The opinion
FILED
May 26, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0170 (Kanawha County 19-F-55)
Cynthia Annmarie Gatewood,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Cynthia Annmarie Gatewood, by counsel George Castelle, appeals the order of
the Circuit Court of Kanawha County, entered on February 1, 2021, sentencing her to
imprisonment for life, without mercy, for her conviction of first-degree murder. Respondent State
of West Virginia appears by counsel Patrick Morissey and Scott E. Johnson.
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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
Ms. Gatewood fatally stabbed a woman who was a stranger to her in a Sissonville, West
Virginia parking lot in September of 2018. It is undisputed that the attack was unprovoked and
Ms. Gatewood had no interaction with the victim prior to the stabbing. She was indicted in the
Circuit Court of Kanawha County and tried in a bifurcated proceeding. Ms. Gatewood gave notice
that she would present a defense of insanity, supported by the report of forensic psychologist
Clifton Hudson, who found that Ms. Gatewood was competent to stand trial and criminally
responsible for her actions, but that her “use of methamphetamine contributed to her irrationality
and aggression . . . and [that it was] likely that the offense would not have occurred if she had not
been using the drug.” 1
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Ms. Gatewood, who was thirty years old when she attacked her victim, began using
methamphetamine when she was seventeen or eighteen years old. She was temporarily “clean” but
relapsed the day before the murder.
1
Prior to trial, the State moved to exclude testimony advancing the insanity defense. The
circuit court ruled that such testimony, including that of Dr. Hudson, could be offered for the
limited purpose of establishing that long-term drug use might affect a person’s brain, but that Dr.
Hudson could not testify about Ms. Gatewood’s intent. Furthermore, if Ms. Gatewood offered Dr.
Hudson’s testimony about the effect of long-term drug abuse on the brain, the State could inquire
about the purpose of Dr. Hudson’s evaluation and his conclusions about Ms. Gatewood’s
competency and criminal responsibility. The circuit court declined to allow questions about
insanity on the verdict form, because no expert deemed Ms. Gatewood mentally compromised.
(Dr. Timothy Thistlethwaite also evaluated Ms. Gatewood and found that she was competent to
stand trial and criminally responsible for her actions.) The case proceeded to trial subject to the
circuit court’s ruling.
The investigating officer was among the witnesses offered by the State in the guilt phase.
He testified that Ms. Gatewood asked if her victim—who was still alive when Ms. Gatewood was
arrested—was “okay.” On cross-examination, Ms. Gatewood’s attorney asked the detective
whether Ms. Gatewood was relieved when she believed the victim was not fatally injured. On
redirect, the assistant prosecuting attorney elicited testimony that Ms. Gatewood repeatedly asked
if she was “in trouble” when questioned by officers. The assistant prosecuting attorney asked,
“And do you think her concern was really for the victim or for herself?” Ms. Gatewood’s attorney
objected, and the court overruled the objection. The officer replied that Ms. Gatewood was
concerned for herself.
Ms. Gatewood testified on her own behalf during the guilt phase of her trial, and she
informed the jury that she suffered auditory and visual hallucinations because of her drug abuse.
She testified that these hallucinations caused her to believe that the victim called her a “stupid b--
-h” when they passed one another in the parking lot. Ms. Gatewood’s assertion led to the following
cross-examination by the assistant prosecuting attorney:
Q: But on [the day of the murder], you want to say now that you were
so out of your mind that you remember to take your mom pizza; is
that right?
A: I never did say I was out of my mind.
Q: And you were so out of your mind on meth, you said, that you
remembered what you needed to pick up at the store, is that right?
A: I never said—I don’t remember saying that I was out of my mind.
Maybe I felt like I was out of my mind, but, obviously, I’ve been
evaluated twice.
Q: And you’ve been found to be competent; correct?
A: Yes, ma’am
Q: And criminally responsible; correct?
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A: Yes, ma’am.
The assistant prosecuting attorney’s questions about competency and criminal
responsibility drew an objection from Ms. Gatewood’s attorney, but the circuit court overruled the
objection on the ground that Ms. Gatewood “opened the door” to this line of inquiry when she
testified that she had “been evaluated twice.” At the conclusion of Ms. Gatewood’s testimony, her
attorney moved the circuit court to allow Dr. Hudson to “testify in full about the evaluation that
[the assistant prosecuting attorney] raised[,]” arguing that the State, not Ms. Gatewood, opened the
door to this testimony by informing the jury that Ms. Gatewood was competent and criminally
responsible. The court denied the motion, noting that Ms. Gatewood’s reference to the evaluations
was nonresponsive to the State’s questions and that Ms. Gatewood “offered a lot of information in
a nonresponsive fashion and I cautioned her against it a number of times.” Ms. Gatewood then
reserved Dr. Hudson’s testimony for the mercy phase of her trial.
Ms. Gatewood asked the court to qualify Dr. Hudson as an expert forensic psychologist
with expertise in long-term drug addiction. The court ruled that Dr. Hudson could testify about the
effects of long-term addiction by virtue of his experience, but that Dr. Hudson is not an expert on
the effects of long-term substance abuse. The court did not allow Dr. Hudson to testify that Ms.
Gatewood would not have committed murder had she not suffered methamphetamine addiction.
During the mercy phase, Dr. Hudson testified that Ms. Gatewood suffered an unspecified bipolar
disorder and a borderline personality disorder, among other unspecified substance abuse disorders;
that she was frequently hospitalized for hallucinations and delusions stemming from substance
abuse and psychosis; that she suffered paranoia; that the symptoms she experienced typically lead
to irrational and violent behavior; and that the symptoms she exhibited can occur even after a
person stops drug use.
After the conclusion of the evidence, the jury found that Ms. Gatewood was guilty of first-
degree murder, and it did not recommend mercy. Ms. Gatewood was sentenced accordingly. On
appeal, Ms. Gatewood asserts five assignments of error: (1) that the circuit court erred in ruling
that Ms. Gatewood opened the door to the assistant prosecuting attorney’s questioning; (2) that the
circuit court failed to recognize that the State opened the door and further failed to allow Ms.
Gatewood an opportunity “to place the results in context”; (3) that the State opened the door in
error, and the error was not harmless; (4) that the circuit court erroneously failed to qualify Dr.
Hudson as an expert on the effects of long-term drug addiction; and (5) that the circuit court erred
in allowing an investigating officer to offer an opinion about the sincerity of petitioner’s remorse.
We approach each assignment of error with the recognition that
[t]he West Virginia Rules of Evidence and the West Virginia Rules of Civil
Procedure allocate significant discretion to the trial court in making evidentiary and
procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed
to the discretion of the trial court. Absent a few exceptions, this Court will review
evidentiary and procedural rulings of the circuit court under an abuse of discretion
standard.
Syl. Pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
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We consider Ms. Gatewood’s first, second, and third assignments of error collectively
because they are significantly intertwined. The State argues that the assistant prosecutor’s line of
questioning implicates the doctrine of curative admissibility. 2
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, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). The circuit court initially
ruled that evidence of Ms. Gatewood’s mental examinations would not be admissible, but
cautioned counsel that reference to Dr. Hudson’s report would result in the court’s allowing the
State to clarify the circumstances of the examinations. The circuit court’s warnings were frequent
and plentiful. It is apparent that Ms. Gatewood understood the potential ramifications of
mentioning her mental health examinations but chose to mention them anyway. The State’s inquiry
about the circumstances of those examinations was necessary to dispel any implication that Ms.
Gatewood’s examinations were anything other than diagnostic.
In her fourth assignment of error, Ms. Gatewood argues that the circuit court erred when it
declined to qualify Dr. Hudson as an expert on the long-term effects of drug addiction. “‘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.’ Syllabus point
6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).” Syl. Pt. 2, State v.
Dunn, 237 W. Va. 155, 786 S.E.2d 174 (2016). We have explained how a circuit court should
approach the question of admissibility:
2
Because Ms. Gatewood did not introduce evidence of her examinations, we note that the
path by which questionable evidence finds itself before the jury determines whether the curative
admissibility rule apples.
Technically, it is questionable whether curative admissibility is available to
the State. The doctrine of curative admissibility allows a party to present otherwise
inadmissible evidence on an evidentiary point where an opponent has “opened the
door” by introducing similar inadmissible evidence on the same point. See
generally 1 John Henry Wigmore, Evidence in Trials at Common Law § 15 (Peter
Tillers rev.1983) (collecting cases from many jurisdictions). Normally, curative
admissibility becomes important only when extrinsic rebuttal evidence is offered.
If the contested evidence comes in as a result of cross-examination (intrinsically),
its admissibility is determined by the scope of cross-examination. In any event the
principles underlying both of these methods are the same.
State v. Potter, 197 W. Va. 734, 748 n.24, 478 S.E.2d 742, 756 n.24 (1996).
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In determining who is an expert, a circuit court should conduct a two-step
inquiry. First, a circuit court must determine whether the proposed expert (a) meets
the minimal educational or experiential qualifications (b) in a field that is relevant
to the subject under investigation (c) which will assist the trier of fact. Second, a
circuit court must determine that the expert’s area of expertise covers the particular
opinion as to which the expert seeks to testify.
Syl. Pt. 5, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995).
Dr. Hudson holds a doctorate in counseling psychology and has practiced forensic
psychology for more than fifteen years, but the circuit court explained that as to “long-term
substance abuse, all he testified was that his forensic psychology practice was not a treatment
specialty. He did not do substance abuse treatment, but that substance abuse was involved in
aspects of many of his cases. That does not make him an individual who has expertise in that field.”
The circuit court was not clearly wrong to find that Dr. Hudson’s expertise did not extend to the
particular impact of longtime methamphetamine use on one’s brain. Thus, we find no error in the
circuit court’s ruling.
We turn to Ms. Gatewood’s fifth and final assignment of error, in which she argues that
the circuit court erred by allowing the investigating officer to testify about his impression that Ms.
Gatewood, when inquiring about her victim’s status, asked selfishly. 3 This testimony was offered
in the guilt phase of the trial, on redirect examination after Ms. Gatewood’s counsel asked the
officer, “[Ms. Gatewood] expressed that she was relieved when she was told that the [victim] . . .
was okay, right?” The officer testified on redirect that Ms. Gatewood asked him, throughout her
interview, whether she would be in trouble, and he answered affirmatively, leading the assistant
prosecuting attorney to ask, “And do you think her concern was really for the victim or for
herself?” This question drew an objection from defense counsel, which was overruled by the circuit
court. The officer answered that Ms. Gatewood was concerned for herself. Ms. Gatewood’s
argument is that the officer’s response infringes on the jury’s province of evaluating witness
credibility. See Syl. Pt. 2, State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).
In State v. Wood, 194 W. Va. 525, 532, 460 S.E.2d 771, 778 (1995), this Court wrote that
Rule 608(a)(1) of the West Virginia Rules of Evidence “explicitly ‘permits [opinion] testimony
concerning a witness’s general character or reputation for truthfulness or untruthfulness but
prohibits any [opinion] testimony as to a witness’s truthfulness on a particular occasion.” The
police officer’s testimony about Ms. Gatewood’s sincerity, though logically based on the
overwhelming ratio of Ms. Gatewood’s questions about the degree of trouble she faced,
dangerously explored the jury’s territory. This is demonstrated by the assistant prosecuting
3
When the assistant prosecuting attorney asked, “And do you think [Ms. Gatewood’s]
concern was really for the victim or herself?” Ms. Gatewood’s attorney objected on the basis that
the question called for speculation. This objection was not sufficient to “articulate [the error] with
such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect” that is
now argued on appeal. See Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d
162 (1996). Nevertheless, we address Ms. Gatewood’s assignment of error.
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attorney’s explanation to the circuit court that she asked the police officer his impression based on
Ms. Gatewood’s having “asked several times if she is going to jail. She ask[ed] what’s going to
happen to her.” This evidence of Ms. Gatewood’s self-concern was available to present to the jury
so that jury members could draw their own conclusions about Ms. Gatewood’s sincerity.
Nevertheless, we find that any error in the admission of the police officer’s opinion testimony was
harmless in light of the overwhelming evidence of Ms. Gatewood’s guilt and the circumstances of
the murder, as well as testimony elicited during Ms. Gatewood’s own cross-examination:
Q: So at that time you were mostly concerned with whether you were
going to be in trouble; correct?
A: Yes. I was scared. Yes.
We find no prejudicial error in the circuit court’s treatment of the police officer’s testimony
concerning Ms. Gatewood’s sincerity.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: May 26, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
NOT PARTICIPATING:
Justice C. Haley Bunn
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