State v. Mechling, No. 32873.

CourtSupreme Court of West Virginia
Writing for the CourtStarcher
Citation633 S.E.2d 311
PartiesSTATE of West Virginia, Plaintiff Below, Appellee v. James Allen MECHLING, Defendant Below, Appellant.
Decision Date30 June 2006
Docket NumberNo. 32873.

Page 311

633 S.E.2d 311
STATE of West Virginia, Plaintiff Below, Appellee
v.
James Allen MECHLING, Defendant Below, Appellant.
No. 32873.
Supreme Court of Appeals of West Virginia.
Submitted April 12, 2006.
Decided June 30, 2006.

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COPYRIGHT MATERIAL OMITTED

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Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review." Syllabus Point 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

2. "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

3. "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).

4. "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." Syllabus Point 6, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995).

5. "We modify our holding in James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), to comply with the United States Supreme Court's subsequent pronouncements regarding the application of its decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to hold that the unavailability prong of the Confrontation Clause inquiry required by syllabus point one of James Edward S. is only invoked when the challenged extrajudicial statements were made in a prior judicial proceeding." Syllabus Point 2, State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999).

6. Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.

7. To the extent that State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995), and State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999), rely upon Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 597 (2004)) and permit the admission of a testimonial statement by a witness who does not appear at trial, regardless of the witness's unavailability for trial and regardless of whether the accused had a prior opportunity to cross-examine the witness, those cases are overruled.

8. Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a testimonial statement is, generally, a statement that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

9. Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a witness's statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary

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purpose of the witness's statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness's statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency.

10. A court assessing whether a witness's out-of-court statement is "testimonial" should focus more upon the witness's statement, and less upon any interrogator's questions.

11. Under the doctrine of forfeiture, an accused who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.

Marcia Ashdown, Prosecuting Attorney, Morgantown, of Appellee.

Joseph M. Sellaro, Esq., Sellaro & Sellaro, Morgantown, for Appellant.

STARCHER, J.:


This is an appeal of a domestic battery conviction from the Circuit Court of Monongalia County. We are asked to examine whether the circuit court erred in permitting the admission of statements made by the victim to three individuals—statements indicating that the victim was battered by the defendant—when the victim did not appear and testify at the defendant's trial.

As set forth below, we find that the statements made by the victim were improperly admitted in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article III, Section 14 of the West Virginia Constitution.

I.
Facts & Background

The State contends that on March 20, 2004, defendant James Allen Mechling committed misdemeanor domestic battery against his girlfriend, victim Angela Thorn, in violation of W.Va.Code, 61-2-28(a) [2001].1 To establish guilt under that section, the State was specifically required to prove that the defendant did "intentionally make[ ] physical contact of an insulting or provoking nature" with a family or household member. The statute stated:

(a) Domestic battery.—Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.

The defendant was tried and convicted under this statute in magistrate court, and then appealed the conviction to the circuit court. In a de novo bench trial in the circuit court on November 8, 2004, the defendant was once again convicted of domestic battery.

The victim, Ms. Thorn, did not appear at either of the defendant's trials. The circuit clerk issued subpoenas for the victim, upon the request of the State. However, it appears that the circuit clerk mailed the subpoenas, rather than formally serving the subpoenas upon Ms. Thorn. The State was apparently unable to call the victim to testify.

Furthermore, no witnesses testified before the circuit court that they saw the defendant "intentionally make physical contact" with the victim. Instead, the State established that the defendant battered the victim through the testimony of three individuals who heard the victim say that the defendant had struck her.

Witness Ralph Alvarez testified that, on March 20, 2004, he was out in his yard by his garage working on his car. Several times he heard a man and woman yelling and arguing, but continued working. However, when Mr. Alvarez heard a child crying, he walked out

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into his yard and saw—approximately seventy to eighty yards away on the side of a nearby road—a young woman (later identified as Ms. Thorn) getting up off of the ground. Mr. Alvarez testified that his view of the scene was partly obstructed by a tree, so he took a few more steps across his yard and saw the defendant, James Mechling. Between the defendant and Ms. Thorn was a baby buggy with defendant Mechling's and Ms. Thorn's infant daughter.

Mr. Alvarez stated that he perceived that the defendant was standing up straight, facing across the baby buggy as Ms. Thorn was getting up off the ground. Mr. Alvarez testified that he saw the defendant "take as swing" at Ms. Thorn, but that his view was still partly obstructed by the tree:

I couldn't tell whether it was a punch, a slap. I could just tell he was swinging— he'd swung at her or something in front of him, the way the tree was situated.... I really didn't pay attention to it when I seen what was going on. I just knew there was something happening that shouldn't be.

Trial Tr. at 8-9. Mr. Alvarez could not, however, say whether the defendant's swing "connected with" Ms. Thorn, stating, "I did not physically see him make physical contact with her." Trial Tr. at 7, 13-14, 18.

Mr. Alvarez yelled at the defendant to stop, and the defendant did. Mr. Alvarez went to his daughter's nearby trailer and asked her to call the sheriff's department, and then walked back across the yard toward the defendant and Ms. Thorn. Before Mr. Alvarez reached the defendant, a vehicle pulled to the side of the road and the defendant climbed in and fled the scene.

Over defense counsel's objection, Mr. Alvarez was permitted to testify about his conversation with Ms. Thorn. Mr. Alvarez stated that:

She said, he hit me in the head and I've got a knot on my head, and I asked her if she was okay, and she said, yes, she would be okay.

Trial Tr. at 11. Mr. Alvarez comforted Ms. Thorn until two sheriff's deputies arrived shortly thereafter.

Deputies Robert Fields and Thornton Merrifield testified that they received a call of a domestic dispute in progress...

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114 practice notes
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...to testify and the accused had a prior opportunity to cross-examine the witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). 20. “Although it is a well-settled policy that the Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned e......
  • In re J.S., No. 13-0583
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...to testify and the accused had a prior opportunity to cross-examine the witness. Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).Syl. Pt. 6, State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011). We reject this claim because there is no authority for it in a civil proce......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...reasonably to believe that the statement would be available for use at a later trial.” Syl. pt. 8, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). 7. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(......
  • In re In re D.S., Nos. 13–0583
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...to testify and the accused had a prior opportunity to cross-examine the witness. Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).Syl. Pt. 6, State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011). We reject this claim because there is no authority for it in a civil proce......
  • Request a trial to view additional results
114 cases
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...to testify and the accused had a prior opportunity to cross-examine the witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). 20. “Although it is a well-settled policy that the Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned e......
  • In re J.S., No. 13-0583
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...to testify and the accused had a prior opportunity to cross-examine the witness. Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).Syl. Pt. 6, State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011). We reject this claim because there is no authority for it in a civil proce......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...reasonably to believe that the statement would be available for use at a later trial.” Syl. pt. 8, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). 7. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(......
  • In re In re D.S., Nos. 13–0583
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...to testify and the accused had a prior opportunity to cross-examine the witness. Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).Syl. Pt. 6, State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011). We reject this claim because there is no authority for it in a civil proce......
  • Request a trial to view additional results

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