State of West Virginia v. Gary Lee Rollins

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term
_______________ FILED
June 17, 2014
released at 3:00 p.m.
No. 13-0099 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v.

GARY LEE ROLLINS,

Defendant Below, Petitioner

____________________________________________________________

Appeal from the Circuit Court of Nicholas County

The Honorable Gary L. Johnson, Judge

Criminal Action No. 11-F-81

AFFIRMED

____________________________________________________________

Submitted: January 22, 2014

Filed: June 17, 2014

W. Brad Dorsey, Esq. Patrick Morrisey, Esq.
Callaghan & Callaghan, PLLC Attorney General
Summersville, West Virginia Christopher S. Dodrill, Esq.
Counsel for the Petitioner Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent

The Opinion of the Court was delivered PER CURIAM.

JUSTICE WORKMAN, JUSTICE KETCHUM and JUSTICE LOUGHRY concur and
reserve the right to file separate opinions.
 SYLLABUS BY THE COURT

1. “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.” Syl. pt. 5, State v. Sugg, 193 W. Va. 388, 456

S.E.2d 469 (1995).

2. “If either the prosecutor or defense counsel believes the other has

made improper remarks to the jury, a timely objection should be made coupled with a

request to the court to instruct the jury to disregard the remarks.” Syl. pt. 5, in part, State

v. Grubbs, 178 W. Va. 811, 364 S.E.2d 824 (1987).

3. “Failure to make timely and proper objection to remarks of counsel

made in the presence of the jury, during the trial of a case, constitutes a waiver of the

right to raise the question thereafter either in the trial court or in the appellate court.” Syl.

pt. 6, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945).

4. “‘“An appellant or plaintiff in error will not be permitted to

complain of error in the admission of evidence which he offered or elicited, and this is

true even of a defendant in a criminal case.” Syl. Pt. 2, State v. Bowman, 155 W.Va. 562,

184 S.E.2d 314 (1971).’ Syl. Pt. 1, State v. Compton, 167 W.Va. 16, 277 S.E.2d 724

(1981).” Syl. pt. 3, State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996).

i
 5. “A trial court’s failure to remove a biased juror from a jury panel, as

required by W. Va.Code § 62-3-3 (1949) (Repl.Vol.2010), does not violate a criminal

defendant’s right to a trial by an impartial jury if the defendant removes the juror with a

peremptory strike. In order to obtain a new trial for having used a peremptory strike to

remove a biased juror from a jury panel, a criminal defendant must show prejudice. The

holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is

expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448

(2013).

6. “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

ii
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.” Syl. pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d

516 (1994).

7. “Assuming that an error is ‘plain,’ the inquiry must proceed to its

last step and a determination made as to whether it affects the substantial rights of the

defendant. To affect substantial rights means the error was prejudicial. It must have

affected the outcome of the proceedings in the circuit court, and the defendant rather than

the prosecutor bears the burden of persuasion with respect to prejudice.” Syl. pt. 9, State

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

8. “As to the balancing under Rule 403 [of the West Virginia Rules of

Evidence], 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, in part, State v. Derr, 192 W. Va. 165, 451

S.E.2d 731 (1994).

9. “Third-party testimony regarding an out-of-court identification may

in certain circumstances be admissible when the identifying witness testifies at trial

iii
because both the identifying witness and the third party are then available for cross-

examination.” Syl. pt. 6, State v. Carter, 168 W. Va. 90, 282 S.E.2d 277 (1981).

10. “It is within a trial court’s discretion to admit an out-of-court

statement under Rule 803(1), the present sense impression exception, of the West

Virginia Rules of Evidence if: (1) The statement was made at the time or shortly after an

event; (2) the statement describes the event; and (3) the event giving rise to the statement

was within a declarant’s personal knowledge.” Syl. pt. 4, State v. Phillips, 194 W. Va.

569, 461 S.E.2d 75 (1995), overruled on other grounds by State v. Sutherland, 231 W.

Va. 410, 745 S.E.2d 448 (2013).

11. “Under the requirements of the Confrontation Clause contained in

the Sixth Amendment to the United States Constitution, evidence offered under the

residual hearsay exceptions contained in Rule 803(24) and Rule 804(b)(5) of the West

Virginia Rules of Evidence is presumptively unreliable because it does not fall within any

firmly rooted hearsay exception, and, therefore, such evidence is not admissible. If,

however, the State can make a specific showing of particularized guarantees of

trustworthiness, the statements may be admissible. In this regard, corroborating evidence

may not be considered, and it must be found that the declarant’s truthfulness is so clear

that cross-examination would be of marginal utility.” Syl. pt. 6, State v. James Edward S.,

184 W. Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds by State v.

Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006).

iv
 12. “‘The action of a trial court in admitting or excluding evidence in the

exercise of its discretion will not be disturbed by the appellate court unless it appears that

such action amounts to an abuse of discretion.’ Syllabus point 10, State v. Huffman, 141

W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v.

Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. pt. 2, State v. Doonan, 220 W. Va.

8, 640 S.E.2d 71 (2006).

13. “The West Virginia Rules of Evidence and the West Virginia Rules

of Civil Procedure allocate significant discretion to the trial court in making evidentiary

and procedural rulings. Thus, rulings on the admissibility of evidence and the

appropriateness of a particular sanction for discovery violations are committed to the

discretion of the trial court. Absent a few exceptions, this Court will review evidentiary

and procedural rulings of the circuit court under an abuse of discretion standard.” Syl. pt.

1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).

14. “In order to preserve for appeal the claim of unfair surprise as the

basis for the exclusion of evidence, the aggrieved party must move for a continuance or

recess.” Syl. pt. 4, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).

15. “Where the record of a criminal trial shows that the cumulative

effect of numerous errors committed during the trial prevented the defendant from

v
receiving a fair trial, his conviction should be set aside, even though any one of such

errors standing alone would be harmless error.” Syl. pt. 5, State v. Smith, 156 W. Va. 385,

193 S.E.2d 550 (1972).

vi

Per Curiam:

This case is before the Court on appeal by the petitioner, Gary Lee Rollins,

of the December 18, 2012, order of the Circuit Court of Nicholas County convicting Mr.

Rollins of first degree murder of his wife, Teresa Rollins. He did not receive a

recommendation of mercy. After a thorough review of the record presented for

consideration, the briefs, the legal authorities cited, and the arguments of parties, we find

that the circuit court did not commit any reversible error. Therefore, we affirm Mr.

Rollins’s conviction.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 2009, Ms. Rollins’s dead body was found pinned underwater

in a pond by a fallen tree.1 The pond is located on property owned by her and her

husband, Mr. Rollins, in Nettie, West Virginia. Mr. and Ms. Rollins made their living by

farming vegetables on the property.

According to Mr. Rollins, he last saw Ms. Rollins alive on the morning of

October 5, 2009, around 7:30 a.m. He claimed that she was preparing to set out

1
Expert testimony at trial indicated that the tree was approximately sixty feet tall
and a thousand pounds. The stump of the tree was located about thirty-five feet from the
edge of the pond. Ms. Rollins’s body was trapped under the branches of the tree.

1

Halloween decorations as he left to clear a path on the property where he liked to hunt

deer. Around 9:00 a.m., Mr. Rollins returned to the house to wait for the family’s hired

help for the farm—Tanya Wagner, April Bailes, and Kay Rudd—to arrive. Upon their

arrival, the three women and Mr. Rollins proceeded to work in the fields. At

approximately 11:30 a.m., all four broke for lunch.

While the women and Mr. Rollins had lunch together, Ms. Rudd asked

about the whereabouts of Ms. Rollins. Mr. Rollins told Ms. Rudd that he would go look

for his wife. Mr. Rollins stated that he checked places where he thought she might be:

the storage building and inside the home. After failing to find her there, he stated that he

went to look for her near the corn field because he believed she might be collecting corn

stalks to decorate the front porch. It was while he was near the corn field that he claimed

to have first seen his wife’s body under a fallen tree in the pond:

And so that’s when I went down by my transformer
there, and I walked down to the corn. I was lookin’ down the
rows to see. Well, she’s in there sneakin’ some more corn
stalks up after I told her not to, but I didn’t see her.
So I was lookin’, and I just noticed the tree, and I was
kinda lookin’ out at the corn and lookin’ there, and I -- I kept
lookin’, and I said, “What in the shit is that?” I just -- Looked
like something. I wasn’t for sure. I was at a different angle -- .
. . from what we were up there, and I took a few more steps
down there, and I could tell there was something in the water.
Well, it just -- Kinda one and one hit me. I said, “Oh, my
God[.]”

2

Mr. Rollins later described the scene, stating that his wife’s body was held under water

by a large branch on the tree about two feet from the edge of the pond.

Mr. Rollins stated that upon seeing his wife under the tree, he ran down into

the pond and attempted to pull her body free. When he was unsuccessful, he ran to the

house where the workers were eating, shouting, “Call an ambulance. Call an ambulance.”

He then ran back down the hill to his tractor, followed by Ms. Wagner. Ms. Bailes

retrieved her cell phone from her vehicle and called 911, telling the operator that Ms.

Rollins was trapped in the pond and was not breathing.

Mr. Rollins drove his tractor down to the pond. He attempted to use the

tractor to lift the tree off of Ms. Rollins’s body, but because the tree was too heavy to lift

he used the tractor to push the tree off of her instead. Ms. Wagner jumped into the pond

and dragged the body from the water. Mr. Rollins helped Ms. Wagner pull the body out

of the water and onto the bank. Ms. Wagner attempted CPR with no success.

Medical emergency personnel arrived shortly thereafter, and police with the

Nicholas County Sheriff’s Department arrived about half an hour later. Some of the

Rollins’s neighbors went to the house upon seeing the emergency vehicles, and Deputy

Kenneth Sales of the Sheriff’s Department took statements from the neighbors, the

workers, and Mr. Rollins. Mr. Rollins told Deputy Sales that he believed his wife may

3

have gone down to the pond to feed bread to fish or squirrels, and that the tree had fallen

while she was there and pinned her under the water. Deputy Sales also took pictures of

the scene.

Ms. Rollins’s body underwent an autopsy the next day, October 6, 2009.

Dr. Zia Sabet of the State Medical Examiner’s Office, upon examining the body, found a

few small scratches on Ms. Rollins’s face and some bruising on her back. The death

certificate prepared at that time stated that the cause and manner of death were both

“pending investigation.”

Deputy Sales acted as lead investigator of the circumstances surrounding

Ms. Rollins’s death. He returned to the Rollins property on October 7, 2009, to take

additional photographs. At that time, the fallen tree had been removed from the pond,

and the record in this case does not reflect the location of the tree following its removal

from the pond.

On October 13, 2009, Deputy Sales requested that Mr. Rollins meet him at

the Nicholas County Courthouse to speak with him again about Ms. Rollins’s death.2

2
Before questioning Mr. Rollins, Deputy Sales informed Mr. Rollins of his rights
pursuant to requirements of Miranda v. Arizona, 384 U.S. 436 (1965) (requiring that
upon taking a person into custody, the police must inform that person that, among other
(continued . . .)

4

The interview was video recorded. Before the interview commenced, Deputy Sales told

Mr. Rollins, “From the circumstances of this case, we have changed it to a murder

investigation; so right now you’re being questioned about a murder . . . .” Deputy Sales

informed Mr. Rollins that the circumstance that had arisen prompting the interview was

the discovery of Mr. Rollins’s extramarital affair with Ms. Bailes:

DEPUTY SALES: Yeah. The circumstances that
came up, that arose since then -­
MR. ROLLINS: Okay.
DEPUTY SALES: -- you know, with the affair and
everything.
MR. ROLLINS: Oh, yeah.
DEPUTY SALES: Yeah. I mean -­
MR. ROLLINS: Well, you guys call it an affair,
but -- That’s fine. I mean, yeah, I was kinda seein’ a woman ­
-
DEPUTY SALES: Well, I mean, what else would it
be?
MR. ROLLINS: A fling.
DEPUTY SALES: A fling. For over a year?3
MR. ROLLINS: Extra-marital affair.
....
MR. ROLLINS: I understand that everybody sees
on TV when there’s a death and there’s an affair goin’ on,
another woman, the first thing they suspect is the spouse. I
understand that.

things, he/she has the right to remain silent). At the time of the interview, Mr. Rollins was
not under arrest and he was informed that he was free to leave at any time. He signed the
Miranda interview form, waiving his Miranda rights.
3
Mr. Rollins and Ms. Bailes began their affair in July 2008. The affair continued
after Ms. Rollins’s death and through the incarceration of Mr. Rollins, ending in
December 2010.

5

 DEPUTY SALES: And a jury would just absolutely
hammer you.
MR. ROLLINS: They would probably be eatin’ it
like a piece of candy, lookin’ at me, sayin, “Oh boy, he had to
have done it.”

(Footnote added). Deputy Sales continued the interview by questioning Mr. Rollins

again as to the events occurring on the day his wife was found dead. Upon the

conclusion of his questions, the following discussion took place between the two men:

DEPUTY SALES: All right. Well, if Dan [another
investigating police officer] thinks of somethin’, then he’ll
give you a call or anything. I can’t think of anything else.
We’ve went over it a few times now.
MR. ROLLINS: Okay. Well, I’m -- I’ll tell you the
truth. I think once you guys get the -- all the reports back
from the autopsy -­
DEPUTY SALES: Um-hum.
MR. ROLLINS: -- and it shows there wasn’t no
toxins in her system, and it shows that she drowned in a pond,
and it shows that a tree -- that tree and stuff hit her, I -- I think
you guys might be a little bit more at ease, because I’m -­
Yeah, that’s -- that’s how she died. She -- Nobody killed my
wife.
DEPUTY SALES: Okay.
MR. ROLLINS: I mean, nobody -- nobody could. I
mean, she might complain and she might have been hard to
get along with sometimes, but she had a heart of gold, and
nobody could do that to somebody like that.
....
MR. ROLLINS: I’ve -- I’ve questioned myself,
you know, why -- why she didn’t, you know, hear that and get
out of the way or something, and -­
And I don’t like talkin’ bad about anybody because,
you know, I love my wife. She was -- Like I said, just a heart
of gold, but she was slow as far as thinkin’. She -- No
numbers, no spelling, no nothin’. I mean, when it come to
that, she’d always come to me, and you’d tell her something,
she’d -- It was like tellin’ a person a joke. Well, a half hour

6
 later, she’d start laughin’. She’d get it. She was just slow. It’s
just -­
And -- And I always thought, well, if a tree would -­
would break, and she probably would have turned around and
looked and says, “Oh, a tree fallin’,” and then -- She’s that
type.

Following the investigation by Deputy Sales, the doctor who performed the

autopsy on Ms. Rollins, Dr. Sabet, concluded that Ms. Rollins’s death was an accident

and the result of “drowning complicated compression asphyxia.” The Chief Medical

Examiner, Dr. James Kaplan, upon reviewing Dr. Sabet’s findings, agreed with this

conclusion. An amended death certificate was issued on October 20, 2009, reflecting the

manner of death—“accident”—and cause of death—“drowning complicated compression

asphyxia.” The State Medical Examiner’s Office issued an autopsy report containing the

same findings as the amended death certificate on January 10, 2010.

According to Mr. Rollins, Ms. Rollins’s family contacted then Govenor Joe

Manchin about the investigation, indicating their belief that Ms. Rollins’s death was the

result of murder, not accident. The record indicates that former Governor Manchin then

called the head of the West Virginia State Police and instructed the State Police to

conduct an investigation. Upon completing their investigation, the State Police

concluded that Ms. Rollins’s death was not an accident.

7

 First, the State Police discovered that Mr. Rollins had taken out two life

insurance policies on his wife’s life within two months of her death. On August 29, 2009,

a little more than a month before Ms. Rollins died, Mr. Rollins went truck shopping with

his girlfriend, Ms. Bailes. The salesman testified that while on the lot looking at cars,

before negotiating a deal on a vehicle, Mr. Rollins asked about life insurance options sold

by the dealership. The salesman stated that in his experience it was uncommon for

prospective buyers to discuss insurance options prior to deciding on a vehicle to

purchase. Mr. Rollins ultimately purchased a truck for $44,255.82, financing the

majority of the purchase price. The salesman testified that Mr. Rollins said that “he’d be

paying it off pretty soon” but that the financing period Mr. Rollins selected—60

months—was not the shortest the dealership offered. Mr. Rollins also purchased life

insurance to cover the cost of the truck, up to $50,000. The policy covered both his life

and the life of his wife. Another representative of the dealership testified that because

Ms. Rollins was named on the loan, she appeared in a day or two following the sale to

sign paperwork including the life insurance document.

On September 4, 2009, thirty days before Ms. Rollins died, Mr. Rollins

made a call to increase his and his wife’s life insurance coverage. He increased his

coverage by $300,000. He attempted to increase Ms. Rollins’s coverage by $300,000 as

well, for both natural and accidental death causes, but he was informed by the agent that

to cover natural death, Ms. Rollins would need a new physical because of her previously

8

disclosed cholesterol issues. Mr. Rollins ultimately decided to forego the health portion

of the insurance, stating, “Yeah, because all I’m looking for is just the accidental,” and,

“We’re not trying to increase life when neither one of us is planning -- planning a natural

death for at least another 30 to 40 years.” Mr. Rollins stated that the reason he wanted to

purchase additional insurance was “because we were under the assumption that our

mortgage was insured also . . . so basically what we’re covered in now will just barely

pay off our mortgage.” The total coverage for each spouse with the respective $300,000

increases was $500,000.

Second, the State Police found Ms. Bailes’s phone call to 911 on October 5,

2009, highly suspicious. According to the statements of all witnesses present at the

Rollinses’ farm, upon discovering Ms. Rollins’s body, Mr. Rollins ran up the hill

shouting for someone to call an ambulance. At that time, Mr. Rollins did not explain

why they should call an ambulance. Ms. Bailes made the 911 call after retrieving her

phone from her vehicle. The point from which she made the call was approximately

eighty-five yards from where Ms. Rollins lay in the pond, yet she told the 911 operator

that Ms. Rollins was trapped under a tree in the pond and that Ms. Rollins was not

breathing. The State Police theorized that because Ms. Bailes could not see the scene at

9

the pond with the detail she described to the 911 operator, she must have known that Ms.

Rollins was dead in the pond prior to placing the call.4

Third, the State Police also found Mr. Rollins’s statements to Deputy Sales

suspicious. Mr. Rollins’s claim that he jumped into the pond in an attempt to save his

wife did not match the testimony of witnesses on the scene. Those witnesses described

Mr. Rollins as being either completely dry or wet only up to his knees shortly after Ms.

Rollins’s body was removed from the pond. Based on these statements, the State Police

did not believe that Mr. Rollins was wet enough to support his claim that he had jumped

into the pond and attempted to pull his wife’s body free from beneath the tree.

Representatives of the State Police then met with Dr. Sabet and Dr. Kaplan

on January 14, 2010, presenting their evidence and theories. Based on the new

information, Drs. Sabet and Kaplan decided to amend their previous findings, changing

Ms. Rollins’s death certificate to state that the cause of death was “asphyxia due to

probable strangulation” and the manner of death was “undetermined.” The amended

death certificate was filed on January 19, 2010. The autopsy report was also later

amended and filed on July 19, 2010.

4
Ms. Bailes testified at trial that she was unable to see if Ms. Rollins was
breathing from her vantage point when she talked to the 911 operator.

10

 In September of 2011, Mr. Rollins was indicted for the murder of his wife,

and he was subsequently arrested. Ms. Bailes was arrested on October 7, 2011, as an

accessory to that murder based on the belief that Ms. Bailes must have known that Ms.

Rollins was dead prior to calling 911.

In the two years after Ms. Rollins’s death, Ms. Bailes denied any

knowledge of foul play; however, shortly after her arrest, on October 13, 2011, Ms.

Bailes informed the police that Mr. Rollins had taken her aside on the morning of

October 5, 2009, and told her that he had killed his wife. She testified:

We unloaded the stakes, and he had took me by the
arm to the other side of the tractor, and he just looked at me
like -- with this look like he was looking through me, and he
just said, “I -- I killed Teresa.”
And I just looked at him, you know, like “What?”
And he said it again. He said, “I killed Teresa,” and he
said that I’d be the one to call 911 and tell them about her
under the tree, and that if I didn’t go along with it, that me
and my daughter wouldn’t be here.

Ms. Bailes also stated that prior to Ms. Rollins’s death, Mr. Rollins “talked about when

he got rid of Teresa, and he mentioned, like, marriage once I think.”

In preparation for trial, a second autopsy was performed in May 2012 on

Ms. Rollins’s body by an expert for the State, Dr. Cyril Wecht, and an expert for the

defense, Dr. Joseph Cohen. Neither Dr. Wecht nor Dr. Cohen was employed by the State

of West Virginia. In addition to conducting a similar inspection of the areas of the body

11

examined by Dr. Sabet during the first autopsy, Drs. Wecht and Cohen removed the

spinal column and spinal cord to look for injuries. Dr. Wecht concluded that Ms. Rollins

died as a result of forcible drowning. Dr. Cohen concluded that the injuries were

consistent with being pinned under water by a fallen tree.

Mr. Rollins’s trial began on August 14, 2012. In addition to Ms. Bailes’

testimony that Mr. Rollins had confessed to her that he had killed his wife, testimony

associated with the life insurance policies, and testimony of witnesses present on the

Rollins farm on October 5, 2009, the State presented the testimony of three medical

expert witnesses: Drs. Sabet and Kaplan of the State Medical Examiner’s Office, and Dr.

Wecht. All three experts testified that they did not believe the injuries to Ms. Rollins’s

body were extensive enough to have been caused by a falling tree. The State also

presented the testimony of a friend of Ms. Rollins who claimed that Mr. Rollins had

physically abused his wife in the months preceding her death.

The defense contended that Ms. Rollins’s death was an accident and that

the former governor’s influence had caused the police and medical examiners to

wrongfully accuse Mr. Rollins of murder. The defense presented the testimony of Dr.

Cohen who stated that he believed a falling tree could have caused Ms. Rollins’s death.

All four of the medical expert witnesses at trial—the State’s three witnesses and the

defense’s one witness—agreed that Ms. Rollins’s body did not present with any large

12

hemorrhages or broken bones. They also agreed that based on her wounds, the tree could

not have knocked her unconscious and that she was conscious when she was submerged

in the water. The witnesses disagreed primarily on the amount of bruising on Ms.

Rollins’s back and in their ultimate conclusions.

After the presentation of closing arguments, the jury retired to the jury

room at approximately 3:45 p.m. for deliberation. The jury returned to the courtroom at

approximately 5:10 p.m. with its verdict. The jury found Mr. Rollins guilty of first

degree murder, and it did not recommend mercy. At the request of the defense, the jury

was polled. Each juror indicated that the verdict form accurately depicted his or her

individual vote of guilt.

The circuit court entered a Trial Order on December 18, 2012, finding Mr.

Rollins guilty of the first degree murder of his wife. Following a sentencing hearing on

September 26, 2012, Mr. Rollins was sentenced to life imprisonment without mercy. Mr.

Rollins now appeals his murder conviction to this Court.

II.

STANDARD OF REVIEW

On appeal, Mr. Rollins raises seven assignments of error. Because this case

requires the examination and application of numerous standards of review to the

13

assignments of error, we will discuss each of the appropriate standards in conjunction

with our analysis of the individual issues below.

III.

ANALYSIS

As stated above, Mr. Rollins raises seven assignments of error. He argues

that he was prejudiced by a remark made by the prosecutor during closing arguments;

that the circuit court erred by refusing to strike a juror during voir dire; that the circuit

court erred by failing to strike a biased juror upon discovering a previous relationship

between that juror and the prosecutor; that the circuit erroneously permitted the

presentation of evidence of domestic violence; that the State’s presentation of three

medical expert witnesses was cumulative and prejudicial; that he was subjected to unfair

surprise when one of the State’s medical expert witnesses, Dr. Kaplan, testified in a

manner inconsistent with his report; and that the cumulative effect of the errors in the

case warrants reversal of his conviction. For the reasons explained in full below, we

conclude that the circuit court did not commit any reversible error.

A. The prosecutor’s remark

During his rebuttal argument, the prosecutor made a comment that Mr.

Rollins alleges was a material misrepresentation, resulting in substantial prejudice and

manifest injustice. The statement at issue was given during the State’s rebuttal. The State

14

argues that the prosecutor’s comment was a permissible response to the defense’s closing

argument. The defense said during its closing argument:

So where does this little -- little lie, big lie, giant lie,
the lie that they’re trying to make my client’s life with, where
does that leave [Ms. Bailes]? What does she gain from that 15
seconds of fabrication?
She’s joined their team. She’s gotten on the -- the
governor’s freight train express. We’re all going to railroad
Gary Rollins, so now what does she get out of it. She’s not in
jail. She’s not been indicted. You heard that she was arrested.
She was taken before a magistrate, but she’s not been
indicted. You can’t get convicted if you’re not indicted.
Who hands out the indictments? That man right there.
(Indicated.) P.K. Milam [the prosecutor]. Is he going to indict
his star witness, do you think? Is that what’s really going to
happen here? After all is said and done, he gets his conviction
thanks to her lie, he’s going to repay that by indicting her? Do
you think they thought that?
....
And she knew what they wanted her to say because
they’d been trying to get her to say it for two years, and they
couldn’t do it until they put the cuffs on her. She knew what
they wanted. In the end, she gave it to them for her freedom.

During the State’s rebuttal, the prosecutor told the jury:

Mr. Vanbibber [defense counsel] wants you to believe
that [Ms. Bailes is] getting out of trouble for telling us the
truth. Trp. White [of the State Police], when he interviewed
her, told her -- said you can either tell us the truth now or
we’ll arrest you later, and he made good on that promise,
because we knew from the very beginning, from that 911 call,
that she could not have had that information. That’s what
broke this case wide open. Reviewing that tape shows that she
could not have that information from the get-go, and we
interviewed her again and again and again and gave her every
opportunity in the world to help herself, and she didn’t, and

15
 she got arrested for it, and she’s charged with accessory after
the fact.
Now, he wants you to believe that she’s getting some
kind of consideration out of that. You can bet your behind
that I’m going to indict her next month.
If she’d told us this from the beginning, two years ago,
three years ago now, this case would have been totally
different, but she held that information in -- in her pocket for
two years, and she didn’t anyone [sic] until she was in
trouble, and she tried to save her own behind. Well, it’s too
late at that point. She’s being prosecuted as an accessory after
the fact in this case.

(Emphasis added).

Mr. Rollins argues that the prosecutor’s assertion that he would indict Ms.

Bailes improperly bolstered Ms. Bailes’s credibility. Despite Ms. Bailes’s testimony that

she had not been promised anything by the State with regard to her trial testimony, Mr.

Rollins contends in this appeal that Ms. Bailes was the State’s “star witness” at trial and

that the prosecutor’s statement regarding Ms. Bailes’s credibility prejudiced his case.

When reviewing the propriety of remarks made to the jury by the

prosecutor, the Court has 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.” Syl. pt. 5, State v. Sugg, 193

W. Va. 388, 456 S.E.2d 469 (1995). See also syl. pt. 1, State v. Dunn, 162 W. Va. 63, 246

S.E.2d 245 (1978) (“A judgment of conviction will not be reversed because of improper

remarks by a prosecuting attorney in his opening statement to a jury which do not clearly

16

prejudice the accused or result in manifest injustice.”); State v. Coulter, 169 W. Va. 526,

530, 288 S.E.2d 819, 821 (1982) (applying syllabus point 1 of Dunn to an evaluation of a

prosecuting attorney’s closing argument). The Court has also recognized that a trial court

exercises reviewable discretion when ruling on the propriety of a prosecuting attorney’s

comments to the jury. State v. Painter, 135 W. Va. 106, 112, 63 S.E.2d 86, 91 (1950).

“If either the prosecutor or defense counsel believes the other has made

improper remarks to the jury, a timely objection should be made coupled with a request

to the court to instruct the jury to disregard the remarks.” Syl. pt. 5, in part, State v.

Grubbs, 178 W. Va. 811, 364 S.E.2d 824 (1987). See also Coulter, 169 W. Va. at 530,

288 S.E.2d at 821 (1982) (“In order to take advantage of remarks made during an

opening statement or closing argument which are considered improper an objection must

be made and counsel must request the court to instruct the jury to disregard them.”). The

Court has long held that the “[f]ailure to make timely and proper objection to remarks of

counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of

the right to raise the question thereafter either in the trial court or in the appellate court.”

Syl. pt. 6, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). The Court reasoned

in Yuncke that an objection to prejudicial comments must be made contemporaneously

with the comments so that the trial court has an opportunity to take corrective action. Id.

at 311, 36 S.E.2d at 416.

17

 The record shows that defense counsel did not make an objection—neither

during nor after the State’s rebuttal—to the comment made by the prosecutor. Therefore,

we find that pursuant to the above-cited precedent, Mr. Rollins waived the right to

challenge the State’s rebuttal argument on appeal. See also State v. Young, 185 W. Va.

327, 349 n.25, 406 S.E.2d 758, 780 n.25 (1991) (refusing to address alleged improper

remarks made during closing arguments by the prosecutor, finding that the petitioner had

waived the issue by failing to raise it at trial).

Additionally, in making accusations against the prosecutor in its closing

argument, the defense invited the prosecutor’s comment.

“Invited error” is a cardinal rule of appellate review
applied to a wide range of conduct. It is a branch of the
doctrine of waiver which prevents a party from inducing an
inappropriate or erroneous response and then later seeking to
profit from that error. The idea of invited error is not to make
the evidence admissible but to protect principles underlying
notions of judicial economy and integrity by allocating
appropriate responsibility for the inducement of error. Having
induced an error, a party in a normal case may not at a later
stage of the trial use the error to set aside its immediate and
adverse consequences.

State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996). We have held,

“‘“An appellant or plaintiff in error will not be permitted to complain of error in the

admission of evidence which he offered or elicited, and this is true even of a defendant in

a criminal case.” Syl. Pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971).’

Syl. Pt. 1, State v. Compton, 167 W.Va. 16, 277 S.E.2d 724 (1981).” Syl. pt. 3, id.

18

 In his reply brief to this Court, Mr. Rollins submits that the plain error

doctrine should apply to the prosecutor’s remark. See syl. pt. 7, State v. Miller, 194 W.

Va. 3, 459 S.E.2d 114 (1995) (“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.”) Insofar as

we have determined that the prosecutor’s remarks were in direct response to closing

arguments made by the petitioner, we find the plain error doctrine is simply not

applicable.5 We conclude that the circuit court committed no error with regard to the

prosecutor’s comment.

B. Juror bias

Mr. Rollins presents two assignments of error with regard to juror bias. In

the first of those two assignments of error, Mr. Rollins alleges that the circuit court

committed reversible error by failing to strike one juror, Juror Jordan, for cause during

voir dire. Mr. Rollins contends that Juror Jordan expressed bias justifying her removal

from the jury panel by the circuit court. Although the circuit court refused to strike Juror

5
In Crabtree, we recognized that “[d]eviation from the doctrine of invited error is
permissible when application of the rule would result in a manifest injustice.” 198 W. Va.
at 628, 482 S.E.2d at 613. “[W]hether the circumstances of a particular case justify
deviation from the normal rule is left largely to the discretion of the appellate court.” Id.
Here, we see no reason to apply that exception, particularly in light of the fact that the
weight of the evidence against Mr. Rollins is heavy. See infra Part III.C.

19

Jordan for cause, she did not sit on the jury; Mr. Rollins used a peremptory strike to

remove her from the panel.

The Court reviews challenges to jurors under the following standard of

review:

“In reviewing the qualifications of a jury to serve in a
criminal case, we follow a three-step process. Our review is
plenary as to legal questions such as the statutory
qualifications for jurors; clearly erroneous as to whether the
facts support the grounds relied upon for disqualification; and
an abuse of discretion as to the reasonableness of the
procedure employed and the ruling on disqualification by the
trial court.” State v. Miller, 197 W.Va. 588, 600–01, 476
S.E.2d 535, 547–48 (1996).

State v. Sutherland, 231 W. Va. 410, 412, 745 S.E.2d 448, 450 (2013).

In Sutherland, we held:

A trial court’s failure to remove a biased juror from a
jury panel, as required by W. Va.Code § 62-3-3 (1949)
(Repl.Vol.2010), does not violate a criminal defendant’s right
to a trial by an impartial jury if the defendant removes the
juror with a peremptory strike. In order to obtain a new trial
for having used a peremptory strike to remove a biased juror
from a jury panel, a criminal defendant must show prejudice.
The holding in Syllabus point 8 of State v. Phillips, 194
W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.

Syl. pt. 3, Id. Sutherland makes clear that unless a criminal defendant shows prejudice, a

trial court does not commit reversible error when it fails to strike a juror for cause where

a party uses a peremptory strike to eliminate the offending juror from the jury panel.

20

 We note that Sutherland does not provide an explicit guideline as to how a

reversal could occur when a defendant has removed a biased juror with a peremptory

strike. However, many of the cases cited and followed in Sutherland set out the test that

must be satisfied when a defendant has removed a biased juror. The test has been stated

in different ways, but essentially, “a challenge must show that the appellant was forced to

accept a juror who should have been excused for cause.” Miles v. State, 85 S.W.3d 907,

911 (Ark. 2002). That is, appellate courts “will not find reversible error based on the trial

court’s refusal to remove that juror for cause unless the resulting jury was not fair and

impartial.” State v. Kuhs, 224 P.3d 192, 198 (Ariz. 2010). See Minch v. State, 934 P.2d

764, 770 (Alaska Ct. App. 1997) (“[Defendant] must also demonstrate some reason to

believe that one or more of the jurors who decided his case were, in fact, not fair.”).

Mr. Rollins argues that the Court should presume prejudice where a

criminal defendant is forced to use a peremptory challenge to remove a prospective juror

and a biased juror is nonetheless seated on the jury panel that convicts him. The

defendant relies on his second assignment of error with regard to juror bias as the basis

for reversal pursuant to Sutherland. Therefore, we will proceed by addressing Mr.

Rollins’s second assignment of error with regard to this issue.

21

 In his second challenge regarding juror bias, Mr. Rollins insists that the

circuit court erred by allowing another juror, Juror Crislip, to remain on the jury despite

the discovery, after jury selection was complete and directly prior to opening statements,

that Juror Crislip was a former client of the prosecutor. The defense objected, requesting

that the circuit court strike Juror Crislip. The court denied the request; however, prior to

closing arguments, the court gave the petitioner the option of replacing Juror Crislip with

the alternate juror, Juror Montgomery:

THE COURT: You had previously filed a motion
to remove [Juror] Crislip. Do you want to renew that motion
since we have an alternate [Juror Montgomery] or -­
MR. VANBIBBER: No, sir.
THE COURT: Ok. You just want Mr. Crislip to
stay?
MR. VANBIBBER: Well, your Honor, I don’t
want to waive my original objection to him, but I would
choose him over the alternate.
THE COURT: Okay.

. . . .

THE COURT: Okay, and so I -- I just -- There

was a motion to strike him, and I was going to let you bring it
up again if you want to, but if you don’t want to, that’s fine,
too.

Through this exchange, it is clear that the defense preferred Juror Crislip to Juror

Montgomery. The defense reasoned before the circuit court that Juror Montgomery was

biased because children of the prosecutor and Juror Montgomery had played sports

together.

22

 Rule 24(c) of the West Virginia Rules of Criminal Procedure describes the

selection and operation of alternate jurors:

The court may direct that more jurors in addition to the
regular jury be called and impaneled to sit as alternate jurors.
Alternate jurors in the order in which they are called shall
replace jurors who, prior to the time the jury retires to
consider its verdict, become or are found to be unable or
disqualified to perform their duties. Alternate jurors shall be
drawn in the same manner, shall have the same qualifications,
shall be subject to the same examination and challenges, shall
take the same oath, and shall have the same functions,
powers, facilities and privileges as the regular jurors. An
alternate juror who does not replace a regular juror shall be
discharged after the jury retires to consider its verdict. Each
side is entitled to one peremptory challenge in addition to
those otherwise allowed by law if one or two alternate jurors
are to be impaneled, two peremptory challenges if three or
four alternate jurors are to be impaneled, and three
peremptory challenges if five or six alternate jurors are to be
impaneled. The additional peremptory challenges may be
used against an alternate juror only, and the other peremptory
challenges allowed by these rules may not be used against an
alternate juror.

Rule 24(c) commands that if a regular juror is not qualified to sit on the jury, that juror

should be replaced with an alternate juror prior to the jury retiring to consider a verdict.

Under this rule, if Juror Crislip had been struck from the jury, he would have been

replaced by the one alternate juror, Juror Montgomery.

The defense argued below that Juror Montgomery was biased, yet at no

point during voir dire did the defense voice any objection to Juror Montgomery. The

defense did not request that Juror Montgomery be struck for cause, nor does Mr. Rollins

23

now claim that he was denied a peremptory strike to remove her from the jury. By failing

to make any objections to Juror Montgomery during voir dire, this Court can only

conclude that the defense deemed her fit to serve as an alternate juror. In the absence of

any new information of bias uncovered after voir dire, any objection to Juror

Montgomery is waived.

Had Juror Crislip been struck from the jury because of his prior relationship

with the prosecutor, he would have been replaced by Juror Montgomery—a juror chosen

by the parties—pursuant to Rule 24(c). When asked prior to closing arguments if the

defense wished to renew its objection to Juror Crislip and replace him with Juror

Montgomery, the defense answered in the negative.6 Therefore, we find that Mr. Rollins

waived his objection to Juror Crislip. Further, because the defense chose to permit Juror

Crislip to remain on the jury, he cannot now claim that he received a biased jury pursuant

to Sutherland because Juror Crislip sat on the jury.

C. Evidence of domestic violence

Under this assignment of error, Mr. Rollins takes issue with five alleged

acts of domestic violence introduced through the testimony of Jimmy Thompson, a friend

6
We note that when the defense first objected to Juror Crislip upon the discovery
of his relationship with the prosecutor, the defense did not voice any objections to
replacing him with alternate juror, Juror Montgomery.

24

and neighbor of Ms. Rollins. Mr. Thompson stated that he witnessed Mr. Rollins shake

his wife in Spring 2009 and that he saw Mr. Rollins swat her head in May 2009. Mr.

Thompson also took photographs of bruising on Ms. Rollins’s body on three occasions:

the first was taken in July 2009 and showed a bruise on Ms. Rollins’s chest, the second

was also taken in July 2009 and showed a bruise on her nose, and the third was taken in

August 2009 and showed a bruise on her thigh. Those photographs were introduced at

trial, and Mr. Thompson testified that Mrs. Rollins told him that her husband had

inflicted the bruises upon her. An in camera pretrial hearing was held to examine the

evidence. The circuit court concluded that all such evidence was admissible at trial.

Mr. Rollins contends that the circuit court erred by admitting the State’s

“bad character” evidence—the domestic violence evidence—as proof of absence of

mistake or accident pursuant to Rule 404(b) of the West Virginia Rules of Evidence,

which states, in part:

Evidence 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 . . . .

Mr. Rollins also argues that the circuit court erred in finding by a preponderance of the

evidence that Mr. Rollins caused the bruises in Mr. Thompson’s photographs. Finally,

Mr. Rollins argues that all five acts of domestic violence should have been excluded

pursuant to Rule 403 of the West Virginia Rules of Evidence. Rule 403 states that

25

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

The Court held in syllabus point 2 of State v. McGinnis, 193 W. Va. 147,

455 S.E.2d 516 (1994), that when there is an offer of 404(b) evidence, the trial court must

hold an in camera hearing to evaluate that evidence:

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.

26

 This Court reviews a circuit court’s decision regarding the admissibility of

Rule 404(b) evidence according to State v. LaRock, 196 W. Va. 294, 310–11, 470 S.E.2d

613, 629–30 (1996):

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.

If a trial court has admitted “bad character” evidence in error, a petitioner is

only entitled to reversal if the error affected his substantial rights. W. Va. R. Crim. P. 52

(“Any error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded.”); W. Va. R. Evid. 103(a) (“Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is affected, and .

. . [i]n case the ruling is one admitting evidence, a timely objection or motion to strike

appears of record, stating the specific ground of objection, if the specific ground was not

apparent from the context.”). An error affects a petitioner’s substantial rights if “the error

was prejudicial. It must have affected the outcome of the proceedings in the circuit court,

and the defendant rather than the prosecutor bears the burden of persuasion with respect

to prejudice.” Syl. pt. 9, in part, Miller, 194 W. Va. 3, 459 S.E.2d 114.

27

 Finally, we held, in syllabus point 10 of State v. Derr, 192 W. Va. 165, 451

S.E.2d 731 (1994) (in part), that “[a]s 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.”

We proceed with our analysis by examining the admissibility of the

evidence pursuant to the requirements for admissibility set forth in McGinnis.

1. The purpose of the evidence

Pursuant to McGinnis, for the evidence of prior bad acts to be admissible,

the acts must fall under an exception to Rule 404(b), and the court must make a

determination as to the purpose for which the evidence is to be admitted. Upon our

examination of the evidence in question, we find that such evidence was properly

admitted as proof of an absence of accident or mistake. Mr. Rollins asserted at trial that

his wife’s death was an accident, and the domestic violence evidence was presented to

rebut that position. In State v. Mongold, 220 W. Va. 259, 265, 647 S.E.2d 539, 545

(2007), the Court allowed evidence of prior abuse of another child to rebut the

petitioner’s argument that his young daughter’s death was an accident:

In an effort to rebut Mr. Mongold’s evidence regarding his
theories of how [his young daughter] Hannah’s injuries could
have occurred accidently, the State sought to introduce
evidence of an incident involving a five-year-old child . . . [in

28
 which he] “held the child up against the wall by the throat,
causing the child to bleed and become unconscious . . . .”

The trial court in Mongold determined that the evidence was admissible to prove absence

of accident or mistake:

The trial court concluded that the evidence was relevant “to
show that this was not an accident and that it was
intentional,” as argued by the State. See United States v.
Sanders, 343 F.3d 511, 518 (5th Cir.2003) (“[I]t has been
established that the government offered the evidence to prove
intent and refute [the defendant’s] claim of mistake or
accident. These purposes are permissible under [Rule]
404(b).”). It was also found by the trial court “that the
probative value [of the evidence] would, in fact, outweigh the
prejudicial effect[.]”

Id. at 265–66, 647 S.E.2d at 545–46 (alterations in original).

Mr. Rollins attempts on appeal to distinguish his case from Mongold by

pointing to the fact that the petitioner in Mongold presented witnesses who testified to the

petitioner’s good character and that the petitioner’s testimony suggested that his

daughter’s injuries were accidently caused while playing a game of “airplane”7 with her.

Essentially, he contends that, pursuant to Mongold, evidence of prior bad acts to prove

absence of accident or mistake is only permissible where the petitioner has presented

7
“This game required Mr. Mongold to lie on his back and place one of the
children on his raised legs and, while holding the child’s hands, twirl the child in the air.”
Mongold, 220 W. Va. at 263, 647 S.E.2d at 543.

29

evidence of his good character and/or where the petitioner was involved in and

contributed to the accident.

We find neither argument persuasive. Although the Court recognized in

Mongold that witnesses testified at trial regarding the petitioner’s good character, the

Court’s decision to admit the evidence of prior abuse did not hinge on the existence of

that testimony. Instead, the Court focused on the admissibility exceptions in Rule 404(b).

Furthermore, we disagree that Mongold requires that a defendant admit to

being involved in or that he actively contributed to the incident in question for the

evidence of absence of accident or mistake to be admissible. In support of his argument,

Mr. Rollins omits relevant facts in Mongold. In addition to theorizing that his daughter’s

severe head trauma occurred while playing “airplane,” an act in which the petitioner

admits to having an active role, the petitioner also speculated that his daughter’s injuries

may have resulted from being knocked down by the family dog or falling off of the

family’s deck. The latter two events did not involve the active participation of the

petitioner. Because the evidence of prior abuse was permitted to rebut all three scenarios,

it is clear that Mongold does not make a defendant’s active contribution to a victim’s

injuries a prerequisite for the introduction of Rule 404(b) evidence to prove absence of

mistake or accident. We conclude that the circuit court correctly determined that the

30

evidence of prior abuse presented by Jimmy Thompson was admissible to prove absence

of accident or mistake.

2. Preponderance of the evidence standard

Having found that the domestic violence evidence was properly admitted to

show absence of accident or mistake, McGinnis requires that we proceed to determining

whether the events giving rise to the evidence occurred by a preponderance of the

evidence. Mr. Rollins submits that the photographed bruises and the testimony describing

the source of the bruises in the photographs were improperly admitted pursuant to

McGinnis. He asks this Court to find that the circuit court abused its discretion in finding

by a preponderance of the evidence that the acts of domestic violence culminating in

bruising on his wife and the subsequent photographs actually occurred. Mr. Rollins

concedes that the circuit court did not err in finding by a preponderance of the evidence

that the two acts of violence Mr. Thompson personally witnessed—Mr. Rollins shaking

and swatting his wife—occurred. Therefore, we proceed by evaluating this particular

factor of McGinnis—the preponderance of the evidence standard—only with regard to

the photographs and their accompanying testimony.

Mr. Rollins asserts that the only evidence explaining how the bruising

occurred was the alleged statements of his now deceased wife as presented through the

testimony of Mr. Thompson. Mr. Rollins argues that the statements are not reliable

31

enough to support a finding by a preponderance of the evidence that Mr. Rollins caused

the bruising through acts of domestic violence. In conjunction with this argument, Mr.

Rollins also argues that Mr. Thompson’s testimony as to the specifics of his discussions

with Ms. Rollins were inadmissible hearsay and that the photographs, which relied on

those hearsay statements, were not relevant. We disagree.

Hearsay is defined in Rule 801(c) of the West Virginia Rules of Evidence:

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.”

The circuit court found that the statements Ms. Rollins allegedly made to

Mr. Thompson were not hearsay because they were admitted “solely for the purpose of

identifying the bruises seen in the photographs.” This Court has held that when out-of­

court statements are admitted solely for identification purposes they are admissible. Syl.

pt. 1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990) (“Generally, out-of-court

statements made by someone other than the declarant while testifying are not admissible

unless: 1) the statement is not being offered for the truth of the matter asserted, but for

some other purpose such as motive, intent, state-of-mind, identification or reasonableness

of the party’s action; 2) the statement is not hearsay under the rules; or 3) the statement is

hearsay but falls within an exception provided for in the rules.”). “Third-party testimony

regarding an out-of-court identification may in certain circumstances be admissible when

32

the identifying witness testifies at trial because both the identifying witness and the third

party are then available for cross-examination.” Syl. pt. 6, State v. Carter, 168 W. Va. 90,

282 S.E.2d 277 (1981). Accord State v. Spence, 182 W. Va. 472, 388 S.E.2d 498 (1989);

State v. Boyd, 167 W. Va. 385, 280 S.E.2d 669 (1981). With regard to third party

testimony regarding the out-of-court testimony of an identifying witness, “[t]he

underlying rationale of the hearsay rule is to prevent the admission into evidence of

unreliable or untrustworthy evidence. The major vehicle through which trustworthiness

of evidence is guaranteed is cross-examination.” Boyd, 167 W. Va. at 397, 280 S.E.2d at

681. See also syl. pt. 2, State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995),

overruled on other grounds by State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448

(2013) (“‘The mission of the Confrontation Clause found in the Sixth Amendment to the

United States Constitution and Section 14 of Article III of the West Virginia Constitution

is to advance a practical concern for the accuracy of the truth-determining process in

criminal trials, and the touchstone is whether there has been a satisfactory basis for

evaluating the truth of the prior statement. An essential purpose of the Confrontation

Clause is to ensure an opportunity for cross-examination. In exercising this right, an

accused may cross-examine a witness to reveal possible biases, prejudices, or motives.’

Syllabus Point 1, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995).”).

First, we note that in examining our authority regarding the hearsay

exception for identification purposes, we find that previous identifications have dealt with

33

a witness’s identification of the defendant personally, such as at the scene of a crime. See

Carter, 168 W. Va. 90, 282 S.E.2d 277; Spence, 182 W. Va. 472, 388 S.E.2d 498; Boyd,

167 W. Va. 385, 280 S.E.2d 669 (1981). Second, even if the testimony at issue in the case

at bar is identification evidence within the meaning of Maynard, it was improperly

admitted as identification evidence because the witness, Ms. Rollins, could not testify at

trial and was not subject to cross-examination. Thus, Ms. Rollins’s statements to Mr.

Thompson regarding her bruises were, as Mr. Rollins asserts, hearsay.

In an extensive order entered July 5, 2012, the circuit court concluded that

even if the statements were hearsay, they were subject to the hearsay exceptions set forth

in Rule 803(1) of the West Virginia Rules of Evidence and Rule 804(b)(5) of the West

Virginia Rules of Evidence.

Rule 803(1) states that a “present sense impression”—“A statement

describing or explaining an event or condition made while the declarant was perceiving

the event or condition, or immediately thereafter”—is not excluded by the hearsay rule.

This Court expounded on that rule in syllabus point 4 of Phillips, 194 W. Va. 569, 461

S.E.2d 75:

It is within a trial court’s discretion to admit an out-of­
court statement under Rule 803(1), the present sense
impression exception, of the West Virginia Rules of Evidence
if: (1) The statement was made at the time or shortly after an
event; (2) the statement describes the event; and (3) the event

34
 giving rise to the statement was within a declarant’s personal
knowledge.

The Court explained the history and purpose of the present sense impression exception:

The present sense impression exception is an
outgrowth of the common law res gestae (a Latin phrase
meaning “things done”) exception and a cousin to the excited
utterance exception embodied in Rule 803(2) of the Rules of
Evidence. See T.P. Hardman, Spontaneous Exclamations v.
Res Gestae, 25 W. Va. L.Q. 341 (1918). The res gestae
exception was an umbrella exception that permitted trial
courts to admit assorted spontaneous extrajudicial statements
if there was contemporaneity between the act established and
the declarations, “precluding the reflection that gives rise to
falsehood.” Reynolds v. W.T. Grant Co., 117 W.Va. 615, 620,
186 S.E. 603, 605 (1936); State v. Coram, 116 W.Va. 492,
182 S.E. 83 (1935); Thompson v. Updegraff, 3 W.Va. 629
(1869); Beckwith v. Mollohan, 2 W.Va. 477 (1868).

Phillips, 194 W. Va. at 576, 461 S.E.2d at 82.

The circuit court justified the admission of Ms. Rollins’s allegations of

abuse under Rule 803(1) as follows: “Teresa Rollins made the challenged statements

shortly after the occurrence of the incidents of domestic violence, as evidenced by the

bruises visible on her body, when she was explaining her statements. As such, the

proximity in time is sufficient to reduce the hearsay dangers of faulty memory or

insincerity.”

With regard to its finding that the domestic violence statements were

subject to the hearsay exception set forth in Rule 803(1), we do not believe that such

35

statements by Ms. Rollins constitute present sense impressions. No testimony was

presented at the in camera hearing indicating that Ms. Rollins’s assertions of domestic

violence were made contemporaneously with the bruising so as to “preclude the

reflection that gives rise to falsehood.” Mr. Rollins aptly points out in his brief that

bruises may be visible for days or weeks, and in no way did the existence of bruises on

Ms. Rollins’s body—without accompanying testimony as to when they were inflicted—

indicate that she received those bruises within the timeframe contemplated in Rule

803(1).

However, the circuit court also relied on the hearsay exception set forth in

Rule 804(b)(5), in its determination that the statements by Ms. Rollins were admissible:

(b) Hearsay Exceptions. The following are not
excluded by the hearsay rule if the declarant is unavailable as
a witness:
....
(5) Other Exceptions. A statement not specifically
covered by any of the foregoing exceptions but having
equivalent circumstantial guarantees of trustworthiness, if the
court determines that (A) the statement is offered as evidence
of a material fact; (B) the statement is more probative on the
point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice
will be best served by admission of the statement into
evidence. However, a statement may not be admitted under
this exception unless the proponent of it makes known to the
adverse party, sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare to
meet it, the proponent’s intention to offer the statement and
the particulars of it, including the name and address of the
declarant.

36

The circuit court reasoned:

It is undisputed that Teresa Rollins is unavailable. . . .
The [c]ourt finds that the statements are trustworthy as they
are documented by the photographs and the similar testimony
of two, unrelated witnesses [Mr. Thompson and Regina
Lucente].8 Additionally, the statements are being “offered as
evidence of a material fact”, namely for identification of the
source of the bruises shown in the photographs. As the only
evidence that could identify the bruises shown in the
photographs, the statements are certainly “probative on the
point for which” they are offered. Finally, the interests of
justice will be best served by admission of the statements into
evidence.

(Footnote added).

With regard to the hearsay exception in Rule 804(b)(5), we have held:

Under the requirements of the Confrontation Clause
contained in the Sixth Amendment to the United States
Constitution, evidence offered under the residual hearsay
exceptions contained in Rule 803(24) and Rule 804(b)(5) of
the West Virginia Rules of Evidence is presumptively
unreliable because it does not fall within any firmly rooted
hearsay exception, and, therefore, such evidence is not
admissible. If, however, the State can make a specific
showing of particularized guarantees of trustworthiness, the
statements may be admissible. In this regard, corroborating
evidence may not be considered, and it must be found that the
declarant’s truthfulness is so clear that cross-examination
would be of marginal utility.

8
In its order, the circuit court stated that, “although not admissible at trial, Regina
Lucente[] test[ifed] that she had witnessed domestic violence between the Defendant and
Teresa in the past.”

37

Syl. pt. 6, State v. James Edward S., 184 W. Va. 408, 400 S.E.2d 843 (1990), overruled

on other grounds by State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006).9 In

James Edward S., the Court referred to the United States Supreme Court’s decision in

Idaho v. Wright, 497 U.S. 805 (1990), to explain the meaning of “particularized

guarantee of trustworthiness”:

As to what constitutes a particularized guarantee of
trustworthiness, the [U.S. Supreme] Court stated that this
proof must come from the “totality of the circumstances,” but

9
The Court overruled James Edward S. to comport with the United States
Supreme Court’s demands regarding testimonial hearsay:

To the extent that State v. James Edward S., 184
W.Va. 408, 400 S.E.2d 843 (1990), State v. Mason, 194
W.Va. 221, 460 S.E.2d 36 (1995), and State v. Kennedy, 205
W.Va. 224, 517 S.E.2d 457 (1999), rely upon Ohio v.
Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)
(overruled by Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004)) and permit the
admission of a testimonial statement by a witness who does
not appear at trial, regardless of the witness’s unavailability
for trial and regardless of whether the accused had a prior
opportunity to cross-examine the witness, those cases are
overruled.

Syl. pt. 7, Mechling, 219 W. Va. 366, 633 S.E.2d 311.

Despite Mr. Rollins’s position to the contrary, the statements in question are not
testimonial. The Court does “not perceive that Crawford’s largely unexplored ban on
‘testimonial hearsay’ that has not been tested by cross-examination extends to the
statements to non-official and non-investigatorial witnesses, made prior to and apart from
any governmental investigation.” State v. Ferguson, 216 W. Va. 420, 423, 607 S.E.2d
526, 529 (2004). The statements in this case were made to Mr. Thompson, a non-official
and non-investigatorial witness, and the statements were not made in conjunction with a
governmental investigation.

38

 these circumstances “include only those that surround the
making of the statement and that render the declarant
particularly worthy of belief.” . . . It went on to point out that
the trustworthiness of the out-of-court statement must be so
apparent from the relevant circumstances that “cross­
examination would be of marginal utility.” . . . If these very
stringent conditions are met, then the statement has sufficient
indicia of reliability to be admitted.

James Edward S., 184 W. Va. at 414–15, 400 S.E.2d at 849–50 (internal citations to

Wright omitted).

Upon careful review of the circuit court’s analysis, we find that although

the circuit court was incorrect in its reliance upon Rule 803(1) (“present sense

impression”), the circuit court nevertheless correctly determined that the evidence at issue

falls under the hearsay exception in Rule 804(b)(5). Furthermore, because the circuit

court established the trustworthiness of the statements, we find that the abuse alleged by

Ms. Rollins through the testimony of Mr. Thompson occurred by a preponderance of the

evidence.

3. Rule 401 and Rule 402

Mr. Rollins contends that all five of the domestic violence incidents to

which Mr. Thompson testified—those acts personally witnessed by him, the photographs

of the bruises on Ms. Rollins’s body, and the alleged statements of Ms. Rollins given

through Mr. Thompson—were too remote in time to the alleged murder to be admissible

pursuant to Rules 401 and 402 of the West Virginia Rules of Evidence and State v. Gray,

39

217 W. Va. 591, 619 S.E.2d 104 (2005). Mr. Rollins asserts that the circuit court did not

properly balance the evidence at issue under Rule 401 and Rule 402.

Rule 401, defines “relevant evidence.” See supra Part III.C.2. Rule 402

discusses the admissibility of relevant evidence: “All relevant evidence is admissible,

except as otherwise provided by the Constitution of the United States, by the Constitution

of the State of West Virginia, by these rules, or by other rules adopted by the Supreme

Court of Appeals. Evidence which is not relevant is not admissible.”

The language of Rules 401 and 402 is clear: There is no requirement in

those rules that evidence must be closely connected in time to an event at issue to be

relevant. Upon our examination of Gray, we find that it is wholly irrelevant to

interpreting the meaning of Rules 401 and 402. Nowhere in the case does the Court

mention Rules 401 or 402. Further, the Court’s discussion of remoteness in that case was

in the context of determining whether a Rule 404(b) prior bad act was part of the res

gestae of the crime charged, not whether the evidence was relevant. Gray, 217 W. Va. at

600, 619 S.E.2d at 113.

With regard to Rules 401 and 402, the circuit court did not abuse its

discretion admitting the domestic violence evidence.

40

 4. Rule 403

Mr. Rollins argues that even if any of the domestic violence evidence is

relevant and otherwise admissible, it should be excluded pursuant to Rule 403 as being

more prejudicial than probative. As we recognized above, trial courts are afforded

discretion in deciding questions of admissibility. In its July 5, 2012, order memorializing

its findings and conclusions in the in camera McGinnis hearing, the circuit court said:

Specifically, the Defendant contends that Teresa Rollins’
death was an accident resulting from a falling tree and that
she was alone at the time of the accident. The State disputes
the Defendant’s scenario and believes that the Defendant
caused Teresa Rollins’ death. As such, the State contends that
the domestic violence endured by Teresa Rollins in 2009 is
relevant to show that her death was not an accident.
Specifically, the State contends that the domestic violence
Teresa Rollins endured in 2009 was an ongoing theme in her
marriage and is highly relevant to prove her murder was
perpetuated without mistake or accident.

The circuit court noted that while there is no standard set of factors that must be

considered when conducting the balancing test set forth in Rule 403, the Court has

recognized certain factors that are relevant:

Although there is no universal agreement among
jurists regarding the factors to be considered by a trial court in
conducting its balancing under Rule 403, there is some
consensus that the following factors are at least relevant: (a)
the need for the evidence, (b) the reliability and probative
force of the evidence, (c) the likelihood that the evidence will
be misused because of its inflammatory effect, (d) the
effectiveness of limiting instructions, (e) the availability of
other forms of proof, (f) the extent to which admission of
evidence will require trial within trial, and (g) the remoteness
and similarity of the proffered evidence to the charged crime.

41
McGinnis, 193 W. Va. at 156 n.11, 455 S.E.2d at 525 n.11. The circuit court carefully

examined each factor set forth in McGinnis:

In the present case, (a) the State argues that the
probative value of the prior incidents of domestic violence is
extremely important for the trier of fact to see the continuous
domestic violence that demonstrates the “absence of mistake
or accident” regarding the murder of Teresa Rollins. Second,
(b) as the evidence will be presented through an eye witness,
photographs and testimony, the Court finds that it is reliable
and highly probative of the relationship between the
Defendant and Teresa Rollins. The Court does acknowledge
that (c) the evidence of prior abuse may be inflammatory, but
finds that it is not being used for any improper purpose.
Additionally, the court will give the required limiting
instruction, and (d) believes that such instruction will be
effective in guiding the jury to only consider the evidence for
purposes of showing that Teresa Rollins’ death was not an
accident.
With respect to other forms of proof, (e) it appears that
there is other evidence to show that Teresa Rollins’ death was
not accidental, but the evidence of prior abuse is the best
proof of the nature of the relationship between the Defendant
and Teresa Rollins. Based on the in camera hearing held by
this Court regarding the evidence of prior abuse, (f) the
admission of the evidence will not require a trial within a
trial, but will only require testimony from . . . Jimmy
Thompson . . . plus admission of the photographs. Finally, (g)
the proffered evidence bears similarities to the crime charged.
. . . This evidence demonstrates the Defendant’s complete
disregard for Teresa Rollins and lack of spousal affection.

(Footnotes omitted). The circuit court concluded that “the evidence of prior abuse to

Teresa Rollins is admissible and may be used to show the absence of accident with

respect to Teresa Rollins’ death.”

42

 In his brief, Mr. Rollins details his reasons for finding error in the circuit

court’s analysis:

As to (a), the need for the evidence was low, as the
State had secured the testimony of April Bailes who testified
at trial that the Appellant admitted to her that he had killed his
wife. As to (b), the reliability of at least three of the five
alleged incidents was low as it was based on inadmissible
hearsay. Regarding (c), the trial court even acknowledged that
the evidence of prior abuse may be inflammatory.
Additionally, as to (d), the standard limiting instruction given
by the Court cannot be considered to be effective, due to the
inflammatory nature of the evidence. As to (e), the trial court
concluded that there was other evidence to show that Teresa
Rollins’ death was not accidental but the evidence of prior
abuse was the best proof. Again, this is even though April
Bailes testified that the Appellant admitted to her that he had
killed his wife. As to (f), admission of this evidence certainly
required a trial within a trial, as multiple witnesses were
called to attack [Mr.] Thompson’s character for truthfulness.
Lastly, as to (g), the alleged acts of prior abuse introduced by
the State in this case range from 3-6 months old and are
unrelated to the alleged murder. As such, they were remote in
time and should have been excluded. To the extent that the
trial court concluded otherwise, it abused its discretion.

(Citations to the appendix record omitted).

Upon our examination of the circuit court’s reasoning and the arguments of

Mr. Rollins, we find that the circuit court did not abuse its discretion in finding that the

domestic violence evidence was more probative than prejudicial pursuant to Rule 403.

5. The evidence was properly admitted

43
 Because we did not discern any error on the part of the circuit court in the

foregoing discussion with regard to the evidence of domestic violence pursuant to

McGinnis, we find that the evidence was properly admitted at trial. Even had we found

any error with regard to this evidence, the outcome of this case would not have been

affected by the inclusion of the evidence because of the unchallenged evidence presented

against Mr. Rollins at trial: (1) Ms. Bailes’s testimony that Mr. Rollins admitted to killing

his wife, (2) Mr. Rollins’s recorded statement to police, (3) evidence of the increased life

insurance policies, and (4) the testimony of the State’s medical expert witnesses who

each claimed that Ms. Rollins’s injuries were not consistent with a tree falling on her.

Had the State never presented the domestic violence evidence, we do not believe that the

jury’s verdict would have been different.

D. Cumulative evidence

Mr. Rollins argues that the circuit court erred by allowing the State to

present the testimony of a third medical expert witness: Dr. Wecht.10 Mr. Rollins submits

that because he had the financial means to present only one medical expert witness to

testify on his behalf, the State’s third expert opinion constituted cumulative evidence that

prejudiced him.

10
Although Mr. Rollins objected below to the circuit court’s decision to allow
more than one of the expert witnesses to testify, on appeal his only objection is to the
circuit court’s decision to allow the testimony of Dr. Wecht.

44

 Dr. Sabet performed the first autopsy on Ms. Rollins. At trial, Dr. Sabet

testified during the State’s case-in-chief that after speaking with representatives of the

State Police, he believed that Ms. Rollins’s injuries were not consistent with being struck

by a falling tree. Dr. Sabet was cross-examined regarding his opinion. Dr. Kaplan also

testified, explaining that he also did not believe that Ms. Rollins’s injuries were

consistent with being struck by a falling tree. Dr. Kaplan had not participated in the first

autopsy, but he reviewed Dr. Sabet’s autopsy findings. Dr. Kaplan was also cross-

examined regarding his opinion.

Additionally, the State presented the testimony of medical expert witness,

Dr. Wecht. Dr. Wecht performed a second autopsy on Ms. Rollins, producing a report of

his findings on May 5, 2012. Dr. Wecht discussed the injuries he viewed on Ms. Rollins’s

body during the autopsy. Like Dr. Sabet and Dr. Kaplan, Dr. Wecht also concluded that

the injuries were not consistent with being struck by a falling tree.

Mr. Rollins objected at trial prior to Dr. Wecht taking the stand, arguing

that Dr. Wecht’s testimony would be cumulative. He did not object to the State

presenting evidence of additional injuries found by Dr. Wecht, but he did object to a third

medical expert witness rendering an opinion that Ms. Rollins’s injuries were not

45

consistent with being struck by a falling tree. The circuit court overruled the objection,

stating:

Well, the issue -- the issue in this case is -- of course,
is the manner and cause of death, and from the beginning, the
forensic pathology reports have been attacked, and the -- and
I -- This is the State’s response and, I guess, in -- to those
attacks; so even though it may be somewhat cumulative, I
think it is probative of the issues in this case so I’ll deny the
motion to -- to limit his testimony.

Rule 403 allows for a trial court to exclude relevant evidence that is more

prejudicial than probative because the evidence constitutes a “needless presentation of

cumulative evidence.” In reviewing a trial court’s decision to admit or exclude evidence

pursuant to Rule 403, we apply an abuse of discretion standard:

“The action of a trial court in admitting or excluding
evidence in the exercise of its discretion will not be disturbed
by the appellate court unless it appears that such action
amounts to an abuse of discretion.” Syllabus point 10, State v.
Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on
other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435,
452 S.E.2d 893 (1994).

Syl. pt. 2, State v. Doonan, 220 W. Va. 8, 640 S.E.2d 71 (2006).

Having reviewed this assignment of error, we conclude that the circuit court

did not abuse its discretion by admitting Dr. Wecht’s testimony. First, Dr. Wecht

performed a second autopsy on Ms. Rollins and made findings during the autopsy that

were different from the findings of Dr. Sabet; Dr. Wecht’s examined the spinal column

46

and spinal cord and made findings on those that Dr. Sabet did not make. Thus, Dr.

Wecht’s testimony was not entirely cumulative. Second, Mr. Rollins’s defense was

premised on the argument that the former governor’s influence pressured Dr. Sabet and

Dr. Kaplan to change their conclusions from “drowning complicated compression

asphyxia” to “asphyxia due to probable strangulation.” Dr. Wecht was not subject to the

influence of the former governor. In that respect, his testimony that Ms. Rollins’s injuries

were not consistent with being struck by a falling tree was necessary to show a

justification for the change in opinion of Dr. Sabet and Dr. Kaplan apart from pressure

from the former governor.

E. Unfair surprise

Mr. Rollins asserts that Dr. Kaplan changed his opinion during his in-court

testimony from the opinion on his most recent report and that this change resulted in

unfair surprise against which he could not adequately defend. The report at issue is the

amended autopsy report prepared by Dr. Sabet, dated July 19, 2010. In that report, Dr.

Kaplan signed his concurrence with Dr. Sabet’s opinion that the manner of death was

“undetermined” and that the cause of death was “asphyxia due to probable strangulation.”

At trial, Dr. Kaplan testified, “The cause of death to a reasonable degree of certainty

given the totality of the information that is now provided to my office is that this is a

homicide . . . .”

47

 No objection was made to the changed opinion at trial. The petitioner did

request a recess following his cross-examination, telling the court, “I need to use the

bathroom pretty badly and was -- You gave us five minutes on Sabet. If we could have

five minutes on him?” The court replied, “Okay. Just go back to the bailiff’s office and

do it, and go -- you can kill two birds with one stone back there.” Following the recess,

the defense did not make any objections or motions with regard to Dr. Kaplan’s changed

testimony. After the conclusion of the trial, the petitioner made a motion for a new trial

on the basis of unfair surprise.

Unfair surprise arguments are premised on discovery Rule 16(1)(E) of the

West Virginia Rules of Criminal Procedure, which states:

Upon request of the defendant, the state shall disclose
to the defendant a written summary of testimony the state
intends to use under Rule 702, 703, or 705 of the Rules of
Evidence during its case in chief at trial. The summary must
describe the witnesses’ opinions, the bases and reasons
therefor, and the witnesses’ qualifications.

The Court has set forth the following standard of review regarding

discovery issues and the evidentiary and procedural rulings of the circuit court:

The West Virginia Rules of Evidence and the West
Virginia Rules of Civil Procedure allocate significant
discretion to the trial court in making evidentiary and
procedural rulings. Thus, rulings on the admissibility of
evidence and the appropriateness of a particular sanction for
discovery violations are committed to the discretion of the
trial court. Absent a few exceptions, this Court will review

48
 evidentiary and procedural rulings of the circuit court under
an abuse of discretion standard.

Syl. pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).

As a threshold matter, we must first establish that Mr. Rollins adequately

preserved the error for appeal. Syllabus point 4 of McDougal states that “[i]n order to

preserve for appeal the claim of unfair surprise as the basis for the exclusion of evidence,

the aggrieved party must move for a continuance or recess.” In McDougal, the Court

addressed the defendant’s failure to provide a discoverable video tape to the plaintiffs in

violation of the discovery rules. The defendant denied the existence of the video tape in

its response to an interrogatory, and the plaintiffs learned of the video tape when the

defendant offered it for admission at trial.

The McDougal trial court allowed the defendant to present the video tape at

trial despite the defendant’s failure to provide the video tape during discovery. With

respect to the trial court’s decision, this Court said:

There can be no doubt the video tape came as a surprise to the
plaintiffs and was therefore “prejudicial” as to the damages
claim. We also find the failure of the defendant to supplement
was not inadvertent, but was willful. At the time of its
admission, the video tape was of substantial practical
importance to the proceedings. On the other hand, as we will
discuss below, the plaintiffs had the ability to cure the
prejudice, but did not avail themselves of those measures.

Id. at 238, 455 S.E.2d at 797. The Court continued:

49

 [W]e find it significant that the plaintiffs failed to exercise
options available to ameliorate or dilute any unfair surprise
resulting from the use of the disputed video tape. The
plaintiffs could have moved for a continuance or sought a
recess to take whatever action was necessary before the trial
continued. Instead, for reasons not fully disclosed to this
Court, the plaintiffs chose to continue with the trial as part of
their strategy.

Id. at 239, 455 S.E.2d at 798.

In the case now before the Court, Mr. Rollins argues that because the

defense requested a recess during Dr. Kaplan’s testimony, he preserved the error for

appeal. We disagree that the act of requesting a recess, alone, preserves an appeal.

McDougal, when read in its entirety, makes clear that some prejudice must be articulable

and that prejudice was uncorrectable despite the request for a continuance or recess. In

this case, assuming that the recess was taken by the defense to, in part, address strategy

for cross-examination of Dr. Kaplan, Mr. Rollins has failed to show that the recess he

requested—and was granted—did not serve to ameliorate any prejudice that may have

resulted from Dr. Kaplan’s changed opinion. The defense specifically requested only a

five minute recess. Had the defense been unable to cure the prejudice during the short

recess it requested, it should have taken additional steps, such as requesting a longer

recess or a continuance.

As the Fourth Circuit Court of Appeals in DeBenedetto v.
Goodyear Tire & Rubber Co., 754 F.2d 512, 518 (4th
Cir.1985), stated where counsel decided not to move for a
continuance, but rather proceed with trial: “They cannot now

50
 be allowed to alter retroactively their trial strategy.” The same
reasoning applies in the instant case.

Id.

We conclude that Mr. Rollins’s decision to proceed with the trial was trial

strategy, and we will not now alter retroactively that strategy. Mr. Rollins has not

preserved the error for appeal. Furthermore, even if the defense was surprised by Dr.

Kaplan’s testimony, we are not persuaded that he would have been unable to properly

question him on cross-examination regarding that testimony. The defense knew that Dr.

Wecht, whose testimony the petitioner argued was cumulative of Dr. Kaplan’s, would

testify that the manner of death was homicide. If the testimony was cumulative as Mr.

Rollins asserts, he would have been capable of dealing with Dr. Kaplan’s changed

opinion by treating it in a similar manner to Dr. Wecht’s.

F. Cumulative effect of errors

Mr. Rollins argues that the cumulative effect of the errors committed by the

circuit court in this case warrants reversal of his conviction. Upon our review of this case,

we did not find error, and so there is no basis for reversal pursuant to this assignment of

error.

IV.

CONCLUSION

51
 For the reasons set forth above, this Court affirms the circuit court’s order

entered December 18, 2012, convicting Mr. Rollins of first degree murder with no

recommendation of mercy.

Affirmed.

52