Opinion

State of West Virginia v. Heyward Thomas Bazar, Jr.

Court
West Virginia Supreme Court
Filed
Nov 20, 2015
Status
Published
Nature of suit
Felony (non-Death Penalty)
Cited by
0 cases
Authority
More cited than 42.7%

statements given in the midst of an ongoing medical emergency are non­ testimonial

How later courts described this case

  • statements given in the midst of an ongoing medical emergency are non­ testimonial

Written by the judges who cited it.

The opinion

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent FILED

November 20, 2015

RORY L. PERRY II, CLERK

vs) No. 14-0916 (Ohio County 14-F-4) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Heyward Thomas Bazar, Jr.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Heyward Thomas Bazar, Jr., by counsel Richard W. Hollandsworth, appeals

his conviction for the offense of battery, claiming that his rights under the Confrontation Clause

of the Sixth Amendment of the United States Constitution were violated, in that the victim in the

matter did not testify. Respondent State of West Virginia, by counsel Gail W. Kahle and Scott R.

Smith, filed a response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the briefs, and the record

presented, the Court finds no substantial question of law and no prejudicial error. For these

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21

of the Rules of Appellate Procedure.

On November 22, 2013, officers from the Wheeling Police Department were dispatched

to a house at 716 Main Street, Wheeling, West Virginia in response to a call regarding a

domestic disturbance. The house was a boarding-style house where petitioner lived in the

basement with Jennifer Thomas (hereinafter referred to as “Ms. Thomas” or “the victim”). Once

there, the officers were directed to a bedroom where they encountered Ms. Thomas. According

to Officer Erick Burke, Ms. Thomas was crying hysterically and bleeding profusely from the side

of her head. Officer Burke later testified as follows regarding his conversation with Ms. Thomas

at the scene:

Q. At this point in the investigation, did you know how this came about?

A. No sir.

Q. Was it important for you as a police officer to find out how this traumatic

event came about?

A. Yes, sir.

1

Q. And did you make inquiry to find out how this came about?

A. Yes, sir we did.

Q. And how – please describe for the jury.

A. First we asked her who had done this to her, and she responded, I said,

Heyward Bazar,” that (sic) beat her. And because of the severity and because of

how much blood there was, we asked her what she was beat with.

Q. Because you assumed it was something other than fists.

A. Yes, sir.

Q. And what was her response on that?

A. That she had been punched.

Petitioner was located in the backyard of the house and placed under arrest. On January

13, 2014, petitioner was indicted for the offense of malicious assault. At trial, Robert Chadwick,

petitioner’s neighbor in the boarding house, testified to the events of the evening. Mr. Chadwick

stated he first heard a lot of commotion outside of his bedroom door, and realized that it was Ms.

Thomas trying to come inside. When he opened the door, he saw Ms. Thomas with petitioner

behind her, holding Ms. Thomas’s hair. Mr. Chadwick did not allow her to enter initially.

Also at petitioner’s trial, Mrs. Debra Chadwick, Mr. Chadwick’s wife, testified that she

was in the bedroom with her husband when they heard commotion outside. She testified that she

observed petitioner hit Ms. Thomas, and knocked her into a doorway. Mrs. Chadwick also

testified that Ms. Thomas was bleeding from her head, and appeared terrified, very scared, and in

pain.

Ms. Thomas was transported to the Ohio Valley Medical Center, where she was treated

for her injuries. Emergency Trauma Nurse Angela McCort assessed Ms. Thomas’ injuries. Nurse

McCort testified that as a triage nurse, it was important to get an accurate medical history from

the patient. Nurse McCort testified that Ms. Thomas told her that she was “assaulted by her

boyfriend,” and that her boyfriend “had hit her multiple times,” and “ had choked her.” Petitioner

did not testify and did not present any witnesses.

The jury received instructions on the offense of malicious assault and the lesser included

offense of unlawful assault and battery. The jury convicted petitioner of the lesser included

offense of battery, and the circuit court sentenced petitioner to one year in jail. Petitioner appeals

his conviction.

Petitioner asserts two assignments of error in this appeal. Petitioner claims that because

Ms. Thomas (“the victim”) did not testify at trial, the circuit court erred by allowing

Investigating Officer Burke to testify to statements made by the victim; and erred by allowing

2

Nurse McCort to testify to statements made by the victim. Petitioner claims that this evidence

prejudiced his constitutional rights, and that he is entitled to a new trial as a result of these

violations.

“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.” Syllabus point 3, State v. Vance, 207

W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 2, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). We have stated that the

“‘[f]ailure to observe a constitutional right constitutes reversible error unless it can be shown that

the error was harmless beyond a reasonable doubt.’ Syllabus Point 5, State ex rel. Grob v. Blair,

158 W.Va. 647, 214 S.E.2d 330 (1975). In accord, Syllabus Point 14, State v. Salmons, 203

W.Va. 561, 509 S.E.2d 842 (1998).” State v. Mechling, 219 W.Va. 366, 371, 633 S.E.2d 311,

316 (2006)

Petitioner first claims that the trial court erred by admitting testimony from the

investigating officer regarding statements made by the victim. In his testimony, the investigating

officer testified that the victim told him that petitioner committed the offense against her.

Petitioner claims that this testimony violated his constitutional rights under the Confrontation

Clause of the Sixth Amendment of the United States Constitution.1 Relying upon syllabus points

eight and nine of Mechling, petitioner asserts that the statements admitted were testimonial in

nature, constituted hearsay, and that in order for the testimony to be admitted, the victim must

have testified to the substance of the statement at trial.

[A] confrontation clause inquiry is twofold. First, a court should determine

whether the contested statement by an out-of-court declarant qualifies as testimonial

under Crawford and its progeny. Second, the court should apply the appropriate

safeguard. If the absent witness’s statement is testimonial, then the Confrontation Clause

requires unavailability and a prior opportunity for cross-examination. If the statement is

nontestimonial, admissibility is then governed solely by the rules of evidence.

1

The Sixth Amendment of the United States Constitution or “Confrontation Clause”

reads as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defense.

3

Louis J. Palmer, Robin Jean Davis & Franklin D. Cleckley, Handbook on Evidence for West

Virginia Lawyers 361 (6th ed. 2015). “Under Crawford [v. Washington, 541 U.S. 36 (2004)] and

this Court’s decision in Mechling, ‘only “testimonial statements” cause the declarant to be a

“witness” subject to the constraints of the Confrontation Clause. Non-testimonial statements by

an unavailable declarant, on the other hand, are not precluded from use by the Confrontation

Clause.’ Mechling, 219 W.Va. at 373, 633 S.E.2d at 318 (emphasis added).” State v. Kaufman,

227 W.Va. 537, 550, 711 S.E.2d 607, 620 (2011). In syllabus point nine of Mechling, we held,

Under the Confrontation Clause contained within the Sixth Amendment to

the United States Constitution and Section 14 of Article III of the West Virginia

Constitution, a witness’s statement taken by a law enforcement officer in the

course of an interrogation is testimonial when the circumstances objectively

indicate that there is no ongoing emergency, and that the primary purpose of the

witness’s statement is to establish or prove past events potentially relevant to later

criminal prosecution. A witness’s statement taken by a law enforcement officer in

the course of an interrogation is non-testimonial when made under circumstances

objectively indicating that the primary purpose of the statement is to enable police

assistance to meet an ongoing emergency.

219 W.Va. at 368-69, 633 S.E.2d at 313-14.

We find that the testimony of the investigating officer regarding the victim’s statements

was not testimonial in nature. The evidence reveals that the investigating officer arrived on the

scene to find the victim bleeding profusely from her head at the rooming house she shared with

petitioner. The officer asked questions of the victim to determine what was going on. In response

to that inquiry, the victim stated that petitioner beat her. This evidence was clearly gathered from

the officer in order to address an ongoing emergency. See State v. Surbaugh, 230 W.Va. 212, 737

S.E.2d 240 (2012). In addition, we find that the rule against hearsay evidence was not violated as

the statements were not admitted for the truth of the matter asserted. See Rule 801(C) of the West

Virginia Rules of Evidence. The officer’s testimony regarding the victim’s statements explained

why and how petitioner was arrested for the offenses charged.

Even if we found the statement was inadmissible, the admission of the statement was

harmless error. See State v. Bowling, 232 W.Va. 529, 753 S.E.2d 27(2013). There is substantial

evidence on the record to support petitioner’s conviction, excepting the subject testimony from

the investigating officer. Mr. Chadwick testified at trial that on November 22, 2013, he heard a

male voice yelling outside of the door to the room he was renting with his wife. Mr. Chadwick

further testified that when he opened the door to the room, petitioner was standing in the

hallway, holding the victim by her hair with his right hand. Mrs. Chadwick testified at trial that

prior to her husband opening the door, that she heard the victim “raving and screaming,” and that

she heard sounds that she believed were petitioner hitting the victim. Once her husband opened

the door, Mrs. Chadwick testified that based upon the sounds she heard, she believed petitioner

knocked the victim into the doorway. Further evidence introduced at trial consisted of a

photograph that depicted blood on Mr. and Mrs. Chadwick’s doorway. Both parties testified that

the victim’s face was very bloody when they finally allowed her into their room and called the

police. This evidence alone, independent of the testimony by the investigating officer, was

sufficient to support the jury’s verdict.

4

Similarly, petitioner asserts that his constitutional rights under the Confrontation Clause

were violated by the testimony of Nurse McCort. Petitioner claims that these statements were out

of court hearsay statements which were also subject to the Confrontation Clause. We disagree.

“Under the Confrontation Clause contained within the Sixth Amendment

to the United States Constitution and Section 14 of Article III of the West Virginia

Constitution, a testimonial statement is, generally, a statement that is made under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.”

Syl. Pt. 8, Mechling. In this instance, the statement in question was not given to a police officer

in response to interrogation; it was given to a nurse in order for the victim to receive treatment.

The circumstances surrounding the collection of the statement clearly demonstrate that Nurse

McCort questioned the victim in an attempt to provide the proper medical care. Therefore, we

find that this statement is non-testimonial. See State v. Surbaugh, 230 W.Va. 212, 224, 737

S.E.2d 240, 252 (2012) (statements given in the midst of an ongoing medical emergency are non­

testimonial).2

Finally, even if this Court were to find that the admission of this evidence were in error

pursuant to the West Virginia Rules of Evidence, in syllabus point four of State v. Helmick, 201

W.Va. 163, 495 S.E.2d 262 (1997), we held that, “[a]n error in admitting hearsay evidence is

harmless where the same fact is proved by an eyewitness or other evidence clearly establishes

the defendant’s guilt.” As discussed previously, there was sufficient independent evidence

admitted at trial to prove petitioner’s guilt beyond a reasonable doubt.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 20, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis

Justice Brent D. Benjamin

2

We also note that this evidence was admissible under Rule 803(4) of the West Virginia

Rules of Evidence (statements made for medical diagnosis or treatment are not hearsay).

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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