State v. Spinks

• Citation: 803 S.E.2d 558
• Decision Date: 16 June 2017
• Docket Number: No. 15-1145.,15-1145.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Paul Darren SPINKS, Defendant Below, Petitioner

803 S.E.2d 558

STATE of West Virginia, Plaintiff Below, Respondent

v.Paul Darren SPINKS, Defendant Below, Petitioner

No. 15-1145.

Supreme Court of Appeals of West Virginia.

Submitted: May 3, 2017

Filed: June 16, 2017

J. Steven Hunter, Esq., Robert P. Martin, Esq., Steve Hunter Associates, l.c., Lewisburg, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, Zachary Aaron Viglianco, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent

WALKER, Justice:

Petitioner Paul Darren Spinks ("Petitioner") appeals the November 1, 2015, order of the Circuit Court of Nicholas County sentencing him to life imprisonment without the possibility of parole for the 2007 murder of his wife. Petitioner asserts that the trial court erred by: (1) refusing to dismiss the indictment returned by the grand jury based upon fraud; 2) improperly admitting evidence of prior domestic violence, marital discord, and threats made by Petitioner against his wife; 3) refusing to instruct the jury on lesser included offenses; and 4) denying his motion for judgment of acquittal when the evidence presented at trial was insufficient to support his conviction. Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm Petitioner's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented at trial was that at 1:06 p.m. on October 31, 2007, Petitioner placed a 911 call claiming that he and his wife, Elizabeth Spinks, had been shot from a distance by an unknown shooter while seated on the front porch of their home. According to Petitioner's recorded statement taken by police at the hospital, Petitioner and Elizabeth were seated on their front porch smoking when Petitioner heard what he thought was a "firecracker", and Elizabeth "stood up and grabbed her ... neck and fell down on the porch in front of [him]."¹ Petitioner stated that upon seeing Elizabeth drop to the ground, he ran into the house to get their cell phone to call 911, came back out onto the porch, and while bending over Elizabeth to check her and talking to the 911 dispatcher, he likewise sustained a gunshot wound

to his left thigh.

Petitioner stated that after calling 911, he went back into the house and into their bedroom, where he continued to talk with the dispatcher and tell her what had occurred. According to his recorded statement, Petitioner then got Elizabeth's gun, a .300 Winchester Magnum, out of the gun cabinet and went into the bathroom to hide for fear that the shooter would come into the house and try to kill him. He remained in his home and made other telephone calls while waiting for an ambulance and officers to respond to the scene.² He contended that during the wait, he passed out twice. He also stated that he dropped the phone and had to look for it in the pool of blood on his bathroom floor.

Petitioner was still inside the residence when emergency personnel arrived. He emerged from the home when the 911 dispatcher instructed him to exit the house. The officers who responded to the scene, West Virginia State Police Sergeants Ron Lilly and Anthony Webb, testified that when Petitioner exited the residence, his hands appeared to be clean despite the fact that his leg was bleeding very heavily. Moreover, while Petitioner was lying on his back as paramedics prepared to transport him from the scene, Petitioner, stretching back and pointing up over his head, called Sergeant Lilly's attention to a bullet hole located on the front of the house. Petitioner was flown to the hospital for medical treatment.

In his recorded statement taken at the hospital by Corporal B.J. Wriston, a West Virginia State Police trooper, Petitioner indicated that when he was out on the porch calling 911, he saw an older model white Chevrolet truck sitting in the lower end of the parking lot of a nearby elementary school. He surmised that the shots possibly may have come from that truck. When Corporal Wriston asked if Petitioner and Elizabeth had been having any marital problems, Petitioner denied any. When Corporal Wriston asked if they had any problems with anyone else in the past, Petitioner stated that a man named Harvey Hersman had been calling Elizabeth's cell phone in the last six months threatening Petitioner, claiming that he was going to burn down their house and garage. Petitioner indicated, however, that Mr. Hersman had not made any calls threatening him for approximately the last month. When asked if Mr. Hersman had ever specifically threatened to shoot Petitioner during these calls, Petitioner replied that "[h]e had told some other people that, and it got word back around to me, but he—he's the type of person I figure he'd get somebody else to do it.... But my wife never done nothing." Before concluding the statement, Corporal Wriston asked whether Petitioner had anything to add, and Petitioner said, "I'd like you to check my hands for powder or whatever they do ... because I didn't fire no gun. She didn't fire no gun."

At approximately 4:15 p.m., a West Virginia State Police crime scene response team arrived at the Spinks' residence and thoroughly investigated the scene, collecting numerous pieces of evidence. Corporal H.C. Mitchell, a West Virginia State Police trooper, testified that he collected a fired .22 caliber bullet from a bookcase located in the living room of the residence, which appeared to have traveled through a plastic chair on the porch and the siding on the front of the house. Corporal Mitchell also recovered a Savage Model 110E, caliber .222, Remington rifle from a gun cabinet in the bedroom. West Virginia State Police Sergeant Robert Richards collected a second fired .22 caliber bullet from the front porch and another gun, a .300 Winchester Remington Model 700, located on the bathroom floor.³ Sergeant Ron Lilly, a detachment commander for the West Virginia State Police who was the custodian of the evidence in this case, testified that several other guns were seized and taken from Petitioner's residence. However, only three were submitted to the West Virginia State Forensic Lab for testing because the wound

that Elizabeth suffered appeared to be from a smaller caliber gun.

West Virginia State Police Sergeant Bruce Clendenin, the lead investigator on the case, testified that there was a significant amount of Petitioner's blood inside the house, on the floor of the bathroom, and in the bedroom. Moreover, various witnesses testified that although there was no trail of blood leading from the porch into the house, there was a pool of blood in the bathroom leading into the master bedroom and less toward the front door. Sergeant Clendenin testified that one thing that stood out as odd to him that day was that the bathroom sink was wet, freshly used. Sergeant Clendenin took several measurements at the crime scene, in particular of the bullet hole in the siding of the house in relation to the green lawn chair that also appeared to have a bullet hole in it. He noted that there was no blood on any of the porch furniture or the walls, and that the majority of the blood was underneath Elizabeth's body and nowhere else.

Sergeant Clendenin also testified that when he and other officers were searching Petitioner's home, he observed a small hump or "puffed up" disturbance in the carpet on the bathroom floor, so the carpet was cut back in that area and he observed what he believed to be an apparent bullet hole in the bathroom floor. The portion of the particle board floor containing this hole was cut out by Sergeant Anthony Webb and was placed into evidence. Sergeant Lilly testified that the piece of carpet laying over the bullet hole did not have a hole in it. Sergeant Clendenin also testified that officers conducted a search underneath the home to retrieve a bullet, but because there was a large amount of nails and metal debris underneath it, their metal detectors were unable to locate anything.

The question of whether the hole in the bathroom floor was caused by a bullet was in dispute at trial. Philip Cochran, a firearm and tool-mark examiner employed with the State Forensic Lab, testified that he could not confirm by the presence of chemical residue that the hole was caused by a bullet. However, he testified that the damage to the wood and the size of the hole were not inconsistent with having been caused by a bullet. He stated that if a bullet had passed through carpet or padding before going through the wood, any of the residues that he would have been looking for would have been removed, and thus, he did not rule out the possibility that the hole in the bathroom floor was caused by a bullet. He also determined that of the guns submitted to the State Forensic Lab for testing, none of the firearms matched the two bullets that were found at the scene.

Additionally, Koren Powers, an employee of the State Forensic Lab who worked in the trace evidence section, conducted gunshot residue testing and determined that no gunshot residue was found on either Petitioner, Elizabeth, or the piece of carpet that was removed from the bathroom floor by investigators. Meredith Chambers, a DNA analyst employed with the State Forensic Lab, testified that she tested swabs collected from the bathroom carpet, the Remington 700 rifle taken from the bathroom floor, and Petitioner's cell phone and that the results identified from the swabs collected were consistent with Petitioner's DNA.

Petitioner subsequently gave another recorded statement to police on January 7, 2008, and provided details about the events that occurred on the night of the crime that were consistent with his prior recorded statement. In that second recorded statement, Petitioner offered, among other things, further details regarding the nature of his strained relationships with Elizabeth's father and sister. However, Petitioner again denied having any prior domestic violence incidents with Elizabeth. He also offered further...