State v. Ferrell

• Decision Date: 24 July 1990
• Docket Number: No. 19401,19401
• Citation: 184 W.Va. 123,399 S.E.2d 834
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Paul William FERRELL.

Page 834

399 S.E.2d 834

184 W.Va. 123

STATE of West Virginia v. Paul William FERRELL.

No. 19401.

Supreme Court of Appeals of West Virginia.

Decided July 24, 1990.

Rehearing Denied Nov. 8, 1990.

Dissenting Opinion of Justice MILLER Dec. 19, 1990.

Syllabus by the Court

1. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

2. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Rule 404(b), W.Va.R. of Evid. [1985].

3. "A verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused." Syllabus point 5, State v. Davis, 153 W.Va. 742, 172 S.E.2d 569 (1970).

4. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

5. "An instruction in a criminal case which is not binding and does not require the jury to accept a presumption as proof beyond a reasonable doubt of any essential element of a crime, or require the defendant to introduce evidence to disprove an essential element of the crime for which he is charged, is not erroneous." Syllabus point 3, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

6. "As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to here." Syllabus point 1, State v. Smith, 169 W.Va. 750, 289 S.E.2d 478 (1982).

Daniel R. James, Barr & James, Keyser, for Paul W. Ferrell.

Roger W. Tompkins, Atty. Gen., Richard M. Riffe, Sr. Asst. Atty. Gen., Atty. Gen.'s Office, Charleston, Dennis V. DiBenedetto, Pros. Atty., Petersburg, for State of W.Va NEELY, Chief Justice:

Paul William Ferrell appeals his conviction before a jury of kidnapping, second degree murder and third degree arson. ¹ The appellant assigns myriad errors, many of which are so obviously without merit that we find that they are not fairly raised. ² There are, however, four major assignments in this complex and difficult circumstantial evidence case that warrant extensive discussion.

On the morning of Wednesday, 17 February 1988, the victim, Catherine Ford, a resident of Maryland, received a call from a man claiming to be a magistrate at Mt. Storm, in Grant County, West Virginia. The man wanted Ms. Ford to meet him at his office at 3:00 p.m. the same day, to discuss some checks. Later that day, a man claiming to be an undercover officer called Ms. Ford with information concerning a possible investigation of her family's restaurant by the liquor licensing authorities. Ms. Ford told her family and the restaurant employees to check identifications before selling beer, and then left the restaurant to meet with the alleged undercover officer. Ms. Ford drove her Ford Bronco on route 50 into Grant County, and turned off at the Bismark Road. She has not been seen since.

The prosecution contends that the defendant, Paul Ferrell, used fraud to entice Ms. Ford into Grant County, West Virginia for the purpose of gaining a sexual concession or other advantage from her, and that Mr. Ferrell subsequently murdered Ms. Ford and disposed of her body, burning her vehicle to cover up the crime.

On the same day that Ms. Ford disappeared, two other women received telephone calls from a man purporting to be a magistrate. This man, however, was not a real magistrate; at the time, both magistrates in Grant County, West Virginia, were females and nearby Maryland does not have magistrates.

A Grant County magistrate is usually on duty at a satellite office in the Mt. Storm Fire Hall on Wednesdays. Sometime between 10:30 and 11:00 on Wednesday, 17 February 1988 (the day the victim disappeared), the magistrate and her assistant observed Mr. Ferrell using the public pay phone outside of the office. The magistrate told her assistant that the man talking on the phone outside was their new deputy sheriff. Paul Ferrell had recently begun working as a deputy sheriff for Grant County. Mr. Ferrell then went into the truck bay area of the fire hall, where a phone available to the public was located, remained there a while and then left.

At 10:50 a.m. the same day, Robin Tichnell received a call from a man claiming to be a West Virginia magistrate. The alleged magistrate said that he was conducting an investigation of someone she knew, and needed to question her at the Mt. Storm Fire Hall sometime between 10:00 and 3:00. When she asked who or what the investigation concerned, he would not tell her. Consequently, she refused to leave work to meet him, and he responded that he would have to get in touch with her at a later date.

Another woman who received a strange invitation that same day was Rose Bosley, a part-time postmistress in Gormania who usually worked on Saturdays. The new post office had opened two days before, and did not yet have phone service, so Juanita Bosley, the regular postmistress asked the younger woman to fill in for her while she made telephone calls to various utility companies. While the young woman was filling in, a man telephoned Viola Knotts, an elderly woman who lived across the street from the post office, and asked her to tell Rose Bosley to come and get her mail carrier whose car had broken down between Bismark and Cherry Ridge Road. The Gormania route, however, would not take the carrier to those roads.

From the room in Mr. Ferrell's family store in which his telephone was located, Mr. Ferrell could see people come and go from the post office, and could also see Ms. Knotts' residence. Mr. Ferrell's store was also within sight of the restaurant where Cathy Ford worked.

Kim Nelson lived in the trailer nearest Mr. Ferrell's trailer on the same driveway off of the Bismark Road, but did not know Paul Ferrell. She testified that between 1:00 and 2:00 p.m. on 17 February 1988, banging and terrified screams emanated from Mr. Ferrell's trailer for about a minute, followed by a gunshot from the same trailer. A man then drove out in a light blue car. In court Ms. Nelson identified from a photograph that it was Paul Ferrell's car that she had observed departing. The man drove back one-half hour later, and drove out again later in the afternoon, at which time Ms. Nelson saw a side-view of the driver. On 18 February 1988, Ms. Nelson saw the same man burning something out in back of Paul Ferrell's rented trailer. Ms. Nelson first learned the man's name when she recognized Paul Ferrell's picture in the newspaper after his arrest.

On 18 February 1988, Mr. Ferrell ripped out and burned the carpeting from the master bedroom of his trailer (mobile home), replacing it with new carpeting on the following day. Mr. Ferrell claimed that he did this because of dark stains and dead animal odor. However, when his girlfriend, Cathy Bernard, visited his trailer on 14 February 1988, she had not noticed any stains on the master bedroom carpet, nor any strong odors. Also Mr. Ferrell's landlord had not noticed any stain or odors in the trailer on 21 January 1988.

Paul Ferrell demonstrated concern about the disappearance of Cathy Ford. On 20 February 1988, when his girlfriend, Cathy Bernard, asked him if he had heard about Cathy Ford's disappearance, Paul Ferrell said that he had heard about it, that he knew who Ms. Ford was, and that he was afraid that people might suspect him or his brother of involvement in her disappearance. He was afraid because Ms. Ford was last seen heading in the direction of Mt. Storm, where defendant's trailer was located.

On Sunday, 21 February 1988, Ms. Bernard, before washing Paul Ferrell's clothes, found in a pocket a note that dealt with two people posing as a young couple and setting someone up by using a fake identification card. When Ms. Bernard asked Paul Ferrell about the note later, he seemed concerned, and explained that someone from the liquor board was going around to various places in the area trying to get them to sell liquor to minors, and that the note had something to do with that. ³

Paul Ferrell manifested an obsession with Cathy Ford's disappearance. Perhaps in an attempt to explain why he was obsessed, he told Ms. Bernard that he knew Cathy Ford well, and that they had been intimate about a year before he met Ms. Bernard. However, David Ferrell, defendant's brother, told Ms. Bernard that he knew nothing about that, and that if Paul had had an affair with Ms. Ford, h...