State v. Phillips
| Decision Date | 21 July 1995 |
| Docket Number | No. 22633,22633 |
| Citation | 194 W.Va. 569,461 S.E.2d 75 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Craig G. PHILLIPS, Defendant Below, Appellant. |
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. 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 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.
[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.
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.
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.
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.
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.
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.
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):
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