State Va. v. Berry

• Decision Date: 20 January 2011
• Docket Number: No. 35501.,35501.
• Parties: STATE of West Virginia, Petitioner Below, Appelleev.Rodney Jason BERRY, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

227 W.Va. 221

707 S.E.2d 831

STATE of West Virginia, Petitioner Below, Appellee

v.Rodney Jason BERRY, Defendant Below, Appellant.

No. 35501.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 2011.Decided Jan. 20, 2011.

Syllabus by the Court

1. “Errors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court had objection been raised there.” Syllabus point 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

2. “A trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy.” Syllabus point 4, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

3. “Although it virtually is impossible to outline all factors that should be considered by the trial court, the court should consider when a motion for bifurcation is made: (a) whether limiting instructions to the jury would be effective; (b) whether a party desires to introduce evidence solely for sentencing purposes but not on the merits; (c) whether evidence would be admissible on sentencing but would not be admissible on the merits or vice versa; (d) whether either party can demonstrate unfair prejudice or disadvantage by bifurcation; (e) whether a unitary trial would cause the parties to forego introducing relevant evidence for sentencing purposes; and (f) whether bifurcation unreasonably would lengthen the trial.” Syllabus point 6, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

4. When a defendant is prosecuted on alternative theories of first-degree murder, a verdict against the defendant will stand if the evidence is sufficient to establish guilt beyond a reasonable doubt on any of the alternative first-degree murder theories.

5. “The admissibility of photographs over a gruesome objection must be determined on a case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence.” Syllabus point 8, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

6. “Rule 401 of the West Virginia Rules of Evidence requires the trial court to determine the relevancy of the exhibit on the basis of whether the photograph is probative as to a fact of consequence in the case. The trial court then must consider whether the probative value of the exhibit is substantially outweighed by the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As to the balancing under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse.” Syllabus point 10, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

Crystal L. Walden, Deputy Public Defender, Charleston, WV, for Appellant.Kristen Keller, Raleigh County Prosecutor, Beckley, WV, for Appellee.

DAVIS, Justice:

Rodney Jason Berry, appellant herein and defendant below, appeals from an order of the Circuit Court of Raleigh County convicting him of two counts of first-degree murder and two counts of use of a firearm, and sentencing him to two consecutive life sentences without the possibility of parole. In this appeal, Mr. Berry has assigned error as follows: (1) failure of the trial judge to disqualify himself; (2) improper preclusion of mitigating evidence; (3) insufficiency of the evidence; (4) erroneous admission of numerous photos; and (5) prosecutorial misconduct. After a careful review of the briefs, the record submitted on appeal, and listening to the arguments of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

In October 2000, Mr. Berry met Martha Mills over the internet. Mr. Berry and Ms. Mills developed an unstable relationship that ended in July 2006. ¹ At some point, Ms. Mills began a relationship with Zachary Worthington.²

During the late evening hours of December 2, 2006, Mr. Berry drove to the home of Ms. Mills.³ Ms. Mills initially was not at home, so Mr. Berry left but later returned. According to the testimony of a thirteen-year-old eyewitness, A.C.,⁴ after Mr. Berry returned to Ms. Mills' apartment and found that she still was not home, he paced back and forth in front of the apartment for about five minutes.⁵ Eventually, Ms. Mills arrived in her vehicle and pulled into her driveway. Mr. Worthington was in the vehicle with Ms. Mills.

According to the testimony of A.C., immediately after Ms. Mills pulled into the driveway, Mr. Berry pulled out a handgun and began shooting at Mr. Worthington as he sat in the vehicle. A.C. stated further that Ms. Mills “jumped out of the car, I guess to try and stop him, and he shot her, and he reached back in the vehicle and shot the guy three more times and jumped in his vehicle and left.” Both victims were killed as a result of over a dozen gun shot wounds.

After killing Ms. Mills and Mr. Worthington, Mr. Berry drove to his home, where he lived with his mother. Mr. Berry informed his mother that he had shot the two victims. Afterwards, Mr. Berry called 911 emergency and reported that he had shot the victims.

On January 7, 2007, Mr. Berry was indicted on two counts of first-degree murder and two counts of use of a firearm. The trial of the case commenced on May 12, 2009. During the trial, the State called fourteen witnesses. Mr. Berry testified during the trial and admitted to killing the victims.⁶ The jury returned a verdict on May 22, 2009, finding Mr. Berry guilty of all four counts of the indictment. Subsequent to the trial court's denial of Mr. Berry's post-trial motions, Mr. Berry filed this appeal.

II.STANDARD OF REVIEW

This is an appeal by Mr. Berry from the circuit court's ruling denying his post-trial motions for a new trial and judgment of acquittal. As this Court has previously stated:

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 novo review.

Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). In addition to the general standard of review, this Court also will rely upon specific review standards presented for each issue raised.

III.DISCUSSION

On appeal to this Court, Mr. Berry assigns five errors for review: (1) failure of the trial judge to recuse himself; (2) improper preclusion of mitigating evidence; (3) insufficiency of evidence; (4) erroneous admission of numerous photos; (5) prosecutional misconduct. We will consider each assigned error in turn.

A. Disqualification of Trial Judge

The first issue raised by Mr. Berry is that he was denied a fair trial because the trial judge did not disqualify himself from the case. Mr. Berry contends that, because the trial judge previously was married to the prosecuting attorney, Kristen Keller, the trial judge should have disqualified himself from the case.

The record reflects that the trial judge and Ms. Keller were married to each other from April 30, 1994, until the entry of a final divorce decree on January 30, 2006.⁷ Pursuant to an order of the circuit court, the trial judge did not preside over any criminal cases in Raleigh County during his marriage to Ms. Keller. After the divorce, the trial judge met with the chief public defender and prosecuting attorney of Raleigh County in March 2006, and informed them that he would resume presiding over criminal cases as a result of the divorce. An order was entered April 5, 2006, wherein the trial judge ruled that he would hear criminal cases in Raleigh County that were based upon conduct occurring on or after January 31, 2006.⁸

In this proceeding, the defendant admits that he did not file a motion seeking to have the trial judge disqualify himself from the case. See W. Va. Tr. Ct. R. 17.01(a) (requiring motion to disqualify trial judge). In fact, the issue of disqualification is being presented for the first time in this appeal. “Because this argument is now being raised for the first time on appeal, we must necessarily find that the argument ... has been waived.” Zaleski v. West Virginia Mut. Ins. Co., 224 W.Va. 544, 550, 687 S.E.2d 123, 129 (2009). See also State ex rel. Pritt v. Vickers, 214 W.Va. 221, 223 n. 1, 588 S.E.2d 210, 212 n. 1 (2003) (“[T]he matter of judicial recusal and disqualification is a matter of discretion reposed solely in the presiding judge and the Chief Justice of this Court. As this issue is not properly before the Court in this proceeding, we will not further address the matter.”). Mr. Berry was required to bring any issue of possible bias before the circuit court so that it could evaluate its actions to determine the credibility of the allegations and respond to them accordingly.⁹ We long have held that “[e]rrors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court had objection been raised there.” Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Accordingly, we decline to address the disqualification issue.¹⁰

B. Preclusion of Mitigating Evidence

Mr. Berry contends that the trial court precluded him from presenting evidence on the issue of mercy during his unitary trial.¹¹ In reviewing a challenge to a trial court's admission of evidence, we have held that “[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.” Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). Accord Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998) (“A trial court's evidentiary rulings,...