State v. Phelps

• Decision Date: 11 October 1996
• Docket Number: No. 23254,23254
• Citation: 478 S.E.2d 563,197 W.Va. 713
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Scotty Gene PHELPS, Defendant Below, Appellant.

Page 563

478 S.E.2d 563

197 W.Va. 713

STATE of West Virginia, Plaintiff Below, Appellee, v. Scotty Gene PHELPS, Defendant Below, Appellant.

No. 23254.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1996.

Decided Oct. 11, 1996.

Syllabus by the Court

1. "Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

2. "When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction." Syl. Pt. 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

3. "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(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syl Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

4. "Instructions that are repetitious or are not supported by the evidence should not be given to the jury by the trial court." Syl. Pt. 5, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).

5. "Whether facts are sufficient to justify the delivery of a particular instruction is 6. "A trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy." Syl. Pt. 4, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

                reviewed by this Court under an abuse of discretion standard.  In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution."   Syl. Pt. 12, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)
                

Scott E. Johnson, Assistant Attorney General, Charleston, for Appellee.

Travers R. Harrington, Jr., Jesser & Harrington, Fayetteville, for Appellant.

PER CURIAM:

This is an appeal by the appellant herein and defendant below, Scotty Gene Phelps, from his conviction of first degree murder and sentence to life imprisonment without possibility of parole. The defendant was convicted by a jury in the Circuit Court of Fayette County on December 13, 1994. The defendant has assigned as error the following: (1) the admission of testimony of other outstanding charges against him; (2) the failure to give the Defendant's Jury Instructions Nos. 3 and 4; (3) the admission of testimony of conversations the police had with others not present at trial; (4) the failure to allow the defendant to cover up tattoos on his hands; (5) the admission of certain physical evidence; (6) the failure to appoint a co-counsel; and (7) the failure to bifurcate the trial and sentencing proceeding. The defendant further asserts that the cumulative effect of these errors requires reversal of the conviction and sentence.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of this case are entangled in the relationship the defendant had with Kathy Agent. In June of 1993, the defendant and Ms. Agent were living together in Oak Hill, West Virginia. At that time, the defendant had outstanding arrest warrants against him for kidnapping, sexual assault, and malicious wounding. The record indicates that law enforcement officials attempted on four occasions to arrest the defendant on the outstanding charges but to no avail. On June 12, 1993, the defendant and Ms. Agent concocted a plan that would get him a car so he could escape arrest for the charges pending against him. The plan called for Ms. Agent to hitchhike along the road and lure a motorist back to her home, where the defendant would be waiting to ambush the unsuspecting motorist. At about 2:00 p.m. on June 12, Ms. Agent left her home to carry out her part of the plan. Not long after Ms. Agent began hitchhiking, she was picked up by John T. Moran, a Pennsylvania resident who was on his way to a computer convention in North Carolina. Ms. Agent convinced Mr. Moran to drive her home so they could "party." Prior to reaching Ms. Agent's home, Mr. Moran stopped at a store and purchased a bottle of vodka, a pack of cigarettes, and a package of condoms. Mr. Moran arrived at Ms. Agent's home at about 4:00 p.m. Within a short time, Mr. Moran and Ms. Agent were sitting on her couch drinking and talking about sex. While this was taking place, the defendant was hiding in the bedroom. Eventually Mr. Moran and Ms. Agent found their way into her bedroom. As Mr. Moran and Ms. Agent were on her bed, the defendant stealthily approached them carrying a knife. The defendant pinned Mr. Moran to the bed and began stabbing him. ¹ While stabbing Mr. Moran, the defendant began laughing and said: "He's almost dead." There was testimony that after repeatedly stabbing Mr. Moran, the defendant then dragged Ms. Agent through his blood. The defendant then placed Ms. Agent's face next to Mr. Moran's face and said: "I want to show you what death looks like, and I don't want you to forget it."

The defendant eventually wrapped Mr. Moran's body in a blue tarp and two blankets. Mr. Moran's body was then placed in the trunk of his car. Ms. Agent testified the defendant threatened her with a hammer if she did not accompany him out of the State. Ms. Agent consented after being threatened. The record indicates that Ms. Agent drove Mr. Moran's car, while the defendant sat in the passenger's side, to an area called Garden Ground and disposed of the body. Ms. Agent testified that the blankets and the tarp were removed from the body and an old refrigerator was thrown on top of Mr. Moran's corpse. The blankets and tarp were eventually thrown off a bridge into a river, as the defendant and Ms. Agent drove Mr. Moran's car to Florida.

An investigation into Mr. Moran's whereabouts was launched after his family members alerted authorities they believed he was missing. The investigation eventually led authorities to Florida where they arrested the defendant and Ms. Agent. Authorities were able to find Mr. Moran's body after Ms. Agent informed them where it was dumped. After extradition back to West Virginia, Ms. Agent and the defendant were indicted for first degree murder and aggravated robbery. Ms. Agent entered a plea of guilty to first degree murder, with mercy, and agreed to testify against the defendant. The defendant was tried on the first degree murder charge and found guilty of the same by a jury. The jury did not recommend mercy. The trial court sentenced the defendant to life without possibility of parole. The defendant appeals his conviction and sentence on the grounds that the trial court committed error in: (1) admitting testimony of other outstanding charges against him; (2) failing to give Defendant's Instructions Nos. 3 and 4; (3) admitting testimony of conversations the police had with others not present at trial; (4) failing to allow the defendant to cover up tattoos on his hands; (5) admitting certain physical evidence; (6) failing to appoint a co-counsel; and (7) failing to bifurcate the trial and sentencing proceedings. He further contends that the cumulative effect of these errors requires a reversal of the conviction and sentence.

II. ADMISSION OF PRIOR CHARGES

The defendant's first argument is that the trial court committed error in denying his pretrial motion to preclude witnesses from giving testimony that he had prior charges pending against him at the time Mr. Moran was killed. We note at the outset that "[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). See also, Syl. Pt. 4, State v. Farmer, 185 W.Va. 232, 406 S.E.2d 458 (1991) (per curiam). In other words, the defendant has a tall leap to make in order to have this Court disturb an evidentiary admissibility ruling. The rule applicable to the issue raised by the defendant is Rule 404(b) of the West Virginia Rules of Evidence. ² This Court observed in State v. Nelson, 189 W.Va. 778, 784, 434 S.E.2d 697, 703 (1993), that Rule 404(b) was an " ' "inclusive rule" in which all relevant evidence involving other crimes or acts is admitted at trial unless the sole purpose for the admission is to show criminal disposition.' "...