State v. Mason

• Decision Date: 15 June 1995
• Docket Number: No. 22581,22581
• Citation: 194 W.Va. 221,460 S.E.2d 36
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth Jay MASON, Defendant Below, Appellant.

Page 36

460 S.E.2d 36

194 W.Va. 221

STATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth Jay MASON, Defendant Below, Appellant.

No. 22581.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1995.

Decided June 15, 1995.

[194 W.Va. 223] Syllabus by the Court

1. The mission of the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution

[194 W.Va. 224] is to advance a practical concern for the accuracy of the truth-determining process in criminal trials, and the touchstone is whether there has been a satisfactory basis for evaluating the truth of the prior statement. An essential purpose of the Confrontation Clause is to ensure an opportunity for cross-examination. In exercising this right, an accused may cross-examine a witness to reveal possible biases, prejudices, or motives

2. "The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement." Syllabus Point 2, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

3. "In order to satisfy its burden of showing that the witness is unavailable, the State must prove that it has made a good-faith effort to obtain the witness's attendance at trial. This showing necessarily requires substantial diligence." Syllabus Point 3, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

4. "Even though the unavailability requirement has been met, the Confrontation Clause contained in the Sixth Amendment to the United States Constitution mandates the exclusion of evidence that does not bear adequate indicia of reliability. Reliability can usually be inferred where the evidence falls within a firmly rooted hearsay exception." Syllabus Point 5, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

5. "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 [exemptions under Rule 801(d) ]; or 3) the statement is hearsay but falls within an exception provided for in the rules [exceptions under Rules 803 and 804]." Syllabus Point 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).

6. For purposes of the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception.

7. When ruling upon the admission of a narrative under Rule 804(b)(3) of the West Virginia Rules of Evidence, a trial court must break the narrative down and determine the separate admissibility of each single declaration or remark. This exercise is a fact-intensive inquiry that requires careful examination of all the circumstances surrounding the criminal activity involved.

8. To satisfy the admissibility requirements under Rule 804(b)(3) of the West Virginia Rules of Evidence, a trial court must determine: (a) The existence of each separate statement in the narrative; (b) whether each statement was against the penal interest of the declarant; (c) whether corroborating circumstances exist indicating the trustworthiness of the statement; and (d) whether the declarant is unavailable.

9. Absent a showing of particularized guarantees of trustworthiness, the admission of a third-party confession implicating a defendant violates the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution. The burden is squarely upon the prosecution to establish the challenged evidence is so trustworthy that adversarial testing would add little to its reliability. Furthermore, unless an affirmative reason arising from the circumstances in which the statement was made provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.

10. Even if the hearsay does not fit within an established exception, its admissibility is not barred by the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution if, considered apart from any corroborating evidence, there is a showing of particularized 11. A trial court specifically must examine whether the circumstances existing at the time a declarant gives a statement make the statement particularly worthy of belief so that the test of cross-examination would have been a work of supererogation. As no mechanical test prevails, the character of the guarantees of trustworthiness must be weighed.

[194 W.Va. 225] guarantees of trustworthiness. Consideration should be given to the totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief--so worthy of belief that the test of cross-examination would be a work of supererogation. The guarantees of trustworthiness must be at least as reliable as evidence admitted under a firmly rooted hearsay exception. An affirmative reason, arising from the circumstances in which the statement was made, is necessary to rebut the presumption of unreliability and exclusion under the Confrontation Clause.

Pamela Games-Neely, Pros. Atty. for Berkeley County, Martinsburg, for appellee.

James A. McKowen, Hunt, Lees, Farrell & Kessler, Charleston, for appellant.

CLECKLEY, Justice:

The defendant, Kenneth Jay Mason, appeals the final order of the Circuit Court of Berkeley County, entered March 14, 1994, which sentenced him to life imprisonment with a recommendation of mercy for his conviction by jury of first degree murder. On appeal, the defendant raises several assignments of error. The primary focus of most of the alleged errors concerns the admission of extrajudicial statements given to the police by two individuals who were unavailable to testify at trial. We address only the hearsay and Confrontation Clause issues because we find the other assignments of error to be without merit.

I. FACTS AND PROCEDURAL BACKGROUND

On the evening of February 8, 1993, several people were drinking beer at the defendant's house. Those at the defendant's house included the defendant, Tina Adams, Rodney Canfield, William Davis, Brian Cook, and the victim, Timothy Sanders. At some point in the evening, the defendant, Mr. Canfield, Mr. Davis, and the victim got in the victim's car and drove to a remote area. Once at the area, the four men exited the car, and the defendant allegedly pulled out a gun, aimed it at the victim's head, and shot. After the shot, the victim fell to the ground, and the defendant handed Mr. Canfield the gun and told him to shoot the victim. It is disputed whether Mr. Canfield fired the weapon. In his statement, Mr. Canfield asserted he pretended the gun jammed and gave it back to the defendant. At that point, the victim was shot by either the defendant or Mr. Canfield. In spite of this injury, the victim was able to get up and run into the woods. Mr. Davis also ran into the woods. Mr. Davis testified he ran into the woods because he was afraid and did not want to be involved. The defendant and Mr. Canfield drove off in the victim's car.

After returning to the defendant's house to retrieve a flashlight, the defendant and Mr. Canfield went to search for the victim. They found the victim lying along side a road, and either the defendant or Mr. Canfield fired two more shots into the defendant's head. The two men then placed the victim's body in the trunk of the car and returned to the defendant's house. ¹

In a statement given to the police, Robert Wasson, Jr., said that he arrived at the defendant's house before the defendant and Mr. Canfield returned for the first time to get a flashlight. Upon the defendant's and Mr. Canfield's second return to the house, Mr. Wasson was asked and agreed to follow the two men in a separate vehicle. The defendant and Mr. Canfield drove to Maryland The victim's body and the car were discovered on February 9, 1993, and reported to the police. During the investigation of the murder, the police took several extrajudicial statements. At issue before the trial court were statements given by Mr. Canfield, Mr. Wasson, and Mr. Davis. Prior to trial, the defendant learned the State intended to introduce some of their statements as evidence, however, all three men would not testify at trial because both Mr. Canfield and Mr. Davis were invoking their Fifth Amendment right against self-incrimination and Mr. Wasson was unavailable for medical reasons.

[194 W.Va. 226] and disposed of the victim's body and then took the victim's car to another location in Maryland and burned it. After they disposed of the victim's body and the car, Mr. Wasson drove the defendant and Mr. Canfield back to the defendant's house.

Before the trial began, the defendant filed a motion in limine to exclude any out-of-court statements given by witnesses who would not testify at the trial. At a pretrial conference, defense counsel called Sergeant Fred Wagoner of the West Virginia State Police to testify. Sergeant Wagoner stated that he questioned parts of Mr. Davis's statement but believed it was "true and accurate to the best of [his] knowledge." Similarly, he agreed with defense counsel that with regard to Mr. Canfield's statement "there are parts of the statement which [he had] some doubt as to the truth and...