State v. Trail

• Citation: 778 S.E.2d 616,236 W.Va. 167
• Decision Date: 07 October 2015
• Docket Number: No. 14–0887.,14–0887.
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Lillie Mae TRAIL, Defendant Below, Petitioner.
• Court: Supreme Court of West Virginia

236 W.Va. 167

778 S.E.2d 616

STATE of West Virginia, Plaintiff Below, Respondent

v.Lillie Mae TRAIL, Defendant Below, Petitioner.

No. 14–0887.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 2015.

Decided Oct. 7, 2015.

Jonathan R. Marshall, Maryl C. Sattler, Bailey & Glasser, Charleston, WV, for Petitioner.

Patrick Morrisey, Attorney General, Shannon Frederick Kiser, Assistant Attorney General, Charleston, WV, for Respondent.

Opinion

DAVIS, Justice:

In this criminal appeal, the petitioner herein and defendant below, Lillie Mae Trail (“Ms. Trail”), challenges her conviction by jury of murder in the first degree and her sentence of life without mercy.¹Ms. Trail herein alleges the following errors: (1) jury misconduct; (2) application of erroneous evidentiary standard for admission of autopsy and crime scene photographs during mercy phase; (3) improper reading to jury of West Virginia Slayer Statute; (4) flawed use of theme of “atonement” during prosecutor's mercy phase closing argument; (5) unsupported statements made by prosecutor during closing argument; (6) wrongful admission into evidence of a summary chart; (7) insufficient evidence to support jury's verdict; and (8) cumulative error. Upon thorough review of these issues, the party's briefs, oral argument, and relevant law, we find no error and, therefore, affirm. On the issue pertaining to the proper evidentiary standard for the admission of autopsy and crime scene photographs during the mercy phase, we hold that, autopsy or crime scene photographs may be particularly relevant to depicting the nature of the crime committed by a defendant who has been found guilty of first degree murder. Even if deemed gruesome, the probative value of these photographs is greater at the mercy phase of a bifurcated trial than at the guilt phase of such trial.

I.FACTUAL AND PROCEDURAL HISTORY

On November 22, 1994, Ms. Trail's husband, Chester Trail, was hunting in the woods when he was shot multiple times and killed. Ms. Trail's subsequent trial commenced on October 6, 1997, in the Circuit Court of Lincoln County, and ended on October 27, 1997. During the course of the bifurcated trial, a jury first found Ms. Trail guilty of murder in the first degree at the close of the guilt phase.²In reaching its verdict, the jury found that Ms. Trail had hired her nephew, Gregory Whittington, to kill her husband so that she could collect on various policies of insurance.³At the close of the penalty phase of the bifurcated trial, the jury recommended no mercy. A sentencing hearing was held on December 9, 1997, after which, by order entered on April 7, 1998, the circuit court imposed a sentence of life without the possibility of parole. This sentence was ordered to run concurrently with a sentence that had been previously imposed by the Circuit Court of Kanawha County following Ms. Trail's plea of no contest to a charge of unlawful wounding.⁴

Thereafter, in August 1998, Ms. Trail filed her post-trial motion for acquittal or, in the alternative, for a new trial. The motion alleged juror misconduct and various trial errors. The circuit court held a hearing on the alleged jury misconduct, as required by Syllabus point 2 of State v. Sutphin,195 W.Va. 551, 466 S.E.2d 402 (1995), on November 5, 1998. By summary order entered several years later, on June 8, 2006,⁵the circuit court denied both motions. The summary order was followed by a more detailed order, entered on January 8, 2007, containing more thorough findings of fact and conclusions of law pertaining to the circuit court's denial of Ms. Trail's post-trial motions. In that order, the circuit court noted that Ms. Trail's motion alleging jury misconduct, made under Rule 33 of the West Virginia Rules of Criminal Procedure, had not been timely filed. Nevertheless, the circuit court stated that its denial was based upon the merits of the motion.⁶

By subsequent order entered on July 15, 2014,⁷the circuit court granted Ms. Trail's motion seeking resentencing in order to restart the appeal period to challenge her conviction and sentence. This appeal followed.⁸

II.STANDARD OF REVIEW

Ms Trail's case is before this Court on appeal from an order denying her motion seeking a new trial or, in the alternative, a judgment of acquittal based upon the insufficiency of the evidence. This Court applies the following general standard when reviewing a circuit court decision denying a new trial:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novoreview.

Syl. pt. 3, State v. Vance,207 W.Va. 640, 535 S.E.2d 484 (2000). Additionally, we note that “[t]he Court applies a de novostandard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence.” State v. Juntilla,227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011)(per curiam) (citing State v. LaRock,196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). Accord State v. Minigh,224 W.Va. 112, 124, 680 S.E.2d 127, 139 (2009)(per curiam).

With due regard for these general standards for our review, we will address the issues raised by Ms. Trail. We will observe additional standards for our review of particular issues she has raised as necessary below.

III.DISCUSSION

Ms. Trail herein raises numerous errors to challenge her conviction of murder in the first degree and her sentence of life without mercy. We will address in turn each of the errors she has raised.

A. Jury Misconduct

Following the conclusion of the trial, Ms. Trail's lawyer received information that a juror, Teresa Nunley (“Juror Nunley”), may have discussed the case with a co-worker during the trial. On November 5, 1998, the circuit court conducted a Remmerhearing⁹to consider evidence of the misconduct and to ascertain what, if any, prejudice resulted therefrom.

During the Remmerhearing, Linda Shamblin (“Ms. Shamblin”), the co-worker with whom Juror Nunley allegedly had engaged in an improper communication, testified that her daughter previously had been married to Ms. Trail's son. Through Ms. Shamblin's testimony, it became apparent that Ms. Shamblin and Ms. Trail did not have a friendly relationship. It also was revealed that Ms. Shamblin did not personally know Juror Nunley and had no authority over Juror Nunley at their place of employment. Ms. Shamblin testified that she had heard Juror Nunley was sitting on Ms. Trail's jury. According to Ms. Shamblin, one morning while the trial was ongoing she encountered Juror Nunley in their workplace break room and inquired “[a]re you on [Ms. Trail's] trial?” Ms. Shamblin testified that Juror Nunley responded that she was “not allowed to discuss that,” and the conversation ended.

Juror Nunley's testimony differed from Ms. Shamblin's. According to Juror Nunley, Ms. Shamblin approached her in the break room and asked if she was serving on Ms. Trail's jury. Upon receiving an affirmative answer, Ms. Shamblin went on to comment “Oh, I know she is guilty,” along with other similar, yet brief, comments. Juror Nunley stated that she promptly left the break room. On the issue of influence, Juror Nunley testified that, although she felt Ms. Shamblin was attempting to sway her, Ms. Shamblin's comments had no influence on the verdict she rendered in the case. Juror Nunley pointed out that the two women had one solitary encounter about the trial and that encounter lasted only a few seconds. She also testified that she did not tell any other jurors about the comments Ms. Shamblin made to her.

The third and final person to testify at the Remmerhearing was Misty Holtzman (“Ms. Holtzman), another of Juror Nunley's co-workers. Ms. Holtzman, who is a friend of the defendant, Ms. Trail, worked alongside Juror Nunley at their place of employment. She testified that Juror Nunley told her of the encounter with Ms. Shamblin. According to Ms. Holtzman's testimony, Juror Nunley described the encounter as being initiated when Juror Nunley approached Ms. Shamblin and inquired about her knowledge of Ms. Trail. The version of the encounter related by Ms. Holtzman was that Ms. Shamblin informed Juror Nunley of the history of problems between Ms. Shamblin's daughter and Ms. Trail's son, and that Ms. Shamblin encouraged Juror Nunley to “say that [Ms. Trail] is guilty because she was guilty as sin.” Ms. Holtzman testified to her belief that Juror Nunley had been influenced by the conversation with Ms. Shamblin based upon Ms. Holtzman's observations of Juror Nunley's facial expressions as she described the encounter.

Following the Remmerhearing, by order entered on January 8, 2007, the circuit court found insufficient evidence of juror misconduct to warrant granting a new trial on this basis. On appeal, Ms. Trail contends that the circuit court erred by placing the burden of proof upon her to establish juror misconduct without first determining whether the source of the improper juror contact was an “interested party.” The State responds that the circuit court properly applied the standards set out by this Court in Sutphin,195 W.Va. 551, 466 S.E.2d 402.

At the outset, we note that our review of this issue is for an abuse of discretion:

“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

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