State v. Phillips, No. 22633

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY; MILLER, Retired J., and FOX; WORKMAN; WORKMAN
Docket NumberNo. 22633
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Craig G. PHILLIPS, Defendant Below, Appellant.
Decision Date21 July 1995

Page 75

461 S.E.2d 75
194 W.Va. 569
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Craig G. PHILLIPS, Defendant Below, Appellant.
No. 22633.
Supreme Court of Appeals of
West Virginia.
Submitted May 9, 1995.
Decided July 11, 1995.
Dissenting Opinion of
Justice Workman July 21, 1995.

Page 78

[194 W.Va. 572] Syllabus by the Court

1. " '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; or 3) the statement is hearsay but falls within an exception provided for in the rules.' Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990)." Syllabus Point 2, State v. Dillon, 191 W.Va. 648, 447 S.E.2d 583 (1994).

2. "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 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." Syllabus Point 1, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995).

3. "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).

4. It is within a trial court's discretion to admit an out-of-court statement under Rule 803(1), the present sense impression exception, of the West Virginia Rules of Evidence if: (1) The statement was made at the time or shortly after an event; (2) the statement describes the event; and (3) the event giving rise to the statement was within a declarant's personal knowledge.

5. Although a trial court may consider corroborating evidence in determining

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[194 W.Va. 573] whether a statement meets the prerequisites of Rule 803(1) of the West Virginia Rules of Evidence, a separate showing of trustworthiness is not required for a statement to qualify under this hearsay exception.

6. An extrajudicial statement offered for admission under the state-of-mind exception of Rule 803(3) of the West Virginia Rules of Evidence must also be tested under the relevancy requirements of Rule 401 and Rule 402 of the Rules of Evidence. If the declarant's state of mind is irrelevant to the resolution of the case, the statement must be excluded.

7. A trial court's failure to remove a biased juror from a jury panel does not violate a defendant's right to a trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of Article III of the West Virginia Constitution. In order to succeed in a claim that his or her constitutional right to an impartial jury was violated, a defendant must affirmatively show prejudice.

8. The language of W.Va. Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory challenges until an unbiased jury panel is assembled. Consequently, if a defendant validly challenges a prospective juror for cause and the trial court fails to remove the juror, reversible error results even if a defendant subsequently uses his peremptory challenge to correct the trial court's error.

G.W. Morris, II, Pros. Atty. for Barbour County, Philippi, for appellee.

Daniel R. James, Barr & James, Keyser, for appellant.

CLECKLEY, Justice:

The appellant and defendant below, Craig G. Phillips, appeals his conviction following a jury verdict in the Circuit Court of Barbour County of second degree murder for shooting his wife. The defendant assigns several errors on appeal, including the trial court admission of hearsay and uncharged misconduct, and its refusal to strike two jurors for cause. 1 For reasons discussed below, the conviction is reversed and the case is remanded.

I.

FACTS AND BACKGROUND INFORMATION

On the morning of April 29, 1991, Mr. Phillips shot his wife, Cynthia Phillips, in their home. There were no witnesses to the shooting. On the day of the shooting, the defendant maintains his gun jammed while he was turkey hunting early in the morning and he returned home. When the defendant arrived home, he brought the gun with him into the living room in order to ascertain the cause of the jamming. He told his wife the gun was malfunctioning and she suggested they return the gun and have it repaired.

While attempting to remove the shotgun shells, the defendant received a telephone call from his mother. At that time, Cynthia Phillips was resting on the sofa. The defendant claimed he became entangled in the telephone cord while attempting to eject the shotgun shells and talk on the telephone. As he stood up, cradling the receiver between his neck and shoulder, the shotgun accidentally discharged and fatally injured his wife. The defendant maintained he told his mother to call 911, hung up the phone, called 911 himself, exited the house in a panic, and yelled to a neighbor to call 911.

In contrast, the State produced evidence that Cynthia Phillips was not lying on the sofa at the time of the shooting. The State asserted that Mrs. Phillips was standing next to the sofa and the defendant moved her body to the sofa when she collapsed after being shot. Although there was no blood on the defendant when the emergency squad arrived, the clothes he wore hunting were never recovered.

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[194 W.Va. 574] The State's theory was that the couple had marital problems due mainly to the defendant's extramarital affairs. The State contended that Cynthia Phillips found out about her husband's most recent affair and was determined to get proof of his infidelity. The State argued that, when he returned from his hunting expedition, Cynthia Phillips confronted her husband, told him she intended to divorce him, and she would seek half of their substantial assets in the divorce proceeding. The defendant then fatally shot his wife during this heated confrontation.

The original investigation by the local police into the death of Cynthia Phillips resulted in a finding that the incident was an accident. The prosecutor and the State police conducted a separate investigation prompted by inconsistent statements about the shooting and, subsequently, the defendant was indicted for murder. The trial concluded with the jury returning a verdict of second degree murder against the defendant. The defendant appeals.

II.

DISCUSSION

The defendant appeals his conviction on several grounds. We limit our consideration of the assigned errors to two: (1) whether the trial court committed reversible error by permitting the multiple use of hearsay evidence, and (2) whether the defendant was wrongfully deprived of two of his statutory peremptory challenges.

A.

Hearsay Evidence

In his first assignment of error, the defendant contends the trial court erred by permitting the prosecution to elicit prejudicial hearsay testimony from various witnesses. Prosecution witnesses testified that the victim told them the defendant had numerous extramarital affairs; that she knew about his most recent girlfriend; and that she planned to divorce the defendant and take half of the marital assets if she discovered concrete evidence of his infidelity. Several witnesses also testified that the defendant was having a longstanding affair at the time of the shooting.

At the pretrial and in camera hearings, the prosecution argued that the proffered testimony fit within numerous hearsay exceptions and should be admitted at trial. The defendant objected to this evidence based on relevancy and the prejudicial effect of the hearsay testimony. However, the trial court admitted most of the contested testimony on the basis of present sense impression under Rule 803(1) of the West Virginia Rules of Evidence and then existing mental, emotional, or physical condition under Rule 803(3) of the Rules of Evidence. 2

Hearsay "is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." W.Va.R.Evid. 801(c). As we have previously stated in Syllabus Point 2 of State v. Dillon, 191 W.Va. 648, 447 S.E.2d 583 (1994):

" '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; or 3) the

Page 81

[194 W.Va. 575] statement is hearsay but falls within an exception provided for in the rules.' Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990)."

"Hearsay is presumptively untrustworthy because the out-of-court declarant cannot be cross-examined immediately as to any inaccuracy or ambiguity in his or her statement." Glen Weissenberger, Hearsay Puzzles: An Essay on Federal Evidence Rule 803(3), 64 Temple L.Rev. 145 (1991). In criminal trials, hearsay evidence directly conflicts with the constitutional guarantees embodied in the Confrontation Clause of the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution. Recently, in Syllabus Point 1 of State v. Mason, 194 W.Va. 221, 460...

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72 practice notes
  • State v. Miller, No. 23155
    • United States
    • Supreme Court of West Virginia
    • June 14, 1996
    ...whether to strike jurors for cause, and we will reverse only where actual prejudice is demonstrated. 22 See State v. Phillips, 194 W.Va. 569, 588-90, 461 S.E.2d 75, 94-96 (1995). We conclude the trial court did not err in deciding the two prospective jurors with underlying prejudice towards......
  • State v. Sutherland, No. 11–0799.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.Jason D. Parmer, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner.Patri......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013). 4. “ ‘The action of a......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2014
    ...remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013). 6. “Where an offer of......
  • Request a trial to view additional results
72 cases
  • State v. Miller, No. 23155
    • United States
    • Supreme Court of West Virginia
    • June 14, 1996
    ...whether to strike jurors for cause, and we will reverse only where actual prejudice is demonstrated. 22 See State v. Phillips, 194 W.Va. 569, 588-90, 461 S.E.2d 75, 94-96 (1995). We conclude the trial court did not err in deciding the two prospective jurors with underlying prejudice towards......
  • State v. Sutherland, No. 11–0799.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.Jason D. Parmer, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner.Patri......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013). 4. “ ‘The action of a......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2014
    ...remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013). 6. “Where an offer of......
  • Request a trial to view additional results

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