State v. Smith

Decision Date15 May 1987
Docket NumberNo. 17190,17190
PartiesSTATE of West Virginia v. Wetzel SMITH.
CourtWest Virginia Supreme Court

1. Rule 803(2) of the West Virginia Rules of Evidence correctly contains the heart of the hearsay exception that was formerly called a spontaneous declaration and which is now termed the excited utterance exception to the hearsay rule. The more detailed treatment of this exception contained in Syllabus Point 2 of State v. Young, 166 W.Va. 309, 273 S.E.2d 592 (1980), is helpful to further refine the contours of the rule.

2. A witness who testifies about an excited utterance of a third person need not be present at the exciting event as a condition for its admissibility.

3. Where a party objects to incompetent evidence, but subsequently introduces the same evidence, he is deemed to have waived his objection. However, one does not waive an objection otherwise sound and seasonably made by attempting to explain or destroy the probative value of the evidence on cross-examination.

4. "Our general rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal." Syllabus Point 9, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).

5. The language of Rule 804(b)(5) of the West Virginia Rules of Evidence and its counterpart in Rule 803(24) requires that five general factors must be met in order for hearsay evidence to be admissible under the rules. First and most important is the trustworthiness of the statement, which must be equivalent to the trustworthiness underlying the specific exceptions to the hearsay rule. Second, the statement must be offered to prove a material fact. Third, the statement must be shown to be more probative on the issue for which it is offered than any other evidence the proponent can reasonably procure. Fourth, admission of the statement must comport with the general purpose of the rules of evidence and the interest of justice. Fifth, adequate notice of the statement must be afforded the other party to provide that party a fair opportunity to meet the evidence.

6. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syllabus Point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

7. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

8. Only when testimony is so unbelievable on its face that it defies physical laws should the court intervene and declare it incredible as a matter of law.

9. An abstract instruction which is not connected to the evidence and is thereby confusing need not be given.

Mary Rich Maloy, Asst. Atty. Gen., for appellant.

Mark William McOwen, Huntington, for appellee.

MILLER, Justice:

Wetzel "Junior" Smith appeals his March 14, 1985 conviction for first degree murder with a recommendation of mercy. His principal argument on appeal is that the trial court erred in admitting two categories of extrajudicial or hearsay statements: (1) those made before and after the shooting by a coindictee who died prior to trial, and (2) those made by the deceased within two days of his death. With one exception, we find that the statements were properly admitted and affirm the conviction.

The State's case may be briefly summarized and the disputed evidence will be discussed in more detail. Early on the morning of June 26, 1983, the body of Sheldon "Slim" Wright was discovered lying in the bedroom of his house near Milton, West Virginia. He was approximately sixty-five years of age. He had sustained a gunshot wound to his right temple. While no weapon was in the immediate vicinity, a small caliber pistol and a rifle were recovered by police from the living room and bedroom. It appears that the actual time of death was earlier, occurring on the evening of June 25, 1983.

The State medical examiner after detailing his examination of the deceased's body was of the view that the gunshot wound caused the death and that it was not self-inflicted. 1 A ballistics expert indicated that the bullet retrieved from the deceased's body matched the pistol found in the living room, although he conceded on cross-examination that a bullet from a similar .22 caliber Luger would have the same markings.

The State's most damaging testimony was that of Nancy Underwood, the woman who had accompanied the defendant on the night of the shooting. The defendant was the deceased's stepson and lived with him. Ms. Underwood had been drinking with the defendant for a considerable period of time prior to the homicide. She testified that she was seated on the front porch of the Wright house when she overheard the defendant and Mr. Wright arguing over money. She then heard two gunshots, after which Mrs. Wright exclaimed, "Oh, my God, Junior, you did it!" Afterwards, she heard the defendant make a telephone call, but did not know with whom he was speaking.

She testified that when she entered the house minutes later, she saw Mr. Wright slumped over in a chair in the living room. He was already dead. The defendant was carrying a small pistol in his pocket. She assisted the defendant in carrying the body into the bedroom where it was placed in the bed. On cross-examination, Ms. Underwood was impeached with a prior statement in which she claimed she had heard no shots, had been asleep in a nearby car most of the evening, and had known nothing about the shooting until she was aroused by a police officer during their investigation.

The defendant testified briefly in his own behalf to deny having killed or having conspired to kill Sheldon Wright. He also denied having made the statements attributed to him by his mother through the paramedics.


The defendant does not make any objection to the relevancy of the disputed evidence

[178 W.Va. 108] which consisted of two statements made by the deceased within two days of his death that the defendant had taken $100 from him and had taken his car. A third statement was made by the deceased's wife, who died prior to the trial, and was to the effect that the defendant was fighting with the deceased shortly prior to the shooting. We need not, therefore, discuss the relevancy question under the other crimes provisions of Rule 404(b) of the West Virginia Rules of Evidence. 2



Edna Wright, the deceased's wife, was originally indicted with the defendant, but died prior to trial. At trial, Mrs. Ginny Smith testified to two telephone conversations she had with Mrs. Wright on the evening of the shooting. Mrs. Wright initially called Mrs. Smith and related that her husband was fighting with the defendant and that they had been drinking. She wanted Mrs. Smith's husband to get her out of the house. Mrs. Smith said Mrs. Wright sounded very agitated and she could hear loud shouting in the background. She indicated to Mrs. Wright that her husband would not come over, but that she would call the police for her. Subsequently, Mrs. Smith called back to tell Mrs. Wright the police would not assist in the matter and suggested that Mrs. Wright call the emergency room and go to the hospital. She was aware that Mrs. Wright had recently been discharged from the hospital. 3

The trial court admitted the various statements of Edna Wright under Rule 803(2), W.V.R.E., the excited utterance exception to the hearsay rule, which provides: 4

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

* * *

"(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

Our Rule 803(2), along with our other Rules of Evidence, is substantially patterned after the Federal Rules of Evidence. It is generally recognized that the Federal Rules of Evidence were designed to codify the common law rules of evidence. In particular, Rule 803 of the Federal Rules relating to excited utterances has continued much the same requirements of the common law rule, 5 i.e., that a startling event must have occurred, that the statement must have been made while the declarant was under the influence of the event, and that the statement must have referred to the startling event. 4 J. Weinstein & M. Berger, Weinstein's Evidence at 803-85 (1985). E.g., David By Berkeley v. Pueblo Supermarket of St. Thomas, 740 F.2d 230 (3d Cir.1984); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984).

The excited utterance exception proceeds upon the assumption that a guarantee of reliability surrounds statements made by one who participates in or observes a startling event, provided they are made while under the stress of excitement. See, e.g., ...

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