State v. Garrett

• Decision Date: 11 December 1995
• Docket Number: No. 22832,22832
• Citation: 466 S.E.2d 481,195 W.Va. 630
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Russell E. GARRETT, Defendant Below, Appellant.

Page 481

466 S.E.2d 481

195 W.Va. 630

STATE of West Virginia, Plaintiff Below, Appellee v. Russell E. GARRETT, Defendant Below, Appellant.

No. 22832.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 13, 1995.

Decided Dec. 11, 1995.

Syllabus by the Court

1. " ' " ' "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 ... [forfeiture] of the right to raise the question thereafter in the trial court or in the appellate court." Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ].' Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956)." Syl.Pt. 5, State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988).' Syllabus Point 1, Daniel B. by Richard B. v. Ackerman, 190 W.Va. 1, 435 S.E.2d 1 (1993)." Syl. pt. 5, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).

2. " '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)." Syl. pt. 6, Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989).

3. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

4. "To prove the corpus delicti in a case of homicide two facts must be established: (1) The death of a human being and (2) a criminal agency as its cause." Syl. pt. 4, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).

5. The corpus delicti may not be established solely with an accused's extrajudicial confession or admission. The confession or admission must be corroborated in a material and substantial manner by independent evidence. The corroborating evidence need not of itself be conclusive but, rather, is sufficient if, when taken in connection with the confession or admission, the crime is established beyond a reasonable doubt.

6. " ' "Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969).' Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974)." Syl. pt. 10, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986).

7. " ' "This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958).' Syl. pt. 2, Duquesne Light Co. v. State Tax Dept., 174 W.Va. 506, 327 S.E.2d 683 (1984), cert. denied, 471 U.S. 1029, 105 S.Ct. 2040, 85 L.Ed.2d 322 (1985)." Syl. pt. 2, Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778 (1987).

8. "The general rule is that a party may not assign as error the giving of an instruction unless he objects, stating distinctly the matters to which he objects and the grounds of his objection." Syl. pt. 3, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982).

9. "Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived." Syl. pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981).

10. "Under the provisions of W.Va.Code, 52-2-12, an indictment will not be quashed or abated on the ground that one member of the grand jury is disqualified." Syl. pt. 4, State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975).

11. "It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim." Syl. pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992).

Appeal from the Circuit Court of Roane County; Charles E. McCarty, Judge.

James B. Lees, Jr., James A. McKowen, Hunt, Lees, Farrell & Kessler, Charleston, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Silas B. Taylor, Managing Deputy Attorney General, Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

McHUGH, Chief Justice:

This case is before the Court upon the appeal of Russell E. "Rusty" Garrett (hereinafter "appellant") from a final order denying post-trial motions and imposing a sentence of life imprisonment without the possibility of parole. On October 13, 1993, a jury found the appellant guilty of first degree murder for the death of Linda Lou Carpenter. This Court has before it the petition for appeal, all matters of record and the briefs and arguments of counsel. For the reasons discussed below, appellant's conviction in the Circuit Court of Roane County is affirmed.

I.

On or about May 21, 1990, Linda Lou Carpenter (hereinafter "victim") and her 1986 red and silver Chevrolet pick-up truck were reported missing by her husband, Ronald Carpenter. On or about August 13, 1990, four days after the victim's truck was recovered in Elliott County, Kentucky, ¹ two hunters discovered the victim's skeletal remains scattered on a remote hillside, several miles from her home in Roane County, West Virginia.

A police investigation of the victim's death resulted in the issuance of an arrest warrant ² for the appellant who, for more than two years, had been having an affair with the victim. The appellant was finally arrested in North Carolina on April 17, 1992, apparently after he was featured on a television program entitled "America's Most Wanted." ³

At trial, the victim's husband, Ronald Carpenter, testified that he last saw his wife before he left for work on the morning of May 15, 1990. It was also on that morning that the victim last spoke with her friend, Jewell Strickland. Mrs. Strickland testified that when she spoke with the victim on the telephone between 10:30 a.m. and noon, the victim told her that the appellant had threatened to kill her. Mrs. Strickland further testified that at approximately noon on that day, the appellant telephoned her and told her that he had just shot the victim. On direct examination, Mrs. Strickland testified, in relevant part, as follows:

Q. [by the State] Did anybody else call you?

A. Rusty Garrett.

....

Q. What did Rusty have to say?

A. He called me and he said, 'Jewell?' And I said, 'Yes.' I said, 'Where you at?'

....

A. He told me, he said, 'I'm at Linda's.' He said, 'I shot Linda.'

Q. Did he say anything else? Did you say anything?

A. I said, 'Oh, my God, you didn't.' And he said, 'Yes, I did.' I said, 'Where is she at?' He said, 'I picked her up and took her around back and laid her.'

Q. Did he say what he shot her with?

A. A .6 mm.

Q. Did you take that to be a kind of gun or what?

A. I don't know anything about guns, sir, I don't know what kind it is. He said--

Q. Just .6 mm.

A. Yes.

Q. Was that the end of the phone call?

A. No. He said that she was getting her breath hard now. And then he talked and he said, 'Her breath is getting shorter and shorter.' And he said, 'She's soon going to be gone.' He said she asked him to take her to the hospital and he said, 'There's no use.'

....

Q. This man just told you he shot probably your best friend. Did you ask him why?

A. I got to crying and upset and he said he was jealous, is why.

According to Mrs. Strickland, at approximately 5:00 the following morning, the appellant, with what appeared to be blood stains on his pants, drove to her home, alone, in the victim's truck:

[Mrs. Strickland] Well, he came on in and I said, 'Rusty, did you really kill Linda?' He said, 'Yes, Jewell, I did.'

....

Q. [by the State] Did he tell you how he went about shooting her?

A. He said he knew we always talked, Linda and, I about that time of a morning and he said he thought he would let us talk our last talk. So he--when we got done talking, the way everything looks, she walked out and then's when he shot her.

Q. Where did he shoot her?

A. In the stomach, he said.

....

Q. After he said he shot her, did he say he said anything to her or talk to her or anything like that?

A. Yes, he said that he talked to her and he told her, he said, 'What you've done, your courting around didn't pay, did it?' He said she said, 'Rusty, I've never been with nary other man but you.' And said that she told him said, 'Take me to the hospital.' And he said, 'There's no use.' She said, 'I love you.' And--

....

Q. Well, if he told you he killed her, did you ask him what he did with her body?

....

A. He wouldn't tell me. He said, 'I won't tell you.' And I said, 'Will they ever find her?' And he said, 'It will be a while, but they finally will find her.'

....

Q. What was he going to do?

A. He said he was going to Kentucky, and then he was going on somewhere else, but he wasn't going to tell me where.

....

A. He said he had Linda's purse with him and he asked me for some money.

Other evidence presented at trial also revealed that on the night before the appellant shot the victim, Charles Greathouse gave him a ride to a location not far from the victim's home. According to Mr. Greathouse, the appellant was carrying a rifle, a handgun and a...