State Va. v. Kaufman

• Decision Date: 22 June 2011
• Docket Number: No. 35691.,35691.
• Citation: 711 S.E.2d 607,227 W.Va. 537
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellantv.David Wayne KAUFMAN, Defendant Below, Appellee.

227 W.Va. 537
711 S.E.2d 607

STATE of West Virginia, Plaintiff Below, Appellant
v.
David Wayne KAUFMAN, Defendant Below, Appellee.

No. 35691.

Supreme Court of Appeals of West Virginia.

Submitted March 30, 2011.Decided June 22, 2011.

[711 S.E.2d 610]

Syllabus by the Court

1. “ ‘ “Rulings 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.” State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983).’ Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).” Syl. Pt. 1, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774, 213 W.Va. 327 (2003).

2. “The Confrontation Clause contained in the Sixth Amendment to the United States Constitution provides: ‘In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.’ This clause was made applicable to the states through the Fourteenth Amendment to the United States Constitution.” Syl. Pt. 1, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds by, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

3. “The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement.” Syl. Pt. 2, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds by, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

4. “For purposes of the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception.” Syl. Pt. 6, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995), overruled on other grounds by, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

5. “We modify our holding in James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), to comply with the United States Supreme Court's subsequent pronouncements regarding the application of its decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to hold that the unavailability prong of the Confrontation Clause inquiry required by syllabus point one of James Edward S. is only invoked when the challenged extrajudicial statements were made in a prior judicial proceeding.” Syl. Pt. 2, State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999), overruled on other grounds by, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

6. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

7. “To the extent that State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995), and State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999), rely upon Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ( overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)) and permit the admission of a testimonial statement by a witness who does not appear at trial, regardless of the witness's unavailability for trial and regardless of whether the accused had a prior opportunity to cross-examine the witness, those cases are overruled.” Syl. pt. 7, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

8. “Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article II of the West Virginia Constitution, a testimonial statement is, generally, a statement

[711 S.E.2d 611]

that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Syl. Pt. 8, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

9. “Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a witness's statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness's statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness's statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency.” Syl. Pt. 9, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

10. When ruling upon the admission of a narrative under Article VIII (Hearsay) of the West Virginia Rules of Evidence, a trial court must break down the narrative and determine the separate admissibility of each single declaration or remark. The trial court must also analyze whether the declaration or remark is relevant pursuant to W.Va. R. Evid. 401 and, if so, admissible pursuant to W.Va. R. Evid. 402. However, if the probative value of the declaration or remark is substantially outweighed by the danger of unfair prejudice, then it may be excluded pursuant to W.Va. R. Evid. 403.

Darrell V. McGraw, Jr. Esq., Attorney General, Benjamin F. Yancey, III, Assistant Attorney General, Charleston, WV, for Appellee.George J. Cosenza, Parkersburg, WV, for Appellant.

McHUGH, J.:

This is an appeal by David W. Kaufman from his conviction of first degree murder in the Circuit Court of Wood County, West Virginia. Upon the jury's recommendation of a sentence of life without mercy, the trial court so sentenced Appellant by order entered March 23, 2009. On appeal, Appellant argues that the trial court improperly admitted into evidence the victim's diary and certain statements by the victim to others, both of which recounted alleged threats and acts of violence by Appellant towards the victim during the weeks preceding her death.

Upon careful consideration of the arguments of the parties and the applicable legal authority, and for the reasons discussed below, we reverse Appellant's conviction and sentence and remand this case for a new trial.

I. Factual and Procedural Background

In the early morning hours of December 18, 2007, Appellant's wife, Martha Kaufman, was found dead in the closet of her bedroom as the result of a gunshot wound to the left side of her head. A .22 caliber pistol was found in her left hand.¹ The medical examiner determined that the time of death was between noon and 4:00 p.m. the preceding day. At trial, Medical Examiner Dr. Zia Sabet testified that the manner of death was undetermined; in other words, Dr. Sabet was unable to determine if the victim died as a result of a homicide or suicide.

Police found the victim's body after the couples' children, Kristy and Zachary, notified them that they were unable to get in touch with their mother by telephone or locate her in the family home even though her car was parked there. It is undisputed that the victim suffered from depression and anxiety and rarely left the house.

When police arrived at the family's house in the early morning hours of December 18th, Appellant was there and invited the officers inside. Appellant told police that he had dropped off the victim at Wal Mart at 1:00 p.m., where she was to do some shopping and then meet Kristy at the nearby Toys R Us store where she worked. According

[711 S.E.2d 612]

to Appellant, the victim intended to get a ride home with Kristy after she finished her shift. Appellant told police that he arrived at the house at approximately 9:00 p.m., not long after Kristy arrived to look for her mother.²

The police searched the home and eventually found the victim's body in the closet of her bedroom.³ After the body was found-but before they informed Appellant that they found it-the police questioned Appellant further about the Wal Mart story. When police advised him that Wal Mart surveillance video would have been able to record whether his wife safely made it into the store, Appellant admitted that the story had been fabricated. It was at that time that Appellant told police that his wife told him she had cancer ⁴; that she was not going to undergo treatment; and that she was planning to kill herself on December 17th. According to Appellant, his wife had threatened suicide on prior occasions and thus, he was “skeptical” about her current plan to end her life. Appellant stated that she told him to tell the Wal Mart story to anyone who asked and also advised him that he should be sure to have an alibi.

When questioned further by police, Appellant stated that Zachary left the house for work at approximately 12:30 p.m.⁵ and, not long after that, Appellant also left the house to go to his mother's home to bake cookies. ⁶ Appellant maintains that when he left the house, his wife was still alive and was sitting in the recliner where she spent much of her time and where she often slept. At trial, a surveillance video of a local McDonald's showed Appellant going through the drive-thru at 12:59 p.m. Appellant's mother, Geneva Kaufman, testified that Appellant brought her lunch from McDonald's and that he arrived at her house sometime after 1:00. Appellant told police that when he returned home that night at 9:00 p.m., Kristy was there looking for her...