State of West Virginia v. Alexander Paul Delorenzo

No. 21-0456 – State of West Virginia v. Alexander Paul Delorenzo FILED

November 18, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

WOOTON, Justice, dissenting, joined by Chief Justice Hutchison: OF WEST VIRGINIA

I primarily take issue with the majority’s failure to recognize the obvious:

that the circuit court’s refusal to allow the petitioner’s expert witness, Michael J. Marshall,

Ph.D., to testify as to his Asperger’s Syndrome Disorder (“ASD”) gutted the petitioner’s

ability to advance his sole defense, lack of intent, thereby violating his constitutional right

to a fair trial. I also disapprove of the majority’s new syllabus point three, which was

created – in the complete absence of any law to support it – simply as a means to justify

the circuit court’s admonishments directed at the petitioner during the course of his

testimony. For these reasons, I respectfully dissent.

A fundamental component of the due process guarantees enumerated in

article III, section 14 of the West Virginia Constitution is that “a trial judge may not make

an evidentiary ruling which deprives a criminal defendant of certain rights, such as the right

. . . to offer testimony in support of his or her defense[.]” State v. Jenkins, 195 W.Va. 620,

628, 466 S.E.2d 471, 479 (1995); see also State v. Whitt, 220 W. Va. 685, 649 S.E.2d 258

(2007), modified on other grounds by State v. Herbert, 234 W. Va. 576, 767 S.E.2d 471

(2014). 1 In Whitt, we explained that

1

In Herbert, this Court held that

1

The right to offer the testimony of witnesses, and to compel

their attendance, if necessary, is in plain terms

the right to present the defendant’s version of the facts as well

as the prosecution’s to the jury so it may decide where the truth

lies. Just as an accused has the right to confront the

prosecution’s witnesses for the purpose of challenging their

testimony, he has the right to present his own witnesses to

establish a defense. This right is a fundamental element of due

process of law.

Id. at 691, 649 S.E.2d at 264 (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).

In State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999), where certain

evidence had been refused on the ground that its admission would violate the rape shield

statute, W. Va. Code § 61-8B-11 (2020), we formulated the following test: 2

in a criminal trial, when a non-party witness intends to invoke

the constitutional privilege against self-incrimination, the trial

court shall require the witness to invoke the privilege in the

presence of the jury. The constitutional privilege against self-

incrimination may only be invoked when a witness is asked a

potentially incriminating question. To the extent [Whitt] is

inconsistent with this holding, it is hereby modified.”

234 W. Va. at 584, 767 S.E.2d at 479, & Syl. Pt. 2.

2

“The Guthrie test was developed under the rape shield law that existed prior to

the adoption of [West Virginia Rule of Evidence] Rule 412 in 2014. The test, however, still

is workable for a constitutional challenge under Rule 412(b)(1)(D).” State ex rel. Harvey

v. Yoder, 239 W. Va. 781, 786 n.9, 806 S.E.2d 437, 442 n.9 (2017) (citing State v. Timothy

C., 237 W. Va. 435, 444, 787 S.E.2d 888, 897 (2016)).

2

The test used to determine whether a trial court’s exclusion of

proffered evidence under our rape shield law violated a

defendant’s due process right to a fair trial is (1) whether that

testimony was relevant; (2) whether the probative value of the

evidence outweighed its prejudicial effect; and (3) whether the

State’s compelling interests in excluding the evidence

outweighed the defendant’s right to present relevant evidence

supportive of his or her defense. Under this test, we will

reverse a trial court’s ruling only if there has been a clear abuse

of discretion.

Guthrie, 205 W. Va. at 330, 518 S.E.2d at 87, Syl. Pt. 6. In the instant case, the appendix

record – albeit incomplete, as the majority notes – is sufficient to demonstrate that the

proposed testimony of the petitioner’s expert witness, Dr. Marshall, was not only relevant

but was critical to his defense; 3 that its probative value outweighed any prejudice that the

State might assert; 4 and that the State had no compelling interests in excluding this

evidence. Therefore, I would find that the circuit court abused its discretion and was clearly

wrong 5 in excluding the expert’s testimony, and that the petitioner was thereby deprived

of his right to a fair trial.

See W. Va. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make

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a fact more or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.”); see also W. Va. R. Evid. 402 (“Relevant

evidence is admissible . . . .”)

See W. Va. R. Evid. 403 (“The court may exclude relevant evidence if its probative

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value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”).

5

“While ordinarily rulings on the admissibility of evidence are largely within the

trial judge’s sound discretion, a trial judge may not make an evidentiary ruling

which deprives a criminal defendant of certain rights, such as the right . . . to offer

3

Relevance. The petitioner was charged with two violations of West Virginia

Code section 61-8C-3(a) (2020), which provides that “[a]ny person who, knowingly and

willfully, sends or causes to be sent or distributes, exhibits, possesses, electronically

accesses with intent to view or displays or transports any material visually portraying a

minor engaged in any sexually explicit conduct is guilty of a felony.” (Emphasis added).

Dr. Marshall’s testimony was relevant to advance the petitioner’s defense that he did not

possess the requisite intent and to provide an explanation for the petitioner’s behavior both

inside and outside the courtroom. See text infra. Critically, the petitioner was not arguing

that he was incapable of formulating intent; rather, he was asserting that he did not in fact

intend to commit the charged offenses. In this regard, a review of the trial transcript

demonstrates beyond question that lack of intent was not just a defense, or even a key

defense; it was the petitioner’s sole defense.

Further, any argument that Dr. Marshall’s testimony about ASD was irrelevant

to the petitioner’s defense is belied by the fact that the circuit court permitted the

petitioner’s father and two friends to testify about his diagnosis and its manifestations.

Although this lay testimony was insufficient to ameliorate the prejudice resulting from the

testimony in support of his or her defense.” Jenkins, 195 W. Va. at 621-22, 466 S.E.2d at

472-73, Syl. Pt. 3, in part.

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court’s exclusion of expert testimony on the subject, see text infra, it demonstrates that any

argument as to relevance is nothing more than an after-the-fact attempt to justify the

exclusion of Dr. Marshall’s crucial testimony.

Prejudice. The State has no claim of prejudice that would result from the

admission of Dr. Marshall’s testimony other than the vastly overused, and wholly

speculative, possibility of “jury confusion.” I can conceive of no reason to believe that a

West Virginia jury is incapable of listening to expert testimony and then sorting out the

wheat from the chaff, in consultation with one another and guided by the instructions of

the court. See, e.g., Gentry v. Mangum, 195 W. Va. 512, 525–26, 466 S.E.2d 171, 184–85

(1995) (“‘Conventional devices’ like vigorous cross-examination, careful instructions on

the burden of proof, and rebuttal evidence, may be more appropriate instead of the

‘wholesale exclusion’ of expert testimony under Rule 702.”) (citation omitted).

Compelling interest. The State does not argue that it has a compelling

interest in excluding the testimony, as admission of Dr. Marshall’s testimony would not in

any way cause harm to victims or witnesses. Indeed, the only possible harm that could have

resulted from the testimony was to the State’s chance of obtaining a conviction. To this

point, I reiterate this Court’s pronouncement of “the universally recognized principle that

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a prosecutor’s duty is to obtain justice and not simply to convict.” Nicholas v. Sammons,

178 W. Va. 631, 632, 363 S.E.2d 516, 518 (1987). 6

Although the State argues, and the majority accepts, various rationales for

the circuit court’s decision to exclude Dr. Marshall’s testimony, it is clear from the

appendix record that the court seized on one sentence from one of the expert’s reports,

which stated that because of the petitioner’s Asperger’s Syndrome Disorder (“ASD”) and

Obsessive Compulsive Disorder (“OCD”) he would tend to “hyper-focus on a topic he is

motivated to investigate . . . with a lack of appreciating whether something is right or

wrong[,]” 7 as indicating that the petitioner was attempting to mount a diminished capacity

defense. 8 However, the petitioner never sought to advance a diminished capacity defense

6

In Nicholas, we cited the United States Supreme Court’s famous pronouncement

that a prosecuting attorney

is the representative not of an ordinary party to a controversy,

but of a sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it shall

win a case, but that justice shall be done. As such, he is in a

peculiar and very definite sense the servant of the law, the

twofold aim of which is that guilt shall not escape or innocence

suffer.

178 W. Va. at 632, 363 S.E.2d at 518 (quoting Berger v. United States, 295 U.S. 78, 88

(1935)).

7

The emphasis is that of the circuit court, not the expert.

8

“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

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through Dr. Marshall’s testimony; indeed, he admitted that he knew right from wrong. As

defense counsel explained, Dr. Marshall would testify not that the petitioner lacked

capacity to form intent (to view the photos in question), but that the petitioner didn’t in fact

have such intent because his hyper-focused mission was to plumb the depths of the dark

web, not to find and view pornographic images.

Defense counsel further explained that Dr. Marshall’s testimony would give

the jury a context for evaluating his character traits and credibility as well as “assessing his

subjective perceptions of what he was doing when he engaged in research on the dark web.”

More specifically, Dr. Marshall would have testified that the petitioner suffers from several

significant psychological conditions, with the primary one being a neurodevelopmental

condition that falls on the autism spectrum, although the petitioner also has obsessive-

compulsive disorder, depression, anxiety, and panic disorder. Dr. Marshall would have

explained that someone with petitioner’s autism diagnosis has difficulty with eye contact,

which could be misconstrued as indicating deception or having something to hide, and

lacks emotional expressiveness, which could be misinterpreted as indicating lack of

remorse or insensitivity. Dr. Marshall would have further explained that such persons

speak in a manner that is not fluid; tend to go off on a tangent; and repeat themselves,

that is an element of the crime charged.” Syl. Pt. 3, in part, State v. Joseph, 214 W. Va.

525, 590 S.E.2d 718 (2003).

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causing others to think they are being difficult and/or uncooperative. 9 With respect to

petitioner’s research on the dark web, Dr. Marshall would have explained that persons with

autism think “concretely step by step, gathering the information and missing big pieces of

the social puzzle and not processing the social information in the way we [persons without

autism] would, which is conceptually, by just getting stuck on individual steps and leading

him into places he’s not going to recognized as danger like we would.”10

Despite defense counsel’s attempts to set the record straight as to what

defense he intended to put before the jury, the circuit court wouldn’t budge from its

interpretation of that single sentence in Dr. Marshall’s report, 11 pointing out that the expert

had never amended or updated his initial report to excise, or otherwise clarify or explain

that “right or wrong” rubric. Thus,

[i]n this matter the trial court’s analysis of the relevance of [Dr.

Marshall’s] expert testimony was off target from its inception.

9

The petitioner exhibited all of these characteristics during his testimony at trial,

resulting in several stern rebukes by the circuit court. Although I do not think these rebukes

were so prejudicial, in and of themselves, as to require reversal, they perfectly illustrate the

importance of Dr. Marshall’s evidence. By better understanding how the petitioner

interacted with the world as a result of his ASD, the jury would have better understood his

core defense: that he lacked the requisite intent to commit the crimes charged.

10

This testimony was provided by Dr. Marshall at the petitioner’s sentencing

hearing. Although the majority discounts its significance because it was not before the

circuit court at the time the admissibility issue was argued, I believe that defense counsel

adequately recounted at that time what the sum and substance of Dr. Marshall’s testimony

would be.

11

“The Court continues to be of the opinion that regardless of how the [Petitioner]

couches Dr. Marshall’s testimony, he is attempting to assert a diminished capacity/lack of

criminal responsibility defense[.]”

8

In perceiving [Marshall’s] testimony to be permissible only to

establish a mental defect defense, which defendant was not

asserting, the trial court employed an approach to analyzing

the permissible uses of the testimony that was too narrow.

State v. Burr [Burr II], 948 A.2d 627, 632 (N.J. 2008) (emphasis added).

Further, the circuit court relied on the absence of any West Virginia

precedent governing admission of expert testimony 12 as to ASD, with or without the

complication of OCD, either to negate a defendant’s mens rea or to explain the affect and

behaviors of an individual who has the condition. Although the court was correct as to the

lack of West Virginia case law on the very specific issue presented in this case, admission

of expert testimony as to ASD, this Court has many precedents which can, and should,

guide our resolution of the issue presented here. See, e.g., State v. Stewart, 228 W. Va. 406,

409, 719 S.E.2d 876, 879 (2011) (“Based on well-established West Virginia precedent, the

defendant was entitled to present evidence of Battered Woman's Syndrome and evidence

of abuse through eyewitnesses and expert witnesses. See, e.g., Syllabus Point 4, State v.

Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009) (in cases not involving self-defense,

evidence of abuse is ‘relevant and may negate or tend to negate a necessary element of the

offense(s) charged, such as malice or intent.’”)); State v. Ferguson, 222 W. Va. 73, 76, 662

S.E.2d 515, 518 (2008) (expert testified that because defendant had schizo affective

12

The court did allow some testimony about the petitioner’s conditions, and how

they bore on his affect and his behaviors, from the petitioner’s father and two friends. See

text infra.

9

disorder, and when he saw an individual he believed had stolen from him, “I think his

thinking was impaired at the time and that would drastically affect his intent. I don't think

he had the intent to kill. I think he had intent to go find out what happened to his stuff.”);

State v. Lockhart, 208 W. Va. 622, 630, 632, 542 S.E.2d 443, 451, 453 (2000), where we

noted that Dissociative Identity Disorder (“DID”) is a “complex mental disorder,” and held

that in view of the general scientific recognition of the diagnosis of DID and the fact that

other courts have allowed expert testimony as to its existence and its applicability in a

specific case, expert testimony concerning DID may be admissible in West Virginia on a

case-by-case basis.); Syl. Pt. 2, State v. McCoy, 179 W. Va. 223, 224, 366 S.E.2d 731, 732

(1988) (“Qualified expert testimony regarding rape trauma syndrome is relevant and

admissible in a prosecution for rape where the defense is consent. The expert may testify

that the alleged victim exhibits behavior consistent with rape trauma syndrome, but the

expert may not give an opinion, expressly or implicitly, as to whether or not the alleged

victim was raped”).

Although court in other jurisdictions have been presented with the issue of

admissibility of expert testimony concerning a defendant’s ASD, the circuit court

summarily disregarded them as “unpersuasive and not applicable to the present case.” I

disagree on both counts, finding the cases to be both persuasive and highly relevant. In

State v. Burr [Burr I], 921 A.2d 1135 (N.J. Super. Ct. App. Div. 2007), aff’d as modified

by Burr II, 948 A.2d 627 (2008), the trial court had excluded expert testimony concerning

10

ASD on the ground that it did not establish diminished capacity, notwithstanding defense

counsel’s explanation “that the defense was not seeking to offer evidence of the disorder

to show that defendant committed the alleged acts but did not understand that his conduct

was wrong, but rather to show that defendant's ability to make certain social judgments is

impaired.” Id. at 1142. On appeal, the Superior Court of New Jersey reversed, finding that

Clearly then, [the expert’s] testimony would have given jurors

a better understanding of defendant’s behavior, which could

have effectively negated the inference that defendant had the

improper motive of seeking sexual gratification by having

children sit on his lap. The trial would have been a more fair

and complete adversarial process if, in evaluating the evidence

and the inferences urged by the State, jurors were aware that

defendant’s mental disability prevents him from viewing the

world as others do in terms of acceptable social interactions.

Id. at 1150.13 On appeal, the Supreme Court of New Jersey affirmed, holding that “[i]n our

view, the evidentiary ruling on the Asperger’s Disorder testimony denied defendant access

to evidence that was relevant and material to his explanation of himself and his conduct.”

Burr II, 948 A.2d at 629 (emphasis supplied). Noting that the New Jersey Evidence Rules

“broadly admit ‘all’ relevant evidence, unless the evidence is otherwise excluded,” id. at

631 (citation omitted), the court concluded that evidence as to the appellant’s ASD was

“‘relevant to prove that the defendant did not have a state of mind which is an element of

13

The appellant also argued “that the trial court's refusal to allow Asperger's

evidence deprived him of a fair trial by preventing him from testifying on his own behalf

due to concerns that the jury would misconstrue his odd appearance and behavior and

therefore find him to be not credible.” Burr I, id. at 1150. The court did not base its ruling

on this argument, finding that it wasn’t fairly raised because the appellant did not claim

that he would have testified if the expert’s testimony had been admitted.

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the offense.’” Id. at 632. The court cited multiple precedents for the broad proposition that

“mental defect evidence is relevant when asserted to prove or disprove an element of a

crime or to advance a defense.” Id. Finally, the court concluded that

[b]eyond offering an alternative explanation for defendant’s

conduct, the barred testimony would have enhanced the

presentation of defendant’s defense to the charges against him

in ways that defy specific enumeration. The evidence would

have educated the jury about oddities in behavior that

defendant might exhibit in court or were described in the

testimony of witnesses. The testimony also might have enabled

the jury to view the facts with greater consideration given to

defendant’s version of his interactions with the children.

Id. at 633.

In People v. Larsen, 205 Cal. Rptr.3d 762 (Cal. Ct. App. 2012), the issue on

appeal was whether the trial court had denied the defendant his right to put on a defense by

refusing to give a “pinpoint instruction” to the effect that his ASD could be considered by

the jury “for the limited purpose of deciding whether, at the time of the charged crime, the

defendant acted . . . with the intent or mental state required for that crime.” Id. at 773-74.

The appellate court concluded that the trial court erred in refusing the instruction, because

his expert’s “testimony on the effects of defendant’s [ASD] was both probative and

admissible on the issue of whether defendant actually formed and expressed the requisite

intent to procure Jane Doe’s murder.” 14 Id. at 777. Finally, and of specific relevance to the

14

The defendant claimed that his plans for the murder “were part of an elaborate

fantasy within the confines of a role-playing game.” Id. at 774.

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case at bar, the court found that the trial court’s categorization of the defendant’s ASD

defense as bearing solely on mental capacity was “off the mark” because the evidence that

he suffered from ADS, “and its manifested symptoms, directly and materially reflected on

his claim that he did not actually intend to solicit the victim’s murder, but instead was

engaged in some form of game-playing brought on by his mental disorder.” Id.

Finally, in State v. Boyd, 143 S.W.3d 36 (Mo. Ct. App. 2004), the trial court

excluded expert testimony concerning ASD on the ground that it didn’t bear on the

defendant’s lack of capacity to commit a crime. As was the situation in the instant case,

defense counsel argued – to no avail – that lack of capacity wasn’t his defense. On appeal,

the Missouri Court of Appeals found that exclusion of the evidence was error; the court

reversed and remanded for a new trial, noting that “[t]he denial of the opportunity to present

relevant and competent evidence negating an essential element of the state’s case may, in

some cases, constitute a denial of due process.” Id. at 40.

Even setting aside our Guthrie test, 205 W. Va. at 330, 528 S.E.2d at 87, and

the relevant precedents from other jurisdictions discussed supra, all of which compel the

conclusion that the circuit court erred in excluding the testimony of the petitioner’s expert

witness, that conclusion would be “consistent with this Court’s prior applications of the

Rules of Evidence regarding admissibility of expert testimony and the liberal thrust of those

rules.” State ex rel. Jones v. Recht, 221 W. Va. 380, 386, 655 S.E.2d 126, 132 (2007); see

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also Gentry, 195 W. Va. at 525, 466 S.E.2d at 184 (the Rules of Evidence are liberal and a

trial court should “err on the side of admissibility.”). We have held that the core concern

of West Virginia Rule of Evidence 702 15 is whether an expert’s “‘specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue[.]’”

Syl. Pt. 1, in part, Cargill v. Balloon Works, Inc., 185 W. Va. 142, 143, 405 S.E.2d 642,

643 (1991) (citation omitted and emphasis added); see also Tanner v. Rite Aid of West

Virginia, Inc., 194 W.Va. 643, 654 n.17, 461 S.E.2d 149, 160 n.17 (1995) (“Helpfulness

to the jury . . . is the touchstone of Rule 702”). At its essence, Rule 702 “‘is one of

admissibility rather than exclusion.’” In re Flood Litig. Coal River Watershed, 222 W. Va.

574, 581, 668 S.E.2d 203, 210 (2008) (quoting Arcoren v. United States, 929 F.2d 1235,

1239 (8th Cir. 1991)); see also San Francisco v. Wendy’s Int’l, Inc., 221 W. Va. 734, 741,

656 S.E.2d 485, 492 (2007) (“The Rules of Evidence embody a strong and undeniable

preference for admitting any evidence which has the potential for assisting the trier of

fact.”) (quoting Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 806 (3rd Cir.1997)).

In the instant case, it is beyond dispute that the evidence of Dr. Marshall

would have been helpful to the jury in making the critical determination of whether the

petitioner’s intent was to find and look at pornographic images or, as he contended, to see

15

West Virginia Rule of Evidence 702(a) provides that “[i]f scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise.”

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just how dark the “dark web” really is. Lack of intent was the entirety of the petitioner’s

defense, and in the absence of Dr. Marshall’s testimony there was nothing to support what

may have seemed, to a lay jury, to be a fanciful explanation of just what the petitioner was

doing at his computer. In this regard, although the State asserts that the exclusion of Dr.

Marshall’s testimony did not leave the petitioner without a defense because his father and

two friends testified as to the oddities and quirks in his behavior resulting from ASD, I

reject any argument that this is sufficient to establish harmless error. As any trial lawyer

knows, there is a significant difference between having an accused’s relatives and friends

testify about his or her medical condition and having a medical professional give that

testimony; an expert has what one court termed an “aura of authority experts often exude,

which can lead juries to give more weight to their testimony.” Elsayed Mukhtar v. Calif.

State Univ., Hayward, 299 F.3d 1053, 1063-64 (2002), overruled on other grounds by

United States v. Bacon, 979 F.3d 766 (2020). Further, as set forth in the Burr, Larsen and

Boyd cases, supra, an expert on ASD can explain the condition in depth and how a

“defendant’s mental disability prevents him from viewing the world as others do in terms

of acceptable social interactions.” Burr II, 948 A.2d at 631. Lay testimony, which is

generally confined to how a particular defendant appears “weird” to others, simply does

not compare to expert testimony which helps a jury “to understand[] Asperger’s syndrome

itself and to whether [the defendant] has it.” Boyd, 143 S.W.3d at 45.

15

Further, the evidence would have been helpful to the jury in assessing the

petitioner’s credibility because, as the expert would have testified, his ASD would (and

most definitely did) make him a terrible witness – drawing multiple admonishments from

the circuit court and even a threat to strike the entirety of his testimony. As stated supra, I

agree with the majority that in issuing these admonishments, the circuit court did not cross

the line of “unduly influencing jurors in the discharge of their duty as triers of the facts.”

Syl. Pt. 4, in part, State v. Rogers, 215 W. Va. 499, 600 S.E.2d 211 (2004); see also State v.

Wotring, 167 W.Va. 104, 115, 279 S.E.2d 182, 190 (1981). However, the admonishments,

coupled with the petitioner’s testimony, which could most kindly described as discursive,

were extremely prejudicial in the absence of expert testimony as to how the petitioner’s

ASD-related mannerisms could affect his testimony and thus “surprise or inexplicably

alienate the jury.” Burr II, 948 A.2d at 633.

Finally, in discussing the petitioner’s assignment of error concerning the

circuit court’s admonishments, the majority has made the sweeping pronouncement,

elevated to a syllabus point, that “[t]he trial court has an obligation to all parties to ensure

that the trial is conducted in a fair manner. This obligation includes a duty to supervise the

direct and cross-examination of each party’s witnesses.” Not surprisingly, the majority

cites no authority for this proposition, as it is wholly divorced from the realities of trial

practice. At trial, decisions as to what witnesses to call, how best to elicit information from

them, and/or how best to discredit their testimony, are matters of strategy for the advocates,

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not for the trial judge. The judge’s role is to rule on motions, objections, and issues of law,

and – in limited circumstances – to pose clarifying questions. None of this constitutes

“supervision” of direct and cross-examination, and I fear that a literal reading of the

majority’s new syllabus point will invite judicial interference in the presentation of

evidence, thus crossing a line this Court has firmly established:

The trial judge in a criminal trial must consistently be

aware that he occupies a unique position in the minds of the

jurors and is capable, because of his position, of unduly

influencing jurors in the discharge of their duty as triers of the

facts. This Court has consistently required trial judges not to

intimate an opinion on any fact in issue in any manner. In

criminal cases, we have frequently held that conduct of the trial

judge which indicates his opinion on any material matter will

result in a guilty verdict being set aside and a new trial

awarded.

Rogers, 215 W. Va. at 504-05, 600 S.E.2d at 216-17 (citations omitted). 16

16

This venerable doctrine dates back into the nineteenth century. In State v. Staley,

45 W. Va. 792, 32 S.E. 198 (1899), we wrote that “[t]he courts have ever been exceedingly

careful of the province of the jury in the trial of cases.” Id. at __, 32 S.E.2d at 202. We

further noted the existence of numerous cases which

evince a jealous care to watch over and protect the legitimate

powers of the jury. They show that the court must be very

careful not to overstep the line which separates law from fact.

They establish the doctrine that, when the evidence is parol,

any opinion as to the weight, effect, or sufficiency of the

evidence submitted to the jury, any assumption of a fact as

proven, or even an intimation that written evidence states

matters which it does not state, will be an invasion of the

province of the jury.

Id.

17

For all of these reasons, I respectfully dissent. I am authorized to state that

Chief Justice Hutchison joins in this dissenting opinion.

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