State v. Rollins, No. 13–0099.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM:
• Citation: 760 S.E.2d 529,233 W.Va. 715
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Gary Lee ROLLINS, Defendant Below, Petitioner.
• Decision Date: 17 June 2014
• Docket Number: No. 13–0099.

233 W.Va. 715
760 S.E.2d 529

STATE of West Virginia, Plaintiff Below, Respondent
v.
Gary Lee ROLLINS, Defendant Below, Petitioner.

No. 13–0099.

Supreme Court of Appeals of
West Virginia.

Submitted Jan. 22, 2014.
Decided June 17, 2014.

[760 S.E.2d 534]

Syllabus by the Court

1. “A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” Syl. pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

2. “If either the prosecutor or defense counsel believes the other has made improper remarks to the jury, a timely objection should be made coupled with a request to the court to instruct the jury to disregard the remarks.” Syl. pt. 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987).

3. “Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.” Syl. pt. 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).

4. “ ‘ “An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.” Syl. Pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971).’ Syl. Pt. 1, State v. Compton, 167 W.Va. 16, 277 S.E.2d 724 (1981).” Syl. pt. 3, State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996).

5. “A trial court's failure to remove a biased juror from a jury panel, as required by W. Va.Code § 62–3–3 (1949) (Repl.Vol.2010), does not violate a criminal defendant's right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike. In order to obtain a new trial for having used a peremptory strike to 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 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).

7. “Assuming that an error is ‘plain,’ the inquiry must proceed to its last step and a determination made as to whether it affects the substantial rights of the defendant. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court, and the defendant rather than the prosecutor bears the burden of persuasion with respect to prejudice.” Syl. pt. 9, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

8. “As to the balancing under Rule 403 [of the West Virginia Rules of Evidence], the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion

[760 S.E.2d 535]

will not be overturned absent a showing of clear abuse.” Syl. pt. 10, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

9. “Third-party testimony regarding an out-of-court identification may in certain circumstances be admissible when the identifying witness testifies at trial because both the identifying witness and the third party are then available for cross-examination.” Syl. pt. 6, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981).

10. “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.” Syl. pt. 4, State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), overruled on other grounds by State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448 (2013).

11. “Under the requirements of the Confrontation Clause contained in the Sixth Amendment to the United States Constitution, evidence offered under the residual hearsay exceptions contained in Rule 803(24) and Rule 804(b)(5) of the West Virginia Rules of Evidence is presumptively unreliable because it does not fall within any firmly rooted hearsay exception, and, therefore, such evidence is not admissible. If, however, the State can make a specific showing of particularized guarantees of trustworthiness, the statements may be admissible. In this regard, corroborating evidence may not be considered, and it must be found that the declarant's truthfulness is so clear that cross-examination would be of marginal utility.” Syl. pt. 6, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

12. “ ‘The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.’ Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006).

13. “The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.” Syl. pt. 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

14. “In order to preserve for appeal the claim of unfair surprise as the basis for the exclusion of evidence, the aggrieved party must move for a continuance or recess.” Syl. pt. 4, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

15. “Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.” Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).

W. Brad Dorsey, Esq., Callaghan & Callaghan, PLLC, Summersville, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Christopher S. Dodrill, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

This case is before the Court on appeal by the petitioner, Gary Lee Rollins, of the December 18, 2012, order of the Circuit Court of Nicholas County convicting Mr. Rollins of first degree murder of his wife, Teresa Rollins. He did not receive a recommendation of mercy. After a thorough review of the

[760 S.E.2d 536]

record presented for consideration, the briefs, the legal authorities cited, and the arguments of parties, we find that the circuit court did not commit any reversible error. Therefore, we affirm Mr. Rollins's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 2009, Ms. Rollins's dead body was found pinned underwater in a pond by a fallen tree.¹ The pond is located on property owned by her and her husband, Mr. Rollins, in Nettie, West Virginia. Mr. and Ms. Rollins made their living by farming vegetables on the property.

According to Mr. Rollins, he last saw Ms. Rollins alive on the morning of October 5, 2009, around 7:30 a.m. He claimed that she was preparing to set out Halloween decorations as he left to clear a path on the property where he liked to hunt deer. Around 9:00 a.m., Mr. Rollins returned to the house to wait for the family's hired help for the farm—Tanya Wagner, April Bailes, and Kay Rudd—to arrive. Upon their arrival, the three women and Mr. Rollins proceeded to work in the fields. At approximately 11:30 a.m., all four broke for lunch.

While the women and Mr. Rollins had lunch together, Ms. Rudd asked about the whereabouts of Ms. Rollins. Mr. Rollins told Ms. Rudd that he would go look for his wife. Mr. Rollins stated that he checked places where he thought she might be: the storage building and inside the home. After failing to find her there, he stated that he went to look for her near the corn field because he believed she might be collecting corn stalks to decorate the front porch. It was while he was near the corn field that he...