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State v. Holler

Supreme Court of West Virginia

January 5, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Daniel Holler, Defendant Below, Petitioner

         Berkeley County 15-F-47

          MEMORANDUM DECISION

         Petitioner Daniel Holler, by counsel Christian J. Riddell, appeals the November 10, 2016, order of the Circuit Court of Berkeley County that sentenced him to consecutive sentences of one to five years in the penitentiary for his convictions of third-offense domestic battery and third-offense domestic assault. The State of West Virginia, by counsel Robert L. Hogan, filed a response.

         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 2015, petitioner was indicted on one count of kidnapping, one count of third-offense domestic assault, and one count of third-offense domestic battery stemming from an incident that occurred at his mother's home on June 1, 2014, in Berkeley County, West Virginia. The victim was petitioner's fifty-four year old mother. Petitioner was thirty-one years old. The evidence showed that because the victim requested that petitioner move out of her residence, petitioner beat her about the head with his fists, choked her, and prevented her from leaving her home

         Following a jury trial, petitioner was acquitted of the kidnapping charge but was convicted of the crimes of third-offense domestic assault and third-offense domestic battery for which he was given consecutive sentences of one to five years in the penitentiary. A re-sentencing order was entered on November 11, 2016, for purposes of filing this appeal.

         In his first assignment of error, petitioner argues that the circuit court erred in admitting certain photographs at trial. Petitioner contends that photographs taken by police of the victim's injuries were not disclosed to him until the night before trial and that the State's failure to timely disclose them was unreasonable and tantamount to a willful suppression of the evidence.

         We find no error. A review of the record reveals that the photographs about which petitioner complains were not taken by the police but, in fact, taken by the victim on the day following the incident. The photographs, once received by the State on the night before trial, were then immediately disclosed to petitioner.[1] Over petitioner's objection, the photographs were admitted at trial. In contrast, petitioner did not object to the admission of photographs of the victim's injuries taken by police and timely disclosed to him prior to trial.[2]

         Generally, "[a] trial court's evidentiary rulings . . . are subject to review under an abuse of discretion standard." State v. Trail, 236 W.Va. 167, 179, 778 S.E.2d 616, 628 (2015) (quoting Syl. Pt. 4, in part, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998)). Furthermore,

[w]here the State is unaware until the time of trial of material evidence which it would be required to disclose under a Rule 16 discovery request, the State may use the evidence at trial provided that: (1) the State discloses the information to the defense as soon as reasonably possible; and (2) the use of the evidence at trial would not unduly prejudice the defendant's preparation for trial.

Syllabus, State v. Hager, 176 W.Va. 313, 342 S.E.2d 281 (1986), overruled on other grounds by State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989). The record establishes that the State disclosed the photographs taken by the victim as soon as reasonably possible. Further, petitioner did not suggest below that he was in any way prejudiced by the use of the photographs at trial. To the contrary, when the circuit court asked petitioner's counsel what he would have done differently if the photographs had been disclosed earlier, he replied, "Probably nothing, judge." The State represents, and petitioner does not dispute, that the photographs taken by the victim were of the same injuries depicted in the photographs taken by the police but that they showed the injuries "a little better." Given these facts, we find that the circuit court did not abuse its discretion in admitting the photographs at trial.

         Next, petitioner argues that the circuit court abused its discretion in admitting audio and video evidence taken by a police cruiser "dash camera." The recording was taken when an unidentified female driver pulled in next to the police cruiser of Officer Eric Neely of the Martinsburg Police Department to advise him that she had been flagged down by the victim after the victim ran out of her home.[3] At a pre-trial hearing, petitioner objected to the admission of the video on the ground that the driver's statements to the officer violated petitioner's right to confront his accusers and were "hearsay within hearsay because the woman is telling what was told to her. And all she does is repeat what [the victim] allegedly told her." At trial, however, petitioner's counsel expressly advised the circuit court that he had no objection to the admission of this evidence. Our case law is clear that "'[w]here objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.' Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964)." Syl. Pt. 1, State v. Simons, 201 W.Va. 235, 496 S.E.2d 185 (1997). See Honaker v. Mahon, 210 W.Va. 53, 60, 552 S.E.2d 788, 795 (2001) (stating the general rule that "a party's failure to object waives any right to appeal an issue."). Thus, petitioner's argument that the admission of this evidence violated hearsay rules and his right to confront his accusers is waived and will not be considered in this appeal.[4]

         In his next assignment of error, petitioner argues that the circuit court erred in allowing the admission of evidence that violated West Virginia Rule of Evidence 404(b).[5] The State filed a notice of intent to use 404(b) evidence consisting of testimony by the victim regarding the numerous times she was physically and verbally abused by petitioner over the course of many years. At the subsequent McGinnis hearing, [6] the State indicated that the purpose of introducing such evidence was to show that "this incident was not some sort of mistake or just [that] he temporarily lost his mind for a minute or a heat of passion type of thing. . . . [that] this is not a mistake. It was done on purpose. . . . It will also show this wasn't an accident." Petitioner objected to the introduction of this evidence, arguing that it shows neither motive nor intent but only that petitioner is a "bad man" and acted in conformity with his past pattern of behavior, which are prohibited under Rule 404(b). At the conclusion of the McGinnis hearing, the circuit court determined the evidence to be relevant and admissible, particularly with regard to the kidnapping charge, which, the court observed, requires the State "to convince a jury that there was an effort to terrorize or exact a concession from [the victim]." Regarding the domestic assault charge, the court determined the evidence to be relevant as to motive and intent, as the assault charge requires that "a person is supposed to be in a reasonable apprehension of a violent injury." The court found that the victim's "reasonable apprehension is informed by [the] prior acts" of violence. Counsel for petitioner thereafter requested that the evidence of past abuse be limited to incidents occurring after the family moved to West Virginia in 1999, when petitioner was seventeen years old.[7]

         Immediately following the victim's trial testimony, the circuit court gave a limiting instruction, cautioning jurors that the evidence of petitioner's "prior acts is not admitted to prove the defendant's guilt as to the present charge. . . . [but] may only be considered by you for the purpose of establishing the defendant's motive, intent, or plan as it relates to each of these charges of kidnapping, domestic battery, and domestic assault." The court further instructed that the evidence

may not be considered for other matters such as character or propensity to commit the crimes charged. . . . you may consider the evidence insofar as it tells us what [the victim] and the defendant were thinking the night that these events all took place but not to prove that the defendant is a bad person or that he has bad character or that he did the ...

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