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State v. Palmer

Supreme Court of Appeals of West Virginia

November 8, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Michael Wayne Palmer, Defendant Below, Petitioner

          Summers County 15-F-50

          MEMORANDUM DECISION

         Petitioner Michael Wayne Palmer, by counsel Paul R. Cassell, appeals the Circuit Court of Summers County's February 8, 2018, order sentencing him to life in prison. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On appeal, petitioner asserts that the circuit court erred in denying his motion for a mistrial, admitting evidence in violation of Rule 404(b) of the West Virginia Rules of Evidence, failing to give a proper limiting instruction with regard to a witness's testimony, and refusing to admit the personnel file of an investigating officer. Petitioner also asserts that there was cumulative error.

         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 August 16, 2015, petitioner approached Allen Vandall, manager of Gene's Marathon Store, in the parking lot of the gas station, brandished a black pistol, and forcefully stole a bank bag containing $1, 890.00 in cash, checks, and credit card receipts. After police officers arrived at the scene, Mr. Vandall and Amanda Moses, a store clerk, reported that petitioner had been the one to rob Mr. Vandall. Mr. Vandall and Ms. Moses stated they recognized petitioner's voice based upon his frequent visits to the store prior to committing the crime. A subsequent investigation connected petitioner to numerous armed robberies throughout the area based upon petitioner's method and similar disguise.

         A Summers County Grand Jury returned a single-count indictment against petitioner on November 17, 2015, charging him with one count of first-degree robbery. Petitioner filed several pretrial motions seeking the suppression of evidence obtained in a search of his parents' residence, including grommets and zippers surmised to be from a bank bag found in the remnants of a fire, and police scanners and scanner codes found in the home, and testimony regarding the same; the disclosure of the criminal record and any inducements made to a jailhouse informant who claimed that petitioner had confessed to committing the robbery to him; and the limitation of any prior bad act evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence.[1]Petitioner also requested the production of the personnel file of Sgt. David McMillen of the West Virginia State Police, the officer who conducted the initial investigation into petitioner's crimes. A hearing was held on petitioner's pretrial motions on January 27, 2016. The State acknowledged that it did not intend to introduce evidence of any zippers or grommets, or any police scanners, scanner codes, or handcuff keys found at petitioner's parents' residence.

         By order entered on July 6, 2016, the circuit court ordered the State to produce any statements given by the jailhouse informant, Gary Toler, and the personnel file of Sgt. McMillen. The State subsequently moved for a protective order regarding the personnel file and argued that the evidence was improper impeachment material, was irrelevant, and that the acts for which Sgt. McMillen had been disciplined had no bearing on his character for truthfulness.[2] At a hearing on the matter, the circuit court granted the protective order and stated that it would review the file for relevancy. The circuit court later denied petitioner's motion to introduce the personnel file, but petitioner raised the issue again at a status hearing, arguing that the information in Sgt. McMillen's file indicated dishonest or immoral conduct. The circuit court agreed to take the matter under further advisement.[3]

         On February 21, 2017, the State moved the court to determine the admissibility of certain evidence prior to trial and filed a notice of intent to use evidence pursuant to Rule 404(b) regarding petitioner's prior bad acts, including other robberies committed with the same common plan or mode of operation in Fayette County, West Virginia. The circuit court held several hearings on the matter in March of 2017. The State produced the testimony of Detective Kevin Willis of the Fayette County Sheriff's Department, who testified that, at the time petitioner was charged, he was investigating four other robberies that occurred in Fayette County. The robberies were similar to the robbery allegedly perpetrated by petitioner in that the perpetrator wore several layers of heavy clothing and disguised his voice through the use of an accent. While the suspect always fled on foot, video surveillance from one location showed the perpetrator getting into a gold Jeep Grand Cherokee that was later identified as belonging to petitioner. After locating petitioner, he fled from officers and began throwing items out of the vehicle, including cigarettes which were traced to cartons that had been stolen from the stores. Detective Willis identified witnesses to these other robberies, including Julia Bria, Kelly Asbury, and Linda Garten. Detective Willis admitted that these witnesses could not positively identify petitioner as the perpetrator.

         Mr. Toler also testified at one of the pretrial hearings. He revealed that he shared a unit with petitioner in the Southern Regional Jail. While there, Mr. Toler testified that petitioner confessed to the numerous robberies he committed in Fayette and Summers Counties. Petitioner told Mr. Toler that he would wear "multiple layers of clothing to make himself look fat, large, always carried a weapon, and also wore a mask." Mr. Toler also reported that petitioner admitted to using an accent to disguise his voice and to leaving the scene on foot before fleeing back to his vehicle. Lastly, Mr. Toler testified that, during a later encounter, petitioner intimated that he committed the robbery in the underlying criminal case. Based on this evidence, the circuit court ordered that both the testimony of Mr. Toler and the Rule 404(b) evidence would be admissible.[4]

         Petitioner's trial commenced on June 7, 2017. The State presented the testimony of several witnesses, including Mr. Vandall, Ms. Moses, Detective Willis, Mr. Toler, Sgt. McMillen, and the witnesses to the Fayette County robberies. During the State's opening statement, the prosecutor referenced a police scanner and scanner codes found in the front seat of petitioner's car. Petitioner did not object. Also, during Sgt. McMillen's testimony, he referenced finding zippers and metal grommets in the remnants of a fire on petitioner's parents' property. Petitioner objected to this testimony, arguing that both parties had previously agreed not to disclose such evidence. Although the State agreed not to argue any further evidence regarding the zipper and the grommets, petitioner requested a mistrial, which the circuit court denied. Petitioner refused any curative instruction, preferring to continue on. At that time, petitioner also raised issue with the State's intention to continue referencing the police scanner and scanner codes, but the circuit court overruled that objection.

         Mr. Vandall and Ms. Moses testified that on the night of the robbery, petitioner jumped from behind a dumpster and pointed a gun at Mr. Vandall, demanding money. Both Mr. Vandall and Ms. Moses testified that they knew petitioner was the robber because he had frequented their store multiple times a week and they recognized his voice. Both described petitioner as wearing multiple layers of clothing in what they assumed was an effort to disguise his identity, wearing a mask, brandishing a black handgun, and leaving the scene on foot.

         Mr. Toler testified that, while housed in the same unit in jail, petitioner admitted to committing several robberies wherein he attempted to disguise his identity by wearing multiple layers of clothing, wearing a mask, and using a fake accent.[5] Several months later, Mr. Toler encountered petitioner once again while he was being booked for his arrest based upon the underlying crime. Mr. Toler testified that he told petitioner he had seen petitioner on television with regard to the underlying robbery and that petitioner simply grinned, confirming Mr. Toler's belief that petitioner was involved.

         The State also presented the testimony of three witnesses to robberies committed in Fayette County. Prior to their testimony, the circuit court gave a limiting instruction, informing the jury about Rule 404(b) evidence and how it was to be considered only for the purposes of proving identity, common scheme, or mode of operation. Each witness testified that they had been robbed by a man who attempted to disguise his identity by wearing multiple layers of clothing, wearing a mask, and using a fake accent. Each witness testified that the robber brandished a black handgun and left the scene on foot. None of the victims could identify petitioner as the perpetrator of the robberies. Detective Willis testified in regard to these robberies, including that a surveillance video recovered from one of the gas stations robbed showed a vehicle that was later located at petitioner's residence. Detective Willis also testified that, after later initiating a stop of the vehicle, cigarettes were recovered which were tied to one of the robberies.

         Petitioner presented the testimony of one witness who reported that petitioner was at the witness's home on the day of the robbery. However, the State produced the testimony of Sgt. McMillen, who rebutted the witness's testimony by reporting that he had spoken to the witness and that the witness informed him that he was unable to provide a specific date or time that petitioner was at his home. During closing arguments, the State again referenced the scanner codes found in petitioner's car, but petitioner did not object. At the close of all evidence, the circuit court again provided a limiting instruction regarding the Rule 404(b) evidence presented by the State. Following deliberations, the jury returned a guilty verdict on the charge of first-degree robbery. Subsequently, the State filed a recidivist information, alleging that petitioner had previously been convicted of several other crimes. In accordance with West Virginia Code § 61-11-18, the circuit court sentenced petitioner to life imprisonment.[6] It is from the February 8, 2018, sentencing order that petitioner appeals.

         On appeal, petitioner first argues that the circuit court erred in denying his request for a mistrial. According to petitioner, the prosecutor referenced several items during the trial that the former prosecutor agreed not to discuss. These allegedly prejudicial items included a zipper, metal grommets, police scanners, scanner codes, and clothing items. Petitioner asks this Court to (1) analyze these comments under State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995), and (2) to find that the prosecutor's remarks had a "tremendous tendency" to mislead the jury, were repeatedly referenced during the trial, prejudiced petitioner, and deliberately diverted the jury's attention to extraneous issues. Further, petitioner contends that no curative instruction could undo the damage that was caused by the remarks and that a mistrial was warranted. We disagree.

         We have long held that

[t]he decision to declare a mistrial, discharge the jury and order a new trial in a criminal case is a matter within the sound discretion of the trial court. A trial court is empowered to exercise this discretion only when there is a "manifest necessity" for discharging the jury before it has rendered its verdict. This power of the trial court must be exercised wisely; absent the existence of manifest necessity, a trial court's discharge of the jury without rendering a verdict has the effect of an acquittal of the accused and gives rise to a plea of double jeopardy.

State v. Lowery, 222 W.Va. 284, 288, 664 S.E.2d 169, 173 (2008) (citations omitted). Regarding the allegedly improper statements made by the State, this Court has previously held that "[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." Sugg, 193 W.Va. at 393, 456 S.E.2d at 474, syl. pt. 5. Indeed, "[t]he test is whether the remarks 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 405, 456 S.E.2d at 486. The determination of whether improper prosecutorial argument "has so prejudiced the trial process as to require reversal must be gauged from the facts of each trial." Id. As we held in Syllabus Point 6 of Sugg,

[f]our 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 ...

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