### FILED June 17, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 13-0099 – State of West Virginia v. Gary Lee Rollins

WORKMAN, Justice, concurring:

While I concur with the result reached by the majority in affirming the Petitioner’s conviction, as well as the concurring opinion by Justice Loughry, I write separately to emphasize that the analysis employed by the circuit court in its twenty-eight page order allowing the photographic evidence of do mestic violence to be admitted at trial was very thorough, well-reasoned and supported by the facts and law. As the circuit court determined, the victim’s statements to two other in dividuals relating to the photographs were not offered for the truth of the matter asserted an d, therefore, were not hearsay. See W. Va. R. Evid. 801(c) (“Hearsay’ is a statement, other th an the one made by the declarant while testifying at the trial or hearing, offered in evid ence to prove the truth of the matter asserted.”). As this Court has previously held

‘Generally, out-of-court statements made by someone other than the declarant while testifying are not a dmissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonable ness of the party’s action; 2) the statement is not hearsay und er the rules; or 3) the statement is hearsay but falls within an exc eption provided for in the rules.’ Syl. Pt. 1, State v. Maynard , 183 W. Va. 1, 393 S.E.2d 221 (1990). Syl. Pt. 3, State v. Morris , 227 W.Va. 76, 705 S.E.2d 583 (2010); see State v. Kaufman , 227

1W. Va. 537, 552, 711 S.E.2d 607, 622 (2011); see also State v. Phillips , 194 W. Va. 569,

592, 461 S.E.2d 75, 98 (1995)(Workman, dissenting)( discussing statements made by victim at a time close to her death about defendant’s extr amarital affairs and girlfriends not being offered for the truth of the matter asserted, but “ to circumstantially prove the Defendant’s motive to murder his wife[,]”and further opining th at “to conclude, as the majority essentially does, that these statements do not establish such amotive or that motive is irrelevant in a case where the Defendant claims ‘accidental killing’ is, quite frankly, absurd!”), overruled on other grounds by State v. Sutherland , 231 W. Va. 410, 745 S.E.2d 448 (2013). Thus, the circuit court correctly reasoned that the statement s involving the photographs were “not being offered for the truth of the matter asserted, but are, rather, being admitted solely for the purpose of identifying the bruises seen in the phot ographs. Accordingly, and so long as the statements are only used for identification purpose s, they do not constitute inadmissible hearsay.” In other words, the statements were offe red to show that the bruises were not something that happened to the decedent accidentall y; rather they were alleged to have been intentionally inflicted upon the decedent by the Pe titioner.

Notwithstanding the circuit court’s conclusion that the statements made in conjunction with the photographs were not hearsay, the circuit court proceeded to analyze whether the statements would fall within any of the exceptions to the hearsay rule. Once again, the circuit court correctly determined that even if it had found that the statements were

2hearsay, they were still admissible under either Ru le 803 of the West Virginia Rules of

Evidence concerning present-sense impression or Rul e 804(b)(5) of the West Virginia Rules of Evidence regarding the catch-all exception. The circuit court very methodically set forth why the statements at issue were admissible under b oth exceptions.

After concluding that the statements at issue were admissible under the hearsay rules, the circuit court continued its analysis by examining the statements under the Confrontation Clause. Upon exploring the statement s under State v. Mechling , 219 W. Va. 366, 633 S.E.2d 311 (2006), the circuit court arriv ed at the legally sound conclusion that the statements made by the victim, Teresa Collins, to two separate individuals regarding her bruises and injuries were nontestimonial for purpos es of the Confrontation Clause. As this Court has previously stated in Kaufman ,

Unlike testimonial out-of-court statements, nontestimonial

statements may be admissible in a criminal trial if it is shown that the witness was unavailable for trial, and that the witness’s statement bore adequate indicia of re liability. See Mechling , 219 W. Va. at 371, 633 S.E.2d at 316. In syllabu s point five of

James Edward S. , we held that [e]ven though the unavailability requirement has been met, the Confrontation Clause contained in the Sixth Amendment to the United States Constitution mandates the exclusion of evidence that does not bear adequate indicia of reliability. Reliability can usually be inferred where the evidence falls within a firmly rooted hearsay exception.

3However, where such statements are not offered unde r a hearsay exception considered to be “firmly-rooted,” then the statements are presumptively unreliable and must be excluded “at least absent a showing of particularized guaran tees of trustworthiness.’” James Edward S. , 184 W.Va. at 414, 400 S.E.2d at 849 (internal quotations omitted). Kaufman , 277 W. Va. at 551-52, 711 S.E.2d at 621-22 (footn ote omitted).

Finally, I want to stress the importance of prior d omestic violence evidence between the deceased and the defendant in cases suc h as this. In this case the evidence was offered and found admissible under West Virginia Ru le of Evidence 404(b) to show absence of mistake or accident. Evidence of prior acts of domestic violence also would have been admissible in this case to show motive, or even int ent. See id. As we have previously stated,

“[t]he circumstances under which such evidence may be found relevant and admissible under the Rule have been de scribed as ‘infinite.’ Some of such circumstances are set forth in the Rule itself, but the cataloguing therein is merely illus trative and not exclusionary.” Consequently, W. Va. R. Evid. 404(b) is an “inclusive rule” in which all relevant evidence inv olving other crimes or acts is admitted at trial unless the sole purpose for the admission is to show criminal disposition. State v. Edward Charles L., 183 W. Va. 641, 647, 398 S.E.2d 123, 129 (1990) (quoting U.S.
v. Masters , 622 F.2d 83, 86 (4 thCir. 1980)). Moreover, this Court has previously found that acts of violence between the defendant and deceasedare admissible. See State v. LaRock , 196 W. Va. 294, 313, 470 S.E.2d 613, 632 (1996) (ad dressing father’s conviction for the murder of his infant son and explaining that “[e]vi dence of the prior attacks and beatings not

4only demonstrated the motive and setup of the crime but also was necessary to place the

child’s death in context and to complete the story of the charged crime. We hold that historical evidence of uncharged prior acts which i s inextricably intertwined with the charged crime is admissible over a Rule 403 objection.”); State v. Smith , 178 W. Va. 104, 108 n.2, 358 S.E.2d 188, 192 n.2 (1987) (“As to the relevan cy of other violent acts between a defendant and a deceased, courts have generally permitted such evidence to show ill will or hostility as bearing upon intent, malice and motive for the homicide.”).

For the foregoing reasons, I respectfully concur.

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