IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
June 18, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 12-0189 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
V.
CHARLES EDWARD BRUFFEY,
Defendant Below, Petitioner
Appeal from the Circuit Court of Mineral County
Honorable Lynn A. Nelson, Judge
Criminal Action No. 11-F-29
AFFIRMED
Submitted: April 24, 2013
Filed: June 18, 2013
Nicholas T. James Patrick Morrisey
James Law Firm PLLC Attorney General
Keyser, West Virginia Thomas W. Rodd
Attorney for the Petitioner Assistant Attorney General
Andrew D. Mendelson
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE BENJAMIN and JUSTICE KETCHUM dissent and reserve the right
to file dissenting opinions.
SYLLABUS BY THE COURT
1. “The action of a trial court in admitting or excluding evidence in the
exercise of its discretion will not be disturbed by the appellate court unless it appears that
such action amounts to an abuse of discretion.” Syllabus point 10, State v. Huffman, 141
W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell,
192 W. Va. 435, 452 S.E.2d 893 (1994).
2. “To trigger application of the ‘plain error’ doctrine, there must be (1)
an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.” Syllabus point 7, State
v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
3. “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that he 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. W. Va. R. Evid.
404(b).” Syllabus point 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123
(1990).
i
4. “Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial
court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688, 347
S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must
be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the
defendant committed the acts. If the trial court does not find by a preponderance of the
evidence that the acts or conduct was committed or that the defendant was the actor, the
evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the
trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the
West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the
West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b)
evidence is admissible, it should instruct the jury on the limited purpose for which such
evidence has been admitted. A limiting instruction should be given at the time the evidence
is offered, and we recommend that it be repeated in the trial court’s general charge to the jury
at the conclusion of the evidence.” Syllabus point 2, State v. McGinnis, 193 W. Va. 147, 455
S.E.2 516 (1994).
5. “In the exercise of discretion to admit or exclude evidence of collateral
crimes and charges, the overriding considerations for the trial court are to scrupulously
ii
protect the accused in his right to a fair trial while adequately preserving the right of the State
to prove evidence which is relevant and legally connected with the charge for which the
accused is being tried.” Syllabus point 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445
(1974).
6. “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.” Syllabus point 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006).
7. “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.” Syllabus point 3, State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727
(2012).
8. “‘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
iii
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).” Syllabus point 1,
State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982).
iv
Per Curiam:
The petitioner herein and defendant below, Charles Edward Bruffey
(hereinafter “Mr. Bruffey”), was sentenced on January 18, 2012, to a term of incarceration
of ten to twenty years following his jury conviction for robbery. Mr. Bruffey asserts that the
trial court committed four errors: (1) admitting the prosecution’s solicited testimony on Mr.
Bruffey’s silence post-Miranda1 warning; (2) allowing Rule 404(b) evidence of a second
uncharged bank robbery without an adequate McGinnis2 hearing; (3) violating Mr. Bruffey’s
Sixth Amendment rights by permitting a police officer to testify about statements made by
a witness who did not take the stand at trial; and (4) finding that the investigating officer’s
affidavit was sufficient to establish probable cause for a search warrant. Based upon the
parties’ written briefs and oral arguments, the appendix record designated for our
consideration, and the pertinent authorities, we affirm the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case intertwine two separate bank robberies: one that occurred
on December 23, 2009 (hereinafter the “charged robbery”) and a subsequent robbery that
1
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
2
See State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994), discussed in
more detail infra.
1
took place on February 26, 2010 (hereinafter the “uncharged robbery” or “second robbery”).
This appeal directly involves only Mr. Bruffey’s conviction for the charged robbery.3
A. Charged Robbery
At about 9:30 a.m. on December 23, 2009, a white male with blue eyes entered
the M&T Bank in Fort Ashby, West Virginia. He was wearing a hat, a hood, a scarf, and a
Carhart-type jacket that had duct tape over the name badge area. The man approached the
bank teller and said, “this is a robbery . . . give me all your loose bills . . . place them on the
counter . . . no bait money or dye pack.” The robber was apologetic for his actions,
explaining that he “was sorry,” that he had “lost his job,” and that he “had to [rob the bank].”
The teller gave money to the robber totaling $1618.00. The robber then fled the bank on
foot, turning left immediately upon exiting the bank’s front doors.
Minutes after the robbery, Sergeant Droppleman arrived on the scene. He
requested that a K-9 dog “tail” the robber. The dog found a scent and tracked it to a red car
that was parked in a parking lot about three hundred feet from the bank. A freshly-smoked
cigarette butt was found on the ground beside the red car. Sergeant Droppleman spoke to the
3
At some point in time thereafter, Mr. Bruffey was indicted for participation
in the uncharged robbery; however, that case is not before us. The uncharged robbery is
germane to this case only insofar as its facts were used to buttress the evidence used in the
trial of the charged robbery.
2
owner of the red car spotted by the K-9 officer on the morning of the charged robbery. The
owner of the red car told the Sergeant that he saw a purple car parked near his red car, and
that a man was sitting in the purple car and smoking a cigarette. The cigarette butt found on
the morning of the charged robbery contained Mr. Bruffey’s DNA. Mr. Bruffey eventually
was indicted for the first robbery in January 2011. A jury trial was held September 26 and
27, 2011, which ultimately resulted in a conviction.
B. Uncharged Robbery
About two months after the first robbery, on February 26, 2010, the bank was
robbed again by a white, unarmed male with blue eyes. The robber was wearing a coat and
a hooded sweatshirt, and had a burgundy-colored scarf around his face. He did not speak but
handed the teller a note demanding money, which stated, “This is a robbery[.] [G]ive me
$20-$50-$100 dollar bills[.] Put the money on the counter spread out[.] No tricks, dye
packs, bait money[.] No one gets hurt.”
During the ensuing investigation, Sergeant Droppleman was informed that a
purple car also had been seen in the same parking lot a couple of days before the uncharged
robbery. The Sergeant was able to link the purple car to Mr. Bruffey. Moreover, a
handwriting expert with the Federal Bureau of Investigation (hereinafter “FBI”) determined
3
that the demand note used in the commission of the uncharged robbery had been written by
Mr. Bruffey.
C. Procedural History of Charged Robbery
Subsequent to this second incident, Sergeant Droppleman suspected Mr.
Bruffey as the perpetrator of the first bank robbery. A search warrant was secured and
executed on Mr. Bruffey’s residence. Pursuant to the search, property was seized including
a blue jacket, a grey hooded sweatshirt, a maroon cloth, two blue notebooks containing
known writing by Mr. Bruffey, and a pack of cigarettes. Further, Sergeant Droppleman
obtained a mouth swab from Mr. Bruffey to be used in DNA comparison for the cigarette
butts found at the scene of the charged robbery.
At a June 28, 2011, pre-trial hearing, the circuit court heard argument regarding
the State’s “Notice of Intent to Use 404(b)” evidence. In this regard, the State sought to use
evidence during the trial of the charged robbery that had been obtained through the
investigation of the uncharged robbery. While Mr. Bruffey had not yet been charged with
the February 26, 2010, robbery,4 the State wished to use such evidence to establish Mr.
Bruffey’s common scheme and plan, to identify Mr. Bruffey as the perpetrator, and to show
4
At some later time, Mr. Bruffey was charged with the second robbery.
4
the plan and intent of Mr. Bruffey. The State sought to enter, among other things, the
testimony of an FBI handwriting expert who had determined that Mr. Bruffey wrote the
demand note used in the uncharged robbery, as well as evidence regarding the purple car
owned by Mr. Bruffey and its appearance close in time and proximity to both bank robberies.
After the hearing on the 404(b) evidence, the circuit court entered a July 7,
2011, order stating, in relevant part, as follows:
2. [The robber] told the teller that “this is a robbery”,
“give me all your loose money”, directed her to lay the money
on the counter, asked “if there were any bait or die (sic) packs”,
stated that he “wouldn’t hurt me [the teller]”, and that “he had
just lost his job and he had to do this”.
....
4. [T]he M&T Bank . . . was robbed a second
time . . . The suspect . . . held up a note . . . that stated: “This is
a robbery give me $20-$50-$100 dollar bills lots Put the money
on the counter spread out No tricks, dye packs, bait money No
one gets hurt”.
5. Sgt. Droppleman suspected that [Mr. Bruffey] was
the robber in the first bank robbery and executed a search
warrant on his residence. The property seized included a blue
jacket, gray hooded sweatshirt, maroon cloth, two blue lined
notebooks containing know [sic] writing of [Mr. Bruffey’s], and
a pack of Pall Mall cigarettes. Sgt. Droppleman also obtained
a mouth swab from [Mr. Bruffey] for DNA comparison[.]
....
7. The note that was recovered from the scene at the
second robbery was submitted to the FBI crime lab for
5
comparison to the recovered samples from the search. . . . the
FBI examiner confirmed that the note was authored by [Mr.
Bruffey].
....
10. In conducting the McGinnis analysis, this Court is
convinced by a preponderance of the evidence that the second
robbery did occur and that [Mr. Bruffey] was the person who
committed it based upon the fact that [Mr. Bruffey] robbed the
exact same bank in an almost identical manner. The Court
likewise is convinced based upon the results of the handwriting
analysis that [Mr. Bruffey] did author the note found at the
second robbery. Additionally, the use of the terms “bait money”
and “dye pack” during both robberies seems to indicate that the
same actor was involved on both occasions. . . .
Following a two-day jury trial, Mr. Bruffey was convicted on September 27,
2011, of the charged robbery in violation of W. Va. Code § 61-2-12 (2000) (Repl. Vol.
2010). During the December 28, 2011, sentencing hearing, the circuit court denied Mr.
Bruffey’s motion for a new trial and sentenced him to not less than ten nor more than twenty
years in prison. The circuit court’s sentencing order was entered January 18, 2012, and this
appeal followed on February 3, 2012.
II.
STANDARD OF REVIEW
This case comes before this Court on appeal from a sentencing order. We
previously have explained our standard of reviewing sentencing orders as follows: “The
6
Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of
discretion standard, unless the order violates statutory or constitutional commands.” Syl. pt.
1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). With respect to Mr.
Bruffey’s challenges to the circuit court’s evidentiary rulings, we note that, generally, “[t]he
action of a trial court in admitting or excluding evidence in the exercise of its discretion will
not be disturbed by the appellate court unless it appears that such action amounts to an abuse
of discretion.” Syl. pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled
on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994).
Mindful of these guidelines, we turn to the arguments raised herein. Additional standards
for our review are set out in our discussion of the particular issues to which they pertain.
III.
DISCUSSION
On appeal to this Court, Mr. Bruffey sets forth four assignments of error: (1)
the admission of the prosecution’s solicited testimony on Mr. Bruffey’s silence
post-Miranda5 warning; (2) the admission of Rule 404(b) evidence of a second uncharged
bank robbery without an adequate McGinnis6 hearing; (3) the violation of Mr. Bruffey’s
Sixth Amendment rights by permitting a police officer to testify about statements made by
5
See note 1, supra.
6
See State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994), infra.
7
a witness who did not take the stand at trial; and (4) the conclusion that the investigating
officer’s affidavit was sufficient to establish probable cause for a search warrant. We will
address each issue individually.
A. Silence Post-Miranda Warning
Mr. Bruffey’s initial assignment of error is that the prosecution improperly
solicited trial testimony that commented on his silence post-Miranda warning. Moreover,
Mr. Bruffey asserts that his counsel’s failure to object to the statements was plain error. The
State, conversely, asserts that none of the statements of which Mr. Bruffey complains
amounted to an improper reference to his silence.
Both Article III, Section 5 of the West Virginia Constitution and the Sixth
Amendment of the United States Constitution provide a constitutional right to remain silent.
It is reversible error for the State to cross-examine a defendant in regard to his pre-trial
silence or to comment on the defendant’s silence to the jury. State v. Boyd, 160 W. Va. 234,
233 S.E.2d 710 (1977). See also State v. Fortner, 150 W. Va. 571, 148 S.E.2d 669 (1966),
overruled on other grounds. Defendants are presumed innocent at trial, “[s]o the law having
brought the prisoner into court against his will, [must] not permit his silence to be treated or
used as evidence against him.” State v. Taylor, 57 W. Va. 228, 50 S.E. 247 (1905).
8
Mr. Bruffey argues that, during the State’s opening statement, it made
reference to his pre-trial silence by commenting, “[o]n another occasion, after another
Miranda warning was given, Sergeant Droppleman also was told by [Mr. Bruffey], ‘I think
I should wait to talk to you about this,’ and said nothing further.” Then, during the State’s
case-in-chief, the prosecutor solicited the following response from Sergeant Droppleman,
“[W]e didn’t take a written statement. [Mr. Bruffey] didn’t want to provide one, which is
his right.” Thereafter, the prosecutor asked Sergeant Droppleman, “Did [Mr. Bruffey] make
any statement to you on the occasion after being advised of his rights?” Sergeant Droppleman
replied:
Yes. On October 13th 2010, I located [Mr. Bruffey] at
Ray’s Texaco, at which point in time I took him into
custody . . . . I read his Miranda rights at the counter and then
took him out. We drove to the office. And then after I got him
to the office before processing, I filled out another Miranda
form, a written form, he did initial portions of that form, but
decided not to sign it. He didn’t want to sign a waiver. He
didn’t want to waive his rights and provide a written statement
to me at that time.
As previously noted, Mr. Bruffey invites this Court to invoke the plain error
doctrine because his counsel failed to object to the alleged post-Miranda silence comments.
The plain error doctrine is set forth in Syllabus point 7 of State v. Miller, 194 W. Va. 3, 459
S.E.2d 114 (1995), which states: “To trigger application of the ‘plain error’ doctrine, there
must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously
9
affects the fairness, integrity, or public reputation of the judicial proceedings.” We find that,
under the facts of the present case, the first prong of the test has not been satisfied. That is,
there was no error, as established by a full reading of the record.
The prosecution’s and Sergeant Droppleman’s brief references to Mr. Bruffey’s
Miranda warnings were not made to call attention to Mr. Bruffey’s pre-trial silence but rather
to properly lay the foundation for the admission of Mr. Bruffey’s inculpatory statements that
he made after he was read his Miranda warnings. The inculpatory statements were that he
“had been unemployed and out of work for a number of months,” and “I’m going to jail for
a long time.” The first statement was relevant because the bank robber had told the teller that
he had lost his job. The second statement was relevant as a tacit admission of guilt.
We agree with Mr. Bruffey that it would have been improper for the State to
suggest that his silence is indicative of guilt. Importantly, the State did not comment on Mr.
Bruffey’s silence. Rather, the State merely directed the jury’s attention to Mr. Bruffey’s
inculpatory statements. For these reasons, petitioner’s first assignment of error is without
merit.
10
B. 404(b) Evidence
Next, Mr. Bruffey argues that the circuit court committed reversible error in
admitting Rule 404(b) evidence regarding the uncharged robbery for the purpose of showing
a common plan or scheme and identity because: (1) the circuit court admitted the evidence
solely on the State’s proffer; (2) Mr. Bruffey had not been charged with the second robbery
when the circuit court admitted the evidence; and (3) the evidence was highly prejudicial.
To the contrary, however, the State asserts that the evidence proffered at the pre-trial hearing
on the 404(b) evidence was sufficient for the circuit court to find it both admissible and
relevant.
Specifically, it is well established that
[t]he standard of review for a trial court’s admission of
evidence pursuant to Rule 404(b) involves a three-step
analysis. First, we review for clear error the trial court’s factual
determination that there is sufficient evidence to show the other
acts occurred. Second, we review de novo whether the trial
court correctly found the evidence was admissible for a
legitimate purpose. Third we review for an abuse of discretion
the trial court’s conclusion that the “other acts” evidence is more
probative than prejudicial under Rule 403.
State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). Moreover, this
Court previously has recognized that its function on appeal
is limited to the inquiry as to whether the trial court acted in a
way that was so arbitrary and irrational that it can be said to
11
have abused its discretion. In reviewing the admission of Rule
404(b) evidence, we review it in the light most favorable to the
party offering the evidence, in this case the prosecution,
maximizing its probative value and minimizing its prejudicial
effect.
State v. Willett, 223 W. Va. 394, 397, 674 S.E.2d 602, 605 (2009) (per curiam).
Generally,
[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that he 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. W. Va. R. Evid. 404(b).
Syl. pt. 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Rule 404(b)
of the West Virginia Rules of Evidence states as follows:
(b) Other crimes, wrongs, or acts. – Evidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he or she acted in conformity
therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
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
12
Evidence, is to determine its admissibility. Before admitting the evidence, the trial court
should conduct an in camera hearing.
Where an offer of evidence is made under Rule 404(b) of
the West Virginia Rules of Evidence, the trial court, pursuant to
Rule 104(a) of the West Virginia Rules of Evidence, is to
determine its admissibility. Before admitting the evidence, the
trial court should conduct an in camera hearing as stated in State
v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing
the evidence and arguments of counsel, the trial court must be
satisfied by a preponderance of the evidence that the acts or
conduct occurred and that the defendant committed the acts. If
the trial court does not find by a preponderance of the evidence
that the acts or conduct was committed or that the defendant was
the actor, the evidence should be excluded under Rule 404(b).
If a sufficient showing has been made, the trial court must then
determine the relevancy of the evidence under Rules 401 and
402 of the West Virginia Rules of Evidence and conduct the
balancing required under Rule 403 of the West Virginia Rules
of Evidence. If the trial court is then satisfied that the Rule
404(b) evidence is admissible, it should instruct the jury on the
limited purpose for which such evidence has been admitted. A
limiting instruction should be given at the time the evidence is
offered, and we recommend that it be repeated in the trial
court’s general charge to the jury at the conclusion of the
evidence.
Syl. pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994). In conducting the
foregoing analysis, trial courts have been directed that,
[i]n the exercise of discretion to admit or exclude
evidence of collateral crimes and charges, the overriding
considerations for the trial court are to scrupulously protect the
accused in his right to a fair trial while adequately preserving the
right of the State to prove evidence which is relevant and legally
connected with the charge for which the accused is being tried.
Syl. pt. 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974). In that regard, this
13
Court has recognized 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.” Syl. pt. 10, in
part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
In the instant case, there was sufficient evidence for the circuit court to find
that the second robbery occurred, that Mr. Bruffey was the perpetrator of the second robbery,
and that the two robberies were sufficiently similar to show a common plan or scheme and
identity. First, an FBI handwriting expert found the handwriting on the demand note used
in the second robbery to be Mr. Bruffey’s. Second, the two robberies involved the same bank
and occurred within a short period of time. Third, the robber in both crimes was an unarmed
white man with blue eyes who used clothing to cover his face and who told the teller not to
use dye packs or bait money. The State also alleged that there was substantial forensic
evidence linking petitioner to both crimes, including Mr. Bruffey’s DNA on the cigarette butt
found near the scene after the charged robbery. Further, the similarity and uniqueness of the
language used (verbally, in the first robbery, and written, in the second robbery) requesting
the money be spread out and no bait or dye packs be used; the FBI’s positive identification
of the defendant’s handwriting on the note used during the uncharged robbery; the similar
clothing; the references by the robber to needing money because of unemployment and the
conversations Mr. Bruffey had with the investigating officer; and two separate eye witnesses
14
describing the same uniquely-colored car at both robberies was all evidence that was proper
to show a common plan or scheme and identity. In this regard, the circuit court found “by
a preponderance of the evidence that the second robbery occurred and that [Mr. Bruffey]
committed the second robbery due to the similarity between the two crimes, the FBI’s
handwriting analysis, and the language in the demand note regarding dye packs and bait
money.”
This Court has affirmed the entry of “other crimes” evidence where the crimes
were near in time and of a similar character. See State v. Bunda, 187 W. Va. 389, 395, 419
S.E.2d 457, 463 (1992) (per curiam); State v. Johnson, 105 W. Va. 598, 143 S.E. 352, 353
(1928). Therefore, in light of the McGinnis standard, the circuit court did not act in an
arbitrary manner and did not abuse its discretion in concluding that the substantial probative
value of the 404(b) evidence outweighed any prejudicial effect.
As a final note regarding the 404(b) evidence, at the hearing on the matter, the
trial court relied upon the evidence proffered by the State in its written notice of 404(b)
evidence. The defense did not object to this procedure. Before this Court, however, Mr.
Bruffey proposes that the State was required to discuss its evidence in specific terms at the
McGinnis hearing, relying upon this Court’s admonition in State v. Dolin:
[T]he trial court [held] an in camera hearing prior to trial to
consider the admissibility of the collateral crime evidence.
15
However, at the hearing, the specific collateral . . . offenses the
State planned to present at trial and the possible applicable
exceptions were simply discussed in general terms. The in
camera hearing is rendered meaningless if a trial court is not
informed specifically of the details surrounding each collateral
offense and is not informed of which exception is applicable. A
trial court needs such information so that it can examine the
similarities and differences between the collateral offenses and
the present offense and can apply the balancing test to determine
whether the probative value outweighs the prejudicial effect of
such evidence.
176 W. Va. 688, 693-94, 347 S.E.2d 208, 214 (1986), overruled on other grounds. However,
Dolin further explains that the purpose of a 404(b) hearing is to allow a trial court to consider
“the similarities and differences between the collateral offenses and the present offenses [so
it] can supply the balancing test to determine whether the probative value outweighs the
prejudicial effect of such evidence.” Id.,176 W. Va. at 694, 347 S.E.2d at 214. In the instant
case, the trial court accomplished that purpose as demonstrated by its resulting order which
reviewed at length the similarities between the charged and the uncharged offenses and
determined that the probative value of the 404(b) evidence outweighed any prejudicial effect.
Mr. Bruffey simply has not pointed to a single instance of “clear error” in the circuit court’s
findings and conclusions to warrant reversal of his conviction on this ground.
C. Testimonial Statements from Non-Trial Witness
Mr. Bruffey’s third assignment of error contends that the lower court
improperly allowed trial testimony to be elicited without the witness being called at trial.
16
Specifically, during trial, the prosecution asked Sergeant Droppleman how he had identified
Mr. Bruffey’s car. The Sergeant replied: “I want to be careful about what I say-but after the
second robbery, there had been another witness come forward and said that, that [Mr.
Bruffey’s purple] vehicle was near the scene.” The defense objected. The Court overruled
the objection and said, “Go ahead Sergeant Droppleman. You said another witness had given
you some information.” Sergeant Droppleman then testified that a witness said that he saw
a purple car parked near the bank two days before the second robbery.
We have recognized that,
[p]ursuant 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).
Mr. Bruffey argues that the witness’s statement to the Sergeant was testimonial
because (1) the Sergeant was gathering information from the witness as part of his underlying
investigation, (2) there was no ongoing emergency when the statement was made, and (3) the
reason for taking the statement was to establish or prove past events potentially relevant to
later criminal prosecution. Mr. Bruffey avers that the Sergeant’s testimony regarding the
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testimonial statement violated his Sixth Amendment right to confront witnesses against him
because the witness did not testify at trial, and, thus, he did not have an opportunity to
cross-examine the witness about the statement. However, even assuming that Mr. Bruffey’s
contention is true, we find the introduction of such evidence to be harmless.
We have stated that violation of a constitutional right constitutes reversible
error unless that error is harmless beyond a reasonable doubt. Mechling, 219 W. Va. at 371,
633 S.E.2d at 316. Further, “[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.” Syl. pt. 3, State v. Frazier, 229 W. Va. 724, 735 S.E.2d
727 (2012). See also Syl. pt. 4, State v. Jenkins, 195 W. Va. 620, 466 S.E.2d 471 (1995)
(“Errors involving deprivation of constitutional rights will be regarded as harmless only if
there is no reasonable possibility that the violation contributed to the conviction.” Syl. pt.
20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974)).
A review of the record reveals that the statements from the non-trial witness
were not introduced to inculpate Mr. Bruffey. Rather, they were introduced to explain how
the Sergeant came to identify Mr. Bruffey as a potential suspect and how the Sergeant located
Mr. Bruffey. Second, Mr. Bruffey never denied owning the purple car. Third, there was no
Crawford or Mechling violation because the non-trial statements were not testimonial
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statements directed at establishing the facts of a past crime, but simply part of the res gestae
of the Sergeant’s investigation. Assuming, arguendo, that the statements were testimonial,
they addressed an ancillary and uncontested fact, and, in light of all of the evidence against
Mr. Bruffey, could not have made any difference in the jury’s verdict. Lastly, another
witness placed Mr. Bruffey’s purple car at the scene of the first robbery, which evidence was
not objected to by Mr. Bruffey. Accordingly, we find that the circuit court did not err in this
regard.
D. Probable Cause for Search Warrant
Finally, Mr. Bruffey argues that the affidavit upon which the issuance of the
search warrant was based was insufficient to form probable cause. This Court has
recognized:
“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).
Syl. pt. 1, State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982).
The affidavit attached to Sergeant Droppleman’s search warrant complaint
relied heavily on the following: (1) a witness saw a purple car parked near the bank two days
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before the second robbery; (2) Mr. Bruffey became nervous when the Sergeant questioned
him about the robberies; and (3) a witness saw an unidentifiable man in a parking lot on the
morning of the first robbery. Mr. Bruffey argues that the affidavit contained merely
conclusory speculations. Our review of the affidavit, however, shows that Mr. Bruffey
mischaracterizes Sergeant Droppleman’s affidavit. It is detailed and sets forth ample
grounds that establish probable cause. As such, it properly supported the issuance of the
search warrant and does not constitute reversible error in this case.
IV.
CONCLUSION
Based on the foregoing, the circuit court’s January 18, 2012, order, is affirmed.
Affirmed.
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