<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

 (1998).
4.      “‘Lying in wait’ as a legal concept has both mental and physical
elements. The mental element is the purpose or intent to kill or inflict bodily harm upon
someone; the physical elements consist of waiting, watching and secrecy or concealment.
In order to sustain a conviction for first degree murder by lying in wait pursuant to W. Va.
Code, 61-2-1 [1987], the prosecution must prove that the accused was waiting and watching
with concealment or secrecy for the purpose of or with the intent to kill or inflict bodily harm
upon a person.” Syllabus point 2, State v. Harper,

179 W. Va. 24

365 S.E.2d 69

 (1987).
5.      “Gross provocation and heat of passion are not essential elements of
voluntary manslaughter, and, therefore, they need not be proven by evidence beyond a
reasonable doubt. It is intent without malice, not heat of passion, which is the distinguishing
feature of voluntary manslaughter.” Syllabus point 3, State v. McGuire,

200 W. Va. 823

490 S.E.2d 912

 (1997).
6.      “The question of whether a defendant is entitled to an instruction on a
ii
lesser included offense involves a two-part inquiry. The first inquiry is a legal one having
to do with whether the lesser offense is by virtue of its legal elements or definition included
in the greater offense. The second inquiry is a factual one which involves a determination
by the trial court of whether there is evidence which would tend to prove such lesser included
offense.” Syllabus point 1, State v. Jones,

174 W. Va. 700

329 S.E.2d 65

 (1985).
7.     “Under Rule 611(a) of the West Virginia Rules of Evidence, a trial court
has broad discretion in permitting or excluding the admission of rebuttal testimony, and this
Court will not disturb the ruling of a trial court on the admissibility of rebuttal evidence
unless there has been an abuse of discretion.” Syllabus point 2, Belcher v. Charleston Area
Medical Center,

188 W. Va. 105

422 S.E.2d 827

 (1992).
8.     “Where the out-of-court statements of a non-testifying individual are
introduced into evidence solely to provide foundation or context for understanding a
defendant’s responses to those statements, the statements are offered for a non-hearsay
purpose and the introduction of the evidence does not violate the defendant’s rights under
Crawford v. Washington,

 (2004) and State
v. Mechling,

219 W. Va. 366

 (2006).” Syllabus point 4, State v. Lambert,

232 W. Va. 104

750 S.E.2d 657

 (2013).
iii
9.     “An expert witness may testify about facts he/she reasonably relied upon
to form his/her opinion even though such facts would otherwise be inadmissible as hearsay
if the trial court determines that the probative value of allowing such testimony to aid the
jury’s evaluation of the expert’s opinion substantially outweighs its prejudicial effect. If a
trial court admits such testimony, the jury should be instructed that the otherwise
inadmissible factual evidence is not being admitted to establish the truth thereof but solely
for the limited purpose of informing the jury of the basis for the expert’s opinion.” Syllabus
point 3, Doe v. Wal-Mart Stores, Inc.,

210 W. Va. 664

558 S.E.2d 663

 (2001).
10.    “Several basic rules exist as to cross-examination of a witness. The first
is that the scope of cross-examination is coextensive with, and limited by, the material
evidence given on direct examination.        The second is that a witness may also be
cross-examined about matters affecting his credibility. The term ‘credibility’ includes the
interest and bias of the witness, inconsistent statements made by the witness and to a certain
extent the witness’ character. The third rule is that the trial judge has discretion as to the
extent of cross-examination.” Syllabus point 4, State v. Richey,

171 W. Va. 342

298 S.E.2d 879

(1982).
iv
Davis, Justice:
This is a criminal appeal by Jeremy Lambert (hereinafter “Mr. Lambert”) from
his conviction and sentence by the Circuit Court of Raleigh County. Mr. Lambert was
convicted of first-degree murder without mercy. He was sentenced by the circuit court to life
imprisonment without the possibility of parole. In this appeal, Mr. Lambert has made the
following assignments of error: (1) erroneous rulings on felony-murder and lying-in-wait
murder theories, (2) error in refusing to give a voluntary manslaughter jury instruction, (3)
improper examination of a rebuttal witness by the State, (4) error in admitting a recording
of a psychiatric interview of Mr. Lambert, (5) error in limiting the testimony of Mr.
Lambert’s expert, (6) improper cross-examination of Mr. Lambert’s expert, and (7) prejudice
resulting from the cumulative effect of the errors. After a careful review of the briefs, the
record submitted on appeal, and listening to the arguments of the parties, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case involve the killing of twenty-five-year-old Cyan Maroney
(hereinafter “Ms. Maroney”). In 2011, Ms. Maroney shared an apartment with three
roommates in Beckley, West Virginia.1 Ms. Maroney was a professional ballet dancer who
1
The roommates were two females, Katherine Houff and Catherine Claus, and
one male, Aymen Robertson.
1
performed with the West Virginia Dance Company and Theatre West Virginia.2 She was
also employed at the Tamarack in Beckley. Mr. Lambert began a relationship with Ms.
Maroney in May 2011. The relationship ended in September 2011.
The events leading up to Mr. Lambert’s prosecution for the murder of Ms.
Maroney began in the early evening hours of October 2, 2011. On that date, at around 6:42
p.m., Mr. Lambert went to a Walmart store in Beckley and purchased a 14-inch Bowie knife.
After purchasing the knife, Mr. Lambert sat in his car in the Walmart parking lot for a short
while before driving to Ms. Maroney’s apartment.3 Mr. Lambert reached Ms. Maroney’s
apartment at around 8:15 p.m. According to Mr. Lambert, Ms. Maroney came out of the
apartment and met him at his car. They spoke briefly before she returned to the apartment.
Ms. Maroney came back outside and spoke with Mr. Lambert a second time before again
returning to her apartment.
After Ms. Maroney returned to her apartment the second time, Mr. Lambert hid
the Bowie knife in his pants and entered her apartment.4 One of Ms. Maroney’s roommates,
Katherine Houff (“Ms. Houff”), saw Mr. Lambert enter the apartment and walk into Ms.
2
Ms. Maroney’s roommates were also professional dancers.
3
It appears that Mr. Lambert had earlier arranged to meet Ms. Maroney at her
apartment when she got off from work.
4
The door was not locked.
2
Maroney’s bedroom.5 While inside the bedroom, Mr. Lambert stabbed Ms. Maroney twenty
three times. Stab wounds were inflicted to her thoracic aorta, esophagus, face, stomach,
diaphragm, liver, lungs, kidney, spleen, and skull. Ms. Maroney’s roommates heard her
screaming during the attack and came to her bedroom door, but did not enter. Ms. Houff
testified that she saw Mr. Lambert leaving Ms. Maroney’s bedroom carrying a large “bloody
knife.”6 Ms. Houff testified further that, as Mr. Lambert left the apartment, she believed he
stated, “That’ll show that m . . . f . . . to leave me.” Ms. Maroney bled to death before
reaching the hospital.
Mr. Lambert was arrested several hours after he killed Ms. Maroney. In
January 2012, a grand jury returned a one count indictment charging Mr. Lambert with first-
degree murder in causing the death of Ms. Maroney. The case went to trial on February 24,
2014. Mr. Lambert took the stand during the trial and admitted that he killed Ms. Maroney.
However, Mr. Lambert’s defense was that he suffered from diminished capacity at the time
of the killing. On March 6, 2014, the jury returned a verdict finding Mr. Lambert guilty of
first-degree murder, without a recommendation of mercy. This appeal followed.
5
Another roommate, Catherine Claus (“Ms. Claus”), was in the apartment, but
she was in her bedroom. The third roommate, Aymen Robertson (“Ms. Robertson”), came
home a few minutes after Mr. Lambert entered Ms. Maroney’s bedroom.
6
Ms. Claus and Mr. Robertson also testified to seeing Mr. Lambert exit the
bedroom carrying a large knife covered in blood.
3
II.
STANDARD OF REVIEW
Mr. Lambert asserts seven 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.
III.
DISCUSSION
In this appeal, the issues assigned for our review by Mr. Lambert are as
follows: (1) erroneous rulings on felony-murder and lying-in-wait murder theories, (2) error
in refusing to give a voluntary manslaughter jury instruction, (3) improper examination of
a rebuttal witness by the State (4) error in admitting a recording of a psychiatric interview of
Mr. Lambert, (5) error in limiting the testimony of Mr. Lambert’s expert, (6) improper
cross-examination of Mr. Lambert’s expert, and (7) prejudice resulting from the cumulative
effect of the errors. We will consider each assignment of error separately.
A. Felony-Murder and Lying-in-Wait Murder Theories
The trial court instructed the jury on three theories of first-degree murder:
premeditated murder, felony-murder, and lying-in-wait murder. Mr. Lambert contends that
4
he was not indicted on the theories of felony-murder and lying-in-wait; therefore, those
theories should not have been presented to the jury. Mr. Lambert also contends, as an
alternative argument, that the State should have been required to make an election on which
theory of murder would be presented to the jury. Finally, Mr. Lambert argues that the trial
court improperly instructed the jury on the lying-in-wait murder theory. We will address
these issues separately below.
1. Injecting felony-murder and lying-in-wait murder theories into the
case. Mr. Lambert correctly argues that the indictment did not expressly charge him with
felony-murder and lying-in-wait murder. However, the trial court permitted the State to
present both theories to the jury and instructed the jury on the same. Mr. Lambert argued
below and on appeal that he “had been indicted on first degree premeditated murder and had
received no notice of the State’s intent to prosecute him on felony murder and murder by
lying in wait.” Consequently, Mr. Lambert contends that he could not be prosecuted for
felony-murder and lying-in-wait murder, as those theories were not expressly set out in the
indictment.
As an initial matter, this Court has “recognized that de novo review is applied
when the sufficiency of an indictment is questioned.” State v. Corra,

223 W. Va. 573

, 578,

678 S.E.2d 306

, 311 (2009) (citation omitted). Further, “[a]n indictment need only meet
5
minimal constitutional standards, and the sufficiency of an indictment is determined by
practical rather than technical considerations.” Syl. pt. 2, in part, State v. Miller,

197 W. Va. 588

476 S.E.2d 535

 (1996).
We have held that our homicide statute, “W. Va. Code, 61-2-1, enumerates
three broad categories of homicide constituting first degree murder: (1) murder by poison,
lying in wait, imprisonment, starving; (2) by any wilful, deliberate and premeditated killing;
(3) in the commission of, or attempt to commit, arson, rape, robbery or burglary.” Syl. pt.
6, State v. Sims,

162 W. Va. 212

248 S.E.2d 834

 (1978). The first category of first-degree
murder contains the lying-in-wait theory and the third category for first degree murder is the
felony-murder component.
We have, on several occasions, been called upon to address the issue of
whether a defendant may be prosecuted on a felony-murder theory when the indictment did
not expressly set out this theory.7 For example, in the case of State v. Bragg,

160 W. Va. 455

235 S.E.2d 466

 (1977), we addressed the issue of whether an indictment for first-degree
premeditated murder had to set out a specific count alleging felony-murder in order for the
7
Although it does not appear that we have addressed the issue of prosecuting
a defendant on a lying-in-wait theory of murder that was not expressly set out in an
indictment, obviously this issue should be resolved in the same manner as the felony-murder
issue.
6
State to present the issue to the jury. The indictment in Bragg merely stated that the
defendant did “feloniously, wilfully, maliciously, deliberately, premeditatedly and
unlawfully” kill the victim. See Bragg, 160 W. Va. at 463,

235 S.E.2d at 471

. However,
during the State’s opening statement in Bragg, it announced that it would present evidence
to support a felony-murder conviction.8 The jury ultimately was instructed on felony-murder
and premeditated murder. The defendant was convicted of premeditated murder. On appeal,
the defendant argued that it was error for the court to instruct the jury on felony-murder
because the indictment did not charge such offense. This Court, in affirming the conviction,
held the following in Syllabus point 5 of Bragg:
An indictment which charges that the defendant
feloniously, wilfully, maliciously, deliberately, premeditatedly
and unlawfully did slay, kill and murder is sufficient to support
a conviction for murder committed in the commission of, or
attempt to commit arson, rape, robbery or burglary, it not being
necessary, under W. Va. Code, 61-2-1, to set forth the manner or
means by which the death of the deceased was caused.

160 W. Va. 455

235 S.E.2d 466

.
The holding in Bragg was applied in State v. Satterfield,

193 W. Va. 503

457 S.E.2d 440

 (1995). The opinion in Satterfield addressed the Bragg felony-murder issue as
follows:
8
Rape of the victim was the underlying crime to sustain the felony-murder
theory.
7
According to the appellant, the indictment charged him
with “feloniously, maliciously, deliberately and unlawfully . . .
slay[ing], kill[ing], and murder[ing] one Billy Harper[.]” The
appellant argues that since the indictment did not reflect that the
murder occurred during a robbery, it was error for the trial judge
to read instructions regarding felony murder. However, this
argument has been rejected previously by this Court in [Bragg,]
a case in which the defendant was convicted under the theory of
felony murder. . . . Thus, it is clear that the indictment did not
need to specifically charge the appellant with felony murder.
Additionally, it follows that it was not error for the trial judge to
read instructions regarding felony murder.
Satterfield, 193 W. Va. at 513,

457 S.E.2d at 450

.
The decision in Bragg also was applied in State v. Hughes,

225 W. Va. 218

691 S.E.2d 813

 (2010). We said the following in Hughes:
In the instant proceeding, the indictment charged only
that Mr. Hughes “did unlawfully, feloniously, maliciously,
willfully, deliberately and with premeditation slay, kill and
murder one Sacha Mitchell.” During the State’s opening
statement, it indicated that, in addition to a premeditated murder
theory, the case would also be prosecuted on a felony murder
theory with burglary being the underlying felony. Although Mr.
Hughes now contends that he was unfairly surprised by the
felony murder theory because it was not set out in the
indictment, our precedents clearly permitted the State to proceed
on a felony murder theory.
Hughes, 225 W. Va. at 225,

691 S.E.2d at 820

. See also State v. Justice,

191 W. Va. 261

445 S.E.2d 202

 (1994) (holding that State could present felony-murder theory even though
indictment did not specifically charge felony murder); State v. Young,

173 W. Va. 1

311 S.E.2d 118

 (1983) (same).
8
In the instant proceeding, the indictment charged only that Mr. Lambert “did
unlawfully, feloniously, maliciously, willfully, deliberately and with premeditation slay, kill
and murder one Cyan Maroney[.]” Three days before the conclusion of the trial, the State
tendered jury instructions to the trial court that contained felony-murder and lying-in-wait
murder theories.9 The State argued, and the trial court agreed, that the evidence supported
instructions on those theories.10 Mr. Lambert contends that he was unfairly surprised by the
injection of felony-murder and lying-in-wait theories. Based upon our precedents, he should
not have been surprised. Our precedents clearly placed him on notice that an indictment
which sets forth a charge of only premeditated murder does not preclude the other categories
of first-degree murder from being used in a prosecution when the evidence supports them.
See

W. Va. Code § 61-2-1

 (1991) (Repl. Vol. 2014) (“In an indictment for murder . . . , it
shall not be necessary to set forth the manner in which, or the means by which, the death of
the deceased was caused, but it shall be sufficient in every such indictment to charge that the
9
Burglary was the purported underlying felony for the felony-murder theory.
10
The actual verdict form was not made part of the record in this appeal.
Further, Mr. Lambert’s brief does not indicate that the verdict form contained entries for each
theory of first-degree murder. Consequently, it is assumed that a general verdict was
returned. See Stuckey v. Trent,

202 W. Va. 498

, 505,

, 424 (1998) (“[N]or
does the absence of a jury verdict form distinguishing [multiple] theories violate due
process.”). It also will be noted that, when the jury returned its verdict, the trial court read
the following from the verdict form:
THE COURT: The verdict form provides the following:
On the charge of first-degree murder, “We, the jury, on the
issues joined, find the Defendant, Jeremy Lambert, guilty of
first-degree murder.”
9
defendant did feloniously, willfully, maliciously, deliberately and unlawfully slay, kill and
murder the deceased.”). Consequently, we find no merit to this assignment of error.11
2. Election of murder theory. Mr. Lambert argued below, and also argues
in this appeal that the State should have been required to elect which murder theory would
be presented to the jury. This Court has held that “[t]he granting of a motion to force the
State to elect rests within the discretion of the trial court, and such a decision will not be
reversed unless there is a clear abuse of discretion.” Syl. pt. 3, State v. Walker,

188 W. Va. 661

425 S.E.2d 616

 (1992).
The issue of election of first-degree murder theories previously has been
addressed by this Court. For example, in the seminal case of Stuckey v. Trent,

202 W. Va. 498

 (1998), we addressed the issue of election between premeditated murder
and felony-murder. The decision in Stuckey was an appeal by the defendant from a trial
11
We wish to make clear that we were not asked under this assignment of error
to decide whether the evidence supported granting instructions on felony-murder and lying-
in-wait murder. Mr. Lambert presented the narrow argument of lack of notice and did not
attack the sufficiency of the evidence to warrant such instructions in this assignment of error.
Assuming, for the sake of argument, that the evidence was insufficient to permit instructions
on felony-murder and lying-in-wait murder, this error alone would not warrant a new trial
because the evidence was sufficient beyond a reasonable doubt to sustain a conviction for
premeditated murder. See Syl. pt. 4, State v. Berry,

227 W. Va. 221

707 S.E.2d 831

(2011)
(“When a defendant is prosecuted on alternative theories of first-degree murder, a verdict
against the defendant will stand if the evidence is sufficient to establish guilt beyond a
reasonable doubt on any of the alternative first-degree murder theories.”).
10
court’s order denying him habeas corpus relief. The defendant was convicted of seven
counts of murder in the first-degree in 1989, and was given seven consecutive life sentences.
In the habeas proceeding, this Court addressed the issue of whether the trial court in the
underlying case committed error in not requiring the State to elect between premeditated
murder and felony-murder. The defendant contended in the habeas appeal that the State’s
failure to elect rendered his trial unfair and constituted a denial of his right to due process.
We rejected this contention. In doing so, the following principle of law was set out in
Syllabus point 5 of Stuckey:
In West Virginia, (1) murder by any willful, deliberate
and premeditated killing, and (2) felony-murder constitute
alternative means under W. Va. Code, 61-2-1 [1987], of
committing the statutory offense of murder of the first degree;
consequently, the State’s reliance upon both theories at a trial
for murder of the first degree does not, per se, offend the
principles of due process, provided that the two theories are
distinguished for the jury through court instructions; nor does
the absence of a jury verdict form distinguishing the two
theories violate due process, where the State does not proceed
against the defendant upon the underlying felony.

202 W. Va. 498

. See also Hughes, 225 W. Va. at 226,

691 S.E.2d at 821

(“Under the decision in Stuckey, the State may seek a conviction for felony murder and
premeditated murder so long as the trial court instructs the jury on the distinction between
the two theories.”).
In the instant proceeding, the trial court followed the decision in Stuckey and
11
instructed the jury separately on each theory of first-degree murder. Consequently, the trial
court did not abuse its discretion in denying Mr. Lambert’s request to force the State to make
an election between the murder theories.
3. Jury instruction on lying-in-wait murder. Mr. Lambert also contends
that the trial court’s instruction on lying-in-wait murder was a misstatement of the law.12 We
have held that “the question of whether a jury was properly instructed is a question of law,
and the review is de novo.” Syl. pt. 1, in part, State v. Hinkle,

200 W. Va. 280

489 S.E.2d 257

 (1996).
We addressed the elements of lying-in-wait murder in State v. Harper,

179 W. Va. 24

365 S.E.2d 69

 (1987). In that decision, we held the following:
“Lying in wait” as a legal concept has both mental and
physical elements. The mental element is the purpose or intent
to kill or inflict bodily harm upon someone; the physical
elements consist of waiting, watching and secrecy or
12
In this assignment of error, Mr. Lambert mentions in passing that he objected
to the lying-in-wait murder instruction at trial on three grounds. The grounds for the
objection at trial were “that the State did not present evidence sufficient to justify such an
instruction, because the defendant had not received notice of this theory of murder and
because the instruction was not a correct statement of the law.” (Emphasis added). Other
than making a passing reference to an insufficiency objection at trial, Mr. Lambert did not
brief that issue as an assignment of error on appeal. We have noted on many occasions that
“casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue
on appeal.” State v. Lilly,

194 W. Va. 595

, 605 n.16,

461 S.E.2d 101

, 111 n.16 (1995). See
note 11, supra, for related comments.
12
concealment. In order to sustain a conviction for first degree
murder by lying in wait pursuant to W. Va. Code, 61-2-1 [1987],
the prosecution must prove that the accused was waiting and
watching with concealment or secrecy for the purpose of or with
the intent to kill or inflict bodily harm upon a person.
Syl. pt. 2, Harper,

179 W. Va. 24

365 S.E.2d 69

. Under Harper, a jury should be instructed
on the mental and physical elements of lying-in-wait murder. Those elements are intent to
kill or harm, waiting, watching, and concealment or secrecy.
In the instant case, the trial court gave the following instruction on the elements
of lying-in-wait murder:
A person is guilty of first-degree murder by lying in wait
when the defendant waits and watches, in either concealment or
in secrecy, for the purpose of or with the intent to kill or inflict
bodily harm upon another. In order to prove a defendant guilty
of first-degree murder by lying in wait, it is not required that
there be any proof that the defendant acted with the specific
intent to kill or with premeditation. In order to prove lying in
wait, the State is not required to prove that the killer was
concealed or that the victim was unaware of his presence. A
defendant acts in secrecy when he relies on the element of
surprise in order to carry out his intent to kill or inflict bodily
harm.
Bodily harm means either substantial physical pain or any
impairment of physical condition. If one places himself in a
position to make a private attack upon his victim and attacks the
victim when the victim does not know or is not aware of his
purpose to kill or inflict bodily harm, the killing constitutes first-
degree murder by lying in wait.
Therefore, if you find from the evidence beyond a
reasonable doubt that this Defendant, Jeremy Lambert, placed
13
himself in a position to make a private attack upon Cyan
Maroney and attacked her when she did not know of his purpose
to kill her or to cause her bodily harm, then you may find this
Defendant guilty of first-degree murder as charged in the
indictment.
We believe that the trial court’s lying-in-wait instruction is not a correct formulation of
Harper.
To begin, the last two sentences of the first paragraph in the instruction are
confusing and misleading. As pointed out in Mr. Lambert’s brief, under the formulation of
the last two sentences “all murders would be murder by lying in wait unless the Defendant
made an announcement or warned the victim of his or her intent to kill.” This is to say that
the last two sentences negate the requirement of waiting, watching and concealment or
secrecy.
Furthermore, the last two paragraphs of the instruction were taken from dicta
in a footnote in our decision in Berry. The Berry defendant was prosecuted for premeditated
murder and lying-in-wait murder in causing the death of two victims. On appeal, the
defendant argued that the evidence was insufficient to sustain convictions for lying-in-wait
murder. The defendant conceded, however, that the evidence was sufficient to sustain
convictions for the premeditated murder theory. As a consequence of this concession, we
determined that the lying-in-wait assignment of error had no merit. Nevertheless, in a
14
footnote, the opinion cited to the Harper formulation of the elements of lying-in-wait murder
and concluded that the evidence was sufficient to establish those elements. Merely in
passing, the opinion cited to the following case from another jurisdiction:
See State v. Leroux,

326 N.C. 368

390 S.E.2d 314

, 320 (1990)
(“‘If one places himself in a position to make a private attack
upon his victim and assails him at a time when the victim does
not know of the assassin’s presence or, if he does know, is not
aware of his purpose to kill him, the killing would constitute a
murder perpetrated by lying in wait.’” (quoting State v. Allison,

298 N.C. 135

257 S.E.2d 417

, 425 (1979))).
Berry, 227 W. Va. at 230 n.21,

707 S.E.2d at

840 n.21. Our citation to Leroux was not
intended as an adoption of North Carolina’s formulation of lying-in-wait murder. See Croft
v. TBR, Inc.,

222 W. Va. 224

, 232,

664 S.E.2d 109

, 117 (2008) (“New rules of law are
announced in syllabus points, not in footnotes.”). Leroux was cited merely to show that an
assailant can be visible in a driveway when a sudden attack is made, as occurred in Berry.13
It was error for the circuit court to instruct the jury using the Leroux standard for lying-in
wait murder.
Even though we find that the instruction on lying-in-wait was incorrect, this
13
In Berry, the defendant was waiting in the driveway of one of the victims, his
former girlfriend, during late evening hours. When his former girlfriend pulled into her
driveway with her new boyfriend in her car, the defendant immediately began shooting into
the car at the new boyfriend before shooting his former girlfriend. The opinion noted that
“[t]estimony was presented by the apartment manager and a law enforcement officer that [the
defendant] would not have been visible to Ms. Mills until she pulled into the driveway.”
Berry, 227 W. Va. at 230 n.21,

707 S.E.2d at

840 n.21.
15
error was harmless. See Miller, 197 W. Va. at 607,

476 S.E.2d at 554

 (1996) (“An erroneous
instruction requires a new trial unless the error is harmless.”). As we previously noted, Mr.
Lambert was prosecuted on three theories of murder. Insofar as we have determined that the
evidence was sufficient to support one of the theories–premeditated murder-the error in the
lying-in-wait instruction would not have altered the outcome of the verdict. See Sanchez v.
State,

376 S.W.3d 767

, 775 (Tex. Crim. App. 2012) (“Considering the entire record, we
conclude that the erroneous jury charge did not result in ‘actual harm’ to appellant.”).
B. Refusal to Give a Voluntary Manslaughter Instruction
The next issue presented by Mr. Lambert is his contention that the trial court
erred in refusing his request to have the jury instructed on voluntary manslaughter. “As a
general rule, the refusal to give a requested jury instruction is reviewed for an abuse of
discretion.” Syl. pt. 1, in part, State v. Hinkle,

200 W. Va. 280

489 S.E.2d 257

.
In State v. McGuire,

200 W. Va. 823

490 S.E.2d 912

 (1997), we commented
on the requirements for showing voluntary manslaughter as follows: “Gross provocation and
heat of passion are not essential elements of voluntary manslaughter, and, therefore, they
need not be proven by evidence beyond a reasonable doubt. It is intent without malice, not
heat of passion, which is the distinguishing feature of voluntary manslaughter.” Syl. pt. 3,
McGuire,

id.

 See also State v. Whittaker,

221 W. Va. 117

, 127,

650 S.E.2d 216

, 226 (2007)
16
(“The absence of malice distinguishes the crime of voluntary manslaughter from the crime
of murder.”). In the case of State v. Jones,

174 W. Va. 700

329 S.E.2d 65

 (1985), we set out
a two-part inquiry for deciding whether an instruction on a lesser included offense should be
given:
The question of whether a defendant is entitled to an
instruction on a lesser included offense involves a two-part
inquiry. The first inquiry is a legal one having to do with
whether the lesser offense is by virtue of its legal elements or
definition included in the greater offense. The second inquiry
is a factual one which involves a determination by the trial court
of whether there is evidence which would tend to prove such
lesser included offense. State v. Neider,

170 W. Va. 662

295 S.E.2d 902

 (1982).
Syl. pt. 1, Jones,

174 W. Va. 700

329 S.E.2d 65

.
The decisions of this Court have recognized that voluntary manslaughter, a
felony under

W. Va. Code § 61-2-4

 (1994) (Repl. Vol. 2014), is a lesser included offense of
murder. See State v. Skeens,

233 W. Va. 232

, 239,

757 S.E.2d 762

, 769 (2014); State v.
Guthrie,

194 W. Va. 657

, 671,

461 S.E.2d 163

, 177 (1995). Therefore, our inquiry under
Jones is only a factual one.
Mr. Lambert contends that the facts demonstrate that he was entitled to an
instruction on voluntary manslaughter based upon the testimony of his expert, Dr. Lawson
Bernstein. According to Mr. Lambert, Dr. Bernstein testified that he suffered from
17
diminished capacity 14 at the time of the killing because he
suffered from multiple mental disorders including post-
traumatic stress disorder, a mood disorder (either major
depressive disorder or bi-polar II disorder), a mixed personality
disorder with prominent borderline features and alcohol
dependence, and that these mental diseases or defects rendered
[him] incapable of premeditating or formulating the intent to kill
Cyan Maroney.
The State argues that the facts show that Mr. Lambert did not present sufficient
evidence to warrant a voluntary manslaughter instruction. Specifically, the State contends
that Mr. Lambert “apparently concedes, there was no evidence that, due to a mental disease
or defe[ct], [he] lacked the capacity to form malice, being the element that distinguishes
14
We have held the following regarding the diminished capacity defense:
The diminished capacity defense is available in West
Virginia to permit a defendant to introduce expert testimony
regarding a mental disease or defect that rendered the defendant
incapable, at the time the crime was committed, of forming a
mental state that is an element of the crime charged. This
defense is asserted ordinarily when the offense charged is a
crime for which there is a lesser included offense. This is so
because the successful use of this defense renders the defendant
not guilty of the particular crime charged, but does not preclude
a conviction for a lesser included offense.
Syl. pt 3, State v. Joseph,

214 W. Va. 525

590 S.E.2d 718

 (2003). What should be clear
about the diminished capacity defense is that “[t]he existence of a mental illness is not alone
sufficient to trigger a diminished capacity defense. It must be shown by psychiatric
testimony that some type of mental illness rendered the defendant incapable of forming the
specific intent elements.” State v. Simmons,

172 W. Va. 590

, 600,

309 S.E.2d 89

, 99 (1983).
Accord State v. Skeens,

233 W. Va. 232

, 239-40,

757 S.E.2d 762

, 769-70 (2014).
18
murder from manslaughter.”
The record in this case demonstrates that Mr. Lambert conceded during the
selection of jury instructions that Dr. Bernstein did not opine that he lacked the capacity to
form malice when he killed Ms. Maroney. Specifically, Mr. Lambert asked the trial court
to strike the following language from a jury instruction that he tendered concerning malice:
“The last – next-to-last sentence where it says, ‘or that he was not capable of doing so with
malice as the result of his mental disease or disorder.’” Our review of the testimony of Dr.
Bernstein and the lower court concession by Mr. Lambert makes it clear that the trial court
properly denied the request for an instruction on voluntary manslaughter. We pointed out
previously that malice is the key element that distinguishes murder from voluntary
manslaughter. Without evidence showing that Mr. Lambert’s mental disease made him
incapable of forming malice at the time of the killing, an instruction on voluntary
manslaughter was correctly rejected.15 Consequently, we find no merit to this assignment of
15
In our review of the record, it appears that the trial court rejected the
instruction on voluntary manslaughter specifically because of the absence of any evidence
of provocation. This ground is not inconsistent with our determination that no evidence of
a mental disease was presented to show that Mr. Lambert lacked the capacity to form malice.
This is because “provocation is used to reduce a murder charge to voluntary manslaughter
by negating the element of malice where the killing was committed in the heat of passion.”
State v. Wade,

200 W. Va. 637

, 645,

490 S.E.2d 724

, 732 (1997). See also State v. Coles,

234 W. Va. 132

, 139 n.18,

763 S.E.2d 843

, 850 n.18 (2014) (“Although we reject the
grounds relied upon by the circuit court, we are free to affirm on different grounds.”); Syl.
pt. 3, Barnett v. Wolfolk,

149 W. Va. 246

140 S.E.2d 466

 (1965) (“This Court may, on
(continued...)
19
error.
C. The State’s Examination of a Rebuttal Witness
Mr. Lambert next       contends that the trial court permitted the State to
improperly conduct direct examination of a rebuttal witness. We generally have held that
“[a] trial court has wide latitude in the conduct of a trial, and particularly in matters
pertaining to the examination of witnesses, and its rulings in relation to the examination of
witnesses will not be reversed except when there has been a plain abuse of its discretion.”
State v. Layton,

189 W. Va. 470

, 502-03,

432 S.E.2d 740

, 772-73 (1993) (internal quotations
and citation omitted). More specifically, in Syllabus point 2 of Belcher v. Charleston Area
Medical Center,

188 W. Va. 105

422 S.E.2d 827

 (1992), we held:
Under Rule 611(a) of the West Virginia Rules of
Evidence, a trial court has broad discretion in permitting or
excluding the admission of rebuttal testimony, and this Court
will not disturb the ruling of a trial court on the admissibility of
rebuttal evidence unless there has been an abuse of discretion.
In this case, the State called Jennifer Osborne as a rebuttal witness. Ms.
Osborne was called to testify about a past relationship she had had with Mr. Lambert that
15
(...continued)
appeal, affirm the judgment of the lower court when it appears that such judgment is correct
on any legal ground disclosed by the record, regardless of the ground, reason or theory
assigned by the lower court as the basis for its judgment.”).
20
included acts of domestic violence.16 During the initial questioning of Ms. Osborne, she
informed the jury that she was a medical doctor, certified in internal medicine, and that she
worked at the University of Virginia Hospital. Mr. Lambert objected to this background
information as irrelevant because Ms. Osborne was not testifying as an expert.17
Mr. Lambert did not cite, either below nor in this appeal, to any legal authority
that precludes general background information from being given by a witness. Such
preliminary information is, in fact, relevant for the jury to have some knowledge about the
person testifying before them. The court in McDaniel v. Commonwealth,

415 S.W.3d 643

(Ky. 2013), addressed this issue.
The defendant in McDaniel was convicted of two counts of first-degree assault
and of being a persistent felony offender. One of the issues raised on appeal was that the
16
Mr. Lambert appears to have dated Ms. Osborne briefly while they were in
high school together. Several years after the relationship ended, Mr. Lambert harassed and
intimidated Ms. Osborne while she was attending college.
17
Mr. Lambert also complains on appeal that the State improperly referred to
Ms. Osborne as “Dr. Osborne” in order to bolster her testimony. The State notes that this
issue is waived because Mr. Lambert did not object during the trial to its reference to Ms.
Osborne as “Dr. Osborne”. We agree with the State that this issue was not properly
preserved. See Petition of Thompson,

191 F. Supp. 545

, 549 (D.N.J. 1961) (“No objection
by petitioner was made to any question to a witness in which Brady was referred to as a
doctor, and therefore, no reviewable error was preserved, nor is any harmful error apparent
upon the record.”). Moreover, even if the issue was properly preserved, we would find no
merit in the argument.
21
prosecutor was improperly allowed to solicit background information about a doctor who was
testifying as a fact witness. The opinion in the case rejected this argument as follows:
Appellant’s first issue with the testimony of Dr. Borzada
is that the doctor was allowed to briefly testify to his education
and training experience. Appellant claims that, if Dr. Borzada
was testifying as a lay witness, he should not have been allowed
to testify as to his qualifications. Appellant does not cite any
cases holding that a lay witness may not answer questions about
his background. Obviously, background information is relevant
to jurors in that it aids in assessing the credibility of fact
witnesses and in determining the weight to give their
testimony–questions within the unique province of the jury.
Whether Dr. Borzada was testifying as a lay witness or as an
expert, there was nothing inappropriate with the Commonwealth
establishing his credibility by inquiring into his background.
McDaniel, 415 S.W.3d at 654.
We agree with the analysis by McDaniel and, therefore, find no merit to this
assignment of error by Mr. Lambert.
D. Admission of a Tape Recorded Psychiatric Interview of Mr. Lambert
Mr. Lambert additionally contends that the trial court committed error in
permitting the State to introduce evidence of a tape recorded interview he had with a
psychiatrist, Dr. Bobby Miller. Mr. Lambert objected to the introduction of the tape
recording of “the interview on the basis that the statements made by Dr. Miller would be
22
hearsay and inadmissible.”18 The State contends that certain trial testimony of Mr. Lambert
was inconsistent with statements he made to Dr. Miller; therefore, the tape recording was
admissible in its entirety for impeachment purposes.
This Court held in Syllabus point 2 of State v. Doonan,

220 W. Va. 8

640 S.E.2d 71

 (2006), that:
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. 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 following principles have been observed regarding the admission of
impeachment evidence:
A statement that is offered to impeach the witness’s
credibility should not be excluded on the grounds of hearsay. A
prior inconsistent or contradictory statement is not offered to
prove the truth of the prior out-of-court statement. . . . It is
offered to raise an inference as to the poor general credibility of
the witness as to all his or her testimony. . . .
18
Mr. Lambert mentions in passing in his brief that the trial court did not allow
him to call Dr. Miller as a witness. However, this issue was not made an assignment of error.
We therefore deem this issue to be waived. See Tiernan v. Charleston Area Med. Ctr., Inc.,

203 W. Va. 135

, 140 n.10,

506 S.E.2d 578

, 583 n.10 (1998) (“Issues not raised on appeal or
merely mentioned in passing are deemed waived.” (citation omitted)).
23
Hearsay statements should not be admitted under the ruse
of impeachment, and this is particularly so when the probative
alue is substantially outweighed by the prejudicial effect. On
the other hand, if the evidence is strongly probative on
credibility, the court has discretion to admit the statement, but
a limiting instruction should be given.
2 Louis J. Palmer, Jr., Robin Jean Davis, & Franklin D. Cleckley, Handbook on Evidence for
West Virginia Lawyers § 802.06[2], at 271-72 (6th ed. 2015). Further, this Court also has
held that:
[W]here a person accused of committing a crime makes a
voluntary statement which is . . . inadmissible in the State’s
case-in-chief . . ., the statement may be admissible solely for
impeachment purposes when the accused takes the stand at his
trial and offers testimony inconsistent with the prior voluntary
statement.
State v. Knotts,

187 W. Va. 795

, 804,

421 S.E.2d 917

, 926 (1992). Additionally, we have
“recognized that a statement is not hearsay if such statement is offered against a party and
is his own statement, in either his individual or representative capacity.” State v. Payne,

225 W. Va. 602

, 610-11,

694 S.E.2d 935

, 943-44 (2010). Finally, we have held that:
Where the out-of-court statements of a non-testifying
individual are introduced into evidence solely to provide
foundation or context for understanding a defendant’s responses
to those statements, the statements are offered for a non-hearsay
purpose and the introduction of the evidence does not violate the
defendant’s rights under Crawford v. Washington,

 (2004) and State v.
Mechling,

219 W. Va. 366

 (2006).
Syl. pt. 4, State v. Lambert,

232 W. Va. 104

750 S.E.2d 657

(2013).
24
The record in the instant case indicates that, during the direct testimony of Mr.
Lambert, the following exchange occurred with his counsel:
Q. Jeremy, did you kill this young lady?
A. Yes, I did. I don’t remember doing it but, yes, I did.
Q. Why? Why did you do that?
A. I don’t know. She did nothing to me that I know of.
Mr. Lambert’s response to the above questions prompted the State to ask him the following
questions during cross-examination:
Q. Dr. Bobby Miller was a psychiatrist chosen by your defense
lawyer, Joe Noggy, correct?[19]
A. Yes.
Q. And when you were interviewed on November 9, 2011, about
a month after the murder, you explained to Bobby Miller that
you killed Cyan because you were, quote, pissed off; correct?
A. I don’t recall that.
Q. Did you also tell Bobby Miller that it was because of
jealousy?
A. I don’t recall saying that.
Q. Do you recall Bobby Miller giving you some advice about
what you should be saying to avoid a first-degree murder
conviction?
19
It appears that Mr. Noggy withdrew as trial counsel before the trial began, and
Mr. Lambert retained different counsel.
25
A. No.
(Footnote added). After Mr. Lambert’s answer to the last question, the State moved the trial
court to introduce the entire tape recording of the interview Mr. Lambert had with Dr.
Miller.20 Mr. Lambert objected solely on the grounds that Dr. Miller’s statements were
inadmissible hearsay.21 It appears that Mr. Lambert also asked the trial court to limit this
evidence only to matters that may have been inconsistent with his trial testimony.22 The trial
court overruled the objection and allowed the entire tape recording of the interview to be
20
The State indicated during the trial that a small part of the interview had been
redacted.
21
To be clear, Mr. Lambert did not argue below or in this appeal that the
principles of State v. Mechling,

219 W. Va. 366

 (2006), and Crawford v.
Washington,

 (2004), were violated by the
introduction of Dr. Miller’s statements. We held in Syllabus point 6 of Mechling:
Pursuant to Crawford v. Washington,

 (2004), the Confrontation Clause
contained within the Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by a
witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity to
cross-examine the witness.

219 W. Va. 366