State v. Keesecker

• Decision Date: 25 April 2008
• Docket Number: No. 33377.,33377.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Mindy KEESECKER, Defendant Below, Appellant.

663 S.E.2d 593

222 W.Va. 139

STATE of West Virginia, Plaintiff Below, Appellee v. Mindy KEESECKER, Defendant Below, Appellant.

No. 33377.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 2008.

Decided April 25, 2008.

Dissenting Opinion of Chief Justice Maynard June 27, 2008.

Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo" Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

3. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syl. Pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

4. "Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters." Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

5. "It is prejudicial error in a criminal case for the prosecutor to make statements in final argument amounting to a comment on the failure of the defendant to testify." Syl. Pt. 3, State v. Noe, 160 W.Va. 10, 230 S.E.2d 826 (1976), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

6. "Remarks made by the State's attorney in closing argument which make specific reference to the defendant's failure to testify, constitute reversible error and defendant is entitled to a new trial." Syl. Pt. 5, State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979).

7. "Errors involving deprivation of constitutional rights will be regarded as harmless . . . if there is no reasonable possibility that the violation contributed to the conviction." Syl. Pt. 20, in part, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

8. "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).

9. "An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

10. "The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syl. Pt. 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

11. "Representations or promises made to a defendant by one in authority do not necessarily invalidate a subsequent confession. In determining voluntariness of a confession, the trial court must assess the totality of all the surrounding circumstances. No one factor is determinative." Syl. Pt. 7, in part, State. v. Farley, 192 W.Va. 247, 452 S.E.2d 50(1994).

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, for Appellee.

Mark McMillian, Mark McMillian—Attorney-at-Law, L.C., Charleston, for Appellant.

PER CURIAM:

This is an appeal by Mindy Keesecker (hereinafter "Appellant") from a June 30, 2006, final order of the Circuit Court of Mercer County sentencing the Appellant to three consecutive terms of one to five years in the penitentiary and five years probation upon her convictions of six counts of sexual assault in the third degree. The Appellant contends that the lower court committed several errors in the underlying trial and conviction. Subsequent to thorough review of the record, the briefs, the arguments of counsel, and applicable precedent, this Court reverses the Appellant's conviction and remands this matter to the lower court for a new trial.

I. Factual and Procedural History

The Appellant, age thirty-four at the time of the alleged crimes, served as a worship leader and counselor for youth at a church attended by a fifteen-year-old male, J.G.¹ During the Appellant's service in such role, she and J.G. engaged in a sexual relationship from approximately January 2005 to approximately June 2005. Based upon knowledge of extensive telephone conversations and visits between J.G. and the Appellant, J.G.'s mother became concerned regarding the nature of the relationship, and the church minister was asked to discuss the situation with the Appellant. Although the Appellant initially agreed to curtail the relationship with J.G., it allegedly continued in earnest. According to J.G.'s testimony at trial, the relationship included several instances of oral sexual contact and intercourse. J.G's mother ultimately contacted the police when she discovered sexually explicit text messages on a phone purchased for J.G. by the Appellant.

When the Appellant became aware of the criminal investigation, she sought the advice of State Trooper Chuck Maynard, a family friend not directly involved with the investigation. Through the Appellant's brother, Trooper Maynard conveyed his opinion that the matter could be concluded if the Appellant would appear at the state police office and provide a truthful statement. The Appellant subsequently presented herself to the police, voluntarily signed a waiver of rights, and confessed to the sexual activity with J.G.

Subsequent to a jury trial, the Appellant was convicted of six counts of third degree sexual assault. On appeal, the Appellant alleges that the lower court committed the following errors: (1) permitted the prosecutor to present an extensive closing argument premised upon religious theory, including biblical axioms and quotation; (2) failed to suppress the Appellant's confession; (3) permitted the prosecutor to refer to the Appellant's decision to remain silent and not testify at trial; (4) the State's possession of unlawfully obtained recordings by J.G.'s mother of her son's telephone conversations; and (5) the determination that there was a substantial risk of the Appellant's commission of another crime during a period of probation or conditional discharge.

II. Standard of Review

In syllabus point four of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996), this Court explained as follows: "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo" Similarly, in syllabus point three of State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000), explains as follows:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Utilizing those standards of review as guidance, this Court addresses the matters asserted by the Appellant.

III. Discussion

A. Impermissible Comment on Appellant's Failure to Testify

A primary assignment of error forwarded by the Appellant alleges that the prosecuting attorney made certain prejudicial remarks during closing argument which impermissibly commented upon the Appellant's failure to testify. Specifically, the prosecutor stated as follows:

And you heard her tell the same thing to the State Police. The exact same thing.

Well, let's talk about that for a little bit. They would want you to believe that you can't trust this statement she gave to the State Police. You never heard anybody come in here and say this was a false statement.

Subsequent to an objection by counsel for the Appellant and the court's overruling of that objection, the prosecutor continued: "No one came in here and said that she lied to the State Police. No one ever said the State Police wrote down wrong what she said."

1. Precedent Regarding Protection of Right Against Self-incrimination

The Appellant contends that the prosecutor's comments violate the Fifth Amendment of the Constitution of the United States and Article III, Section 5 of the Constitution of West Virginia.² West Virginia Code § 57-3-6 (1923) (Repl.Vol.2005)³ serves as further protection of the right against self-incrimination, providing that the failure of the defendant to testify cannot be the...