State of West Virginia v. Michael Wayne Palmer

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent November 8, 2019
EDYTHE NASH GAISER, CLERK
vs.) No. 18-0206 (Summers County 15-F-50) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Michael Wayne Palmer,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Michael Wayne Palmer, by counsel Paul R. Cassell, appeals the Circuit Court
of Summers County’s February 8, 2018, order sentencing him to life in prison. Respondent State
of West Virginia, by counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply.
On appeal, petitioner asserts that the circuit court erred in denying his motion for a mistrial,
admitting evidence in violation of Rule 404(b) of the West Virginia Rules of Evidence, failing to
give a proper limiting instruction with regard to a witness’s testimony, and refusing to admit the
personnel file of an investigating officer. Petitioner also asserts that there was cumulative error.
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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
On August 16, 2015, petitioner approached Allen Vandall, manager of Gene’s Marathon
Store, in the parking lot of the gas station, brandished a black pistol, and forcefully stole a bank
bag containing $1,890.00 in cash, checks, and credit card receipts. After police officers arrived at
the scene, Mr. Vandall and Amanda Moses, a store clerk, reported that petitioner had been the
one to rob Mr. Vandall. Mr. Vandall and Ms. Moses stated they recognized petitioner’s voice
based upon his frequent visits to the store prior to committing the crime. A subsequent
investigation connected petitioner to numerous armed robberies throughout the area based upon
petitioner’s method and similar disguise.
A Summers County Grand Jury returned a single-count indictment against petitioner on
November 17, 2015, charging him with one count of first-degree robbery. Petitioner filed several
pretrial motions seeking the suppression of evidence obtained in a search of his parents’
1
residence, including grommets and zippers surmised to be from a bank bag found in the remnants
of a fire, and police scanners and scanner codes found in the home, and testimony regarding the
same; the disclosure of the criminal record and any inducements made to a jailhouse informant
who claimed that petitioner had confessed to committing the robbery to him; and the limitation
of any prior bad act evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence.1
Petitioner also requested the production of the personnel file of Sgt. David McMillen of the West
Virginia State Police, the officer who conducted the initial investigation into petitioner’s crimes.
A hearing was held on petitioner’s pretrial motions on January 27, 2016. The State
acknowledged that it did not intend to introduce evidence of any zippers or grommets, or any
police scanners, scanner codes, or handcuff keys found at petitioner’s parents’ residence.
By order entered on July 6, 2016, the circuit court ordered the State to produce any
statements given by the jailhouse informant, Gary Toler, and the personnel file of Sgt. McMillen.
The State subsequently moved for a protective order regarding the personnel file and argued that
the evidence was improper impeachment material, was irrelevant, and that the acts for which Sgt.
McMillen had been disciplined had no bearing on his character for truthfulness.2 At a hearing on
the matter, the circuit court granted the protective order and stated that it would review the file
for relevancy. The circuit court later denied petitioner’s motion to introduce the personnel file,
but petitioner raised the issue again at a status hearing, arguing that the information in Sgt.
1
West Virginia Rules of Evidence Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.
(2) Permitted Uses; Notice Required. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. Any party seeking
the admission of evidence pursuant to this subsection must:
(A) provide reasonable notice of the general nature and the specific and precise
purpose for which the evidence is being offered by the party at trial; and
(B) do so before trial – or during trial if the court, for good cause, excuses lack of
pretrial notice.
2
The record indicates that Sgt. McMillen’s personnel file contained information regarding
his reprimand for sexual misconduct.
2
McMillen’s file indicated dishonest or immoral conduct. The circuit court agreed to take the
matter under further advisement.3
On February 21, 2017, the State moved the court to determine the admissibility of certain
evidence prior to trial and filed a notice of intent to use evidence pursuant to Rule 404(b)
regarding petitioner’s prior bad acts, including other robberies committed with the same common
plan or mode of operation in Fayette County, West Virginia. The circuit court held several
hearings on the matter in March of 2017. The State produced the testimony of Detective Kevin
Willis of the Fayette County Sheriff’s Department, who testified that, at the time petitioner was
charged, he was investigating four other robberies that occurred in Fayette County. The robberies
were similar to the robbery allegedly perpetrated by petitioner in that the perpetrator wore
several layers of heavy clothing and disguised his voice through the use of an accent. While the
suspect always fled on foot, video surveillance from one location showed the perpetrator getting
into a gold Jeep Grand Cherokee that was later identified as belonging to petitioner. After
locating petitioner, he fled from officers and began throwing items out of the vehicle, including
cigarettes which were traced to cartons that had been stolen from the stores. Detective Willis
identified witnesses to these other robberies, including Julia Bria, Kelly Asbury, and Linda
Garten. Detective Willis admitted that these witnesses could not positively identify petitioner as
the perpetrator.
Mr. Toler also testified at one of the pretrial hearings. He revealed that he shared a unit
with petitioner in the Southern Regional Jail. While there, Mr. Toler testified that petitioner
confessed to the numerous robberies he committed in Fayette and Summers Counties. Petitioner
told Mr. Toler that he would wear “multiple layers of clothing to make himself look fat, large,
always carried a weapon, and also wore a mask.” Mr. Toler also reported that petitioner admitted
to using an accent to disguise his voice and to leaving the scene on foot before fleeing back to his
vehicle. Lastly, Mr. Toler testified that, during a later encounter, petitioner intimated that he
committed the robbery in the underlying criminal case. Based on this evidence, the circuit court
ordered that both the testimony of Mr. Toler and the Rule 404(b) evidence would be admissible.4
Petitioner’s trial commenced on June 7, 2017. The State presented the testimony of
several witnesses, including Mr. Vandall, Ms. Moses, Detective Willis, Mr. Toler, Sgt.
McMillen, and the witnesses to the Fayette County robberies. During the State’s opening
3
Following this hearing, petitioner requested new counsel at a status hearing held on
September 12, 2016. Petitioner was granted new counsel and the matter was continued several
times.
4
During the final pretrial hearing held in May of 2017, the court was advised that,
although petitioner had been charged with the four robberies in Fayette County, those charges
were being dismissed. The circuit court reaffirmed its prior ruling allowing the admission of
Rule 404(b) evidence with regard to those robberies, but clarified that petitioner could introduce
evidence that those charges were dismissed. Petitioner challenged the circuit court’s ruling and
argued that the witnesses named by Detective Willis would need to testify at trial. The State
agreed to call those witnesses.
3
statement, the prosecutor referenced a police scanner and scanner codes found in the front seat of
petitioner’s car. Petitioner did not object. Also, during Sgt. McMillen’s testimony, he referenced
finding zippers and metal grommets in the remnants of a fire on petitioner’s parents’ property.
Petitioner objected to this testimony, arguing that both parties had previously agreed not to
disclose such evidence. Although the State agreed not to argue any further evidence regarding
the zipper and the grommets, petitioner requested a mistrial, which the circuit court denied.
Petitioner refused any curative instruction, preferring to continue on. At that time, petitioner also
raised issue with the State’s intention to continue referencing the police scanner and scanner
codes, but the circuit court overruled that objection.
Mr. Vandall and Ms. Moses testified that on the night of the robbery, petitioner jumped
from behind a dumpster and pointed a gun at Mr. Vandall, demanding money. Both Mr. Vandall
and Ms. Moses testified that they knew petitioner was the robber because he had frequented their
store multiple times a week and they recognized his voice. Both described petitioner as wearing
multiple layers of clothing in what they assumed was an effort to disguise his identity, wearing a
mask, brandishing a black handgun, and leaving the scene on foot.
Mr. Toler testified that, while housed in the same unit in jail, petitioner admitted to
committing several robberies wherein he attempted to disguise his identity by wearing multiple
layers of clothing, wearing a mask, and using a fake accent.5 Several months later, Mr. Toler
encountered petitioner once again while he was being booked for his arrest based upon the
underlying crime. Mr. Toler testified that he told petitioner he had seen petitioner on television
with regard to the underlying robbery and that petitioner simply grinned, confirming Mr. Toler’s
belief that petitioner was involved.
The State also presented the testimony of three witnesses to robberies committed in
Fayette County. Prior to their testimony, the circuit court gave a limiting instruction, informing
the jury about Rule 404(b) evidence and how it was to be considered only for the purposes of
proving identity, common scheme, or mode of operation. Each witness testified that they had
been robbed by a man who attempted to disguise his identity by wearing multiple layers of
clothing, wearing a mask, and using a fake accent. Each witness testified that the robber
brandished a black handgun and left the scene on foot. None of the victims could identify
petitioner as the perpetrator of the robberies. Detective Willis testified in regard to these
robberies, including that a surveillance video recovered from one of the gas stations robbed
showed a vehicle that was later located at petitioner’s residence. Detective Willis also testified
that, after later initiating a stop of the vehicle, cigarettes were recovered which were tied to one
of the robberies.
Petitioner presented the testimony of one witness who reported that petitioner was at the
witness’s home on the day of the robbery. However, the State produced the testimony of Sgt.
McMillen, who rebutted the witness’s testimony by reporting that he had spoken to the witness
5
Petitioner objected to this testimony, but the circuit court overruled his objection.
Petitioner did not request a limiting instruction, and the circuit court did not provide one to the
jury prior to Mr. Toler’s testimony.
4
and that the witness informed him that he was unable to provide a specific date or time that
petitioner was at his home. During closing arguments, the State again referenced the scanner
codes found in petitioner’s car, but petitioner did not object. At the close of all evidence, the
circuit court again provided a limiting instruction regarding the Rule 404(b) evidence presented
by the State. Following deliberations, the jury returned a guilty verdict on the charge of first-
degree robbery. Subsequently, the State filed a recidivist information, alleging that petitioner had
previously been convicted of several other crimes. In accordance with West Virginia Code § 61-
11-18, the circuit court sentenced petitioner to life imprisonment.6 It is from the February 8,
2018, sentencing order that petitioner appeals.
On appeal, petitioner first argues that the circuit court erred in denying his request for a
mistrial. According to petitioner, the prosecutor referenced several items during the trial that the
former prosecutor agreed not to discuss. These allegedly prejudicial items included a zipper,
metal grommets, police scanners, scanner codes, and clothing items. Petitioner asks this Court to
(1) analyze these comments under State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995), and (2)
to find that the prosecutor’s remarks had a “tremendous tendency” to mislead the jury, were
repeatedly referenced during the trial, prejudiced petitioner, and deliberately diverted the jury’s
attention to extraneous issues. Further, petitioner contends that no curative instruction could
undo the damage that was caused by the remarks and that a mistrial was warranted. We disagree.
We have long held that
[t]he decision to declare a mistrial, discharge the jury and order a new trial in a
criminal case is a matter within the sound discretion of the trial court. A trial court
is empowered to exercise this discretion only when there is a “manifest necessity”
for discharging the jury before it has rendered its verdict. This power of the trial
court must be exercised wisely; absent the existence of manifest necessity, a trial
court’s discharge of the jury without rendering a verdict has the effect of an
acquittal of the accused and gives rise to a plea of double jeopardy.
State v. Lowery, 222 W. Va. 284, 288, 664 S.E.2d 169, 173 (2008) (citations omitted). Regarding
the allegedly improper statements made by the State, this Court has previously held that “[a]
judgment of conviction will not be set aside because of improper remarks made by a prosecuting
attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.”
Sugg, 193 W. Va. at 393, 456 S.E.2d at 474, syl. pt. 5. Indeed, “[t]he test is whether the remarks
‘so infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Id. at 405, 456 S.E.2d at 486. The determination of whether improper prosecutorial
argument “has so prejudiced the trial process as to require reversal must be gauged from the facts
of each trial.” Id. As we held in Syllabus Point 6 of Sugg,
6
West Virginia Code § 61-11-18(c) sets forth that “[w]hen it is determined, as provided in
section nineteen of this article, that such person shall have been twice before convicted in the
United States of a crime punishable by confinement in a penitentiary, the person shall be
sentenced to be confined in the state correctional facility for life.”
5
[f]our factors are taken into account in determining whether improper
prosecutorial comment is so damaging as to require reversal: (1) the degree to
which the prosecutor’s remarks have a tendency to mislead the jury and to
prejudice the accused; (2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced to establish the
guilt of the accused; and (4) whether the comments were deliberately placed
before the jury to divert attention to extraneous matters.
Id. at 393, 456 S.E.2d at 474.
At the outset, we note that petitioner’s motion to limit testimony as to the existence of a
police scanner, scanner codes, or a handcuff key specifically referenced items found in the home
of petitioner’s parents. The motion does not reference a police scanner or scanner codes found in
petitioner’s car, nor did petitioner argue those items at the suppression hearing. Further,
petitioner cites to no motion, nor any portion of the record, wherein he requested that the circuit
court limit the testimony at trial with regard to clothing found in petitioner’s parents’ residence.7
As such, we find no error in any reference to these items. However, to the extent that the State
referenced items it previously agreed not to reference, we now review those statements under
Syllabus Point 6 of Sugg.
Petitioner contends that the State impermissibly referenced items during the testimony of
Sgt. McMillen and its closing argument.8 Specifically, Sgt. McMillen referenced finding a zipper
and metal grommets in a fire, which occurred at petitioner’s parents’ home after police arrived to
question petitioner. The State again referenced the fire, but not the grommets or zipper, during its
closing arguments. Turning to the first factor from Sugg, we note that the degree to which the
prosecutor’s remarks have a tendency to mislead the jury and prejudice petitioner is minimal.
The remarks were brief and in reference to the investigation which Sgt. McMillen conducted
following the robbery. Petitioner failed to object to the first reference of the grommets and
zipper, but successfully objected to further discussion of the items, preventing the jury from
hearing any detailed testimony on those items. Petitioner refused a curative instruction,
preferring instead to move on. Further, the State did not reference these items specifically during
its closing statement and only briefly mentioned investigating a fire at petitioner’s parents’ home.
7
At the suppression hearing, petitioner raised issue with shoes taken from his parents’
home. However, the clothing of which petitioner complains on appeal included items such as
sweatshirts and sweatpants and not the shoes taken from his parents’ home.
8
Petitioner also argues that the State impermissibly referenced certain items during its
opening statement. A review of the record reveals that the items mentioned during the opening
statement were items that petitioner had not previously sought to suppress, including clothing,
and the scanner and codes found in his car. Further, we note that the zipper and grommets were
not specifically referenced in the State’s closing argument. However, the State did reference the
fire in which they were found. Therefore, we will address that statement in accordance with
Sugg.
6
The references likewise fail to satisfy the second factor of Sugg. While petitioner
mentions several instances in which the State impermissibly referenced certain items, only two
instances dealt with items the State agreed not to reference—once during closing argument and
once during Sgt. McMillen’s testimony. As noted, these references were brief. Moreover, absent
these remarks, the evidence presented to establish guilt was strong. Both Mr. Vandall and Ms.
Moses testified that petitioner was the perpetrator of the robbery. Both testified that they had
previously interacted with petitioner on numerous occasions because he frequently entered the
gas station to buy items. Both testified that they knew petitioner was the robber by his voice,
given their frequent interactions with him. Further, Mr. Vandall also indicated that the
perpetrator of the robbery walked similarly to petitioner. Given this testimony, it is clear that
sufficient evidence existed for the jury to find petitioner guilty of the crime, even in light of the
impermissible statements by the prosecutor. Lastly, the State did not deliberately place the
statements before the jury to divert their attention. Indeed, the prosecutor stated that she was
unaware of any agreements the prior prosecutor made on behalf of the State due to the absence
of any order on the issue of suppression. After the circuit court clarified that the State had agreed
not to reference the grommets and zippers, the prosecutor made no further reference to those
items. Again, any reference to scanners or scanner codes were specifically clarified as those
found in petitioner’s car, not his parents’ residence. Based on the foregoing, we find that the
State’s references to any items it had previously agreed not to discuss were not so prejudicial as
to result in a manifest injustice necessitating a mistrial. Accordingly, petitioner is entitled to no
relief in this regard.
Petitioner next argues that the circuit court erred in admitting evidence of prior bad acts
pursuant to Rule 404(b).9 Petitioner contends that the circuit court erred in allowing into
9
As part of his argument, petitioner claims that his right to a fair trial was not adequately
preserved because, in the name of Rule 404(b) evidence, Detective Willis was permitted to
testify to an investigation regarding the stolen cigarettes found in petitioner’s possession.
Petitioner claims that the admission of this evidence was plain error because it violated his rights
under the Confrontation Clause since he was not able to question the person who informed
Detective Willis that the cigarettes were stolen. Specifically, petitioner claims that the statement
is clearly testimonial and that there was no showing that the witness was unavailable for trial.
“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). In regard to petitioner’s Confrontation Clause claim, we note that
“[p]ursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (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.” Syllabus Point 6, State v.
Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).
(continued . . .)
7
evidence Rule 404(b) evidence which was not sufficiently proven to be acts committed by
petitioner. Specifically, petitioner argues that the evidence presented regarding the other
robberies committed in Fayette County was insufficient to prove that petitioner was the
perpetrator in those cases. Petitioner argues that none of the store clerks who testified at trial
testified at the McGinnis10 hearing held on the matter, the surveillance video referenced by
Detective Willis was never admitted into evidence, and no evidence regarding one of the
robberies was offered at trial. Further, the store clerks’ testimony varied greatly. Despite the fact
that those witnesses testified that the perpetrator used an accent, no accent was reported by either
Mr. Vandall or Ms. Moses. Further, one clerk reported that the perpetrator used a mask to hide
his face, while another testified that a blanket or towel had been used to obscure the perpetrator’s
identity. None of the clerks could positively identify petitioner as the perpetrator of those
Syl. Pt. 1, State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727 (2012). However, even if we assume
petitioner’s contention is true, we find the introduction of such evidence was harmless. We have
stated that violation of a constitutional right constitutes reversible error unless that error is
harmless beyond a reasonable doubt. Mechling, 219 W. Va. at 371, 633 S.E.2d at 316. Further, in
State v. Bruffey, 231 W. Va. 502, 745 S.E.2d 540 (2013) this Court addressed a similar situation
wherein a police officer testified that he identified the defendant’s car because a witness reported
that the defendant’s car was near the scene of the crime. Id. at 512, 745 S.E.2d at 550. The
defendant in Bruffey argued that the officer’s testimony violated the Confrontation Clause
because the witness was not present at trial. This Court held that the statement of the nontrial
witness was harmless error because the statement had not been introduced to inculpate the
defendant, the defendant had never denied owning the vehicle in question, and the statement was
simply part of the res gestae of the officer’s investigation. We find the same to be true for this
case.
First, Detective Willis’ comment about the witness who reportedly purchased stolen
cigarettes from petitioner was not introduced to inculpate petitioner in the crime charged. Rather,
it was presented as part of the Rule 404(b) evidence establishing a common scheme or mode of
operation with regard to the Fayette Country robberies. While petitioner did not deny that the
cigarettes were his, like the defendant in Bruffey, we emphasize that petitioner was observed
throwing cigarettes out of his car while fleeing the police, those cigarettes were recovered, and
their tax stamp was traced to the cigarettes stolen in one of the robberies. As such, even apart
from this seemingly corroborating statement by the nontrial witness, Detective Willis gathered
other cigarettes during the course of the investigation that also connected petitioner to the crime.
Additionally, this knowledge was part of the res gestae of the officer’s investigation. Lastly, we
note that contrary to petitioner’s assertion, Detective Willis testified that the nontrial witness was
deceased as of the time of the trial.
Again, even assuming that petitioner’s contentions were true that there was an error that
was plain and affected his substantial rights, the nontrial witness’s statement did not seriously
affect the fairness of the trial given the facts of this case. Any error herein was harmless.
10
State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
8
robberies. According to petitioner, the evidence presented was simply insufficient to support a
finding that petitioner was the perpetrator of those robberies. We disagree.
We have held that “[a] trial court’s evidentiary rulings, as well as its application of the
Rules of Evidence, are subject to a review under an abuse of discretion standard.” Syl. Pt. 4,
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). “Our function . . . is limited to the
inquiry as to whether the trial court acted in a way that was so arbitrary and irrational that it can
be said to have abused its discretion.” McGinnis, 193 W. Va. at 159, 455 S.E.2d at 528.
Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” However, the rule goes on to provide that “[t]his evidence may
be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” The procedure for admitting
evidence under Rule 404(b) is outlined in Syllabus Point 2 of McGinnis as follows:
Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
evidence, the trial court should conduct an in camera hearing as stated in State v.
Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
arguments of counsel, the trial court must be satisfied by a preponderance of the
evidence that the acts or conduct occurred and that the defendant committed the
acts. If the trial court does not find by a preponderance of the evidence that the
acts or conduct was committed or that the defendant was the actor, the evidence
should be excluded under Rule 404(b). If a sufficient showing has been made, the
trial court must then determine the relevancy of the evidence under Rules 401 and
402 of the West Virginia Rules of Evidence and conduct the balancing required
under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
the limited purpose for which such evidence has been admitted. A limiting
instruction should be given at the time the evidence is offered, and we recommend
that it be repeated in the trial court’s general charge to the jury at the conclusion
of the evidence.
193 W. Va. at 151, 455 S.E.2d at 520. The record shows, and petitioner concedes, that the circuit
court held a McGinnis hearing at which the State presented evidence from Detective Willis and
Mr. Toler regarding the Fayette County robberies. Evidence presented at that hearing included
Detective Willis’s testimony that petitioner was a suspect in those robberies because his car was
placed at the scene. Further, the cigarettes found in petitioner’s possession were traced to the
cigarettes stolen in one of the robberies. Mr. Toler corroborated this evidence by testifying that
petitioner admitted to committing a string of robberies in the area and admitted to employing
methods similar to that of the perpetrator of those robberies. Contrary to petitioner’s argument,
the circuit court concluded that “there’s enough evidence to meet the State’s burden of proof to
show by a preponderance of the evidence that [petitioner] was involved in those other robberies.”
The circuit court also determined that the evidence was relevant and that its probative value
9
outweighed any prejudicial effect. Finally, the State told the jury numerous times that it was to
consider the evidence only for the purpose of determining a common scheme or mode of
operation, and the circuit court provided a limiting instruction prior to the store clerk’s testimony
and its instructions to the jury. Given the evidence presented and the circuit court’s compliance
with the procedure set forth in McGinnis, we find no abuse of discretion in the circuit court’s
decision to admit the evidence of which petitioner complains. Therefore, petitioner is entitled to
no relief.
Petitioner also argues that the circuit court erred in failing to provide a limiting
instruction prior to Mr. Toler’s testimony, which included testimony regarding Rule 404(b)
evidence. Petitioner concedes that he did not request a limiting instruction at this time, but claims
that the circuit court’s failure to provide one was plain error. Upon our review, we find that any
error was harmless under the facts of this case.
Petitioner correctly notes that in McGinnis, this Court held that “[a] limiting instruction
should be given at the time the evidence is offered, and we recommend that it be repeated in the
trial court’s general charge to the jury at the conclusion of the evidence.” Id. at 151, 455 S.E.2d
at 520, syl. pt. 2, in part. However, this Court also noted that “where requested, the trial court is
required to give a limiting instruction.” Id. at 156, 455 S.E.2d at 525 (emphasis added). Further,
although this Court emphasized that “we strongly recommend that the instruction be given unless
it is objected to by the defendant,” we also noted that “a trial court is not obligated to give a
limiting instruction unless requested.” Id. Here, petitioner did not raise any objection to the
circuit court’s failure to provide a limiting instruction. Nevertheless, to the extent that the circuit
court might have erred in failing to provide a limiting instruction prior to Mr. Toler’s testimony,
we find any error to be harmless for the following reasons. First, and most importantly, the
circuit court provided a limiting instruction prior to the store clerks’ testimony regarding the
Rule 404(b) evidence surrounding the Fayette County robberies. The court instructed the jury
that it was only to consider the evidence regarding those robberies to determine a common
scheme or mode of operation. The circuit court provided another limiting instruction during its
charge to the jury. Additionally, the prosecutor instructed the jury numerous times that the
testimony regarding those robberies was to be considered only for the purpose of determining a
common plan or mode of operation. Any testimony provided by Mr. Toler would have regarded
the same Rule 404(b) evidence covered by the limiting instruction provided by the circuit court
before the other witnesses’ testimony and in its general charge to the jury. Second, there was
substantial evidence of petitioner’s guilt as to the crime charged. Mr. Vandall and Ms. Moses
testified as to the robbery in question and both were able to identify petitioner as the perpetrator
due to their frequent interactions with him prior to the robbery. Accordingly, we find that to the
extent that there was any error committed by the circuit court in failing, sua sponte, to provide a
limiting instruction prior to Mr. Toler’s testimony, it did not affect the fairness of the
proceedings under a plain error analysis and any error that did occur was harmless.
Petitioner next assigns as error the circuit court’s refusal to admit the personnel file of
Sgt. McMillen. According to petitioner, he developed evidence that Sgt. McMillen had been
reprimanded for “significant misconduct” that was described in the personnel file as
“unbecoming[] misconduct of a substantial nature affecting the rights and interests of the public,
or that casts aspersions or doubt on a law enforcement officer’s honesty or integrity.” Petitioner
10
contends that the circuit court erred in determining that the information was not relevant to the
testimony provided by Sgt. McMillen and in refusing to admit the file pursuant to West Virginia
Rules of Evidence Rule 608(b).11 We find petitioner’s argument to be without merit.
“‘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.’ Syllabus point 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).”
Syl. pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006).
Syl. Pt. 4, State v. Bowling, 232 W. Va. 529, 753 S.E.2d 27 (2013). Further,
it is well settled that a party may not present extrinsic evidence of specific
instances of conduct to impeach a witness on a collateral matter. See
W.Va.R.Evid. 608(b). A matter is considered noncollateral if “the matter is itself
relevant in the litigation to establish a fact of consequence[.]” 1 McCormick On
Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of
Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).
State v. Guthrie, 194 W. Va. 657, 680 n.31, 461 S.E.2d 163, 186 n.31 (1995). Here, petitioner’s
initial counsel sought to have Sgt. McMillen’s personnel file admitted into evidence. However,
after that counsel withdrew and another was appointed, petitioner’s second counsel requested
time to familiarize himself with the case and noted that he was “having a real struggle” and that
“[petitioner] and [prior counsel’s] plan was to put Trooper McMillan [sic] on trial for sexual
misconduct. That was the plan.” There is no evidence in the record that any of the files
documenting the reprimand Sgt. McMillen received in the course of his duties was related to the
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Rule 608(b) sets forth the following:
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule
609, extrinsic evidence is not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for truthfulness. But
the court may, on cross-examination of a witness other than the accused, allow
them to be inquired into if they are probative of the character for truthfulness or
untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has
testified about.
By testifying on another matter, a witness does not waive any privilege against
self-incrimination for testimony that relates only to the witness’s character for
truthfulness.
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case at bar, or whether his testimony was truthful. Any evidence from the file regarding this
alleged sexual misconduct that would have been used to impeach Sgt. McMillen was
noncollateral and irrelevant to the litigation at hand. Further, petitioner cites to no portion of the
record establishing that his second counsel continued to request the personnel file after he opined
on what petitioner’s true motives for the file were. Based on the foregoing, we find no abuse of
discretion in the circuit court’s decision to exclude the personnel file from evidence.
Lastly, petitioner argues that this Court should grant him relief based upon cumulative
error. Pursuant to the cumulative error doctrine, there must be “numerous” errors:
Where the record of a criminal trial shows that the cumulative effect of numerous
errors committed during the trial prevented the defendant from receiving a fair
trial, his conviction should be set aside, even though any one of such errors
standing alone would be harmless error. Syl. pt. 5, State v. Smith, 156 W.Va. 385,
193 S.E.2d 550 (1972)
State v. Tyler G., 236 W. Va. 152, 165, 778 S.E.2d 601, 614 (2015). Further, “[t]wo errors do not
constitute ‘numerous’ for purposes of the cumulative error doctrine.” Id. Assuming, for the sake
of argument, that the “errors” in this case were numerous, they collectively 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.” Id. (citing 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)).
Although we noted no specific errors here, to the extent that there were multiple harmless errors
found in this case, the State’s reference of the zippers and grommets, the failure of the circuit
court to provide a limiting instruction prior to Mr. Toler’s testimony, and Detective Willis’s
testimony regarding a nontrial witness’s statement are clearly insignificant errors in light of the
strong testimony of petitioner’s guilt solicited from Mr. Vandall and Ms. Moses. We therefore
reject petitioner’s attempt to rely on the cumulative error doctrine.
For the foregoing reasons, we affirm the circuit court’s February 8, 2018, sentencing
order.
Affirmed.
ISSUED: November 8, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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