State v. Palmer, 14-0862

• Decision Date: 03 June 2016
• Docket Number: No. 14-0862,14-0862
• Court: West Virginia Supreme Court
• Parties: State of West Virginia Plaintiff Below, Respondent v. Michael Palmer Defendant Below, Petitioner

State of West Virginia Plaintiff Below, Respondent v. Michael Palmer Defendant Below, Petitioner

No. 14-0862

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 3, 2016

(Harrison County 14-F-87-2, Marion County 12-F-143)

MEMORANDUM DECISION

Petitioner Michael Palmer, by counsel Scott A. Shough and Ashley Joseph Smith, appeals his March 26, 2014, conviction of the charge of first-degree murder, with a recommendation of mercy. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order. Petitioner argues that the circuit court erred in allowing the admission of certain evidence at trial; in denying his request to compel the trial testimony of his co-defendant; in denying his motion to dismiss the indictment returned against him; in denying his motion for new trial; and in instructing the jury.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On December 10, 2011, petitioner fatally shot his father-in-law within seconds of the victim's arrival at petitioner's home.¹ Hours before the shooting, the victim left a voicemail message on petitioner's answering machine indicating that he was coming to petitioner's residence that night to discuss their familial discord, and that he and petitioner were going to "talk it out like men."² Petitioner contends the shooting of the victim was done in self-defense. Petitioner alleges that, on the night of the shooting, the victim kicked the rear door of petitioner's home and entered the home "in a violent manner," prompting petitioner to shoot him twice.However, per the State's witnesses, the angle of the shot and location of the victim's gunshot wound suggests that petitioner shot the victim in the side as he was retreating from petitioner's home.

On June 6, 2012, a Marion County grand jury indicted petitioner (and his wife - the victim's daughter) on one count of first-degree murder, in violation of West Virginia Code § 61-2-1. Petitioner was imprisoned on June 6, 2012, and remained incarcerated during the pendency of his case.³ Petitioner and his wife were scheduled to be tried separately, with petitioner's trial to proceed first. During the pretrial proceedings, petitioner's wife was subpoenaed by both petitioner and the State to testify at petitioner's trial. The wife's counsel advised that she would assert her Fifth Amendment right against incrimination if asked directly about the shooting incident. Ultimately, the circuit court ordered that petitioner's wife was not required to take the stand at trial, when she intended to assert her Fifth Amendment rights before the jury.

In the month before the scheduled trial date, the circuit court granted a motion for change of venue (given the media attention surrounding the case and concerns regarding the ability to obtain an impartial jury panel). Venue for the trial was transferred to Harrison County and jury selection began on March 10, 2014. A jury was empaneled that same day and trial commenced the following day. On March 26, 2014, on the eleventh day of trial, petitioner was found guilty of first-degree murder with a recommendation of mercy. On May 30, 2014, petitioner was formally sentenced to life in prison with a recommendation of mercy. Petitioner filed post-trial motions on April 7, 2014.⁴ A hearing was held on those motions on May 15, 2014. By order entered July 31, 2014, the circuit court denied petitioner's motions. Petitioner now appeals his conviction, and the circuit court's denial of his post-trial motions.

In support of his petition for appeal, petitioner alleges six assignments of error. First, petitioner asserts that the circuit court committed reversible error in failing to compel the testimony of petitioner's wife at his trial. Second, petitioner contends that the circuit court improperly instructed the jury. Third, petitioner argues that circuit court erred in failing todismiss the indictment returned against petitioner. Fourth, petitioner contends that the circuit court erred in allowing the admission of State's Exhibit No. 154 at trial. Fifth, the petitioner argues that the circuit court erred in allowing the admission of 404(b) evidence at trial. Sixth, petitioner contends that the circuit court erred in denying petitioner's post-trial motions given that the verdict returned by the jury was against the weight of the evidence at trial.

As to his first assignment of error, petitioner argues that the circuit court erred in refusing to compel the testimony of his co-defendant wife. In State v. Herbert, 234 W.Va. 576, 583-84, 767 S.E.2d 471, 478-79 (2014), we noted that

"[t]he constitutional right against self-incrimination does not extend to prevent the physical appearance of a person at trial." Syl. Pt. 2, State v. Harman, 165 W.Va. 494, 270 S.E.2d 146 (1980). Ordinarily a non-party witness may not refuse to take the stand in a criminal trial by simply asserting the constitutional right against self-incrimination. "'(B)y universal holding, one not an accused must submit to inquiry (including being sworn, if the inquiry is one conducted under oath)[.]'" Id., 165 W.Va. at 504, 270 S.E.2d at 153 (quoting McCormick on Evidence § 136 (2d ed. 1972)).

Further, in Herbert, we ruled that

[i]n a criminal trial, when a non-party witness intends to invoke the constitutional privilege against self-incrimination, the trial court shall require the witness to invoke the privilege in the presence of the jury. The constitutional privilege against self-incrimination may only be invoked when a witness is asked a potentially incriminating question.

Syl. Pt. 2, in part (citations omitted).

In the case sub judice, petitioner contends that the circuit court's failure to force his co-defendant to invoke her Fifth Amendment privilege against self-incrimination in front of the jury was a violation of his Sixth Amendment right to compulsory process.⁵ The State counters that petitioner's claims regarding his co-defendant's invocation of her Fifth Amendment protections during trial is meritless when viewed under the lens of either Fifth or Sixth Amendment consideration. Based upon our review of the particular facts of the instant case, we find that the circuit court did not commit error in failing to compel the trial testimony of petitioner's wife.

Here petitioner's co-defendant, unlike the witness at issue in Herbert, was separately charged with victim's murder.⁶ Her case was set to proceed to trial on a date following petitioner's trial. She was called to testify at petitioner's trial and, outside of the presence of the jury, invoked her Fifth Amendment right to not testify.⁷ If petitioner's wife had agreed to testify, she would have been subject to cross-examination. The circuit court reasoned that it would be "nearly impossible to confine cross-examination" of the co-defendant in a way that would not prejudice her. Under these limited facts, we find no error with the circuit court's ruling.

Next, petitioner contends that the circuit court improperly instructed the jury on the law of self-defense and the "castle" doctrine.⁸ We have held that ". . . the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specificwording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

The circuit court herein instructed the jury on both self-defense and the castle doctrine. Petitioner contends that providing such instructions misled the jury, as there was no evidence that the events in question occurred anywhere other than the home of petitioner. Additionally, petitioner contends that failing to provide the specific direction to the jury that the porch of petitioner's home was part of his castle was reversible error. Respondent argues that the circuit court did not abuse its discretion or misstate the law by juxtaposing instructions of traditional self-defense and the castle doctrine. Based upon our review of the record herein, we find no error. The circuit court's instructions were a correct statement of law for both traditional self-defense and the castle doctrine. State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009); State ex rel. Adkins v. Dingus, 232 W.Va. 677, 683, 753 S.E.2d 634, 640 (2013).

In his third assignment of error, petitioner argues that the circuit court erred in failing to dismiss the indictment retuned against petitioner based upon prosecutorial misconduct before the grand jury. "This Court's standard of review concerning a motion to dismiss an indictment is, generally, de novo." Syl. Pt. 1, in part, State v. Grimes, 226 W.Va....