State v. Sutphin

Decision Date07 December 1995
Docket NumberNo. 22833,22833
Citation195 W.Va. 551,466 S.E.2d 402
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Appellee, v. Earnest SUTPHIN, Appellant.

1. "A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of. The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial, proof of mere opportunity to influence the jury being insufficient." Syllabus Point 7, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932).

2. In any case where there are allegations of any private communication, contact, or tampering, directly or indirectly, with a 3. In the absence of any evidence that an interested party induced juror misconduct, no jury verdict will be reversed on the ground of juror misconduct unless the defendant proves by clear and convincing evidence that the misconduct has prejudiced the defendant to the extent that the defendant has not received a fair trial.

[195 W.Va. 554] juror during a trial about a matter pending before the jury not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial with full knowledge of the parties; it is the duty of the trial judge upon learning of the alleged communication, contact, or tampering, to conduct a hearing as soon as is practicable, with all parties present; a record made in order to fully consider any evidence of influence or prejudice; and thereafter to make findings and conclusions as to whether such communication, contact, or tampering was prejudicial to the defendant to the extent that he has not received a fair trial.

4. Under W.Va.R.Evid. 805, hearsay included within hearsay is admissible if each level of hearsay comports with one of the exceptions to the hearsay rule.

5. A threat to commit an act in the future, if made by the declarant/party and offered against the party, is not hearsay under W.Va.R.Evid. 801(d)(2).

6. A threat is a manifestation of the defendant's state of mind as it relates to the issue of premeditation and is therefore an exception to the hearsay rule under W.Va.R.Evid. 803(3).

7. In order to qualify as an excited utterance under W.Va.R.Evid. 803(2): (1) the declarant must have experienced a startling event or condition; (2) the declarant must have reacted while under the stress or excitement of that event and not from reflection and fabrication; and (3) the statement must relate to the startling event or condition.

8. Within a W.Va.R.Evid. 803(2) analysis, to assist in answering whether a statement was made while under the stress or excitement of the event and not from reflection and fabrication, several factors must be considered, including: (1) the lapse of time between the event and the declaration; (2) the age of the declarant; (3) the physical and mental state of the declarant; (4) the characteristics of the event; and (5) the subject matter of the statements.

Richard M. Riffe, Assistant Prosecuting Attorney, Madison, for Appellee.

Henry E. Wood, III, Charleston, for Appellant.

RECHT, Justice:

The defendant, Earnest Sutphin, appeals from a final order of the Circuit Court of Boone County, entered the 4th day of March, 1994, sentencing him upon his conviction of murder of the second degree to confinement in the West Virginia Penitentiary for a period of not less than five nor more than eighteen years. 1

On appeal, the defendant asserts that the trial court erred by (1) denying his motion for a new trial and failing to set aside a verdict which was a product of a jury that was not fair and impartial; and (2) permitting the State to introduce evidence of a statement made to the victim by the defendant, repeated by the victim to her father, and offered through the victim's father, better known as "hearsay within hearsay." After reviewing these contended errors, we do not find that they warrant reversal of the defendant's conviction.


The defendant and the victim, Unita Lynn Lusk, began living together in September of 1990, approximately one year before the victim's death. This relationship was stormy and marked by episodes of violence, prompting Sometime during the summer of 1991, the victim left the defendant and sought refuge for the night at her grandmother's house in Madison, West Virginia. The next day, the victim telephoned her father, Roy Lusk, and asked him to pick her up at her grandmother's house. Mr. Lusk drove to his mother's (the victim's grandmother) home to pick up his daughter, and as Mr. Lusk and the victim were leaving the home, the victim observed the defendant in front of the house sitting in his automobile. The defendant wanted to speak to the victim. Mr. Lusk and the victim initially ignored the defendant and proceeded to walk down the street toward Mr. Lusk's automobile, which was parked approximately two blocks from the grandmother's house.

[195 W.Va. 555] the victim from time to time to leave and then resume the relationship.

After walking about one block, Mr. Lusk and the victim were once again confronted by the defendant, who had driven his automobile from the grandmother's house toward Mr. Lusk and the victim. The defendant again asked to speak to the victim. This time the victim chose to enter the defendant's automobile, while Mr. Lusk remained approximately ten feet away. Mr. Lusk could see into the defendant's automobile but could not hear any of the conversation; however, he did observe the defendant lean toward the victim, and the victim crying as a result.

After talking for approximately thirty minutes, the victim exited the automobile and proceeded to walk with her father back toward the grandmother's house. They walked approximately one-half block from where the conversation between the victim and the defendant took place when the victim, who was still visibly scared, nervous, and shaking, related to her father that the defendant had told her he would kill her if she ever left him again. Mr. Lusk accompanied the victim back to the grandmother's house where she gathered her belongings and returned to live with the defendant.

Approximately three months after this conversation between the defendant and the victim, a series of events occurred which ultimately left the victim dead and the defendant charged with the crime of murder.

On November 9, 1991, while at the defendant's mobile home, the victim made several telephone calls to a friend, Billy Dale Nelson. The victim first telephoned Mr. Nelson at 3:00 p.m., stating that she and the defendant had been fighting. Mr. Nelson offered to pick up the victim, but she refused, expressing concern that the defendant would be upset. Approximately an hour later, the victim again called Mr. Nelson and requested that he go to her father's house and tell her father that she and the defendant had been fighting and to come to pick her up because she needed to get away. Mr. Nelson's mother went to the home of the victim's father to relay this information to him.

At approximately 5:00 p.m., the victim again called Mr. Nelson and asked if her father had been told to pick her up, as she had packed her clothes and could not wait any longer. The victim's sisters were then sent to the mobile home to assist the victim in leaving. At approximately 6:45 p.m., while traveling toward the mobile home, the sisters stopped to telephone the victim to confirm that she really wanted to leave. During this conversation the victim, who was crying, reiterated her desire to leave, at which point the telephone went silent.

The victim's sisters arrived at the mobile home approximately five to ten minutes after this last telephone conversation and found the victim shot in the neck and the defendant covered with blood while talking on the telephone with the paramedics. The victim died by the time the paramedics arrived.



A. Factual Background

We first address whether an uninvited visit by a juror to the home of a witness during the course of the trial constitutes prejudicial conduct sufficient to warrant granting the defendant a new trial.

The trial commenced on Monday, November 15, 1993, with the parties selecting and the court impaneling a jury. Testimony began on Tuesday, November 16, 1993. On Thursday, November 18, 1993, the State called as its witness the defendant's cousin, James Dickens. Mr. Dickens testified that shortly after the victim's death, his wife, Patricia Dickens, discovered a bullet shell at the defendant's mobile home. 2 After Mr. Dickens was excused, two jurors, Robert Jarrell and Rodney Lowery, informed the trial judge that they had both known Mr. Dickens for a number of years. Mr. Dickens's name was not on the witness list that was read to the jurors during voir dire. Despite this revelation, neither Mr. Jarrell nor Mr. Lowery was excused as jurors.

On Thursday evening, after Mr. Dickens completed his testimony, Mr. Jarrell, despite the court's repeated admonition not to discuss the case with anyone, made an uninvited visit to the Dickens residence. Apparently, the purpose of the visit was to inform Mr. Dickens that Mr. Jarrell did not know Mr. Dickens would be called as a witness, and also to assure himself that serving on the jury would not affect their friendship. The visit, which lasted approximately two to three hours, occurred prior to the trial court's charge to the jury, closing arguments and jury deliberation.

At 10:45 p.m. on Friday, November 19, 1993, after the jury returned a guilty verdict, Mr. Dickens informed defense counsel of his...

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