State of West Virginia Terry Allen Blevins

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term
______________ FILED
May 20, 2013
No. 11-1014 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

TERRY ALLEN BLEVINS,
Defendant Below, Petitioner

________________________________________

Appeal from the Circuit Court of Mercer County

The Honorable Derek C. Swope, Judge

Case No. 09-F-12-DS

AFFIRMED

________________________________________

Submitted: March 26, 2013

Filed: May 20, 2013

David B. Kelley, Esq. Patrick Morrisey, Esq.
The Kelley Law Firm Attorney General
Bluefield, West Virginia Laura Young, Esq.
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent

The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT

1. “In reviewing challenges to findings and rulings made by a circuit court, we

apply a two-pronged deferential standard of review. We review the rulings of the circuit

court concerning a new trial and its conclusion as to the existence of reversible error under

an abuse of discretion standard, and we review the circuit court’s underlying factual findings

under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl.

Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

2. “‘“Although the ruling of a trial court in granting or denying a motion for

a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on

appeal when it is clear that the trial court has acted under some misapprehension of the law

or the evidence.” Syl. pt. 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d

218 (1976).’ Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va.

624, 499 S.E.2d 846 (1997).” Syl. Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662

(2000).

3. “Widespread publicity, of itself, does not require change of venue, and

neither does proof that prejudice exists against an accused, unless it appears that the

i
prejudice against him is so great that he cannot get a fair trial.” Syl. Pt. 1, State v. Gangwer,

169 W.Va. 177, 286 S.E.2d 389 (1982).

4. “One of the inquiries on a motion for a change of venue should not be

whether the community remembered or heard the facts of the case, but whether the jurors had

such fixed opinions that they could not judge impartially the guilt or innocence of the

defendant.” Syl. Pt. 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

5. “‘To warrant a change of venue in a criminal case, there must be a showing

of good cause therefor, the burden of which rests on the defendant, the only person who, in

any such case, is entitled to a change of venue. The good cause aforesaid must exist at the

time application for a change of venue is made. Whether, on the showing made, a change

of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon

will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.’

Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).” Syl. Pt. 2, State v.

Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

6. “‘Where a person voluntarily and knowingly consents to a search of his

premises, such a search may be conducted in the absence of a search warrant.’ Syllabus

ii
Point 1, State v. Basham, 159 W.Va. 404, 223 S.E.2d 53 (1976).” Syl. Pt. 1, State v.

Hambrick, 177 W.Va. 26, 350 S.E.2d 537 (1986).

7. “In deciding if a consent to search is valid, the trial court must make a

factual determination whether the consenting party possessed the requisite authority over or

relationship to the premises to be searched to justify his allowing the police to conduct a

search.” Syl. Pt. 3, State v. Hambrick, 177 W.Va. 26, 350 S.E.2d 537 (1986).

8. “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).

9. “‘Rulings on the admissibility of evidence are largely within a trial court’s

sound discretion and should not be disturbed unless there has been an abuse of discretion.’

State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).” Syl. Pt. 2, State v. Peyatt, 173

W.Va. 317, 315 S.E.2d 574 (1983).

10. “‘A trial court’s decision regarding the voluntariness of a confession will

not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.’

iii
State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).” Syl. Pt. 1, State v. Jones, 220

W.Va. 214, 640 S.E.2d 564 (2006).

11. “When reviewing a ruling on a motion to suppress, an appellate court

should construe all facts in the light most favorable to the State, as it was the prevailing party

below. Because of the highly fact-specific nature of a motion to suppress, particular

deference is given to the findings of the circuit court because it had the opportunity to

observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s

factual findings are reviewed for clear error.” Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468

S.E.2d 719 (1996).

12. “The function of an appellate court when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, is sufficient to convince a reasonable person

of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proved beyond a reasonable

doubt.” Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

iv
13. “A criminal defendant challenging the sufficiency of the evidence to

support a conviction takes on a heavy burden. An appellate court must review all the

evidence, whether direct or circumstantial, in the light most favorable to the prosecution and

must credit all inferences and credibility assessments that the jury might have drawn in favor

of the prosecution. The evidence need not be inconsistent with every conclusion save that

of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility

determinations are for a jury and not an appellate court. Finally, a jury verdict should be set

aside only when the record contains no evidence, regardless of how it is weighed, from which

the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are

inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461

S.E.2d 163 (1995).

14. “When a criminal defendant undertakes a sufficiency challenge, all the

evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of vantage,

and the viewer must accept all reasonable inferences from it that are consistent with the

verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and

credibility questions in the prosecution’s favor; moreover, as among competing inferences

of which two or more are plausible, the judge must choose the inference that best fits the

prosecution’s theory of guilt.” Syl. Pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613

(1996).

v
15. “Although premeditation and deliberation are not measured by any

particular period of time, there must be some period between the formation of the intent to

kill and the actual killing, which indicates the killing is by prior calculation and design. This

means there must be an opportunity for some reflection on the intention to kill after it is

formed.” Syl. Pt. 5, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

16. “In criminal cases where the State seeks a conviction of first degree

murder based on premeditation and deliberation, a trial court should instruct the jury that

murder in the first degree consists of an intentional, deliberate, and premeditated killing

which means that the killing is done after a period of time for prior consideration. The

duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and

premeditated design varies as the minds and temperaments of people differ and according

to the circumstances in which they may be placed. Any interval of time between the forming

of the intent to kill and the execution of that intent, which is of sufficient duration for the

accused to be fully conscious of what he intended, is sufficient to support a conviction for

first degree murder.” Syl. Pt. 6, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

17. “In determining whether an out-of-court identification of a defendant is

so tainted as to require suppression of an in-court identification a court must look to the

vi
totality of the circumstances and determine whether the identification was reliable, even

though the confrontation procedure was suggestive, with due regard given to such factors as

the opportunity of the witness to view the criminal at the time of the crime, the witness’

degree of attention, the accuracy of the witness’ prior description of the criminal, the level

of certainty demonstrated by the witness at the confrontation, and the length of time between

the crime and the confrontation.” Syl. Pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d

476 (1976).

18. “Most courts have concluded that a photographic array will not be deemed

excessively suggestive as long as it contains some photographs that are fairly representative

of the defendant’s physical features. The fact that some of the photographs are dissimilar to

the defendant’s appearance will not taint the entire array.” Syl. Pt. 6, State v. Harless, 168

W.Va. 707, 285 S.E.2d 461 (1981).

19. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the

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

bars the admission of a testimonial statement by a witness who does not appear at trial, unless

the witness is unavailable to testify and the accused had a prior opportunity to cross-examine

the witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

vii
20. “Although it is a well-settled policy that the Supreme Court of Appeals

normally will not rule upon unassigned or imperfectly assigned errors, this Court will take

cognizance of plain error involving a fundamental right of an accused which is protected by

the Constitution.” Syl. Pt. 4, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

21. “Failure to observe a constitutional right constitutes reversible error unless

it can be shown that the error was harmless beyond a reasonable doubt.” Syl. Pt. 5, State ex

rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

22. “In a criminal case, the burden is upon the beneficiary of a constitutional

error to prove beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.” Syl. Pt. 3, State v. Frazier, 229 W.Va. 724, 735 S.E.2d 727 (2012).

23. “Punishment may be constitutionally impermissible, although not cruel or

unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it

shocks the conscience and offends fundamental notions of human dignity, thereby violating

West Virginia Constitution, Article III Section 5 that prohibits a penalty that is not

proportionate to the character and degree of an offense.” Syl. Pt. 5, State v. Cooper, 172

W.Va. 266, 304 S.E.2d 851 (1983).

viii
Per Curiam:

This is an appeal by Terry Blevins from an order of the Circuit Court of Mercer

County, West Virginia, denying Mr. Blevins’ motion for a new trial subsequent to his

conviction for two counts of first degree murder and one count of first degree arson. Mr.

Blevins received a sentence of two consecutive terms of life in prison without the possibility

of parole for the murders, as well as a sentence of twenty years for the arson, to run

consecutively. Mr. Blevins contends that the trial court committed a multitude of errors, each

of which will be addressed independently below. Subsequent to a thorough review of the

parties’ briefs, arguments, appendix record, and applicable precedent, this Court finds no

error and consequently affirms the order of the circuit court.

I. Factual and Procedural History

At approximately 2:00 p.m. on August 11, 2008, Delores Barton and her

husband, James Barton, were found dead on their property near Princeton, Mercer County,

West Virginia. Mrs. Barton’s body was removed from her burning home by passing

motorists, and Mr. Barton’s body subsequently was found in a locked storage building on the

Bartons’ property. Evidence later introduced at trial indicated that Mr. and Mrs. Barton, both

age seventy-four, had been beaten to death. A baseball bat was located near Mrs. Barton’s

body in the kitchen, and a crowbar and hatchet were located beside Mr. Barton’s body in the

storage building.

During the ensuing investigation of the deaths, police officers learned that the

Bartons’ neighbor, Mr. John Reed, had observed a stranger in the neighborhood at

approximately 9:00 a.m. on the morning of the murders.1 Based upon Mr. Reed’s description

of that individual and his automobile, a silver Hyundai with temporary Virginia registration,

the police were able to locate the vehicle.

When Sergeant Gary W. Woods and Corporal J.J. Ruble of the Mercer County

Sheriff’s Department knocked on the door of the home at which the vehicle was parked, they

noticed a strong odor of drugs. The officers obtained the permission of the renter of the

home, Ms. Brittany Davis,2 to search the home, and the officers thereafter located bags of

marijuana inside. Corporal Ruble arrested Mr. Blevins on a drug charge at approximately

1
Mr. Reed had also observed an unrelated apparently disabled vehicle in front of the
Barton residence two days prior to the murders. Mr. Reed testified that a stranger had arrived
at Mr. Reed’s house on the morning of the murders with the stated intention of inquiring
about that vehicle and whether it had been towed.
2
Ms. Davis was Mr. Blevins’ girlfriend. She rented her home and permitted Mr.
Blevins to reside there with her. Mr. Blevins did not have any legal interest in the property.
Charges of accessory after the fact to murder were dropped against Ms. Davis in exchange
for her cooperation, and the jury was apprised of this fact.

5:45 p.m. on the evening of August 11, 2008,3 and transported him to the Mercer County

Sheriff’s Department in Princeton, West Virginia. While being questioned on the drug

charge, Mr. Blevins initially denied any familiarity with the neighborhood in which the

Bartons lived and stated that he had not been present in the vicinity that day.

At approximately 7:00 p.m. that evening, the Mercer County Sheriff’s

Department assembled a photo array, which included a photo of Mr. Blevins. Mr. Reed

thereafter identified Mr. Blevins as the stranger he had seen and spoken with near the Barton

home earlier that morning. When Mr. Blevins learned that he had been identified by Mr.

Reed, he admitted that he was in the Bartons’ neighborhood but denied any knowledge of

their deaths.

Captain M.L. Gills of the Mercer County Sheriff’s Department, the lead

investigator of the murders, informed Mr. Blevins of his Miranda4 rights at approximately

10:40 p.m. Thereafter, Mr. Blevins agreed to take a polygraph test, and Sergeant Christopher

C. Smith was contacted at approximately 10:30 or 11:00 p.m. to administer the test. Sergeant

3
Mr. Blevins was charged with one count of possession with intent to deliver
marijuana. This drug charge was severed from the murder charges and is not at issue in this
appeal. Additionally, one count of burglary with which Mr. Blevins was charged was also
dismissed at the close of evidence at trial and was not presented to the jury.
4
See Miranda v. Arizona, 384 U.S. 436 (1966) (explaining that law enforcement
officers must inform suspects of certain fundamental constitutional rights prior to initiating
custodial interrogation).

Smith’s first attempt to administer the polygraph test began at approximately 1:08 a.m. on

August 12, 2008, and Mr. Blevins was provided with his Miranda rights again at that time.

During that polygraph examination, Mr. Blevins asked if he could take a break to rest. The

officers honored that request, and Corporal Ruble began transporting Mr. Blevins to the

Bluefield City Jail to allow him to rest there. While in transit, Mr. Blevins told Corporal

Ruble that he had seen two deceased persons and requested that he be permitted to speak

with investigators again.

Upon his return to Princeton, Mr. Blevins was again advised of his Miranda

rights at approximately 3:35 a.m., and he proceeded to take a polygraph examination. Mr.

Blevins also informed officers that he had witnessed another individual, Justin Stacy, kill the

victims.5 Between 4:00 and 5:00 a.m., Detective Gills attempted to obtain a search warrant

for Ms. Davis’ home. Although the initial request was denied, the request was subsequently

granted by the circuit court after Detective Gills inserted a handwritten line on the warrant

5
According to the State’s brief, some of this information concerning the alleged
existence of a “Justin Stacy” was apparently elicited without any additional discussion of
constitutional rights and without execution of another Miranda waiver. Prior to trial, the
State agreed that Mr. Blevins had made certain statements about seeing a Justin Stacy kill the
victims which might not have been covered by any Miranda warning. Consequently, those
statements were deemed inadmissible in the State’s case in chief. The statements, however,
were ultimately admitted after Mr. Blevins’ counsel broached the notion of Justin Stacy as
a possible suspect during his cross examination of police witnesses. Thus, the circuit court
thereafter permitted the State to examine Captain Gills regarding the Justin Stacy allegations
made by Mr. Blevins. No one named Justin Stacy or fitting the description as provided by
Mr. Blevins was ever identified.

indicating that Mr. Blevins “has confessed to being at the residence and had seen the two

victims dead at the residence.”

The warrant notwithstanding, Ms. Davis again gave the investigators

permission to search of her home, and the search6 of her residence was conducted at 5:45

a.m. on August 12, 2008. During the search, the officers located a set of keys fitting the

locks of the Bartons’ automobiles and the padlock on the storage building in which Mr.

Barton’s body had been found. The officers also seized ashes from a burn pile in the

backyard. Mr. Blevins was arraigned on the murder charges at approximately 1:00 p.m. on

August 12, 2008.

During police interviews with Ms. Davis, she informed investigators that Mr.

Blevins had returned to her home with blood on his face on the day of the murders. Ms.

Davis also stated that Mr. Blevins had immediately burned his clothing in the backyard of

her home. Further, Ms. Davis indicated that Mr. Blevins had telephoned her from what she

believed to be the Bartons’ home.

6
It is important to note that Ms. Davis had provided two separate consents to search
her home, as discussed in section III B of this opinion. The reason for seeking a search
warrant in addition to the permission granted by Ms. Davis is unclear from the record.
Detective Gills explained during a suppression hearing that he had been in the process of
obtaining the search warrant when Ms. Davis provided her consent to search her home.

Trial in this matter was conducted from April 13 to April 15, 2010. Mr.

Blevins was convicted on two counts of first degree murder and one count of first degree

arson. His motion for a new trial was denied subsequent to a May 27, 2010, hearing, and he

now appeals to this Court.

II. Standard of Review

While many of the alleged errors raised by Mr. Blevins in this appeal are

subject to particular standards of review, which we set forth in connection with our

discussion of each of those alleged errors herein, this Court also recognizes general standards

for reviewing findings and rulings made by a trial court, as follows:

In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000); see also Tennant v. Marion

Health Care Found., 194 W.Va. 97, 459 S.E.2d 374 (1995).

Additionally, because this matter is on appeal from the circuit court’s order

denying Mr. Blevins’ motion for a new trial, this Court reasserts its standard of review

applicable to appellate review of the denial of a motion for new trial, as follows:

“‘Although the ruling of a trial court in granting or
denying a motion for a new trial is entitled to great respect and
weight, the trial court’s ruling will be reversed on appeal when
it is clear that the trial court has acted under some
misapprehension of the law or the evidence.’ Syl. pt. 4, Sanders
v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218
(1976).” Syllabus point 1, Andrews v. Reynolds Memorial
Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

Syl. Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

III. Discussion

Mr. Blevins presents assignments of error challenging the following general

issues: proper venue; improper search of Ms. Davis’ home; voluntariness of Mr. Blevins’

statements; prompt presentment; evidence of telephone conversations from jail; introduction

of certain other evidence; insufficiency of evidence; tainted photographic array; violation of

the Confrontation Clause; violation of proportionality principles in the imposition of

sentence; and inadequacy of Mr. Blevins’ counsel’s objection to the Confrontation Clause

violation. This Court will address each of those issues independently below.

A. Venue

In challenging the circuit court’s decision to permit the trial to be held in the

Circuit Court of Mercer County, Mr. Blevins contends that a hostile sentiment existed within

the community from which the jury pool was drawn. He suggests that many potential jurors

had particularized knowledge of the accusations against him, based upon newspaper reports

and the general sentiment within the community.

A hearing on Mr. Blevins’ motion for a change of venue was conducted on

October 27, 2009. As evidence to support his motion, Mr. Blevins’ counsel submitted

newspaper clippings, as well as the results of a public opinion survey commissioned by the

defense and authorized by the circuit court. Mr. Blevins claims that the survey indicated that

only 40% of the 206 people surveyed could presume innocence, and 79% were

knowledgeable of the media coverage of the murders. Mr. Blevins also introduced evidence

that one individual had heard a local radio talk show program suggesting that the murderer

should be hanged.

The State responded to Mr. Blevins’ assertions on his motion for change of

venue by explaining that the testimony of Mr. Blevins’ expert on the public opinion poll

actually indicated that 60% of those surveyed could presume innocence. The State also

argued that a majority of those surveyed indicated that Mr. Blevins could receive a fair trial

in Mercer County.

In resolving the venue issue, the circuit court observed that the appropriate

inquiry on a motion for change of venue is not whether prospective jurors had ever heard of

a case, but rather whether they had such fixed opinions that impartiality was impossible. The

circuit court suggested the use of a jury questionnaire to assess the likelihood that an

impartial jury could be selected. Thus, a jury questionnaire was developed and agreed upon

by both prosecution and defense. Subsequent to the removal of 28 of the 113 potential jurors

based upon their responses to that jury questionnaire, Mr. Blevins did not take exception to

the circuit court’s finding that the impaneled jury was a competent and impartial one capable

of providing Mr. Blevins with a fair trial. The circuit court noted that it had excused those

venire member about whom Mr. Blevins expressed reservations.

While this Court is mindful of the admonition that “influences, even though

silent, may so permeate a community as to make their impression upon the jury,” this Court

is also cognizant of the fact that extensive publicity does not necessarily require a change in

venue. State v. Weisengoff, 85 W.Va. 271, 278, 101 S.E. 450, 453 (1919). In syllabus point

one of State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982), this Court stated that

“[w]idespread publicity, of itself, does not require change of venue, and neither does proof

that prejudice exists against an accused, unless it appears that the prejudice against him is so

great that he cannot get a fair trial.”

Similarly, as the circuit court observed in ruling on the motion for a change of

venue, this Court explained in syllabus point three of State v. Derr, 192 W.Va. 165, 451

S.E.2d 731 (1994), that “[o]ne of the inquiries on a motion for a change of venue should not

be whether the community remembered or heard the facts of the case, but whether the jurors

had such fixed opinions that they could not judge impartially the guilt or innocence of the

defendant.” A motion for a change of venue should be granted when it is shown that there

is a present hostile sentiment against the accused extending throughout the entire county. See

Syl. Pt. 1, State v. Goodmon, 170 W.Va. 13, 290 S.E.2d 260 (1981).

Moreover, a ruling on a motion for a change of venue is within the discretion

of the circuit court and will not be disturbed unless such discretion has been abused.

Syllabus point two of State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983), crystallized

that point as follows:

“To warrant a change of venue in a criminal case, there
must be a showing of good cause therefor, the burden of which
rests on the defendant, the only person who, in any such case, is
entitled to a change of venue. The good cause aforesaid must
exist at the time application for a change of venue is made.
Whether, on the showing made, a change of venue will be
ordered, rests in the sound discretion of the trial court; and its
ruling thereon will not be disturbed, unless it clearly appears that
the discretion aforesaid has been abused.” Syl. pt. 2, State v.
Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).

Upon review by this Court, it appears that the circuit court exercised its

discretion appropriately in determining that a change of venue was not necessary and that Mr.

Blevins could receive a fair trial in the Circuit Court of Mercer County. The circuit court’s

efforts to fairly evaluate the issue of potential bias against Mr. Blevins were evident in its

authorization of the public opinion survey, its extensive discussions and hearing regarding

the methodology and results of that survey, and its utilization of a juror questionnaire to

ascertain the degree of prejudice existing in each potential juror. The evidence presented by

Mr. Blevins does not indicate that there existed such a pervasive, hostile sentiment against

him that it was impossible, or even particularly difficult, to impanel an impartial jury. We

find no merit in Mr. Blevins’ arguments and affirm the circuit court’s determinations on this

issue.

B. Consent to Search and Search Warrant

Mr. Blevins challenges the second search of Ms. Davis’ home on two distinct

grounds. First, he asserts that the consent provided by Ms. Davis to search her home was

coerced. Second, he asserts that the warrant to search the home was improperly obtained.7

Thus, he argues that neither the consent nor the search warrant was valid and that the articles

obtained in the search, most prominently the remnants of burned clothing and the keys to the

Bartons’ storage building and vehicles, should have been suppressed. Counsel for Mr.

7
It is not entirely clear under our precedents whether Mr. Blevins has standing to
challenge the voluntariness of Ms. Davis’ consent, since the residence searched was rented
by Ms. Davis. See State v. Abdelhag, 214 W.Va. 269, 276 & n.1, 588 S.E.2d 647, 654 & n.1
(2003) (Davis, J., concurring) (collecting cases involving search of hotel room occupied by
defendant). However, inasmuch as the State apparently did not raise the question of standing
in the proceedings below and has not raised it on appeal, we deem the issue waived and will
consider Mr. Blevins’ arguments on the merits.

Blevins filed a motion to suppress in November 2009, and the circuit court denied that

motion after a hearing.

With regard to the consent twice given by Ms. Davis to search her home, Mr.

Blevins contends that such consent was not voluntary. Rather, Mr. Blevins argues that the

consent was coerced by Ms. Davis’ cousin, Corporal Steven A. Sommers of the Mercer

County Sheriff’s Department. At the hearing on the motion to suppress, Ms. Davis testified

that she and Mr. Blevins lived together in a home she rented. She further testified that on the

afternoon of August 11, 2008, she provided unqualified permission for several police officers

to search her residence. She also indicated that she gave permission for a second search of

her residence. She explained that although she and Corporal Sommers did discuss the case,

he did not pressure her into providing permission to search her home.

This Court has consistently held that an occupant of a home may consent to a

search of that home. In syllabus point one of State v. Hambrick, 177 W.Va. 26, 350 S.E.2d

537 (1986), this Court explained that “‘[w]here a person voluntarily and knowingly consents

to a search of his premises, such a search may be conducted in the absence of a search

warrant.’ Syllabus Point 1, State v. Basham, 159 W.Va. 404, 223 S.E.2d 53 (1976).” As this

Court observed in syllabus point three of Hambrick, a factual determination must be made

regarding the consenting party’s authority over the premises to be searched. “In deciding if

a consent to search is valid, the trial court must make a factual determination whether the

consenting party possessed the requisite authority over or relationship to the premises to be

searched to justify his allowing the police to conduct a search.” Id. at 26, 350 S.E.2d at 538,

syl. pt. 3. Based upon the evidence on this issue, particularly Ms. Davis’ testimony regarding

her consent, this Court finds no abuse of discretion in the lower court’s determination that

Ms. Davis’ consent was voluntarily provided to police officers and that Ms. Davis had the

requisite authority over the premises searched.

In his challenge to the validity of the search warrant, Mr. Blevins asserts that

Detective Gills obtained the search warrant illegally8 by including a reference, in Detective

Gills’ own handwriting, to the effect that Mr. Blevins had “confessed to being at the

[victims’] residence and had seen the two victims dead at the residence.” Although Mr.

Blevins contends that his statement regarding being at the residence was obtained only after

excessive and arduous interrogation, the circuit court found that all of Mr. Blevins’

inculpatory statements, including the one utilized in obtaining the search warrant, were

8
In syllabus point one of State v. Hall, 171 W.Va. 212, 298 S.E.2d 246 (1982), this
Court explained as follows:

“To constitute probable cause for the issuance of a search warrant, the
affiant must set forth facts indicating the existence of criminal activities which
would justify a search and further, if there is an unnamed informant, sufficient
facts must be set forth demonstrating that the information obtained from the
unnamed informant is reliable.” Syllabus point 1, State v. Stone, 165 W.Va.
266, 268 S.E.2d 50 (1980).

voluntarily made and admissible at trial. Moreover, it is clear that the search warrant was

ultimately unnecessary because Ms. Davis twice consented to the search of her residence.

Upon review by this Court, we find no abuse of discretion in the circuit court’s

finding that the evidence obtained as a result of the search of Ms. Davis’ home was

admissible at trial. Ms. Davis was unquestionably the individual having dominion over the

property in question, and she voluntarily consented to the search on two occasions. While

she may have elevated her level of cooperation with the investigation in order to remain free

of suspicion of involvement with her boyfriend, there is no credible evidence that her consent

was coerced by her cousin, Corporal Sommers, or any other individual involved in this

investigation. In light of Ms. Davis’ consent, this Court further affirms the circuit court’s

finding that any irregularities in the method of obtaining the search warrant did not constitute

error requiring suppression of the items seized in the search.

C. Mr. Blevins’ Statement

Mr. Blevins contends that his statement that he was present at the Barton

residence and observed two dead victims at the scene should not have been admitted at trial.

He maintains that such statement was made only after hours of excessive interrogation and

following a specific request to cease questioning to allow him time to rest. As referenced

above, the record reveals that Mr. Blevins was initially arrested for possession of marijuana

with intent to deliver at approximately 5:45 p.m. on the afternoon of August 11, 2008.

According to the testimony of the investigating officers, Miranda warnings were

administered to Mr. Blevins, and he subsequently agreed to take a polygraph examination.

Miranda warnings were again administered to him prior to that examination. Upon

becoming tired and requesting a period of rest, officers honored Mr. Blevins’ request for

respite and began transporting him to Bluefield City Jail. In route to that facility, Mr. Blevins

made statements about seeing the deceased victims, and according to the testimony of police

officers, Mr. Blevins requested that he be returned to Princeton to speak to investigators.

Upon Mr. Blevins’ return, Sergeant Smith again reviewed the Miranda rights and waiver

form.

Evidentiary rulings are reviewed by this Court under an abuse of discretion

standard. As this Court stated in syllabus point four of State v. Rodoussakis, 204 W.Va. 58,

511 S.E.2d 469 (1998), “[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.” See also

Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983) (“‘Rulings on the

admissibility of evidence are largely within a trial court’s sound discretion and should not be

disturbed unless there has been an abuse of discretion.’ State v. Louk, 171 W.Va. 639, 301

S.E.2d 596, 599 (1983).”).

With specific regard to the voluntariness of a statement such as the one made

by Mr. Blevins, this Court has held that “‘[a] trial court’s decision regarding the

voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly

against the weight of the evidence.’ State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).”

Syl. Pt. 1, State v. Jones, 220 W.Va. 214, 640 S.E.2d 564 (2006). Moreover, as this Court

explained in syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996),

[w]hen reviewing a ruling on a motion to suppress, an
appellate court should construe all facts in the light most
favorable to the State, as it was the prevailing party below.
Because of the highly fact-specific nature of a motion to
suppress, particular deference is given to the findings of the
circuit court because it had the opportunity to observe the
witnesses and to hear testimony on the issues. Therefore, the
circuit court’s factual findings are reviewed for clear error.

Additionally, any allegations of police coercion in obtaining a statement and questions of

whether a statement was voluntary are to be determined from a review of the totality of the

circumstances. State v. Milburn, 204 W.Va. 203, 210, 511 S.E.2d 828, 835 (1998).

In the case sub judice, Mr. Blevins challenges the voluntary nature of his

waiver of his Miranda warnings and subsequent inculpatory statements. He attempted to

elicit evidence during trial substantiating his claim that he was so fatigued during the police

questioning that he was incapable of effectively waiving his rights.9 Beyond these broad

9
Mr. Blevins also contends that he should have been promptly presented to a
magistrate on the drug charges, which are not a subject of this appeal. West Virginia Code
(continued...)

assertions by Mr. Blevins, however, minimal evidence exists to support a finding that his

level of fatigue was significant enough to render it impossible for him to make a knowing

and voluntary waiver of his rights. The officers who interviewed him and advised him of his

Miranda rights testified that he appeared perfectly aware and cognizant of the situation and

did not appear to be overly tired or impaired in any manner. When he requested a break from

questioning, his transport to Bluefield City Jail was arranged to allow a rest period. As noted

above, Corporal Ruble testified that Mr. Blevins thereafter requested that he be returned to

Princeton for additional discussion with investigators.

This Court finds no error in the circuit court’s conclusion that Mr. Blevins

freely and voluntarily waived his Miranda rights on at least three separate occasions and

agreed to speak to the police investigators. This Court finds Mr. Blevins’ argument that his

level of fatigue rendered it impossible to effectively waive his rights wholly without merit.

9
(...continued)
§ 62–1–5(a)(1) (2010) provides: “An officer making an arrest under a warrant issued upon
a complaint . . . , shall take the arrested person without unnecessary delay before a magistrate
of the county where the arrest is made.” Further, Mr. Blevins contends that any statements
he made after he should have been presented to a magistrate for arraignment on the drug
charges should have been suppressed. Mr. Blevins’ argument on the prompt presentment
issue is essentially another method of asserting that his statements regarding the murders
were not admissible. We find this argument unpersuasive. Mr. Blevins was arraigned on the
drug charge at approximately 9:00 or 9:30 a.m. on the day following his arrest, and a
magistrate was not available after 10:00 p.m. on the evening of the alleged crimes. See State
v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998) (holding that delay in presenting
defendant to magistrate did not violate prompt presentment rule where delay was for purpose
of questioning defendant about crime for which he was not arrested).

Moreover, the circuit court thoroughly addressed Mr. Blevins’ arguments during the

suppression hearing, giving particular attention to the time sequence regarding the provision

of Miranda rights and the admissibility of Mr. Blevins’ statements. Upon review by this

Court, we find that his statements were properly admitted at trial.

D. Evidentiary Rulings Regarding Admissibility of Telephone
Conversations from Jail; Alleged Murder Weapons; and Keys Located During Search

As referenced above in this Court’s evaluation of the voluntariness of Mr.

Blevins’ statement, this Court has consistently utilized the following standard of review of

a trial court’s ruling on a motion to suppress:

When reviewing a ruling on a motion to suppress, an
appellate court should construe all facts in the light most
favorable to the State, as it was the prevailing party below.
Because of the highly fact-specific nature of a motion to
suppress, particular deference is given to the findings of the
circuit court because it had the opportunity to observe the
witnesses and to hear testimony on the issues. Therefore, the
circuit court’s factual findings are reviewed for clear error.

Lacy, 196 W.Va. at 107, 468 S.E.2d at 722, syl. pt. 1; see also Syl. Pt. 3, State v. Stuart, 192

W.Va. 428, 452 S.E.2d 886 (1994) (“On appeal, legal conclusions made with regard to

suppression determinations are reviewed de novo. Factual determinations upon which these

legal conclusions are based are reviewed under the clearly erroneous standard. In addition,

factual findings based, at least in part, on determinations of witness credibility are accorded

great deference.”).

Pursuant to Rule 403 of the West Virginia Rules of Evidence, relevant

evidence “may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice . . . .” This Court has repeatedly held that a trial court’s decision that the

probative value of evidence is not substantially outweighed by its prejudicial effect is

reviewed only for abuse of discretion. Derr, 192 W.Va. at 168, 451 S.E.2d at 734, syl. pt.

10 (holding, 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.”); see also Gable

v. Kroger Co., 186 W.Va. 62, 66, 410 S.E.2d 701, 705 (1991) (“Rules 402 and 403 of the

West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but

to exclude any evidence the probative value of which is substantially outweighed by the

danger of unfair prejudice to the defendant. Such decisions are left to the sound discretion

of the trial judge . . . .”).

With regard to the admissibility of recorded phone conversations between Mr.

Blevins and Ms. Davis while he was in the Southern Regional Jail, Mr. Blevins contends that

the recording of these conversations was a violation of his privacy and that the circuit court’s

decision to allow their introduction into evidence was prejudicial. Although Mr. Blevins did

not make any direct admissions of guilt during these phone conversations, he did instruct his

girlfriend, Ms. Davis, to make sure that all his clothing had fully burned in the backyard burn

pile so that “they don’t have no solid pieces of nothing.” He also requested that she dispose

of a camera at a location other than the house, and he asked Ms. Davis to locate his black bag

and the keys he had “picked up.”

During a circuit court hearing on the admissibility of the contents of the phone

calls in question, jail officials testified that every inmate is given a handbook which contains

a specified warning that all telephone calls, except to attorneys, may be monitored and

recorded. Additionally, signs posted near each telephone warn inmates that calls will be

monitored and recorded. On the telephone call itself, a recorded voice states that calls are

monitored and recorded. The circuit court determined that Mr. Blevins knew he was being

recorded and that no violation of privacy occurred in this regard. The circuit court also

concluded that the information provided in the exchange between Mr. Blevins and Ms. Davis

in the telephone conversations was more probative than prejudicial. This Court’s review of

the record reveals no abuse of discretion in the circuit court’s decision to permit introduction

of the telephone conversations. The probative value of the telephone conversations, as

indicative of Mr. Blevins’ overt attempts to conceal evidence of his involvement with the

murders, was not substantially outweighed by the danger of unfair10 prejudice. See W.Va.

R. Evid. 403.

Mr. Blevins also asserts that the alleged murder weapons and related

photographs should not have been admitted at trial.11 He contends that their probative value

was substantially outweighed by the danger of unfair prejudice. As the State points out,

however, Mr. Blevins did not object to introduction of the weapons found at the scene. Thus,

this issue was not properly preserved as an assignment of error. See Syl. Pt. 4, State v.

Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) (“This Court will not consider an error which

is not properly preserved in the record nor apparent on the face of the record.”).12

10
In weighing the probative value and the danger of unfair prejudice, it is imperative
to note that the purpose of Rule 403 is not to exclude all evidence that results in prejudice
to a defendant. It is the danger of unfair prejudice to which a reviewing court must be
attuned. Under Rule 403, “[u]nfair prejudice does not mean damage to a defendant’s case
that results from the legitimate probative force of the evidence; rather it refers to evidence
which tends to suggests [sic] decision on an improper basis.” State v. LaRock, 196 W.Va.
294, 312, 470 S.E.2d 613, 631 (1996) (citation omitted).
11
The State maintains that these items were properly introduced during the course of
police testimony about the crime scene and the items found near the bodies. There was no
DNA evidence found on these weapons linking Mr. Blevins to the crime scene.
12
In his reply brief, Mr. Blevins raises an issue concerning the chain of custody of the
keys found in Ms. Davis’ home. Captain Gills testified that the keys were located in Ms.
Davis’ home, and it was thereafter determined that the keys did indeed open the Bartons’
automobiles and storage building The keys were returned to the victims’ family to have
additional car keys made from those keys. The State indicated during oral argument that the
testing of the keys was conducted prior to giving the keys back to the victims’ family for the
making of additional keys. This Court finds that the custody of the keys subsequent to the
(continued...)

E. Insufficiency of Evidence and Motion to Dismiss

Mr. Blevins asserts that the circuit court erred in failing to grant his motion to

dismiss based upon insufficiency of the evidence and in subsequently permitting the jury to

convict him of two counts of first degree murder based upon evidence he deems insufficient

to support such convictions. Specifically, Mr. Blevins contends that insufficient evidence

of malice, premeditation, and deliberation was introduced to support the convictions for first

degree murder.

In response, the State catalogs the evidence against Mr. Blevins and argues that

the evidence was sufficient to justify the jury’s decision to convict Mr. Blevins on two counts

of first degree murder. The State emphasizes the eyewitness testimony placing Mr. Blevins

at the scene, as well as Mr. Blevins’ inconsistent explanations regarding his presence at the

victims’ home.13 Additionally, although Mr. Blevins claimed that a “Justin Stacy” had

committed the murders, Mr. Blevins provided conflicting descriptions of this person, and no

12
(...continued)
time it was determined that they fit the Bartons’ automobiles and storage building is
irrelevant to this appeal, and Mr. Blevins’ contentions in this regard are without merit.

13
Mr. Blevins first claimed that he was unfamiliar with the neighborhood of Kegley,
in which the Bartons resided. Subsequently, Mr. Blevins claimed he was at the residence to
speak with Mrs. Barton about repairing a water pump or hot tub. He also claimed he was
there to help a friend start her car.

such individual was ever located or determined to exist. The State also emphasizes the fact

the the Bartons’ automobile keys and storage building keys were found at the residence in

which Mr. Blevins lived. Further, the jury heard testimony that Mr. Blevins had blood on his

face upon returning to his girlfriend’s home, that he burned his clothing, and that he

repeatedly asked his girlfriend to destroy various pieces of evidence.

With regard to the standard of review applied to challenges to the sufficiency

of the evidence, this Court has explained as follows:

The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a reasonable
person of the defendant’s guilt beyond a reasonable doubt. Thus,
the relevant inquiry is whether after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proved
beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995) (emphasis supplied). This

Court also elaborated on that issue in syllabus point three of Guthrie, as follows:

A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the
jury might have drawn in favor of the prosecution. The evidence
need not be inconsistent with every conclusion save that of guilt
so long as the jury can find guilt beyond a reasonable doubt.
Credibility determinations are for a jury and not an appellate
court. Finally, a jury verdict should be set aside only when the

record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt.
To the extent that our prior cases are inconsistent, they are
expressly overruled.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3 (emphasis supplied).14

In syllabus point two of State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613

(1996), this Court emphasized the necessity to view all evidence in the light most favorable

to the prosecution and to resolve all evidentiary conflicts in favor of the prosecution. That

syllabus point provides as follows:

When a criminal defendant undertakes a sufficiency
challenge, all the evidence, direct and circumstantial, must be
viewed from the prosecutor’s coign of vantage, and the viewer
must accept all reasonable inferences from it that are consistent
with the verdict. This rule requires the trial court judge to
resolve all evidentiary conflicts and credibility questions in the
prosecution’s favor; moreover, as among competing inferences

14
In footnote twenty-four of Guthrie, this Court identified examples of the types of
evidence properly supporting a finding of first degree murder, stating that “[t]hese examples
are illustrative only and are not intended to be exhaustive.” 194 W.Va. at 676 n.24, 461
S.E.2d at 182 n.24. The identified categories included the following:

(1) “planning” activity-facts regarding the defendant’s behavior prior to the
killing which might indicate a design to take life; (2) facts about the
defendant’s prior relationship or behavior with the victim which might indicate
a motive to kill; and (3) evidence regarding the nature or manner of the killing
which indicate a deliberate intention to kill according to a preconceived
design.

Id.

of which two or more are plausible, the judge must choose the
inference that best fits the prosecution’s theory of guilt.

With specific reference to evidence regarding premeditation, this Court has

previously analyzed the nature of such evidence, explaining that “[m]alice or premeditation

need not exist for any great length of time before the homicide.” State v. Burdette, 135

W.Va. 312, 331, 63 S.E.2d 69, 81 (1950). The issue of sufficiency of evidence of

premeditation was addressed extensively by Justice Cleckley in syllabus points five and six

of Guthrie:

Although premeditation and deliberation are not
measured by any particular period of time, there must be some
period between the formation of the intent to kill and the actual
killing, which indicates the killing is by prior calculation and
design. This means there must be an opportunity for some
reflection on the intention to kill after it is formed.

In criminal cases where the State seeks a conviction of
first degree murder based on premeditation and deliberation, a
trial court should instruct the jury that murder in the first degree
consists of an intentional, deliberate, and premeditated killing
which means that the killing is done after a period of time for
prior consideration. The duration of that period cannot be
arbitrarily fixed. The time in which to form a deliberate and
premeditated design varies as the minds and temperaments of
people differ and according to the circumstances in which they
may be placed. Any interval of time between the forming of the
intent to kill and the execution of that intent, which is of
sufficient duration for the accused to be fully conscious of what
he intended, is sufficient to support a conviction for first degree
murder.

194 W.Va. at 664, 461 S.E.2d at 170 (emphasis supplied). In LaRock, this Court recognized

that, “[a]s a practical matter, premeditation generally can be proved only by circumstantial

evidence.” 196 W.Va. at 305, 470 S.E.2d at 624. Direct proof of premeditation is “seldom

possible” due to the reality that a “defendant’s mental processes are wholly subjective.” Id.

The LaRock Court explained:

If premeditation is found, it must ordinarily be inferred from the
objective facts. Accordingly, if one voluntarily does an act, the
direct and natural tendency of which is to destroy another’s life,
it fairly may be inferred, in the absence of evidence to the
contrary, that the destruction of that other’s life was intended.

Id.

In his brief to this Court on the issue of sufficiency of the evidence, Mr.

Blevins asserts that “the State could offer no witness who could claim ‘I saw [the petitioner]

do it’ nor could it produce evidence of the plan to kill, motive to kill, or deliberate intent to

kill.” While the assertion that no eyewitness observed the actual commission of this heinous

crime is quite correct, it is equally evident, as this Court has recognized on multiple

occasions and in varied contexts, that direct proof of premeditation is “seldom possible” and

that premeditation generally can be proved only by circumstantial evidence.” Id.

The State contends that the jury was legally entitled to infer that Mr. Blevins

had sufficient time to reflect on his actions as he severely beat one victim to death in one

location and then beat another victim to death in a different location. Detective Combs of

the Mercer County Sheriff’s Department testified regarding the extensive injuries to the

victims, explaining that he had observed the body of Mrs. Barton with what appeared to be

severe head injuries. He took possession of a piece of a baseball bat which was found near

her body. Further, Detective Combs discovered the severely beaten body of Mr. Barton

locked inside the storage building. Detective Combs observed significant blood spatter

around Mr. Barton’s body and testified that he located a hatchet and a crowbar near the body.

Detective Combs also observed what appeared to be blood on the crowbar and a large pool

of blood in the entryway of the Barton residence. Corporal Sommers likewise testified that

he observed the body of Mrs. Barton lying in the yard with severe lacerations to her head and

extending over part of her ear. Inside the home, Corporal Sommers observed an extensive

pool of blood and a fragment of a baseball bat.

Based upon the evidence presented, this Court finds no error in the conclusion

that the evidence was sufficient to support the jury’s finding of premeditation and

deliberation, and we affirm the circuit court’s conclusions in that regard.

F. Tainted Photographic Array and Use of John Reed’s Eyewitness Testimony

Mr. Blevins contends that the circuit court erred in permitting a tainted

photographic array in the identification of Mr. Blevins by the Bartons’ neighbor, Mr. Reed.

The record reveals that John Reed described the person he saw in the neighborhood on the

morning of the murder as a “shorter” white male in his mid-twenties, with dark hair and a

medium to stocky build with tattoos on his neck. Mr. Blevins contends that the photographic

array used to identify him was impermissibly suggestive based upon the fact that Mr. Blevins

was the only individual with tattoos,15 of shorter statue, and depicted up against a wall

marked to show height.

In addressing the identification of Mr. Blevins by Mr. Reed, the State notes that

Mr. Reed had ample time to observe Mr. Blevins, as the two had an extensive conversation

of five to ten minutes on the morning of the murders. Mr. Reed was able to give the police

a detailed and accurate description of Mr. Blevins and his automobile, prior to being asked

to identify an individual in a photographic array. The circuit court noted that five of the six

individuals in the photographic array looked quite similar.

In analyzing whether an out-of-court identification is sufficiently tainted to

require suppression of an in-court identification, this Court has emphasized the need to

15
Testimony introduced at trial indicated that the photo utilized in the array covered
Mr. Blevins’ tattoos to the extent possible, resulting in a dark spot under the neck. One of
the other individuals in the photographic array also had a dark smudge at the neck. Captain
Gills testified that the police had attempted to assemble an array of similar photographs.

examine the totality of the circumstances. In syllabus point three of State v. Casdorph, 159

W.Va. 909, 230 S.E.2d 476 (1976), this Court explained:

In determining whether an out-of-court identification of
a defendant is so tainted as to require suppression of an in-court
identification a court must look to the totality of the
circumstances and determine whether the identification was
reliable, even though the confrontation procedure was
suggestive, with due regard given to such factors as the
opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length
of time between the crime and the confrontation.”

In syllabus point six of State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981), this Court

stated that “[m]ost courts have concluded that a photographic array will not be deemed

excessively suggestive as long as it contains some photographs that are fairly representative

of the defendant’s physical features. The fact that some of the photographs are dissimilar to

the defendant’s appearance will not taint the entire array.”

In the present case, Mr. Reed had ample opportunity to observe Mr. Blevins

in direct conversation with him for at least five minutes. Mr. Reed’s description of Mr.

Blevins was extremely accurate, and he identified Mr. Blevins in the photographic array the

same day he had seen him in person. The police did not make any suggestions to Mr. Reed

regarding which photograph to select, and his identification of Mr. Blevins was immediate

and certain. Mr. Reed’s in-court identification was similarly immediate and certain.

Although not all of the individuals in the photograph had tattoos and several were taller than

Mr. Blevins, we do not find that the identification process was improperly tainted or that the

photographic array was unduly suggestive in any manner. The Court consequently affirms

the findings of the circuit court in this regard.

G. Confrontation Clause

1. Autopsy Report and Testimony of Dr. Kaplan

Mr. Blevins contends that his fundamental constitutional right to confront the

witnesses against him was violated by the introduction of the autopsy reports and the

testimony of Dr. James Kaplan, Chief Medical Examiner for the State of West Virginia, in

light of the fact that Dr. Kaplan had not performed the autopsies. Dr. Robert C. Belding, the

individual who actually performed the autopsies and prepared the reports, had been

terminated from the Medical Examiner’s Office and had apparently chosen not to testify

because the State refused to pay him the $2,536.00 he sought as a fee for such testimony.

The record indicates that the State first disclosed that Dr. Belding was no

longer employed by the State Medical Examiner’s Office during an April 9, 2010, motions

hearing. At that time, the circuit court directed that Dr. Belding be subpoenaed. When Dr.

Belding ultimately did not appear for trial, Mr. Blevins’ counsel objected16 to the testimony

16
In his brief, Mr. Blevins assigns two separate errors regarding the Confrontation
(continued...)

of Dr. Kaplan, based upon the inability to cross-examine Dr. Belding regarding the autopsy

reports.

Subsequent to an in camera meeting between the circuit court and Dr. Kaplan,

the circuit court determined that Dr. Belding had not been terminated for any reason

regarding his competence. In discussions with Mr. Blevins’ counsel, the circuit court

confirmed that Dr. Kaplan’s testimony would be limited to the contents of the autopsy

reports. Thereafter, Mr. Blevins’ counsel withdrew his objection to the testimony of Dr.

Kaplan in place of Dr. Belding, and the autopsy reports and Dr. Kaplan’s testimony were

admitted into evidence without further objection.17

The Confrontation Clause of the Sixth Amendment to the United States

Constitution and section 14 of article III of the West Virginia Constitution guarantee the right

16
(...continued)
Clause issue. First, he addresses the primary contention that a Confrontation Clause violation
occurred. Second, he asserts that despite his counsel’s failure to adequately object to the
Confrontation Clause violation, this Court should invoke the plain error doctrine. Due to the
obvious connection between these two assignments of error, this Court addresses them
together herein.
17
Dr. Kaplan testified that Mrs. Barton died as a result of blunt force and sharp force
injuries, sustaining fatal head and neck injuries, as well as multiple injuries to her body. Dr.
Kaplan also explained that the autopsy reported indicated that Mrs. Barton suffered a skull
fracture and multiple blows to her face, consistent with blows which could be inflicted by a
baseball bat. She had eight stab wounds, seven of which were inflicted upon her head and
neck. Dr. Kaplan explained that the autopsy report indicated that Mr. Barton exhibited four
chop force injuries sustained by the use of a hatchet-like weapon.

of a criminal defendant to confront and cross-examine witnesses against him. In State v.

Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006), this Court held that the Confrontation

Clause prohibits introduction of “testimonial statements” of witnesses who do not appear at

trial. Id. at 373, 633 S.E.2d at 318. Exceptions to this general rule include a witness

unavailable to testify where the defendant had a prior opportunity to cross-examine that

individual. Id. Syllabus point six of Mechling provides as follows:

Pursuant to Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause
contained within the Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by a
witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity to
cross-examine the witness.

In State v. Frazier, 229 W.Va. 724, 735 S.E.2d 727 (2012), this Court

addressed the Confrontation Clause within the context of a situation extremely similar to the

present case. In Frazier, Dr. Kaplan testified at Mr. Frazier’s trial despite the fact that Dr.

Belding had performed the autopsy report on the alleged victim in that case. Id. at ___, 735

S.E.2d at 730. Upon Mr. Frazier’s assertion that a Confrontation Clause violation had

occurred, this Court concluded, and the State conceded, that an autopsy report is a testimonial

statement and that “it was error for the trial court to admit into evidence the autopsy report

and to permit Dr. Kaplan to testify as a surrogate witness.” Id. at ___, 735 S.E.2d at 732.

This Court’s decision in State v. Kennedy, 229 W.Va. 756, 735 S.E.2d 905 (2012) is also

consistent with the Frazier holding. In Kennedy, this Court found that the testimony of the

pathologist who did not perform the autopsy was violative of the Confrontation Clause to the

extent that he served as a transmitter for the opinions of the non-testifying pathologist who

had prepared the autopsy. Id. at ___, 735 S.E.2d at 921; see also Bullcoming v. New Mexico,

564 U.S. ___ (2011) (finding that laboratory report certified by nontestifying analyst

indicating defendant’s blood-alcohol level was testimonial in nature); Melendez–Diaz v.

Massachusetts, 557 U.S. 305 (2009) (viewing certificates of analysis prepared by

nontestifying analysts stating that substance seized was cocaine as testimonial statements).

In its brief, the State concedes that “it would appear as if to permit the

testimony of Dr. Kaplan was error.” The State argues, however, that any error was harmless.

Further, the State contends that defense counsel waived the objection to that error by

withdrawing it prior to the testimony of Dr. Kaplan. We consequently address the issue of

plain constitutional error prior to addressing the State’s assertion that any error was harmless.

2. Plain Error Analysis

Within the specific realm of constitutional error, this Court has held that

“[a]lleged errors of a constitutional magnitude will generally trigger a review by this Court

under the plain error doctrine.” State v. Salmons, 203 W.Va. 561, 571 n.13, 509 S.E.2d 842,

852 n.13 (1998). Similarly, in syllabus point four of State v. Starr, 158 W.Va. 905, 216

S.E.2d 242 (1975), this Court explained: “Although it is a well-settled policy that the

Supreme Court of Appeals normally will not rule upon unassigned or imperfectly assigned

errors, this Court will take cognizance of plain error involving a fundamental right of an

accused which is protected by the Constitution.”

In LaRock, this Court enumerated the prerequisites for the application of the

plain error doctrine, as follows:

To satisfy the plain error standard, a court must find: (1)
there was error in the trial court’s determination; (2) the error
was plain or obvious; and (3) the error affected “substantial
rights” in that the error was prejudicial and not harmless. 194
W.Va. at 18, 459 S.E.2d at 129, citing United States v. Olano,
507 U.S. 725, 730-732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508,
518 (1993).

196 W.Va. at 316-17, 470 S.E.2d at 635-36 (emphasis supplied).

These prior holdings of this Court on the issue of plain constitutional error

indicate the necessity for review of errors of consitutional magnitude. The introduction of

Dr. Kaplan’s testimony clearly constituted a violation of the Confrontation Clause and was

erroneous under the principles most recently discussed in Frazier and Kennedy.

Consequently, despite the withdrawal of defense counsel’s objection to the testimony of Dr.

Kaplan, this Court finds that the circuit court committed error in the case sub judice and that

Mr. Blevins’ constitutional right to confront the witnesses against him was indeed violated.

3. Harmless Error

The State maintains that introduction of Dr. Kaplan’s testimony constitutes

harmless error. The State emphasizes the extensive evidence against Mr. Blevins and asserts

that the evidence presented through the testimony of Dr. Kaplan did not affect the jury’s

verdict of guilt. In Mechling, this Court reiterated the principle that violation of a

constitutional right constitutes reversible error unless that error is harmless beyond a

reasonable doubt. 219 W.Va. at 371, 633 S.E.2d at 316. In syllabus point five of State ex

rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975), this Court stated that the “[f]ailure

to observe a constitutional right constitutes reversible error unless it can be shown that the

error was harmless beyond a reasonable doubt.” See also State v. Jenkins, 195 W.Va. 620,

629, 466 S.E.2d 471, 480 (1995). Most recently, in syllabus point three of Frazier, this Court

explained that “[i]n a criminal case, the burden is upon the beneficiary of a constitutional

error to prove beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.” 229 W.Va. at 725, 735 S.E.2d at 728.18

Courts assessing the harm arising from the introduction of evidence violating

the Confrontation Clause have focused upon whether the information gleaned by the jury

18
Likewise, in Morrison v. Holland, 177 W.Va. 297, 352 S.E.2d 46 (1986), this Court
stated that “[u]nder the harmless constitutional error doctrine, the State’s burden is to show
‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” 177 W.Va. at 301, 352 S.E.2d at 51 (quoting Chapman v. California, 386 U.S.
18, 24 (1967)). In syllabus point twenty of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445
(1974), this Court held that “[e]rrors involving deprivation of constitutional rights will be
regarded as harmless only if there is no reasonable possibility that the violation contributed
to the conviction.”

through such evidence contributed to the verdict or addressed a critical issue involving

conflicting and pivotal evidence at trial. In assessing the harmless error issue in the present

case, the State emphasizes that the circuit court inquired of Mr. Blevins’ counsel on multiple

occasions regarding whether there was any real question of how the victims had died. Mr.

Blevins’ counsel responded by stating that there was no dispute regarding the cause of death.

Of critical import to this examination is the fact that nothing in the autopsy reports implicated

Mr. Blevins in the murders; Dr. Kaplan’s testimony did not contain any element

incriminating Mr. Blevins in any manner. Additionally, the severity of the injuries sustained

by the victims was established not only by the autopsy reports, but also by the direct

testimony of the first responders to the crime scene.

In Frazier, this Court found that the error of admitting Dr. Kaplan’s testimony

was not harmless because the autopsy addressed the critical issue of the angle of the fatal

wound.

The prosecution’s theory of the case was that the angle of the
shotgun blast was inconsistent with the defendant’s claim of an
accidental shooting. Dr. Kaplan was not offering his own
conclusions as to what the angle was, but was repeating Dr.
Belding’s findings on that key issue. This effectively denied the
defendant his right to confront Dr. Belding about his
conclusions.

Frazier, 229 W.Va. at ___, 735 S.E.2d at 733 (footnote omitted). Consequently, because the

autopsy report in Frazier addressed a critical element that was contested by the parties, this

Court found that the error was not harmless. Justice Benjamin dissented in Frazier,

explaining that he would consider the constitutional error regarding the Confrontation Clause

harmless beyond a reasonable doubt. Id. at ___, 735 S.E.2d at 734 (Benjamin, J., dissenting).

“I disagree with the majority opinion because I believe that Dr. Kaplan’s testimony and the

autopsy report added nothing to the State’s evidence against the petitioner, and that there is

no contradiction between Dr. Belding’s clinical summary and his autopsy report.” Id.

In harmless error analyses undertaken by various other jurisdictions in

conjunction with violations of the Confrontation Clause, courts have been cognizant of the

nature of the harm within each individual factual and evidentiary circumstance. In Perkins

v. State, 897 So.2d 457 (Ala. Crim. App. 2004), for instance, the Court of Criminal Appeals

of Alabama noted that violations of the defendant’s right to confront witnesses against him

are subject to a harmless error analysis and that a conclusion that the error was harmless

would result where “[e]ven without the autopsy report, the evidence presented by the State

was sufficient on which to base a finding that [the defendant] was guilty of capital murder.”

Id. at 465. The court reasoned that “[a]dmission of the autopsy report through the testimony

of Howard and Glenn did not affect the jury’s conclusion that Perkins killed Wysteria

Mathews. The admission of the report, even if error, was harmless beyond a reasonable

doubt. Thus, no basis for reversal exists as to this issue.” Id.

A defendant’s right to confrontation in conjunction with the trial court’s

admission of transcripts of grand jury testimony of nontestifying codefendants was addressed

in Corado v. Commonwealth, 623 S.E.2d 452 (Va. Ct. App. 2005). In that case, the Court

of Appeals of Virginia reasoned that it would consider whether “‘erroneous admission of

evidence was sufficiently prejudicial to require reversal on the basis of our own reading of

the record and on what seems to us to have been the probable impact on the fact finder.’”

623 S.E.2d at 456 (quoting Green v. Commonwealth, 528 S.E.2d 187, 191 (Va. Ct. App.

2000)). The court ultimately determined that the challenged evidence was not dispositive and

that the jury would have convicted the defendant even in the absence of the challenged

testimony. 623 S.E.2d at 457.

Similarly, in Wood v. State, 299 S.W.3d 200 (Tex. Ct. App. 2009), the Court

of Appeals of Texas decided the issue of whether disclosure of testimonial statements

constituted reversible error by considering “how important the statements were to the State’s

case, whether the statements were cumulative of other evidence, the presence or absence of

evidence corroborating or contradicting the out-of-court statements on material points, and

the overall strength of the prosecution’s case.” Id. at 215. After undertaking such

evaluation, the Wood court was “satisfied beyond a reasonable doubt that disclosure of this

testimonial statement did not contribute to the appellant’s conviction.” Id.19

19
The Wood court explained its reasoning as follows:

The autopsy report in question was a testimonial statement and the
medical examiner who conducted the autopsy and prepared the report was a
witness within the meaning of the Confrontation Clause as construed in
(continued...)

In the present case, this Court’s analysis of the State’s contention that the error

of admitting Dr. Kaplan’s testimony was harmless beyond a reasonable doubt includes an

examination of the record for any indication that Dr. Kaplan’s testimony could have

influenced the jury’s verdict. Dr. Kaplan’s testimony, essentially a recitation of Dr.

Belding’s findings, revealed nothing incriminating.20 Nothing contained in Dr. Kaplan’s

testimony rendered it more or less likely that Mr. Blevins committed the murders; similarly,

nothing in his testimony revealed any detail that the jury did not hear during the testimony

of other witnesses. The severity of the fatal beatings was apparent from other admissible

testimony, and nothing in Dr. Kaplan’s testimony linked Mr. Blevins to the crime. The most

damaging element to Dr. Kaplan’s testimony was his reiteration of the nature of the offenses

19
(...continued)
Crawford and Melendez–Diaz. Under the circumstances of this case, the use
before the jury of the contents of the autopsy report violated appellant’s right
of confrontation. Beyond a reasonable doubt, however, the error did not
contribute to appellant’s conviction or punishment.

299 S.W.3d at 215-16.
20
A discussion regarding the accusatory nature of the autopsy report testimony
informs only our analysis of the harmless nature of the Confrontation Clause error. This
discussion in no way bears upon the issue of whether of not the autopsy report is testimonial
for purposes of analyzing the Confrontation Clause error. See Kennedy, 229 W.Va. at ___,
735 S.E.2d at 909, syl. pt.6 (“To the extent that W. Va. Code § 61–12–13 (Repl. Vol. 2010)
compels the mandatory admission of an autopsy report or other testimonial document, in a
criminal action, where the performing pathologist or analyst does not appear at trial and the
State fails to establish that the pathologist or analyst is unavailable and that the accused has
had a prior opportunity to cross-examine the witness, it is unconstitutional and
unenforceable.”).

committed.21 This component was, in many respects, duplicative of other evidence the jury

had heard. Thus, in contrast to the situation this Court encountered in Frazier, wherein the

challenged evidence directly addressed a contested fact which could have been dispositive

of the question of guilt, this Court concludes that the State in the present case satisfied its

burden of proving beyond a reasonable doubt that the disclosure of the information contained

in the autopsy reports and explained by Dr. Kaplan did not contribute to Mr. Blevins’

conviction or punishment.

H. Proportionality of Sentence

Mr. Blevins contends that his sentence is disproportionate to the offenses

committed and violates the proportionality principle enunciated in article III, section 5 of the

West Virginia Constitution, which disallows sentences which are not proportionate to the

character and degree of the offenses committed. In addressing this issue, Mr. Blevins asserts

that the jury was never provided with the opportunity to be “introduced” to Mr. Blevins or

to have any background knowledge about him personally. The State responds by asserting

that the penalty for murder in the first degree is precisely what Mr. Blevins received, life in

21
In Wood, for example, the court addressed the erroneous introduction of autopsy
evidence and observed as follows: “The fact that Wessberg [the victim] had twenty-one rib
fractures was a detail that may have added some weight to the State’s case, but it was hardly
critical.” 299 S.W.3d at 215.

the penitentiary, and that the determination concerning a potential recommendation of mercy

is entirely within the province of the jury.

This Court examined the issue of proportionality of sentence in State v.

Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), and held as follows in syllabus point five:

Punishment may be constitutionally impermissible,
although not cruel or unusual in its method, if it is so
disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of
human dignity, thereby violating West Virginia Constitution,
Article III[,] Section 5 that prohibits a penalty that is not
proportionate to the character and degree of an offense.

This Court further explained the Cooper model as follows:

The first [test] is subjective and asks whether the sentence for
the particular crime shocks the conscience of the court and
society. If a sentence is so offensive that it cannot pass a
societal and judicial sense of justice, the inquiry need not
proceed further. When it cannot be said that a sentence shocks
the conscience, a disproportionality challenge is guided by the
objective test we spelled out in Syllabus Point 5 of Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):

In determining whether a given sentence violates
the proportionality principle found in Article III,
Section 5 of the West Virginia Constitution,
consideration is given to the nature of the offense,
the legislative purpose behind the punishment, a
comparison of the punishment with what would
be inflicted in other jurisdictions, and a
comparison with other offenses within the same
jurisdiction.

172 W.Va. at 272, 304 S.E.2d at 857.

In this case, Mr. Blevins was sentenced to the maximum punishment provided

by the West Virginia Legislature for first degree murder. The jury was properly instructed

regarding its prerogative to consider a recommendation of mercy, and it chose not to do so.

This Court finds no legitimate basis upon which Mr. Blevins can challenge the punishment

received in this case. In consideration of the nature of the offenses committed, this Court

cannot conclude that the punishment imposed upon him shocks the conscience or in any

manner violates the proportionality principles contained in article III, section 5 of the West

Virginia Constitution.

IV. Conclusion

For the foregoing reasons, this Court affirms Mr. Blevins’ convictions for two

counts of first degree murder and one count of first degree arson in the Circuit Court of

Mercer County, as well as the sentences imposed.

Affirmed.

State of West Virginia Terry Allen Blevins

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