State v. Whittaker

• Decision Date: 05 April 2007
• Docket Number: No. 33037.,33037.
• Citation: 650 S.E.2d 216
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Valerie WHITTAKER, Defendant Below, Appellant.

650 S.E.2d 216

STATE of West Virginia, Plaintiff Below, Appellee, v.Valerie WHITTAKER, Defendant Below, Appellant.

No. 33037.

Supreme Court of Appeals of West Virginia.

Submitted February 14, 2007.

Decided April 5, 2007.

Dissenting Opinion of Justice Albright May 15, 2007.

Dissenting Opinion of Justice Starcher June 11, 2007.

Concurring Opinion of Justice Maynard June 29, 2007.

Syllabus by the Court

1."A jury verdict should be set aside only when the record contains no evidence regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt."Syllabus point 3, in part, State v. Guthrie,194 W.Va. 657, 461 S.E.2d 163(1995).

2."It is peculiarly within the province of the jury to weigh the evidence upon the question of self-defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence."Syllabus point 5, State v. McMillion, 104 W.Va. 1, 138 S.E. 732(1927).

3."`"`Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution.It is not necessary in appraising its sufficiency that the trial or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.'State v. West,153 W.Va. 325, 168 S.E.2d 716(1969)."Syl. pt. 1, State v. Fischer,158 W.Va. 72, 211 S.E.2d 666(1974).'Syl. Pt. 10, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549(1986)."Syllabus point 1, State v. Rogers,209 W.Va. 348, 547 S.E.2d 910(2001).

4."The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt.Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt."Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163(1995).

5."A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden.An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution.The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt.Credibility determinations are for a jury and not an appellate court.Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. . . ."Syllabus point 3, in part, State v. Guthrie,194 W.Va. 657, 461 S.E.2d 163(1995).

6."When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done.But of all this the jury must judge from all the evidence and circumstances of the case."Syllabus point 7, State v. Cain, 20 W.Va. 679(1882).

7."Under his plea of self-defense, the burden of showing the imminency of the danger rests upon the defendant.No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot."Syllabus point 6, State v. McMillion, 104 W.Va. 1, 138 S.E. 732(1927).

8."Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense."Syllabus point 4 State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374(1978).

9."`The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.'Syllabus point 10, State v. Huffman,141 W.Va. 55, 87 S.E.2d 541(1955), overruled on other grounds byState ex rel. R.L. v. Bedell,192 W.Va. 435, 452 S.E.2d 893(1994)."Syllabus point 2, State v. Doonan,220 W.Va. 8, 640 S.E.2d 71(2006).

10."Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules."Syllabus point 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221(1990).

11."`Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes.'Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont,126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88(1943)."Syllabus point 2, in part, Harshbarger v. Gainer,184 W.Va. 656, 403 S.E.2d 399(1991).

David C. Smith, Smith & Scantlebury, L.C., Ward Morgan, Bluefield, for the Appellant.

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

PER CURIAM:

The appellant herein and defendant below, Valerie Whittaker[hereinafter "Ms. Whittaker"], appeals from the January 14, 2005, order of the Circuit Court of Mercer County rendered after a jury adjudged Ms. Whittaker guilty of voluntary manslaughter in the death of her longtime boyfriend.In its order, the court adopted the jury's determination of guilt and sentenced Ms. Whittaker to a determinate term of ten years imprisonment.On appeal to this Court, Ms. Whittaker contends that the trial court erred by (1) not entering a judgment of acquittal¹ based upon her claim of self-defense; (2) limiting the testimony of various defense witnesses; (3) refusing to admit certain evidence proffered by Ms. Whittaker; and (4) admitting statements made by Ms. Whittaker.Upon a review of the parties' arguments, the record presented for our consideration, and the pertinent authorities, we affirm Ms. Whittaker's conviction.

I.FACTUAL AND PROCEDURAL HISTORY

At the time of the events relevant to this appeal, Valerie Whittaker and Jerry Calvin Mills, Jr.[hereinafter "Mr. Mills"], had been dating for approximately ten years and had one child together, J.W.²Throughout the parties' relationship, Ms. Whittaker frequently sought shelter for herself and her daughter at a local battered women's shelter, her pastor's home, and her aunt's house in order to escape from Mr. Mills' physical and emotional abuse.³During this time, Ms. Whittaker obtained four separate domestic violence petitions against Mr. Mills in an effort to protect her daughter and herself; three of these protective orders were never served on Mr. Mills, including the one pending at the time of his death.⁴

The events leading up to the death of Mr. Mills began in the spring of 2003.In an effort to terminate their relationship, Ms. Whittaker purchased a mobile home and moved it to property adjoining the residence of her parents.Nevertheless, Mr. Mills left his home in Princeton and moved into Ms. Whittaker's home with her and their daughter.Ultimately, Ms. Whittaker and J.W., apparently fearing Mr. Mills, left this residence and temporarily resided at Princeton Community Hospital where security guards could protect them twenty-four hours a day.Upon learning of their continued presence, hospital personnel directed Ms. Whittaker and J.W. to a local women's shelter, where they stayed for approximately five days.⁵During this time, the Mercer County Sheriff's Department unsuccessfully attempted to serve Mr. Mills with Ms. Whittaker's latest domestic violence petition.Nevertheless, Mr. Mills was made aware of the petition's existence when Ms. Whittaker called Mr. Mills' friend, James Duncan[hereinafter "Mr. Duncan"], and asked his wife, Carolyn, to inform Mr. Mills of the petition.⁶

Thereafter, Ms. Whittaker and J.W. left the shelter and went to Ms. Whittaker's aunt's home, where they stayed for a few days.On June 25, 2003, Ms. Whittaker, with J.W., traveled to Princeton to keep a scheduled doctor's appointment.Upon leaving the doctor's office building, they encountered Mr. Mills in the parking lot, where he was waiting for them and allegedly threatened them.Driving in two separate vehicles, Ms. Whittaker, with J.W., and Mr. Mills then drove to a nearby pharmacy to have prescriptions filled, to a gas station, and back to Ms. Whittaker's mobile home.From there, they left in one vehicle to go to Mr. Duncan's house to retrieve an item, where they stayed and visited for some time.Afterwards, Mr. Mills, Ms. Whittaker, and J.W. traveled to a convenience store...