DAVIS, Justice:
Petitioner, Tyler G.,
The record in this case indicates that the Petitioner began dating A.M. in May of 2012. A.M. was approximately twenty years old at the time and was living with her parents in Hancock County. A.M. also had an infant daughter less than two years old, L.S., the victim in this case. Shortly after A.M. began her relationship with the Petitioner, she contracted the sexually transmitted disease known as HPV (human papillomavirus). A.M. believed that she contracted the disease from the Petitioner because he was the only person with whom she was intimate at that time. Consequently, A.M. ended her relationship with Petitioner.
A.M. resumed her relationship with the Petitioner after about a month of separation. After the relationship resumed, it appears that A.M. would frequently stay at the Petitioner's home,
On December 25, 2012, A.M. took L.S. to a local hospital because of an ear infection and an apparent diaper rash in her anal area that would not clear up. While at the hospital, A.M. was told that the diaper rash appeared to be hemorrhoids, but that she should take L.S. to a pediatrician. A.M. took L.S. to a pediatrician. The pediatrician informed A.M. that the bumps around L.S.'s anal area appeared to be genital warts and that she should take the child to a gynecologist. A.M. took the child to a gynecologist. The gynecologist determined that L.S. did not have a diaper rash. Instead, L.S. was diagnosed with severe HPV. A.M. was told that surgery was necessary to remove the warts. A.M. eventually took L.S. to Weirton Medical Center on February 8, 2013, to have the genital warts removed.
While A.M. was at the hospital with L.S., hospital officials made a child abuse report to the Department of Health and Human Resources ("DHHR") and the local police. Several police officers and a DHHR investigator came to the hospital and met with A.M. and the doctor who removed the genital warts from L.S. The police and the DHHR investigator were informed that the Petitioner and A.M.'s father were the only two males that were around L.S. They also were informed by the doctor that the genital warts were around the baby's anal area and were actually inside her anal cavity. This information prompted a formal child abuse and criminal investigation.
The police left the hospital and went to the Petitioner's home to interview him. The Petitioner agreed to accompany the police to the local police station for the interview. During the interview, the Petitioner stated that when he stayed the night at A.M.'s home on December 10, 2012, he "accidentally touched" L.S., and that he was "ashamed,
On the morning of February 11, 2013, the Petitioner's mother dropped him off at the police station. It appears that the Petitioner had been asked to come to the police station to take a polygraph examination. The polygraph examination was administered, to the Petitioner by a state police officer. After the polygraph was administered, the Petitioner was informed that some of his answers showed inconsistencies. Consequently, the Petitioner was asked to provide a post-polygraph interview. The Petitioner agreed to provide the interview. During the initial part of the interview, the Petitioner denied having sexual contact with L.S. However, during subsequent questioning by other police officers, the Petitioner stated it was possible that he could have had sexual contact with L.S., but he could not remember. The Petitioner went on to describe the following:
The Petitioner was asked if it was "possible that he entered her rectum at any time. He said it was possible, but he didn't really recall for sure." Finally, the Petitioner was asked "is there any possible way that the penis did enter the anus of the baby?" The Petitioner responded yes to the question. The Petitioner was allowed to go home after the interview.
As a result of the criminal investigation, the police arrested the Petitioner on February 19, 2013. Subsequently, a grand jury returned a three-count indictment against the Petitioner in April of 2013. The indictment charged the Petitioner with first-degree sexual assault, sexual abuse by a custodian, and child abuse resulting in serious injury. The case went to trial in May of 2014. The jury returned a verdict convicting the Petitioner of all three counts of the indictment. The circuit court thereafter sentenced the Petitioner to not less than twenty-five years nor more than one hundred years for first-degree sexual assault;
The Petitioner asserts six assignments of error. The issues presented have specific review standards. Therefore, we will dispense with setting out a general standard of review. Specific standards of review will be discussed separately as we address each assignment of error.
The issues assigned for our review by the Petitioner are as follows: (1) failure to suppress statements made to police, (2) insufficiency of evidence of guilt, (3) improper use of information from juvenile record, (4) mentioning of polygraph during trial, (5) prejudicial effect of cumulative errors, and (6) ineffective assistance of counsel. We will consider separately each assignment of error.
The first issue raised by the Petitioner is that the circuit court committed error in denying his motion to suppress inculpatory statements he made to the police. The State contends that the statements were voluntarily made. Therefore, the trial court did not
This Court has held that "[a] trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence." Syl. pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978). We elaborated further in Syllabus point 2 of State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994), as follows:
Finally, we pointed out in syllabus point 1 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996) that:
It is well-settled that the State has the burden of proving that inculpatory statements of the accused were voluntarily given. We set forth this principle in Syllabus point 5 of State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975), as follows:
Accord State v. Blackburn, 233 W.Va. 362, 368, 758 S.E.2d 566, 572 (2014). In Farley, this Court outlined factors that the United States Supreme Court suggested may be considered in determining whether inculpatory statements were made voluntarily:
Farley, 192 W.Va. at 258, 452 S.E.2d at 61 (internal quotations and citations omitted).
In the instant proceeding, the Petitioner has not alleged that he was forced to go to the police station on the two occasions that he was interviewed. The Petitioner has not alleged that the police failed to read him his Miranda rights
A hearing was held on the Petitioner's motion to suppress. During the hearing the state presented testimony from four police officers who interviewed the Petitioner. The officers described the inculpatory statements made by the Petitioner.
We are satisfied that the circuit court properly assessed the evidence presented on the issue the voluntariness of the Petitioner's statements to the police. Equally important, we defer to the trial court's determination that the Petitioner simply was not credible in his denial of making any inculpatory statement to the police. See People v. Alonso, No. 1-08-1799, 2011 WL 9548468, at *5 (Ill. App.Ct. June 16, 2011) ("Resolving conflicts in testimony at a suppression hearing is within the province of the trial court and we will not substitute our judgment for that of the trier of fact, where the issue involves conflicting evidence."). On the issue of outright denial of making inculpatory statements, this Court has previously observed that "it is not error for the trial court to admit testimony by the arresting officers that defendant had made oral admissions to them, as her outright denial that any admissions were made merely presented the jury with a simple
The second issue raised by the Petitioner, while not accurately labeled in his brief, is that the evidence was insufficient to find him guilty of the offenses set out in the indictment. The State argues, and we agree, that the evidence was sufficient for the jury to find the Petitioner guilty beyond a reasonable doubt of each offense under the indictment.
To begin, this Court held in syllabus point 3 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):
We held further in syllabus point 1 of Guthrie:
The Petitioner argues that the State's evidence failed to present any eyewitness testimony and that the State did not "present any expert testimony that the injuries sustained were consistent only with sexual contact." According to the Petitioner, the evidence showed that it was "more likely than not that the child was infected with the virus through non-sexual contact with her mother." Petitioner notes that A.M. testified that she did not observe anything unusual while in bed during the night that the alleged sexual offenses occurred. Moreover, Petitioner points out that A.M. testified that the baby was wearing her diaper on the morning after the offenses were alleged to have occurred. We do not agree with the Petitioner's narrow characterization of the evidence.
The jury heard medical testimony that the child had genital warts around her anal area and in her anal cavity. Through medical testimony, the jury was informed that "[n]ormally, if seen in either the vaginal or within the vagina, the cervix, the perineal areas, those areas around the rectum[,] ... [w]e usually assume those to be from sexual contact of some sort." The investigator for DHHR acknowledged that, because of the location of the genital warts, "it would have had to have been either through ejaculate or by direct insertion of the penis into the rectum of the child." A.M. also testified that she contracted HPV and that she believed she contracted it from the Petitioner. The jury also heard testimony that the Petitioner had genital warts but he refused to allow them to be excised for testing that would definitively determine whether he had HPV. Finally, the jury heard testimony from several
Although, at trial, the Petitioner denied making the inculpatory statement, "the jury resolved that conflict in the testimony against [Petitioner], and the inculpatory statement combined with the considerable amount of circumstantial evidence clearly established defendant's guilt beyond a reasonable doubt." State v. Summit, 454 So.2d 1100, 1104 (La.1984). We therefore find no merit to Petitioner's insufficiency of evidence assignment of error.
The next issue raised by the Petitioner is that the trial court committed error in allowing the State to use information obtained from his juvenile record. The Petitioner contends that the State did not have statutory authorization to obtain his juvenile record, and that he did not have notice that the State would use his juvenile record. The State contends that, under the precedents of this Court, the Petitioner's juvenile record was properly used to impeach his trial testimony.
To begin, we note that "rulings on the admissibility of evidence are properly within the discretion of the circuit court, and this Court will not overturn such rulings absent an abuse of discretion." State v. Doonan, 220 W.Va. 8, 12, 640 S.E.2d 71, 75 (2006). See also Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994) ("The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.").
At the time of the Petitioner's prosecution, the statute governing the circumstances under which juvenile records could be disclosed was found at W. Va.Code § 49-5-17 (2005) (Repl. Vol. 2014). However, this statute was repealed in 2015 and recodified at W. Va. Code § 49-5-103 (2015) (Supp.2015). The recodification did not affect the substantive issue raised in this case. Even so, we will review the issue in the context of the statute as it was codified at the time of Petitioner's prosecution.
In State v. Van Isler, 168 W.Va. 185, 283 S.E.2d 836 (1981), this Court addressed the issue of whether information in a juvenile record could be used as evidence in a criminal prosecution during the State's case-in-chief. We resolved the issue in Syllabus point 1 of Van Isler as follows:
168 W.Va. 185, 283 S.E.2d 836. In State v. Rygh, 206 W.Va. 295, 524 S.E.2d 447 (1999), we were called upon to recognize an exception to nondisclosure of juvenile records under syllabus point 1 of Van Isler.
The defendant in Rygh was prosecuted on two counts of felony-murder. The case was bifurcated. Prior to the trial of case, the State filed a motion to unseal the defendant's juvenile law enforcement records so that certain information contained in the records could be available for possible use against the defendant during the mercy phase of the trial. The circuit court granted the motion. The defendant was convicted of the felony-murder charges. During the bifurcated mercy phase, the State used information in the defendant's juvenile records to impeach a witness called by the defendant. In the appeal to this Court, the defendant argued that, under Van Isler, information in his juvenile records could not be disclosed during his trial. We disagreed as follows:
Rygh, 206 W.Va. at 298-99, 524 S.E.2d at 450-51. We went on to hold the following in Syllabus point 2 of Rygh:
It is clear that under Rygh the State could use information from the Petitioner's juvenile record to impeach him. The State cross-examined the Petitioner on limited information, gleaned from his juvenile record. The information used by the State showed that the Petitioner missed school frequently, that he often was in trouble at school, and that he had good grades in some classes. This evidence was introduced in response to testimony by the Petitioner that he had learning difficulties; consequently, "the totality of the circumstances of his questioning [by the police] resulted in confusing the Petitioner and rendering the inculpatory statements given to law enforcement unreliable."
As an additional ground for error, the Petitioner argues also that the State failed to file a motion to obtain court approval to unseal his juvenile record. The trial record appears to support this assertion. We believe that Rygh required the State to file a motion to unseal Petitioner's juvenile record. However, failure to do so was harmless error. See State v. Swims, 212 W.Va. 263, 270, 569 S.E.2d 784, 791 (2002) ("`Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the outcome of the trial.'" (quoting Reed v. Wimmer, 195 W.Va. 199, 209, 465 S.E.2d 199, 209 (1995))). Insofar as the circuit court allowed the State to use information from Petitioner's juvenile record for impeachment purposes, it is clear that, had the State followed the proper procedure and filed a motion to unseal his juvenile record, the motion would have been granted. For this reason, the error is procedurally harmless.
In sum, we find no merit to Petitioner's contention that the State could not impeach him with information taken from his juvenile record.
The Petitioner next contends that the trial court erred in denying his motion for a new trial as a result of a State witness mentioning that he took a polygraph examination. The State contends that the error complained of was harmless. We have held that the standard of review of a trial court's order denying a motion for a new trial is as follows:
Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
We begin by noting that the issue of improperly introducing polygraph evidence in a criminal trial has been addressed by courts in three contexts. The decision in State v. Dressel, 765 N.W.2d 419 (Minn.Ct.App.2009), summarized the matter as follows:
Dressel, 765 N.W.2d at 425 (internal quotation marks and citations omitted).
We previously have expressly ruled upon the first two contexts in which polygraph evidence is prohibited. That is, we long have held that "[p]olygraph test results are not admissible in evidence in a criminal trial in this State." Syl. pt 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979). We also have ruled that "[r]eference to an offer or refusal by a defendant to take a polygraph test is inadmissible in criminal trials to the same extent that polygraph results are inadmissible." Syl. pt. 2, State v. Chambers, 194 W.Va. 1, 459 S.E.2d 112 (1995). We now hold that, it is well-settled that any reference to a criminal defendant's offer or refusal to take a polygraph examination, and the results of a polygraph examination, are inadmissible. Likewise, evidence that a defendant in a criminal case took a polygraph examination also is inadmissible.
It has been correctly noted that, "[d]espite its status as a pariah ..., not all references to polygraph tests warrant reversal." State v. Hawkins, 326 Md. 270, 276, 604 A.2d 489, 492 (1992) (citation omitted). For example, in State v. Acord, 175 W.Va. 611, 336 S.E.2d 741 (1985), we recognized that improperly mentioning a polygraph test result during a trial does not automatically result in a new trial. The defendant in Acord was prosecuted for first-degree sexual assault. During the trial, a State witness made an unsolicited remark indicating that he had passed a polygraph examination. Defense counsel immediately moved the circuit court for a mistrial. The circuit court denied the motion, but instructed the jury to disregard the remark. After his conviction, the defendant argued on appeal that the circuit court committed error in denying his motion for a mistrial. We disagreed as follows:
Accord, 175 W.Va. at 613, 336 S.E.2d at 744 (internal quotations and citations omitted). See also State v. Meadows, 231 W.Va. 10, 743 S.E.2d 318 (2013) (mentioning of polygraph harmless error); State v. Porter, 182 W.Va. 776, 392 S.E.2d 216 (1990) (same); See also United States v. Lewis, 110 F.3d 417, 422 n. 2 (7th Cir.1997) ("Any error in admitting the reference to a polygraph was harmless."); United States v. Herrera, 832 F.2d 833, 835 (4th Cir.1987) ("Although we agree that references to polygraph tests in plea agreements introduced into evidence are improper, we find the error harmless in this instance."); United States v. Koslosky, No. ACM 30865, 1995 WL 580889, at *4 (A.F.Ct.Crim.App. Sept. 20, 1995) ("We find there is no prejudice to the appellant in this case as a result of the two inadvertent references to a polygraph."); Capano v. State, 781 A.2d 556, 605 (Del.2001) ("On harmless error analysis, therefore, we hold that the erroneous admission of Lyons' testimony concerning Gerry's polygraph test ... did not substantially prejudice the defense and that admission of this testimony does not warrant a reversal of Capano's conviction and sentence."); People v. Fletcher, 328 Ill.App.3d 1062, 1075, 263 Ill.Dec. 312, 768 N.E.2d 72, 83 (2002) ("Therefore, even assuming, arguendo, that the polygraph evidence was improperly admitted, we find the resulting error harmless."); Majors v. State, 773 N.E.2d 231, 239 (Ind.2002) ("the admission of polygraph evidence is subject to harmless error analysis. The probable impact of the polygraph reference upon the verdict is of prime importance."); Lay v. State, 659 N.E.2d 1005, 1013 (Ind.1995) ("because the mention of a polygraph test here could not be said to have guaranteed a conviction, we cannot say that Pike's testimony before the jury amounted to fundamental error requiring reversal of Lay's conviction."); State v. Harvey, 151 N.J. 117, 205-06, 699 A.2d 596, 639 (1997) ("On this record, the reference to an unindicted suspect's polygraph results does not constitute reversible error.... Any prejudice to defendant was minimal."); Mayes v. State, 887 P.2d 1288, 1310 (Okla.Crim.App.1994) ("Under the circumstances, we find the reference to a polygraph, if error at all, was harmless."); Lester v. Commonwealth, No. 0844-99-3, 2000 WL 781336, at *2 (Va.Ct. App. June 20, 2000) ("In this case, we are satisfied the admission of the polygraph results is harmless."); State v. Wofford, 202 Wis.2d 523, 532, 551 N.W.2d 46, 50 (1996) ("Because admission of the polygraph evidence was harmless error, we conclude that Wofford was not prejudiced by his attorney's performance.").
In view of the foregoing, we now expressly hold that, although polygraph-related evidence has been deemed inadmissible in this State, the improper admission of such evidence does not automatically warrant a new trial. Rather, improperly admitted evidence involving a polygraph examination is subject to a harmless error analysis.
In the instant proceeding, the State was conducting a direct examination of a police officer when the officer mentioned that the Petitioner had taken a polygraph examination:
The Petitioner argues that he was prejudiced by the witness mentioning the polygraph and by the curative instruction given by the trial court; therefore, he is entitled to a new trial. We disagree.
There is no question that the testimony mentioning that Petitioner took a polygraph test in this case was error. However, this error was harmless. It is clear that the polygraph reference was not solicited by the
As a general matter,
State v. Mahood, 227 W.Va. 258, 264, 708 S.E.2d 322, 328 (2010) (internal quotations and citation omitted). Accord State v. White, 223 W.Va. 527, 535, 678 S.E.2d 33, 41 (2009). In this case, we believe that the jury understood and followed the circuit court's curative instruction. This was a passing improper remark about a polygraph test that was not "devastating" to the Petitioner in light of the strong admissible evidence of his guilt, as outlined supra in Section III. B. of this opinion.
The Petitioner contends that the errors committed in this case were prejudicial when considered cumulatively. Under our standard for the application of the cumulative error doctrine, there must be "numerous" errors:
Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (emphasis added).
Under the decision in Smith, the cumulative error doctrine is applicable only when "numerous" errors have been found. See State v. McKinley, 234 W.Va. 143, 167 n. 22, 764 S.E.2d 303, 327 n. 22 (2014) ("In order to invoke the cumulative error doctrine, there must be more than one harmless error. Mr. McKinley cannot rely on this doctrine because only one harmless error was found in this case."); State v. Cook, 228 W.Va. 563, 572, 723 S.E.2d 388, 397 (2010) ("While the State concedes that one of the four enumerated evidentiary rulings was error, it argues that the other evidentiary rulings relied upon by Appellant were not an abuse of the trial court's discretion. We agree. Accordingly, we do not find cumulative error justifying a reversal of Appellant's conviction."). Two errors do not constitute "numerous" for purposes of the cumulative error doctrine. Assuming, for the sake of argument, that two errors could be categorized as numerous, collectively the two errors in this case are not so substantial as to have denied the Petitioner a fair trial. It has been correctly observed that "[i]f the errors, while numerous, are insignificant or inconsequential, the case should not be reversed under the doctrine." 1 Louis J. Palmer, Jr., Robin Jean Davis and Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 103.03[1][e], p. 37 (6th ed.2015). The two errors found in this case, failure of the State to file a motion to unseal juvenile records and the passing mention of the word polygraph, are clearly insignificant errors.
We affirm Petitioner's conviction and sentence for first-degree sexual assault, sexual abuse by a custodian, and child abuse resulting in serious injury.
Affirmed.
Justice DAVIS delivered the Opinion of the Court.
Justice KETCHUM dissents and reserves the right to file a dissenting opinion.
Justice KETCHUM, dissenting:
I dissent because this case contains three serious prosecutorial errors. The cumulative effect of these three prejudicial errors resulted in an unfair trial.
First, the defendant, a nineteen-year-old boy, was forced to go to the police station on two occasions. He was questioned for ten to twelve hours by six different police officers during this two-day period. The record is clear that this lengthy grilling was to elicit a confession — why else would a nineteen-year-old boy be questioned for ten to twelve hours by six different police officers?
The circuit court failed to properly weigh the factors outlined by our Court in State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994), to determine whether the defendant's confession was made "voluntarily."
As a result of the involuntary confession, the nineteen-year-old boy was sentenced to 25 to 100 years in the penitentiary.
The second prejudicial error was the unsealing of the defendant's juvenile records. The prosecutor's office unsealed the defendant's juvenile records without providing notice to the trial judge or to the defendant. The chief law enforcement officer of Hancock County, the prosecutor's office, illegally opened the defendant's sealed juvenile records without the circuit court's permission. Our law requires that before a juvenile record may be unsealed, there first must be a hearing and approval by a circuit judge. See State v. Rygh, 206 W.Va. 295, 524 S.E.2d 447 (1999). The result of this illegal unsealing of the defendant's juvenile record was that the nineteen-year-old boy got 25 to 100 years in the penitentiary, while the prosecutor's office doesn't even get scolded for its illegal activity.
The third prejudicial error occurred when a police officer testifying for the State blurted out that the defendant took a polygraph exam. After six years on the bench, I've seen a steady parade of prosecution witnesses who "inadvertently" blurt out inadmissible testimony. Once the jury heard the
In the present case, once the inadmissible polygraph testimony came in, the damage was done — a cautionary instruction from the court did not undo the prejudice to the defendant.
The cumulative effect of these errors prevented the defendant from receiving a fair trial. These errors completely negated the evidence that the young girl just as likely got the disease from her infected mother.
For the foregoing reasons, I respectfully dissent.
