State v. Whitt, 33039.

• Decision Date: 06 April 2007
• Docket Number: No. 33039.,33039.
• Citation: 649 S.E.2d 258
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Anthony Ray WHITT, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

649 S.E.2d 258

STATE of West Virginia, Plaintiff Below, Appellee v. Anthony Ray WHITT, Defendant Below, Appellant.

No. 33039.

Supreme Court of Appeals of West Virginia.

Submitted January 24, 2007.

Decided April 6, 2007.

Dissenting Opinion of Justice Maynard April 10, 2007.

Syllabus by the Court

1. "[A] trial judge may not make an evidentiary ruling which deprives a criminal defendant of certain rights, such as the right . . . to offer testimony in support of his or her defense . . . which [is] essential for a fair trial pursuant to the due process clause found in the Fourteenth Amendment of the Constitution of the United States and article III, § 14 of the West Virginia Constitution." Syl. Pt. 3, in part, State v. Jenkins, 195 W.Va. 620, 466 S.E.2d 471 (1995).

2. "Under the Sixth Amendment to the United States Constitution and Article III, Section 14 of the West Virginia Constitution, the defendant has a constitutional right to have compulsory process for obtaining witnesses in his favor . . . ." Syl. Pt. 3, in part, State v. Harman, 165 W.Va. 494, 270 S.E.2d 146 (1980).

3. To establish the denial of the right to compulsory process afforded to criminal defendants pursuant to article III, section 14 of the West Virginia Constitution, there must be a showing that the witness' testimony would have been both material and favorable to the defense.

4. For purposes of establishing a denial of the right to compulsory process, a proffer regarding the events to which the witness might testify along with a demonstration of the relevance of such testimony may be relied upon to meet the requisite showing that the testimony would have been both material and favorable to the defense where circumstances prevent a criminal defendant from interviewing a witness.

5. An exception to the general rule against allowing a witness to take the stand solely for the purpose of exercising his or her Fifth Amendment privilege against self-incrimination may be warranted in cases where the testimony sought to be compelled by a defendant in a criminal case is exculpatory in nature.

6. Where a defendant in a criminal case seeks to call a witness to the stand who intends to invoke his or her Fifth Amendment privilege against self-incrimination and the defendant has presented sufficient evidence to demonstrate the possible guilt of the witness for the crime the defendant is charged with committing, the trial court has the discretion to compel such witness to invoke his or her Fifth Amendment privilege in the presence of the jury.

7. In making its decision as to whether a witness should be called to the stand for the purpose of invoking his or her Fifth Amendment privilege against self-incrimination, the trial court should consider whether the defendant will be unfairly prejudiced by not allowing the potentially exculpatory witness to invoke this privilege in the jury's presence.

Gregory L. Ayers, Deputy Public Defender, Office of the Public Defender, Charleston, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for the Appellee.

ALBRIGHT, Justice:

Anthony Ray Whitt appeals from his conviction for second degree murder on the grounds that he was denied his constitutional right to compulsory process¹ when the trial court denied his request to call his co-defendant, Lori Day, to the stand. Ms. Day, who had been acquitted of the murder charges filed against her by the time of Appellant's trial, indicated through counsel that she intended to invoke the Fifth Amendment if called to testify at Appellant's trial. Based on its determination during an in camera hearing that Ms. Day's reliance on the Fifth Amendment was improper, the trial court found Ms. Day in contempt. Refusing to purge herself of the contempt finding, Ms. Day was incarcerated in the county jail for the duration of Appellant's trial. After carefully examining Appellant's constitutional right to compel witnesses to testify in conjunction with the invalid Fifth Amendment privilege asserted by Ms. Day,² we conclude that the trial court erred by refusing to permit Appellant to call Ms. Day to the stand. Accordingly, we reverse and remand this matter for a new trial.

I. Factual and Procedural Background

Appellant and his girlfriend Lori Day resided at the War Drive-In ("Drive-In"), a public bar and grill in McDowell County, West Virginia, that includes a private section where family members reside. During the winter months, Dorothy Mitchell, the victim in this case, lived at the Drive-In. She was the long-time mistress of Appellant's father. Before Ms. Day moved in with Appellant,³ the victim and Appellant reportedly had a close and loving relationship.⁴ Witnesses testified at trial that Appellant and the victim never argued; they always greeted each other with a hug and a kiss; and that Appellant was always doing things for Dorothy Mitchell, who had helped raise him since birth.

From all accounts, the relationship between Ms. Day, the first woman who had "fallen in love" with Appellant, and the victim was strained, at best.⁵ During the week before the murder, Ms. Day left a note for Appellant in which she asked him to "have a talk with that bitch and tell her to stay off my ass before I flip completely out." The note also stated that "I have took all of her s___t that I'm going to take and if I say anything about it, then I won't be able to stay here with you. I'd have to go back to Newhall." Two weeks before the murder⁶ of Ms. Mitchell, Ms. Day complained to Appellant's sister, Polly Whitt, about having to do the dishes. She stated that "if that damned old woman [victim] didn't leave me alone, I'm going to knock her brains out." Less than twenty-four hours before the homicide, Ms. Day complained in a similar vein to Deborah Hall, a neighbor, about Ms. Mitchell and the household chores, commenting that "she was going to do something about it." Just hours before the actual murder, Ms. Day visited the trailer beside the Drive-In where Ed Pierson and Bobby Frazier were watching the Super Bowl. According to Mr. Pierson, Ms. Day was very emotional and stated that "she was going to take something and beat her [Ms. Mitchell's] brains out." Mr. Frazier testified that Ms. Day had tears in her eyes during this same visit and said angrily "if Dorothy [Mitchell] don't get off my back and let me alone, I'm going to knock her . . . brains out."

Sometime in the early morning hours of January 29, 2001, Dorothy Mitchell died from a fractured skull, which was caused by a blow from a blunt object. According to Appellant, he first learned about Ms. Mitchell's death when he discovered Ms. Day in the victim's bedroom in the early morning hours on January 29, 2001. Ms. Day was reportedly stuffing the victim's clothes in garbage bags and the victim was lying on the floor wrapped in a blanket. Ms. Day purportedly told Appellant that she and the victim had been arguing about Ms. Day's children and that she had accidentally killed her.⁷ When Appellant suggested that they call an ambulance, Ms. Day reportedly implored, "no, I am pregnant with your baby," and insisted that "they will hurt me if you do." Appellant testified that he cried, went to the bathroom and vomited. According to his testimony, Ms. Day convinced Appellant not to call the rescue squad based on her alleged pregnancy. She also persuaded him to help her dispose of the body. Appellant testified that after they took the body outside to place it in his brother's car, he got sick again. Appellant and Ms. Day drove to the dump where they deposited both the victim and the bags containing her clothing.

Appellant testified that Ms. Day concocted a story to tell the family about the victim informing them in the middle of the night that she was leaving for a few days. During the days after the victim's disappearance, Appellant's father was extremely upset over the disappearance of Ms. Mitchell. After several days of unsuccessfully trying to convince Ms. Day to confess, Appellant testified that he was distraught over what should be done. Five days after the victim's disappearance and her death, Appellant confessed to the murder.

In explanation of why he confessed to the murder, Appellant testified that he decided to falsely take the blame for the victim's murder because "everybody was hurting," Ms. Day was not going to confess, and he wanted Ms. Mitchell to have a proper burial. So Appellant told his father that he and Ms. Mitchell had argued and that in the course of the argument he had accidentally killed her. He told his father that he grabbed Ms. Mitchell and shook her, choked her, and then she fell and hit her head on the night stand. After providing his father with this explanation, his father accompanied him to the local sheriff's office where he made the purported false confession.⁸ After giving this confession in which he repeated the story he told his father, he took the sheriff and other law enforcement officers to the location where Ms. Mitchell's body had been dumped—an illegal dump site on Coaldale Mountain under a pile of trash.

According to his testimony, Appellant first realized that he had been lied to by Ms. Day about the events that transpired on the night of the victim's death when he learned that the medical examiner's findings⁹ regarding the cause of Ms. Mitchell's death were inconsistent with his confession. Wanting to get things straightened out, Appellant had his attorney contact the State Police so that he could give another statement describing what really happened on the night of Ms. Mitchell's death. In this statement, Appellant stated that he had been tricked by Ms. Day into confessing to the crime and he repeatedly denied killing the victim.

At trial, several witnesses offered evidence that corroborated Appellant's version of the events. Jennifer Ray, who was incarcerated with Ms. Day at the Southern Regional Jail, testified that Ms. Day...