                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS
                                                                                      FILED
State of West Virginia                                                             June 3, 2016
Plaintiff Below, Respondent                                                       RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
vs) No. 14-0862 (Harrison County 14-F-87-2, Marion County 12-F-143)

Michael Palmer
Defendant Below, Petitioner


                                MEMORANDUM DECISION
        Petitioner Michael Palmer, by counsel Scott A. Shough and Ashley Joseph Smith,
appeals his March 26, 2014, conviction of the charge of first-degree murder, with a
recommendation of mercy. Respondent State of West Virginia, by counsel Shannon Frederick
Kiser, filed a response in support of the circuit court’s order. Petitioner argues that the circuit
court erred in allowing the admission of certain evidence at trial; in denying his request to
compel the trial testimony of his co-defendant; in denying his motion to dismiss the indictment
returned against him; in denying his motion for new trial; and in instructing the jury.

        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 December 10, 2011, petitioner fatally shot his father-in-law within seconds of the
victim’s arrival at petitioner’s home.1 Hours before the shooting, the victim left a voicemail
message on petitioner’s answering machine indicating that he was coming to petitioner’s
residence that night to discuss their familial discord, and that he and petitioner were going to
“talk it out like men.”2 Petitioner contends the shooting of the victim was done in self-defense.
Petitioner alleges that, on the night of the shooting, the victim kicked the rear door of petitioner’s
home and entered the home “in a violent manner,” prompting petitioner to shoot him twice.

       1
           The home in which petitioner lived sat adjacent to the victim’s home.
       2
         Approximately one month prior to the shooting, petitioner called 911 and advised that
the victim called him, and threatened to kick down the door to his home and fight him. In making
the 911 report, petitioner stated that he was not afraid of the victim, but simply wanted to “make
a record of” the victim’s threat.



                                                  1

However, per the State’s witnesses, the angle of the shot and location of the victim’s gunshot
wound suggests that petitioner shot the victim in the side as he was retreating from petitioner’s
home.

        On June 6, 2012, a Marion County grand jury indicted petitioner (and his wife – the
victim’s daughter) on one count of first-degree murder, in violation of West Virginia Code § 61­
2-1. Petitioner was imprisoned on June 6, 2012, and remained incarcerated during the pendency
of his case.3 Petitioner and his wife were scheduled to be tried separately, with petitioner’s trial
to proceed first. During the pretrial proceedings, petitioner’s wife was subpoenaed by both
petitioner and the State to testify at petitioner’s trial. The wife’s counsel advised that she would
assert her Fifth Amendment right against incrimination if asked directly about the shooting
incident. Ultimately, the circuit court ordered that petitioner’s wife was not required to take the
stand at trial, when she intended to assert her Fifth Amendment rights before the jury.

        In the month before the scheduled trial date, the circuit court granted a motion for change
of venue (given the media attention surrounding the case and concerns regarding the ability to
obtain an impartial jury panel). Venue for the trial was transferred to Harrison County and jury
selection began on March 10, 2014. A jury was empaneled that same day and trial commenced
the following day. On March 26, 2014, on the eleventh day of trial, petitioner was found guilty
of first-degree murder with a recommendation of mercy. On May 30, 2014, petitioner was
formally sentenced to life in prison with a recommendation of mercy. Petitioner filed post-trial
motions on April 7, 2014.4 A hearing was held on those motions on May 15, 2014. By order
entered July 31, 2014, the circuit court denied petitioner’s motions. Petitioner now appeals his
conviction, and the circuit court’s denial of his post-trial motions.

        In support of his petition for appeal, petitioner alleges six assignments of error. First,
petitioner asserts that the circuit court committed reversible error in failing to compel the
testimony of petitioner’s wife at his trial. Second, petitioner contends that the circuit court
improperly instructed the jury. Third, petitioner argues that circuit court erred in failing to

       3
         While petitioner was incarcerated, a jailhouse informant disclosed to the State that the
petitioner “confessed” to him that the shooting was intentionally planned because the victim was
dissipating his assets, which petitioner and his wife hoped to inherit.
       4
         In his post-trial motions, petitioner sought relief on the following grounds: 1) the verdict
returned against him was against the weight of the evidence; 2) the verdict was based on an
uncorroborated “jailhouse” confession; 3) the circuit court improperly refused to permit
testimony of petitioner’s expert on the issue of the effects of long term drug use; 4) the circuit
court permitted introduction of 404(b) evidence; 5) State’s Exhibit No. 154, though inadmissible,
was admitted into evidence; 6) the circuit court refused to allow testimony of police officer
regarding the inconsistent statement of a witness; 7) the circuit court refused to require testimony
of co-defendant; 8) the circuit court gave an improper self-defense instruction; 9) prosecutorial
misconduct; and 10) the circuit court refused to allow the testimony of Timothy Biggs and
refused to admit into evidence letters authored by the co-defendant.



                                                 2

dismiss the indictment returned against petitioner. Fourth, petitioner contends that the circuit
court erred in allowing the admission of State’s Exhibit No. 154 at trial. Fifth, the petitioner
argues that the circuit court erred in allowing the admission of 404(b) evidence at trial. Sixth,
petitioner contends that the circuit court erred in denying petitioner’s post-trial motions given
that the verdict returned by the jury was against the weight of the evidence at trial.

       As to his first assignment of error, petitioner argues that the circuit court erred in refusing
to compel the testimony of his co-defendant wife. In State v. Herbert, 234 W.Va. 576, 583-84,
767 S.E.2d 471, 478-79 (2014), we noted that

        “[t]he constitutional right against self-incrimination does not extend to prevent the
        physical appearance of a person at trial.” Syl. Pt. 2, State v. Harman, 165 W.Va.
        494, 270 S.E.2d 146 (1980). Ordinarily a non-party witness may not refuse to take
        the stand in a criminal trial by simply asserting the constitutional right against
        self-incrimination. “‘(B)y universal holding, one not an accused must submit to
        inquiry (including being sworn, if the inquiry is one conducted under oath)[.]’”
        Id., 165 W.Va. at 504, 270 S.E.2d at 153 (quoting McCormick on Evidence § 136
        (2d ed. 1972)).

        Further, in Herbert, we ruled that

                [i]n a criminal trial, when a non-party witness intends to invoke the
        constitutional privilege against self-incrimination, the trial court shall require the
        witness to invoke the privilege in the presence of the jury. The constitutional
        privilege against self-incrimination may only be invoked when a witness is asked
        a potentially incriminating question.

Syl. Pt. 2, in part (citations omitted).

        In the case sub judice, petitioner contends that the circuit court’s failure to force his co­
defendant to invoke her Fifth Amendment privilege against self-incrimination in front of the jury
was a violation of his Sixth Amendment right to compulsory process.5 The State counters that
petitioner’s claims regarding his co-defendant’s invocation of her Fifth Amendment protections
during trial is meritless when viewed under the lens of either Fifth or Sixth Amendment
consideration. Based upon our review of the particular facts of the instant case, we find that the
circuit court did not commit error in failing to compel the trial testimony of petitioner’s wife.




        5
         Petitioner gave notice of his intention to call his wife to testify at trial regarding
petitioner’s interactions with the victim, the condition of the door through which the victim
entered petitioner’s residence on the evening of the shooting, and “all of the circumstances
surrounding the shooting.”



                                                  3

        Here petitioner’s co-defendant, unlike the witness at issue in Herbert, was separately
charged with victim’s murder.6 Her case was set to proceed to trial on a date following
petitioner’s trial. She was called to testify at petitioner’s trial and, outside of the presence of the
jury, invoked her Fifth Amendment right to not testify.7 If petitioner’s wife had agreed to testify,
she would have been subject to cross-examination. The circuit court reasoned that it would be
“nearly impossible to confine cross-examination” of the co-defendant in a way that would not
prejudice her. Under these limited facts, we find no error with the circuit court’s ruling.

        Next, petitioner contends that the circuit court improperly instructed the jury on the law
of self-defense and the “castle” doctrine.8 We have held that “. . . the refusal to give a requested
jury instruction is reviewed for an abuse of discretion. By contrast, 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).

               A trial court’s instructions to the jury must be a correct statement of the
       law and supported by the evidence. Jury instructions are reviewed by determining
       whether the charge, reviewed as a whole, sufficiently instructed the jury so they
       understood the issues involved and were not mislead by the law. A jury
       instruction cannot be dissected on appeal; instead, the entire instruction is looked
       at when determining its accuracy. A trial court, therefore, has broad discretion in
       formulating its charge to the jury, so long as the charge accurately reflects the
       law. Deference is given to a trial court’s discretion concerning the specific

       6
          We find that the facts presented in this case are analogous to the facts presented in State
v. Whitt, 220 W.Va. 685, 649 S.E.2d 258 (2007), which addressed a situation where a co-accused
refused to take the witness stand in the jury’s presence. In such situations, we found that the trial
court has discretion to exclude a witness from the jury’s presence. In Whitt, we held that the trial
court’s discretion on this issue should be guided by whether the defendant would by unfairly
prejudiced if the witness did not take the stand to invoke the privilege in the jury’s presence. Syl.
Pt. 7., id. In the instant case, we find that petitioner failed to establish that he would be unfairly
prejudiced if his co-defendant did not take the witness stand. The subsequent resolution of the
co-defendant’s criminal proceeding shows that her trial testimony would have been inculpatory
and would have damaged petitioner’s claim of self-defense.
       7
         The circuit court noted that the co-defendant’s invocation of her Fifth Amendment right
was done outside of the presence of the jury to ensure that no undue prejudicial testimony was
heard by the jury; and further, so the court could ascertain that the co-defendant understood her
rights and that she knowingly, voluntarily, under the advice of her counsel, and of her own free
will, chose not to testify.
       8
         Our precedent in self-defense cases clearly states that where an unlawful intrusion has
occurred in the sanctity of one’s home, an occupant of the home has no duty to retreat.
Generally, described as the “castle doctrine,” “castle” rule or “home” rule, our precedent
succinctly states that “[a] man attacked in his own home by an intruder may invoke the law of
self-defense without retreating.” Syl. Pt. 4, State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935).


                                                  4

       wording of the instruction, and the precise extent and character of any specific
       instruction will be reviewed only for an abuse of discretion.

Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

        The circuit court herein instructed the jury on both self-defense and the castle doctrine.
Petitioner contends that providing such instructions misled the jury, as there was no evidence
that the events in question occurred anywhere other than the home of petitioner. Additionally,
petitioner contends that failing to provide the specific direction to the jury that the porch of
petitioner’s home was part of his castle was reversible error. Respondent argues that the circuit
court did not abuse its discretion or misstate the law by juxtaposing instructions of traditional
self-defense and the castle doctrine. Based upon our review of the record herein, we find no
error. The circuit court’s instructions were a correct statement of law for both traditional self-
defense and the castle doctrine. State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009); State ex
rel. Adkins v. Dingus, 232 W.Va. 677, 683, 753 S.E.2d 634, 640 (2013).

        In his third assignment of error, petitioner argues that the circuit court erred in failing to
dismiss the indictment retuned against petitioner based upon prosecutorial misconduct before the
grand jury. “This Court’s standard of review concerning a motion to dismiss an indictment is,
generally, de novo.” Syl. Pt. 1, in part, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).
Here, petitioner alleges that the trial court and the State committed an error of constitutional
magnitude by giving the grand jury an incorrect instruction on the law of self-defense.
Respondent argues that there was no error, as the grand jury was properly instructed as to the
applicable law. Following our review of the record herein, as the grand jury was properly
instructed as to the law, we find no error in the circuit court’s failure to dismiss the indictment
returned against petitioner.

        Next, petitioner argues that the circuit court erred in allowing the admission of State’s
Exhibit No. 154 – an e-mail containing a reference to a Facebook post (and comments about the
post) which purportedly reflected petitioner’s character trait of threatening those adverse to him.9
With respect to the admission of evidence, this Court has held that “‘[t]he 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,
State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. Pt. 1, State v. Calloway,
207 W.Va. 43, 528 S.E.2d 490 (1999). Petitioner argues that the circuit court abused its
discretion by allowing this exhibit to be admitted at trial despite the fact that no foundation was




       9
         This document was provided to the State by a “concerned citizen,” and contained the
following statement from petitioner “[s]ee, I don’t make meaningless threats. I have a mental list
of folks that did my wife and I wrong and I patiently and meticulously wait for my moment to
strike those who made the list.”



                                                  5

made to support it, as required by Rule 901 of the West Virginia Rules of Evidence.10 The State
argues that the trial court did not err in permitting the admission of this exhibit as an appropriate
analysis of the exhibit was completed by the court.11

        In the instant case, the circuit court completed an appropriate analysis of the authenticity
of the document prior to its admission at trial. Additionally, the circuit court, prior to admission
of the document, conducted an in camera review of the exhibit and other corresponding
documents subpoenaed from Facebook and jail telephone calls between petitioner and his family
members, which substantiated the information contained within the exhibit. Moreover, the circuit
court permitted petitioner to proffer the testimony of an expert witness regarding the ability to
easily fabricate a Facebook page to rebut this exhibit. Accordingly, we agree with the circuit
court’s ruling and find no clear error or abuse of discretion in permitting the admission of State’s
Exhibit No. 154.

       In his next assignment of error, petitioner contends that the circuit court improperly
allowed the admission of 404(b) evidence. In syllabus point two, in part, of State v McGinnis,
193 W.Va. 147, 455 S.E.2d 516 (1994), we held, in part, that

                [w]here 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

       10
         Rule 901(a) of the West Virginia Rules of Evidence provides that the “[t]o satisfy the
requirement of authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it is.”
       11
          The only evidence proffered to establish a foundation for this exhibit was the testimony
of a witness who conducted a conversation with petitioner on Facebook and believed, without
question, that the statement generated from petitioner based on the “manner of speech used in the
posts,” recognition of the Facebook profile picture as being the petitioner’s profile picture, and
the fact that the content of the conversation was such that only the petitioner (and the witness)
would have knowledge of it.



                                                 6

       instruction should be given at the time the evidence is offered[.]

Further, in State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996), we held that
the standard of review

       for a trial court’s admission of evidence pursuant to Rule 404(b) involves a three-
       step analysis. First, we review for clear error the trial court’s factual determination
       that there is sufficient evidence to show the other acts occurred. Second, we
       review de novo whether the trial court correctly found the evidence was
       admissible for a legitimate purpose. Third, we review for an abuse of discretion
       the trial court’s conclusion that the “other acts” evidence is more probative than
       prejudicial under Rule 403.

        “This Court reviews disputed evidence in the light most favorable to its proponent, [in
this case, the State,] maximizing its probative value and minimizing its prejudicial effects.” Id.,
196 W.Va. at 312, 470 S.E.2d at 631; see also McGinnis, 193 W.Va. at 159, 455 S.E.2d at 528.
Here, petitioner argues that the circuit court improperly admitted the 404(b) testimony of two
witnesses. The first witness testified that in the several months before the shooting, petitioner
called him names and would “stick his finger out the window like he was pointing a gun at me
and drive by.” This witness further testified that petitioner and his co-defendant were taking
financial advantage of the victim. The second witness, a close friend of the victim, testified that
the victim supported the co-defendant’s failing business, that petitioner did not have a good
record of working, and that petitioner threatened the victim during an argument with a finger
gesture. Petitioner contends that the testimony of these witnesses was admitted without the
required hearing under McGinnis.

        Respondent counters that the circuit court properly admitted evidence of petitioner’s
antagonistic displays to the victim as intrinsic evidence, rather than prior bad acts as
contemplated by Rule 404(b). Respondent further notes that the circuit court conducted an in
camera hearing regarding State’s Exhibit No. 154, which was propounded by the first witness.
Based on our review of record herein, we find that the circuit court did not commit error with
respect to the admission of this evidence. We have previously held that “‘[o]ther act’ evidence is
intrinsic when the evidence of the other act and the evidence of the crime charged are
‘inextricably intertwined’ . . . .” State v. Harris, 230 W.Va. 717, 721, 742 S.E.2d 133, 137
(2013). We agree with the State that the gestures and “displays” attributable to petitioner about
which these two witnesses testified do not constitute other bad acts and the analysis under Rule
404(b) is unnecessary. The determination of the relevancy of this evidence by the circuit court
was sufficient to warrant the admission of the evidence under Rules 401 and 403 of the West
Virginia Rules of Evidence.

        In his final assignment of error, petitioner argues that the circuit court erred in denying
petitioner’s motion for new trial given that the verdict returned by the jury was against the
weight of the evidence. In Guthrie, we held that

              [t]he function of an appellate court when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence admitted a

                                                 7

        trial to determine whether such evidence, if believed, is sufficient to convince a
        reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
        relevant inquiry is whether 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.

Syl. Pt. 1.

        In Guthrie, we further held that

                [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.

        Petitioner argues that there was no evidence presented at trial to establish that petitioner’s
murder of the victim was premeditated. Respondent argues that the evidence proffered at trial
was sufficient to sustain petitioner’s conviction of first-degree murder. Based upon our review of
the record herein, we find no error in the circuit court’s denial of petitioner’s motion for new trial
on this ground. Evidence was proffered at trial that petitioner was aware the victim was coming
to his residence on the evening of the shooting and that the fatal shots were fired within seconds
of the victim’s arrival at petitioner’s residence. As the evidence presented at trial was sufficient
to rationally prove beyond a reasonable doubt that petitioner’s murder of the victim was
premeditated. Petitioner has not met the significantly high burden to prove that his conviction
was based on insufficient evidence.

        For the foregoing reasons, we affirm petitioner’s March 26, 2014, conviction of the
charge of first-degree murder, and the circuit court’s July 31, 2014, denial of petitioner’s post­
trial motions, including his motion for a new trial.

                                                                                           Affirmed.

ISSUED: June 3, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis

                                                  8

Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Allen H. Loughry II





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