State v. Marple

• Citation: 197 W.Va. 47,475 S.E.2d 47
• Decision Date: 14 June 1996
• Docket Number: No. 23163,23163
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. James Stephen MARPLE, Defendant Below, Appellant.

Page 47

475 S.E.2d 47

197 W.Va. 47

STATE of West Virginia, Plaintiff Below, Appellee, v. James Stephen MARPLE, Defendant Below, Appellant.

No. 23163.

Supreme Court of Appeals of West Virginia.

Submitted May 28, 1996.

Decided June 14, 1996.

[197 W.Va. 48] Syllabus by the Court

1. Plain error review creates a limited exception to the general forfeiture policy pronounced in Rule 103(a)(1) of the West Virginia Rules of Evidence, in that where a circuit court's error seriously affects the fairness, integrity, and public reputation of the judicial process, an appellate court has the discretion to correct error despite the defendant's failure to object. This salutary and protective device recognizes that in a criminal case, where a defendant's liberty interest is at stake, the rule of forfeiture should bend slightly, if necessary, to prevent a grave injustice.

2. For the purposes of West Virginia's "plain error" rule, a "plain" error is one that is clear and uncontroverted at the time of appeal.

3. In determining whether the assigned plain error affected the "substantial rights" of a defendant, the defendant need not establish that in a trial without the error a reasonable jury would have acquitted; rather, the defendant need only demonstrate the jury verdict in his or her case was actually affected by the assigned but unobjected to error.

Scott F. Reynolds, Prosecuting Attorney, Diana H. Crutchfield, Assistant Prosecuting Attorney, Moundsville, for Appellee.

Gregory A. Gellner, Artimez & Gellner, Wheeling, for Appellant.

CLECKLEY, Justice:

This is an appeal from a conviction of first degree murder with a recommendation of mercy. The defendant below and appellant herein, James S. Marple, was convicted by a jury in the Circuit Court of Marshall County of first degree murder in causing the death of Tammy Winesberg and was sentenced to life imprisonment with a possibility of parole. On appeal, we are asked to determine whether reversible error occurred when the prosecuting attorney deliberately elicited testimony regarding the defendant's pretrial silence in violation of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). ¹

I. FACTUAL AND PROCEDURAL HISTORY

The defendant and Tammy Winesberg ("Tammy") dated for several years. ² Tammy was employed at a Wendy's restaurant in Benwood, and the defendant was employed in Marshall County as a nurse at a local hospital. On the night of December 12, 1993, Tammy and the defendant visited several bars along with an acquaintance, Roberta Berringer. While at one of the bars, the defendant and Tammy were observed having an argument. Ms. Berringer testified that, after the heated exchange, the defendant and Tammy abandoned her at the bar. The defendant and Tammy apparently went to his apartment at the McMechen Housing Authority after they abandoned Berringer.

Tammy and the defendant were seen at 1:50 a.m. in front of his apartment building by a police officer, who testified the defendant "grabbed her arm, pointed his finger at [the officer] and lifted his arm up as if--it appeared as though he was going to strike her at that time." A neighbor of the defendant, Beverly Bartsch, testified that at about 2:30 a.m. she heard Tammy banging on the defendant's door and yelling, "Please let me in. I'll be good." Ms. Bartsch indicated Tammy pounded on the door for about five minutes before the defendant let her into the apartment. Ms. Bartsch telephoned the defendant at 2:45 a.m. and spoke with him for about five minutes. ³ Ms. Bartsch testified that while she spoke with the defendant she could hear Tammy's voice in the background. ⁴

A fifteen-year-old minor, who lived in an apartment adjacent to the defendant, testified her bedroom wall was the common-wall that separated her bedroom from the defendant's bedroom and that shortly after 3:00 a.m. she was awakened by a "big loud boom." At about 3:20 a.m., Tammy Gordon, who also lived in an apartment abutting against the defendant's apartment, was awakened when she heard the name "Tammy" being yelled out from the defendant's apartment. Ms. Gordon testified that when she was awakened she heard banging noises and other sounds coming from the defendant's apartment. Within the space of fifteen minutes, Ms. Gordon heard the defendant talking with someone on the phone, heard someone walking down the stairs in the defendant's apartment, and heard the defendant's back door open.

The defendant's mother and stepfather testified they received a call from the defendant at about 3:20 a.m., and he informed them that Tammy was hurt and he wanted them to come over. ⁵ The defendant placed a Officers K. Cecil and G. Cramer testified that upon arriving at the defendant's apartment, they found the back door slightly open and a blood smear on the outside doorknob of the back door. When the officers entered the defendant's apartment, they observed the defendant "kneeling over" Tammy in the "dining room/kitchen area of the apartment." The officers testified to seeing "some blood in various places on the tile floor around her body" and "a large bump on the left temple area of" Tammy's head. Additionally, the officers "observed blood on the front of Mr. Marple's blue jeans, on his hand, [and] on his feet." The officers testified the defendant informed them he had tripped over Tammy when he got out of bed to go to the bathroom and he surmised she must have fallen out of bed and hit her head. There was further evidence that the defendant stated he carried Tammy down to the kitchen and placed her on the floor.

                [197 W.Va. 50] second call to his mother and stepfather within five minutes of his first call and said, "You haven't left yet."   Rudi Conti, a dispatcher for the City of McMechen, testified he received an emergency call from an unidentified male at 3:37 a.m. informing him that a woman was bleeding from the head "at 230 Logan Street," the residence of the defendant.  Mr. Conti dispatched an emergency medical squad and advised the police of the call
                

Susan Conners, an EMT worker, testified that while she was administering aid to Tammy she heard the defendant state, "I hit her once," "I didn't want to kill anyone," and "I never meant it." Another EMT worker, John Lowe, testified he overheard the defendant say to Tammy, "Wake up. Wake up. I didn't want to hurt you." The record indicates it was not until Tammy was taken to a local hospital that it was discovered by authorities she had been shot "at close range" in her left temple. Tammy died seven days later on February 20, 1993.

On July 13, 1993, the Marshall County grand jury returned a one-count indictment against the defendant charging him with the first degree murder of Tammy. On March 2, 1994, a jury returned a verdict of guilty of first degree murder, with a recommendation of mercy. ⁶ The defendant was subsequently sentenced to life imprisonment with a possibility of parole. ⁷ On appeal, the defendant contends it was reversible error for the prosecutor to have Officer Cecil testify about the defendant's post-Miranda silence.

II.

DISCUSSION

The defendant contends he is entitled to a new trial because the trial court erred in admitting evidence of his pretrial silence that was deliberately elicited in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), ⁸ and State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). ⁹

                [197 W.Va. 51] The evidentiary rulings of a circuit court, including those affecting constitutional rights, are reviewed under an abuse of discretion standard.  See McDougal v. McCammon, 193 W.Va. 229, 235, 455 S.E.2d 788, 794 (1995) (deference is required given how quickly evidentiary rulings must be made, and trial courts must be able to make these decisions without fear of reversal);  United States v. Jackson, 67 F.3d 1359, 1366 (8th Cir.1995);  United States v. Quintana, 70 F.3d 1167, 1170 (10th Cir.1995).  Even if we find the circuit court abused its discretion, the error is not reversible unless the defendant was prejudiced.  See State v. Guthrie, 194 W.Va. 657, 684, 461 S.E.2d 163, 190 (1995).  After a careful review of the record and the briefs of the parties, we find the issue presented on appeal was not properly preserved under the "raise and waive" rule that we announced recently in State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).   Under LaRock, we may overturn the verdict only if the admission of the evidence constitutes plain error.  Under the circumstances of this case, we find the evidence does not constitute error egregious enough to warrant a new trial.  Accordingly, we affirm the conviction.
                

III.

ANALYSIS

The defendant for the first time on appeal makes a serious and substantial objection to the prosecution's questioning of a State's witness. Rule 103(a) of the West Virginia Rules of Evidence states that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific grounds of objection, if the specific ground was not apparent from the context[.]" ¹⁰ It is a fundamental proposition of law that an appellate court generally will not entertain an alleged trial error unless it has been properly preserved at trial. See State v. Miller, 194 W.Va. 3, 17, 459 S.E.2d 114, 128 (1995) (" '[o]ne of the most familiar procedural rubrics in the administration of justice is the rule that the failure of a litigant to assert a right in the trial court will result' in the imposition of a procedural bar to an appeal of that issue"), quoting United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995); State v. Smith, 178 W.Va. 104, 112, 358 S.E.2d 188, 196 (1987) (" '[o]ur general rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal' "), quoting Syl. pt. 9, State v....