State of West Virginia v. Mitchell H. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent September 4, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0892 (Ohio County 19-F-23) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Mitchell H.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Mitchell H.,1 by counsel John M. Jurco, appeals from the Circuit Court of Ohio
County’s August 29, 2019, amended sentencing order stemming from his conviction for domestic
battery. The State of West Virginia, by counsel Andrea Nease Proper, filed a response in support
of the circuit court’s order.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
On November 20, 2018, the Wheeling Police Department responded to a report of a
domestic disturbance in an apartment building. When the officers arrived at the residence within
the apartment building, they found the front door torn off its hinges to the point of being unusable.
The officers knocked on the hanging door and petitioner answered the door, allowing the officers
to enter the residence. While petitioner denied that an incident had occurred, officers observed
broken glass throughout the residence.
Mahogany Hall, a tenant of a different apartment in the building, approached the
responding officers and told them that she witnessed part of the altercation between petitioner and
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
1
T.M., the victim, and called 9-1-1. Ms. Hall detailed that T.M. knocked on her front door and,
while she was speaking to T.M, petitioner approached T.M., grabbed her, punched her in the face,
and bit her. Ms. Hall told the responding officers that T.M. admitted petitioner had hit her on
multiple occasions. Two juveniles with Ms. Hall also detailed an incident ten days prior wherein
petitioner was choking T.M. on the lawn of the apartment complex.
The responding officers approached T.M. and saw that she had a bloody lip and red marks
on both cheeks, but T.M. did not consent to being photographed. Petitioner was arrested, and
officers noted that petitioner had two prior domestic violence convictions in West Virginia within
the past two years. On January 14, 2019, petitioner was indicted on one count of domestic battery
and one count of domestic assault. Petitioner pled not guilty at his arraignment on January 31,
2019.
Prior to trial, petitioner moved for the exclusion of his criminal record, which included
prior domestic battery arrests and convictions. Notably, T.M. was the victim in at least four of
petitioner’s prior arrests, and petitioner had twenty-two misdemeanor arrests in the ten years
leading up to his trial. Petitioner also moved for a jury instruction on self-defense. The court
deferred ruling on the motions until the evidence was presented at trial.
Petitioner’s trial began on April 2, 2019. At trial, Corporal Robert McConnell of the
Wheeling Police Department testified that he responded to the domestic disturbance call on the
night in question. Corporal McConnell testified that when he arrived at the scene, he recognized
T.M. and petitioner, whom he knew to be in a domestic relationship from seeing them together
amongst the homeless population. Corporal McConnell advised that he was approached by Ms.
Hall upon his arrival, who indicated that T.M. had come to her apartment and that Ms. Hall had
observed petitioner strike T.M. in the face. Corporal McConnell testified that he observed redness
around T.M.’s mouth and cheeks, and that she had a busted lip that was bleeding slightly. Per
Corporal McConnell, T.M. would not allow the officers to photograph her injuries.
T.M. testified at petitioner’s trial that she had been in a domestic partnership with petitioner
for the past three years and that they shared an apartment. She admitted that she would not allow
the officers to photograph her on the evening of the events surrounding petitioner’s criminal
charges, stating it “wasn’t necessary.” She further denied that she had any injuries. T.M. testified
that she and petitioner had been drinking and arguing earlier in the day in question. She admitted
to hitting petitioner, but testified that he never hit her. T.M. testified that she appeared at trial to
tell the jury that she was not hit by petitioner.
Ms. Hall also testified at petitioner’s trial. Per Ms. Hall’s testimony, she called 9-1-1
because she saw petitioner hit T.M. after she opened her apartment door. Ms. Hall later
encountered T.M. at the public library, where T.M. tried to talk Ms. Hall out of testifying at
petitioner’s trial, stating that if Ms. Hall did not testify, petitioner would not be convicted.
Petitioner did not testify at his trial, and the defense did not present any witnesses. Prior to
2
closing arguments, petitioner again sought a self-defense instruction, which the State opposed.2
The circuit court refused to give the self-defense instruction, as T.M. testified that petitioner never
hit her.
During closing arguments, the prosecuting attorney discussed witness credibility and
compared the testimony of the investigating officer and Ms. Hall to the testimony of T.M.
Specifically, the State pointed out the inconsistencies with T.M.’s testimony and noted that T.M.
may have had motivation to cover for petitioner, her boyfriend, whereas Ms. Hall and Corporal
McConnell had no ulterior motive. On rebuttal, the prosecuting attorney stated:
. . . if you believe if someone has said or acted inconsistent with their testimony,
you can reject their testimony because it’s not truthful. She came in here and lied.
It’s a hard thing to say, to call somebody a liar, but you saw it happen today because
two people testified [to] two completely different things. . .
The prosecuting attorney closed with the following: “[w]e’re asking you to do your civic duty, to
go back there, and don’t cherry pick. Don’t cherry pick [T.M.’s] testimony. You know it was false.
Dismiss it in its entirety and render a verdict of guilty. Thank you.”
The jury returned a verdict finding petitioner guilty of domestic violence. At his sentencing
hearing on May 1, 2019, petitioner requested probation with mental health treatment. Petitioner
apologized for his actions, indicating that he was “in a blackout” at the time, and noted that
although he has been incarcerated “a lot of times” he “never really learned something off it.” The
State argued that petitioner should be incarcerated due to his long criminal history.
On May 1, 2019, the circuit court sentenced petitioner to a term of one to five years of
incarceration, and the sentencing order was filed on May 13, 2019. On May 17, 2019, petitioner
filed a motion to modify the sentence pursuant to Rule 35 of the West Virginia Rules of Criminal
Procedure. An amended sentencing order was entered on August 29, 2019, sentencing petitioner
to not less than one nor more than five years in the custody of the West Virginia Division of
Corrections for his felony conviction of third offense domestic violence, with credit for time
served. Petitioner appeals from the amended sentencing order.
On appeal, petitioner raises three assignments of error. First, he argues that the trial court
abused its discretion when it refused to give a self-defense instruction. Next, petitioner claims that
the circuit court abused its discretion in denying his motion to strike portions of Ms. Hall’s
testimony and allowing prior bad act testimony to be presented to a jury. Finally, petitioner asserts
that the circuit court erred when it allowed the State to represent that T.M. was a liar and instruct
the jury to disregard her testimony.
First, petitioner argues that the circuit court erred when it failed to give a self-defense
instruction. Petitioner asserts that he left the apartment and T.M. reignited the confrontation near
2
Petitioner also sought a mutual combat instruction. The State opposed this instruction,
noting that there was no law on mutual combat in West Virginia.
3
Ms. Hall’s apartment, noting that “[s]ince retreat no longer worked and commotion still raged, he
struck her, and this arguably in an attempt [to get her to] leave him alone.” The State, however,
contends that the evidence does not support a self-defense instruction. Specifically, the State noted
that a self-defense instruction was not necessary because T.M. testified that petitioner did not strike
her. Further, the State argues that a self-defense instruction is inconsistent with Ms. Hall’s
testimony.
“When called upon to review a trial court’s rejection or acceptance of a specific jury
instruction, this Court generally applies an abuse of discretion standard.” State v. McGuire, 200
W. Va. 823, 828, 490 S.E.2d 912, 917 (1997). Further, this Court has long relied upon the principle
that “‘[i]nstructions must be based upon the evidence and an instruction which is not supported by
evidence should not be given.” Syl. Pt. 4, State v. Collins, 154 W. Va. 771, 180 S.E.2d 54 (1971).3
When faced with a proposed self-defense instruction,
this Court noted in State v. Smith, 170 W.Va. 654,656, 295 S.E.2d 820, 822 (1982),
“the general common law rule that one who is at fault or who is the physical
aggressor can not rely on self-defense[.]” See State v. Watson, 164 W.Va. 642, 651,
264 S.E.2d 628, 633 (1980) (“Ordinarily, self-defense is not available to the
aggressor who precipitates an affray without legal justification.”). A person “in no
imminent danger from a minatory foe may not purposely confront him and then
invoke self-defense for an immediate [assault].” State v. Curry, 112 W. Va. 549,
551, 165 S.E. 810, 811 (1932).
State v. Wykle, 208 W. Va. 369, 373, 540 S.E.2d 586, 590 (2000).
As discussed in Wykle, petitioner cannot avail himself of the affirmative defense of self-
defense where, as here, the testimony suggests that he was the aggressor. Per Ms. Hall’s testimony,
T.M. had left the apartment and was at Ms. Hall’s door when petitioner confronted T.M. and struck
her. Thus, based upon the record, we conclude that the circuit court did not abuse its discretion
when it refused to give a self-defense instruction as requested by petitioner.
Petitioner further argues that the circuit court erred when it denied his motion to strike Ms.
Hall’s testimony and allowed prior bad act testimony to be presented to the jury. The testimony
central to petitioner’s argument is Ms. Hall’s testimony that petitioner “was already hitting on
[T.M.].” The State maintains that this statement represents res gestae and referenced the beginning
of the incident for which petitioner was being tried--not prior bad acts.
Our standard of review for evidentiary rulings has been stated as follows:
3
Further, “when reviewing a challenge to jury instructions, we consider the instructions
given as a whole and not in isolation to determine whether the instructions adequately state the
law and provide the jury with an ample understanding of the issues and the controlling principles
of law. State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995).” State v. LaRock, 196 W. Va.
294, 308, 470 S.E.2d 613, 627 (1996).
4
The West Virginia Rules of Evidence and the West Virginia Rules of Civil
Procedure allocate significant discretion to the trial court in making evidentiary and
procedural rulings. Thus, rulings on the admissibility of evidence and the
appropriateness of a particular sanction for discovery violations are committed to
the discretion of the trial court. Absent a few exceptions, this Court will review
evidentiary and procedural rulings of the circuit court under an abuse of discretion
standard.
Syl. Pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
This Court has noted that
“[e]vents, declarations and circumstances which are near in time, causally
connected with, and illustrative of transactions being investigated are generally
considered res gestae and admissible at trial.” Syl. Pt. 3, State v. Ferguson, 165 W.
Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa[,]
173 W. Va. 43, 311 S.E.2d 412 (1983).
Syl. Pt. 7, State v. Dennis, 216 W. Va. 331, 607 S.E.2d 437 (2004).
The doctrine of res gestae has been traced back nearly a century in West Virginia, and this
Court has stated that “[w]here appearances indicate that one has suffered an injury, one’s
statement, if spontaneous and reasonably coincident with and explanatory of the occurrence, may
be regarded as part of it and be competent evidence under the doctrine of res gestae.” Syl., in part,
Collins v. Equitable Life Ins. Co., 122 W. Va. 171, 8 S.E.2d 825 (1940). The State argues that this
is precisely what occurred in this case – T.M. was injured by petitioner and, just after being hit by
him, spontaneously told Ms. Hall that petitioner had been hitting her and asked her to call the
police. After reviewing the record, we do not believe that the circuit court abused its discretion by
denying petitioner’s motion to strike Ms. Hall’s statement.
Finally, petitioner claims that two of the prosecutor’s comments during closing arguments
violated the parameters of proper prosecutorial action and violated petitioner’s constitutional right
to a fair trial. Notably, he concedes that he did not object to the statements at trial. Thus, this Court
must review the statements under a plain error standard. “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). As to the plain error doctrine, in Miller,
we held that “[h]istorically, the ‘plain error’ doctrine ‘authorizes [an appellate court] to correct
only ‘particularly egregious errors’ . . . that ‘seriously affect the fairness, integrity or public
reputation of judicial proceedings[.]’” 194 W. Va. at 18, 459 S.E.2d at 129.
Although petitioner had the burden of establishing the elements of plain error, petitioner
failed to apply the plain error analysis to this matter. Instead, petitioner maintains that “the State
should bear the burden of proving that the jury convicted the appellant based on some other reason
than obeying the prosecutor’s instruction to disregard a witness after debasing and devaluing the
testimony by labeling the witness a liar.” Inasmuch as petitioner failed to satisfy his burden, we
5
decline to address this assignment of error.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
6