State of West Virginia v. Darnell Carlton Bouie

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
_______________ FILED
June 16, 2015
released at 3:00 p.m.
No. 14-0639 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
DARNELL CARLTON BOUIE,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Harrison County
The Honorable James A. Matish, Judge
Criminal Action No. 13-F-76-3
AFFIRMED
____________________________________________________________
Submitted: May 12, 2015
Filed: June 16, 2015
Chad L. Taylor, Esq. James Armstrong, Esq.
Simmerman Law Office, PLLC Assistant Prosecuting Attorney
Clarksburg, West Virginia Harrison County Prosecuting
Attorney’s Office
James E. Hawkins, Jr., Esq. Clarksburg, West Virginia
Buckhannon, West Virginia Counsel for the Respondent
Counsel for the Petitioner
JUSTICE BENJAMIN delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “‘This Court is constitutionally obligated to give plenary,
independent, and de novo review to the ultimate question of whether a particular
confession is voluntary and whether the lower court applied the correct legal standard in
making its determination. The holdings of prior West Virginia cases suggesting deference
in this area continue, but that deference is limited to factual findings as opposed to legal
conclusions.’ Syl. Pt. 2, State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994).” Syl. pt.
2, State v. Marcum, 234 W. Va. 415, 765 S.E.2d 304 (2014).
2. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
3. “The function of an appellate court when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant's guilt beyond a reasonable doubt.” Syl. pt. 1, in part,
State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
i
4. “An adversary judicial criminal proceeding is instituted against a
defendant where the defendant after his arrest is taken before a magistrate pursuant to
W.Va.Code, 62-1-5 [1965], and is, inter alia, informed pursuant to W.Va.Code, 62-1-6
[1965], of the complaint against him and of his right to counsel.” Syl. pt. 1, in part, State
v. Gravely, 171 W. Va. 428, 299 S.E.2d 375 (1982).
5. “Pursuant 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.” Syl. pt. 6, State v. Mechling, 219 W. Va.
366, 633 S.E.2d 311 (2006).
6. “‘Under the Confrontation Clause contained within the Sixth
Amendment to the United States Constitution and Section 14 of Article II of the West
Virginia Constitution, a testimonial statement is, generally, a statement that is made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’ Syl. Pt. 8, State v. Mechling, 219
W.Va. 366, 633 S.E.2d 311 (2006).” Syl. pt. 8, State v. Kaufman, 227 W. Va. 537, 711
S.E.2d 607 (2011).
ii
7. “The admission of demonstrative evidence rests largely within the
trial court’s discretion, and an appellate court will not interfere unless the trial court has
abused that discretion.” Syl. pt. 14, in part, State v. Bradshaw, 193 W. Va. 519, 457
S.E.2d 456 (1995).
8. “‘In order for a lay witness to give opinion testimony pursuant to
Rule 701 of the West Virginia Rules of Evidence (1) the witness must have personal
knowledge or perception of the facts from which the opinion is to be derived; (2) there
must be a rational connection between the opinion and the facts upon which it is based;
and (3) the opinion must be helpful in understanding the testimony or determining a fact
in issue.’ Syllabus point 2, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999),
modified, State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003).” Syl. pt. 9, State v.
McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014).
9. “‘“In order for the State to prove a conspiracy under W.Va.Code, 61­
10-31(1), it must show that the defendant agreed with others to commit an offense against
the State and that some overt act was taken by a member of the conspiracy to effect the
object of that conspiracy.” Syllabus Point 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62
(1981).’ Syllabus Point 6, State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988).” Syl.
pt. 3, State v. Stevens, 190 W. Va. 77, 436 S.E.2d 312 (1993).
iii
10. “A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that the jury might have drawn
in favor of the prosecution. The evidence need not be inconsistent with every conclusion
save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury verdict should be
set aside only when the record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt.” Syl. pt. 3, in part, State
v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
iv
Benjamin, Justice:
Darnell Carlton Bouie appeals the circuit court’s entry of judgment against
him on the jury’s verdict, convicting him of the felony murder of Jayar Poindexter and of
conspiracy to commit burglary of Poindexter’s residence. Discerning no error in the
proceedings below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the prosecution’s evidence at trial, at about 3:15 a.m. on
January 13, 2010, Bouie joined with Ennis Charles Payne to steal money and drugs from
Poindexter’s Clarksburg apartment. The pair had arrived at the apartment complex with
three other men, who waited with the group’s two vehicles parked some distance away.
As Bouie and Payne prepared to enter a rear bedroom window, they unexpectedly
encountered Poindexter, who had left his bed to investigate upon hearing the duo
approach. During the confrontation that followed, Payne fired his .25 caliber pistol
through the window into Poindexter’s chest, killing him. In September 2012, arrest
warrants were issued for Bouie and Payne. At the time, Bouie was incarcerated in Butler
County, Pennsylvania, in connection with another criminal proceeding, where he
remained while awaiting extradition to West Virginia.
On October 25, 2012, the lead investigator of the murder, Sergeant Josh
Cox of the Clarksburg Police Department, arrived in Pennsylvania to serve Bouie with
1
the arrest warrant and take him back to West Virginia. Sergeant Cox transported Bouie
to the police station for processing, then to the North Central Regional Jail in Doddridge
County. On the way to the jail, Sergeant Cox stopped at a gas station to refuel his
cruiser. While the cruiser was being refueled, Bouie asked to see a copy of the criminal
complaint against him. Sergeant Cox complied, and at trial, he related the conversation
that ensued:
Q. Once Mr. Bouie looked at the criminal complaint what
did he say?
A. He asked me why was he charged [with murder]
because he was not the shooter.
Q. What was your response?
A. I said because you guys went up there to break into his
house.
Q. And at that point in time what did he respond with?
A. He stated that he just walked around the residence, and
that him and the victim were friends.
Q. Okay. Did he state that he was there at the window at
the time that this happened?
A. No, he just said he walked around the residence.1
1
Sergeant Cox’s trial testimony concerning the conversation was not materially
different from the account he gave at a pretrial hearing on October 31, 2013. During the
hearing, it was revealed on cross-examination that Sergeant Cox: (1) informed Bouie that
not all the evidence was set forth in the complaint; (2) asserted that he could prove Bouie
was at the crime scene; and (3) ruminated that he had spent three years trying to get
Bouie’s side of the story. Nonetheless, an examination of the hearing transcript and of
the circuit court’s ruling leads to the ineluctable conclusion that any portion of the
(continued . . .)
2
Shortly after his arrival at the North Central Regional Jail, Bouie was
transferred to the Central Regional Jail in Braxton County. The grand jury subsequently
returned a two-count indictment against Bouie and Payne on May 7, 2013, charging each
with the felony murder of Poindexter and with conspiracy to commit burglary of
Poindexter’s residence. Thereafter, the circuit court granted Bouie’s motion to sever his
trial from that of Payne.
Bouie’s jury trial commenced on March 17, 2014, and it continued for five
days. Among the trial witnesses was Aaron Carey, an acquaintance of Payne, who
testified that mere days after the murder, Payne confided to him that “he had shot
somebody in a robbery” to procure money and drugs. The prosecution also produced
evidence of Bouie’s phone calls from the Central Regional Jail, during which he
volunteered:
10/31/2012 — “I know the only thing they got is that print
man, that’s the [expletive] it. And that ain’t enough to
convict nobody of no murder or nothing.”
11/02/2012 — “I already know what they got – they got that
one [expletive] print and that’s the [expletive] it. E needs to
get that discovery.”
conversation that might have been considered provocative on Sergeant Cox’s part
occurred only after Bouie had already made the statements ultimately admitted against
him.
3
12/04/2012 — “If I would have [expletive] listened I
wouldn’t even be in none of this shit, I should have then
changed my [expletive] life around. I don’t think that
[expletive] E.C. is saying nothing man.”2
No fingerprint evidence was discovered at the crime scene. Instead, the investigators
found two sets of footprints in the snow beneath Poindexter’s bedroom window, one
made by boots and the other by sneakers. The prosecution attempted to link the latter set
of footprints to the shoes that Bouie appeared to be wearing in surveillance videos taken
the night of the murder.
The videos led Sergeant Cox to believe that the shoes were Nike Air Force
One sneakers. Upon conducting an internet search, Sergeant Cox found sneakers of that
brand for sale on eBay; the offered shoes were of a similar color to those in the video,
that is, they were white with blue outsoles. Sergeant Cox purchased the shoes and sent
them to the FBI at Quantico, Virginia, together with casts and photos of footwear
impressions taken from the snow-covered ground outside Poindexter’s apartment, as well
as screen captures of the videos in which the shoes were shown. An FBI expert testified
at trial that the comparison revealed “areas of similarity” between the exemplar shoes and
the crime scene impressions, but that he could not conclude that the impressions had been
made by the exemplar brand.
2
Bouie’s mentions of “E” and “E.C.” appear to have been intended to refer to
Payne.
4
A second FBI expert testified that the video evidence was of insufficient
quality to allow her to conclude that Bouie had been wearing the exemplar brand while
on camera. The latter expert nonetheless noted, much as her colleague had, “several
similarities” between the exemplar shoes and those worn by Bouie. Thereafter, Sergeant
Cox testified in agreement with counsel’s questioning that, based on his lay observations,
he discerned “similarities in coloration and design” between the exemplar and
photographed shoes, and “similarities between the sole pattern of the [e]xemplar shoes
and the sneaker foot impressions left outside the victim’s apartment.”
The jury was charged and the parties presented their closing arguments on
March 21, 2014. After deliberating for about two hours, the jury found Bouie guilty on
both counts alleged in the indictment. In accordance with the jury’s recommendation, the
circuit court sentenced Bouie to life with mercy on his conviction of felony murder, and
to an indeterminate sentence of imprisonment from one to five years on the conviction of
conspiracy to commit burglary. From the judgment of conviction entered May 19, 2014,
Bouie appeals.
II. STANDARD OF REVIEW
In evaluating the admissibility of inculpatory statements given by an
accused in police custody, we are “‘constitutionally obligated to give plenary,
5
independent, and de novo review to the ultimate question of whether a particular
confession is voluntary and whether the lower court applied the correct legal standard in
making its determination.’” Syl. pt. 2, in part, State v. Marcum, 234 W. Va. 415, 765
S.E.2d 304 (2014) (quoting syl. pt. 2, State v. Farley, 192 W. Va. 247, 452 S.E.2d 50
(1994)). A defendant’s constitutional rights may also, on occasion, be implicated by the
admission of certain evidence against him at trial. Nonetheless, “a trial court’s rulings on
the admissibility of evidence, ‘including those affecting constitutional rights, are
reviewed under an abuse of discretion standard.’” State v. Kennedy, 229 W. Va. 756,
763, 735 S.E.2d 905, 912 (2012) (quoting State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d
47, 51 (1996)) (internal citation omitted).
Bouie’s statements at the Central Regional Jail are alleged to have been
procured in violation of West Virginia Code § 31-20-5e (2002), governing phone calls by
prisoners. The issue presents “a question of law or involv[es] an interpretation of a
statute,” requiring de novo review. Syl. pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995).
Finally, in evaluating the sufficiency of the evidence supporting one or
more of a defendant’s convictions, our function “is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt.” Syl. pt. 1, in part,
6
State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We may sustain the
defendant’s challenge to a particular conviction only if we fail to assure ourselves that,
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proved beyond a
reasonable doubt.” Id.
III. ANALYSIS
A. Bouie’s Statements to Sergeant Cox
Within a month following the indictment, on June 4, 2013, the prosecution
moved to determine the admissibility of Bouie’s statements made to Sergeant Cox in the
police cruiser on the way to jail. The circuit court carefully considered the matter,
holding its decision in abeyance until shortly before trial, when, on March 12, 2014, it
entered a written order granting the prosecution’s motion and declaring the statements
admissible. Bouie maintains that the circuit court’s ruling violated his Fifth Amendment
privilege against self-incrimination and his Sixth Amendment right to counsel. With
respect to the latter contention, Bouie points out that he made the statements while yet
under detainer with respect to the Pennsylvania proceeding, in which he was represented
by an attorney. Bouie emphasizes that he did not waive counsel’s presence prior to
giving his inculpatory statements.
7
1. Sixth Amendment Right to Counsel
The Sixth Amendment right to counsel attaches “‘at or after the initiation of
adversary judicial criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.’” State v. Moore, 158 W. Va. 576, 582,
212 S.E.2d 608, 612 (1975) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). We
have elaborated that “[a]n adversary judicial criminal proceeding is instituted against a
defendant where the defendant after his arrest is taken before a magistrate . . . and is,
inter alia, informed . . . of the complaint against him and of his right to counsel.” Syl. pt.
1, State v. Gravely, 171 W. Va. 428, 299 S.E.2d 375 (1982).
Moreover, the right to counsel afforded by the Sixth Amendment is
offense-specific, that is, it “arises as to the specific offense which is charged.” State v.
Williams, 226 W. Va. 626, 629, 704 S.E.2d 418, 421 (2010). In Williams, the defendant
was incarcerated awaiting hearing on a petition for revocation of probation imposed as
the result of a prior conviction; the defendant had been appointed counsel for purposes of
the hearing. While in custody, the defendant was questioned regarding more recent
criminal activity and gave incriminating statements that led to him being charged with
third-degree sexual assault. We concluded that the defendant was not constitutionally
entitled to have his appointed counsel present during his interrogation in the assault
investigation, because the questioning pertained to a different offense than the prior
conviction.
8
At the time he was transported to jail, Bouie had not been arraigned or
brought before a magistrate for a preliminary hearing. Sergeant Cox explained that
Bouie’s processing at the police station on October 25, 2012, had occurred after hours,
such that arraignment did not take place until the next day; the grand jury would not
return its indictment for another six months. Nonetheless, the circuit court was of the
opinion that issuance of the arrest warrant and concomitant extradition in aid thereof
were sufficient to initiate adversary judicial proceedings against Bouie, thus implicating
his Sixth Amendment right to counsel.
We observe, however, that unilateral, administrative actions taken by the
authorities prefatory to formal prosecution are outside the reach of the Sixth Amendment,
whose protections apply “only when the government’s role shifts from investigation to
accusation.” Moran v. Burbine, 475 U.S. 412, 430 (1986); cf. United States v. Alvarado,
440 F.3d 191, 200 (4th Cir. 2006) (“The filing of a federal criminal complaint does not
commence a formal prosecution. Rather, the main reason a law enforcement officer files
such a complaint is to establish probable cause for an arrest warrant.”). In Burbine, the
United States Supreme Court recognized that a defendant’s custodial interrogation
pursuant to an arrest warrant, but prior to arraignment, does not trigger the Sixth
Amendment right to counsel. And, in accordance with our opinion in Williams, 226 W.
Va. 626, 704 S.E.2d 418, Bouie’s representation by counsel in connection with a prior
9
offense is immaterial, as that right “cannot be invoked once for all future prosecutions.”
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
There is, therefore, no basis to conclude that the admissibility of Bouie’s
statements to Sergeant Cox on the way to jail ought to be scrutinized for constitutional
compliance other than with the Fifth Amendment. The circuit court addressed the
substance of Bouie’s Sixth Amendment contentions, rejecting those arguments on their
merits, but the result is the same. See State v. Coles, 234 W. Va. 132, ____, 763 S.E.2d
843, 850 n.18 (2014) (“‘This Court may, on 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.’” (quoting syl. pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d
466 (1965))).
2. Fifth Amendment Privilege Against Self-Incrimination
It is undisputed that Sergeant Cox had not informed Bouie of his Fifth
Amendment rights in conformance with Miranda v. Arizona, 384 U.S. 436 (1966).
Nevertheless, “‘the special procedural safeguards outlined in Miranda are required not
where a suspect is simply taken into custody, but rather where a suspect in custody is
subjected to interrogation.’” Damron v. Haines, 223 W. Va. 135, 141, 672 S.E.2d 271,
277 (2008) (quoting Rhode Island v. Innis, 446 U.S. 291, 300 (1980)). The Miranda
10
Court made clear, however, that “interrogation . . . mean[s] questioning initiated by law
enforcement officers after a person has been taken into custody.” 384 U.S. at 444
(emphasis added); see State v. Kilmer, 190 W. Va. 617, 625, 439 S.E.2d 881, 889 (1993)
(reciting that interrogation has been defined as “‘express questioning . . . [or] any words
or actions on the part of the police . . . that the police should know are reasonably likely
to elicit an incriminating response from the suspect’” (quoting Innis, 446 U.S. at 301)
(emphasis added)).
No view of the facts as presented here could support the notion that
Sergeant Cox initiated the conversation that led Bouie to make the incriminating
statements admitted against him at trial. With no prompting and in a completely
spontaneous manner, Bouie asked Sergeant Cox for a copy of the criminal complaint
against him. Sergeant Cox wordlessly complied with the request, having no reason to
know or even suspect that doing so would cause Bouie to express confusion regarding the
complaint, thereby indirectly admitting his presence on the premises and, in turn,
confirming his role in Poindexter’s death. Cf. Guthrie, 205 W. Va. 326, 343, 518 S.E.2d
83, 100 (1999) (concluding that no interrogation of defendant occurred during transport
to police headquarters, in that the record failed to “suggest[] any subtle or overt coercive
tactic being used by the police for the purpose of intimidating Mr. Guthrie into talking
and incriminating himself”). Absent any indication of the improper police influence
11
described in Guthrie, we are likewise compelled to conclude here that Bouie’s statements
to Sergeant Cox were voluntarily made, and thus properly admitted into evidence.
B. Payne’s Statements to Carey
We now consider the trial appearance of Aaron Carey, whose testimony the
prosecution preemptively moved to admit on December 23, 2013. The circuit court
granted the motion, whereupon Carey testified that, two days after Poindexter’s death,
Payne confided having “shot somebody in a robbery.” Further, according to Payne as
told to Carey, the violent episode was the result of Payne’s desire to acquire money and
drugs. Payne would neither confirm nor deny Carey’s account of their conversation,
invoking his Fifth Amendment privilege against self-incrimination and refusing to testify
at Bouie’s trial. Bouie contends that, in light of Payne’s absence, the latter’s alleged
statements to Carey were admitted in contravention of Bouie’s right to confront the
witnesses against him. Bouie maintains in the alternative that Carey’s hearsay testimony
failed to fulfill the standards for admissibility pursuant to Rule 804(b)(3) of the West
Virginia Rules of Evidence.
The Confrontation Clause of the Sixth Amendment “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.” Syl. pt. 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006) (citing
12
Crawford v. Washington, 541 U.S. 36 (2004)). It is undisputed that Payne rendered
himself unavailable by the valid invocation of his Fifth Amendment privilege. See In re
Anthony Ray Mc., 200 W. Va. 312, 326, 489 S.E.2d 289, 303 (1997) (“The constitutional
question of unavailability is generally answered when a court determines, under the penal
interest exception of Rule 804(b)(3), that a declarant has successfully invoked the
privilege against self-incrimination.”). Moreover, the State does not contend that Bouie
had the prior opportunity to cross-examine Payne regarding the statements related by
Carey.
Nonetheless, the threshold Mechling requirement is absent here, inasmuch
as “only testimonial statements cause the declarant to become a witness subject to the
constraints of the Confrontation Clause.” Mechling, 219 W. Va. at 373, 633 S.E.2d at
318 (citation and internal quotation marks omitted). Thus, “[n]on-testimonial statements
by an unavailable declarant . . . are not precluded from use.” Id.; see State v. Kaufman,
227 W. Va. 537, 550, 711 S.E.2d 607, 620 (2011). A testimonial statement is one “‘that
is made under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’” Syl. pt. 8, Kaufman, 227
W. Va. 537, 711 S.E.2d 607 (quoting syl. pt. 8, Mechling, 219 W. Va. 366, 633 S.E.2d
311).
13
We agree with the circuit court’s ruling that Payne’s statements were not
testimonial, insofar as they were “made in Mr. Carey’s living room and during a friendly
conversation.” No objective witness in Payne’s position could have reasonably believed
that he was making any statements for purposes of a trial. Under such circumstances,
Bouie’s asserted Sixth Amendment right to confront and cross-examine Payne is not
implicated. Payne’s statements therefore needed only to satisfy “a firmly rooted hearsay
exception” in order to be properly admitted through Carey. See syl. pt. 4, Kaufman, 227
W. Va. 537, 711 S.E.2d 607 (citation and internal quotation marks omitted).
The circuit court thus considered the issue within established evidentiary
strictures, concluding that Payne’s statements were admissible as being against his own
penal interest. See W. Va. R. Evid. 804(b)(3) (providing generally that statements against
interest are excepted from bar on hearsay evidence, and specifically those that “so far
tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the
declarant’s position would not have made the statement unless he or she believed it to be
true”). The circuit court’s analysis followed our established framework for evaluating
such statements. See State v. Mason, 194 W. Va. 221, 460 S.E.2d 36 (1995), overruled
on other grounds by Mechling, 219 W. Va. 366, 633 S.E.2d 311. In Mason, we
instructed:
To satisfy the admissibility requirements under Rule
804(b)(3) of the West Virginia Rules of Evidence, a trial
court must determine: (a) The existence of each separate
statement in the narrative; (b) whether each statement was
14
against the penal interest of the declarant; (c) whether
corroborating circumstances exist indicating the
trustworthiness of the statement; and (d) whether the
declarant is unavailable.
Syl. pt. 8, id. Of the four Mason criteria, Bouie contests only the third, maintaining that
the circumstances surrounding Payne’s statements to Carey were insufficiently
corroborative to indicate the statements’ trustworthiness. In particular, Carey
acknowledged at a pretrial hearing that he and Payne had each been smoking marijuana,
that he could not remember the precise date of the conversation, and that no one else was
present.
As we recalled in Anthony Ray Mc., “the very fact that a statement is
‘genuinely self-inculpatory . . . is itself one of the particularized guarantees of
trustworthiness.’” 200 W. Va. at 322, 489 S.E.2d at 299 (quoting Williamson v. United
States, 512 U.S. 594, 605 (1994) (internal citation and quotation omitted)). A declarant’s
statements that he shot someone in the commission of a crime—and that he did so in part
to obtain contraband—are “genuinely inculpatory” under even the most rigorous
definition of the term. See Williamson, 512 U.S. at 603 (pointing out that a “squarely
self-inculpatory confession” such as “yes, I killed X,” will ordinarily be admissible in
conformance with Rule 804(b)(3)). The circumstances Bouie identifies might call into
question the trustworthiness of more equivocal statements, but they do not serve here to
torpedo the admissibility of Payne’s. Instead, the potential defects in Carey’s recollection
and the lack of substantiation from other witnesses bear more on the proper assessment of
15
the statements’ evidentiary weight, and, indeed, Bouie cross-examined Carey on each
point in front of the jury. We therefore conclude that the circuit court did not abuse its
discretion in admitting Payne’s statements.
C. The Phone Call Statements
On September 13, 2013, Bouie moved to suppress the phone call statements
he made from the Central Regional Jail, which were recorded by jail authorities. The
circuit court denied Bouie’s motion in its pretrial order of March 12, 2014. Pursuant to
West Virginia Code § 31-20-5e (2002), jails are permitted to “monitor, intercept, record
and disclose” non-privileged telephone calls placed or received by inmates, although the
statute requires, inter alia, that “[n]otice shall be prominently placed on or immediately
near every telephone that may be monitored.” Id. § 31-20-5e(3).
The circuit court recounted that the jail had implemented procedures to
ensure that conforming laminated notices were prominently displayed and remained so,
although “no testimony was provided that a notice was up at the exact phone used by
[Bouie] at the specific time and date when the calls were made.” Notwithstanding the
lack of iron-clad certitude, the circuit court found “that notices were prominently
displayed during [Bouie’s] calls.” Moreover, when the phone calls were played at trial
for the jury, each was clearly prefaced with an oral warning that the call was subject to
monitoring and recordation. It is therefore plain that Bouie was presented with actual
16
notice in advance of making the inculpatory statements that anything he might say on the
prison phones would be monitored and recorded. Bouie ignored the warnings at his own
peril.
Under exceedingly similar circumstances, we determined in State v.
Blevins, 231 W. Va. 135, 150, 744 S.E.2d 245, 260 (2013) (per curiam), that the
defendant in that case “knew he was being recorded and that no violation of privacy
occurred” that might warrant suppression of the statements obtained from the jail phone
recordings. Bouie’s circumstances are virtually indistinguishable from those in Blevins,
and the same result will obtain here. The circuit court did not abuse its discretion in
admitting the statements.
D. The Exemplar Shoes
A few days prior to trial, on March 13, 2014, Bouie filed a motion in limine
to exclude all evidence pertaining to the exemplar shoes purchased by Sergeant Cox. The
circuit court ruled the shoe evidence admissible at a pretrial hearing the following day,
and again at trial upon Bouie’s renewed motion. The exemplar shoes constituted
demonstrative evidence, that is, “an explanatory aid . . . that, while of probative value and
usu[ally] offered to clarify testimony, does not play a direct part in the incident in
question.” Black’s Law Dictionary 675 (10th ed. 2014). We have previously observed
that “[t]he admission of demonstrative evidence rests largely within the trial court’s
17
discretion.” Syl. pt. 14, State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995)
(upholding circuit court’s decision permitting prosecution to have testifying defendant
participate in reenactment of charged killings).
With respect to the shoes themselves, it was explained to the jury on several
occasions that they did not belong to Bouie. In examining Sergeant Cox, the prosecutor
asked, “And to make sure we’re very clear, these are not Mr. Bouie’s shoes?” Sergeant
Cox confirmed that the prosecutor’s understanding was accurate. The prosecutor briefly
resumed the examination, but redirected his questioning soon thereafter to clarify any
lingering doubt concerning the genesis of the exemplar shoes: “Again, I want to reiterate
these are not Mr. Bouie’s shoes; correct? I mean you did not get these from Mr. Bouie?”
Sergeant Cox responded, “That is correct.” At that moment, the circuit court elected to
give the jury a cautionary instruction:
[T]he exemplar shoes utilized by the prosecution during the
trial are not actual evidence recovered from the crime scene,
nor obtained from either of the defendants charged in this
matter. These shoes were merely purchased by the State as a
demonstrative aid based solely upon the investigation of Sgt.
Josh Cox. They are not Mr. Bouie’s shoes. They are not Mr.
Payne’s shoes, nor do they belong to any of the witnesses.
You are instructed that you may consider these [e]xemplar
shoes only as a demonstrative aid used by the State in
furtherance of its theory of the case, and may lend them no
greater weight than that in your deliberations.
18
The point was made at least twice more, as both FBI experts questioned concerning the
exemplar shoes were careful to mention that they had examined no shoes obtained from
Bouie.
Bouie’s allegation of error with respect to the exemplar shoes focuses not
so much on their admission per se, but rather on Sergeant Cox’s testimony concerning the
shoes. The circuit court permitted Sergeant Cox to offer his lay opinions that the
exemplar shoes were similar in color and design to the shoes worn by Bouie in the
surveillance videos, and that the outsole pattern exhibited on the exemplar shoes was
similar to the footwear impressions left beneath Poindexter’s bedroom window.
The evidence was admitted pursuant to West Virginia Rule of Evidence
701, which provides that lay “testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge.” We have explained that
[i]n order for a lay witness to give opinion testimony pursuant
to Rule 701 of the West Virginia Rules of Evidence (1) the
witness must have personal knowledge or perception of the
facts from which the opinion is to be derived; (2) there must
be a rational connection between the opinion and the facts
upon which it is based; and (3) the opinion must be helpful in
understanding the testimony or determining a fact in issue.
19
Syl. pt. 9, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) (citation and
internal quotation marks omitted). Furthermore, “‘[t]he determination of whether a
witness has sufficient knowledge of the material in question so as to be qualified to give
his opinion is largely within the discretion of the trial court, and will not ordinarily be
disturbed on appeal unless clearly erroneous.’” Id., 234 W. Va. at ____, 764 S.E.2d at
325 (quoting syl. pt. 4, Cox v. Galigher Motor Sales Co., 158 W. Va. 685, 213 S.E.2d
475 (1975)).
Here, Sergeant Cox plainly possessed the personal knowledge or perception
of the underlying facts required by Rule 701, in that, as lead investigator of the case, he
had carefully examined the exemplar shoes, the surveillance videos, and the footwear
impressions. His opinion that the exemplar shoes exhibited certain properties similar to
those displayed in the videos and by the footwear impressions was indisputably rational,
in that the FBI experts testified to the same thing. The experts could not make the
prosecution’s desired final connections and say with any certainty that the sneakers Bouie
wore on the night in question were Nike Air Force Ones or that the brand left the
footwear impressions, and, significantly, Sergeant Cox was not permitted to testify to
those connections, either.
Even so circumscribed, Sergeant Cox’s opinion testimony was helpful to
the jury. The surveillance videos made apparent that, on the cold January morning of
20
Poindexter’s death, Bouie was the only one of the five men who arrived at the apartment
complex wearing sneakers. It was also evident that one set of the footprint impressions
beneath Poindexter’s bedroom window had been made by sneakers. It doubtlessly aided
the jury’s understanding of the case to hear that Sergeant Cox had taken note of those
salient facts and examined their potential significance, else it might presume that his
investigation had been incomplete or—worse—that the police or prosecutor had
concealed exculpatory information. Under the circumstances, we cannot say that the
circuit court abused its discretion in admitting either the exemplar shoes or Sergeant
Cox’s opinion testimony.
E. Sufficiency of the Evidence
In evaluating the strength of the prosecution’s case at trial, we begin by
noting that the involvement of alleged co-conspirator Payne in Poindexter’s death
appears manifest. The surveillance videos revealed that Payne had been wearing a
baseball cap prior to the murder, but not afterward. A baseball cap discovered near the
crime scene was tested and found to contain DNA consistent with Payne’s. A search of
Payne’s living quarters turned up an ammunition magazine with four .25 caliber rounds;
forensic analysis revealed that at least one of the loaded rounds had once been extracted
by the same weapon that expelled the .25 caliber shell casing retrieved from the scene.
During that same search, the police seized a pair of boots that matched one set of the
footwear impressions found beneath Poindexter’s window.
21
To convict Bouie of felony murder, the prosecution was required to prove
not only that Poindexter was unlawfully killed, but also that Count One of the indictment
accurately alleged that Payne committed the murder in furtherance of the attempted
burglary of Poindexter’s residence. See W. Va. Code § 61-2-1 (1991) (defining first-
degree murder as, among other things, being murder “in the commission of, or attempt to
commit . . . burglary”); id. § 61-3-11 (1993) (providing that a person who “in the
nighttime, break[s] and enter[s] . . . the dwelling house . . . of another, with intent to
commit a crime therein . . . shall be deemed guilty of burglary”). In order to convict
Bouie of the conspiracy to commit burglary as alleged in Count Two, the prosecution was
charged with “‘show[ing] that [he] agreed with others to commit an offense against the
State and that some overt act was taken by a member of the conspiracy to effect the
object of that conspiracy.’” Syl. pt. 3, State v. Stevens, 190 W. Va. 77, 436 S.E.2d 312
(1993) (quoting syl. pt. 6, State v. Johnson, 179 W. Va. 619, 371 S.E.2d 340 (1988)
(internal citation omitted)).
Bouie contends that the prosecution inadequately proved the existence of an
agreement between Payne and Bouie. Alternatively, Bouie maintains that the evidence
was insufficient to establish burglary as the object of any such agreement. If Bouie is
correct in either assertion, it is likely the case that the evidence was also insufficient for
the jury to find that Payne and Bouie advanced beyond mere conspiracy and attempted in
22
fact to burglarize Poindexter’s residence. If so, Bouie’s murder conviction would have to
be reversed for the prosecution’s failure to prove the predicate felony. In mounting his
attack on the sufficiency of the evidence, Bouie faces an uphill climb:
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct
or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility
assessments that the jury might have drawn in favor of the
prosecution. The evidence need not be inconsistent with
every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury
verdict should be set aside only when the record contains no
evidence, regardless of how it is weighed, from which the
jury could find guilt beyond a reasonable doubt.
Syl. pt. 3, Guthrie, 194 W. Va. 657, 461 S.E.2d 163.
Lacking any witness who could testify concerning communications
between Bouie and Payne, the prosecution was obliged to demonstrate their agreement by
resort to circumstantial evidence. The requisite level of certainty as to an agreement of
any sort could be established by showing that both men were present when—as the
physical evidence suggested—one of them began to cut the screen out of Poindexter’s
window to gain access to the apartment. That the object of the agreement was burglary
(and not merely, for instance, destruction of property) could be confidently ascertained by
proof there was likely something in the apartment worth stealing. If the prosecution
could produce credible evidence of presence and motive, then the jury would be entitled
23
to rule out all legitimate reasons for Bouie being in the vicinity of Poindexter’s apartment
after 3:00 a.m., and find him guilty as charged beyond a reasonable doubt.
Motive was sufficiently proved in this instance. The evidence disclosed
that the police found a distributable quantity of cocaine, packaged for individual sale,
inside Poindexter’s apartment. Detectives also discovered $1,344 cash in a pair of
Poindexter’s pants at the foot of his bed. The prosecution established that the window
screen had been breached on the night in question; a reasonable jury could therefore find
that Payne had cut or torn the screen attempting to enter the apartment, rather than the far
less likely scenario that Poindexter had damaged his own abode attempting to exit
through a window instead of a door. Moreover, once the jury found that Payne had
breached the window, it could further reasonably find beyond a reasonable doubt that
Payne had done so in an attempt to burglarize the apartment by stealing the drugs and
money inside. Indeed, Carey corroborated the prosecution’s theory of the case, testifying
that, shortly after Poindexter’s murder, Payne admitted having shot somebody in pursuit
of money and drugs. Finally, and of no small moment, during the cross-examination of
Sergeant Cox, defense counsel sought acknowledgment that “[c]lear evidence throughout
the case indicates that Mr. Poindexter was engaged in the business of selling [controlled]
substances; correct?” Sergeant Cox readily agreed.
24
The evidence of Bouie’s presence alongside Payne at the crime scene was
nearly as compelling. In Sergeant Cox’s cruiser, Bouie asserted that “he was not the
shooter,” thereby strongly intimating first-hand knowledge of the events at Poindexter’s
apartment. Bouie admitted having walked around the residence, and in doing so placed
himself in the physical vicinity of the murder. Bouie’s phone conversations from jail
referencing “E” and “E.C.” further demonstrated his association with Payne, and his
purported knowledge concerning the evidence that was likely to be found during the
investigation was essentially an admission of involvement. Eyewitness testimony from
the men who accompanied Bouie and Payne to the apartment complex established that
Bouie and Payne strode off in each other’s company and returned the same way. Lastly,
Bouie’s unique choice of footwear that cold night, viewed in conjunction with the
sneaker impressions discovered at the crime scene merely underscores the strength of the
case presented by the prosecution.3
3
It bears mention that, even had we concluded supra that the circuit court erred in
admitting Sergeant Cox’s lay opinion testimony relating to the exemplar shoes, such error
would have been harmless in light of the other compelling evidence of guilt that we have
recited immediately above. See McKinley, 234 W. Va. at ____, 764 S.E.2d at 321 (“‘A
judgment will not be reversed because of the admission of improper or irrelevant
evidence when it is clear that the verdict of the jury could not have been affected
thereby.’”) (quoting syl. pt. 7, Torrence v. Kusminsky, 185 W. Va. 734, 408 S.E.2d 684
(1991)). Moreover, Sergeant Cox was thoroughly and competently cross-examined as to
his opinions, minimizing any potential unfair prejudice allegedly arising therefrom.
25
We are therefore convinced that any rational trier of fact could have found
Bouie guilty beyond a reasonable doubt of both charges against him. Inasmuch as Bouie
is unable to meet his “heavy burden” of convincing us that the evidence at trial was
insufficient, we must affirm his convictions.
IV. CONCLUSION
Pursuant to the foregoing, we affirm Bouie’s convictions as set forth in the
circuit court’s judgment of May 19, 2014.
Affirmed.
26