State of West Virginia v. Marcus Patrele McKinley

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2014 Term

FILED

September 29, 2014

No. 13-0745 released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

V.

MARCUS PATRELE MCKINLEY,

Defendant Below, Petitioner

Appeal from the Circuit Court of Mercer County

Honorable Omar J. Aboulhosn, Judge

Criminal Action No. 12-F-90-0A

AFFIRMED

Submitted: September 17, 2014

Filed: September 29, 2014

Paul R. Cassell Patrick Morrisey

Cassell & Crewe, P.C. Attorney General

Wytheville, Virginia Laura Young

Attorney for the Petitioner Assistant Attorney General

Julie Warren

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent

CHIEF JUSTICE DAVIS delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. Signed opinions containing original syllabus points have the highest

precedential value because the Court uses original syllabus points to announce new points

of law or to change established patterns of practice by the Court.

2. Signed opinions that do not contain original syllabus points also carry

significant, instructive, precedential weight because such opinions apply settled principles

of law in different factual and procedural scenarios than those addressed in original syllabus

point cases.

3. Signed opinions, both those including new syllabus points and those not

containing new syllabus points, are published opinions of the Court. As such, they should

be the primary sources relied upon in the development of the common law.

4. Memorandum decisions are decisions by the Court that are not signed,

do not contain a Syllabus by the Court, and are not published.

5. While memorandum decisions may be cited as legal authority, and are

legal precedent, their value as precedent is necessarily more limited; where a conflict exists

between a published opinion and a memorandum decision, the published opinion controls.

i

6. To the extent our prior holdings in Walker v. Doe, 210 W. Va. 490, 558

S.E.2d 290 (2001), are inconsistent with this Court’s recognition that signed opinions will

be used both in cases that articulate new points of law and in cases in which a new point of

law is not required, such prior holdings are expressly overruled.

7. “Events, declarations and circumstances which are near in time, causally

connected with, and illustrative of transactions being investigated are generally considered

res gestae and admissible at trial.” Syllabus point 3, State v. Ferguson, 165 W. Va. 529, 270

S.E.2d 166 (1980), overruled on other grounds by State v. Kopa, 173 W. Va. 43, 311 S.E.2d

412 (1983).

8. “The curative admissibility rule 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. Under this rule, in order to

be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The

original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be

similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary

fact as the original inadmissible evidence.” Syllabus point 10, State v. Guthrie, 194 W. Va.

657, 461 S.E.2d 163 (1995).

9. “In order for a lay witness to give opinion testimony pursuant to Rule

ii

701 of the West Virginia Rules of Evidence (1) the witness must have personal knowledge

or perception of the facts from which the opinion is to be derived; (2) there must be a rational

connection between the opinion and the facts upon which it is based; and (3) the opinion

must be helpful in understanding the testimony or determining a fact in issue.” Syllabus

point 2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999), modified, State v.

McCraine, 214 W. Va. 188, 588 S.E.2d 177 (2003).

10. “A judgment will not be reversed because of the admission of improper

or irrelevant evidence when it is clear that the verdict of the jury could not have been affected

thereby.” Syllabus point 7, Torrence v. Kusminsky, 185 W. Va. 734, 408 S.E.2d 684 (1991).

11. “The diminished capacity defense is available in West Virginia to permit

a defendant to introduce expert testimony regarding a mental disease or defect that rendered

the defendant incapable, at the time the crime was committed, of forming a mental state that

is an element of the crime charged. This defense is asserted ordinarily when the offense

charged is a crime for which there is a lesser included offense. This is so because the

successful use of this defense renders the defendant not guilty of the particular crime

charged, but does not preclude a conviction for a lesser included offense.” Syllabus point

3, State v. Joseph, 214 W. Va. 525, 590 S.E.2d 718 (2003).

12. “A court’s ultimate discretion in accepting or rejecting a plea agreement

iii

is whether it is consistent with the public interest in the fair administration of justice.”

Syllabus point 4, Myers v. Frazier, 173 W. Va. 658, 319 S.E.2d 782 (1984).

iv

Davis, Chief Justice:

The petitioner herein, Marcus McKinley [hereinafter “Mr. McKinley”], was

convicted of first degree murder by a jury in the Circuit Court of Mercer County. The jury

did not recommend mercy; consequently, the circuit court sentenced Mr. McKinley to life

in prison without the possibility of parole. Here, Mr. McKinley has made the following

assignments of error: (1) improper admission of prior bad act evidence, (2) admission of

improper testimony from a social worker, (3) improper exclusion of testimony by a

psychiatrist, (4) erroneous rejection of a plea agreement, (5) improper admission of opinion

testimony by a fact witness, (6) erroneous ruling concerning Facebook evidence, and (7) the

prejudicial impact of the cumulative effect of the errors. After a careful review of the briefs,

the record submitted on appeal, and listening to the argument of the parties, we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

In 2007 or early 2008, Mr. McKinley met Ayanna Patton. At the time, Ms.

Patton was about fifteen years old. Mr. McKinley and Ms. Patton eventually began dating.

At some point during the relationship, a child was born. The relationship between the couple

was very violent. On numerous occasions, the police responded to domestic violence

incidents between the couple. The volatility of the relationship caused the Department of

Health and Human Resources to place the couple’s child in the care of Ms. Patton’s mother.

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It appears that in May 2011, Ms. Patton had a protective order in place that

prevented Mr. McKinley from having any contact with her. In spite of the protective order,

on May 18, 2011, Ms. Patton met with Mr. McKinley at a McDonald’s restaurant. While at

the restaurant, Ms. Patton asked Mr. McKinley for money to help pay her cell phone bill.

Mr. McKinley gave Ms. Patton some money for the phone bill. Ms. Patton left the restaurant

and drove alone to an apartment she had rented.1 Mr. McKinley did not know where Ms.

Patton was staying. Therefore, he contacted a friend and asked for the address where Ms.

Patton was living. After obtaining the address, Mr. McKinley drove to Ms. Patton’s

apartment.

When Mr. McKinley arrived at Ms. Patton’s apartment, they had a brief

argument regarding a woman Mr. McKinley knew. Mr. McKinley spent the night at the

apartment. In the early morning hours of May 19, 2011, Mr. McKinley awakened and began

reading text messages on Ms. Patton’s cell phone. Mr. McKinley saw several text messages

between Ms. Patton and another man. Mr. McKinley became upset over the contents of the

text messages and retrieved a gun he carried. Mr. McKinley aimed the gun at Ms. Patton and

shot her five times. Ms. Patton died at the scene.

After Mr. McKinley killed Ms. Patton, he fled the apartment and drove to

1

Ms. Patton had not fully moved into the apartment. She was actually still

living at her mother’s home.

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North Carolina. During the process of fleeing to North Carolina, Mr. McKinley used a cell

phone to contact several people. He gave incriminating statements indicating that he had

killed Ms. Patton. The local police were able to track Mr. McKinley to North Carolina

because of signals that were given off by the cell phone he was using–which apparently

belonged to Ms. Patton. When the police located Mr. McKinley in North Carolina, he gave

incriminating statements indicating he killed Ms. Patton.

Mr. McKinley was brought back to West Virginia. On February 15, 2012, he

was indicted for first degree murder in the death of Ms. Patton. Prior to the trial, it was

learned that the prosecutor had a conflict of interest in the case. The conflict of interest

involved the prosecutor’s prior representation of Mr. McKinley in another criminal case.

Initially, the trial court was reluctant to disqualify the prosecutor. While the conflict of

interest issue was still pending before the court, the parties entered into a plea agreement in

which Mr. McKinley would plead guilty to second degree murder. However, the trial court

rejected the plea agreement and disqualified the prosecutor. A special prosecutor was

appointed.

The case was tried before a jury as a unitary trial. That is, the defendant

elected not to bifurcate the issue of guilt and mercy.2 During the trial, the State called

2

The State had filed a motion to bifurcate the trial, but Mr. McKinley opposed

(continued...)

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twenty-seven witnesses during its case-in-chief. Mr. McKinley called thirteen witnesses

during his case-in-chief. Mr. McKinley also testified and admitted to shooting Ms. Patton

five times. The State called six rebuttal witnesses. At the conclusion of all the evidence, the

jury returned a verdict convicting Mr. McKinley of first degree murder without a

recommendation of mercy. The trial court immediately sentenced Mr. McKinley to prison

for life without a possibility of parole. Mr. McKinley filed post-trial motions which were

denied. This appeal followed.

II.

STANDARD OF REVIEW

Mr. McKinley has asserted various assignments of error that are subject to

specific standards of review that we set forth in the discussion section. In addition to those

standards, we also note that:

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.

2

(...continued)

the motion. See Syl. pt. 4, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996) (“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.”).

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Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Mindful of the scope of

our review, we proceed to consider the errors assigned by Mr. McKinley.

III.

DISCUSSION

Mr. McKinley has assigned seven issues as error in this case. Our resolution

of those issues does not require the creation of any new point of law. As such, this case

would ordinarily be issued as a per curiam opinion. However, as discussed below, this Court

will no longer issue per curiam opinions. Consequently, before we reach the merits of this

appeal, we will take this opportunity to explain why per curiam opinions are not necessary

in West Virginia jurisprudence.

A. Per Curiam Opinions Are No Longer Necessary

A court of last resort speaks only through its written decisions, and it is critical

to the development of the common law in this State that those decisions adhere to a well-

understood pattern. As a result of the widespread changes to the appellate process in this

State that took place in 2010, the number of written decisions on the merits issued by the

Court has expanded significantly. The appeal by right process adopted by the Court has been

fully implemented, and the time has come to more closely examine the usefulness of the per

curiam opinion. For the reasons that follow, we conclude that the per curiam opinion is no

longer necessary.

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1. Scope and form of decisions. The scope and form of the decisions of this

Court are primarily governed by the West Virginia Constitution. Our decisions are required

to address “every point fairly arising upon the record” and are “binding authority upon any

court” if concurred in by a majority of the justices. W. Va. Const. art. VIII, § 4. With regard

to the Court’s decision to affirm, reverse, or modify the order of a lower tribunal, “the

reasons therefor shall be concisely stated in writing and preserved with the record.” Id. The

Constitution also contains a unique provision that is applicable to published opinions: “it

shall be the duty of the court to prepare a syllabus of the points adjudicated in each case in

which an opinion is written and in which a majority of the justices thereof concurred, which

shall be prefixed to the published report of the case.” Id. The consequence of this provision

is that the Court itself—not the reporter of decisions or the publisher—drafts the syllabus in

a published opinion. As a result, the syllabus in every published opinion is an integral part

of the decision itself. Each point in the syllabus is numbered, which facilitates ease of

reference in later opinions.

Syllabus points come in two forms. Original syllabus points announce an

important new point of law decided in the case. Quoted syllabus points repeat language used

in a prior original syllabus, along with a citation to the case where the point was originally

established. The syllabus is not intended to be an exhaustive recitation of every item decided

in the case, and must be read in light of the opinion as a whole. “[T]his Court only makes

the more important points of law a part of the syllabus for the general information of the legal

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profession and the public[.]” Koonce v. Doolittle, 48 W. Va. 592, 594, 37 S.E. 644, 645

(1900). In an address to the circuit judges of this State in 1940, the Dean of the College of

Law at West Virginia University explained the relationship between the opinion and the

syllabus as follows:

It seems clear, therefore, that the fact that the court lays down a

general principle whether in the opinion or in the syllabus does

not per se make it law; the law of a case is something more than

the mere ipse dixits of the court; it is something whose

authoritative force proceeds in part from elements more

interstitial and more elusive than the general propositions which

our constitution requires the court to prefix to its opinions.

“The Law” — In West Virginia, Thomas P. Hardman, 47 W. Va. L. Q. 23, 28 (1940).

2. History of per curiam opinions in West Virginia. With very rare

exceptions, the published opinions issued by the Court during the first 110 years of its

existence set forth the name of a single judge3 or justice who authored the majority opinion

of the Court. Such opinions are commonly referred to as “signed” or “authored” opinions.

As required by the Constitution, signed opinions issued in this era contained a syllabus of

points adjudicated prefixed to the published report of the case, and, in many instances, those

opinions contained one or many original syllabus points. However, in contrast to modern

practice, many signed opinions issued before the mid-1970s contained only quoted syllabus

points. See, e.g., State ex rel. Duke v. O’Brien, 145 W. Va. 600, 117 S.E.2d 353 (1960)

3

Prior to the Judicial Reorganization Amendment, the Justices of the Court

were referred to as “Judges” and the Chief Justice was referred to as “President.”

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(Majority opinion authored by President Browning, citing only quoted syllabus points);

Daugherty v. Day, 145 W. Va. 592, 116 S.E.2d 131 (1960) (Majority opinion authored by

Judge Given, citing only quoted syllabus points); Davis v. Haddox, 145 W. Va. 233, 114

S.E.2d 463 (1960) (Majority opinion authored by Judge Given, citing only quoted syllabus

points). Under this longstanding historic practice, every published opinion was a signed

opinion, but not every signed opinion contained a new point of law in the syllabus.

In the mid-1970s, the Court began the regular practice of issuing unsigned

opinions that did not contain the name of a justice who authored the opinion, instead

denoting that the opinion was authored “per curiam,” which is Latin for “by the court.”

Some of these early per curiam opinions contained all new syllabus points, Committee on

Legal Ethics of West Virginia State Bar v. Graziani, 157 W. Va. 167, 200 S.E.2d 353 (1973)

(Majority opinion authored per curiam, with four original syllabus points), while others did

not, Serbin v. Newman, 157 W. Va. 71, 198 S.E.2d 140 (1973) (Majority opinion authored

per curiam, with one quoted syllabus point). Although we have not conducted an exhaustive

review, the practice of using per curiam opinions to announce new syllabus points continued

at least until 1981. See Priester v. Hawkins, 168 W. Va. 569, 285 S.E.2d 396 (1981)

(Majority opinion authored per curiam, with one quoted syllabus point and one new syllabus

point). This practice was not routine, however. A review of the ninety per curiam opinions

published in 1981 reveals that most of the per curiam opinions contained only quoted

syllabus points. Eventually, the practice of the Court evolved so that per curiam opinions

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were used only in cases where new syllabus points were not announced.

At some point in time, this Court began distinguishing between

its signed opinions and per curiam decisions based upon the

existence of new points of law. Only those cases in which new

syllabus points are written are designated as signed opinions; all

others currently fall under the rubric of per curiam opinions.

Walker v. Doe, 210 W. Va. 490, 494, 558 S.E.2d 290, 293 (2001).

For a period of time in the 1990s, the binding authority of per curiam opinions

was called into question as a consequence of footnote four in Lieving v. Hadley, 188 W. Va.

197, 423 S.E.2d 600 (1992), which stated:

It is important to point out this Court’s traditional

approach to per curiam opinions. Per curiam opinions, such as

Rowan [v. McKnight, 403 S.E.2d 780, 184 W.Va. 763 (1991)],

are used to decide only the specific case before the Court;

everything in a per curiam opinion beyond the syllabus point is

merely obiter dicta. A per curiam opinion that appears to

deviate from generally accepted rules of law is not binding on

the circuit courts, and should be relied upon only with great

caution. Other courts, such as many of the United States Circuit

Courts of Appeals, have gone to non-published (not-to-be-cited)

opinions to deal with similar cases. We do not have such a

specific practice, but instead use published per curiam opinions.

However, if rules of law or accepted ways of doing things are to

be changed, then this Court will do so in a signed opinion, not

a per curiam opinion.

Id. at 201 n.4, 423 S.E.2d at 604 n.4. As a result of this announcement—paradoxically issued

by footnote rather than by syllabus point—some in the legal community took the view that

a per curiam opinion could not be cited as precedent. This view was probably bolstered by

the fact that, for a period of time after Lieving was issued, this Court’s own per curiam

9

opinions routinely contained a cross-reference to the cautionary footnote. See, e.g., Pritt v.

Suzuki Motor Co., Ltd., 204 W. Va. 388, 390 n.1, 513 S.E.2d 161, 163 n.1 (1998) (“We point

out that a per curiam opinion is not legal precedent.”). This routine admonition was

problematic for three reasons. First, it overstated the Lieving footnote. Second, it created

an unnecessary and disruptive point of dispute in the legal community about whether a per

curiam opinion could be cited in support of a legal argument. Third, it ignored the

constitutional provision which states that the decisions of this Court are “binding authority

upon any court” if concurred in by a majority of the justices. W. Va. Const. art VIII, § 4.

The era of the Lieving footnote was relatively short-lived. Nine years later, the

Court issued its decision in Walker v. Doe, which “aim[ed] to extinguish any lingering doubts

regarding the precedential value of [per curiam] opinions.” Id., 210 W. Va. at 493, 558

S.E.2d at 293. We held that “we strongly disagree” with the suggestion that anything beyond

the syllabus in a per curiam opinion was merely obiter dicta, because adhering to that view

“would be discarding many valuable cases in which the presence of unique facts has required

this Court to determine whether settled legal precepts applied to those distinct factual

scenarios.” Id., 201 W. Va. at 495, 558 S.E.2d at 295. Ultimately, Syllabus points 2, 3, and

4 of Walker summarized the precedential import of signed and per curiam opinions in a

manner that cleared away the confusion created by the Lieving footnote:

2. This Court will use signed opinions when new points

of law are announced and those points will be articulated

through syllabus points as required by our state constitution.

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3. Per curiam opinions have precedential value as an

application of settled principles of law to facts necessarily

differing from those at issue in signed opinions. The value of a

per curiam opinion arises in part from the guidance such

decisions can provide to the lower courts regarding the proper

application of the syllabus points of law relied upon to reach

decisions in those cases.

4. A per curiam opinion may be cited as support for a

legal argument.

Walker v. Doe, 210 W. Va. 490, 558 S.E.2d 290.

3. Memorandum Decisions. In 2010, this Court finalized extensive

amendments to the Rules of Appellate Procedure in order to provide that every properly

perfected appeal would result in a written decision on the merits. This historic switch from

appeals by permission to appeals by right greatly expanded the number of written decisions

issued by the Court. In addition to the traditional signed opinions and per curiam opinions,

the revised rules created a third method to dispose of cases on the merits: the memorandum

decision. As explained in the comments to the revisions, “[m]emorandum decisions are

abbreviated decisions on the merits that will not contain a syllabus and will not be published

in the West Virginia Reports.” W. Va. Revised R. App. P. 21 cmt. at 56 (Dec. 1, 2010).4

Both by operation of Rule 21 and by evidence of the thousands of decisions issued since

2010, there is no question that memorandum decisions are pronouncements on the merits that

4

The revised rules with comments are available online at

http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/pdfs/Revised-

Rules-of-Appellate-Procedure-FINAL.pdf.

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fully comply with the constitutional requirements to address every point fairly arising upon

the record and to state the reasons for a decision concisely in writing. It is equally clear that

memorandum decisions occupy a lower station on the scale of precedent when compared to

published opinions.

Memorandum decisions are used to affirm the decision of a lower court in three

circumstances:

when: (1) this Court finds no substantial question of law and the

Court does not disagree with the decision of the lower tribunal

as to the question of law; (2) upon consideration of the

applicable standard of review and the record presented, the

Court finds no prejudicial error; or (3) other just cause exists for

summary affirmance.

W. Va. R. App. P. 21(c). In parity with the applicable constitutional language, the rule

requires “a concise statement of the reason for affirmance.” Id. Additionally, a

memorandum decision must set forth “a concise statement of the reason for issuing a

memorandum decision instead of an opinion.” Id. Rule 21(d) applies similar requirements

to memorandum decisions that reverse a lower tribunal’s decision, and adds an additional

restriction: “[a] memorandum decision reversing the decision of a circuit court should be

issued in limited circumstances.” The rule makes it plain that memorandum decisions can

be cited to a court, although the citation “must clearly denote that a memorandum decision

is being cited.” W. Va. R. App. P. 21(e). That same rule also makes clear that memorandum

decisions are not published in the official reporter, but are made available on the Court’s

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website.

On balance, Rule 21 and the evidence of the Court’s practice since the rule was

promulgated show that memorandum decisions are distinguishable from opinions in that they

address cases in which there is no substantial question of law or no prejudicial error, and are

almost always used to affirm a lower court’s decision. These factors—when combined with

the fact that the decisions are summary in nature, do not contain a syllabus, and are not

published in the official reporter—make clear that a memorandum decision has less

persuasive force as a legal precedent than a published opinion.5

Obviously, at the time Walker v. Doe was decided, this Court was still

operating under the appeal by permission system, and memorandum decisions did not exist.

That reality has changed, and memorandum decisions have substantially enlarged the

availability of decisions that apply well-settled principles of law to various factual scenarios.

In light of this new reality, and in light of the fact that the no-new-syllabus point per curiam

is a relatively recent invention, the question becomes whether the published per curiam

opinion is still necessary.

5

Upon review of this question, we pause to correct a misleading statement in

the comment to Rule 21 that refers to the parties’ ability “to request a non-precedential

disposition early in the development of the case.” W. Va. Revised R. App. P. 21 cmt. at 56

(Dec. 1, 2010). Memorandum decisions are indeed legal precedent, though of lesser weight

than a published opinion. The statement in the comment would have been better phrased as

“a non-published disposition early in the development of the case.”

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4. Criticism of per curiam opinions. At least one legal commentator has

criticized the use of per curiam opinions as “a misused practice that is at odds with the

individualized nature of the American common law system, frustrating efforts to hold

individual judges accountable and inhibiting development of the law.” Ira P. Robbins,

Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions, 86

Tul. L. Rev. 1197, 1199 (2012). Because published opinions are the main work of an

appellate jurist, attributed opinions and publicly recorded votes are the main way to hold

appellate justices accountable. Id. at 1210. Unsigned opinions frustrate that accountability

because opinions “issued per curiam may harm the courts’ credibility if the public believes

it is a tactic used for strategic or political reasons or to maintain secrecy.” Id. at 1213. In the

absence of an individually responsible author, the reasoning of a per curiam opinion “may

be disjointed and incoherent.” Id. at 1214. This tendency may lead to opinions of lower

quality, and may “diminish consequences for judges who fail to do enough of their own

work.” Id. at 1216. The commentator asserts that these concerns apply with particular force

in a jurisdiction such as West Virginia, where judges are elected. Id. at 1221-23.

Similar criticisms have been leveled by members of this Court from time to

time. For example, shortly after the decision in Walker v. Doe, Justice Albright filed a

separate opinion that included statements from an earlier dissenting opinion by Justice

Workman about the misuse of per curiam opinions:

I concur with the result articulated by the majority

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opinion. I write separately to address a disturbing trend in the

manner in which this Court periodically chooses to present new

points of law. While the majority opinion correctly decides the

substantive legal matter, its pronouncements are framed within

the context of a per curiam opinion and no new syllabus points

were presented to formalize the ruling. As Justice Workman

astutely observed in her dissent to State v. Lopez, 197 W. Va.

556, 476 S.E.2d 227 (1996),

This case portrays the increasing use of per

curiam opinions to alter the law as it currently

exists in West Virginia while declining to

enunciate the change in a new syllabus point. It

illustrates an evolving problem that this Court

should correct. Although this is not the first

example of this phenomenon, it is the one least

justified. In the past some good reason has

existed. It has occurred where there has been a

“compromise” decision. It has occurred when the

membership of the Court has been in a state of

flux, with all the accompanying philosophical

shifting, and a “temporary” court had the good

judgment to recognize that it was not the time to

make major policy changes in the law. None of

those phenomenon [sic] are present here.

Id. at 569, 476 S.E.2d at 240 (Workman, [J.,] dissenting).

Butcher v. Miller, 212 W. Va. 13, 20, 569 S.E.2d 89, 96 (2002) (Albright, J., concurring).

In addition to these assertions, the practice of using a per curiam opinion to

announce a decision that also contains concurring or dissenting opinions further undermines

judicial accountability. If indeed an opinion is authored “by the Court,” there should very

rarely, if ever, be a need for separate opinions.

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Although we acknowledge these criticisms, our decision today is not grounded

entirely upon them. We wish to underscore that our decision today is based more forcefully

on the fact that per curiam opinions are a relatively recent phenomenon whose existence has

been rendered unnecessary by the substantial expansion of merits decisions under the new

appellate process.

5. A system of precedent. In recognition of the foregoing authorities, we adopt

a three-tier system of precedent intended to clarify the weight of opinions issued by this

Court. Henceforth all published opinions of this Court will bear the name of an individual

justice who authored the opinion of the Court. To provide guidance as to the weight to be

afforded the various types of opinions, we hold that signed opinions containing original

syllabus points have the highest precedential value because the Court uses original syllabus

points to announce new points of law or to change established patterns of practice by the

Court. Additionally, we hold that signed opinions that do not contain original syllabus points

also carry significant, instructive, precedential weight because such opinions apply settled

principles of law in different factual and procedural scenarios than those addressed in

original syllabus point cases. We further hold that signed opinions, both those including new

syllabus points and those not containing new syllabus points, are published opinions of the

Court. As such, they should be the primary sources relied upon in the development of the

common law. Moreover, we hold that memorandum decisions are decisions by the Court that

are not signed, do not contain a Syllabus by the Court, and are not published. Finally, we

16

hold that, while memorandum decisions may be cited as legal authority, and are legal

precedent, their value as precedent is necessarily more limited; where a conflict exists

between a published opinion and a memorandum decision, the published opinion controls.

Conflicts between memorandum decisions and published opinions should be used by the

legal community as a basis to urge this Court to consider, address, and resolve such conflict.

Lastly, we hold that, to the extent our prior holdings in Walker v. Doe, 210 W. Va. 490, 558

S.E.2d 290 (2001), are inconsistent with this Court’s recognition that signed opinions will

be used both in cases that articulate new points of law and in cases in which a new point of

law is not required, such prior holdings are expressly overruled.

B. Admission of Prior Bad Act Evidence

The first issue raised by Mr. McKinley involves the trial court’s pretrial ruling

that permitted the State to introduce evidence of two incidents of prior domestic violence

between him and Ms. Patton. Mr. McKinley’s brief has also set out a general argument

regarding other bad acts evidence that was introduced during the trial.

The procedure for admitting evidence of other bad acts by a defendant is found

under Rule 404(b) of the West Virginia Rules of Evidence.6 The standard of review of a

6

We note that Rule 404 was amended in 2014, with an effective date of

September 2, 2014. All references to provisions of Rule 404 in this opinion will be based

upon the rule as it existed during the prosecution in this case. No material change was made

(continued...)

17

circuit court’s decision regarding the admissibility of Rule 404(b) evidence has been stated

as follows:

The standard of review for a trial court’s admission of

evidence pursuant to Rule 404(b) involves a three-step analysis.

First, we review for clear error the trial court’s factual

determination that there is sufficient evidence to show the other

acts occurred. Second, we review de novo whether the trial

court correctly found the evidence was admissible for a

legitimate purpose. Third, we review for an abuse of discretion

the trial court’s conclusion that the “other acts” evidence is more

probative than prejudicial under Rule 403.

State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996).

We held in Syllabus point 2 of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d

516 (1994), that when there is an offer of Rule 404(b) evidence, the trial court must hold an

in camera hearing to evaluate that evidence:

Where an offer of evidence is made under Rule 404(b) of

the West Virginia Rules of Evidence, the trial court, pursuant to

Rule 104(a) of the West Virginia Rules of Evidence, is to

determine its admissibility. Before admitting the evidence, the

trial court should conduct an in camera hearing as stated in State

v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing

the evidence and arguments of counsel, the trial court must be

satisfied by a preponderance of the evidence that the acts or

conduct occurred and that the defendant committed the acts. If

the trial court does not find by a preponderance of the evidence

that the acts or conduct was committed or that the defendant was

the actor, the evidence should be excluded under Rule 404(b).

6

(...continued)

in the 2014 amendment with respect to the specific provisions of Rule 404 that are

considered in this opinion.

18

If a sufficient showing has been made, the trial court must then

determine the relevancy of the evidence under Rules 401 and

402 of the West Virginia Rules of Evidence and conduct the

balancing required under Rule 403 of the West Virginia Rules

of Evidence. If the trial court is then satisfied that the Rule

404(b) evidence is admissible, it should instruct the jury on the

limited purpose for which such evidence has been admitted. A

limiting instruction should be given at the time the evidence is

offered, and we recommend that it be repeated in the trial

court’s general charge to the jury at the conclusion of the

evidence.

We have also made clear that “[i]f a trial court has admitted ‘bad character’ evidence in error,

a petitioner is only entitled to reversal if the error affected his substantial rights.” State v.

Rollins, ___ W. Va. ___, ___, 760 S.E.2d 529, 546 (2014).

With the above standards in mind, we first address the trial court’s decision to

allow the State to present evidence of two specific domestic violence incidents. We will

thereafter address Mr. McKinley’s general argument involving the introduction of other bad

acts evidence at the trial.

1. Admission of two specific incidents of domestic violence. Prior to trial,

the State filed a motion to allow the introduction of evidence involving two domestic

violence incidents between Mr. McKinley and Ms. Patton. One incident occurred on March

11, 2011, approximately two months before Ms. Patton was killed. The State presented

testimony from a police officer who investigated the incident. It occurred at a local motel.

According to the officer, Mr. McKinley stated that he stopped Ms. Patton from committing

19

suicide. However, Ms. Patton stated that she did not try to commit suicide and that Mr.

McKinley choked her. The officer observed red marks on her neck. The State also presented

evidence from a video of a domestic violence proceeding in which Ms. Patton stated that Mr.

McKinley became violent with her and choked her at the motel.

The second domestic violence incident occurred on April 12, 2011, about a

month before Ms. Patton was killed. The State called a police officer who had responded to

the incident. The officer testified that Ms. Patton’s clothes were dirty and that she had

scratches on her body. According to the officer, Ms. Patton stated that Mr. McKinley pushed

her down a hill. Mr. McKinley admitted to the officer that he pushed Ms. Patton; but, he

stated that he acted in self defense.

The State made two arguments to the trial court as to why both domestic

violence incidents were admissible. First, the State contended that this evidence was intrinsic

to the murder, and, therefore, it was outside the scope of Rule 404(b). Second, the State

argued that even if the two incidents were deemed extrinsic to the murder, the evidence was

admissible under Rule 404(b) to show motive and intent. We will separately examine the

issues of intrinsic and extrinsic evidence.

20

(i) Intrinsic evidence. The trial court ruled that both domestic violence

incidents were intrinsic to the murder. Therefore, Rule 404(b) was not applicable. Our cases

have “consistently held that evidence which is ‘intrinsic’ to the indicted charge is not

governed by Rule 404(b).” State v. Harris, 230 W. Va. 717, 722, 742 S.E.2d 133, 138

(2013). In LaRock, we noted that other bad acts “evidence is intrinsic when the evidence of

the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts

are part of a ‘single criminal episode’ or the other acts were necessary preliminaries to the

crime charged.” LaRock, 196 W. Va. at 312 n.29, 470 S.E.2d at 631 n.29 (internal quotations

and citation omitted). In Syllabus point 3 of State v. Ferguson, 165 W. Va. 529, 270 S.E.2d

166 (1980), overruled on other grounds by State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412

(1983), we held:

Events, declarations and circumstances which are near in

time, causally connected with, and illustrative of transactions

being investigated are generally considered res gestae and

admissible at trial.

The State relies upon State v. Dennis, 216 W. Va. 331, 607 S.E.2d 437 (2004),

as authority for admitting the two domestic violence incidents as intrinsic evidence. The

defendant in Dennis was convicted of kidnaping, second degree robbery, two counts of

second degree sexual assault, violating a domestic violence protective order, and domestic

battery. One of the issues raised on appeal involved the admission of domestic violence the

defendant had inflicted upon the victim three months before the current charges. This Court

21

found that the evidence was admissible as intrinsic evidence. The opinion addressed the

issue as follows:

These incidents were used to demonstrate Appellant’s pattern of

abusive and controlling behavior as a means of defining the

turbulent nature of the relationship the victim had with

Appellant after she attempted to break off the relationship with

Appellant. . . . After carefully reviewing the record, we cannot

say that the trial court abused its discretion in finding that the

prior acts constituted intrinsic evidence, not subject to Rule

404(b) analysis. While the acts were not part of a “single

criminal episode” or “necessary preliminaries” to the charged

offenses, it is difficult to conclude that the evidence was not

necessary “to complete the story of the crimes on trial” or

otherwise provide context to the crimes charged. This is

especially true in light of the domestic violence overlay to the

pattern of behavior. Even if we were to conclude that the trial

court erred in finding the prior act evidence to be res gestae, we

believe the evidence would still be admissible under Rule

404(b). The incidents from Appellant’s recent past would have

satisfied a number of acceptable purposes set forth in Rule

404(b), including proving motive, opportunity and knowledge.

In either case, it seems doubtful that this case could have been

appropriately presented without such background information.

Finding that the lower court did not act in an arbitrary or

irrational manner or otherwise abuse its discretion, we find no

error.

Dennis, 216 W. Va. at 352, 607 S.E.2d at 458.

Mr. McKinley contends that Dennis is distinguishable because one of the

crimes against the defendant in that case was domestic battery.7 We do not find that fact to

7

Mr. McKinley cites, without discussion, to the decision in State v. Bowling,

232 W. Va. 529, 753 S.E.2d 27 (2013), as authority for holding that the domestic violence

(continued...)

22

be sufficient to remove the application of Dennis to this case.

Although the two domestic violence incidents in this case were not a “single

criminal episode,” we believe this evidence was necessary to place Ms. Patton’s death in

context with her relationship with Mr. McKinley, and to complete the story of the violence

Mr. McKinley inflicted on her.8 The basis for our finding this evidence to be intrinsic was

also applied in LaRock, where we addressed the issue of evidence of prior beatings inflicted

7

(...continued)

evidence was too remote in time to be intrinsic. Bowling does not stand for the proposition

that other bad acts conduct which occurred two months before the charged offense is too

remote to be intrinsic evidence. In Bowling, we concluded that the abuse of the murder

victim by the defendant “which occurred more than six months before the 2010 shooting, is

[not] linked together in point of time and circumstances with the crime charged herein.”

Bowling, 232 W. Va. at 549, 753 S.E.2d at 47 (emphasis added). But see State v.

Winebarger, 217 W. Va. 117, 617 S.E.2d 467 (2005) (holding that other bad acts evidence

that occurred five to fifteen years prior to the crime charged was admissible to demonstrate

defendant’s intent and the absence of accident or mistake).

8

Other bad acts evidence is intrinsic if it:

(1) arises out of the same criminal episode or series of

transactions as the charged offense; (2) is necessary for the jury

to understand the context of the crime or completes the story of

the charged offense; (3) identifies who committed the crime or

why the charged offense was committed; or (4) explains the

nature of the relationship between the individuals who

committed the crime or explains why an individual may have

knowledge of the charged offense.

Thomas M. DiBiagio, “Intrinsic and Extrinsic Evidence in Federal Criminal Trials: Is the

Admission of Collateral Other-Crimes Evidence Disconnected to the Fundamental Right to

A Fair Trial,” 47 Syracuse L. Rev. 1229, 1241-42 (1997) (emphasis added).

23

on a victim before the victim was killed:

Evidence of the prior attacks and beatings not only

demonstrated the motive and setup of the crime but also

was necessary to place the child’s death in context and to

complete the story of the charged crime. We hold that

historical evidence of uncharged prior acts which is

inextricably intertwined with the charged crime is

admissible[.]

LaRock, 196 W. Va. at 313, 470 S.E.2d at 632. See State v. Hutchinson, 215 W. Va. 313,

321, 599 S.E.2d 736, 744 (2004) (“We find that the evidence which the appellant challenges

on this appeal was merely presented as context evidence illustrating why the appellant

committed this murder. It portrayed to the jurors the complete story of the inextricably

linked events of the day and amounted to intrinsic evidence.”).

(ii) Extrinsic evidence. Even if we had found that the two domestic violence

incidents were not intrinsic evidence, we would find the evidence admissible as extrinsic

evidence under Rule 404(b). Extrinsic bad act evidence is governed by Rule 404(b) because

it “is extraneous and is not intimately connected or blended with the factual circumstances

of the charged offense.” Harris, 230 W. Va. at 722, 742 S.E.2d at 138 (internal quotations

and citation omitted). The State argued below, as an alternative ground, that the domestic

violence evidence was admissible under Rule 404(b) to show motive and intent. We agree.

To begin, we find that, based upon the testimony of the witnesses at the Rule

404(b) hearing, the State established by a preponderance of the evidence that the two

24

incidents of domestic violence occurred and that Mr. McKinley committed the acts. We also

find that this evidence was relevant to show motive and intent. It has been recognized that,

“[w]hile proof of motive is not a required element in criminal cases, it is always relevant and

admissible to prove that the accused committed the offense.” Franklin D. Cleckley, Louis

J. Palmer, Jr., and Robin Jean Davis, Vol. 1, Handbook on Evidence for West Virginia

Lawyers, § 404.03[2][e][iv] (2012). Moreover, in order to show intent, “[i]t is a universally

established rule that in prosecutions for murder it is competent for the state to introduce in

evidence threats, or statements in the nature of threats, by the defendant against the life of

the deceased.” State v. Berry, 176 W. Va. 291, 293, 342 S.E.2d 259, 261 (1986) (internal

quotations and citations omitted). Finally, we believe that the probative value of evidence

of the two domestic violence incidents outweighed the danger of unfair prejudice. See

People v. Escobar, 98 Cal. Rptr. 2d 696, 82 Cal. App. 4th 1085 (2000) (admitting evidence

of prior domestic violence incident in first degree murder prosecution).

2. The admission of other bad acts evidence. The next issue raised by Mr.

McKinley is that, in addition to the two domestic violence issues the trial court permitted the

State to introduce, the State also introduced other domestic violence incidents. The State

argues that it was permitted to introduce evidence of additional domestic violence incidents

because Mr. McKinley called five witnesses during his case-in-chief who provided evidence

of alleged domestic violence by Ms. Patton against him. In other words, the State argues that

any error caused by its introduction of additional incidents of domestic violence was invited

25

error.

Although the State has briefed the additional incidents of domestic violence

under the invited error doctrine,9 we believe the curative admissibility rule is the more

appropriate doctrine for evaluating this issue.10 See Longwell v. Hodge, 171 W. Va. 45, 47,

297 S.E.2d 820, 822 (1982) (“We agree with the Circuit Court, and affirm its decision,

although for different reasons than those expressed by the lower court.”).

“[T]he curative admissibility rule comes into play when irrelevant evidence is

9

We set out the parameters of the invited error doctrine in State v. Crabtree,

198 W. Va. 620, 482 S.E.2d 605 (1996), as follows:

“Invited error” is a cardinal rule of appellate review

applied to a wide range of conduct. It is a branch of the doctrine

of waiver which prevents a party from inducing an inappropriate

or erroneous response and then later seeking to profit from that

error. The idea of invited error is not to make the evidence

admissible but to protect principles underlying notions of

judicial economy and integrity by allocating appropriate

responsibility for the inducement of error. Having induced an

error, a party in a normal case may not at a later stage of the trial

use the error to set aside its immediate and adverse

consequences.

Crabtree, 198 W. Va. at 627, 482 S.E.2d at 612.

10

“The doctrine of curative admissibility . . . is sometimes considered to be a

form of ‘invited error.’” Bruno’s Supermarkets, Inc. v. Massey, 914 So. 2d 862, 868

(Ala. Civ. App. 2005). However, the curative admissibility rule places “more emphasis on

the inadmissibility of the complaining party’s evidence.” Taylor v. State, 858 P.2d 843, 848

(Nev. 1993).

26

introduced without objection and the opponent seeks to introduce rebuttal evidence that is

also irrelevant.” Cleckley et al., Handbook on Evidence, § 106.02[2]. This Court set out the

guidelines for the use of the curative admissibility rule in State v. Guthrie, 194 W. Va. 657,

461 S.E.2d 163 (1995):

The curative admissibility rule 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. Under this rule, in

order to be entitled as a matter of right to present rebutting

evidence on an evidentiary fact: (a) The original evidence must

be inadmissible and prejudicial, (b) the rebuttal evidence must

be similarly inadmissible, and (c) the rebuttal evidence must be

limited to the same evidentiary fact as the original inadmissible

evidence.

Syl. pt. 10, Guthrie, id.11

11

Dicta in a footnote in State v. Potter, 197 W. Va. 734, 748 n.24, 478 S.E.2d

742, 756 n.24 (1996), incorrectly suggested “it is questionable whether curative admissibility

is available to the State.” However, the curative admissibility rule may be invoked by the

State. See, e.g., Howard v. United States, 978 A.2d 1202, 1210 (D.C. 2009) (“[T]he doctrine

of curative admissibility . . . provides that in certain circumstances the prosecution may

inquire into evidence otherwise inadmissible, but only after the defense has ‘opened the door’

with regard to this evidence.” (internal quotations and citation omitted)); State v. Weaver,

912 S.W.2d 499, 516 (Mo. 1995) (“Under the doctrine of curative admissibility, the

prosecutor was entitled to delve into the defendant’s arrests, introducing otherwise

inadmissible evidence to counteract the negative inferences.”); State v. Tollardo, 275 P.3d

110, 116-17 (N.M. 2012) (“When a defendant makes a claim that ‘opens the door’ to

inadmissible evidence, the doctrine of curative admissibility in some circumstances may

permit the State to rebut that claim with otherwise inadmissible evidence.”); State v. Land,

34 S.W.3d 516, 531 (Tenn. Crim. App. 2000) (“[W]here a defendant has injected an issue

into the case, the State may be allowed to admit otherwise inadmissable evidence in order

to explain or counteract a negative inference raised by the issue defendant injects.” (internal

quotations and citation omitted)).

27

As previously indicated, the trial court allowed the State to introduce evidence

of only two domestic violence incidents. As a result of the trial court’s ruling admitting such

evidence, Mr. McKinley informed the court that he was going to introduce other evidence

of domestic violence that Ms. Patton had inflicted upon him. Mr. McKinley took the position

that insofar as he believed the trial court committed error in allowing the State to introduce

evidence of two domestic violence incidents, the door was open for him to introduce

additional evidence of domestic violence.

We disagree with Mr. McKinley’s position. As we have already determined,

the trial court properly allowed the State to introduce two incidents of domestic violence.

This evidence was admissible as being intrinsic, and was also admissible to show Mr.

McKinley’s motive and intent. However, even if the admission of this evidence was

erroneous, this did not permit Mr. McKinley to parade five witnesses before the jury to talk

about alleged domestic violence perpetrated against him by Ms. Patton.

In fact, the evidence introduced by Mr. McKinley suggesting Ms. Patton had

a violent character was not permitted because this evidence was irrelevant. The test for the

admissibility of character evidence of the victim under Rule 404(a)(2) of the West Virginia

Rules of Evidence is as follows:

[U]nder Rule 404(a)(2) it is not required that the defendant rely

upon self-defense in order to offer character evidence of the

victim. The test for admissibility is solely one of relevance.

28

That is, is the character evidence probative of an element of the

charge or defense? If it is, despite the absence of self-defense

the character evidence is admissible.

Cleckley et al., Handbook on Evidence, § 404.02[5][b][I].

In this case, the issue of whether Ms. Patton was a violent or aggressive person

simply had no relevancy to an element of the charge or defense. The evidence in this case,

as testified to by Mr. McKinley, revealed that he woke up and read text messages on Ms.

Patton’s cell phone. The contents of the text messages apparently angered Mr. McKinley,

and he shot Ms. Patton five times. Nothing in Mr. McKinley’s own description of the murder

revealed any aggressive behavior by Ms. Patton toward him. Under these circumstances, Mr.

McKinley had no basis to introduce evidence of alleged domestic violence by Ms. Patton

against him. See Syl. pt. 1, State v. Collins, 154 W. Va. 771, 180 S.E.2d 54 (1971) (“When

in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and

the evidence does not show or tend to show that the defendant was acting in self-defense

when he shot and killed the deceased, the defendant will not be permitted to prove that the

deceased was of dangerous, violent and quarrelsome character or reputation.”).

The decision in State v. Gray, 217 W. Va. 591, 619 S.E.2d 104 (2005),

illustrates the relevancy requirement of Rule 404(a)(2). In Gray, the defendant was

convicted of first degree murder. On appeal, one of the issues he raised was that the trial

court committed error in not allowing him to introduce evidence of the victim’s bad

29

personality. We rejected the argument as follows:

Considering the facts of this case, . . . the evidence

concerning the victim’s general reputation was not relevant as

admissible evidence. The appellant did not assert self-defense

or allude to any possibility that the victim was aggressive in any

manner. Instead, he claimed that the shooting was accidental.

He even said he and the victim had a good relationship and that

just prior to the shooting, the victim was sitting on his lap and

the two of them were kissing. Likewise, the appellant has not

cited any legal authority for the admissibility of evidence

concerning the “bad personality” of the victim in a murder case

when his defense was that this was an accidental shooting.

Gray, 217 W. Va. at 600, 619 S.E.2d at 133.

Insofar as Mr. McKinley improperly presented evidence of domestic violence

by Ms. Patton against him, the State could rebut such evidence by introducing evidence of

other domestic violence perpetrated by Mr. McKinley against Ms. Patton.12 Indeed, it has

been observed that, under

Rule 404(a)(2), the prosecution is permitted to rebut evidence

offered by the accused. . . .

. . . This rebuttal evidence is not limited in its use to lessening

the impact of the original character evidence but may be offered

to prove the opposite character and that the accused acted in

12

The State also pointed out that, in addition to testifying, Mr. McKinley also

called witnesses to testify about his good character in general and his reputation for

truthfulness. Once a defendant puts on evidence of his character, “it may be ‘tested’ on

cross-examination by the prosecution and rebutted during the prosecution’s case in rebuttal.”

Cleckley et al., Handbook on Evidence, § 404.02[3][d]. Consequently, the State was allowed

to present additional bad acts evidence, through cross-examination and rebuttal, that

contradicted evidence of Mr. McKinley’s good character and reputation for truthfulness.

30

conformity therewith on this occasion.

Cleckley et al., Handbook on Evidence, § 404.02[5][b][iv].13

C. Admission of Improper Testimony from a Social Worker

The second assignment of error by Mr. McKinley involves testimony by a

licensed social worker named Sandra Dorsey. The record indicates that, beginning in

February 2011, Ms. Dorsey provided domestic violence services to Ms. Patton. Ms. Dorsey

was called as a witness during the State’s case-in-chief and rebuttal. Mr. McKinley’s

assignment of error involving Ms. Dorsey’s testimony is written in a very rambling and

incoherent manner. In an attempt to try to discern the precise issue Mr. McKinley is

attempting to make, we will examine this assignment of error in two parts: (1) improper bad

acts and state of mind evidence and (2) opinion evidence.

13

Mr. McKinley has also made an undeveloped argument under this assignment

of error, alleging that “evidence from various witnesses concerning the victim’s state of mind

that the defendant was going to kill her, should never been allowed.” Because this issue was

not adequately briefed, we deem the matter waived. See State v. LaRock, 196 W. Va. 294,

302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in determining

issues presented for review, issues which are . . . mentioned only in passing but are not

supported with pertinent authority . . . are not considered[.]”).

31

1. Improper bad acts and state of mind evidence. Mr. McKinley has cited

to the following areas of testimony by Ms. Dorsey as being improper: (1) Ms. Patton stated

that Mr. McKinley put a gun to her head and threatened to kill her, (2) Ms. Patton stated that

Mr. McKinley stabbed her, and (3) Ms. Patton stated she was afraid Mr. McKinley was going

to kill her. The sum total of Mr. McKinley’s argument regarding this evidence is as follows:

“[T]his evidence should have been excluded as improper other bad act evidence or irrelevant

state of mind evidence concerning the decedent’s state of mind.” Nothing else was argued

or set out regarding this issue. “To the extent Mr. [McKinley] intended this fleeting

comment to be an assignment of error, it is inadequate for review.” State v. Robert Scott R.,

Jr., 233 W. Va. 12, __ n.40, 754 S.E.2d 588, 602 n.40 (2014). See State v. Lilly, 194 W. Va.

595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (“[A]ppellate courts frequently refuse to

address issues that appellants, or in this case the appellee, fail to develop in their brief.”). We

have long held that “[a]ssignments of error that are not argued in the briefs on appeal may

be deemed by this Court to be waived.” Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284

S.E.2d 374 (1981). See State, Dep’t of Health & Human Res., Child Advocate Office v.

Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (“[A] skeletal

‘argument,’ really nothing more than an assertion, does not preserve a claim[.]” (internal

quotations and citations omitted)).

32

2. Lay opinion evidence. The next issue asserted under this assignment of

error involves lay opinion testimony. The lay opinion testimony involved the admission of

a letter that was written by Ms. Dorsey. Mr. McKinley argues that the letter contained

improper lay opinion testimony and should have been excluded.14

To begin, “[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). With respect

to the issue of lay opinion testimony, we have held:

In order for a lay witness to give opinion testimony

pursuant to Rule 701 of the West Virginia Rules of Evidence (1)

the witness must have personal knowledge or perception of the

facts from which the opinion is to be derived; (2) there must be

a rational connection between the opinion and the facts upon

which it is based; and (3) the opinion must be helpful in

understanding the testimony or determining a fact in issue.

Syl. pt. 2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999), modified, State v.

McCraine, 214 W. Va. 188, 588 S.E.2d 177 (2003).

The State concedes that the letter in question “does contain Ms. Dorsey’s

personal opinion[.]” However, the State takes the position that Mr. McKinley opened the

14

Mr. McKinley also contends that, while she was on the witness stand, Ms.

Dorsey improperly “testified about the decedent’s alleged state of mind in believing that the

defendant was going to kill her.” This issue was not developed beyond the statement itself.

It is therefore waived.

33

door for the letter’s introduction. Therefore, the State argues that it was admissible under

Rule 106 of the West Virginia Rules of Evidence and the curative admissibility rule.15

We have set out the standard for the curative admissibility rule in the previous

section and will therefore not repeat that standard here. See Guthrie, 194 W. Va. at 682, 461

S.E.2d at 188 (“[T]his 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.”).

Rule 106 provides “when a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require the introduction at that time of any other

part or any other writing or recorded statement which ought in fairness to be considered

contemporaneously with it.” We have noted that “Rule 106 is applicable where a party’s

utilization of a writing is tantamount to the introduction of the [document] into evidence.”

Stewart v. Johnson, 209 W. Va. 476, 483-84, 549 S.E.2d 670, 677-78 (2001). Moreover, the

rule is “based upon the common law ‘rule of completeness,’ [and] is designed to reduce the

risk that a writing or recording will be taken out of context or that an initial misleading

impression will influence the minds of the jurors.” State v. Gray, 204 W. Va. 248, 250-51,

15

Rule 106 was amended in 2014, with an effective date of September 2, 2014.

All references to provisions of Rule 106 in this opinion will be based upon the rule as it

existed during the prosecution in this case. The amendment to Rule 106 was merely stylistic

and no substantive change was made.

34

511 S.E.2d 873, 875-76 (1998) (internal quotations and citation omitted).

In the instant case, the record indicates that Ms. Dorsey had written a letter to

the county prosecutor complaining about a previous arrest of Ms. Patton, which arose out of

a domestic dispute with Mr. McKinley.16 Apparently, the trial court had ruled that the letter

was not admissible.17 However, during cross-examination of Ms. Dorsey, counsel for Mr.

McKinley raised the issue of the letter as follows:

Q. Okay. And you, by a letter to Mr. Ash, the

prosecuting attorney of Mercer County, you basically

complained that the fact that you didn’t feel it was right that

both of them [Ms. Patton and Mr. McKinley] got arrested in that

incident over the car seat.

A. No, Sir, I did not.

Q. Okay. What was the memo that you sent him that he

replied to?

[Prosecutor]: Judge, I have a copy, if the Court wants me

to furnish it. She said she didn’t bring anything with her.

The Court: You have a copy of what?

[Prosecutor]: The letter. I’d be more than happy to give

her a copy of the letter and let her read it, if that’s what [defense

counsel] wants.

Counsel for Mr. McKinley did not question Ms. Dorsey any further regarding the letter she

16

It appears that Mr. McKinley was also arrested at the same time.

17

The record suggests that there was more than one letter that was not

admissible. However, only one of the letters was admitted.

35

wrote to the prosecutor.

During redirect examination of Ms. Dorsey, the State informed the court that

it was going to introduce the entire contents of the letter to the jury because defense counsel

opened the door for its admission. In ruling that the letter could be introduced into evidence,

the trial court gave the following reasons:

I think you opened up the door, Mr. Czarnik [defense

counsel]. I mean, you asked questions about these letters. He

didn’t ask anything about these letters, as I recall. They weren’t

coming in at all until you asked questions about them. You

opened up the door, and you take things out of it, then he’s got

to put them back in context.

Assuming, without deciding, that Rule 106 and the curative admissibility rule

would have allowed some contents of the letter to be read to the jury, we find that neither rule

permitted the letter to be introduced in its entirety. After reviewing the contents of the letter

written by Ms. Dorsey, we believe the contents of the letter went far beyond the scope of the

two questions Mr. McKinley’s counsel asked. The letter discussed issues that simply had

nothing to do with the issue of Ms. Dorsey complaining about Ms. Patton’s arrest. Both Rule

106 and the curative admissibility rule limit the scope of evidence introduced under them to

that which is necessary to place in context the improperly admitted evidence.18 See Gray,

18

It should be noted that the Comment to new Rule 106 makes specific

reference to limiting the use of evidence presented under it. The Comment states:

(continued...)

36

204 W. Va. at 254 n.8, 511 S.E.2d at 879 n.8 (“Rule 106 does not require introduction of the

entire document, but rather only that portion of the remainder of the document which

explains or clarifies the previously admitted portion.”). See also People v. Manning, 695

N.E.2d 423, 433-34 (Ill. 1998) (“[T]he doctrine of curative admissibility is not a panacea; it

does not permit a party to introduce inadmissible evidence merely because the opponent

brought out some evidence on the same subject. The rule is merely protective and goes only

as far as is necessary to shield a party from adverse inferences.”). Therefore, we find that

the trial court abused its discretion by allowing the State to read the entire letter to the jury.

Even though we find that the lower court abused its discretion in the admission

of the letter in its entirety, prejudice must be demonstrated to reverse the conviction based

upon the erroneous admission of the evidence. In Syllabus point 7 of Torrence v. Kusminsky,

185 W. Va. 734, 408 S.E.2d 684 (1991), we explained that “[a] judgment will not be reversed

because of the admission of improper or irrelevant evidence when it is clear that the verdict

of the jury could not have been affected thereby.” Justice Cleckley noted in Guthrie that,

18

(...continued)

The trial court should limit the introduction, by an adverse party,

of any other part of a writing or recorded statement to

information that is relevant or assists the jury in placing the

writing or recorded statement in context. The adverse party does

not have the absolute right to place the entire writing or

recorded statement in evidence.

W. Va. Revised R. Evid. 106 cmt. (Sept. 2, 2014) (emphasis added).

37

when dealing with the wrongful admission of evidence, we have

stated that the appropriate test for harmlessness articulated by

this Court is whether we can say with fair assurance, after

stripping the erroneous evidence from the whole, that the

remaining evidence was independently sufficient to support the

verdict and the jury was not substantially swayed by the error.

Guthrie, 194 W. Va. at 684, 461 S.E.2d at 190. Moreover, in State v. Blake, 197 W. Va. 700,

705, 478 S.E.2d 550, 555 (1996), this Court explained that,

[e]ven when a trial court has abused its discretion by admitting

or excluding evidence, the conviction must be affirmed unless

a defendant can meet his or her burden of demonstrating that

substantial rights were affected by the error. In other words, a

conviction should not be reversed if we conclude the error was

harmless or “unimportant in relation to everything else the jury

considered on the issue in question.” Instead, this Court will

only overturn a conviction on evidentiary grounds if the error

had a substantial influence over the jury.

(Citations omitted). With respect to harmless error, this Court has articulated the following

test:

Where improper evidence of a nonconstitutional nature

is introduced by the State in a criminal trial, the test to determine

if the error is harmless is: (1) the inadmissible evidence must be

removed from the State’s case and a determination made as to

whether the remaining evidence is sufficient to convince

impartial minds of the defendant’s guilt beyond a reasonable

doubt; (2) if the remaining evidence is found to be insufficient,

the error is not harmless; (3) if the remaining evidence is

sufficient to support the conviction, an analysis must then be

made to determine whether the error had any prejudicial effect

on the jury.

Syl. pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979).

38

We have no hesitancy in finding that the admission of the letter was harmless

beyond a reasonable doubt. The issue of Mr. McKinley’s guilt in killing Ms. Patton was

never contested. Mr. McKinley took the witness stand and admitted that he shot Ms. Patton

five times. In addition, there was sufficient circumstantial evidence for the jury to find that

the State proved all of the elements of first degree murder. Finally, we do not find that the

letter was unduly prejudicial because much of its focus on the conduct of Mr. McKinley was

properly admitted into evidence through other witnesses.

D. Exclusion of Testimony by a Psychiatrist

The next issue raised by Mr. McKinley involves the trial court’s determination

that he could not call his psychiatric expert to offer an opinion that, at the time of the murder,

he suffered from an “extreme emotional disturbance.” Mr. McKinley’s brief points out that

he “was attempting to offer a diminished capacity defense based on the extreme emotional

disturbance suffered by [him] at the time of the shooting.” The State contends that the

psychiatrist’s diagnosis of extreme emotional disturbance was insufficient to meet the

standard required to support a diminished capacity defense.

When considering the propriety of a circuit court’s decision to exclude the

testimony of an expert witness, we examine the decision for an abuse of discretion. As we

stated in Syllabus point 6 of Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d

700 (1991):

39

The admissibility of testimony by an expert witness is a

matter within the sound discretion of the trial court, and the trial

court’s decision will not be reversed unless it is clearly wrong.

The standard for establishing the diminished capacity defense was set out in

Syllabus point 3 of State v. Joseph, 214 W. Va. 525, 590 S.E.2d 718 (2003), as follows:

The diminished capacity defense is available in West

Virginia to permit a defendant to introduce expert testimony

regarding a mental disease or defect that rendered the defendant

incapable, at the time the crime was committed, of forming a

mental state that is an element of the crime charged. This

defense is asserted ordinarily when the offense charged is a

crime for which there is a lesser included offense. This is so

because the successful use of this defense renders the defendant

not guilty of the particular crime charged, but does not preclude

a conviction for a lesser included offense.

See State v. Ferguson, 222 W. Va. 73, 662 S.E.2d 515 (2008).

In the instant case, the trial court determined that, under the decision in Joseph,

the diminished capacity defense could only be established by evidence of a mental defect or

disease. The trial court excluded testimony by Mr. McKinley’s expert because the expert

“opined that the Defendant did not suffer from either a mental defect or disease at the time

of the offense.” The record supports this finding by the circuit court.

Mr. McKinley’s expert, Dr. Bobby Miller, testified at a pretrial hearing that,

at the time of shooting, Mr. McKinley did not have a psychiatric diagnosis, i.e., mental defect

40

or disease. Dr. Miller stated:

I agree with the prosecutor that at the time of the offense

he had no psychiatric diagnosis, and I would go so far to say that

when I saw him, his major depression was not an impediment

either to criminal responsibility or to competence to stand trial.

Dr. Miller went on to provide a description of extreme emotional disturbance as follows:

Extreme emotional disturbance is described as instances

for which there is a reasonable explanation or excuse, the

reasonableness of which is to be determined from the viewpoint

of a person in a defendant’s situation under the circumstances

that the defendant believed that to be.

....

It is not a defense, per se, as much as it is an explanation

to the finder of fact to address why the incident happened, and

to help the finder of fact to assess culpability

Dr. Miller also testified that Mr. McKinley had the requisite intent and malice to shoot Ms

Patton, but because of extreme emotional disturbance he may not have been able to

premeditate:

Within my report, it’s my opinion that Mr. McKinley did

have intent to kill, meaning that he knew the outcome of his

actions or what would happen when he pulled the trigger.

I also find that he had malice. I believe he had malice

because of the relationship that he had with the victim, as well

as the context, which I’ll go through briefly in a second.

What perhaps is debatable is whether or not it was time

for deliberation and therefore, whether or not there was

cognitive and emotional capacity for premeditation at that

moment, if in fact the defense of extreme emotional distress is

allowed.

41

The issue raised by Dr. Miller’s testimony is whether extreme emotional

disturbance can support the defense of diminished capacity. This issue was addressed by the

court in Commonwealth v. Spotz, 47 A.3d 63 (Pa. 2012). The defendant in Spotz was

convicted of first degree murder and sentenced to die. His conviction and sentence were

affirmed on direct appeal. Thereafter, the defendant filed a habeas corpus petition alleging,

among other things, that he had ineffective assistance of counsel because his counsel failed

to prepare a diminished capacity defense, which forced him to proceed pro se at his trial. The

appellate court determined that the only evidence of the defendant’s mental state at the time

of the murder was a medical opinion that he had an extreme mental or emotional disturbance.

The appellate court summarily rejected extreme mental or emotional disturbance as a basis

for establishing the diminished capacity defense:

An “extreme mental or emotional disturbance” does not

in any factual or legal sense equate to an inability to formulate

intent, and thus cannot support the advancement of a diminished

capacity defense.

Spotz, 47 A.3d at 94.

We agree with the decision in Spotz. A finding of extreme emotional

disturbance simply is not sufficient to establish the defense of diminished capacity. In fact,

the legal concept of extreme emotional disturbance is itself recognized by a few jurisdictions

as a stand alone affirmative defense. See State v. Wang, 92 A.3d 220, 226 (Conn. 2014)

(“[T]he state requested that the defendant provide notice of a defense of mental disease or

42

defect, or extreme emotional disturbance.”); State v. Adviento, 319 P.3d 1131, 1145 (Haw.

2014) (“[Extreme mental or emotional disturbance] is an affirmative defense to murder or

attempted murder, which reduces the offense to manslaughter or attempted manslaughter if

the defendant was, at the time the defendant caused the death of the other person, under the

influence of extreme mental or emotional disturbance for which there is a reasonable

explanation.”); Jackson v. Commonwealth, No. 2012-CA-002062-MR, 2014 WL 2631277,

at *1 (Ky. Ct. App. June 13, 2014) (“We conclude that Jackson’s arguments regarding

defense counsel’s failure to present any witnesses or evidence supporting the defense theory

of extreme emotional disturbance is dispositive of this matter, requiring reversal and

remand.”); People v. Nunez, 991 N.Y.S.2d 121, 124 (2014) (“Where, as here, a defendant

raises the affirmative defense of extreme emotional disturbance to mitigate a charge of

attempted murder, he or she may be convicted of attempted manslaughter in the first degree

if the jury accepts that defense.”); State v. Below, 264 Or. App. 384, 386, ___ P.3d ___, ___

(2014) (“Defendant’s case proceeded to a bench trial, where his defense was that he killed

the victim as a result of an extreme emotional disturbance. See ORS 163.135 (providing for

extreme emotional disturbance defense to murder).”).

It is quite clear that the affirmative defense of extreme emotional disturbance

does not require a showing of a mental disease or defect.19 The distinction between the two

19

The defense of extreme emotional disturbance has been defined in this

(continued...)

43

defenses of extreme emotional disturbance and diminished capacity has been summarized

as follows:

Note that “extreme mental and emotional disturbance” is

similar to the controversial diminished capacity doctrine. The

Model Penal Code, however, distinguishes the doctrines by

commenting that [extreme emotional disturbance] has an

objective component in requiring that there exist a “reasonable

explanation or excuse” for the extreme emotional disturbance.

Diminished capacity, by contrast, relies upon an entirely

subjective standard, thereby allowing a mental disorder to

reduce a crime to a lesser offense regardless of the

reasonableness of the perpetrators [sic] emotional disturbance

which provoked the homicide.

Janet Ford, “Susan Smith and Other Homicidal Mothers – In Search of the Punishment That

Fits the Crime,” 3 Cardozo Women’s L.J. 521, 532 n.90 (1996) (internal quotations and

citations omitted).

19

(...continued)

manner:

Extreme emotional disturbance may reasonably be

defined as follows: Extreme emotional disturbance is a

temporary state of mind so enraged, inflamed, or disturbed as to

overcome one’s judgment, and to cause one to act

uncontrollably from the impelling force of the extreme

emotional disturbance rather than from evil or malicious

purposes. It is not a mental disease in itself, and an enraged,

inflamed, or disturbed emotional state does not constitute an

extreme emotional disturbance unless there is a reasonable

explanation or excuse therefor, the reasonableness of which is

to be determined from the viewpoint of a person in the

defendant’s situation under circumstances as defendant believed

them to be.

McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).

44

In light of the above, the circuit court did not abuse its discretion in precluding

Mr. McKinley’s expert from presenting evidence of an extreme emotional disturbance to

establish the defense of diminished capacity.

E. Rejection of a Plea Agreement

The next issue raised by Mr. McKinley is that the trial court committed error

in rejecting a plea agreement the State made with him. The State takes the position that the

trial court has discretion to reject a plea agreement and properly exercised that discretion.

We have held that “West Virginia Rules of Criminal Procedure, Rule 11, gives

a trial court discretion to refuse a plea bargain.” Syl. pt. 5, State v. Guthrie, 173 W. Va. 290,

315 S.E.2d 397 (1984). See Syl. pt. 2, State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465

S.E.2d 185 (1995) (“There is no absolute right under either the West Virginia or the United

States Constitutions to plea bargain. Therefore, a circuit court does not have to accept every

constitutionally valid guilty plea merely because a defendant wishes so to plead.”). It has

also been held that “[a] court’s ultimate discretion in accepting or rejecting a plea agreement

is whether it is consistent with the public interest in the fair administration of justice.” Syl.

pt. 4, Myers v. Frazier, 173 W. Va. 658, 319 S.E.2d 782 (1984). In offering direction on this

point, we have held as follows:

As to what is meant by a plea bargain being in the public

interest in the fair administration of justice, there is the initial

consideration that the plea bargain must be found to have been

45

voluntarily and intelligently entered into by the defendant and

that there is a factual basis for his guilty plea. Rule 11(d) and (f).

In addition to these factors, which enure to the defendant’s

benefit, we believe that consideration must be given not only to

the general public’s perception that crimes should be prosecuted,

but to the interests of the victim as well.

Syl. pt. 5, Myers, 173 W. Va. 658, 319 S.E.2d 782. Finally, we have said that

[a] primary test to determine whether a plea bargain

should be accepted or rejected is in light of the entire criminal

event and given the defendant’s prior criminal record whether

the plea bargain enables the court to dispose of the case in a

manner commensurate with the seriousness of the criminal

charges and the character and background of the defendant.

Syl. pt. 6, Myers, id. Based upon our review of the record on this issue, we find no error in

the circuit court’s refusal to accept Mr. McKinley’s plea agreement.

The record in this case indicates that the circuit court was hesitant to disqualify

the prosecutor because of a possible conflict of interest. During the period that the

disqualification issue was pending, the prosecutor and defendant entered into a plea

agreement. The agreement required Mr. McKinley to plead guilty to second degree murder.

There appears to have been a conference call by the parties with the trial court about the plea;

however, that discussion was not recorded. Subsequent to the conference call, the trial court

stated on the record the reasons for his rejection of the plea and entered an order rejecting the

plea. The trial court indicated in the order that the plea was being rejected because it was

only made as a result of the court’s initial reluctance to disqualify the prosecutor, the victim’s

family was opposed to the plea, and the plea was not in the interest of the public.

46

Although we are concerned that the record does not disclose the discussion that

occurred at the conference call, we believe the circuit court articulated sufficient grounds in

its order for rejecting the plea. Therefore we find no merit to this assignment of error.

F. Admission of Opinion Testimony by a Fact Witness

The next issue raised by Mr. McKinley concerns testimony by one of the

investigating officers in the case, Trooper J.M. Ellison. Mr. McKinley argues that Trooper

Ellison “testified to blood splatter evidence and to his opinion as to where the gun was or

where the shooter was at the time based upon the shell casings [sic] final positioning.” Mr.

McKinley contends that this evidence should have been excluded because Trooper Ellison

“was not qualified as an expert.” We disagree.

To the extent that Trooper Ellison’s testimony could be considered an opinion,

it was properly admitted as a lay opinion under Rule 701 of the West Virginia Rules of

Evidence.20 Opinion testimony by lay witnesses is permitted under the rule. We have held

20

Rule 701 was amended in 2014. The amendment was mostly stylistic, but

one new provision was added. The version of the rule in place when Mr. McKinley was

prosecuted, and which is relied upon here, stated the following:

If the witness is not testifying as an expert, his or her

testimony in the form of opinions or inferences is limited to

those opinions or inferences which are (a) rationally based on

the perception of the witness and (b) helpful to a clear

understanding of the witness’ testimony or the determination of

(continued...)

47

that

[t]he determination of whether a witness has sufficient

knowledge of the material in question so as to be qualified to

give his opinion is largely within the discretion of the trial court,

and will not ordinarily be disturbed on appeal unless clearly

erroneous.

Syl. pt. 4, Cox v. Galigher Motor Sales Co., 158 W. Va. 685, 213 S.E.2d 475 (1975). See

Syl. pt. 3, State v. Haller, 178 W. Va. 642, 363 S.E.2d 719 (1987).

The standard for permitting a lay witness to render an opinion was set out by

this Court as follows:

In order for a lay witness to give opinion testimony

pursuant to Rule 701 of the West Virginia Rules of Evidence (1)

the witness must have personal knowledge or perception of the

facts from which the opinion is to be derived; (2) there must be

a rational connection between the opinion and the facts upon

which it is based; and (3) the opinion must be helpful in

understanding the testimony or determining a fact in issue.

Syl. pt. 2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999), modified, State v.

McCraine, 214 W. Va. 188, 588 S.E.2d 177 (2003). Trooper Ellison’s lay opinions easily

satisfy Nichols.

To begin, Trooper Ellison testified that he was assigned to work with a special

crime scene team. Trooper Ellison acknowledged that the team “received specialized training

20

(...continued)

a fact in issue.

48

in processing crime scenes and documenting it and securing evidence and packaging the

evidence up[.]” During Trooper Ellison’s testimony he was asked by the State to identify

objects in specific crime scene photos. In one of the photos, Trooper Ellison identified a

bullet hole in a wall and blood splatter on the wall. The State asked Trooper Ellison to

explain the blood splatter:

A. Uh, just whenever there’s someone shot close up the

— the blood splatter will be what — what happens after the

bullet passes through the body and then the blood will actually

make a certain pattern on the wall.

Q. Okay. So this would have been blood from Ayanna

after she was shot and the bullet passed through.

[Defense Counsel]: Objection, your Honor. Move to

strike unless they’re going to qualify him in the field of blood

splatter evidence or —

The trial court overruled the objection. The State followed up with one last question on the

subject.

Q. . . . Uh was there anything else that you needed to say

about [photo] Number 7 or are you finished.

A. Just like I said [I] just suspected that was the blood

that come from the victim whenever, you know, whenever she

was shot.

To the extent that Trooper Ellison rendered an opinion in this testimony, that

opinion was simply that the blood spatter depicted in the photo was caused by a bullet that

passed through Ms. Patton’s body. This opinion was based upon Trooper Ellison’s

observations and particularized experience as a crime scene investigator. The opinion also

49

helped the jury understand how the blood was formed on the wall. Consequently, we find the

testimony was admissible under Rule 701. See United States v. Perkins, 470 F.3d 150, 156

(4th Cir. 2006) (“Because their testimony was framed in terms of their eyewitness

observations and particularized experience as police officers, we have no trouble finding that

their opinions were admissible under Rule 701.”); Williams v. State, 417 S.W.3d 162, 182

(Tex. App. 2013) (finding police officer properly gave lay witness opinion in describing

crime scene).21

G. Ruling Concerning Facebook Evidence

The next issue Mr. McKinley raises concerns a Facebook exhibit that the State

listed in its exhibit list. Using a total of five sentences, Mr. McKinley appears to be arguing

that, because of the late disclosure of the Facebook exhibit, “defense counsel changed trial

strategy and severely damaged his relationship with his client by not using Facebook

evidence, even that which he had obtained earlier.”

21

The second issue Mr. McKinley raised under this assignment of error is that

Trooper Ellison improperly gave an expert opinion when he described the location of Ms.

Patton’s killer, based upon where shell casings were found. For the reasons stated regarding

Trooper Ellison’s blood splatter testimony, we find that his testimony as to the location of

the shooter to be lay opinion testimony. As such, it was not error to admit the same. See

Barber v. State, 143 So. 3d 586, 592 (Miss. Ct. App. 2013) (holding police officer’s

testimony in murder prosecution as to where bullets appeared to have impacted ground and

where he recovered shell casings was admissible lay opinion testimony rather than expert

testimony).

50

The State contends that the issue was waived because the record does not

contain the Facebook exhibit, and because Mr. McKinley “is not positing a violation of

discovery, but merely posits that the late disclosure caused a change in strategy and a rift

between lawyer and client.” We agree with the State that the issue was not properly

preserved, but for different reasons. See West Virginia Dep’t of Health & Human Res. v.

Clark, 209 W. Va. 102, 105, 543 S.E.2d 659, 662 (2000) (“Thus, we affirm the decision of

the circuit court, but for different reasons.”).

The record reveals that the issue of the Facebook exhibit came up prior to the

State calling its last witness during its case-in-chief. Defense counsel explained that he was

not previously aware of the Facebook evidence. The State informed the court that the

Facebook exhibit was listed on its exhibit list before the trial began. The State also indicated

that, when the new prosecutor was appointed, he had assumed Mr. McKinley had received

all information requested during discovery. Finally, the State made clear that it was not

going to use the Facebook exhibit during the testimony of its last witness, and that the exhibit

would only be used during its rebuttal if necessary. Once the State explained these matters,

the court asked the defense counsel “[d]oes that satisfy your concerns?” Defense counsel

answered, “Yes sir,” that satisfied his concerns regarding the Facebook exhibit.

Assuming that Mr. McKinley raised a proper objection regarding the Facebook

exhibit, the record is clear in showing that he withdrew that objection. Consequently, this

51

issue was not preserved for review by this Court. See United States v. Echols, 379 F. App’x

543, 544 (8th Cir. 2010) (“[D]efense counsel withdrew Echols’s objections . . . [h]e therefore

waived our consideration of those issues.”); Walker v. State, 602 S.E.2d 351, 354 (Ga. Ct.

App. 2004) (objection withdrawn; therefore issue waived on appeal); Norris v. State, 394

N.E.2d 144, 148 (Ind. 1979) (“[T]he objection to this evidence was withdrawn by the

defendant . . . . Therefore, appellant has waived this alleged error, unless he can show that

failure to consider the issue would deny him fundamental due process.”); State v. Franklin,

332 So. 2d 238, 239 (La. 1976) (objection was withdrawn; therefore issue waived on

appeal).22

IV.

CONCLUSION

In view of the foregoing, we affirm the judgment below convicting Mr.

McKinley of first degree murder and sentencing him to imprisonment for life, without the

possibility of parole.

Affirmed.

22

The last issue raised by Mr. McKinley is that the cumulative effect of the

errors requires that he obtain a new trial. See Syl. pt. 5, State v. Smith, 156 W. Va. 385, 193

S.E.2d 550 (1972) (“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.”). In order to invoke the cumulative error doctrine, there must be

more than one harmless error. Mr. McKinley cannot rely on this doctrine because only one

harmless error was found in this case.

52