No. 13-0099 – State of West Virginia v. Gary Lee Rollins
                                                                            FILED
                                                                         June 17, 2014
                                                                         released at 3:00 p.m.
WORKMAN, Justice, concurring:                                            RORY L. PERRY II, CLERK
                                                                       SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA




              While I concur with the result reached by the majority in affirming the

Petitioner’s conviction, as well as the concurring opinion by Justice Loughry, I write

separately to emphasize that the analysis employed by the circuit court in its twenty-eight

page order allowing the photographic evidence of domestic violence to be admitted at trial

was very thorough, well-reasoned and supported by the facts and law. As the circuit court

determined, the victim’s statements to two other individuals relating to the photographs were

not offered for the truth of the matter asserted and, therefore, were not hearsay. See W. Va.

R. Evid. 801(c) (“Hearsay’ is a statement, other than the one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.”). As this Court has previously held

                      ‘Generally, out-of-court statements made by someone
              other than the declarant while testifying are not admissible
              unless: 1) the statement is not being offered for the truth of the
              matter asserted, but for some other purpose such as motive,
              intent, state-of-mind, identification or reasonableness of the
              party’s action; 2) the statement is not hearsay under the rules; or
              3) the statement is hearsay but falls within an exception
              provided for in the rules.’ Syl. Pt. 1, State v. Maynard, 183 W.
              Va. 1, 393 S.E.2d 221 (1990).

Syl. Pt. 3, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010); see State v. Kaufman, 227


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W. Va. 537, 552, 711 S.E.2d 607, 622 (2011); see also State v. Phillips, 194 W. Va. 569,

592, 461 S.E.2d 75, 98 (1995)(Workman, dissenting)(discussing statements made by victim

at a time close to her death about defendant’s extramarital affairs and girlfriends not being

offered for the truth of the matter asserted, but “to circumstantially prove the Defendant’s

motive to murder his wife[,]”and further opining that “to conclude, as the majority essentially

does, that these statements do not establish such a motive or that motive is irrelevant in a case

where the Defendant claims ‘accidental killing’ is, quite frankly, absurd!”), overruled on

other grounds by State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013). Thus, the

circuit court correctly reasoned that the statements involving the photographs were “not being

offered for the truth of the matter asserted, but are, rather, being admitted solely for the

purpose of identifying the bruises seen in the photographs. Accordingly, and so long as the

statements are only used for identification purposes, they do not constitute inadmissible

hearsay.” In other words, the statements were offered to show that the bruises were not

something that happened to the decedent accidentally; rather they were alleged to have been

intentionally inflicted upon the decedent by the Petitioner.



              Notwithstanding the circuit court’s conclusion that the statements made in

conjunction with the photographs were not hearsay, the circuit court proceeded to analyze

whether the statements would fall within any of the exceptions to the hearsay rule. Once

again, the circuit court correctly determined that even if it had found that the statements were


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hearsay, they were still admissible under either Rule 803 of the West Virginia Rules of

Evidence concerning present-sense impression or Rule 804(b)(5) of the West Virginia Rules

of Evidence regarding the catch-all exception. The circuit court very methodically set forth

why the statements at issue were admissible under both exceptions.



              After concluding that the statements at issue were admissible under the hearsay

rules, the circuit court continued its analysis by examining the statements under the

Confrontation Clause. Upon exploring the statements under State v. Mechling, 219 W. Va.

366, 633 S.E.2d 311 (2006), the circuit court arrived at the legally sound conclusion that the

statements made by the victim, Teresa Collins, to two separate individuals regarding her

bruises and injuries were nontestimonial for purposes of the Confrontation Clause. As this

Court has previously stated in Kaufman,

                        Unlike testimonial out-of-court statements,
              nontestimonial statements may be admissible in a criminal trial
              if it is shown that the witness was unavailable for trial, and that
              the witness’s statement bore adequate indicia of reliability. See
              Mechling, 219 W. Va. at 371, 633 S.E.2d at 316. In syllabus
              point five of James Edward S., we held that

                             [e]ven though the unavailability
                     requirement has been met, the Confrontation
                     Clause contained in the Sixth Amendment to the
                     United States Constitution mandates the exclusion
                     of evidence that does not bear adequate indicia of
                     reliability. Reliability can usually be inferred
                     where the evidence falls within a firmly rooted
                     hearsay exception.


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                     However, where such statements are not offered under a
              hearsay exception considered to be “firmly-rooted,” then the
              statements are presumptively unreliable and must be excluded
              “at least absent a showing of particularized guarantees of
              trustworthiness.’” James Edward S., 184 W.Va. at 414, 400
              S.E.2d at 849 (internal quotations omitted).

Kaufman, 277 W. Va. at 551-52, 711 S.E.2d at 621-22 (footnote omitted).



              Finally, I want to stress the importance of prior domestic violence evidence

between the deceased and the defendant in cases such as this. In this case the evidence was

offered and found admissible under West Virginia Rule of Evidence 404(b) to show accident

or absence of mistake. Evidence of prior acts of domestic violence also would have been

admissible in this case to show motive, or even intent. See id. As we have previously stated,

              “[t]he circumstances under which such evidence may be found
              relevant and admissible under the Rule have been described as
              ‘infinite.’ Some of such circumstances are set forth in the Rule
              itself, but the cataloguing therein is merely illustrative and not
              exclusionary.” Consequently, W. Va. R. Evid. 404(b) is an
              “inclusive rule” in which all relevant evidence involving other
              crimes or acts is admitted at trial unless the sole purpose for the
              admission is to show criminal disposition.

State v. Edward Charles L., 183 W. Va. 641, 647, 398 S.E.2d 123, 129 (1990)(quoting U.S.

v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)). Moreover, this Court has previously found that

acts of violence between the defendant and deceased are admissible. See State v. LaRock,

196 W. Va. 294, 313, 470 S.E.2d 613, 632 (1996) (addressing father’s conviction for the

murder of his infant son and explaining that “[e]vidence of the prior attacks and beatings not


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only demonstrated the motive and setup of the crime but also was necessary to place the

child’s death in context and to complete the story of the charged crime. We hold that

historical evidence of uncharged prior acts which is inextricably intertwined with the charged

crime is admissible over a Rule 403 objection.”); State v. Smith, 178 W. Va. 104, 108 n.2,

358 S.E.2d 188, 192 n.2 (1987) (“As to the relevancy of other violent acts between a

defendant and a deceased, courts have generally permitted such evidence to show ill will or

hostility as bearing upon intent, malice and motive for the homicide.”).



              For the foregoing reasons, I respectfully concur.




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