State v. McKinley

Decision Date29 September 2014
Docket NumberNo. 13–0745.,13–0745.
Citation764 S.E.2d 303,234 W.Va. 143
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Marcus Patrele McKINLEY, Defendant Below, Petitioner.

Paul R. Cassell, Cassell & Crewe, P.C., Wytheville, VA, for Petitioner.

Patrick Morrisey, Attorney General, Laura Young, Assistant Attorney General, Julie Warren, Assistant Attorney General, Charleston, WV, for Respondent.


DAVIS, Chief Justice:

The petitioner herein, Marcus McKinley [hereinafter Mr. McKinley], was convicted of first degree murder by a jury in the Circuit Court of Mercer County. The jury did not recommend mercy; consequently, the circuit court sentenced Mr. McKinley to life in prison without the possibility of parole. Here, Mr. McKinley has made the following assignments of error: (1) improper admission of prior bad act evidence, (2) admission of improper testimony from a social worker, (3) improper exclusion of testimony by a psychiatrist, (4) erroneous rejection of a plea agreement, (5) improper admission of opinion testimony by a fact witness, (6) erroneous ruling concerning Facebook evidence, and (7) the prejudicial impact of the cumulative effect of the errors. After a careful review of the briefs, the record submitted on appeal, and listening to the argument of the parties, we affirm.


In 2007 or early 2008, Mr. McKinley met Ayanna Patton. At the time, Ms. Patton was about fifteen years old. Mr. McKinley and Ms. Patton eventually began dating. At some point during the relationship, a child was born. The relationship between the couple was very violent. On numerous occasions, the police responded to domestic violence incidents between the couple. The volatility of the relationship caused the Department of Health and Human Resources to place the couple's child in the care of Ms. Patton's mother.

It appears that in May 2011, Ms. Patton had a protective order in place that prevented Mr. McKinley from having any contact with her. In spite of the protective order, on May 18, 2011, Ms. Patton met with Mr. McKinley at a McDonald's restaurant. While at the restaurant, Ms. Patton asked Mr. McKinley for money to help pay her cell phone bill. Mr. McKinley gave Ms. Patton some money for the phone bill. Ms. Patton left the restaurant and drove alone to an apartment she had rented.1 Mr. McKinley did not know where Ms. Patton was staying. Therefore, he contacted a friend and asked for the address where Ms. Patton was living. After obtaining the address, Mr. McKinley drove to Ms. Patton's apartment.

When Mr. McKinley arrived at Ms. Patton's apartment, they had a brief argument regarding a woman Mr. McKinley knew. Mr. McKinley spent the night at the apartment. In the early morning hours of May 19, 2011, Mr. McKinley awakened and began reading text messages on Ms. Patton's cell phone. Mr. McKinley saw several text messages between Ms. Patton and another man. Mr. McKinley became upset over the contents of the text messages and retrieved a gun he carried. Mr. McKinley aimed the gun at Ms. Patton and shot her five times. Ms. Patton died at the scene.

After Mr. McKinley killed Ms. Patton, he fled the apartment and drove to North Carolina. During the process of fleeing to North Carolina, Mr. McKinley used a cell phone to contact several people. He gave incriminating statements indicating that he had killed Ms. Patton. The local police were able to track Mr. McKinley to North Carolina because of signals that were given off by the cell phone he was using—which apparently belonged to Ms. Patton. When the police located Mr. McKinley in North Carolina, he gave incriminating statements indicating he killed Ms. Patton.

Mr. McKinley was brought back to West Virginia. On February 15, 2012, he was indicted for first degree murder in the death of Ms. Patton. Prior to the trial, it was learned that the prosecutor had a conflict of interest in the case. The conflict of interest involved the prosecutor's prior representation of Mr. McKinley in another criminal case. Initially, the trial court was reluctant to disqualify the prosecutor. While the conflict of interest issue was still pending before the court, the parties entered into a plea agreement in which Mr. McKinley would plead guilty to second degree murder. However, the trial court rejected the plea agreement and disqualified the prosecutor. A special prosecutor was appointed.

The case was tried before a jury as a unitary trial. That is, the defendant elected not to bifurcate the issue of guilt and mercy.2 During the trial, the State called twenty-seven witnesses during its case-in-chief. Mr. McKinley called thirteen witnesses during his case-in-chief. Mr. McKinley also testified and admitted to shooting Ms. Patton five times. The State called six rebuttal witnesses. At the conclusion of all the evidence, the jury returned a verdict convicting Mr. McKinley of first degree murder without a recommendation of mercy. The trial court immediately sentenced Mr. McKinley to prison for life without a possibility of parole. Mr. McKinley filed post-trial motions which were denied. This appeal followed.


Mr. McKinley has asserted various assignments of error that are subject to specific standards of review that we set forth in the discussion section. In addition to those standards, we also note that:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Mindful of the scope of our review, we proceed to consider the errors assigned by Mr. McKinley.


Mr. McKinley has assigned seven issues as error in this case. Our resolution of those issues does not require the creation of any new point of law. As such, this case would ordinarily be issued as a per curiam opinion. However, as discussed below, this Court will no longer issue per curiam opinions. Consequently, before we reach the merits of this appeal, we will take this opportunity to explain why per curiam opinions are not necessary in West Virginia jurisprudence.

A. Per Curiam Opinions Are No Longer Necessary

A court of last resort speaks only through its written decisions, and it is critical to the development of the common law in this State that those decisions adhere to a well-understood pattern. As a result of the widespread changes to the appellate process in this State that took place in 2010, the number of written decisions on the merits issued by the Court has expanded significantly. The appeal by right process adopted by the Court has been fully implemented, and the time has come to more closely examine the usefulness of the per curiam opinion. For the reasons that follow, we conclude that the per curiam opinion is no longer necessary.

1. Scope and form of decisions. The scope and form of the decisions of this Court are primarily governed by the West Virginia Constitution. Our decisions are required to address “every point fairly arising upon the record” and are “binding authority upon any court if concurred in by a majority of the justices. W. Va. Const. art. VIII, § 4. With regard to the Court's decision to affirm, reverse, or modify the order of a lower tribunal, “the reasons therefor shall be concisely stated in writing and preserved with the record.” Id. The Constitution also contains a unique provision that is applicable to published opinions: “it shall be the duty of the court to prepare a syllabus of the points adjudicated in each case in which an opinion is written and in which a majority of the justices thereof concurred, which shall be prefixed to the published report of the case.” Id. The consequence of this provision is that the Court itself—not the reporter of decisions or the publisher—drafts the syllabus in a published opinion. As a result, the syllabus in every published opinion is an integral part of the decision itself. Each point in the syllabus is numbered, which facilitates ease of reference in later opinions.

Syllabus points come in two forms. Original syllabus points announce an important new point of law decided in the case. Quoted syllabus points repeat language used in a prior original syllabus, along with a citation to the case where the point was originally established. The syllabus is not intended to be an exhaustive recitation of every item decided in the case, and must be read in light of the opinion as a whole. [T]his Court only makes the more important points of law a part of the syllabus for the general information of the legal profession and the public[.] Koonce v. Doolittle, 48 W.Va. 592, 594, 37 S.E. 644, 645 (1900). In an address to the circuit judges of this State in 1940, the Dean of the College of Law at West Virginia University explained the relationship between the opinion and the syllabus as follows:

It seems clear, therefore, that the fact that the court lays down a general principle whether in the opinion or in the syllabus does not per se make it law; the law of a case is something more than the mere ipse dixits of the court; it is something whose authoritative force proceeds in part from elements more interstitial and more elusive than the general propositions which our constitution requires the court to prefix to its opinions.

“The Law”—In West Virginia, Thomas P. Hardman, 47 W. Va. L.Q. 23, 28 (1940).

2. History of per curiam opinions in West Virginia. With very rare exceptions, the published opinions issued by the Court during the first 110 years of its existence set forth the name of a single judge3 or justice who authored the...

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