IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
_____________ FILED
February 21, 2013
No. 11-0915 released at 3:00 p.m.
_____________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
V.
GARY RICHARD BAKER,
Defendant Below, Petitioner
____________________________________________________________________
Appeal from the Circuit Court of Greenbrier County
Honorable Joseph C. Pomponio, Judge
Criminal Action No. 09-F-100
REVERSED AND REMANDED
____________________________________________________________________
Submitted: January 23, 2013
Filed: February 21, 2013
James D. Parmer Patrick Morrissey
Kanawha County Public Defender’s Office Attorney General
Charleston, West Virginia Scott E. Johnson
Attorney for Petitioner Senior Assistant Attorney General
Attorneys for Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.
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
i
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
ii
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).
iii
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,1 and imprisonment for not less than five nor more than
eighteen years upon a conviction for attempted robbery in the second degree.2 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.3 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.4
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,
1
The sentence of life imprisonment was imposed under the recidivist statute,
W. Va. Code § 61-11-18(c) (2000) (Repl. Vol. 2010).
2
The sentences were ordered to run consecutively.
3
Mr. Baker also assigned error to matters involving his recidivist proceeding.
4
While this case was pending, Attorney General Patrick Morrissey was sworn
in and replaced former Attorney General Darrell V. McGraw, Jr. See W. 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.”).
1
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.5
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.6 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.7 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
5
Ms. Smith testified that the robber took $100.00 from her.
6
Mr. Baker lived in Huntington, West Virginia.
7
Ms. Smith only able to identify the robber only as being a white male, six feet
tall, and heavy set. Although there were a surveillance cameras both inside and outside the
store, the images of the robber were not sufficiently clear to make a positive identification.
2
weapon used in the robbery. Mr. Baker eventually was indicted for robbery of Ms. Smith and
attempted robbery of the Subway restaurant.
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 20008 and that he
was on parole at the time the robbery occurred.9 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.10 The jury eventually returned
a verdict finding Mr. Baker guilty of both charges. Subsequent to a recidivist jury trial,11 Mr.
Baker filed this appeal.
8
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.
9
The State also had filed motions to admit the same evidence.
10
Mr. Baker called two defense witnesses during the trial; but he did not testify.
11
The recidivist jury found Mr. Baker had previously been convicted of five
felony offenses.
3
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.
4
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
5
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
6
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”).12 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:
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?
12
The record does not show whether Mr. Baker knew that Mr. Smith did not
own the restaurant at the time of the crimes.
7
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
8
the door” for it to introduce evidence of Mr. Baker’s prior convictions and parole status.13
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.
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, 677
A.2d 734, 742 (N.J. 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.
13
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.”).
9
James, 677 A.2d at 742.14 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.
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.
14
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.
10
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.15
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.16 Rule 404(b) states, in part,
[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. . . .
15
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).
16
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.
11
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 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).
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.
12
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). Morever, 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
13
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.17 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,
[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.
17
“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).
14
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.”).18
18
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, 274 P.3d 509, 513 (Ariz. 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, 19 A.3d 985, 1009 (N.J. 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.
15
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, 817 N.W.2d 277, 291 (Neb. 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
16
[this] type [of] evidence is viewed under the standards of Rules 401-403.”).19 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.
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.20 The State took the position that
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).
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]
19
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.
20
The parole officer was going to testify that she found the pellet pistol in Mr.
Baker’s car, as well as about other matters.
17
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, 557 N.W.2d 858, 863 (Wis. 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
18
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.
19
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
20
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
21
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).21
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.
21
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.
22