Summary
In State v. Baker, 230 W.Va. 407, 738 S.E.2d 909 (2013), we discussed the "opening the door doctrine" and noted that this doctrine "operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context."
Summary of this case from State v. HamiltonOpinion
No. 11–0915.
2013-02-21
STATE of West Virginia, Plaintiff Below, Respondent v. Gary Richard BAKER, Defendant Below, Petitioner.
Jason D. Parmer, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner. Patrick Morrissey, Attorney General, Scott E. Johnson, Senior Assistant Attorney General, for Respondent.
Syllabus by the Court
1. “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.” Syllabus point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
2. “Where 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, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syllabus point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
4. “Events, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial.” Syllabus point 3, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).
5. Evidence of a defendant's parole status should be considered evidence of other crimes for purposes of analysis under Rule 404(b) of the West Virginia Rules of Evidence.
6. “Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.” Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).
Jason D. Parmer, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner. Patrick Morrissey, Attorney General, Scott E. Johnson, Senior Assistant Attorney General, for Respondent.
DAVIS, Justice:
Gary Richard Baker (hereinafter “Mr. Baker”) appeals from an order of the Circuit Court of Greenbrier County sentencing him to life imprisonment upon a conviction of robbery in the second degree, and imprisonment for not less than five nor more than eighteen years upon a conviction for attempted robbery in the second degree. Before this Court, Mr. Baker argues that it was reversible error for the trial court to admit evidence that he was previously convicted of crimes in 2000, and that he was on parole when the instant crimes occurred. After a careful review of the brief and the record submitted on appeal, and having listened to the arguments of the parties, we reverse and remand for a new trial.
The sentence of life imprisonment was imposed under the recidivist statute, W. Va.Code § 61–11–18(c) (2000) (Repl.Vol.2010).
The sentences were ordered to run consecutively.
Mr. Baker also assigned error to matters involving his recidivist proceeding.
While this case was pending, Attorney General Patrick Morrissey was sworn in and replaced former Attorney General Darrell V. McGraw, Jr. SeeW. Va. R.App. P. 41(c) (“When a public officer is a party to an appeal or other proceeding in the Supreme Court in his official capacity and during its pendency ... ceases to hold office, the action does not abate and his successor is automatically substituted as a party.”).
I.
FACTUAL AND PROCEDURAL HISTORY
On March 15, 2009, at around 11:30 p.m., Whitney Smith (hereinafter “Ms. Smith”), an employee of a Subway restaurant in Fairlea, Greenbrier County, West Virginia, was closing the store when a man approached her with what appeared to be a handgun and forced her to reenter the store. The man was wearing a mask over his face and a red hooded sweatshirt. The man ordered Ms. Smith to open the restaurant safe. She could not comply because the safe had a time lock. Unable to obtain money from the safe, the man robbed Ms. Smith and fled the scene.
Ms. Smith testified that the robber took $100.00 from her.
The investigation of Mr. Baker as a suspect in the robbery began after he was observed by officer R. Honaker parked along a highway in Greenbrier County several hours after the robbery. Officer Honaker asked Mr. Baker if he was experiencing car trouble. Mr. Baker stated that he was not. Officer Honaker left Mr. Baker without incident. However, after subsequently learning of the robbery, Officer Honaker informed the robbery investigating officer, B. Hunt, that he, Officer Honaker, had seen a person fitting the description of the robbery suspect. Officer Honaker identified the person he saw on the highway as Mr. Baker. During Officer Hunt's investigation, it was learned that a car which resembled Mr. Baker's car was seen at the Subway restaurant shortly before the robbery. It was also learned that Mr. Baker had a pellet pistol in his car that fit the description of the weapon used in the robbery. Mr. Baker eventually was indicted for robbery of Ms. Smith and attempted robbery of the Subway restaurant.
Mr. Baker lived in Huntington, West Virginia.
Ms. Smith only able to identify the robber only as being a white male, six feet tall, and heavy set. Although there were surveillance cameras both inside and outside the store, the images of the robber were not sufficiently clear to make a positive identification.
Prior to the trial, Mr. Baker filed a motion to preclude the State from introducing evidence that he previously had been convicted of crimes in 2000 and that he was on parole at the time the robbery occurred. The trial court granted the motion. Nevertheless, during the trial, the State moved the court to allow it to introduce the evidence, on the grounds that Mr. Baker had “opened the door” for the evidence during his cross-examination of a State's witness. The trial court agreed with the State and permitted the introduction of evidence of the prior convictions and parole. The jury eventually returned a verdict finding Mr. Baker guilty of both charges. Subsequent to a recidivist jury trial, Mr. Baker filed this appeal.
Mr. Baker had been convicted of four counts of felony wanton endangerment. He also had been convicted of a felony offense in 1988; however, the State did not seek to introduce evidence of that crime.
The State also had filed motions to admit the same evidence.
Mr. Baker called two defense witnesses during the trial; but he did not testify.
The recidivist jury found Mr. Baker had previously been convicted of five felony offenses.
II.
STANDARD OF REVIEW
The dispositive issue presented in this appeal is whether the trial court properly allowed the State to introduce evidence of Mr. Baker's prior convictions and parole status. With regard to this Court's review of a trial court's ruling on the admissibility of evidence, we have held that “[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).
Additionally, because the Court believes that the evidence Mr. Baker finds objectionable is best classified as evidence of other crimes, wrongs, or acts, we must review its admission pursuant to the standard of review for the admission of evidence under Rule 404(b) of the West Virginia Rules of Evidence. We previously have indicated:
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 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.
State v. LaRock, 196 W.Va. 294, 310–11, 470 S.E.2d 613, 629–30 (1996) (footnote and citations omitted). With these standards to guide us, we now will proceed to the merits of this appeal.
III.
DISCUSSION
Mr. Baker argues that he did not “open the door” to the admission of evidence of his prior convictions in 2000 and his parole status. The State agrees with Mr. Baker. In its brief, the State concedes that “neither the State nor the defendant opened the door, the door was opened by Mr. Smith (a State witness).” Although the State concedes that Mr. Baker did not open the door for the introduction of the evidence, the State contends that the evidence was admissible on alternative grounds. In support of this contention, the State relies upon the decisions of this Court which hold that we may “affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court[.]” Syl. pt. 3, in part, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965). See also Schmehl v. Helton, 222 W.Va. 98, 106 n. 7, 662 S.E.2d 697, 705 n. 7 (2008) (“[T]his Court may in any event affirm the circuit court on any proper basis, whether relied upon by the circuit court or not.”); Murphy v. Smallridge, 196 W.Va. 35, 36–37, 468 S.E.2d 167, 168–69 (1996) (“An appellate court is not limited to the legal grounds relied upon by the circuit court, but it may affirm or reverse a decision on any independently sufficient ground that has adequate support.”). We will address separately below whether the State is correct in conceding error and whether we should affirm the judgment based upon the State's alternative grounds for the admission of the evidence.
A. Mr. Baker Did Not Open the Door to Admit Previously Suppressed Evidence
As noted earlier, the State has conceded that Mr. Baker did not open the door for the admission of evidence of his prior convictions and parole status. As a general rule, “[t]his Court is not obligated to accept the State's confession of error in a criminal case. We will do so when, after a proper analysis, we believe error occurred.” Syl. pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991). See also State v. Allah Jamaal W., 209 W.Va. 1, 4 n. 7, 543 S.E.2d 282, 285 n. 7 (2000) (“Mere confession of error by the State, of course, does not dictate the hand of this Court nor the outcome of this case.” (internal quotations and citations omitted)); State v. Berrill, 196 W.Va. 578, 587, 474 S.E.2d 508, 517 (1996) (“[C]onfessions of error do not automatically entitle a party to a reversal, reversal is required when it can be ascertained that the errors confessed are supported by law.” (internal quotations and citations omitted)).
The trial court made a pretrial ruling that the State could not introduce evidence that Mr. Baker had prior convictions or that he was on parole when the crimes occurred in this case. During the trial, the State took the position that Mr. Baker committed the crimes in an effort to get revenge against a prior owner of the Subway store, Donald Smith (hereinafter “Mr. Smith”). Mr. Smith had employed Mr. Baker at the restaurant for a little over a week in 1999. Due to Mr. Baker's poor work performance, Mr. Smith fired him. The State sought to establish that Mr. Baker harbored animosity against Mr. Smith for firing him. Therefore, he attempted to rob the store some ten years later. In order to explain the ten-year time lapse, the State wanted the jury to know that Mr. Baker had been in prison during that time and, therefore, could not seek revenge until he was released from prison. Although the trial court initially rejected the State's efforts to introduce the evidence, the court reversed its ruling during the trial based upon Mr. Smith's testimony during the State's direct examination and Mr. Baker's cross-examination. During the State's direct examination of Mr. Smith, the following was brought out:
The record does not show whether Mr. Baker knew that Mr. Smith did not own the restaurant at the time of the crimes.
Q. Are you familiar with the defendant, Gary Richard Baker?
....
A. He was an employee of mine for a little over a week, in December of '99.
Q. You hired him in the summer of '99?
A. Yes, I did.
Q. And, at some point, you dismissed his employment, in the summer of '99. Is that correct?
A. Correct.
....
Q. How did Mr. Baker feel about that?
A. He wasn't too happy about it.
Q. Did you have a confrontation with Mr. Baker regarding his letting go?
....
A. He accused me of being prejudiced against him. I explained to him it was strictly job performance and there was no other discussion, as far as I was concerned, on the matter.
During Mr. Baker's cross-examination of Mr. Smith the following relevant interrogation occurred:
Q. And summer of '99, is when the confrontation between you and Gary Baker took place?
A. That's when the incident occurred, yes.
Q. 10 years ago, this past summer?
A. That's correct.
The State did not make any objections during Mr. Baker's brief cross-examination of Mr. Smith. However, the day after Mr. Baker's cross-examination of Mr. Smith, the State argued that the above-quoted passage from the cross-examination “opened the door” for it to introduce evidence of Mr. Baker's prior convictions and parole status. The State made the argument that, by simply asking “10 years ago, this past summer,” Mr. Baker exceeded the scope of direct examination and, therefore, the jury needed to be informed as to why Mr. Baker could not have attempted to rob the store for revenge during those 10 years. The trial court agreed with this argument. We do not.
Mr. Baker did not assign error to the issue of the timeliness of the State's objection to the question he posed to the witness. Consequently, we will not address what would appear to have been an untimely objection. See 1 Franklin D. Cleckley, Louis J. Palmer, Jr., and Robin Jean Davis, Handbook on Evidence for West Virginia Lawyers, § 103.03 [2][a] (5th ed.2012) (“In addition to the requirement of specificity, Rule 103(a)(1) has a timeliness requirement for ... objections.... To be timely under this rule, a protest should be registered as soon as the defect becomes apparent.”).
The opening the door “doctrine operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context.” State v. James, 144 N.J. 538, 677 A.2d 734, 742 (1996). The decision in James added that
[t]he “opening the door” doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection.
James, 677 A.2d at 742. We do not believe that Mr. Baker's cross-examination of Mr. Smith generated an issue that warranted the admission of evidence of his prior convictions and parole status, or elicited inadmissible evidence. In fact, Mr. Baker's cross-examination was proper.
We will note that in this appeal Mr. Baker argued in his brief that the evidence was admitted in violation of the curative admissibility rule. See Syl. pt. State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995) (setting out elements of the curative admissibility rule). Further, during oral argument counsel for Mr. Baker suggested the issue was one of “invited error.” See State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996) (discussing invited error). Insofar as Mr. Baker did not raise below the issues of curative admissibility and invited error, we will not address these doctrines.
Mr. Baker did not inject anything new into the case by posing the question “10 years ago, this past summer.” This was proper cross-examination that merely summarized what the State elicited from Mr. Smith on direct examination, i.e., that Mr. Baker worked at the store in 1999, which was about ten years before the crimes in the case. The following observations have been made with respect to the scope of cross-examination,
[n]ormally, the scope of cross-examination is limited to the subject matter [,] or issues[,] or events to which the witness testified on direct examination.... [This] means the subject matter opened up, such as: (1) the period of time; (2) the relationship between two parties; or (3) an element of the offense.... It is always permissible to inquire into the details of the events testified to on direct. Statements relate to the direct testimony of a witness when they relate generally to the events and activities [to which the witness] testified.
1 Cleckley, Palmer, and Davis, Handbook on Evidence, § 611.02[3][d][iv] (emphasis added). The State introduced the subject of “time” through its direct examination of Mr. Smith. Therefore, Mr. Baker had an unassailable right to cross-examine Mr. Smith about this subject. Insofar as Mr. Baker's cross-examination was proper, the trial court clearly abused its discretion by allowing the State to introduce the evidence of prior convictions and parole on the grounds that Mr. Baker opened the door to such evidence.
We summarily reject the State's contention that, insofar as Mr. Smith opened the door by mentioning 1999, it should have been allowed to introduce the evidence. The State may not introduce inadmissible evidence at trial merely because a witness it called allegedly wrongfully injected an issue in the case during direct examination. Assuming, for the sake of argument, that Mr. Smith's response to the State's question was error, “we regularly turn a deaf ear to error that was invited by the complaining party.” In re Tiffany Marie S., 196 W.Va. 223, 233, 470 S.E.2d 177, 187 (1996).
B. Admissibility of Mr. Baker's Prior Convictions.
The State argued below that evidence of Mr. Baker's prior convictions was admissible under Rule 404(b) of the West Virginia Rules of Evidence to establish motive and intent.Rule 404(b) states, in part,
The State has presented an alternative reason as to why the admission of evidence pertaining to Mr. Baker's parole was proper. This issue is discussed at Section III. C., infra.
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
We have “stated that Rule 404(b)'s list of ‘other purposes' is illustrative only, and the exceptions to the admission of collateral crimes listed in the rule are not meant to be exhaustive.” State v. Rash, 226 W.Va. 35, 47, 697 S.E.2d 71, 83 (2010) (internal quotations and citation omitted). With respect to the admission of Rule 404(b) evidence, this Court has held 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 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 limitinginstruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.
Syl. pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
The trial court applied the McGinnis analysis in a pretrial order and concluded that evidence of Mr. Baker's prior convictions would not be admissible either to explain Mr. Baker's whereabouts between 1999 and the time of the crime, or to prove a motive of revenge against Mr. Smith. The trial court's order summarized the matters as follows:
Under Rule 403, the probative value of admitting this evidence merely to explain the lapse in time between the Defendant's threats to Mr. Smith and the commission of the crimes charged ... is substantially outweighed by the danger of unfair prejudice to the Defendant, in that the jury may conclude that because the defendant was convicted of the crimes in 99–F–80 he is more likely to have committed the crimes charged in the current manner [sic]. Therefore, WVRE Rule 403 bars the admission of the Defendant's conviction in 99–F–80 to explain the lapse in time between the Defendant's threats to Mr. Smith and the occurrence of the crimes charged.....
To the extent that the State wishes to use the Defendant's conviction in 99–F–80 to prove that the commission of the crimes charged ... was an act of revenge against Mr. Smith, it is also denied. The crimes charged in 99–F–80 had nothing to do with Mr. Smith and do not have any relevance in proving or disproving a fact in consequence—namely the Defendant's motive against Mr. Smith. Further, the evidence of the Defendant threatening Mr. Smith, the Defendant's termination by Mr. Smith, and his knowledge of the location of the crimes charged ... is not derived from the Defendant's conviction in 99–F–80. Because the Defendant's conviction in 99–F–80 is not relevant to understand the motive of the perpetrator ..., this Court does not need to weigh this purported purpose for introducing 404(b) evidence under WVRE Rules 402 and 403.
The State has not offered any relevant contention to refute the trial court's pretrial determination that Mr. Baker's prior convictions were not admissible under Rule 404(b). Moreover, we agree with the trial court's determination that, under Rule 403, the probative value of evidence of Mr. Baker's prior convictions was outweighed by its prejudicial effect. Our deference to the trial judge is consistent with the general rule that “[a] reviewing court should defer to the ruling of the trial court on a Rule 403 issue, unless the ruling is an arbitrary or irrational exercise of discretion.” 1 Cleckley, Palmer and Davis, Handbook on Evidence, § 403.02[2][a]. The trial judge's pretrial ruling was neither arbitrary nor irrational.
C. Mr. Baker's Prior Convictions as Intrinsic Evidence.
The State contends, as an alternative argument, that evidence of Mr. Baker's prior convictions was intrinsic to the crimes in this case and, therefore, Rule 404(b) did not apply. In State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), this Court explained that evidence which is “intrinsic” to the indicted charge is not governed by Rule 404(b). We stated in footnote 29 of LaRock,
“Since Rule 404(b) was enacted, the term res gestae has largely given way to its modern, de-Latinized descendant: intrinsic evidence[.]” United States v. Green, 617 F.3d 233, 245 (3d Cir.2010) (internal quotations omitted).
[i]n determining whether the admissibility of evidence of “other bad acts” is governed by Rule 404(b), we first must determine if the evidence is “intrinsic” or “extrinsic.” “Other act” evidence is “intrinsic” when the evidence of the other act and the evidence of the crime charged are “inextricably intertwined” or both acts are part of a “single criminal episode” or the other acts were “necessary preliminaries” to the crime charged. If the proffer fits into the “intrinsic” category, evidence of other crimes should not be suppressed when those facts come in as res gestae—as part and parcel of the proof charged in the indictment.
LaRock, 196 W.Va. at 312 n. 29, 470 S.E.2d at 631 n. 29 (additional internal quotations omitted and citations omitted). See also State ex rel. Kitchen v. Painter, 226 W.Va. 278, 293, 700 S.E.2d 489, 504 (2010) ( “This evidence is inextricably intertwined with the offense ... [and] is crucial to explaining the sequence of events immediately prior to the attack on the victims. Thus, the evidence is necessary to provide context and to complete the story of the crime.”).
Some courts have rejected the “inextricably intertwined” test for intrinsic evidence on the grounds that the “test creates confusion because, quite simply, no one knows what it means.” State v. Ferrero, 229 Ariz. 239, 274 P.3d 509, 513 (2012) (internal quotations and citation omitted). For example, in United States v. Green, 617 F.3d 233, the Third Circuit rejected the “inextricably intertwined” factor and set out the following guidelines for determining whether uncharged acts are intrinsic evidence of the charged crime:
First, evidence is intrinsic if it “directly proves” the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of “other crimes, wrongs, or acts.” If uncharged misconduct directly proves the charged offense, it is not evidence of some “other” crime. Second, uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.
Green, 617 F.3d at 248–49 (internal quotations and citations omitted). See also Ferrero, 274 P.3d at 513 (“Henceforth, evidence is intrinsic in Arizona if it (1) directly proves the charged act, or (2) is performed contemporaneously with and directly facilitates commission of the charged act.”); State v. Nelson, 791 N.W.2d 414, 423 (Iowa 2010) (narrowing the meaning of intrinsic evidence); State v. Rose, 206 N.J. 141, 19 A.3d 985, 1009 (2011) (“To aid courts and litigants in making the threshold determination of whether the evidence relates to ‘other crimes' or is intrinsic to the charged crime, we look to the Third Circuit's statement of the test in United States v. Green, 617 F.3d 233 (3d Cir.2010).”). Insofar as neither party has briefed this issue, we need not decide today whether the “inextricably intertwined” test is worthy of remaining in our formulation of what constitutes intrinsic evidence.
We disagree with the State's contention that Mr. Baker's prior convictions for wanton endangerment in 2000 are intrinsic to the charges of robbery and attempted robbery in 2009. This argument fails because, among other reasons, the prior convictions are simply too remote in time to be logically intertwined with the current offenses. For this Court to “[a]ccept [ ] the State's argument would open the door to abuse of the inextricably intertwined exception.” State v. Freemont, 284 Neb. 179, 817 N.W.2d 277, 291 (2012). In Syllabus point 3 of State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983), we held that “[e]vents, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial.” (Emphasis added). See also Syl. pt. 1, State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978) (“Other criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.”).
Moreover, “[e]vidence of ‘other crimes, wrongs, or acts,’ intrinsic or not, may improperly invite the jury to convict a defendant because of other misdeeds, not because of his guilt of the crime charged.” Leyva v. State, 165 P.3d 446, 453 (Wyo.2007). In other words, intrinsic evidence still is subject to Rule 403's test of prejudicial impact. See 1 Cleckley, Palmer and Davis, Handbook on Evidence, § 404.03[2][a] (“The admissibility of [this] type [of] evidence is viewed under the standards of Rules 401–403.”). Therefore, even if we assumed that the evidence was intrinsic, we still would find it was improperly admitted because its prejudicial impact, in view of the State's weak evidence, far outweighed its probative value.
In LaRock, we said in passing that “evidence of uncharged prior acts which is inextricably intertwined with the charged crime is admissible over a Rule 403 objection.” LaRock, 196 W.Va. at 313, 470 S.E.2d at 632 (1996). This observation in LaRock was not intended to mean that Rule 403 was superfluous in the context of introducing intrinsic evidence. LaRock simply meant to convey that a defendant would have an uphill climb in trying to keep the evidence out as being too prejudicial when the State's case was strong.
D. Evidence of Mr. Baker's Parole Status.
Prior to trial, the State filed a motion to admit evidence of Mr. Baker's parole status because it planned to call his parole officer to testify. The State took the positionthat the jury needed to know why the parole officer was testifying. The trial court denied the motion and ordered that the parole officer not be identified as such. Before this Court, the State has abandoned its pretrial argument for seeking to introduce the parole status evidence and now contends that such evidence was admissible for another reason under Rule 404(b).
The parole officer was going to testify that she found the pellet pistol in Mr. Baker's car, as well as about other matters.
As an initial matter we note, and expressly hold that, “evidence of a defendant's parole status should be considered evidence of other crimes for purposes of [analysis under] Rule 404(b)” of the West Virginia Rules of Evidence. United States v. Manarite, 44 F.3d 1407, 1418 (9th Cir.1995). It also has been recognized that
evidence of a defendant's ... parole status and relevant conditions thereof are admissible in the proper exercise of judicial discretion if such evidence demonstrates the motive for, or otherwise explains, the defendant's alleged criminal conduct. .... Absent that scenario, such evidence is inadmissible because ... [w]e cannot imagine too many other instances where informing the jury about the defendant's ... parole status ... could be more relevant than prejudicial.
State v. Kourtidias, 206 Wis.2d 574, 557 N.W.2d 858, 863 (Ct.App.1996) (internal quotations and citation omitted).
In this appeal, the State contends that Mr. Baker was behind in his rent and that, if he did not pay his rent, his “parole status would be adversely affected.” Consequently, the State now suggests that Rule 404(b) allowed the evidence to be introduced to show that Mr. Baker was motivated to commit the crimes in order to prevent adverse consequences to his parole status. We reject this argument.
Under the facts of this case, the prejudicial impact of evidence of Mr. Baker's parole status is no less than that of evidence of his prior convictions. It would be inexplicably inconsistent for this Court to find that evidence of Mr. Baker's prior convictions was too prejudicial to introduce to the jury yet allow the jury to be informed that he was on parole when the offenses were committed. Obviously, the jury would surmise that Mr. Baker was a convicted felon if it was informed that he was on parole. For example, a similar issue was faced by the court in Commonwealth v. Matthews, 783 A.2d 338 (Pa.Super.Ct.2001). In Matthews, the defendant was convicted of burglary. During his trial, the State was allowed to inform the jury that a witness called by the defendant was in fact the defendant's parole officer. On appeal, the defendant argued that it was reversible error to allow the State to inform the jury that he was, in effect, on parole at the time of the crime. The appellate court agreed as follows:
By informing the jury that DeSantis is [the defendant's] parole officer, the Commonwealth in effect told the jury that [the defendant] is a convicted criminal; that [the defendant's] criminal conviction was for an offense serious enough that it resulted in incarceration (one can only be on parole after a period of incarceration). When reviewed in light of Pa.R.E. 404(b), this evidence presented by the Commonwealth clearly constitutes evidence of other crimes committed by Appellant....
....
[W]e find that the probative value of this evidence does not outweigh its potential for prejudice. To the contrary, the marginal probative value of this evidence is far outweighed by the potential for prejudice and confusion of the jury. The trial court therefore erred in permitting the Commonwealth to introduce this evidence at trial over [defendant's] objections. We also conclude that the cautionary instruction given to the jury by the trial court regarding this evidence was insufficient to remedy the prejudice suffered by [the defendant]. [The defendant] is therefore entitled to a new trial.
Matthews, 783 A.2d at 340–42.
We find, like the court in Matthews, that the marginal value of evidence of Mr. Baker's parole status was far outweighed by its prejudicial impact.
E. Harmless Error.
Although we have determined that it was error for the trial court to admit evidence of Mr. Baker's prior convictions and parole status, this does not end our analysis. We previously have adopted a harmless error test to determine whether the introduction of improper evidence in some instances constitutes reversible error or was harmless:
Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.
Syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). Accord State v. Day, 225 W.Va. 794, 803, 696 S.E.2d 310, 319 (2010).
We have grave doubts about whether the evidence was sufficient to convict Mr. Baker after we remove the inadmissible Rule 404(b) evidence. In other words, this was a very close evidentiary case. The strongest evidence the State had was the testimony of Whitney Smith, the actual victim, that the pellet pistol found in Mr. Baker's car looked like the weapon used by the robber. The State also was able to establish through cellular phone records that Mr. Baker was in the Greenbrier County area shortly after the robbery. These two pieces of circumstantial evidence must be contrasted with the lack of other plausible evidence of guilt. The State did not have any witness to testify that Mr. Baker was the person who committed the crimes. Whitney Smith could not identify Mr. Baker as the robber. Whitney Smith testified that she saw the robber's beard protruding from under the mask. However, the evidence showed that Mr. Baker had a slight mustache and was never known to wear a beard. No one could identify the person on the surveillance tapes as being Mr. Baker. The State called a witness, Kristen Smith, who saw a person near a car in the restaurant parking lot shortly before the crimes were committed. Kristen Smith could not identify the person she saw as being Mr. Baker nor could she positively identify the car. The clothing Mr. Baker was wearing shortly before the robbery was not the clothing identified as being worn by the robber. The police did not find the clothing the robber was identified as wearing. A search of Mr. Baker's home only uncovered the clothing he was seen wearing shortly before the robbery. The State was unable to present any forensic evidence, such as fingerprints, to establish that Mr. Baker was at the scene of the crime.
Because of the extremely weak circumstantial evidence in this case, we simply cannot say with any degree of confidence that the improperly admitted Rule 404(b) evidence was harmless beyond a reasonable doubt. It has been observed that too often “when a jury hears evidence that a defendant has committed some bad acts beyond those in the indictment, the jury dispenses with any notions that the defendant is innocent and reviews the evidence from the perspective that the defendant is a ‘bad person.’ ” State v. Willett, 223 W.Va. 394, 400–01, 674 S.E.2d 602, 608–09 (2009) (Ketchum, J., concurring). See also State v. Scott, 206 W.Va. 158, 168, 522 S.E.2d 626, 636 (1999) (Starcher, C.J., dissenting) (“The niceties of a McGinnis analysis do little to remove the overwhelming prejudicial effect that is heaped upon a defendant in a criminal case, once a jury learns of the defendant's previous bad acts.”). We believe that may have occurred in this case. Therefore, “we remand this matter for retrial.” State v. Ricketts, 219 W.Va. 97, 102, 632 S.E.2d 37, 42 (2006) (citation omitted).
Insofar as we are reversing this case and remanding for a new trial, we need not address Mr. Baker's assignment of error involving the recidivist charge.
IV.
CONCLUSION
Mr. Baker's convictions and sentences for robbery in the second degree and attempted robbery in the second degree are reversed. This case is remanded for a new trial consistent with this opinion.
Reversed and Remanded.
Justice LOUGHRY dissents and reserves the right to file a dissenting opinion.
LOUGHRY, Justice, dissenting:
I dissent from the majority's decision in this case for two reasons. First, I believe the evidence regarding the petitioner's incarceration and parole status was properly admitted into evidence by the trial court for the limited purpose of explaining the passage of time. Secondly, assuming arguendo that the evidence was improperly admitted, I believe it was harmless error. As set forth below, there was sufficient evidence from which the jury could have reached a verdict of guilt beyond a reasonable doubt absent the arguably inadmissible evidence.
A. The Petitioner Opened the Door
I strongly disagree with the majority's conclusion that the petitioner did not open the door through his cross-examination of Mr. Smith for the admission of evidence regarding his prior incarceration and parole status. The majority reached its decision by focusing on a narrow passage of the cross-examination and turning a blind eye to the rest of the testimony elicited by the petitioner from Mr. Smith. The petitioner questioned Mr. Smith as follows:
Obviously, I believe that the State should not have confessed error in this case. Regardless, as even the majority acknowledges, this Court will not allow a confession of error to dictate the outcome of a case. Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).
Q Mr. Smith, I'm not going to keep you very long. [The petitioner] wasn't the first employee that you had to let go, was he?
A Oh, no, sir.
Q. You must have dealt with a lot of them.
A. Quite a bit.
Q. Probably wasn't one of the first ones agitated about it, either?
A. I would assume not so.
Q. When did you sell the Fairlea Subway?
A. January of 2000.
Q. So you haven't owned it for nine years?
A. That's correct.
....
Q. And summer of '99, is when the confrontation between you and [the petitioner] took place?
A. That's when the incident occurred, yes.
Q. 10 years ago, this past summer?
A. That's correct.
Q. And this was a part time job?
A. Yes, it was.
Q. With no benefits?
A. No benefits.
Q. Minimum wage, I'm sure?
A. That's correct, to start.
Q. And he was only there for a week?
A. Week to 10 days.
Q. So it's not like he lost his pipeline to the gold mine, right?
A. I don't know what his opinion was.
Q. Again, you're paying minimum wage, hiring part time without benefits, correct?
A. That's correct.
The State's theory at trial was that the petitioner robbed the Subway for revenge against Mr. Smith because he had been fired. When the petitioner's cross examination of Mr. Smith is considered in its entirety, it is obvious that an impartial juror could not help but wonder why a person that only worked at this Subway for a week making minimum wage with no benefits would wait ten years to exact his revenge for being fired. It is clear that through the cross-examination of Mr. Smith, the petitioner successfully called into question the State's revenge motive. Because of the court's pre-trial ruling that evidence regarding the petitioner's incarceration for the past ten years and status as a parolee was not admissible, the State was left unable to explain the ten-year lapse of time. Like the trial court, I believe that at this point in the proceedings, the evidence of the petitioner's incarceration and parole became more probative than prejudicial and became admissible to explain the time gap pursuant to the doctrine of opening the door.
Just as a defendant has a right to a fair trial, so does the State. The defense has to comply with the established rules of procedureand evidence in the same manner as the prosecution. That was not done here. This was a classic case of opening the door. The petitioner successfully excluded inadmissible evidence from the prosecution's case and then elicited other evidence to his own advantage which the State could not put in proper context. In such instance, “the doctrine of opening the door allows a party to explore [the] otherwise inadmissible evidence ... [because] the opposing party has made unfair prejudicial use of related evidence.” United States v. Lum, 466 F.Supp. 328, 334 (D.Del.1979). Here, it would have been grossly unfair to allow the jury to believe that nothing occurred in the past ten years that would have prevented the petitioner from exacting his revenge sooner.
I also think it is important to note that the trial court limited the information given to the jury concerning the petitioner's prior ten-year incarceration and parole status. In that regard, the jury was not informed of the nature of the crimes that resulted in the petitioner's incarceration. Moreover, the trial court gave four limiting instructions, cautioning the jury that the information was to be used for the limited purpose of explaining the passage of time. The trial court clearly took the necessary steps to ensure the jury understood the limited purpose for which the evidence of the petitioner's prior incarceration and parole was being offered. Therefore, unlike the majority, I find no error in the trial court's admission of this evidence pursuant to the doctrine of opening the door.
The trial court gave the following limiting instruction to the jury before the petitioner's parole officer testified:
Before the State begins to examine this witness, I am required to give you what is called a limiting instruction.
There will be some evidence admitted during Ms. Fitzgerald's testimony that you may consider only for a limited purpose. So I'm going to read that instruction now.
The Court instructs the members of the jury that evidence of collateral acts of misconduct is not to be considered in establishing guilt of the crime with which the defendant is charged, and you may consider that evidence for a very limited purpose, only. You may not consider it as proof of the charges contained in the indictment. You may consider it to show the passage of time.
You may not use this evidence in consideration of whether the State has established the crime charged in the indictment. In addition, such evidence is not relevant to any other matters, such as the character of the defendant, whether the defendant is a bad person, or whether the defendant had the propensity or the disposition to commit the crime charged. This evidence may not be considered in that regard, since the defendant's character is not an issue.
In addition, it is not proper for the State to prove a criminal case by evidence that a defendant may have committed other criminal acts or may be a bad person.
Now you will also receive a copy of this instruction when you begin your deliberations.
A similar instruction was given before the testimony of First Sergeant Jan Cayhill of the West Virginia State Police. Following Sergeant Cayhill's testimony, the trial court gave the following instruction for clarification:
Before the defendant's cross-examination of Sgt. Cayhill, I want to clarify the limiting instruction. I gave that to you, and then we've had two witnesses testify, and you're probably thinking, well, what exactly is he talking about. And what I'm talking about is that you can only use the fact that the defendant is a convicted felon and was placed on parole and his time that he was incarcerated for the purpose of-for the limited purpose of the passage of time. I hope that makes it clear to you all.
The limiting instruction was given again before the jury began their deliberations.
B. Clearly Harmless Error
Assuming arguendo that the evidence of petitioner's incarceration and parole status should have been excluded, I believe that the admission of that evidence was harmless error in this case. Contrary to the “grave doubts” expressed by the majority, I believe that the State's evidence presented at trial was sufficient to convince the jury of the petitioner's guilt beyond a reasonable doubt even if the evidence of the petitioner's prior incarceration and parole status had been excluded.
The majority suggests that the only plausible evidence the State had to point to the petitioner's guilt was (1) the victim's identification of the pellet pistol found in the petitioner's car as a weapon that looked like the weapon used by the robber and (2) the cellular phone records that placed the petitioner in Greenbrier County shortly after the robbery occurred. That is not the case. Again, the majority turned a blind eye to the entirety of the evidence presented. I will outline the evidence that the State offered at trial. When considered in its entirety, I believe it is clear that there was sufficient evidence to support the jury's verdict.
To begin, the petitioner was not just placed in Greenbrier County shortly after the robbery occurred by his cellular phone records. The petitioner was actually placed in Greenbrier County before the robbery occurred—he so stipulated at trial. Furthermore, a relative of the petitioner, Lisa Arbogast, and her ex-husband, John Arbogast, testified that the petitioner arrived at their home in Greenbrier County between 6:30 and 7:30 p.m. on the evening of the robbery. Both Lisa and John Arbogast testified that during the course of his visit, the petitioner constantly watched the clock and “seemed nervous.”
Lisa Arbogast is a distant cousin of the petitioner. She testified that she has known the petitioner since they were children.
Lisa and John Arbogast are divorced but still lived together at the time of the robbery.
The jury learned that the petitioner left the Arbogast home around 10:30 p.m., and the Subway was robbed around 11:30 p.m. Shortly before, around 10:55 p.m., Kristen Smith, who was driving past the Subway on her way to work, testified that she saw a bluish teal sports car with “hood scoops” parked about one hundred yards from the Subway. She noticed the car because it was located in an area where cars do not normally park. She observed a man with a “heavy build” standing outside of the car who appeared to be changing his clothes. The State showed Kristen Smith photographs of the petitioner's car— a 1994 Pontiac Firebird, bluish-teal in color—at trial. She testified that it looked like the car that she saw parked near the Subway on the night of the robbery.
Kristen Smith and the victim, Whitney Smith, are not related.
During the ensuing investigation, a canine unit indicated that the robber left the Subway and went in the direction of where the car observed by Kristen Smith had been parked. Surveillance video from inside and outside the Subway contained images of the masked robber. The video showed a person of short, stocky build. As the investigation progressed and the petitioner became a suspect, Lisa Arbogast was asked to the view the video of the robbery. She testified at trial that the robber in the video could have been the petitioner based on “the shoes and maybe some gestures ... body build and the way that he walked and the shoes.”
First Sergeant Jan Cayhill of the West Virginia State Police testified that based on the video, the police believed that the robber did not have a real gun because of the way the robber handled the gun and its appearance. The victim, Whitney Smith, testified that the weapon used by the robber sounded like an air gun. She explained that she was familiar with air guns because she owned one. When presented with the pellet gun found in the petitioner's possession after the robbery occurred, Whitney Smith testified that it was the same gun used by the robber. Importantly, Whitney Smith also testified that the robber seemed familiar with the layout of the Subway and appeared to know where the safe was located.
The petitioner became a suspect after he was observed sitting in his car along the interstate in Greenbrier County in the early morning hours of the day following the robbery. Deputy Rick Honaker of the Greenbrier County Sheriff's Department testified that he stopped and talked to the petitioner because he thought he was having car trouble. Deputy Honaker later relayed the incident to the officer investigating the robbery because the petitioner matched the description of the robber given by the victim, Whitney Smith.
The petitioner's mother, who lived in Greenbrier County, was interviewed by the police. As a parolee, the petitioner's travel was limited. The petitioner was residing in Huntington and had obtained permission from his parole officer to go to Greenbrier County on the day of the robbery. He had visited his mother around 4:00 p.m. that day. The petitioner's mother told the police that she had received a call from her son around midnight, approximately thirty minutes after the robbery occurred. The petitioner told his mother that he was driving back home and that he was between Charleston and Huntington, more than two hours from Greenbrier County. The State proved at trial, however, that the petitioner had lied to his mother. The petitioner's cellular phone records placed him in Greenbrier County—in Fairlea, where the Subway is located—at the time the call was made to his mother. Furthermore, the petitioner's cell phone records showed that he received three calls during the time the robbery occurred that were not answered but, instead, went to voice mail. These calls also placed the petitioner in Fairlea.
The petitioner told the same lie regarding his location at the time of the robbery to the police during their investigation. Sergeant Cayhill testified at trial that the petitioner was shocked and surprised when he was informed that a person's location could be determined by the particular cell phone tower that was accessed when a cellular phone call was placed.
The petitioner also lied to his parole officer. When she asked him what time he left Greenbrier County on the night of the robbery, he told her that he had fallen asleep at his mother's house and that he had left Greenbrier County between 9:00 and 10:00 p.m.
Sergeant Cayhill further testified at trial that in executing a search warrant of the petitioner's home in Cabell County, a police scanner was found in the petitioner's possession. The petitioner's mother testified that the petitioner had the scanner with him when he visited her house on the day of the robbery. Although the petitioner's mother did not see him with the pellet gun, the petitioner told his parole officer that he got the pellet gun from his mother's house that same day.
Sergeant Cayhill explained to the jury that a police scanner allows a person to listen to police traffic, fire, and EMS calls, if you have the proper frequency for the agency and county. The petitioner told Sergeant Cayhill that he liked to listen to the scanner and that he used headphones and attached the scanner to his belt so that his hands were free. When the police examined the scanner the petitioner had in his possession, they discovered that it was tuned to the Greenbrier County emergency frequencies. Sergeant Cayhill also told the jury that the robber was in the Subway for nineteen minutes, which based on his lengthy experience as a police officer was a long time for a robbery. He said that most robberies are completed within a few minutes. Obviously, if the robber had a scanner tuned to the local police frequency, he would not have to worry too much about being caught as he would know when the police were on the way.
In summary, the jury heard testimony that there was an attempted robbery at the Subway located in Fairlea in Greenbrier County by a masked man who was familiar with the layout of the restaurant. Although the robbery of the Subway was unsuccessful, the robber was able to take $100 from Whitney Smith. The petitioner had been previously fired from his employment at this Subway. No changes, other than decor, had been made to the restaurant since the petitioner worked there. Although the petitioner lived in Huntington, he was in Greenbrier County on the day of the robbery and during the early morning hours thereafter. According to the victim, the robber used a pellet gun during the commission of the robbery. A pellet gun was found in the possession of the petitioner after the robbery occurred which the victim identified as the same gun used during the robbery. The petitioner appeared nervous and constantly watched the clock during a visit with relatives shortly before the robbery occurred. A car that looked like the vehicle driven by the petitioner was parked near the Subway just before the robbery occurred, and a stocky man, like the petitioner, was standing beside the car and appeared to be changing his clothes. The surveillance video of the robbery showed a masked man who had the same mannerisms and build as the petitioner according to his relatives. The petitioner was found in possession of a police scanner tuned to the Greenbrier County emergency frequencies after the robbery occurred. The petitioner lied to his mother, his parole officer, and the police about his location when the robbery occurred, attempting to create an alibi and that was proven to be false. The petitioner's cellular phone records showed that he was in the vicinity of the Subway at the time of the robbery and not on his way back to Huntington as he claimed.
Given all of these facts that were proven at trial, I believe that there was clearly sufficient evidence to support the jury's verdict of guilt beyond a reasonable doubt. This Court has explained that “when dealing with the wrongful admission of evidence ... the appropriate test for harmlessness ... is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.” State v. Guthrie, 194 W.Va. 657, 684, 461 S.E.2d 163, 190 (1995). I do not believe that jury was swayed by the petitioner's prior conviction and parole status. Instead, I believe that the jury was swayed by the other overwhelming evidence that pointed to the petitioner's guilt and that the admission of the evidence regarding his incarceration and parole status was, at worst, harmless error.
Accordingly, for the reasons set forth above, I would have affirmed the petitioner's convictions. Therefore, I respectfully dissent from the majority's decision in this case.