State v. Martin

• Decision Date: 23 November 2009
• Docket Number: No. 34709.,34709.
• Citation: 687 S.E.2d 360
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Michael E. MARTIN, Defendant Below, Appellant.

687 S.E.2d 360

STATE of West Virginia, Plaintiff Below, Appellee v. Michael E. MARTIN, Defendant Below, Appellant.

No. 34709.

Supreme Court of Appeals of West Virginia.

Submitted September 22, 2005.

Decided November 23, 2009.

Syllabus by the Court

1. "West Virginia Rules of Evidence 608(a) permits the admission of evidence in the form of an opinion or reputation regarding a witness's character for truthfulness or untruthfulness, subject to two limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. The admission of testimony pursuant to W. Va. R. Evid. 608(a) is within the sound discretion of the trial judge and is subject to W. Va. R. Evid. 402, which requires the evidence to be relevant; W. Va. R. Evid. 403, which requires the exclusion of evidence whose `probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[;]' and W. Va. R. Evid. 611, which requires the court to protect witnesses from harassment and undue embarrassment." Syl. Pt. 2, State v. Wood, 194 W.Va. 525, 460 S.E.2d 771 (1995).

2. "The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses." Syl. Pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

3. "[A]n expert may not give an opinion as to whether he personally believes the child, nor an opinion as to whether the sexual assault was committed by the defendant, as these would improperly and prejudicially invade the province of the jury." Syl. Pt. 7, in part, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

Gregory L. Ayers, Esq., Ira Mickenberg, Esq., Public Defender Corporation, Charleston, WV, Attorneys for the Appellant.

Kristen L. Keller, Esq., Prosecuting Attorney's Office, Beckley, WV, Attorney for the Appellee.

PER CURIAM:

This case is before the Court from the final Order of the Circuit Court of Raleigh County, West Virginia, presumably entered on January 18, 2008,¹ denying the Appellant's, Michael E. Martin's, post-trial motions and sentencing him to life without mercy after a jury convicted him of first degree murder with no recommendation of mercy. The Appellant was also sentenced to serve one to five years for his jury conviction of felony conspiracy.² Based upon a review of the record, the parties' briefs and arguments, and all other matters before the Court, we find that reversible error was committed during the trial of this matter and, accordingly, the Court reverses the conviction and remands this case for a new trial.

I. Factual and Procedural History

In the early morning of August 29, 2006, Corporal Charles E. "Chuck" Smith, III, of the Beckley Police Department was shot and killed during an undercover drug deal. On August 28, 2006, Cpl. Smith and Corporal William Reynolds, also of the Beckley Police Department, went out for dinner, followed by stops at various bars. At some point during the evening, the two were joined by Cpl. Smith's girlfriend, Jasminda Gonzales.³ The evidence was clear that Cpl. Smith and Cpl. Reynolds were not on duty; however, there was evidence that officers in the narcotics unit were on-call twenty-four hours a day.

While at the Pikeview Lounge, an individual named Timothy Blackburn approached Cpl. Smith about a drug deal that was going to occur involving Jelly Bread, a well-known drug dealer. The officers and Ms. Gonzales left the bar in Cpl. Smith's jeep and followed Mr. Blackburn to the location where the drug deal was going to occur, which was at an apartment complex where a woman named Alfreda "Freda" Lawson lived. After waiting for a period of time, nothing transpired and Mr. Blackburn left.

The officers, however, were approached by Ms. Lawson, who advised them that she could find a dealer to sell them drugs, because it looked like Jelly Bread was not going to show. Ms. Lawson offered the officers, whom she apparently did not know were police, her keys as a security deposit, so if the officers were robbed, the officers would have access to her apartment. At Ms. Lawson's request, Cpl. Smith followed Ms. Lawson and another male who had been inside Ms. Lawson's apartment, Bobby Cook, around the corner from Ms. Lawson's apartment complex to an abandoned swimming pool area that was known for local drug trafficking. Cpl. Reynolds and Ms. Gonzales traveled to the same area in Cpl. Smith's vehicle. Officer Smith ultimately returned to the vehicle and nothing occurred at this point.

Subsequently, the two officers and Ms. Gonzales stopped a suspicious red vehicle. Cpl. Reynolds had the license plate checked on the vehicle and the occupants were patted down, but ultimately released without incident.

Thereafter, Cpl. Smith, Cpl. Reynolds, and Ms. Gonzales returned to Ms. Lawson's home to return keys that Ms. Lawson had left as security for the drug transaction that she attempted to arrange. There was evidence that Cpl. Reynolds screamed and cussed at Ms. Lawson and that Ms. Lawson yelled that "[y]ou are the police and I'm not coming out."

At this point, the Appellant, Michael Martin, appeared for the first time on the street. Even though Cpl. Reynolds testified that the Appellant approached him, the Appellant stated that he was approached by the police. Cpl. Reynolds testified that the Appellant offered to obtain drugs for Cpl. Smith. The Appellant used Cpl. Smith's cell phone to call someone, later identified as Thomas Leftwich, to arrange a drug deal. After this, the two police officers, Ms. Gonzales, and the Appellant left in Cpl. Smith's vehicle. The Appellant asked Cpl. Smith for front money for the drugs and Cpl. Smith refused to give him any money.

The foursome ultimately parked across the street from a house. The Appellant walked toward the house, reached the bottom street-level stairs, and then returned to the Jeep without going into the house. At that point, the Appellant used Cpl. Smith's cell phone to place another call. Cpl. Smith and the Appellant argued about who would go into the house. The Appellant asked Cpl. Smith to go in alone and Cpl. Smith refused.

Ultimately, Cpl. Smith and the Appellant walked toward the house. Cpl. Smith and the Appellant were standing at the bottom of the street-level stairs, looking up at a person who stood on the steps. Cpl. Reynolds heard a "quick confrontation of words." Ms. Gonzales testified that she saw Cpl. Smith hand something to the person on the stairs. Cpl. Reynolds saw Cpl. Smith pull out his badge before shots were fired. Cpl. Smith died from the bullet wounds he received. The Appellant fled the scene and was later arrested at the home of his stepfather, Onie Cook. The shooter was Thomas Leftwich, the person the Appellant had called in trying to arrange the drug transaction. Thomas Leftwich was convicted of first degree murder.

The Appellant did not testify at his trial or offer any evidence at trial even though he relied upon the defense of entrapment. According to his statement given to police, which was introduced into evidence during the trial, the Appellant stated that he did not know Mr. Leftwich and had only gotten his phone number earlier the same day of the shooting. He had no idea that Mr. Leftwich was armed or that he would shoot the police officer. While the Appellant confessed to being involved in a drug transaction, namely the delivery of cocaine, he did not confess to the murder of Cpl. Smith.

The jury was instructed on premeditated murder and felony murder, including the underlying felonies of delivery and attempted delivery of a controlled substance and robbery, as well as attempted robbery. The underlying robbery charge was given, notwithstanding that the indictment against the Appellant indicated the sole underlying crime supporting felony murder was the delivery and attempted delivery of a controlled substance. The jury, after deliberating, convicted the Appellant of first degree murder as charged in Count 1 of the indictment, with no recommendation of mercy, and felony conspiracy.

II. Discussion of Law

Expert Testimony as to Witness Credibility

The Appellant claims that the circuit court erred in allowing Captain Scott Van Meter, a trooper with the West Virginia State Police, who was also the chief investigator for the State, to testify, over objection, to his opinion that the two main prosecution witnesses, referring to Cpl. Reynolds and Ms. Gonzales, were telling the truth.

At issue regarding this alleged error is the following testimony concerning credibility:

(By Ms. Keller of Captain Van Meter):

Q. In your years of experience and — 22 years of experience and as a result of your training, have you — do you have familiarity with comparisons of witnesses' testimony?

A. Yes, I do.

Mr. Daniell: Objection, Your Honor. We might want to approach.

The Court: Okay.

(Counsel approaches the bench.)

Mr. Daniell: Judge, I have not perfected the reading of other people's minds quite yet. However, I'm a little suspicious that from the introduction of that question, we may be attempting to elicit testimony from Captain Van Meter about the credibility of witnesses. That is a sole question for the jury. I think it would be highly improper to have a witness for the State to vouch for or to demean the credibility of any particular witnesses, unless — I ain't vouching for Paul Leftwich. If he wants to call Paul Leftwich a liar, he can do it. I won't object to that. But outside Paul Leftwich or any Leftwiches, I didn't believe them. But, you know, I'm not sure if that's were we're going or not, but we need to be real careful.

Ms. Keller: Except the rules of evidence specifically allow that after the credibility of a witness has been impeached, that witness's credibility...