State Va. v. Poore
| Decision Date | 19 November 2010 |
| Docket Number | No. 35271.,35271. |
| Citation | 226 W.Va. 727,704 S.E.2d 727 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appelleev.Richard Alan POORE, Defendant Below, Appellant. |
OPINION TEXT STARTS HERE
[704 S.E.2d 730 , 226 W.Va. 730]
Syllabus by the Court
1. “Under the ‘plain error’ doctrine, ‘waiver’ of error must be distinguished from ‘forfeiture’ of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right—the failure to make timely assertion of the right—does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is ‘plain.’ To be ‘plain,’ the error must be ‘clear’ or ‘obvious.’ Syllabus Point 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
2. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
3. Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).
4. “Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.” Syllabus Point 2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978).
5. “Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” Syllabus Point 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
6. Syllabus Point 2, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).
7. “In determining whether preindictment delay violates the Due Process Clause
[226 W.Va. 731 , 704 S.E.2d 731]
of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting prejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the government's decision to prosecute after substantial delay violates fundamental notions of justice or the community's sense of fair play. To the extent our prior decision in Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and its progeny are inconsistent with this ruling, they are expressly overruled.” Syllabus Point 3, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).
8. “To demonstrate that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, a defendant must introduce substantial evidence of actual prejudice which proves he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was or will be likely affected.” Syllabus Point 4, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).
9. Syllabus Point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
William B. Summers, Esq., Parkersburg, WV, for Appellant.Darrell V. McGraw, Esq., Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, WV, for Appellee.
The appellant, Richard Alan Poore, appeals his conviction of one count of first-degree murder and his sentence of life in prison without mercy in the Circuit Court of Pleasants County. On appeal, the appellant assigns several errors that allegedly occurred during his trial which, he claims, rendered the trial unfair. Because we find prejudicial error in the proceedings below, we reverse the appellant's conviction.
On April 14, 1981, Richard Alan Poore, the appellant, was in the family trailer with stepdaughter Laura Dunn, stepson Charles Hinton, who was five years old at the time, and the appellant's son Ricky, Jr. (hereinafter “Ricky, Jr.” or “the decedent”) who was almost three months old. At some point, Ricky, Jr. stopped breathing. The appellant directed Charles to run next door to call for medical help. Ricky, Jr. was ultimately hospitalized in Morgantown where he was pronounced dead two days later.
The appellant was indicted for murder in the death of Ricky, Jr. twenty-five some
[226 W.Va. 732 , 704 S.E.2d 732]
years later in September 2006.1 At his June 2008 trial, the State adduced evidence that when Dr. James Frost, the State's Deputy Chief Medical Examiner at the time of the decedent's death, retired, he left paperwork on autopsies that had been performed but for which no final report had been prepared. Subsequently, the Chief Medical Examiner in 2003, Dr. James Kaplan, reviewed Dr. Frost's uncompleted cases and finalized them. After reviewing the paperwork on Ricky, Jr., Dr. Kaplan concluded that he died of shaken baby syndrome. Dr. Kaplan testified at the trial that Ricky, Jr., at the time of death, had a very small subdural hematoma, bilateral severe retinal hemorrhages, a fatal brain injury, bruised ears and a bruised forehead, and injuries to his torso. To counter Dr. Kaplan's testimony, the appellant presented the expert testimony of Dr. John Galaznik, a pediatrician. Dr. Galaznik disputed the validity of shaken baby syndrome as a cause of death in infants. It was the opinion of Dr. Galaznik that Ricky, Jr. stopped breathing as a result of choking, and the subsequent restoration of blood flow to already dead tissue resulted in the bleeding of the brain and retinal hemorrhages discovered in Ricky, Jr.2 The appellant also presented Dr. James Frost as a witness who testified that after conferring with the police officer who investigated Ricky, Jr.'s death in 1981, Dr. Frost could not make a determination with reasonable assurance as to whether the cause of Ricky, Jr.'s death was homicide or a naturally occurring event.3
The State presented the testimony at trial of Jeri Williams, the appellant's ex-wife and the mother of Ricky, Jr., who testified to the violent acts committed against her by the appellant. Also, Heather Dunn, the appellant's stepdaughter, testified that she saw the appellant beat her mother and physically abuse her siblings.4 Finally, Charles Hinton, now 32 years old, the appellant's stepson, testified that the appellant physically abused him. He also testified that he witnessed the appellant shake Ricky, Jr. on April 14, 1981. At the close of the trial, the jury convicted the appellant of first-degree murder with no recommendation of mercy.
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