          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2016 Term

                                                                      FILED

                                                                September 28, 2016

                                     No. 15-0535                      released at 3:00 p.m.
                                                                    RORY L. PERRY, II CLERK

                                                                  SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA




                             STATE OF WEST VIRGINIA,

                              Plaintiff Below, Respondent


                                          v.


                             RICKIE L. GREENFIELD JR.,

                              Defendant Below, Petitioner




                  Appeal from the Circuit Court of Berkeley County

                      Honorable Michael D. Lorensen, Judge

                           Criminal Action No. 13-F-233


                                     AFFIRMED



                             Submitted: September 13, 2016
                               Filed: September 28, 2016


B. Craig Manford, Esq.                          Cheryl K. Saville,
Martinsburg, West Virginia                      Assistant Prosecuting Attorney
Counsel for Petitioner                          Martinsburg, West Virginia
                                                Counsel for Respondent




JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              1. “A jury verdict may not ordinarily be impeached based on matters that occur

during the jury’s deliberative process which matters relate to the manner or means the jury

uses to arrive at its verdict.” Syl. Pt. 1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384

(1981).



              2. “The extent to which prior convictions may be introduced to impeach the

credibility of a witness other than the defendant in a criminal trial rests within the sound

discretion of the trial court.” Syl. Pt. 9, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549

(1986).



              3. “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).



              4. “‘A trial court is afforded wide discretion in determining the admissibility

of videotapes and motion pictures.’ Syllabus Point 1, Roberts v. Stevens Clinic Hospital, Inc.,

176 W.Va. 492, 345 S.E.2d 791 (1986).” Syl. Pt. 9, State v. Rodoussakis, 204 W.Va. 58, 511

S.E.2d 469 (1998).




                                               i
               5. “The admissibility of photographs over a gruesome objection must be

determined on a case-by-case basis pursuant to Rules 401 through 403 of the West Virginia

Rules of Evidence.” Syl. Pt. 8, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).



               6. “Rule 401 of the West Virginia Rules of Evidence requires the trial court

to determine the relevancy of the exhibit on the basis of whether the photograph is probative

as to a fact of consequence in the case. The trial court then must consider whether the

probative value of the exhibit is substantially outweighed by the counterfactors listed in Rule

403 of the West Virginia Rules of Evidence. As to the balancing under Rule 403, the trial

court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial

conduct, and the trial court’s discretion will not be overturned absent a showing of clear

abuse.” Syl. Pt. 10, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).



               7. “To trigger application of the ‘plain error’ doctrine, there must be (1) an

error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194

W.Va. 3, 459 S.E.2d 114 (1995).



               8. “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


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



              9. “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. To the extent our prior cases are inconsistent, they are

expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).




                                              iii
LOUGHRY, Justice:

              The petitioner, Rickie L. Greenfield Jr.,1 appeals the May 4, 2015, order of the

Circuit Court of Berkeley County denying his post-trial motions for a judgment of acquittal

or, alternatively, a new trial. He was convicted of first degree murder for killing his wife by

striking her multiple times in the head with a hammer. The jury did not recommend mercy.

In this appeal of his conviction, the petitioner raises seven assignments of error pertaining

to the following trial issues: length of the jury deliberations, limitation of impeachment

evidence concerning a witness’s prior conviction, allowing the jury to view a witness’s

videotaped statement, admission of a color photograph of the victim, admission of

correspondence the petitioner signed with the nickname “Hammer,” sufficiency of the

evidence to support the conviction, and cumulative error. After a thorough review of the

record on appeal, the parties’ arguments, and the relevant law, we find no error and,

accordingly, affirm.



                         I. Factual and Procedural Background

              The petitioner was indicted for first degree murder for the death of his wife,

Jill Greenfield, in violation of West Virginia Code § 61-2-1 (2014). The case went to trial

in January of 2015, where the State of West Virginia presented the following evidence.



       1
        The petitioner’s first name is sometimes spelled “Ricky” in the appendix record. The
record does not specify which spelling is correct.

                                              1

              After separating from the petitioner, in August of 2013, Ms. Greenfield

continued to live in the former marital residence, an apartment in Martinsburg, West

Virginia. The petitioner moved into the home of his girlfriend, Kristin Strong. At some

point Ms. Strong told the petitioner’s father, Rickie “Rick” Greenfield Sr.,2 that she was

concerned about the petitioner. Rick knew the petitioner and Jill could really “push each

other’s buttons” and that the petitioner had previously threatened to harm or kill Jill, although

Rick had not taken his son’s threat seriously. Acting on Ms. Strong’s concern, Rick spoke

with the petitioner and determined that the petitioner was feeling hurt and wanted his wife

back. When they spoke on the evening of August 21, 2013, Rick and the petitioner discussed

that the petitioner was going to Jill’s apartment that night to drop off his young children.3

Concerned about what his son might do, Rick urged the petitioner to remain calm and not

bring a gun to the apartment. Ms. Strong confirmed that the petitioner and his children left

her home on the night of August 21 for the purpose of taking the children to Jill’s apartment.



              At 9:47 p.m. that same night, the petitioner telephoned his father and confessed

that he had just killed Jill by hitting her in the head with a hammer. The petitioner told his

father he had tried to talk to Jill, but he “went crazy” when she said she would “screw” other

       2
        To avoid confusion, the petitioner Rickie Greenfield Jr. is referred to herein as “the
petitioner,” while his father, Rickie Greenfield Sr., is identified as “Rick Greenfield” or
“Rick.”
       3
        The petitioner and Jill Greenfield had two daughters together. In August of 2013, the
children were one and three years old.

                                               2

people and she no longer wanted a relationship with him. Rick Greenfield could hear his

grandchildren in the background of the telephone call. Although the petitioner initially told

his father he was “running from the law” and was suicidal, he then agreed not to harm

himself or the children and to turn himself over to the authorities.



              The petitioner sent a text message to his sister, Amanda Kellett, at 9:55 p.m.

that night. The message read, “call me 911 emergency.” When Ms. Kellett called him a few

minutes later, the petitioner was crying and confessed that he had just killed Jill with a

hammer. The petitioner stated he had struck Jill “at least fifty times” and “she doesn’t have

a face” anymore. According to Ms. Kellett’s trial testimony, the petitioner said he “snapped”

when Jill told him she would “screw anybody [she] want[ed] to in front of our girls.” Ms.

Kellett also recounted her knowledge of troubles in the petitioner and Jill’s marriage.

Although the petitioner and Jill were separated and the petitioner was in a relationship with

Ms. Strong, Ms. Kellett explained that the petitioner had “a really hard time” when Jill told

him of her relationships with other people. Ms. Kellett testified, “what really made it hard

[was] when Jill no longer wanted him.”



              Ms. Strong testified that the petitioner and the children returned to her home

on the night of August 21st. According to Ms. Strong, the petitioner appeared to be scared

and worried, and he told her that Jill had died. Upon being confronted at trial with a written


                                              3

transcript of the videotaped statement she gave to police, Ms. Strong then admitted that the

petitioner had also told her that he had argued with his wife and had killed her by beating

her in the face with a hammer.



              Meanwhile, Rick Greenfield was unsure of whether Jill Greenfield was really

dead, as his son had declared over the telephone. Rick and his brother-in-law drove to Jill’s

apartment, found the door locked, and knocked but received no answer. The brother-in-law

called 911 at 10:15 p.m., and the responding police officers broke in the apartment door to

discover the crime scene.



              Jill Greenfield’s deceased body was found lying near the edge of the bed in her

bedroom, with her feet on the floor, her pants partly unzipped, and her head covered with a

blanket. When the blanket was removed, police observed that she was covered in blood and

had severe head trauma. There was blood splatter in the bedroom, but no signs of a struggle

anywhere in the apartment. A weathered ball peen hammer, covered in what was later

confirmed to be the victim’s blood, was found on the bed near the body.



              The victim’s next-door neighbors, Kaitlin and Colin Shanahan, testified that

on the night of the murder, they left their apartment at 8:30 p.m. and returned at 9:00 p.m.

or shortly thereafter. They did not hear any signs of an attack, but at approximately 9:15 or


                                             4

9:30 p.m.4 they were sitting in their living room when they heard the sounds of heavy

footsteps and of children descending the wooden staircase shared by their apartment and the

Greenfield apartment. The Shanahans recognized these sounds as being made by the

Greenfield children and by the petitioner descending the stairs in his work boots.5



               At 10:32 p.m. that night, the petitioner called Rick Greenfield and revealed that

he was at Ms. Strong’s residence. The police immediately went to Ms. Strong’s home and

arrested the petitioner. When he was taken into custody, the petitioner had blood on his shirt

and pants. Subsequent testing by experts at the State Police Laboratory confirmed that this

blood belonged to the victim. Moreover, the police found boxes of miscellaneous tools in

the petitioner’s truck.6



               While in a police cruiser being transported to the police station, the petitioner

overheard a radio report about the presence of a coroner at his wife’s address. He asked

Patrolman Scott Shelton whether “they had saved” his wife. The officer disclosed that she



       4
        The Shanahans were able to recall the time when they heard the footsteps and the
children descending the stairs because Ms. Shanahan had remarked to her husband that the
children should have been in bed at that hour.
       5
        The petitioner had resided in the apartment next to the Shanahans until his recent
separation.
       6
       The petitioner was employed as a machine operator. When arrested, he was wearing
his work clothes and boots.

                                               5

was deceased. The petitioner then told the officer that he and his wife had been experiencing

marital problems, they had argued while inside the apartment, and he had “snapped.”7



                 Dr. Vernard Adams, the expert pathologist who performed an autopsy on the

victim, reported that she had multiple lacerations on her head and face accompanied by

fractures of the underlying bones in several places. The doctor determined that seven or

eight blows had been inflicted, mostly to the front part of the head. The victim’s injuries

included an open fracture over the bridge of her nose that went through the skull and the dura

matter of the brain. Dr. Adams testified that “from all of these wounds of the face, the

contour of the face was depressed. That is[,] it was pushed in and did not rebound.” The

cause of death was determined to be multiple blows inflicted by a small, hard, blunt object,

such as a hammer.



                 After hearing and deliberating on the evidence presented at the January 2015

trial, the jury found the petitioner guilty of first degree murder and did not recommend

mercy.8 By order entered on May 4, 2015, the circuit court denied the petitioner’s post-trial




       7
       The circuit court granted a pre-trial motion to suppress the petitioner’s statements
made in the police car. However, as a matter of trial strategy, the petitioner elicited this
evidence during his case-in-chief.
       8
           The trial was not bifurcated into separate guilt and mercy phases.

                                                6

motion for a judgment of acquittal or a new trial and sentenced him to life in prison without

the possibility of parole.



                                 II. Standards of Review

              The petitioner appeals the circuit court’s order denying his post-trial motions

for a new trial or judgment of acquittal. We apply the following standards when reviewing

a circuit court’s decision to deny a motion for new trial:

                     In reviewing challenges to findings and rulings made by
              a circuit court, we apply a two-pronged deferential standard of
              review. We review the rulings of the circuit court concerning a
              new trial and its conclusion as to the existence of reversible
              error under an abuse of discretion standard, and we review the
              circuit court’s underlying factual findings under a clearly
              erroneous standard. Questions of law are subject to a de novo
              review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Furthermore, “[t]he Court

applies a de novo standard of review to the denial of a motion for judgment of acquittal based

upon the sufficiency of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562,

567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)).

Where more particularized standards of review apply to specific assignments of error, they

are set forth below. Accordingly, we proceed to consider whether the petitioner is entitled

to the reversal of his conviction.




                                              7

                                       III. Discussion

                             A. Length of Jury Deliberations

              The petitioner contends it was error for the circuit court to have denied his

motion for a new trial when the jury returned its verdict after deliberating “only seventy

minutes.” He argues that seventy minutes was an insufficient period of time for the jury to

adequately consider the court’s instructions, the witness testimony, and what he reports was

“voluminous” documentary evidence presented during the four-day trial. He suggests the

jury must have been swayed by an emotional response to the brutal nature of the crime.

Arguing there was no error, the State responds that only two days of the trial were devoted

to the admission of evidence; all of the documentary evidence was explained or summarized

by the witness testimony; several of the documents were duplicative;9 and there was

extensive proof of the petitioner’s guilt.



              When determining whether a verdict may be impeached based on matters of

jury conduct, we first ascertain whether the challenge is intrinsic or extrinsic to the

deliberative process. For intrinsic matters, we have held that “[a] jury verdict may not

ordinarily be impeached based on matters that occur during the jury’s deliberative process



       9
       The trial transcript reflects that the exhibits included multiple photocopies of cellular
telephone records and of text messages forensically recovered from cellular telephones. The
information in these documents was summarized and, where relevant, read into the record
by witnesses.

                                               8

which matters relate to the manner or means the jury uses to arrive at its verdict.” Syl. Pt.

1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981). However, “a jury verdict may

be impeached for matters of misconduct extrinsic to the jury’s deliberative process.” Id. at

545, 285 S.E.2d at 385, syl. pt. 2, in part. There are several reasons for precluding

impeachment of a jury’s verdict based on matters intrinsic to the deliberations:

              The reason traditionally advanced to preclude impeachment of
              the jury verdict based on what occurred during the jury’s
              deliberations is primarily grounded on public policy protecting
              the privacy of the jurors. This policy prevents both litigants and
              the public from being able to gain access to the jury’s
              deliberative process. Inherent in this proposition is the
              recognition that ensuring the privacy of the jury’s deliberations
              will promote a full, frank and free discussion of all the issues
              submitted to the jury. It is also recognized that the very nature
              of the deliberative process, which requires the jurors to arrive at
              a unanimous verdict, must of necessity require accommodation
              of individual views. This process of accommodation should not
              be utilized as a means to attack the general verdict. The rule
              against impeachment of the verdict also serves to prevent
              litigants from attempting to influence or tamper with individual
              jurors after the verdict has been rendered. There is also
              recognition that limiting impeachment promotes finality of jury
              verdicts.

Id. at 548, 285 S.E.2d at 387 (citations omitted).



              Elaborating on Scotchel, we explained in State v. Jenner that a challenge to a

jury’s verdict that is based solely upon the length of the deliberations constitutes an intrinsic

challenge that we will not entertain. State v. Jenner, 236 W.Va. 406, 417, 780 S.E.2d 762,

773 (2015). “The length of jury deliberations is necessarily indeterminate[]” and “could

                                               9

signify that the jury found overwhelming evidence of guilt not justifying the possibility of

parole.” Id.; accord State v. Mayle, No. 13-0437, 2014 WL 2782126, at * 4 (W.Va. June 19,

2014) (memorandum decision) (recognizing that length of jury deliberations constitutes

intrinsic challenge to verdict). Relying solely on the length of the deliberations, without

something more, constitutes nothing other than a presumption of juror misconduct. “[T]he

mere allegation of juror misconduct is insufficient to warrant a new trial . . . there must be

proof that some improper event has occurred. Misconduct on the part of the jury as grounds

for a new trial is not presumed but must be fully proved by the moving party.” State v. Trail,

236 W.Va. 167, 175, 778 S.E.2d 616, 624 (2015) (citation and internal quotation marks

omitted).



              The United States Court of Appeals for the Seventh Circuit provided an

illuminating discussion on this topic in United States v. Cunningham, 108 F.3d 120 (7th Cir.

1997). When deciding the appeal of a criminal conviction where the jury deliberations had

lasted just ten minutes, the court reasoned that

              the time it takes the jury to decide is not the relevant factor. The
              weight of the evidence is [the relevant factor]. . . . If we trust
              our jury system, we must trust our jurors. Before attaching great
              significance to the short time the jury took for deliberations, we
              must have reason to suspect that the jury in some way
              disregarded its instructions or otherwise failed in its duty. A
              brief deliberation cannot, alone, be a basis for an acquittal.




                                              10

Id. at 123-24 (citations omitted). This conclusion is in line with the decisions of other courts.

See B.K. Carpenter, Annotation, Effect on Verdict in Criminal Case of Haste or Shortness

of Time in Which Jury Reached It, 91 A.L.R. 2d 1238 (1963 & Supp. Feb. 2016) (finding no

criminal case in which abbreviated length of deliberations constituted reversible error).



              The record shows that the overwhelming weight of the evidence at trial pointed

to the petitioner’s guilt. He confessed to his father, sister, and girlfriend that he killed Ms.

Greenfield by inflicting hammer blows; the victim’s blood was on his clothing; and he was

placed at the scene of the crime.10 The evidence was straightforward and uncomplicated,

with no challenges made to the scientific evidence or the cause of death. The petitioner has

offered nothing but the bare speculation of juror misconduct, and we have no basis upon

which to conclude that the jury ignored its instructions or failed to consider the evidence.

We therefore find the circuit court did not abuse its discretion when rejecting this claim.



                         B. Limitation of Impeachment Evidence

              The petitioner asserts error regarding the circuit court’s limitation of the prior

conviction evidence that he offered to impeach a State’s witness. Additional background

information is necessary to discuss this issue.



       10
         The sufficiency of the evidence to support the conviction is further addressed in
section III-F of this opinion.

                                               11

              At the beginning of trial, one theory of the petitioner’s case was that someone

else, perhaps a man named Michael Stotler, had killed the victim. Jill Greenfield had been

in a romantic relationship with Mr. Stotler that she ended shortly before her death. Mr.

Stotler testified at trial that he and Ms. Greenfield remained on good terms, he was not angry

with her, and he did not kill her. Arguing that Mr. Stotler’s testimony downplayed his

motive to commit the murder, the petitioner sought to impeach his credibility with evidence

that Mr. Stotler, a firefighter, had been convicted of arson in Virginia in 1986. Because the

conviction was more than ten years old, the circuit court correctly recognized that the

admissibility of this evidence was limited by West Virginia Rule of Evidence 609(b)

(2016).11 The circuit court, after weighing the probative value of the evidence against its


       11
        The relevant portion of Rule 609, “Impeachment by Evidence of a Criminal
Conviction,” provides:

              (a) General Rule.

              . . . .

              (2) All Witnesses Other Than Criminal Defendants. For the
              purpose of attacking the credibility of a witness other than the
              accused
              (A) evidence that the witness has been convicted of a crime shall
              be admitted, subject to Rule 403, if the crime was punishable by
              death or imprisonment in excess of one year under the law under
              which the witness was convicted, and
              (B) evidence that the witness has been convicted of a crime shall
              be admitted if it involved dishonesty or false statement,
              regardless of the punishment.
              (b) Limit on Using the Evidence After 10 Years. This
              subdivision (b) applies if more than 10 years have passed since
              the witness’s conviction or release from confinement for it,
              whichever is later. Evidence of the conviction is admissible

                                             12

prejudicial effect, determined that the prior conviction was of limited probative value.

However, in an effort to allow the petitioner reasonable latitude in presenting his defense,

the court permitted defense counsel to elicit that Mr. Stotler had an unspecified felony

conviction without identifying the offense or its particulars.



               The petitioner argues the circuit court erred by prohibiting his inquiry into the

nature of the 1986 conviction. We review this issue for abuse of discretion. See Syl. Pt. 9,

State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986) (“The extent to which prior

convictions may be introduced to impeach the credibility of a witness other than the

defendant in a criminal trial rests within the sound discretion of the trial court.”); Syl. Pt. 4,

State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998) (“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.”).



               The record makes clear that impeaching Mr. Stotler with the particulars of his

conviction would have had no probative value in this case. See W.Va. R. Evid. 609(b)(1)




               only if the court determines, in the interests of justice, that:
               (1) its probative value, supported by specific facts and
               circumstances, substantially outweighs its prejudicial effect; and
               (2) the proponent gives an adverse party reasonable written
               notice of the intent to use it so that the party has a fair
               opportunity to contest its use.

                                               13

(directing trial court to determine whether “probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect”).        The conviction was

approximately twenty-nine years ago and concerned arson, a crime different from the

bludgeoning of someone to death with a hammer. Before Mr. Stotler testified, the State had

already offered a plethora of evidence–including the petitioner’s multiple admissions–to

prove that it was the petitioner who killed Jill Greenfield. Indeed, as the evidence was

developed at trial, the petitioner essentially abandoned his theory that someone else was the

perpetrator, focusing instead on reducing the degree of his own criminal culpability and

seeking mercy.



              In light of the specific facts and circumstances of this case, the circuit court

could have properly excluded evidence of Mr. Stotler’s conviction in its entirety pursuant to

Rule 609(b). Instead, the trial court granted the petitioner some leeway. The trial court’s

ruling to allow the limited impeachment evidence did not constitute an abuse of discretion.



                      C. Admission of Video-Recorded Statement

              The petitioner argues that the circuit court’s admission into evidence of a video

recording of the statement Ms. Strong gave to police violated West Virginia Rule of

Evidence 403 (2016). He relies on the portion of this Rule that states, “[t]he court may

exclude relevant evidence if its probative value is substantially outweighed by a danger of


                                             14

one or more of the following: . . . undue delay, wasting time, or needlessly presenting

cumulative evidence.” Id., in part. According to the petitioner, the video was cumulative

because the prosecutor had already impeached Ms. Strong using a written transcript of her

recorded statement. The State responds that the probative value of the video substantially

outweighed any danger of undue delay or waste of time, and it was not cumulative of other

evidence. Moreover, the State contends that Ms. Strong, who was the petitioner’s girlfriend,

provided multiple evasive answers during her trial testimony that were contradicted by what

she told police in the recorded statement.



              The trial court overruled the petitioner’s cumulative objection and found the

video recording had independent evidentiary value.          For example, the circuit court

determined that the video would address an issue that arose during Ms. Strong’s testimony

regarding whether the police told her a hammer was used to commit the murder, or whether

the petitioner gave her this information.



              Consistent with our standard of review for other evidentiary rulings, “‘[a] trial

court is afforded wide discretion in determining the admissibility of videotapes and motion

pictures.’ Syllabus Point 1, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345

S.E.2d 791 (1986).” Rodoussakis, 204 W.Va. at 61, 511 S.E.2d at 472, syl. pt. 9. The circuit

court gave a logical reason for why it found the video recording to be relevant and not


                                             15

cumulative, and there is nothing in the appendix record or the petitioner’s argument to

demonstrate that the court abused its discretion in admitting this evidence.



                            D. Admission of Color Photograph

              The State offered into evidence a single, color photograph of the deceased

victim taken by police at the crime scene. This photograph showed the victim’s fatal injuries,

open eyes, and blood on and around her head. The trial court admitted the photograph over

the petitioner’s objection that it was gruesome and unduly prejudicial.



              The test for admissibility of such photographs was set forth in syllabus point

eight of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994): “The admissibility of

photographs over a gruesome objection must be determined on a case-by-case basis pursuant

to Rules 401 through 403 of the West Virginia Rules of Evidence.”12 The Court further

explained that




       12
          Rule 401 provides, “[e]vidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” W.Va. R. Evid. 401 (2016). Rule 402 directs that
relevant evidence is admissible unless a constitutional provision, a different rule of evidence,
or a rule of court provides otherwise. W.Va. R. Evid. 402 (2016). Rule 403 provides, “[t]he
court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” W.Va.
R. Evid. 403 (2016).

                                              16

                      Rule 401 of the West Virginia Rules of Evidence requires
              the trial court to determine the relevancy of the exhibit on the
              basis of whether the photograph is probative as to a fact of
              consequence in the case. The trial court then must consider
              whether the probative value of the exhibit is substantially
              outweighed by the counterfactors listed in Rule 403 of the West
              Virginia Rules of Evidence. As to the balancing under Rule
              403, the trial court enjoys broad discretion. The Rule 403
              balancing test is essentially a matter of trial conduct, and the
              trial court’s discretion will not be overturned absent a showing
              of clear abuse.

Id. at 168, 451 S.E.2d at 734, syl. pt. 10.



              The circuit court completed this analysis when admitting the photograph, and

the petitioner concedes the photo was relevant pursuant to Rule 401. However, he argues

that in applying the balancing test of Rule 403, the photo should have been admitted in black

and white instead of in color. The petitioner contends that a black and white photo would

have been just as effective in demonstrating the manner and degree of the injuries, and he

claims that “[n]ot evident in the record was the jury’s gasps of shock and horror” when the

color exhibit was published.



              The State responds that the photograph was not unfairly prejudicial because

it accurately depicted the injuries to the victim and the condition in which she was found at

the crime scene. The State argues that it was entitled to present its evidence, and the victim’s

condition was probative of the element of malice and the issue of mercy.               Finally,


                                              17

considering the amount of blood on and surrounding the victim, the State argues that it is

questionable whether a black and white photograph would show anything other than a field

of gray. When this issue was raised during the post-trial motions, the circuit court agreed

that a black and white photo would not have adequately depicted the gradations of color

necessary for the jury to understand the nature of the injury.



              The petitioner’s sole complaint is that the photo was gruesome because it was

in color. We agree with the trial court’s conclusion that a black and white photo would not

have accurately depicted the victim’s condition. The State had a legitimate basis for showing

the nature of the crime, the force used, and the extent of the victim’s injuries. The probative

value of this evidence outweighed any prejudicial effect. Consequently, we find no abuse

of discretion in the admission of this exhibit.



          E. Evidence the Petitioner Signed Correspondence as “Hammer”

              During the State’s direct examination of the petitioner’s girlfriend, the

prosecutor asked whether the petitioner ever signed his letters to her using a nickname or

anything other than his name, “Rickie.” Ms. Strong answered that he had signed as

“Hammer.” The prosecutor then inquired, “The hammer. Did you find that funny?” Ms.

Strong answered, “At first.” Defense counsel made no objection during this exchange.




                                              18

                 On appeal, the petitioner contends that “the remark” was unwarranted

information intended to inflame the jury, thus constituting prosecutorial misconduct

warranting a new trial. He references the standard this Court set forth in State v. Sugg, 193

W.Va. 388, 456 S.E.2d 469 (1995), for determining whether to reverse a conviction based

upon improper prosecutorial commentary.13 However, the petitioner’s brief is unclear as to

exactly what he is challenging when he says “the remark.” If the petitioner is referencing

Ms. Strong’s answer, “Hammer,” then, as the State correctly observes, her answer was

witness testimony, not a prosecutorial comment. If, instead, the petitioner is referencing the

prosecutor’s follow-up question of whether the witness thought “Hammer” was funny, the




       13
            Syllabus points five and six of State v. Sugg provide:

                         5. A judgment of conviction will not be set aside because
                 of improper remarks made by a prosecuting attorney to a jury
                 which do not clearly prejudice the accused or result in manifest
                 injustice.

                         6. Four factors are taken into account in determining
                 whether improper prosecutorial comment is so damaging as to
                 require reversal: (1) the degree to which the prosecutor’s
                 remarks have a tendency to mislead the jury and to prejudice the
                 accused; (2) whether the remarks were isolated or extensive; (3)
                 absent the remarks, the strength of competent proof introduced
                 to establish the guilt of the accused; and (4) whether the
                 comments were deliberately placed before the jury to divert
                 attention to extraneous matters.

193 W.Va. at 393, 456 S.E.2d at 474.

                                                19

circuit court noted that this was asked because Ms. Strong smiled when answering the prior

question.14



                   In ruling on the petitioner’s post-trial motion, the circuit court found that the

prosecutor had not made any improper comments but, even if she had, the petitioner would

still not be entitled to relief.     Applying the Sugg test,15 the circuit court noted that this

exchange between the prosecutor and Ms. Strong was isolated and, absent the exchange,

there remained compelling evidence to establish the petitioner’s guilt beyond a reasonable

doubt.



                   For purposes of this opinion, we assume the petitioner is complaining that the

jury heard something about the “Hammer” signature. Because no objection was raised at

trial, we review this issue for plain error. “To trigger application of the ‘plain error’

doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and

(4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.”

Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).




         14
         The circuit court’s recollection of Ms. Strong’s facial expression was set forth on
the record during the hearing on the post-trial motions.
         15
              See supra, n. 13.

                                                  20

              The petitioner claims that “obviously” the State obtained a copy of

correspondence containing the signature in question, but failed to disclose the

correspondence in pre-trial discovery. In its appellate response brief, the State proffers that

the prosecution learned this information by listening to recorded jail telephone calls between

the petitioner and Ms. Strong where they talked about his signature, and that the recordings

of these calls were provided to the defense in pre-trial discovery. The pre-trial discovery is

not included in the appendix record on appeal, thus we are unable to independently confirm

the State’s representation.    Nonetheless, we note the petitioner did not exercise his

opportunity to dispute this assertion by filing a reply brief. Given the appellate record before

us, we find the petitioner has not demonstrated a pre-trial discovery violation.



              Next, the petitioner complains that information about the “Hammer” signature

was so prejudicial as to have improperly inflamed the jury. He argues that the jurors might

have granted the petitioner mercy, or found the petitioner guilty of a lesser-included offense,

if they had not heard about the moniker. We disagree. To affect the petitioner’s substantial

rights, the exchange between the prosecutor and witness “must have affected the outcome

of the proceedings in the circuit court.” See id. at 18, 459 S.E.2d at 129. Even if this isolated

exchange had not occurred, there was more than sufficient evidence for the jury to find the




                                               21

petitioner guilty of first degree murder beyond a reasonable doubt.16 In addition, the jury’s

denial of mercy is supported by, inter alia, the extremely brutal nature of the murder and the

fact that the crime was committed while the victim’s young children were in the apartment.



               F. Sufficiency of the Evidence to Support the Conviction

              The petitioner argues the circuit court should have granted his motion for a

judgment of acquittal because the State failed to prove first degree murder beyond a

reasonable doubt. When reviewing a claim of insufficiency of the evidence, we review all

of the evidence and accept all inferences from a vantage point most favorable to the State:

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

                     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


       16
         The sufficiency of the evidence to support the conviction is discussed in section III-F
of this opinion.

                                              22

              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.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part. The evaluation of a sufficiency of the

evidence argument was also discussed in syllabus point two of State v. LaRock, 196 W.Va.

294, 470 S.E.2d 613 (1996):

                     When a criminal defendant undertakes a sufficiency
              challenge, all the evidence, direct and circumstantial, must be
              viewed from the prosecutor’s coign of vantage, and the viewer
              must accept all reasonable inferences from it that are consistent
              with the verdict. This rule requires the trial court judge to
              resolve all evidentiary conflicts and credibility questions in the
              prosecution’s favor; moreover, as among competing inferences
              of which two or more are plausible, the judge must choose the
              inference that best fits the prosecution’s theory of guilt.

Id. Finally, this Court may accept any adequate evidence, including circumstantial evidence,

as support for a conviction:

              Circumstantial evidence . . . is intrinsically no different from
              testimonial evidence. Admittedly, circumstantial evidence may
              in some case point to a wholly incorrect result. Yet this is
              equally true of testimonial evidence. In both instances, a jury is
              asked to weigh the chances that the evidence correctly points to
              guilt against the possibility of inaccuracy or ambiguous
              inference. In both, the jury must use its experience with people
              and events in weighing the probabilities. If the jury is
              convinced beyond a reasonable doubt, we can require no more.




                                              23

Guthrie, 194 W.Va. at 668, 461 S.E.2d at 174 (quoting Holland v. United States, 348 U.S.

121, 139-40 (1954)).



               To establish first degree murder, the State was required to prove beyond a

reasonable doubt that the petitioner committed the intentional, deliberate, and premeditated

killing of Jill Greenfield. See W.Va. Code § 61-2-1; State v. Browning, 199 W.Va. 417, 420,

485 S.E.2d 1, 4 (1997) (reciting elements of first degree murder); Guthrie, 194 W.Va. at 676,

461 S.E.2d at 182 (discussing first degree murder jury instruction). The evidence presented

at trial overwhelmingly proved that it was the petitioner who killed his wife. The forensic

pathologist testified that the victim died from multiple blows to her head; the petitioner

confessed to his father, sister, and girlfriend that he killed his wife by beating her in the head

with a hammer; a bloody hammer was found near the victim; forensic testing established that

the victim’s blood was on the petitioner’s clothing and on the hammer; and the testimony of

multiple witnesses placed the petitioner at the victim’s apartment at the time of the crime.

The petitioner’s suggestion that someone else committed the crime was soundly defeated by

the State’s evidence.



               Regarding the element of intent,17 the Court has explained that


       17
         For first degree murder, the term “malice” is often used interchangeably with
“specific intent to kill” or “intentional killing.” State v. Hatfield, 169 W.Va. 191, 198, 286
S.E.2d 402, 407 (1982); State v. Davis, 205 W.Va. 569, 583, 519 S.E.2d 852, 866 (1999).

                                               24

              “[t]he customary manner of proving malice in a murder case is
              the presentation of evidence of circumstances surrounding the
              killing. State v. Starkey, 161 W.Va. [517] at 522, 244 S.E.2d
              [219] at 223 [1978]. Such circumstances may include, inter alia,
              the intentional use of a deadly weapon, State v. Toler, 129
              W.Va. 575, 579-80, 41 S.E.2d 850, 852-53 (1946), words and
              conduct of the accused, State v. Hamrick, 112 W.Va. [157] at
              166-67, 163 S.E. [868] at 873 [1932], and, evidence of ill will
              or a source of antagonism between the defendant and the
              decedent, State v. Brant, 162 W.Va. 762, 252 S.E.2d 901, 903
              (1979).” State v. Evans, 172 W.Va. 810, 813, 310 S.E.2d 877,
              879 (1983).

State v. White, 231 W.Va. 270, 283-84, 744 S.E.2d 668, 681-82 (2013). The jury’s finding

of malice is supported by the evidence that the petitioner inflicted multiple, savage hammer

blows to his estranged wife’s head. These blows were so numerous and forceful that they

depressed her face and exposed her brain matter. Moreover, the jury heard how the petitioner

was upset that his wife would not agree to reconcile with him and was instead having

relationships with other people.



              The focus of the petitioner’s argument on appeal pertains to the elements of

premeditation and deliberation.18 With regard to these elements, the Court has held:

                      Although premeditation and deliberation are not
              measured by any particular period of time, there must be some
              period between the formation of the intent to kill and the actual
              killing, which indicates the killing is by prior calculation and



       18
         In addition to first degree murder with or without mercy, the jury was instructed on
the lesser-included offenses of murder in the second degree and voluntary manslaughter.

                                             25

              design. This means there must be an opportunity for some
              reflection on the intention to kill after it is formed.

Guthrie, 194 W.Va. at 664, 461 S.E.2d at 170, syl. pt. 5.

                      In criminal cases where the State seeks a conviction of
              first degree murder based on premeditation and deliberation, a
              trial court should instruct the jury that murder in the first degree
              consists of an intentional, deliberate, and premeditated killing
              which means that the killing is done after a period of time for
              prior consideration. The duration of that period cannot be
              arbitrarily fixed. The time in which to form a deliberate and
              premeditated design varies as the minds and temperaments of
              people differ and according to the circumstances in which they
              may be placed. Any interval of time between the forming of the
              intent to kill and the execution of that intent, which is of
              sufficient duration for the accused to be fully conscious of what
              he intended, is sufficient to support a conviction for first degree
              murder.

Id. at 664, 461 S.E.2d at 170, syl. pt. 6, in part. Moreover,

              “[a] jury must consider the circumstances in which the killing
              occurred to determine whether it fits into the first degree
              category. Relevant factors include the relationship of the
              accused and the victim and its condition at the time of the
              homicide; whether plan or preparation existed either in terms of
              the type of weapon utilized or the place where the killing
              occurred; and the presence of a reason or motive to deliberately
              take life. No factor is controlling. Any one or all taken together
              may indicate actual reflection on the decision to kill. This is
              what our statute means by ‘willful, deliberate and premeditated
              killing.’” State v. Guthrie, 194 W.Va. 657, 675, [n.23,] 461
              S.E.2d 163, 181 n. 23 (1995).

Browning, 199 W.Va. at 421, 485 S.E.2d at 5.




                                              26

              The petitioner claims there was no evidence that he contemplated killing his

wife or had any opportunity for reflection. The record contradicts this assertion. The

petitioner was upset that his wife was having relationships with other people, instead of

reconciling with him. He had made prior threats to harm or kill her. The petitioner had been

exhibiting behavior of concern to Ms. Strong, causing her to ask his father to speak with him.

Knowing the petitioner was going to his estranged wife’s apartment that night, Rick

Greenfield was worried enough to caution the petitioner against bringing a firearm.

Moreover, even if the petitioner and the victim had argued about her sexual relations with

other people, as the petitioner told his father and sister, that does not explain why he had the

hammer with him. He was supposed to be dropping off their children that night, not

performing work that would require a ball peen hammer. Because there were multiple tools

in the petitioner’s truck, and the hammer used to kill Mrs. Greenfield was a ball peen

hammer in a weathered condition, the jury could have concluded that the petitioner brought

the hammer with him into the apartment. Finally, the petitioner did not inflict just one blow

to his wife; he brought the hammer down upon her face and head at least seven separate

times. Considering all of the evidence in the light most favorable to the prosecution, we

conclude there was sufficient evidence for the jury to find that the petitioner committed first

degree murder.19


       19
          In his final assignment of error, the petitioner contends that the cumulative weight
of all of the errors at his trial warrant the granting of a new trial. Because we have found no
error in this appeal, the cumulative error doctrine has no application. See, e.g., State v.

                                              27

                                      IV. Conclusion

              For the foregoing reasons, we affirm the May 4, 2015, order of the Circuit

Court of Berkeley County denying the petitioner’s motions for a judgment of acquittal or,

alternatively, a new trial. The petitioner’s conviction is hereby affirmed.

                                                                               Affirmed.




Knuckles, 196 W.Va. 416, 426, 473 S.E.2d 131, 141 (1996).

                                             28
