State of West Virginia v. Keith Allen Wood

FILED

April 10, 2023

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. 21-0964 (Brooke County No. 18-F-21)

Keith Allen Wood,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Keith Allen Wood appeals the November 22, 2021, order sentencing him on two

counts of sexual assault in the first degree and two counts of sexual abuse by a guardian. 1

Petitioner’s female victim, A.R.R., 2 was seven years old at the time of the assaults/abuse. Upon

our review, we determine that oral argument is unnecessary and that a memorandum decision

affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21.

At petitioner’s trial, testimony was produced that petitioner sexually assaulted A.R.R. when

the child was alone with petitioner in his house. A jury found petitioner guilty on all counts. The

trial court sentenced petitioner to (1) not less than 25 nor more than 100 years in prison and a

$5,000 fine on each of the two counts of sexual assault in the first degree, and (2) not less than 10

nor more than 20 years in prison and a $5,000 fine on each of the two counts of sexual abuse by a

guardian. The sentences were ordered to run consecutively and to be followed by 25 years of

supervised release.

Petitioner now appeals raising seven assignments of error. Petitioner first argues that he

was denied his right to a fair trial when the trial court barred the testimony of his expert witness,

Donald Kissinger, Ph.D. Petitioner claims Dr. Kissinger would have testified that petitioner did

not have a psychological disorder or any sexual interest in children, was not at risk with children,

did not fit the psychological profile of a sexual offender, and was at low risk for committing a

sexual offense against a child. Petitioner claims this evidence was critical to the jury’s ability to

assess his credibility and that the jury was instructed that character trait evidence inconsistent with

1

Petitioner appears by counsel William E. Galloway. Respondent appears by Attorney

General Patrick Morrisey and Assistant Attorney General Andrea R. Nease Proper.

2

Because of the sensitive nature of the facts alleged in this case, we use the initials of the

affected parties. See State v. Edward Charles L., 183 W. Va. 641, 645 n. 1, 398 S.E.2d 123, 127

n. 1 (1990) (“Consistent with our practice in cases involving sensitive matters, we use the victim’s

initials. Since, in this case, the victim . . . [is] related to the appellant, we have referred to the

appellant by his last name initial.” (citations omitted)); see also W. Va. R. App. P. 40(e).

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the crime charged can give rise to reasonable doubt. The circuit court found Dr. Kissinger’s

opinions to be irrelevant and inadmissible because they addressed whether petitioner had a

proclivity to sexually abuse children in the future rather than whether he committed the past crimes

of which he was charged.

“‘The West Virginia Rules of Evidence . . . allocate significant discretion to the trial court

in making evidentiary . . . 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 . . .

rulings of the circuit court under an abuse of discretion standard.’ Syllabus Point 1, in part,

McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).” Syl. Pt. 9, Smith v. First Cmty.

Bancshares, Inc., 212 W. Va. 809, 575 S.E.2d 419 (2002).

We find the circuit court did not abuse its discretion in excluding Dr. Kissinger’s testimony.

The testimony was not relevant because it went only to petitioner’s future potential to sexually

assault children and not to his past behavior. As for petitioner’s reliance on State v. Beck, 167 W.

Va. 830, 840, 286 S.E.2d 234, 241 (1981), in support of his claim that a defendant may offer expert

character evidence testimony showing that he is not a sexual psychopath, it is misplaced as the

Beck court was not asked to determine whether proclivity testimony was relevant or admissible.

Id. at 839-40, 286 S.E.2d at 240-41. Accordingly, we find no error.

In petitioner’s second assignment of error, he argues that he was denied his right to a fair

trial when the trial court erroneously elevated A.R.R. to a “Super Witness” by instructing the jury,

over petitioner’s objection, as follows:

You are instructed that you may find the Defendant guilty of a sexual offense based

on the uncorroborated testimony of the complaining witness unless you find the

complaining witness is inherently incredible. The Court instructs the jury that

inherent incredibility is more than a contradiction and lack of corroboration.

Inherent incredibility thus requires a determination by the jury of complete

untrustworthiness. The Court instructs the jury that if they believe from the

evidence the crimes charged against [petitioner] rests alone on the testimony of the

complaining witness, then the jury should scrutinize such testimony with care and

caution. You are the sole judge of credibility of each witness.

Petitioner states that the circuit court refused to give a similar instruction in favor of petitioner’s

testimony.

“[I]f an objection to a jury instruction is a challenge to a trial court’s statement of the legal

standard, this Court will exercise de novo review.” State v. Guthrie, 194 W. Va. 657, 671, 461

S.E.2d 163, 177 (1995). However, “when an objection to a jury instruction involves the trial court’s

expression and formulation of the jury charge, this Court will review under an abuse of discretion

standard.” Id.

[W]e review jury instructions to determine whether, taken as a whole and in light

of the evidence, they mislead the jury or state the law incorrectly to the prejudice

of the objecting party. So long as they do not, we review the formulation of the

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instructions and the choice of language for an abuse of discretion. We will reverse

only if the instructions are incorrect as a matter of law or capable of confusing and

thereby misleading the jury.

Id. at 671-72, 461 S.E.2d at 177-78. We find the challenged instruction to be a correct statement

of the law in light of the jury instructions in State v. McPherson, 179 W. Va. 612, 371 S.E.2d 333

(1988), and State v. Haid, 228 W. Va. 510, 721 S.E.2d 529 (2011), on which the trial court relied.

In McPherson, we approved an instruction that provided:

[T]he Court instructs the jury that if you believe from the evidence in this case that

the crime charged against the defendant rests alone on the testimony of the

prosecuting witness, . . . then you should scrutinize her testimony with care and

caution; although a conviction of a sexual offense may be obtained on the

uncorroborated testimony of the victim, unless such testimony is inherently

incredible.

179 W. Va. at 616, 371 S.E.2d at 337. Similarly, in Haid, we approved the following instruction:

A conviction for the crimes charged by the indictment may be obtained or rest on

the uncorroborated testimony of the alleged victim, unless you determine that such

testimony is inherently incredible. The term “inherently incredible” means more

than a contradiction, inconsistency or lack of corroboration. For the jury to decide

that testimony is inherently incredible, you must decide that there has been a

showing of complete untrustworthiness. In this regard, you should scrutinize her

testimony with care and cause.

Id. at 516, 721 S.E.2d at 535. The Haid Court found that:

The instruction in McPherson and the instruction given in the case at bar

are quite similar. Both correctly state that a conviction for the sexual offenses so

charged may be had on the uncorroborated testimony of the victim, unless the

testimony of the victim is inherently incredible. Both instructions direct the jury to

assess the credibility of the prosecuting witness with care and caution. The circuit

judge’s decision to instruct the jury, without the addition of the language as

requested by the petitioner, was not an abuse of discretion, inasmuch as the

instruction was a correct statement of the law, and more particularly, when we

consider the entirety of the jury charge as a whole.

Id. at 521, 721 S.E.2d at 540. Here, because the trial court’s instruction was comparable to those

upheld in McPherson and Haid, we find no error.

In his third assignment of error, petitioner again challenges the trial court’s denial of his

request for a reasonable doubt jury instruction ending with the phrase, “the reasonable doubt

requirement is met if the evidence is such that the finding of guilt is based on a moral certainty.”

Petitioner cites to State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967), which provides that

“the reasonable doubt requirement is met if the evidence is such that the finding of guilt is based

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on moral certainty. 30 Am. Jur.2d, Evidence, Section 1125.” 151 W. Va. at 805, 155 S.E.2d at 855.

The trial court rejected this language claiming that the phrase “moral certainty” was ambiguous. It

specifically precluded petitioner’s counsel from using the term “moral certainty” in closing

argument.

We find no error as the instructions given by the trial court sufficiently defined reasonable

doubt and were not misleading. We have said:

A trial court’s instructions to the jury must be a correct statement of the law

and supported by the evidence. Jury instructions are reviewed by determining

whether the charge, reviewed as a whole, sufficiently instructed the jury so they

understood the issues involved and were not mislead by the law. A jury instruction

cannot be dissected on appeal; instead, the entire instruction is looked at when

determining its accuracy. A trial court, therefore, has broad discretion in

formulating its charge to the jury, so long as the charge accurately reflects the law.

Deference is given to a trial court’s discretion concerning the specific wording of

the instruction, and the precise extent and character of any specific instruction will

be reviewed only for an abuse of discretion.

Guthrie, 194 W. Va. at 169-70, 461 S.E.2d at 663-64, Syl. Pt. 4. Here, the trial court found that

the addition of the phase “moral certainty” would create “a whole other level of ambiguity for this

jury to deal with.” Importantly, the trial court instructed the jury that petitioner “is never to be

convicted on mere suspicion or conjecture” and, if in doubt, “the jury should of course adopt the

conclusion of innocence.” The court further instructed that “guilt must be established by strong

and sufficient evidence to remove from the minds of the jury every reasonable doubt to the

contrary.” These instructions were correct as a matter of law. Thus, the court’s decision not to give

petitioner’s requested reasonable doubt instruction did not “seriously impair” his ability to present

his defense.

In his fourth assignment of error, petitioner argues that he was denied the right to a fair

trial when the trial court denied his request to redact hearsay statements made by A.R.R. and her

father to medical personnel that were recorded in A.R.R.’s medical record. For instance, the nurse

who examined A.R.R. wrote the examination was “concerning” without further elaboration.

Petitioner argues that those statements were not necessary for treatment purposes and, therefore,

the medical records exception to the hearsay rule, found in West Virginia Rule of Evidence 803(4),

did not apply.

We disagree and find that the trial court acted within the bounds of its discretion. Smith,

212 W. Va. at 812, 575 S.E.2d at 422, Syl. Pt. 9. The trial court properly admitted the victim’s

unredacted medical records under the business and medical records exceptions found in Rule

803(4). That exception allows the admission of records containing a “statement that: (A) is made

for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical

history; past or present symptoms or sensations; their inception; or their general cause[.].” Further,

in Syllabus Point 6 of State v. Payne, 225 W. Va. 602, 694 S.E.2d 935 (2010), we noted that such

statements in medical records are admissible:

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When a child sexual abuse or assault victim is examined by a forensic nurse

trained in sexual assault examination, the nurse’s testimony regarding statements

made by the child during the examination is admissible at trial under the medical

diagnosis or treatment exception to the hearsay rule, West Virginia Rule of

Evidence 803(4), if the declarant’s motive for making the statement was consistent

with the purposes of promoting treatment and the content of the statement was

reasonably relied upon by the nurse for treatment. In determining whether the

statement was made for purposes of promoting treatment, such testimony is

admissible if the evidence was gathered for a dual medical and forensic purpose,

but it is inadmissible if the evidence was gathered strictly for investigative or

forensic purposes.

Additionally, Rule 803(6) provides that a record of an “act, event, condition, opinion, or

diagnosis” is admissible if

(A) the record was made at or near the time by--or from information transmitted

by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business,

organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another

qualified witness, or by a certification that complies with Rule 902(11) or (12) or

with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of

preparation indicate a lack of trustworthiness.

The statement-containing records petitioner cites fall clearly within these hearsay

exceptions. The examination occurred for the purpose of treatment, i.e., A.R.R. was sent to the

hospital for a physical examination in light of her claim of sexual abuse, and the hospital records

document contemporaneous statements by those who examined A.R.R. regarding their diagnosis.

Moreover, the trial court noted that, for the medical documents to be complete, they needed to be

admitted in their entirety. Under Rule 106 of the West Virginia Rules of Evidence, “[i]f a party

introduces all or part of a writing or recorded statement, an adverse party my request the

introduction, at the time, of any other part—or any other writing or recorded statement—that in

fairness ought to be considered at the same time.” Thus, under Rule 106, the court properly found

that the records were admissible in their entirety. Therefore, we find no error.

In his fifth assignment of error, petitioner argues that he was denied his right to a fair trial

due to the trial court’s plain error in permitting “large, burly bikers wearing their BACA (“Bikers

Against Child Abuse”) insignia” to sit in the courtroom in view of the jury. Petitioner contends

that the bikers’ presence likely influenced the jury and indirectly labeled him as a child sex

offender.

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It is within a trial court’s discretion to determine, under a clear and convincing standard,

whether or not a jury was subjected to an improper influence that affected their verdict. See Syl.

Pt. 1, Lister v. Ballard, 237 W. Va. 34, 784 S.E.2d 733 (2016). Petitioner presents no evidence that

the jury was unduly influenced by the presence of the bikers. Further petitioner failed to object to

their presence or move that the bikers be excluded from the courtroom. Accordingly, we review

this assignment of error under a plain error analysis. “To trigger application of the plain error

doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4)

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt.

7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Petitioner fails to satisfy this standard.

“Where a defendant moves to exclude members of the public from observing his jury trial, the

ultimate question is whether, if the trial is left open, there is a clear likelihood that there will be

irreparable damage to the defendant’s right to a fair trial.” Syl. Pt. 7, State v. Richey, 171 W. Va.

342, 298 S.E.2d 879 (1982). Petitioner fails to show how the bikers’ mere presence impeded his

right to a fair trial. Moreover, it was petitioner who drew attention to the bikers when his counsel

asked the victim and her mother if they knew the bikers, and twice pointed the bikers out to the

jury. Thus, petitioner cannot show, under a plain error standard, that the bikers’ presence in the

courtroom affected his substantial rights or seriously affected the fairness, integrity, or public

reputation of his judicial proceedings.

Petitioner’s sixth assignment of error raises a double jeopardy challenge. Petitioner’s first

trial was declared a mistrial due to his counsel’s improper comments on opening. Thereafter, the

trial court denied petitioner’s motion to dismiss all charges on double jeopardy grounds. “[T]he

circuit court’s decision to grant or deny a motion for mistrial is reviewed under an abuse of

discretion standard.” State v. Thornton, 228 W.Va. 449, 459, 720 S.E.2d 572, 582 (2011).

West Virginia’s double jeopardy clause provides, in part, that “[n]o person shall be . . .

twice put in jeopardy of life or liberty for the same offence.” W. Va. Const. art. III, § 5. A trial

court may grant a mistrial, and avoid the double jeopardy clause, only if there is a “manifest

necessity” to terminate the trial. State v. Williams, 172 W. Va. 295, 304, 305 S.E.2d 251, 260

(1983).

The term “manifest necessity’ covers a broad spectrum of situations which in some

instances bear little relationship to the literal meaning of this phrase. This is

particularly true in cases where the conduct of one party at trial has created

sufficient jury prejudice toward the other that it is unfair to continue with the trial

and a mistrial is warranted.

Keller v. Ferguson, 177 W. Va. 616, 620, 355 S.E.2d 405, 409 (1987). Here, petitioner’s right

against double jeopardy was not violated because, at his first trial, his counsel created a manifest

necessity for the mistrial during his opening statement when he repeatedly referenced evidence

that the trial court had clearly ruled inadmissible. On this record, we find no error in the trial court’s

refusal to dismiss petitioner’s charges on double jeopardy grounds before his second trial.

In his seventh and final assignment of error, petitioner argues that the trial court abused its

discretion in sentencing him to consecutive sentences and in denying his request for probation.

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Sentencing orders are reviewed “under a deferential abuse of discretion standard, unless the order

violates statutory or constitutional commands.” Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271,

496 S.E.2d 221 (1997). Sentences are not subject to appellate review “if within statutory limits

and if not based on some [im]permissible factor[.]” Syl. Pt. 4, in part, State v. Goodnight, 169 W.

Va. 366, 287 S.E.2d 504 (1982). Sexual assault is a violent crime. See State v. Hoyle, 242 W. Va.

599, 615, 836 S.E.2d 817, 833 (2019). Moreover, petitioner’s victim was a seven-year-old child.

Finally, under West Virginia Code § 61-11-21, the presumption is that criminal sentences will run

consecutively. Given petitioner’s heinous acts against a child, we find no abuse of discretion in

the court’s denial of probation and imposition of consecutive sentences.

Affirmed.

ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice C. Haley Bunn

DISSENTING:

Wooton, Justice, dissenting:

I would have set this case for oral argument on the Rule 19 docket to thoroughly examine

the following three assigned errors raised by petitioner Keith Allen Wood: 1) whether the circuit

court erred in excluding petitioner’s expert; 2) whether the circuit court erred in giving a “super

witness” instruction over petitioner’s objection; and 3) whether the circuit court committed plain

error in allowing the courtroom to be filled with bikers wearing BACA (“Bikers Against Child

Abuse”) buttons. Having reviewed the parties’ briefs and the issues raised therein, I believe a

formal opinion of this Court was warranted – not a memorandum decision. Accordingly, I

respectfully dissent.

First, petitioner argues that the circuit court erred in excluding the testimony of his expert

witness, Donald Kissinger, Ph.D., a psychiatrist. Dr. Kissinger would have testified that his

examination of petitioner showed that petitioner did not have a psychological disorder or any

sexual interest in children, was not at risk with children, did not fit the psychological profile of a

sexual offender, and was at low risk for committing a sexual offense against a child. Petitioner

argued that he had a right to offer evidence of an inconsistent character trait, see W. Va. R. Evid.

404(a)(2)(A), 3 and the right to an instruction that such evidence can give rise to reasonable doubt.

3

West Virginia Rule of Evidence 404(a)(2)(A) provides that “a defendant may offer

evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may

offer evidence to rebut it[.]” Id.; see Syl. Pt. 7, State v. Benny W., 242 W. Va. 618, 837 S.E.2d 679

(Continued . . .)

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Petitioner argues that in this case, where the victim’s testimony was uncorroborated, Dr.

Kissinger’s testimony was a critical linchpin of the defense.

In State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981), we recognized the admissibility

of a defendant’s psychological examination indicating that it would be unlikely petitioner would

have committed the charge sexual offense, characterizing this evidence as a “species of character

testimony.” Id. at 839 n.8, 286 S.E.2d at 241 n.8. We stated that

[t]he trial court’s initial decision to permit the psychological

testimony was apparently based on authority that permits

psychological testimony in regard to whether the defendant’s

psychological profile would suggest that he has predilections to

commit the specific crime charged. See generally, C. McCormick,

Evidence Chapter 17 (2d ed. 1972). This type of evidence would

appear to be mainly confined to sexually deviant crimes. The

leading case is Freeman v. State, 486 P.2d 967 (Alaska 1971):

“It appears to be uniformly accepted that psychiatric

evidence showing that an individual accused of

sexually deviant misconduct is not a sexual

psychopath should properly be regarded to be

character evidence. See People v. Spigno, 156

Cal.App.2d 279, 319 P.2d 458 (1957); State v.

Cypher, 92 Idaho 159, 438 P.2d 904, 916 (1968);

State v. Sinnott, 24 N.J. 408, 132 A.2d 298, 304–311

(1957); Ward v. Turner, 12 Utah 2d 310, 366 P.2d

72, 74 (1961); State v. Bromley, 72 Wash.2d 150, 432

P.2d 568 (1967); See also Curran, [Expert

Psychiatric Evidence of Personality Traits, 103

U.Pa.L.Rev. 999 (1955) ] supra note 4; Falknor &

Steffan, [Evidence of Character: From the “Crucible

of the Community” to the “Couch of the Psychiatrist,

102 U.Pa.L.Rev. 980 (1954) ] supra note 4; and

Deering’s Calif.Ev.Code Ann. § 1102, at 9 (1966)

(Law Revision Commission comment).” 486 P.2d at

972 note 8.

Beck, 167 W. Va. at 839 n.8, 286 S.E.2d at 241 n.8.

In the instant case, the circuit court excluded the expert’s testimony on the ground that the

testimony went solely to the possibility of future harm and was irrelevant to the question of whether

he had perpetrated the offenses charged in the indictment. In my view, the court’s reasoning was

illogical and misguided. This testimony was highly probative of petitioner’s defense, which was

(2019) (“Under Rule 404(a)(2)(A), of the West Virginia Rules of Evidence, a defendant in a

criminal prosecution may offer evidence of the defendant's pertinent character trait.”).

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that he was not a pedophile and did not assault and abuse this child. See State v. Derr, 192 W. Va.

165, 178, 451 S.E.2d 731, 744 (1994) (“Rule 401 defines relevant evidence in terms of probability.

The relevant inquiry is whether a reasonable person, with some experience in the everyday world,

would believe that the evidence might be helpful in determining the falsity or truth of any fact of

consequence.”). The expert’s testimony would have assisted the trier of fact in evaluating

petitioner’s defense, and the probative value of the evidence was not “substantially outweighed by

a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” W. Va. R. Evid. 403.

Second, petitioner argued that the circuit court erred in giving the jury a “super witness”

instruction over his objection. The instruction given to the jury was as follows:

You are instructed that you may find the Defendant guilty of a

sexual offense based on the uncorroborated testimony of the

complaining witness unless you find the complaining witness is

inherently incredible. The Court instructs the jury that inherent

incredibility is more than a contradiction and lack of corroboration.

Inherent incredibility thus requires a determination by the jury of

complete untrustworthiness. The Court instructs the jury that if they

believe from the evidence the crimes charged against [petitioner]

rests alone on the testimony of the complaining witness, then the

jury should scrutinize such testimony with care and caution. You are

the sole judge of credibility of each witness.

This instruction was based upon the law enunciated by Justice Miller in syllabus point five of Beck:

“A conviction for any sexual offense may be obtained on the uncorroborated testimony of the

victim, unless such testimony is inherently incredible, the credibility is a question for the jury.”

167 W. Va. at 831, 286 S.E.2d at 236, Syl. Pt. 5.

Subsequently, this Court revisited the Beck instruction in State v. Haid, 228 W. Va. 510,

721 S.E.2d 529 (2011), wherein we stated that

[w]hile the instruction does not constitute prejudicial error

under the particular circumstances of this case, we do feel that the

following instruction is a better statement of law in sexual assault

cases where the victim’s testimony is uncorroborated:

The court instructs the jury that the defendant may be

convicted on the uncorroborated testimony of the

alleged victim in this case. However, you should

scrutinize the alleged victim’s testimony with care

and caution. Although a conviction of a sexual

offense may be obtained on the uncorroborated

testimony of the alleged victim, you must be

convinced beyond a reasonable doubt that the

defendant is guilty. If you are not convinced beyond

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a reasonable doubt of the defendant's guilt, based

upon the uncorroborated testimony of the alleged

victim, then you shall find the defendant not guilty.

Id. at 522, 721 S.E.2d at 541. Under the facts and circumstances of this case, where a Beck

instruction was given rather than the preferred instruction established in Haid, I believe a closer

examination by this Court is warranted into the issue of possible prejudice to petitioner. See id.

Finally, petitioner argues that he was denied his right to a fair trial when the circuit court

allowed bikers wearing BACA (“Bikers Against Child Abuse”) insignia to sit in the courtroom in

the jury’s view. On appeal, petitioner argues that the bikers’ presence indirectly labeled him as a

child sex offender and improperly influenced the jury, a claim this Court can only address on plain

error because petitioner failed to object below to the presence of the bikers. In this regard, “[t]o

trigger application of the plain error doctrine, there must be (1) an error; (2) that is plain; (3) that

affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of

the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

Our law provides that “[w]here a defendant moves to exclude members of the public from

observing his jury trial, the ultimate question is whether, if the trial is left open, there is a clear

likelihood that there will be irreparable damage to the defendant’s right to a fair trial.” Syl. Pt. 7,

State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982). I strongly disagree with the majority’s

determination that the presence of the biker’s wearing BACA insignias failed to constitute plain

error as it did not cause “irreparable damage” to petitioner’s right to a fair trial. By allowing a

group of people to sit in the courtroom and lobby for a conviction – which is exactly what occurred

– the circuit court seriously jeopardized petitioner’s right to be tried by jurors who would approach

their task with open minds, uninfluenced by outside messaging. This was plain error that

undoubtedly affected petitioner’s substantial rights and seriously affected the fairness, integrity,

or public reputation of his judicial proceedings. See Miller, 194 W. Va. at 7, 459 S.E.2d at 118,

Syl. Pt. 7.

For all the foregoing reasons, I respectfully dissent.

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