                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                            FILED
                                                                                 September 18, 2015
vs) No. 14-0756 (Cabell County 12-F-63)                                           RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Harry Smith,

Defendant Below, Petitioner



                                MEMORANDUM DECISION
        Petitioner Harry Smith, by counsel Richard W. Weston, appeals the jury verdict and
resentencing order related to his conviction for second degree murder. Respondent State of West
Virginia (“State”), by counsel Sean Hammers, filed a response in support of the circuit court’s
order, to which petitioner replied.

        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 July 30, 2011, petitioner shot and killed his wife in the residence they shared in
Cabell County.1 After the shooting, at approximately 10:52 p.m., petitioner called 911 and
waited at his home for police officers to arrive. Upon their arrival, the officers handcuffed
petitioner (for officer safety) and transported him to the Ona field office of the Cabell County
Sheriff’s Department.2 While at the Ona field office, petitioner provided a statement to Detective
Larry Gay. Prior to speaking with petitioner, Detective Gay read petitioner his Miranda3 rights,
and petitioner signed a voluntary waiver form.4

       1
        While petitioner does not dispute that he shot his wife, he contends the shooting was
accidental.
       2
           The State contends that during this time frame, petitioner was not under arrest.
       3
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1062, 16 L.Ed.2d 694 (1966).
       4
        Petitioner endorsed the voluntary waiver form at 1:53 a.m. The voluntary waiver form
included a paragraph that indicated petitioner was willing to answer questions, and did not want
a lawyer or to go before a magistrate at that time. In completing the voluntary waiver form,
(continued…)
                                                   1

        In his statement to Detective Gay, petitioner denied that he acted with premeditation or
malice in shooting his wife. Petitioner described that on the evening of the shooting he had been
sitting with his wife in their home, with his gun at his side. Petitioner’s wife was bothered by the
presence of his gun and made complaints to him regarding the gun. In response to his wife’s
complaints, petitioner picked up the gun, pulled the hammer back, and handed the gun to his
wife (with the barrel pointed towards her with his finger on the trigger). The gun reportedly
discharged as petitioner was handing it to his wife.

        Based upon petitioner’s statement and his demeanor following the shooting, an arrest
warrant was issued for petitioner, and he was charged with first degree murder.5 On February 22,
2012, petitioner was indicted on the charge of first degree murder. On April 2, 2013, the State
filed a motion to allow 404(b) evidence at trial. An in camera hearing related to the proposed
404(b) evidence was held on May 31, 2013, at which the circuit court heard testimony from
seven witnesses. On October 4, 2012, the trial court entered its order regarding the State’s
motion to allow 404(b) evidence, and made specific rulings with respect to the testimony
proffered by each of the seven witnesses, allowing the admission of some 404(b) evidence while
excluding other such evidence.

        On November 5, 2012, petitioner’s trial commenced with jury selection. After jury
selection, the circuit court held a hearing, outside of the presence of the jury, on the admissibility
of petitioner’s statements to law enforcement officers on the evening of the shooting. The circuit
court found that while there was a two-hour time period between the shooting and the petitioner
being transported to the field office, the purpose of the delay was not to compel a statement from
petitioner, but to further the investigation and determine whether petitioner should be charged
with any particular offense.

         In its case-in-chief, the State called numerous witnesses, including six witnesses to testify
regarding petitioner’s prior bad acts.6 After the testimony of each of these witnesses, a limiting
instruction was read to the jury. In his case-in-chief, petitioner called Jack Ellis, the victim’s
boyfriend, as a trial witness. Mr. Ellis testified, under cross-examination, that the victim gave
petitioner Xanax because he was getting abusive toward her and drinking a lot. He further
testified that on a number of occasions – as many as eight – the victim told him that she had to
sleep in her car to get away from petitioner’s abuse. The victim reportedly told Mr. Ellis that she



petitioner acknowledged that no promises, threats, pressures, or coercion had been used, and that
he understood and waived his rights
       5
         Petitioner’s demeanor following the shooting was described as calm. Petitioner asked no
questions about his wife’s condition. He did not show any worry or concern about his wife,
either at his residence or later at the Ona field office.
       6
        The 404(b) witnesses called by the State at trial were each identified in the State’s
motion to allow 404(b) evidence.



                                                  2

was afraid of petitioner and advised that petitioner had her followed, and, on one occasion,
slapped her causing her glasses to fall from her face.

        The trial concluded on November 13, 2013, with petitioner’s conviction of second degree
murder. On January 28, 2014, petitioner filed a motion for post-verdict judgment of acquittal. On
February 5, 2014, a hearing was held on petitioner’s motion for post-verdict judgment of
acquittal. By order dated February 6, 2014, petitioner’s motion was denied. Petitioner was
sentenced on February 5, 2014, to forty (40) years in prison. On June 19, 2014, petitioner was
resentenced to forty (40) years in prison.7 It is from the trial court’s June 19, 2014, order, which
petitioner now appeals.

        On appeal, petitioner raises five assignments of error. In his first assignment of error,
petitioner argues that the circuit court erred by allowing, and improperly analyzing, numerous
bad acts and character evidence of petitioner supported only by uncorroborated hearsay in
violation of State v. McGinnis, and the West Virginia Rules of Evidence.8 In syllabus point two
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
         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

         7
         Petitioner was resentenced to clarify that he was given credit for all time served in jail
since his incarceration upon conviction.
         8
             Petitioner identifies twenty-nine such statements made by seven different witnesses at
trial.


                                                   3

       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.

In the instant case, the circuit court held the required in camera hearing, as to the witnesses
proffered by the State and made specific determinations as to which of these witness statements
were admissible, and which were not admissible, along with establishing the purpose for which
such testimony was admissible. Based on our review of record before this Court, we find that the
circuit court did not abuse its discretion in allowing the testimony of the State’s witnesses as to
petitioner’s alleged prior bad acts and intentions. The circuit court completed the necessary
hearing, as directed by McGinnis, made the appropriate findings, and offered limiting
instructions following the testimony of each of the 404(b) witnesses and, again, in the jury
charge.

        As to the remaining witness, Jack Ellis, who was called as a trial witness by petitioner, it
is clear from the record that petitioner’s counsel did not make any objections regarding Mr.
Ellis’s testimony during his cross-examination at trial. “Errors assigned for the first time on
appeal will not be regarded in any matter of which the trial court had jurisdiction or which might
have been remedied in the trial court had objection been raised there.” State v. Dennis, 216
W.Va. 331, 350, 607 S.E.2d 437, 456 (2004). Accordingly, as petitioner made no objections
regarding Mr. Ellis’s testimony at trial, we find petitioner waived any objection to Mr. Ellis’s
testimony, and rule that the circuit court did not abuse its discretion in allowing the subject
evidence.

        In his second assignment of error, petitioner argues that the circuit court erred by
allowing petitioner’s statement to Detective Gay to be admitted, as the police violated the prompt
presentment rule under West Virginia Code § 62-1-5(a). Petitioner asserts that while he was
arrested at approximately 11:30 p.m., he was taken to the Ona field office for questioning (where
he signed a rights waiver at 1:53 a.m.) rather than directly to a magistrate. Petitioner argues that
he was taken to the police station after being placed under arrest for the sole purpose of obtaining
a statement or confession.

        While it is true that “[t]he delay in taking a defendant to a magistrate may be a critical
factor [in the totality of circumstances making a confession involuntary and hence inadmissible]
where it appears that the primary purpose of the delay was to obtain a confession from the
defendant [,]” based upon our review of the record, it appears that there was no violation of the
prompt presentment rule in the instant case. Syl. Pt. 13, in part, State v. Newcomb, 223 W.Va.
843, 679 S.E.2d 675 (2009) (quoting Syl. Pt. 6, State v. Persinger, 169 W.Va. 121, 286 S.E.2d
261 (1982); Syl. Pt. 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984)). Further,
“[o]rdinarily the delay in taking an accused who is under arrest to a magistrate after a confession
has been obtained from him does not vitiate the confession under our prompt presentment rule.”
Syl. Pt. 14, in part, Newcomb (citations omitted).




                                                 4

        Contrary to petitioner’s argument, the circuit court found that petitioner was not under
arrest when he was taken to the police station. The record reveals that petitioner was not arrested
until after he gave his statement to Detective Gay. The circuit court found that petitioner failed to
demonstrate the sole purpose for taking him to the Ona field office was to obtain a confession.
“‘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 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999).”
Newcomb, 223 W.Va. at 851, 679 S.E.2d at 683. Therefore, we find that the circuit court did not
abuse its discretion regarding petitioner’s statement and his challenge under the prompt
presentment rule.

         Next, petitioner argues that the circuit court erred by not allowing the testimony of his
retained expert, Dr. Bobby Miller.9 The record reveals that on October 30, 2012, five days prior
to trial, the State filed a motion in limine to preclude Dr. Miller’s testimony.10 Prior to trial, the
circuit court, outside of the presence of the jury, addressed the State’s motion to exclude Dr.
Miller’s testimony and advised the parties that it had not yet made a decision on this issue.
Neither party attempted to call Dr. Miller to the witness stand at trial. At the conclusion of the
State’s case, it reminded the circuit court about its pending motion regarding Dr. Miller’s
testimony. The court advised the parties it was still thinking about the motion, to which
petitioner’s counsel responded “relieve your mind.” No additional reference to Dr. Miller was
made at trial. Petitioner now alleges that the circuit court’s error in not allowing Dr. Miller’s
testimony precluded petitioner from presenting a proper defense. We disagree.

         “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. 3, State v. Larry M., 215 W.Va.
358, 559 S.E.2d 781 (2004) (citation omitted). It is clear from the record that petitioner did not
call Dr. Miller as a trial witness, and made no request for the circuit court to issue a ruling on the
State’s motion to exclude Dr. Miller’s testimony. The decision to exclude Dr. Miller as a trial
witness was a voluntary decision of petitioner’s counsel. The assertion that the circuit court
prevented Dr. Miller from testifying is unsupported in the record. Further, because this argument
is now being raised for the first time on appeal, we must necessarily find that the argument has
been waived. Petitioner was required to bring any issue it perceived regarding the exclusion of
Dr. Miller’s testimony before the circuit court. This Court has “long held that theories raised for
the first time on appeal are not considered.” Clint Hurt & Assoc. v. Rare Earth Energy, Inc., 198
W.Va. 320, 329, 480 S.E.2d 529, 538 (1996). This Court will not consider nonjurisdictional
questions that have not been considered by the trial court. Id. “The rationale behind this rule is
that when an issue has not been raised below, the facts underlying that issue will not have been

       9
        Dr. Miller, a forensic psychiatrist, opined that petitioner (seventeen months after his
wife’s death) suffered from post-traumatic stress disorder (“PTSD”) as a result of killing his
wife, and that such a finding was uncommon in murder defendants.
       10
         The State argued that because petitioner was not claiming diminished capacity, Dr.
Miller’s purported testimony would not aid the jury in determining a fact in issue in this case,
and should be excluded.


                                                  5

developed in such a way so that a disposition can be made on appeal. . . . there is also a need to
have the issue refined, developed and adjudicated by the trial court so that we may have the
benefit of its wisdom.” Id. (citing Whitlow v. Bd. of Educ. of Kanawha County, 190 W.Va. 223,
226, 438 S.E.2d 15, 18 (1993)).

        In his fourth assignment of error, petitioner contends that the trial court erred by allowing
the victim’s family to wear purple support ribbons, which influenced the jury and denied
petitioner the right to a fair trial by an impartial jury. In support of his argument, petitioner relies
on syllabus point two of State v. Franklin, 174 W.Va. 469, 327 S.E.2d 449 (1985), in which this
Court found that

               [w]here the defendant was on trial for a felony under W.Va. Code 17C-5-2
       [1981] [driving under the influence of alcohol], the obvious presence of members
       of an organization dedicated to stiffer penalties for drunk drivers who advertised
       their association with that organization by wearing badges was reversible error.

        However, the facts of the instant case are drastically different from the facts present in
Franklin. In Franklin, defendant’s counsel repeatedly requested a mistrial or alternatively asked
the court to order the removal of the offending badges, or the spectators wearing them, from the
courtroom. Conversely, in the instant case, it was not until the fourth day of trial, during a
sidebar conference, that petitioner’s counsel advised the court that the victim’s family members
were present in the courtroom and were wearing purple ribbons. Despite advising the circuit
court of the presence of these family members, petitioner’s counsel made no identification of the
individuals at issue, did not request that these individuals be admonished, made no request that
the jury be polled (to determine if observing the ribbons had affected them), and did not move
for a mistrial. Outside of the presence of the jury, the judge, sua sponte, directed these
individuals to remove the purple ribbons. Petitioner’s counsel made no further request for
curative action. We are not persuaded by petitioner’s argument on this matter and finds that he
waived this assignment of error.

       In LaRock, 196 W.Va. at 316, 470 S.E.2d at 635, this Court explained as follows:

       Our cases consistently have demonstrated that, in general, the law ministers to the
       vigilant, not to those who sleep on their rights . . . . When a litigant deems himself
       or herself aggrieved by what he or she considers to be an important occurrence in
       the course of a trial or an erroneous ruling by a trial court, he or she ordinarily
       must object then and there or forfeit any right to complain at a later time. The
       pedigree for this rule is of ancient vintage, and it is premised on the notion that
       calling an error to the trial court’s attention affords an opportunity to correct the
       problem before irreparable harm occurs.

This Court in LaRock further explained:

       There is also an equally salutary jurisdiction for the raise or waive rule; It
       prevents a party from making a tactical decision to refrain from objecting and,
       subsequently, should the case turn sour, assigning error (or even worse, planting

                                                   6

       an error and nurturing the seed as a guarantee against a bad result). In the end, the
       contemporaneous objection requirement serves an important purpose in
       promoting the balanced and orderly functioning of our adversarial system of
       justice.

196 W.Va. at 316, 470 S.E.2d at 635.

       Petitioner’s fifth and final assignment of error is that the circuit court’s cumulative error
prevented him from receiving a fair trial. See Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193
S.E.2d 550 (1972) (The cumulative effect of numerous errors may result in the setting aside of a
criminal conviction.) However, because we find no error in this case, the cumulative error
doctrine has no application. As this Court reasoned in State v. Knuckles, 196 W.Va. 416, 426,
473 S.E.2d 131, 141 (1996) “[c]umulative error analysis should evaluate only the effect of
matters determined to be error, not the cumulative effect of non-errors.”

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: September 18, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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