                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
                                                                                  FILED
Plaintiff Below, Respondent
                                                                              January 5, 2018
vs) No. 16-1110 (Marion County 16-F-12)                                       EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Jeffrey Lynn Hovatter,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Jeffrey Lynn Hovatter, by counsel Neal Jay Hamilton, appeals the Circuit
Court of Marion County’s “Sentencing Order” entered on November 4, 2016, wherein in the
circuit court sentenced petitioner to life in prison without the possibility of parole following his
conviction of first degree murder. Respondent State of West Virginia, by counsel Robert L.
Hogan, filed a response. On appeal, petitioner challenges the circuit court’s failure to (1) conduct
a pretrial hearing to determine whether to bifurcate the guilt and mercy phases of the trial and (2)
sustain objections to allegedly prejudicial and improper opinion testimony.

        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.

         In February of 2016, a grand jury indicted petitioner on a single count of murder in the
first degree. Petitioner was accused of fatally shooting his ex-wife, Nancy Eileen Shaw, in her
residence in Fairmont, West Virginia. The case proceeded to a jury trial in which the evidence
revealed that on the evening of July 30, 2015, petitioner traveled from his home in Preston
County, West Virginia, to the victim’s residence. The victim’s neighbors heard petitioner and the
victim loudly arguing, unsuccessfully attempted to enter the victim’s residence, and then notified
police. The police arrived at the victim’s residence shortly thereafter and forced entry into the
home. As police ascended the stairway toward the victim’s second-floor bedroom, they heard
two gunshots and exited the premises in order to notify the Marion County Sheriff’s Department
Special Response Team. When the Special Response Team entered the bedroom, they discovered
the victim, deceased, with a gunshot wound to her forehead and petitioner with a gunshot wound
to his face from an apparent attempted suicide. Petitioner was still conscious.

        Prior to trial, petitioner underwent a psychiatric evaluation to determine his competency
to stand trial and criminal responsibility. The evaluation determined that he exhibited symptoms
of major depressive disorder and substantiated instances of delusions and hallucinations during

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his initial months in jail following his arrest. However, the evaluation concluded that petitioner
was competent to stand trial and that his “ability to conform his conduct to the requirements of
the law” was not impaired at the time of the crime. Petitioner did not request bifurcation of the
guilt and mercy phases of the trial.

       After four days of trial, the jury found petitioner guilty of murder in the first degree and
did not recommend that he receive mercy in sentencing. Following a hearing, the circuit court
sentenced petitioner to life in prison without the possibility of parole by order entered on
November 4, 2016. This appeal followed.

         Petitioner raises two assignments of error on appeal. First, he asserts that the circuit
court’s failure to conduct a pretrial hearing to determine whether he voluntarily, knowingly, and
intelligently desired a unified trial violated his state and federal constitutional due process rights.
Petitioner’s counsel states that he and petitioner discussed whether to have a bifurcated or unitary
trial in advance of trial, and made no motion for bifurcation. However, petitioner argues that
under the unique circumstances of this case -- in which petitioner suffered a severe head injury
and experienced delusions while in jail -- the circuit court should have conducted a hearing to
determine whether petitioner understood his decision in the context of his due process rights.
Petitioner adds that, in reviewing the denial of bifurcation motions, other courts have recognized
that unitary trials are replete with possible prejudice. For example, he argues, the United States
Court of Appeals District of Columbia Circuit has stated that

       a unitary trial involving both the merits and the issue of criminal responsibility is
       replete with potential sources of prejudice. Accordingly, especially since the cost
       of bifurcation to substantial state interests is often minimal or even negative, the
       trial court should be alert to the need for separate trials whenever the accused
       proposes to present an insanity defense, regardless of whether defense counsel
       makes an initial request or an initially sufficient showing of need. In this area as
       in others, the realities of the contemporary criminal process, in which commonly
       indigent defendants are often represented by counsel unfamiliar with the
       intricacies of criminal law and procedure, require the trial court’s active concern
       to insure the fairness of the trial.

Contee v. United States, 410 F.2d 249, 250 (D.C. Cir. 1969) (citing Holmes v. United States, 363
F.2d 281 (1966)). This point is especially true, petitioner asserts, where the defense relies on
insanity or diminished capacity. See Schofield v. W.Va. Dep’t of Corr., 185 W. Va. 199, 207, 406
S.E.2d 425, 433 (1991)(Workman J., dissenting)(“The determination of whether a defendant
should receive mercy is so crucially important that justice for both the state and defendant would
be best served by a full presentation of all relevant circumstances without regard to strategy
during trial on the merits.”).

       Upon our review of the record and our applicable precedent, we must reject petitioner’s
argument. As the State points out, the circuit court is not obligated to consider bifurcation sua
sponte; rather, it is incumbent on the defense to pursue it. In syllabus point 4 of State v. LaRock,
196 W.Va. 294, 470 S.E.2d 613 (1996), this Court held that “[a] trial court has discretionary



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authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding
as to mercy.” We recently held further that

       [w]hether or not to make a motion for a bifurcated mercy proceeding pursuant to
       State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), is a matter of strategy
       and tactics and is thus a decision to be made by the parties and their advocates. A
       trial court does not have a duty to sua sponte order bifurcation.

Syl. Pt. 8, State v. Heater, 237 W. Va. 638, 790 S.E.2d 49 (2016), cert. denied sub nom. Heater
v. W. Virginia, 137 S. Ct. 1829, 197 L. Ed. 2d 771 (2017).

        Additionally, as part of petitioner’s competency evaluation, it was determined the
petitioner was able to “consult with his attorney with a reasonable degree of rational
understanding.” Thus, we find no basis upon which to conclude that petitioner failed to
understand the discussion with his counsel regarding whether to pursue bifurcation. Relying on
Contee and Holmes, petitioner urges this Court to change our law; under the facts of this case,
we decline to do so. Accordingly, because petitioner did not seek a bifurcated trial, we find no
error.

        Petitioner’s second and final assignment of error is that the circuit court failed to sustain
objections to prejudicial statements and improper opinion testimony of Detective Eric Hudson
during the State’s case-in-chief. Petitioner challenges three statements made by Detective
Hudson during his testimony, which the circuit court admitted over petitioner’s objection. First,
Detective Hudson described the victim’s wounds as follows:

       It was obvious to me due to the concave nature of the wound and upon turning her
       hand over, the presence of a vast amount of powder stippling that she had her
       hand up in front of her face and was struck by the bullet on her finger . . . before it
       struck her in the forehead.

        Detective Hudson next described a crime scene photo, saying, “I believe it depicts the
empty cartridge that took Nancy Shaw’s life.” Third, Detective Hudson testified as follows with
regard to another photo:

       [Detective Hudson]: I charge you to look at this photo and see how much

       gunpowder is present on Ms. Shaw’s hand. Seventy-two (72) inches as [defense

       counsel] wanted to muddy the waters, would be –

       [Defense counsel]: Objection to characterizing –

       [Detective Hudson]: I’m sorry. My apologies.

       THE COURT: Stay to the facts.

       [Detective Hudson]: Yes sir.


        This Court has held that “[a] trial court’s evidentiary rulings, as well as its application of
the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4,
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). Additionally,



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       [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.

Syl. Pt. 9, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) (citation omitted). “The
determination of whether a witness has sufficient knowledge of the matter 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 and prejudicially erroneous.” Syl. Pt. 4, Cox v.
Galigher Motor Sales Co., 158 W. Va. 685, 213 S.E.2d 475 (1975).

        Upon our review, Detective Hudson’s statements at trial regarding the victim’s wound
and the empty bullet cartridge were admissible lay witness testimony. The record establishes that
he personally visited the crime scene and had served in law enforcement for approximately six
years. Thus, he was speaking to facts he personally observed in the context of his experience as a
police officer. The rational connection between his opinions and the facts he observed is clear
and assisted the jury in determining the nature of the victim’s death, i.e., a gunshot wound.
Finally, with respect to Detective Hudson’s third statement about the presence of gunpowder on
the victim’s hand, the record clearly shows that the circuit court sustained defense counsel’s
objection and directed Detective Hudson to “stay to the facts.” Accordingly, we find no basis
upon which to reverse petitioner’s first-degree murder conviction.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis




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