L., 1 both fifteen-year-olds, were walking to a Super X in the Wheeling area when the defendant asked the girls if they needed a ride. It was dusk, and the defendant and four other young men were stuck in traffic near Oglebay Park during the Festival of Lights. The girls accepted the defendant's offer and got into the car. The defendant then did a U-turn to get out of the stopped traffic. Dana testified that when they accepted the ride she and Connie did not recognize any of the men; however, once they were in the car, she realized that she was acquainted vaguely with Robert N., a juvenile, commonly referred to as Bobby.

During the course of the evening, three of the young men were dropped off at their houses leaving the defendant, Bobby, Connie, and Dana remaining in the car. These four drove all over the area and were drinking beer. Dana said at first the four were having a good time. Dana testified that she and Connie did not drink much and were not drunk. On the other hand, both the defendant and Bobby admitted at trial that they consumed a considerable amount of alcohol.

Both Dana and Bobby testified that at some point Bobby passed out in the back seat of the car. After Bobby passed out, Dana claimed the defendant, who was driving the car, pulled out a knife and told her to get in the front seat with Connie. Dana complied, and she recalled the defendant threatening her with the knife telling her not to scream or cry and "to shut the hell up." Subsequently, Dana said the defendant forced her and Connie out of the car.

According to Dana, the defendant told her to stand at the back of the car and turn around, and he told Connie to stand at the front of the car. The defendant was at the front of the car with Connie. Dana saw that both Connie's and the defendant's pants were down and he got on top of Connie. Dana did not see whether they had intercourse because the defendant told her to turn around. After he was finished with Connie, Dana testified that the defendant raped her. She said it was not voluntary and the defendant still had the knife in his hand. Dana said she did not attempt to run from the defendant because they were in a rural area and it was dark. She also did not want to leave Connie behind with the defendant.

After he raped her, Dana alleged the defendant forced the girls back into the car, drove a little further, stopped the car, and, with the knife in his hand, told the girls to get back out of the car. Both girls got out of the car, and the defendant forced Connie to perform oral sex on him while Dana was forced to kiss him. The defendant then drove the girls to the Miller Hill Road area.

Dana testified that Connie was crying and they asked the defendant to let them go home. She said the...

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