The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.
FACTS AND PROCEDURAL BACKGROUND
It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.
The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.
It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.
The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.
In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.
A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.
It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.
In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below.
Sufficiency of the Evidence
First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.
We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:
A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.
Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function 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.
In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:
State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).
However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:
The circumstantial evidence rule of Holland was reaffirmed in Jackson:
Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492,
These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.
In summary, 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. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.
We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case—those that the jury was unquestionably entitled to find—are rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.
There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.
The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.
After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations
The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."
The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.
1. Standard of Review
The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.
Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken
2. Adequacy of Jury Instructions as to the Elements of First Degree Murder
The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."
The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"
See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:
The linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.
At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an `arbitrary symbol' used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.
The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).
In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:
"`The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction.'" (Emphasis added to last sentence).
In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to
"`To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.' (Footnotes omitted)
Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:
This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.
The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:
The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.
While many jurisdictions do not favor the distinction between first and second degree murder,
Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder`s notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:
Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.
We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled. In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:
Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.
Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:
"`The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he
Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.
As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.
Misconduct of the Prosecuting Attorney
We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.
1. Disclosing the Possible Penalties
During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.
The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.
Both parties to this appeal seem to acknowledge that our cases are not entirely
The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.
The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).
We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:
"`When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.'"
159 W.Va. at 362, 222 S.E.2d at 306.
The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.
Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."
It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.
2. Questions Relating to the Defendant's Prejudices
During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with
The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.
Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility
Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:
The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.
Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.
The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.
The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc., 262 N.W.2d 377, 387 (Minn.1977), stated:
We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.
The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause—unfair prejudice, confusion, misleading the jury, delay, or repetition—and to exclude the evidence if the probative value is "substantially outweighed" by the harm.
Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance
The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).
Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.
Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.
To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v.
3. Harmless Error Standard
Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.
The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court
In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an
Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti, 729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).
In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.
However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.
"`When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."
See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.
"`Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."
In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."
Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.
Reversed and remanded.
MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.
WORKMAN, J., concurs and reserves the right to file a concurring opinion.
WORKMAN, Justice, concurring:
I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion
I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection
For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:
"`"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."`"
169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."
Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is,
"`When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."
"THE COURT: I'll let you get it in through Smith.
"(In open court)
"Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?
"A. Not discussions, no.