DAVIS, Justice:
In this criminal appeal, the petitioner herein and defendant below, Lillie Mae Trail ("Ms. Trail"), challenges her conviction by jury of murder in the first degree and her sentence of life without mercy.
On November 22, 1994, Ms. Trail's husband, Chester Trail, was hunting in the woods when he was shot multiple times and killed. Ms. Trail's subsequent trial commenced on October 6, 1997, in the Circuit Court of Lincoln County, and ended on October 27, 1997. During the course of the bifurcated trial, a jury first found Ms. Trail guilty of murder in the first degree at the close of the guilt phase.
Thereafter, in August 1998, Ms. Trail filed her post-trial motion for acquittal or, in the alternative, for a new trial. The motion alleged juror misconduct and various trial errors. The circuit court held a hearing on the alleged jury misconduct, as required by Syllabus point 2 of State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995), on November 5, 1998. By summary order entered several years later, on June 8, 2006,
By subsequent order entered on July 15, 2014,
Ms Trail's case is before this Court on appeal from an order denying her motion seeking a new trial or, in the alternative, a
Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Additionally, we note that "[t]he Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence." State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (per curiam) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). Accord State v. Minigh, 224 W.Va. 112, 124, 680 S.E.2d 127, 139 (2009) (per curiam).
With due regard for these general standards for our review, we will address the issues raised by Ms. Trail. We will observe additional standards for our review of particular issues she has raised as necessary below.
Ms. Trail herein raises numerous errors to challenge her conviction of murder in the first degree and her sentence of life without mercy. We will address in turn each of the errors she has raised.
Following the conclusion of the trial, Ms. Trail's lawyer received information that a juror, Teresa Nunley ("Juror Nunley"), may have discussed the case with a co-worker during the trial. On November 5, 1998, the circuit court conducted a Remmer hearing
During the Remmer hearing, Linda Shamblin ("Ms. Shamblin"), the co-worker with whom Juror Nunley allegedly had engaged in an improper communication, testified that her daughter previously had been married to Ms. Trail's son. Through Ms. Shamblin's testimony, it became apparent that Ms. Shamblin and Ms. Trail did not have a friendly relationship. It also was revealed that Ms. Shamblin did not personally know Juror Nunley and had no authority over Juror Nunley at their place of employment. Ms. Shamblin testified that she had heard Juror Nunley was sitting on Ms. Trail's jury. According to Ms. Shamblin, one morning while the trial was ongoing she encountered Juror Nunley in their workplace break room and inquired "[a]re you on [Ms. Trail's] trial?" Ms. Shamblin testified that Juror Nunley responded that she was "not allowed to discuss that," and the conversation ended.
Juror Nunley's testimony differed from Ms. Shamblin's. According to Juror Nunley,
The third and final person to testify at the Remmer hearing was Misty Holtzman ("Ms. Holtzman), another of Juror Nunley's coworkers. Ms. Holtzman, who is a friend of the defendant, Ms. Trail, worked alongside Juror Nunley at their place of employment. She testified that Juror Nunley told her of the encounter with Ms. Shamblin. According to Ms. Holtzman's testimony, Juror Nunley described the encounter as being initiated when Juror Nunley approached Ms. Shamblin and inquired about her knowledge of Ms. Trail. The version of the encounter related by Ms. Holtzman was that Ms. Shamblin informed Juror Nunley of the history of problems between Ms. Shamblin's daughter and Ms. Trail's son, and that Ms. Shamblin encouraged Juror Nunley to "say that [Ms. Trail] is guilty because she was guilty as sin." Ms. Holtzman testified to her belief that Juror Nunley had been influenced by the conversation with Ms. Shamblin based upon Ms. Holtzman's observations of Juror Nunley's facial expressions as she described the encounter.
Following the Remmer hearing, by order entered on January 8, 2007, the circuit court found insufficient evidence of juror misconduct to warrant granting a new trial on this basis. On appeal, Ms. Trail contends that the circuit court erred by placing the burden of proof upon her to establish juror misconduct without first determining whether the source of the improper juror contact was an "interested party." The State responds that the circuit court properly applied the standards set out by this Court in Sutphin, 195 W.Va. 551, 466 S.E.2d 402.
At the outset, we note that our review of this issue is for an abuse of discretion:
Syl. pt. 1, Sutphin, 195 W.Va. 551, 466 S.E.2d 402. This Court is mindful that juror misconduct is an issue not to be taken lightly.
Sutphin, 195 W.Va. at 557, 466 S.E.2d at 408. Nevertheless, the mere allegation of juror misconduct is insufficient to warrant a new trial. First, their must be proof that some improper event has occurred. "Misconduct on the part of the jury as grounds for a new trial is not presumed but must be fully proved by the moving party." 58 Am. Jr. 2d New Trial § 143, at 195 (2012) (footnote omitted). When misconduct is established, a new trial is warranted where prejudice is established. "Misconduct of a juror, prejudicial to the complaining party, is sufficient reason to direct a mistrial or to set aside a verdict returned by the jury of which he is a member." Syl. pt. 3, Legg v. Jones, 126 W.Va. 757,
There is no dispute that a communication about Ms. Trail was had between Juror Nunley and Ms. Shamblin during the course of the trial. The issue raised by Ms. Trail is whether the circuit court erred in failing to find Ms. Shamblin was an "interested party" to Ms. Trail's criminal action such that Ms. Trail was entitled to a presumption of prejudice:
Legg v. Jones, 126 W.Va. 757, 763-64, 30 S.E.2d 76, 80 (1944) (emphasis added). See also Bluestone Indus., Inc. v. Keneda, 232 W.Va. 139, 143, 751 S.E.2d 25, 29 (2013) (per curiam) ("Based on the Court's holding in Legg, we begin our analysis with two inquires. First, did the conversation between Mr. Cline and Juror Number Six raise a presumption of prejudice? Second, if a presumption of prejudice was raised, did the defendants present evidence rebutting it?"). In other words,
Sutphin, 195 W.Va. at 557, 466 S.E.2d at 408. The circuit court implicitly concluded that Ms. Shamblin was a stranger to the proceedings and placed the burden of establishing prejudice on Ms. Trail. Under the facts presented in this case, we find no error.
Ms. Trail argues that Ms. Shamblin is an "interested party" by virtue of her history with Ms. Trail, i.e., the fact that Ms. Shamblin's daughter previously had been married to Ms. Trail's son and Ms. Shamblin's "ill will"
For example, in Sutphin the Court concluded that misconduct had been induced by a stranger where the juror's contact with the defendant's cousin "was not procured by the State or by the Defendant." 195 W.Va. at 559-60, 466 S.E.2d at 410-11 (emphasis added).
Legg, 126 W.Va. 757, 763, 30 S.E.2d 76, 79-80 (emphasis added). See also Bluestone Indus., Inc., 232 W.Va. 139, 143, 751 S.E.2d 25, 29 (2013) (indicating trial representative of corporate defendant was an interested party); Haight v. Goin, 176 W.Va. 562, 564, 346 S.E.2d 353, 355 (1986) ("In Legg[, 126 W.Va. 757, 30 S.E.2d 76], we discussed the necessity of proving prejudice where the alleged misconduct does not involve a party." (emphasis added)); Griffin v. Tomlinson, 155 Va. 150, 153-54, 154 S.E. 483, 484 (1930) ("[A]lmost all of the courts and text writers are agreed that for reasons of public policy the verdict rendered by a jury, any of whose members has been treated or entertained by one having an interest in the litigation, must be set aside. The same rule applies to the acts of agents or attorneys of the parties litigant." (emphasis added)). Likewise, the West Virginia Trial Court Rules expressly prohibit a party to litigation, or the agent or attorney for a party, from communicating with a member of the jury. See W. Va. T.C.R. 4.09 ("No party, nor his agent or attorney, shall communicate or attempt to communicate with any member of the jury ... until that juror has been excused from further service for a particular term of court[.]" (emphasis added)).
In this case, Ms. Shamblin clearly was not a party to Ms. Trail's litigation, or acting as an agent or representative of a party. Rather than being an interested party, Ms. Shamblin simply was a member of the general public who appeared to be interested in the proceedings. This Court previously has found that a person's concern for a defendant does not make them an "interested party" to the litigation. In State v. Daniel, 182 W.Va. 643, 391 S.E.2d 90 (1990), a juror was contacted by a businesswoman, Betty Kelly, and encouraged to do what she could to help the defendant. Ms. Kelly was in the used car business and implied that she would give the juror's son a break on a used car. The Court found Ms. Kelly was not an interested party, commenting that, "[i]n the case now before us, Betty Kelly had no interest in the trial apart from her apparent concern for the appellant. No evidence was presented that the appellant induced her to act in his behalf ..." Daniel, 182 W.Va. at 647, 391 S.E.2d at 94. In the case sub judice, Ms. Shamblin's interest differed from that addressed in Daniel insofar as it appears to have been negative to, rather than in favor of, the defendant. Nevertheless, such a concern does not elevate her status to that of an "interested party." Therefore, her communication with Ms. Nunley created no presumption of prejudice that the state was required to overcome.
Syl. pt. 3, Sutphin, 195 W.Va. 551, 466 S.E.2d 402. See generally 58 Am. Jr. 2d New Trial § 216, at 255 (2012) ("[I]n both civil and criminal cases, a new trial generally will not be granted because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party or that any injustice or prejudice resulted to the complaining party. A new trial will be granted only where a conversation between a third person and a juror is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than was presented by the evidence in the courtroom or is of such a nature as is calculated to result in harm to a party on trial." (footnote omitted)).
Indeed, the United States Supreme Court has observed that,
Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).
In the instant case the trial court properly conducted a Remmer hearing and evaluated the evidence presented by Ms. Trail. Having the advantage of observing the witnesses and making appropriate credibility determinations,
Ms. Trail next argues that the trial court erred by allowing autopsy and crime scene photographs to be admitted during the mercy phase of her trial.
The admissibility of gruesome photographs previously has been addressed by this Court in State v. Derr, 192 W.Va. 165, 168, 451 S.E.2d 731, 734 (1994). The Derr Court explained that "[t]he admissibility of photographs over a gruesome objection must be determined on a case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence." Syl. pt. 8, id. Moreover,
Syl. pt. 10, Derr, 192 W.Va. 165, 451 S.E.2d 731.
The trial in Derr does not appear to have been bifurcated, thus the standards for the admission of gruesome photographs announced therein would apply to the guilt phase of a prosecution. The instant case is one of first impression in asking this Court to determine whether the same high standard announced in Derr applies also to the admission of gruesome photographs during the mercy phase of a bifurcated trial.
(Emphasis added).
While Derr and McLaughlin both are clear that the proper analysis for determining the admissibility of gruesome photographs involves an evaluation under Rules 401 and 403, McLaughlin additionally establishes that "[t]he type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendant's guilt or innocence." Syl. pt. 7, in part, McLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (emphasis added).
In ruling to admit the offered photographs into evidence during the mercy phase of the case sub judice, the circuit court explained that, "while I didn't allow the autopsy photos or any other crime scene photos in, on the issue of guilt or no guilt, I believe that they are relevant, and that there [sic] probative value outweighs the prejudicial impact they would have on the issue of mercy or no mercy." We find no abuse of discretion in the circuit court's ruling.
The West Virginia Slayer Statute is found at W. Va.Code § 42-4-2 (1931) (Repl. Vol. 2014). The statute prohibits a person who has been convicted of a felonious killing, or of conspiracy in the killing of another, from receiving funds or property from the victim:
W. Va.Code § 42-4-2. Upon motion of the State, and over Ms. Trail's objection, the circuit court took judicial notice of the statute and read its full text to the jury during the guilt phase of the trial.
Ms. Trail argues that the circuit court erred by reading the "Slayer Statute" to the jury. She contends that reading the statute resulted in unfair prejudice to her insofar as the statute was irrelevant, misleading, and created confusion. This is so, she argues, because the statute was read when she had
This issue challenges the circuit court's admission of evidence; therefore, our review is for an abuse of discretion. "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." Syl. pt. 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
It is well established that,
State v. Wade, 200 W.Va. 637, 652, 490 S.E.2d 724, 739 (1997). In discussing Rule 401, this Court has elaborated that,
McDougal v. McCammon, 193 W.Va. 229, 236, 455 S.E.2d 788, 795. Finally, this Court has clarified that,
Syl. pt. 9, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
A significant portion of the State's case-in-chief was directed toward establishing the existence of numerous policies of insurance under which the victim was the insured and Ms. Trail was the beneficiary.
Similarly, the following is an excerpt of defense counsel's cross examination of a representative of Appalachian Life Insurance Company:
The foregoing portions of the record demonstrate that defense counsel implied to the jury that, because Ms. Trail had voluntarily relinquished her right to receive proceeds from the various policies of insurance covering her husband's life, she had no financial motive to orchestrate his death. Because of the presentation of this evidence to the jury, the Slayer Statute became relevant to show that, if she was found to be guilty of participating in the murder of her husband, Ms. Trail would be prohibited by law from receiving any proceeds from those policies.
Ms. Trail next argues that the circuit court erred by allowing the prosecuting attorney to imply, during his mercy phase closing argument, that a finding of no mercy would bring atonement for the victim of an unrelated crime committed by Ms. Trail.
This Court has held that
Syl. pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995). However, we need not apply the Sugg factors in this instance because we do not find the prosecutor's comments were prejudicial.
During the mercy phase opening statement by Ms. Trail's counsel, the following relevant comments were made:
(Emphasis added).
It is clear from this passage that the issue of atonement was interjected into the proceeding by the defense. To the extent that the prosecution then echoed the theme of atonement when it summarized the aggravating factors for showing no mercy, the defense opened the door to that theme and will not be heard to complain now. See Syl. pt. 4, State v. Mann, 205 W.Va. 303, 518 S.E.2d 60 (1999) ("A judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal." (internal citations omitted)). Cf. Syl. pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971) ("An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.").
Ms. Trail next complains that the circuit court erred by permitting the Prosecutor to make statements to the jury improperly implying that Ms. Trail mismanaged her credit cards and her husband was looking at her bank accounts.
Our review of the complained of statements, which were made during the State's guilt phase closing argument, quickly revealed that this issue was not preserved for appellate review.
Following this dialog, Mr. Blevins resumed his closing argument.
The above excerpt shows that defense counsel began to object, but was stopped by the trial court and invited to approach the bench to assert his objection and provide the grounds therefor. Significantly, defense counsel did not accept the trial court's invitation and the State's closing argument resumed with no objection to the statement herein challenged. Because there was no objection, there is no accompanying ruling by the trial court for our review. As this Court previously has explained:
State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996). This Court also has made clear that,
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (citation omitted). See also Syl. pt. 3, O'Neal v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420 (1991) ("`Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.'" (citation omitted)); Syl. pt. 1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964) (same). Because this issue was not preserved by the assertion of a proper objection at trial, we decline to address the same.
Ms. Trail next complains that the circuit court erred by admitting into evidence a chart that summarized all of the insurance policies on Chester Trail's life. She contends that, because the summary chart was improperly admitted into evidence, the jury was allowed to have possession of the chart during its deliberations. She complains that the chart was not entirely accurate
Although the use of summaries is governed by Rule 1006 of the West Virginia Rules of Evidence, we cannot apply that Rule to the facts of this case for a simple reason; Ms. Trail has failed to direct this Court to the portion of the record containing her objection to the admission of the summary chart. Pursuant to Rule 10(c)(7) of the West Virginia
Because of Ms. Trail's failure to direct this Court to the portion of the record containing her objection to the admission of the summary chart, we deem this issue waived.
Ms. Trail next argues that the trial court erred in failing to grant her motion for acquittal because the evidence was insufficient to support the verdict of guilty. The State contends the evidence was sufficient.
In addressing this issue, we are mindful that
Syl. pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995): The trial court bore a similar duty in addressing Ms. Trail's challenge to the sufficiency of the evidence.
Syl. pt. 2, LaRock, 196 W.Va. 294, 470 S.E.2d 613. Finally, we observe the cumbrous task undertaken by a criminal defendant attempting to challenge the sufficiency of the evidence:
Syl. pt. 3, Guthrie, 194 W.Va. 657, 461 S.E.2d 163.
Upon a careful review of Ms. Trail's argument it becomes apparent that she does not challenge the absence of evidence to establish her guilt. Rather, she challenges the weight afforded that evidence by the jury. Her primary complaints are that the jury accepted the testimony of Ms. Trail's nephew, Gregory Whittington, in spite of strong evidence challenging his veracity, and the jury accepted the State's theory that her crime was motivated by her desire to obtain the proceeds of the various insurance policies covering her husband's life. The circuit court rejected this argument finding there was sufficient evidence to support the jury's verdict. The circuit court commented:
We find no error.
Ms. Trail asks this Court to consider the sterile appellate record and decide that the jury made improper credibility determinations. Such a review is not a legitimate function of this Court. See Syl. pt. 2, State v. Martin, 224 W.Va. 577, 687 S.E.2d 360 (2009) ("The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses." (internal quotations and citation omitted)); Guthrie, 194 W.Va. 657, 669, 461 S.E.2d 163, 175 ("It is well established that appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility."); Id., 194 W.Va. at 670 n. 9, 461 S.E.2d at 176 n. 9 ("An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.... It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses."); Syl. pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967) ("The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses."); Syl. pt. 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952) ("In the trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence, the weight and credibility of the testimony of any witness is for jury determination.").
In this case the jury heard Gregory Whittington testify that Ms. Trail hired him to murder her husband. The jury also was presented with ample evidence of Gregory Whittington's propensity to lie. It was the jury's role to weigh this evidence and to decide the credibility of Gregory Whittington's testimony. It was also for the jury to weigh the evidence of the insurance policies as a source of motive.
For the reasons set out in the body of this opinion, the orders of the Circuit Court of Lincoln County upholding Ms. Trail's conviction of murder in the first degree and imposing a sentence of life in prison without mercy are affirmed.
Affirmed.
This Court requires such a hearing in response to allegations of juror misconduct:
Syl. pt. 2, id.
Other testimony cited by Ms. Trail similarly included statements about Ms. Shamblin's past feelings about Ms. Trail resulting from the relationship between their children.
Likewise, at oral argument, counsel for Ms. Trail urged this Court to adopt a presumption of prejudice deriving from Barnes that must be overcome by the government upon "`any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury.'" We decline Ms. Trail's invitation for several reasons. First, unlike the present case where the trial court conducted a proper Remmer hearing, the issue in Barnes was the lower court's failure to conduct a Remmer hearing after being apprised of alleged juror misconduct. Second, the presumption addressed in Barnes is not settled law. The Barnes court observed that,
751 F.3d at 242. Finally, this Court previously has itself interpreted Remmer and, based upon that interpretation, has adopted a procedure to protect a defendant's right to an impartial jury. See Sutphin, 195 W.Va. 551, 466 S.E.2d 402, discussed supra at note 9. As set out in our discussion above, the circuit court is this case followed Sutphin and held a proper hearing to address the juror misconduct alleged by Ms. Trail.
Based upon the record submitted on appeal, it appears that five photographs were admitted during the mercy phase of trial, two autopsy photos of the victim and three photos depicting the victim at the crime scene. The photographs referenced in Ms. Trails brief, identified as being located in Vol. 13 of the appellate record at pages 90-120, are thirty images of the crime scene. Chester Trail, the victim, is portrayed in ten of those thirty crime-scene images. The parties to this appeal do not identify which of the thirty crime scene photographs were actually published to the jury. The appellate record also includes only one autopsy photograph of the victim, while two such photos were apparently published to the jury.
W. Va. R. Evid. 1101(b). Thus, the Rules of Evidence apply to the mercy phase of a bifurcated trial only as provided by this Court. Based upon this Court's holding in Syllabus point 7 of State v. McLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (2010), along with the application of Rule 1101(b), it is clear that only Rules 401 and 403 apply to evidentiary rulings made during the mercy phase of a bifurcated trial. Rule 1101 was amended in 2014; however, that amendment was primarily stylistic and made no substantive change relevant to manner in which we herein apply the rule.
Syl. pt. 9, Derr, 192 W.Va. 165, 451 S.E.2d 731. As noted previously, we are unable to review the circuit court's ruling as to the prejudicial effect of the gruesome photographs insofar as Ms. Trail is unable to identify for this Court the precise photographs that were presented to the jury during the mercy phase of her trial. See supra note 14.
Because we find no error in the circuit court's reading of the statute to the jury, we summarily reject this issue on the merits as the instruction was adequate and not confusing.
Id. at 627, 482 S.E.2d at 612.
(Emphasis added).