State of West Virginia v. Gary Lee Rollins ( 2014 )

No. 13-0099 – State of West Virginia v. Gary Lee Rollins
FILED
June 17, 2014
released at 3:00 p.m.
WORKMAN, Justice, concurring: RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
While I concur with the result reached by the majority in affirming the
Petitioner’s conviction, as well as the concurring opinion by Justice Loughry, I write
separately to emphasize that the analysis employed by the circuit court in its twenty-eight
page order allowing the photographic evidence of domestic violence to be admitted at trial
was very thorough, well-reasoned and supported by the facts and law. As the circuit court
determined, the victim’s statements to two other individuals relating to the photographs were
not offered for the truth of the matter asserted and, therefore, were not hearsay. See W. Va.
R. Evid. 801(c) (“Hearsay’ is a statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”). As this Court has previously held
‘Generally, out-of-court statements made by someone
other than the declarant while testifying are not admissible
unless: 1) the statement is not being offered for the truth of the
matter asserted, but for some other purpose such as motive,
intent, state-of-mind, identification or reasonableness of the
party’s action; 2) the statement is not hearsay under the rules; or
3) the statement is hearsay but falls within an exception
provided for in the rules.’ Syl. Pt. 1, State v. Maynard, 183 W.
Va. 1, 393 S.E.2d 221 (1990).
Syl. Pt. 3, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010); see State v. Kaufman, 227
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W. Va. 537, 552, 711 S.E.2d 607, 622 (2011); see also State v. Phillips, 194 W. Va. 569,
592, 461 S.E.2d 75, 98 (1995)(Workman, dissenting)(discussing statements made by victim
at a time close to her death about defendant’s extramarital affairs and girlfriends not being
offered for the truth of the matter asserted, but “to circumstantially prove the Defendant’s
motive to murder his wife[,]”and further opining that “to conclude, as the majority essentially
does, that these statements do not establish such a motive or that motive is irrelevant in a case
where the Defendant claims ‘accidental killing’ is, quite frankly, absurd!”), overruled on
other grounds by State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013). Thus, the
circuit court correctly reasoned that the statements involving the photographs were “not being
offered for the truth of the matter asserted, but are, rather, being admitted solely for the
purpose of identifying the bruises seen in the photographs. Accordingly, and so long as the
statements are only used for identification purposes, they do not constitute inadmissible
hearsay.” In other words, the statements were offered to show that the bruises were not
something that happened to the decedent accidentally; rather they were alleged to have been
intentionally inflicted upon the decedent by the Petitioner.
Notwithstanding the circuit court’s conclusion that the statements made in
conjunction with the photographs were not hearsay, the circuit court proceeded to analyze
whether the statements would fall within any of the exceptions to the hearsay rule. Once
again, the circuit court correctly determined that even if it had found that the statements were
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hearsay, they were still admissible under either Rule 803 of the West Virginia Rules of
Evidence concerning present-sense impression or Rule 804(b)(5) of the West Virginia Rules
of Evidence regarding the catch-all exception. The circuit court very methodically set forth
why the statements at issue were admissible under both exceptions.
After concluding that the statements at issue were admissible under the hearsay
rules, the circuit court continued its analysis by examining the statements under the
Confrontation Clause. Upon exploring the statements under State v. Mechling, 219 W. Va.
366, 633 S.E.2d 311 (2006), the circuit court arrived at the legally sound conclusion that the
statements made by the victim, Teresa Collins, to two separate individuals regarding her
bruises and injuries were nontestimonial for purposes of the Confrontation Clause. As this
Court has previously stated in Kaufman,
Unlike testimonial out-of-court statements,
nontestimonial statements may be admissible in a criminal trial
if it is shown that the witness was unavailable for trial, and that
the witness’s statement bore adequate indicia of reliability. See
Mechling, 219 W. Va. at 371, 633 S.E.2d at 316. In syllabus
point five of James Edward S., we held that
[e]ven though the unavailability
requirement has been met, the Confrontation
Clause contained in the Sixth Amendment to the
United States Constitution mandates the exclusion
of evidence that does not bear adequate indicia of
reliability. Reliability can usually be inferred
where the evidence falls within a firmly rooted
hearsay exception.
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However, where such statements are not offered under a
hearsay exception considered to be “firmly-rooted,” then the
statements are presumptively unreliable and must be excluded
“at least absent a showing of particularized guarantees of
trustworthiness.’” James Edward S., 184 W.Va. at 414, 400
S.E.2d at 849 (internal quotations omitted).
Kaufman, 277 W. Va. at 551-52, 711 S.E.2d at 621-22 (footnote omitted).
Finally, I want to stress the importance of prior domestic violence evidence
between the deceased and the defendant in cases such as this. In this case the evidence was
offered and found admissible under West Virginia Rule of Evidence 404(b) to show absence
of mistake or accident. Evidence of prior acts of domestic violence also would have been
admissible in this case to show motive, or even intent. See id. As we have previously stated,
“[t]he circumstances under which such evidence may be found
relevant and admissible under the Rule have been described as
‘infinite.’ Some of such circumstances are set forth in the Rule
itself, but the cataloguing therein is merely illustrative and not
exclusionary.” Consequently, W. Va. R. Evid. 404(b) is an
“inclusive rule” in which all relevant evidence involving other
crimes or acts is admitted at trial unless the sole purpose for the
admission is to show criminal disposition.
State v. Edward Charles L., 183 W. Va. 641, 647, 398 S.E.2d 123, 129 (1990)(quoting U.S.
v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)). Moreover, this Court has previously found that
acts of violence between the defendant and deceased are admissible. See State v. LaRock,
196 W. Va. 294, 313, 470 S.E.2d 613, 632 (1996) (addressing father’s conviction for the
murder of his infant son and explaining that “[e]vidence of the prior attacks and beatings not
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only demonstrated the motive and setup of the crime but also was necessary to place the
child’s death in context and to complete the story of the charged crime. We hold that
historical evidence of uncharged prior acts which is inextricably intertwined with the charged
crime is admissible over a Rule 403 objection.”); State v. Smith, 178 W. Va. 104, 108 n.2,
358 S.E.2d 188, 192 n.2 (1987) (“As to the relevancy of other violent acts between a
defendant and a deceased, courts have generally permitted such evidence to show ill will or
hostility as bearing upon intent, malice and motive for the homicide.”).
For the foregoing reasons, I respectfully concur.
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