State v. Kessler

• Docket Number: 21-0674
• Decision Date: 09 June 2023
• Parties: STATE OF WEST VIRGINIA, Plaintiff Below, Respondent v. JAQUAYLLA KESSLER, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

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STATE OF WEST VIRGINIA, Plaintiff Below, Respondent v. JAQUAYLLA KESSLER, Defendant Below, Petitioner

No. 21-0674

Supreme Court of Appeals of West Virginia

June 9, 2023

Submitted: March 21, 2023

Appeal from the Circuit Court of Mingo County The Honorable Miki Thompson, Judge Criminal Action No. A20-F63

Mark Hobbs, Esq. Chapmanville, West Virginia Petitioner's Counsel

Patrick Morrisey, Esq. Attorney General William E. Longwell Esq. Assistant Attorney General Charleston, West Virginia Respondent's Counsel

JUSTICE WOOTON and JUSTICE HUTCHISON dissent and reserve the right to file dissenting opinions.

SYLLABUS BY THE COURT

1. "To satisfy the requirement to clearly show the specific and precise purpose for which evidence is offered under West Virginia Rule of Evidence 404(b), as set out in syllabus point 1 of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), the proponent of the 404(b) evidence must not only identify the fact or issue to which the evidence is relevant, but must also plainly articulate how the 404(b) evidence is probative of that fact or issue. If the 404(b) evidence is determined to be admissible, then a limiting instruction shall be given at the time the evidence is offered, and must be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syllabus Point 5, State ex rel. Caton v. Sanders, 215 W.Va. 755, 601 S.E.2d 75 (2004).

2. "The curative admissibility rule allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has 'opened the door' by introducing similarly inadmissible evidence on the same point. Under this rule, in order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence." Syllabus Point 10, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

3. "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. Adkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

OPINION

WALKER, Chief Justice:

The victim of a horrific home invasion and robbery looked Petitioner Jaquaylla Kessler directly in the face during the crimes, identified her on the day of the crimes as a perpetrator, and unwaveringly reiterated that Petitioner committed the crimes. Police also found the victim's stolen items in Petitioner's home. At trial, the jury heard this evidence, believed the victim, and found Petitioner guilty. On appeal, Petitioner insists that the circuit court committed reversible error by admitting evidence of her prior criminal charge. We agree that the circuit court should have excluded the evidence. But given the significant weight of the other evidence establishing Petitioner's guilt, we are not left with grave doubt as to whether the inadmissible evidence substantially swayed the jury's verdict. So, the error proves harmless, and we affirm the circuit court's sentencing order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the night of June 16, 2020, Elizabeth Collins occupied her two-bedroom home in Williamson with her four-year-old daughter and five-year-old son. At approximately 1:00 a.m. on June 17 her so-called friend, Mandy Porter, arrived and joined Ms. Collins in her kitchen while her children slept. Shortly after Ms. Porter's arrival, a masked intruder dressed in all black entered the home, and Ms. Porter quickly exited. Ms. Collins was startled, grabbed her handgun from the top of a nearby cabinet, and pointed it at the intruder. The intruder lowered her mask, and Ms. Collins immediately recognized her as Heather Musick-someone she knew. Ms. Musick explained that she merely wanted to tell Ms. Collins something about Ms. Porter. But Ms. Collins ignored the phony explanation and angrily demanded that Ms. Musick leave the home. Ms. Musick complied, but on her way out, she threatened to return later with her girlfriend.

After things seemingly calmed down, Ms. Porter went back to Ms. Collins's home at approximately 4:00 a.m. Believing she could trust her friend, Ms. Collins allowed Ms. Porter in again and locked the door behind her. After a few minutes, Ms. Porter explained that she left her phone in her car and opened the front door, purportedly to retrieve it. Ms. Musick, true to her promise, returned through the unlocked door with her girlfriend, Petitioner Jaquaylla Kessler. Ms. Musick and Petitioner, each armed with handguns, bum-rushed Ms. Collins, beat her, and subdued her in her kitchen. Meanwhile, Ms. Porter stole Ms. Collins's gold-colored Michael Kors wallet from the countertop and fled the scene. Ms. Musick continued to beat Ms. Collins mercilessly while directing Petitioner to steal certain items from the home. At some point during the encounter, Ms. Collins's distraught, four-year-old daughter entered the kitchen and begged the pair to stop hurting her mother. When Ms. Collins briefly uncovered her face to look up at her daughter, Ms. Musick pistol-whipped her in the mouth and knocked several of her teeth out. Petitioner then forcibly removed Ms. Collins's daughter from the room. Before leaving, Ms. Musick shoved the barrel of her pistol down Ms. Collins's throat and warned her that she would kill her if she went to the police.

After Ms. Musick and Petitioner left the scene together, Ms. Collins summoned help from a neighbor who called 911. Ms. Collins was taken by ambulance to the hospital where she received treatment for her injuries. Later that day, she went to the Williamson Police Department to recount the incident to police officers. During the interview, she identified Ms. Musick and Petitioner as the two individuals who robbed and beat her. She also listed several items stolen from her home, including a Victoria's secret "Pink" bag containing $27,000,^[1] several pairs of sunglasses still packaged for sale, a handgun with a pink and purple camouflage pattern on it, and a gold-colored Michael Kors wallet.

Based on the eyewitness account, police went to Ms. Musick's and Petitioner's shared home in Williamson to execute arrest warrants on them. Police found the pair at their home, and each executed a written consent for police to search it. Inside, police found the Victoria's Secret "Pink" bag, a pistol with a pink and purple camouflage pattern on it, $7,044.00 inside the pocket of a pair of sweatpants, several pairs of sunglasses packaged for sale, a turquoise Michael Kors purse, and a small change purse later identified as belonging to the victim's daughter.

On June 25, 2020, a grand jury indicted Petitioner for (1) First Degree Robbery, (2) Grand Larceny, (3) Burglary, (4) Conspiracy to Commit First Degree Robbery, (5) Conspiracy to Commit Grand Larceny, and (6) Conspiracy to Commit Burglary. The State also charged Ms. Musick with the same offenses but, for reasons not clear from the record, did not pursue charges against Ms. Porter for her involvement.

On March 29, 2021, Petitioner went to trial.^[2] Ms. Collins testified that she recognized Ms. Musick and Petitioner as the perpetrators. She explained that she knew Ms. Musick personally and that she recognized Petitioner from photos on Ms. Musick's social media accounts. Ms. Collins said that before the robbery, she knew Petitioner was Ms. Musick's girlfriend and that Petitioner went by the nickname "Q." Ms. Collins emphasized that she "looked [Petitioner] right in her face in my house[]" on the night of the robbery, and Ms. Collins specifically identified Petitioner in court as one of the perpetrators. Ms. Collins clarified her belief that Ms. Porter had some involvement in the crime but that she did not directly participate in the beating. Ms. Collins also identified the items recovered from Petitioner's and Ms. Musick's home as those stolen from her. She explained that because she had been severely beaten shortly before listing the stolen items in the police report, she forgot to list the turquoise Michael Kors purse. But at trial, she identified the purse as hers and explained she stored the Victoria's Secret bag inside it.

Petitioner testified in her own defense. On direct examination, she denied knowing Ms. Collins and being at the scene of the robbery, and she claimed she generally avoided Ms. Porter. But Petitioner did not deny that the firearm and other items recovered from her home belonged to the victim. Instead, she explained that Ms. Porter brought the firearm and the turquoise purse to her home. To explain the cash recovered by police, Petitioner offered bank records from the months preceding the robbery which showed that she withdrew $5,000 on May 7, 2020, and that Ms. Musick withdrew $3,356 on May 22, 2020.

On cross-examination, Petitioner confirmed she was Ms. Musick's only girlfriend at the time of the robbery. When the State inquired about Petitioner's testimony regarding Ms. Porter, the following exchange occurred:

Q. This business about Mandy Porter, you don't like to be associated with Mandy Porter. Why is that?

A. Because she gets into a lot of

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