State v. Martisko

• Citation: 566 S.E.2d 274,211 W.Va. 387
• Decision Date: 17 June 2002
• Docket Number: No. 30044.,30044.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Michael MARTISKO, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

566 S.E.2d 274

211 W.Va. 387

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

No. 30044.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 2002.

Decided June 17, 2002.

Darrell V. McGraw, Jr., Esq., Attorney General, Heather D. Foster, Esq., Assistant Attorney General, Charleston, for Appellees.

Jack Wood, Esq., Public Defender Corporation, Charleston, for Appellant.

PER CURIAM.

Appellant and defendant below Michael Martisko challenges his misdemeanor convictions of domestic battery and obstruction for an altercation with his then-girlfriend and with police who responded to the scene. A magistrate court jury convicted appellant of these two charges and the Circuit Court of Ohio County affirmed. On appeal, Mr. Martisko alleges, inter alia, that the circuit court erred in affirming his conviction when the magistrate had erred below in excluding certain evidence Mr. Martisko had sought to introduce to impeach the credibility of the victim, who had not appeared to testify. Because we find that the magistrate court, and subsequently the circuit court, improperly denied Mr. Martisko an opportunity to impeach the victim/witness, we reverse the conviction for domestic battery.

I. BACKGROUND

On the afternoon of October 9, 1999, Wheeling police responded to a report of an altercation in progress. Two officers arrived at the reported address and were met by one Rayla Garrison, a friend or neighbor of the victim. Ms. Garrison urged the officer to enter the residence because a man and woman were upstairs fighting. Upon entering the residence by the rear stairs, the officers observed Michael Martisko and Madylyn Madden in the front room of the apartment. Ms. Madden was bleeding from a split lip and had blood on her face. The officers later reported that upon their entry into the front room of the apartment, a crying, bleeding Ms. Madden stated, "He hit me," or words to that effect. However, the officers at no time actually saw Mr. Martisko strike Ms. Madden.

The officers cuffed Mr. Martisko without incident, but as they attempted to remove him from the home he began to struggle. In the ensuing fray, a kicking and squirming Martisko and a police officer rolled down a flight of twelve steps. That officer, and at least one other, reported being injured in the scuffle. Subsequently, Mr. Martisko was charged with battery, domestic battery, battery of a police officer and obstruction of a police officer.

At trial in magistrate court, the state called four police officers as witnesses. The state, as well as the defense, attempted to call the victim, Ms. Madden, and the neighbor Ms. Garrison, but neither appeared. To meet its burden of proof, the state witnesses were asked what the victim had told them of the events of that afternoon. Over defense objection, the officers testified that Ms. Madden stated, "He hit me," or words to that effect, as the officers entered the room. The officers also testified that Ms. Madden was bleeding from the mouth, had blood on her face, had a contusion on her knee, and was shaken and crying. The magistrate also allowed the officers to testify over defense objection that after Mr. Martisko's arrest Ms. Madden again stated that Mr. Martisko had hit her, and kicked her, and that Ms. Garrison had reported being hit and kicked by Mr. Martisko. All of this testimony was allowed under the "excited utterance" exception contained in Rule 803 of the West Virginia Rules of Evidence.

Later in the trial, defense counsel attempted to impeach the credibility of the absent Ms. Madden by introducing into evidence a certain document or documents that purportedly showed that Ms. Madden had herself been convicted of domestic battery after an incident with an erstwhile boyfriend, and that Ms. Madden had filed similar charges against that boyfriend, but had later recanted, causing the charges against the boyfriend to be dropped. The magistrate refused to accept the document or documents into evidence.

The jury found Mr. Martisko guilty of only two of the four charges, domestic battery and obstruction. A magistrate later sentenced Mr. Martisko to one year in jail for each charge, to run concurrently, plus a fine and costs. Mr. Martisko appealed to the Circuit Court of Ohio County, which affirmed his convictions. Now before this Court, appellant alleges a variety of errors. Because we feel that Mr. Martisko should have had an opportunity to impeach the victim, we reverse his conviction for domestic battery.

II. STANDARD OF REVIEW

We have observed in other cases that our standard of review in an evidentiary dispute such as this depends upon the specific actions of a lower court:

To the extent the trial court's admission of evidence was based upon an interpretation of a statute or West Virginia Rule of Evidence, our standard of review is plenary. State v. Omechinski, 196 W.Va. 41, 45, 468 S.E.2d 173, 177 (1996); Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995). Our review of a trial court's ruling to admit or exclude evidence if premised on a permissible view of the law, however, is only for an abuse of discretion. Id.

State v. Crabtree, 198 W.Va. 620, 626, 482 S.E.2d 605, 611 (1996)

. Or in other words, when merely applying our existing law: "A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). However, we have also stated:

While ordinarily rulings on the admissibility of evidence are largely within the trial judge's sound discretion, a trial judge may not make an evidentiary ruling which deprives a criminal defendant of certain rights, such as the right to examine witnesses against him or her, to offer testimony in support of his or her defense, and to be represented by counsel, which are essential for a fair trial pursuant to the due process clause found in the Fourteenth Amendment of the Constitution of the United States and article III, § 14 of the West Virginia Constitution.

Syl. pt. 3, State v. Jenkins, 195 W.Va. 620, 466 S.E.2d 471 (1995).

III. DISCUSSION

A. Hearsay Testimony

Appellant argues that he should have been allowed to introduce certain documents into evidence in an effort to impeach the testimony of Ms. Madden, whose out-of-court statements were admitted under the excited utterance exception to the hearsay rule. As we have observed in the past, our Constitution demands that an accused be able to face his accusers:

The Confrontation Clause contained in the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him." This clause was made applicable to the states through the Fourteenth Amendment to the United States Constitution.

Syl. pt. 1, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990). And because of this requirement, the law favors live testimony:

[A]s the Supreme Court explained in [Ohio v.] Roberts, [448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ] "the Confrontation Clause reflects a preference for face-to-face confrontation at trial." 448 U.S. at 63,100 S.Ct. 2531. As the United States Supreme Court articulated in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), the Confrontation Clause envisions:

a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Id. at 242-43, 15 S.Ct. 337.

State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999). The Supreme Court has explained that "[t]he preference for live testimony in the case of statements like those offered in Roberts is because of the importance of cross-examination, `the greatest legal engine ever invented for the discovery of the truth.'" White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)).

However, it is equally clear that live testimony is not always possible and so our law has made room for the introduction of out-of-court statements. Speaking of the Confrontation Clause, this Court has observed: "This provision creates a strong preference for live testimony; however, admission of reliable out-of-court statements are not categorically prohibited." State v. James Edward S., 184 W.Va. 408, 411, 400 S.E.2d 843, 846 (1990). The kinds of out-of-court statements that may be used, and the proper methods of introducing such statements, are described by the Rules of Evidence, and the case law that has interpreted them. As all courtroom practitioners know:

Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules.

Syl. pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990). In the instant case, the victim and her friend or neighbor Ms. Garrison were the only eyewitnesses to the alleged domestic battery. Their statements to the police were admitted under the "excited utterance" exception to the hearsay rule, which describes the term to mean: "Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Rule 803(2),...